Stefani & Bramble
[2021] FamCA 567
•5 August 2021
FAMILY COURT OF AUSTRALIA
Stefani & Bramble [2021] FamCA 567
File number(s): PAC 2595 of 2018 Judgment of: HANNAM J Date of judgment: 5 August 2021 Catchwords: FAMILY LAW – PARENTING – Where at final hearing the parties and the ICL agreed on final orders that provide for the mother to hold sole parental responsibility for the child and that the child live with her – Where the remaining issue to be determined is what time, if any, the child should spend with the father – Where both the mother and the ICL contend that it is in the child’s best interests that orders be made that she spend no time with the father on the basis of the father’s history of family violence – Where findings were sought against the father relating to family violence – Where the father ultimately sought orders that would see the child spend an unspecified period of time with him supervised at a contact centre on three occasions each year – Where the Court is satisfied on the evidence that the father perpetrated physical violence towards the mother as alleged – Where it is the family consultant’s recommendation that if the Court is satisfied that the father perpetrated family violence, the child should spend no time with the father – Where the family consultant also opined that the father’s denial of family violence is a significant concern – Where in the circumstances the need protect the child from harm outweighs the benefit the child may receive from maintaining a relationship with her father – Additional final order made that the child spend no time with the father. Legislation: Family Law Act 1975 (Cth) ss 4AB, 60B, 60CA, 60CC, 65D
Evidence Act 1995 (Cth) s 140
Cases cited: Amador & Amador [2009] FamCAFC 196; (2009) 43 Fam LR 268
Coulter v The Queen (1988) 164 CLR 350
G & C [2006] FamCA 994
Godfrey & Sanders [2007] FamCA 102
Gorman & Huffman and Anor [2016] FamCAFC 174
Mazorski & Albright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405; [2009] FamCAFC 92
Moose & Moose [2008] FamCAFC 108
R v Bloomfield (1998) 44 NSWLR 734
R v Phillips [1973] 1 NSWLR 275
Slater & Light [2013] FamCAFC 4
Syms & Syms [2021] FamCAFC 38
Zuen & Lhao [2020] FamCAFC 84
Number of paragraphs: 250 Date of hearing: 1-3 June 2021 Place: Parramatta Counsel for the Applicant: Ms Jowett Counsel for the Respondent: Ms Dura Counsel for the Independent Children's Lawyer: Ms Shea Solicitor for the Applicant: Ln Legal Solicitor for the Respondent: Minors Family Law Solicitor for the Independent Children's Lawyer: Legal Aid Parramatta ORDERS
PAC 2595 of 2018 BETWEEN: MR STEFANI
Applicant
AND: MS BRAMBLE
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
HANNAM J
DATE OF ORDER:
5 AUGUST 2021
THE COURT ORDERS THAT:
1.The final orders made with the consent of the parties and the ICL on 3 June 2021 remain in place.
THE COURT FURTHER ORDERS THAT:
2.The child spend no time with the father.
3.Pursuant to section 65Y of the Family Law Act 1975 (Cth) the mother is permitted to remove the child X born … 2015 from the Commonwealth of Australia at her discretion for the purposes of international holiday travel.
Note: The form of the order is subject to the entry in the Court’s records.
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 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stefani & Bramble has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HANNAM J:
INTRODUCTION
The parties ("the mother" and "the father") are engaged in a dispute relating to the future parenting of their only child, a little girl now aged six (“the child”).
The parties’ seven-year relationship and the period following separation was characterised by significant family violence to which the child was exposed. This is a salient matter relating to the issue of unacceptable risk of harm to the child, which forms part of the mother’s case that the child should not spend any time with the father.
After the parties separated in 2018, the child has primarily lived with the mother and spent limited supervised time with the father pursuant to court orders.
In the course of the last day of final hearing in June 2021, the parties and the Independent Children’s Lawyer (“the ICL”) agreed on final orders that in summary provide for the mother to hold sole parental responsibility for the child and that the child live with her. Other orders including in relation to the child’s passport were also agreed upon.
The remaining issue to be determined is what time, if any, the child should spend with the father. Both the mother and the ICL seek findings against the father particularly in relation to family violence, and also submit that the risks he poses outweigh the benefit the child may receive from maintaining a relationship with him. It is the contention of the mother and the ICL that it is in the child’s best interest that orders be made that she spend no time with the father.
At the end of the trial and in the course of final submissions the father sought orders that would see the child spend an unspecified period of time with him supervised at a contact centre on three occasions each year.
The question for me to determine is which of these proposals is proper having regard to the best interests of the child as the paramount consideration.
BACKGROUND
The parties who are both in their mid-thirties began a relationship in 2011. They started living together with the father’s parents (“the paternal grandparents”) in the paternal grandparents’ home sometime around late 2013 to early 2014.
In October 2014 the parties moved from the paternal grandparents’ home and began renting a home (“the family home”) together.
The parties’ only child was born in 2015.
Throughout the parties’ relationship, apart from a period of six months taken as maternity leave, the mother has worked in a professional capacity. For a few months after first returning to work following maternity leave she worked part-time but then returned to full-time employment from January 2016.
The father who has trade qualifications held various jobs throughout the parties’ relationship. When the mother returned to work in November 2015 the father ceased his employment, and asserts that he then became the child’s primary carer. The mother contends that she continued in the role of primary carer after returning to work, with significant support provided by the paternal grandparents and her mother (“the maternal grandmother”). Little ultimately turns on the different versions given by the parties as to this matter.
The mother asserts that the father was violent towards her throughout their relationship and this is a significant, if not the determinative issue in the proceedings, to which I will return.
Although there is a great deal of dispute about the mother’s allegations of the father’s violence it is common ground that by April 2016 the parties were no longer living together due to the conditions of an Apprehended Domestic Violence Order (“ADVO”) made against the father for the protection of the mother. The mother continued to reside in the family home while the father lived with the paternal grandparents. At this time the child was also living at the paternal grandparents’ home during weekdays and with the mother on weekends.
There is also no dispute that on 7 April 2016 an incident took place between the parties which resulted in a neighbour contacting the police and the father being charged with assaulting the mother and contravening the ADVO. He was later acquitted of these charges.
It appears that for the next two years the parties remained in a relationship and that following the expiry of ADVO began living together with the child as a family unit even though each depose to other incidents of family violence between them.
On a night in May 2018 a further violent incident took place between the parties at the family home (“the May 2018 incident”). This event also lead to the father being charged with assault occasioning actual bodily harm and damaging the mother’s property and an interim ADVO being made for her protection. The parties separated on a final basis following this incident.
A few weeks later, on … June 2018 the mother was in the process of delivering the child to day-care when she noticed the father standing next to her car in the carpark of the day-care centre. The mother put the child in the passenger seat, locked the car and wound the window down slightly to tell the father to leave and the father put his hands through the window, pushed down and broke the window, and unlocked and opened the car door. The father fled the carpark when another parent who was an off-duty police officer yelled at him that she would call the police. The father was charged with contravening the ADVO and damaging the mother’s property as a result of this incident (“the June 2018 charges”).
In June 2018 the father also commenced these proceedings seeking orders that would see the parties hold equal shared parental responsibility for the child and the child live with him and spend substantial and significant time with the mother. The father later amended his proposed orders and sought orders for an arrangement whereby the child would live with the mother and spend substantial and significant time with him.
In July 2018 the father was found guilty of both charges arising from the May 2018 incident following a defended hearing. He subsequently pleaded guilty to the June 2018 charges and in August 2018 was sentenced to 300 hours community service and was required to enter into two good behaviour bonds. A final ADVO was also made against the father for the protection of the mother for a period of two years.
The father did not complete his community service obligations apparently due to mental health difficulties.
In August 2018, interim orders were made providing that the mother hold sole parental responsibility for the child and that the child live with her and spend supervised time with the father for two hours each Saturday at a contact centre. The child began spending supervised time with the father the following month each fortnight as weekly time was not available to be facilitated at the contact centre.
In September 2018, the family met with the family consultant for the purposes of the Child Responsive Program and the family consultant’s Memorandum to Court (“the 2018 Memorandum”) was released to the parties shortly thereafter.
In December 2018 the mother commenced a relationship with a new partner (“the mother’s partner”) who subsequently moved to live in her household.
By early 2019, the parties had still not resolved their dispute and in April 2019 a Family Report was ordered.
In October 2019 the father’s supervised time with the child changed to supervised time in a play group setting with two other families.
Between March and October 2020 the father’s supervised time with the child was suspended due to restrictions associated with the COVID-19 pandemic.
There were many months’ delay in listing the proceedings for final hearing largely as a result of the father’s non-compliance with trial directions.
After being listed for an undefended hearing in December 2020 the father successfully sought an adjournment with the result that the trial was finally fixed for three days in June 2021.
At the conclusion of the evidence at the trial, final orders were made with the consent of the parties providing, in summary, that:
·The mother have sole parental responsibility for the child;
·The child live with the mother;
·The mother be at liberty to apply for a passport for the child without the father’s consent; and
·The father have leave to provide to any future treating counsellor, therapist, psychologist or psychiatrist, and the coordinator of any Men’s Behaviour change program undertaken by him in the future, a copy of the Family Report and these Reasons for the purposes of the father obtaining assistance in relation to his mental health and/or family violence issues.
Orders were also made relating to the ICL’s costs, before judgment was reserved.
THE MATTER IN DISPUTE
The central and ultimately determinative issue in relation to this dispute is the question of whether the father is the perpetrator of family violence. The family consultant’s recommendations to which I will return are based entirely upon the Court’s findings as to whether family violence as alleged by the mother is proved.
Although the father “accepts” in his affidavit and submissions made on his behalf “that there was domestic violence in the relationship”, that he was found guilty of the offences related to the May 2018 incident and pleaded guilty to the June 2018 offences, the tenor of his evidence overall is to deny that the violence occurred as alleged by the mother and to maintain that it was the mother who was abusive and controlling during the relationship. In other parts of his evidence he contends that if the mother was ever physically hurt by his actions, those actions were accidental.
Although the father does “accept” that there was some violence in the relationship and at one stage under cross-examination the family consultant appeared to even recommend that if any findings as to the father’s violence are made the child should have no time with him, in my view it is necessary to make findings in relation to the extent of violence between the parties.
The Full Court held in Amador & Amador[1] that a trial judge should make findings in relation to abuse or violence between the parties if “they are available and necessary to determine what is in the best interests of the child”. The Full Court went on:
It is important, in our view, not to confuse what has been said by the High Court and the Full Court as to the obligations on a trial judge to make positive findings of fact in relation to allegations of abuse and sexual abuse against a child where parenting orders are sought and where the test to be applied is "unacceptable risk", with the circumstance in a parenting case where allegations have been made of domestic violence and/or assault by one party upon another. In the latter case it will be necessary for the Court to make findings where the evidence enables that to be done.
[1] [2009] FamCAFC 196; (2009) 43 Fam LR 268.
According to the mother’s affidavit, the father perpetrated family violence against her throughout their relationship and on one occasion after separation. The father makes a broad generalised statement in his affidavit in which he “acknowledges that there was domestic violence in the relationship” and that he was “found guilty”. He otherwise does not depose to any incident in which he was violent. He generally deposes that it was the mother who was abusive and controlling during the relationship and sets out one incident in which he contends that the mother was physically violent towards him.
December 2014
In her affidavit the mother deposes to a number of specific occasions on which the father was physically violent towards her, the first being in about December 2014 after the parties started living together in their own home and before the child was born. She deposes that on this occasion she and the father had an argument in which he kicked her and punched her in the arm, and slapped her across the face causing her to sustain a black eye as a result. The mother did not report this incident to the police and deposes that a couple of hours later the father apologised to her.
The father makes no reference in his affidavit to this incident or any event at around this time in which the mother sustained a black eye.
Under cross-examination the father said that he did not think that there had been an incident along the lines alleged by the mother because he knew that he had not slapped the mother, kicked her and given her a black eye and if he had, he would remember it. The father then agreed under cross-examination that the mother did have a black eye at the time she contends this incident occurred but denied that that was a result of anything he had done. When asked about how he understood the mother sustained a black eye at that time the father said that she told him it was occasioned when she was bathing their dog and the dog knocked her over in the shower. It was not suggested to the mother under cross-examination that she had sustained the black eye in this manner.
The only cross-examination of the mother about this incident was to the effect that the event in question “didn’t happen” but the mother maintained that it did.
The mother also deposes in her affidavit that the father punched holes in the walls of the home they were living in at the time, threw bottles at her and on one occasion threw a screwdriver at her. She deposes that he punched her on her arms and legs but that she did not report “these incidents” to the police and does not remember the relevant dates on which they occurred. The mother was not cross-examined about these incidents in particular, though it was put to her that all of the events to which she deposes (other than those to which the father pleaded guilty or was found guilty) did not occur but she maintained that they had.
Under cross-examination the father denied that he ever had punched the mother on the arms and legs and denied that this was a feature of their relationship. When asked further under cross-examination about any event involving physical contact between he and the mother prior to September 2015 the father maintained that if this had occurred he had only acted in self-defence or this contact was made when he was trying to get away from the mother.
September 2015
Although the mother makes no reference in her trial affidavit to an incident in which the father was violent in September 2015 it is apparent from police and court records that an incident that she deposes took place in January 2016 in fact allegedly occurred on 9 September 2015. Ultimately it was not in dispute between the parties that the incident in question did occur on that date and it was this incident that grounded an application made on behalf of the mother for an ADVO against the father for her protection. The final hearing in relation to this application for ADVO took place in January 2016.
The mother’s account of the September 2015 incident set out in her affidavit is that it occurred when her sister and the sister’s boyfriend were staying at the family home and the parties became engaged in an argument in their bedroom which caused the child who was sleeping in a room nearby to wake up and cry. The mother deposes that she did not see what happened next but that when she was “on the floor” and crying her sister and sister’s boyfriend came into the room and her sister told the father to “stop”. The mother deposes that she did not report the incident to the police or make a statement about it but that her sister and sister’s boyfriend went to the police.
The only cross-examination of the mother about this incident was to the effect that the version deposed to in her affidavit “is incorrect” and “did not happen”, and both propositions were denied by the mother. No alternate version of events was put to her under cross-examination. She did however confirm that she remains in contact and on good terms with her sister who had witnessed the event. The sister did not file an affidavit in the proceedings.
The father does not depose to any incident between the parties at about this time. Further, although there is no dispute that the day after the incident in question occurred a provisional ADVO was made for the protection of the mother and child against him, he does not set out an account of any incident which lead to the application for ADVO in his affidavit.
The relevant police records in relation to this event record that the parties had a history of verbal arguments during which neighbours had contacted police but neither party had contacted police previously. The records indicate that according to both witnesses (the mother’s sister and her partner) the parties have regularly had heated arguments during which the father has thrown items at the mother or kicked holes in the wall. It is recorded that the mother has never wished to contact police in the past and on this occasion refused to supply police with any information relating to the incident other than that she “fell”.
It is recorded by police that the witnesses reported that at about 3.30am on 9 September 2015 the parties engaged in a verbal argument which escalated and both were yelling obscenities which woke both witnesses. One witness (whose name was redacted) supplied police with a statement that she observed the father use his hand to push the mother to the ground while he was holding their infant child and the other witness said that he observed the father holding the mother in a headlock with his left arm while holding his infant child as the mother was seated on the ground. It is also recorded that when questioned the father said that the mother fell while they were pushing past each other during an argument and that two of them engage in regular arguments which have resulted in screaming matches on the driveway and “have turned physical in the past”.
Under cross-examination as to the incident the father said that he had a recollection of it and agreed that it also involved the mother’s sister and the sister’s partner. He also agreed that when interviewed by police he was told that he was alleged to have assaulted the mother and her sister’s partner and it was the sister’s partner who had contacted police. He further agreed that the incident in question occurred at about 3.30am and started with him and the mother having an argument which woke the other occupants of the house and that they entered the room in which the argument was taking place. The father also remembered that the witnesses reported that they had seen him holding the mother in a headlock while she was seated on the ground and crying. The father agreed that throughout the altercation he was holding the child (who was about three months old at the time).
According to the father’s version under cross-examination the mother was on the floor as she fell over when the two of them went to walk through a door at the same time. He denied having his arm around the mother’s neck and said that he had bent over to help her up and to see if she was alright. The father agreed that the mother’s sister’s partner tried to physically stop the physical interaction between him and the mother. The father denied that he and the mother’s sister’s partner then got into a fight and each threw swings at one another but did agree that he “defended himself” and at that time when he was holding his infant child.
The father also agreed under cross-examination that he told police that he and the mother had been regularly engaging in arguments but denied saying that on some occasions the arguments “turned physical”.
Although I found the father’s evidence very difficult to follow I understood him to say that any physical interaction between him and the mother on any occasion was accidental. He did however ultimately agree that he had told police in September 2015 that arguments between him and the mother “turned physical” but meant by this that it was the mother who would “get physical”, that is, act aggressively towards him. The father then maintained that on any occasion when he came into physical contact with the mother both prior to September 2015 and after that date until the time they separated that contact was always in self-defence or in an attempt by him to get away from the mother.
The ADVO sought by police on behalf of the mother arising from this incident was subsequently made as a final order for 12 months by a Local Court in January 2016. The father does depose to some matters related to the Local Court hearing in respect of the application for the ADVO as follows:
the magistrate found evidence that I gave in my statement that I would “palm [the mother] off” to be an issue of concern in that it was taken literally rather than figuratively for what I had done. I was referring to deflecting [the wife] from arguments by using the colloquial saying that I would “palm her off”, not the football sense of the saying. (As written)
7 April 2016
According to the mother’s affidavit around three months after the ADVO was made for her protection, on about 7 April 2016, she and the father became involved in an argument about the father using her car. She deposes that while she was subsequently settling the child in bed she heard her car start and the following occurred:
I took [the child] with me and went outside. [The father] was in my work car. I said to him “get out of the car. You are not allowed to use it”. I went over to the car. [The father] pushed me to the ground. He got out of the car and kicked me. He threw my car keys away. I believe a neighbour called the police”.
The mother deposes that the police took a statement from her at home but that she does not have a copy of her police statement about the incident.
The father sets out an account of this incident in his affidavit as follows:
As I drove out towards the front gate of our place, [the mother] came out of the house in her bra and undies screaming like a maniac. I stopped the car at the gate. [The mother] opened the driver door and pulled at me and the keys in ignition which caused me to fall out of the seat and on top of her. [The mother] gave evidence in the Local Court that she did not remember what had happened.
The father was charged with assault occasioning actual bodily harm and contravention of the ADVO and was acquitted following hearing in October 2016. The father does not adduce any evidence of the findings of the magistrate by way of transcript but deposes:
As I recall the findings of the hearing were that there was an argument with [the mother], that she did try to pull me out of her car when I was trying to leave the property and that she pulled me on out of the car and on top of her. There was no finding or direct evidence from [the mother] that I had kicked her.
Under cross-examination in relation to this incident the father agreed that there had been an argument between him and the mother that day and that the mother had indicated to him that she didn’t want him to take the child in the car until a problem with the brakes had been fixed. Although it is not entirely clear, it appears that the father agreed that he got into the mother’s car and intended driving off in it when the mother was trying to settle the child into bed. He also agreed that there was an argument on the driveway between himself and the mother about him being in her car and attempting to use her car and that this argument occurred at night time. He denied pushing the mother to the ground and kicking her in the course of the argument but agreed that a neighbour had called police on that occasion. He denied being in any way aggressive towards the mother and in answering a question about his conduct asserted that the mother had been aggressive towards him.
The father denied that he was quite angry with the mother because she didn’t want him to use her car and claimed he was unaware of that. Initially he denied under cross-examination becoming quite aggressive with the mother in the course of an argument on the driveway but then conceded that he had been.
When cross-examined, the mother agreed that in her statement to police about this incident she said that she had been injured and had given evidence to that effect at the hearing. She could not recall whether her evidence in the criminal proceedings against the father was exactly the same as set out in her affidavit. The alternate version given by the father in his affidavit to the effect that the magistrate found that the mother tried to pull him out of her car and pulled him on top of her was not put to the mother in cross-examination and no other questions about the incident were asked of her.
Christmas Day 2016
The next incident of violence deposed to in the mother’s affidavit was said to have occurred on Christmas Day 2016 when the parties and child were at the home of the paternal grandparents. The mother deposes that she and the father had an argument and that the father “whipped” her arm with a necklace, leaving a red mark. She says that the paternal grandfather “spoke” to the father about this behaviour and then he and the father had an argument. In the course of this argument the mother deposes that the father pushed the paternal grandfather to the ground on the front lawn of the home and that the child was in the father’s arms at the time and was crying. According to her affidavit the paternal grandfather cut himself on his leg or arm on a piece of broken glass. No report of this incident was made to the police.
The father does not set out any version of this event in his affidavit. The trial affidavit of the paternal grandmother who gave evidence in the proceedings also did not include any version of this event, consistent with the father’s case that there was no altercation.
Under cross-examination the paternal grandmother was asked about any significant argument or conflict with the paternal grandfather to which the paternal grandmother answered that there was an incident at Christmas before the parties’ separation. The paternal grandmother explained under cross-examination that on this day there had been a verbal argument between the father and paternal grandfather when the father was holding the child. She says that the paternal grandfather approached the father, offering to take the child inside as she understood he was concerned about the child being exposed to conflict between the parties. According to the paternal grandmother’s oral evidence, the father put his hand out to the paternal grandfather saying “No Dad, its over” and at that stage the paternal grandfather overbalanced and tripped over rocks in the garden and fell. She said that when he fell, the paternal grandfather cut himself on his leg or arm on a piece of broken glass or rocks in the garden.
The paternal grandmother denied that the father was angry with the paternal grandfather for interfering on this occasion. Under further cross-examination the paternal grandmother agreed that prior to the paternal grandfather’s intervention she also had tried to calm the parties down but was unsuccessful so then the paternal grandfather came out of the house. She agreed that when he was injured following the fall, that brought the argument to an end.
It was put to the mother under cross-examination that the assaults of herself and paternal grandfather did not “happen” and that “there was no altercation between [the father] and his father on that occasion”. The mother remained firm that both assaults had occurred. Under cross-examination the mother agreed that she had not reported this incident to the police at the time and did not want to involve police at that point and said she was not aware at the time that she was still protected by an AVO.
The father’s counsel later cross-examined the mother further about the event on Christmas Day 2016. It was put to the mother that there was a verbal argument between herself and the father that day with which she agreed and it was suggested that he did not hit her with a necklace but she confirmed that he did. It was then put that there was a verbal argument between the father and paternal grandfather with which the witness agreed and it was suggested to her that the father did not push the paternal grandfather to the ground. The mother did not agree and confirmed that the father did push the paternal grandfather to the ground. She also disagreed with the suggestion that the paternal grandfather took a step backwards and stumbled and again confirmed that this had not occurred and that the paternal grandfather was pushed.
May 2018
The mother deposes to a particularly serious incident of violence on an evening in May 2018, which ultimately lead to the parties’ final separation. According to her affidavit after a family get together she went to bed and was awoken at about 1.30 am by the father yelling at her. She deposes that this yelling also woke the child and that she went to the child’s bedroom and brought her back to the parties’ bedroom. The mother deposes that the father threw her phone against the bedroom wall and she thought it had been broken and that he continued to yell at her. She alleges that he poked her in the forehead and the eye, grabbed her by the arm and pushed her up against the wall and then grabbed her by the throat and pushed her onto the bed.
According to the mother’s affidavit she then let the child go and tried to push the father away. The child at this stage was screaming and the father walked out of the room. The mother picked up the child and retrieved her phone but found it was not working. She deposes that she lay down with the child, that the father did not return to the bedroom and that after a while she fell asleep. She says that when she woke up the father was beside her and that she took the child and went to a police station, and was interviewed by police via video.
According to the father’s affidavit he and the mother were arguing after he had gone to bed and he told the mother that he was going to take the child to his parents’ home. He deposes that the mother woke the child up and brought her into their bed and that he “picked up” the child in his arms. He said that the mother became aggressive and lunged at him and that he immediately put the child down on the bed. He then says “I was forced to put my hands up in order to protect myself from [the mother] who came at me. We struggled, and I caused injuries to [the mother] during the struggle.” The father deposes that he could then “sense” that the mother “was going to get violent again” so he went to the lounge room, watched TV and later went back to the parties’ bed and fell asleep.
The father was arrested and charged with assault occasioning actual bodily harm and destroying or damaging the mother’s property. An interim ADVO was also made for the protection of the mother and child and the father was granted bail. The father was subsequently convicted of each of these offences.
Under cross-examination of the mother there was no clear proposition put as to how she received injuries from this incident. When asked whether she recalled there being a “struggle back and forth” between her and the father the mother said “he was coming at me” and “I was trying to push him away”. When asked whether she pushed the father back with one push the mother said “he was grabbing hold of me really hard and pushing and hurting me”. When it was suggested to the mother that the father did not put his hand around her throat in a choking-like motion the mother said that that was incorrect. She confirmed that as a result she had bruising to her neck, shoulders and face. The mother was asked no other questions by the father’s counsel and no other propositions were put about his conduct.
The father was cross-examined about the statement in his affidavit that he “accept[s] the finding of the court” in relation to a finding that he “assaulted [the mother]” and “caus[ed] actual bodily harm (red marks on face, arm and shoulders)”. In this regard the father confirmed that he accepted the finding of guilt.
The father was then asked under cross-examination about his statements to the family consultant when interviewed for the purposes of the Family Report that “in relation to the assault charge he had been found guilty in spite of there being no evidence to support the allegation”. After much prevarication the father agreed the family consultant had accurately recorded what he had said in the interview. He agreed that it was his view at the time that the charges should have been dismissed because the assault did not happen but denied still having that view as at the date of the hearing.
The father was also cross-examined about things that he had told a Corrections officer on 7 August 2018 when being interviewed for the purposes of a Pre-sentence report in respect of these offences. The father recalled this discussion and agreed that he had denied the allegations set out in the Police Facts Sheet relating to the incident and agreed that he had claimed not to have had physical contact with the mother and that he told the officer that the mother’s allegations were not correct.
When cross-examined by the ICL the father conceded that the injuries he recalled the mother suffering as a result of this incident included bruising to her face, a red mark on her eye but he denied seeing red marks on her neck. He agreed that he had seen a document prepared by a forensic nurse for the purposes of the criminal proceedings which set out the mother’s injuries and that this document included a record that the mother had red marks on her shoulder, the top of her shoulder and the base of her neck and then said he remembered those injuries. He also agreed recalling that she suffered some bruising to her arms.
When asked again whether he agreed that he caused those injuries to the mother the father said that he didn’t think he caused “all of them”. When asked which of the injuries he thought he caused the father said “the red eye, probably, when I was engaging back in defence. So – which – maybe the arm when I – like, when I was trying to…” He then said “I think maybe the arm and shoulder and maybe the red eye – mark on the red – on the eye, but it wasn’t intentionally, like, done obviously. That wasn’t my intention to set out to hurt her.” The father then said variously that he did not know how the mother got the marks to her neck, that he didn’t see the marks on her neck and that he believed they were actually caused by the child earlier on that day. The following question and answer then followed about this last proposition:
What do you think caused the marks to her neck? When I went to pass [the child] to [the mother], she jumped out of my arms before I was ready and before [the mother] was ready and grabbed [the mother] around the neck and hurt her arm and my arm, because she thought she could fly out of the – she was just being silly, having fun. It was her birthday. Like, it wasn’t – it was pretty crazy.
Under cross-examination by the ICL the father denied poking the mother in the forehead and the eye but agreed that he “believed” that he made contact with her forehead or around her eye. When asked what he recalled about how this physical contact could have occurred the father said:
I, I, I, I think I might have grabbed it, like, in the commotion when I was trying to stop her coming at me. But I probably did make contact with those areas but I, it wasn’t an intention, like, go at her to get to those areas, it was just more of a – a, like, like a, well, because I had [the child] in my arms at that stage, I put her down on the bed.
Throughout his evidence, the father constantly used expressions such as that he “would have” taken particular actions or that certain events “would be” along particular lines. At other stages he referred to events that “could have” occurred. At various stages it was indicated to him that he should only relate events that did happen and that if he could not recall he should say so. At one stage he agreed that he did not recall matters about this particular event.
The father denied it when asked whether he had grabbed the mother by the arm and pushed her against the wall. When asked whether he had grabbed the mother at all the father said that he “could have grabbed her arm when she was coming at me” but denied pushing her against the wall. The father then said variously that he probably did grab the mother by the arm, that maybe he grabbed her by the arm and that “I’d say that’s what would’ve happened”. He then agreed that he probably “would have grabbed her firmly” and he did this when she “launched at” him.
The father then said he did not remember pushing the mother but was taken to his police interview in which he asserted that he defended himself after the mother grabbed him and when asked how he did this he said “by trying to push her off”. The father then clarified in his interview with police that he pushed the mother with two hands and was “shouting and pushing her away”. The father then agreed under cross-examination that he had pushed the mother but could not remember if she made contact with the wall as a result of the push.
The father consistently denied making contact with the mother’s throat but did agree that he made contact with her “shoulder and neck” and thought that this part of her body “is where I might have grabbed her to push her off”. He then said he did not recall which part of her body he came into contact with. The father agreed that the mother ended up on the bed and said this had happened when he pushed her off him and then said he recalled “like, pushing her back” and that then she “sort of sat back off the bed”.
When cross-examined by the ICL about damage to the mother’s phone the father initially said that he saw it on the ground, picked it up and placed it on the bed and indicated with a gesture that he did this in a flicking motion. He later conceded that the phone was broken and when asked how this may have happened said that he didn’t know but assumed that “it might have got trodden on”.
Later in cross-examination the ICL asked the father about a statement in his affidavit to the effect that he “wanted to apologise to [the mother] for what occurred”. When asked about what he wanted to apologise to the mother about the father gave a convoluted answer to the effect that the wanted to apologise about the way in which their relationship ended. Later after a series of non-responsive and almost unintelligible answers the father then asserted that he wanted to apologise for “the injuries” but then immediately added “that I’ve… by when she has come at me”. It ultimately became clear that the father maintained that any injuries he may have caused to the mother in the course of this event were inflicted in self-defence. He was unable to explain why he felt the need to apologise to the mother in these circumstances. After further prevarication the father insisted that he didn’t injure the mother “on purpose” and agreed it was really her fault because she came at him. He then claimed he was unable in any way to have conveyed an apology to the mother because of the conditions of the ADVO.
June 2018
While on bail and in breach of the ADVO the father committed further family violence offences in June 2018. The father does not set out any account of the incident that lead to these charges separately in his affidavit but rather deals with it in a compendious and rather confusing manner in another paragraph related to the hearing for the May 2018 incident. In respect of the court proceedings in relation to the June 2018 incident the father deposes only that “on advice of my lawyer I pleaded guilty to damaging her car window by leaning on it”.
The records of the Local Court indicate that the father who was represented by counsel pleaded guilty to damaging property and contravening the ADVO on … June 2018. The Facts Sheet in relation to those offences upon which the plea was entered records the following:
…about 8:20 AM on Wednesday, … June 2018 the victim was at [the child’s child- care centre]. She was there to drop off her daughter.
As the victim had just pulled into the centre and parked her vehicle [registration details omitted] in a car space, she looked up and saw the accused [the father] standing in front of her car. She immediately became afraid as the accused walked over to her door. The accused pulled the door handle to try and open the driver’s side door but it was locked. The accused was saying something but the victim could not hear through the window.
The victim kept saying to the accused “you need to leave, you need to leave”. The accused put his hand up to his ear as though he could not hear her. The victim lowered her window a few centimetres and she said again, “you need to leave”. It was then that the accused put both hands through the gap in the window and forced it down. The window was then open half way. The accused put his hand into the car and flicked the lock which unlocked the door. He then opened the door. The victim kept telling the accused to “go away”, but he did not listen to her. The victim’s daughter [the child] was sitting on the front passenger seat and started to cry. The victim stayed in her car.
A few seconds later a woman not known to either party approached them and said to the accused “you need to leave”. The woman had to repeat herself a few times before the accused finally walked away………
The victim felt very afraid seeing the accused as she did not know what he was going to do. The window on the victim’s car that the accused forced down is now broken as it will not go back up or down…..
The early learning Centre where the incident occurred is located less than 50 m away from the victim’s work.
The mother’s version of this incident is almost identical to the Facts Sheet tended on sentence when the father pleaded guilty to the offence. The mother was not challenged about any aspect of her version.
The father was convicted of each offence and placed on a good behaviour bond for 15 months in relation to damaging the mother’s car and ordered to perform 100 hours of community service in relation to the contravention of the ADVO.
Discussion and findings
I am satisfied to the requisite standard[2] that the father was physically violent to the mother as she contends including on each of the specific occasions that she deposes to and in relation to her general assertions about his engagement in similar conduct on dates which she cannot recall. I find the mother’s allegations proved for the following reasons.
[2] Evidence Act 1995 (Cth) s 140 - the balance of probabilities.
First, where the parties each depose to alternate versions of the same incident (noting that the father does not depose to any version of most of the incidents in question) I prefer the mother’s evidence to that of the father where they differ.
Although it is contended on behalf of the father that there are some inconsistencies between the mother’s version deposed to in her affidavit and the version given to the family consultant, overall I find that there is a far greater internal consistency between the mother’s various statements given in different contexts about particular incidents than in the statements concerning those events given by the father. The mother also remained firm and consistent under cross-examination as to each of the incidents and was not challenged with any evidence to the contrary.
By contrast, the father under cross-examination prevaricated, was evasive and gave varying and inconsistent answers throughout the whole of his oral evidence. When asked about the events particularised in the mother’s affidavit the father variously completely denied that the event occurred, agreed to parts of the mother’s version when confronted with evidence in support of her account, accepted that certain events had happened but almost immediately denied that this was the case, claimed to have little recollection of the event in question and then asserted that his actions were either in self-defence or were accidental.
Further, on the limited occasions where there is evidence that corroborates one version over another, (such as in police records, findings of other courts and in one case, medical evidence) this evidence is more consistent with the mother’s version than the father’s.
So far as the first incident in December 2014 is concerned, the mother deposes to events in which she was assaulted by the father and which caused her to sustain a black eye as a result. The only cross-examination of the mother about this incident was to the effect that the event in question “didn’t happen”. No alternative version was put to the mother and of note, it was not suggested to her that she occasioned a black eye as a result of the parties’ dog knocking her over in the shower as the father asserted for the first time under cross-examination. It is also of note in my view that the father conceded under cross-examination that the mother did have a black eye at the time she contends this incident occurred but made no reference to it in his affidavit. In these circumstances, where there is no dispute that she did sustain a black eye, I am satisfied that it is more likely that not that this injury was occasioned as a result of a physical assault by the father as asserted by the mother.
I also accept the mother’s evidence about the father’s behaviour generally that he damaged the home in which they were living, threw items at her and punched her on the arms and legs. The mother remained firm under cross-examination as to these matters when it was put to her that they had not occurred. In addition to the mother’s evidence, there is in my view some corroboration about these matters. In the police records in relation to the subsequent event in September 2015 for example, it is recorded that there had been a history of neighbours contacting police about the parties’ noisy arguments and that both witnesses to that subsequent event were aware of the parties previously having heated arguments during which the father has thrown items at the mother or kicked holes in the wall. It is also recorded in that September 2015 record that the father himself reported the parties having a history of heated arguments which on occasions had “turned physical”.
Further, the father’s concession under cross-examination, that if there had been any physical between he and the mother prior to September 2015, he had only acted in self-defence or in an attempt to get away from the mother, appears to contain a concession that there may have been such incidents in the past contrary to his general statement that there had been no such incidents.
I am also satisfied to the requisite standard that the incident of violence in September 2015 was in accordance with the mother’s affidavit evidence albeit that she described it as occurring in January 2016. It is clear from police records and all of the other related undisputed facts (such as the date on which an ADVO was made) that the event in question occurred on 9 September 2015.
I accept the submission made on behalf of the father that this incident was witnessed by the mother’s sister and the sister’s partner and that the mother remains currently on good terms and in contact with her sister, who may have been expected to be called as a witness if this event had occurred as she contends. However, I consider that the mother’s failure to call her sister as a witness attaches less weight in these circumstances where despite it having been put to the mother that the incident “did not happen” the father subsequently had a good recollection of the incident in question and agreed that many of the events in relation to this incident as deposed by the mother or recorded by police were correct.
Overall, there was in my view greater inconsistency in the father’s evidence as to this incident than in the account of the mother. It is also in my view a feature of the mother’s evidence that there is no attempt on her behalf to exaggerate. For example, in her evidence concerning this incident she maintains that she cannot remember how she came to be on the floor and she does not allege that the father had her in a headlock as one of the witnesses was said to have claimed at the time.
Although I cannot make any further positive findings in relation to this event I am not satisfied that the mother was the aggressor as the father ultimately contended. In this regard, I attach some weight to the finding that must have been made by the magistrate (at the same standard to be applied in these proceedings) that there was sufficient reason to make an order for the mother’s protection against the father, rather than the other way around.
I am also satisfied that the incident on 7 April 2016 occurred as deposed to by the mother and that in particular when she told the father to get out of her car he pushed her to the ground, got out of the car, kicked her and threw her keys away.
While it is clear that the father was acquitted of the charges in relation to his conduct on this occasion and he appears to attach some weight to this acquittal, in my view the fact of his acquittal is not weighty. In particular, the father deposes to the magistrate finding that the mother pulled him out of the car and on top of her and that no evidence was given by the mother that he had kicked her. However, it was open to the father alone (as he was the defendant in the criminal proceedings and the mother was only a witness) to adduce evidence by way of transcript from the Local Court hearing as to the findings he claimed that were made by the magistrate but he failed to do so.
I also consider it weighty that under cross examination the father once again conceded some aspects of the mother’s version which were omitted from the account in his affidavit such as that he and the mother had an argument on the driveway about his use of the car and that it happened at night at a time when the mother was trying to settle the child into bed. Further, some inconsistencies in his account were revealed under cross-examination such as his denial that he was aware that the mother didn’t want him to use his car and his initial denial that he became quite aggressive with the mother in the course of the argument on the driveway followed by a concession that he had behaved in such a manner.
So far as the event on Christmas Day 2016 is concerned, I am satisfied to the requisite standard that the mother’s allegation is proved. Once again the mother has at all times remained consistent as to this event but the father omits it entirely from his affidavit. It was also put to the mother that the assaults of herself and the paternal grandfather “did not happen” and that “there was no altercation between the father and paternal grandfather” even though it subsequently came to light that there was some form of altercation between the two on that day.
In finding this allegation proved, I consider that the evidence of the paternal grandmother was more consistent with the mother’s account as to this incident than the father’s position that there was no altercation between him and paternal grandfather. The paternal grandmother agreed that there was a verbal argument between the parties which was sufficiently heated that it required the intervention of both herself and the paternal grandfather, that the father made contact with the paternal grandfather and that when the paternal grandfather fell to the ground he cut his leg as the mother contends. The only point of difference between the mother and paternal grandmother relates to whether the contact by the father caused the paternal grandfather to fall to the ground or whether he stumbled.
I am satisfied that it is more likely than not that the events of the May 2018 incident occurred as deposed to by the mother. A salient feature of the father’s evidence is that he not only fails to explain in his affidavit how he “caused injuries to [the mother] during the struggle” but that he did not ever give a coherent account of this event at the hearing. It is not possible from the answers he gave under to cross-examination to ascertain what he maintains occurred at this time.
Ultimately the father’s “acceptance” in relation to his conduct on this occasion amounts to nothing more than a concession that he was found guilty following a defended hearing on criminal charges. In my view, nothing favourable to the father arises from this “acceptance” as he could hardly challenge the undisputed fact that he was found guilty of assaulting the mother and causing her actually bodily harm and damaging her property. Even then, subsequent to this finding of guilt the father continued to maintain when interviewed by the Corrections officer and more importantly when assessed by the family consultant for the Family Report that he was found guilty although there was no evidence to support the allegation and that he did not have any physical contact with the mother in the course of that event.
Although it was put to the mother that the father had not grabbed her by the throat as she alleges and he specifically denies doing this, the fact that the mother suffered injuries in the course of this event is not in dispute. The mother’s evidence concerning the father’s actions is corroborated by expert evidence from a forensic nurse examiner (“the expert”) which formed part of the police evidence in the criminal charges against the father contained in the Local Court file which was tendered in its entirety in the proceedings.
In her forensic report the expert deposes to the mother giving an account of the assault upon her by the father in consistent terms to the mother’s affidavit evidence. In particular, the mother told the expert that she was asleep when the father yelled at her and woke her, that he poked her in the eye, grabbed her by the arm, pushed her against the wall and grabbed her by the throat and pushed her onto the bed, though the mother’s account to the expert was more detailed and also contained other allegations about the father’s conduct. It is recorded that the mother also told the expert that the child witnessed the assault.
The expert records the mother’s account of the father applying pressure to her neck while covering her mouth with his other hand as “strangulation”. It is recorded that the mother reported a hoarseness in her voice following the incident and a tenderness to her neck.
Upon examination the expert reports that she observed bruises to the mother’s right upper eyelid and that the mother reported this occurred when she was poked in the eye by the father. It is also recorded that the expert observed petechial haemorrhage (a collection of flat red dots) and tenderness to the right side of the mother’s neck, a two centimetre bruise at the top of the mother’s right shoulder at the base of neck and further petechial haemorrhages at the front and left side of her neck which the mother stated occurred when she was strangled by the father. Other injuries observed by the expert were bruises to the mother’s left inner-upper arm, back of her left upper-arm and back of her right upper-arm which the mother stated she occasioned when the father grabbed and pulled her by the arms.
The expert opined that “being poked in the eye with a finger is a reasonable explanation for the injury seen” to the mother’s eye. In relation to the bruising to the mother’s neck the expert opined:
[the mother] had bruises to both sides and the front of her neck, stated to have occurred from being strangled, in which she found it hard to breathe. These bruises were made up of petechial haemorrhages (small,1-3mm bruises). Bruising to the neck is an unusual site for accidental injury, as the skin on the neck is rarely caught between an external force and underlying bone, which is the typical mechanism common in bruising. The two most common causes of bruising to the neck are suction injuries ie hickeys/love bites, and strangulation.[3]
[3] The expert also made the following observation which is relevant to the question of the severity of the father’s conduct: Strangulation is considered a “red-flag” for serious inter-personal violence (references given) and is a significant predictor for future lethal violence (references given). It is a potentially life threatening event, as it may take little sustained pressure over a very short period of time to cause unconsciousness and death.
The expert also opined with respect to the “multiple large bruises to the back of both her upper-arms and one bruise to the left inner-arm” that “bruises are the result of blunt force trauma where the force applied has caused bleeding beneath the skin”. She went on to say:
bruising to the inner aspect of the upper arm is unusual due to the protected nature of the anatomical site, and is more commonly the result of infliction rather than accidental mechanisms. As most of the bruises were located on the upper arms, being grabbed is a reasonable explanation for the injuries seen, however when viewed together [identified injuries] were of comparable size and colour, and were present on corresponding locations on the body (to the back of the upper-arms). Therefore, accidental mechanisms such as a fall are possible alternative explanations for these injuries.
Since separation the father has been diligent in taking all actions that he could to enable him to participate in decision-making concerning the child and to spend time and/or communicate with her to the greatest extent possible in the circumstances. He initiated proceedings shortly after separation but initially proposed orders for an arrangement which he maintained for some time that appeared unsuited to the child’s best interests. He has since that time sensibly resiled from that position and consented to orders that will see the child live with the mother.
The father has been conscientious in attending at the contact centre over the lengthy period of time that these proceedings have been on foot, though he maintains that at times his mental health difficulties made this arrangement challenging for him.
In consenting to orders that the mother solely exercise parental responsibility for the child the father must be taken to have accepted that such an order is in the child’s best interests, a proposition supported by the family consultant’s evidence and with which I agree.
The change in the father’s proposal throughout the life of these proceedings, and in particular from the commencement of the final hearing to final submissions, demonstrates the father’s capacity to take on board most of the family consultant’s opinion about the proper arrangement for spending time with and communicating with the child. Ultimately, the orders he proposes which are not entirely in accordance with the family consultant’s recommendations in my view reflect his genuine desire to continue to be involved in the life of the child in any way possible even through spending very limited time with her.
Likely effect of change in the child’s circumstances
As noted earlier in these Reasons, the family consultant did foreshadow a recommendation (which has been adopted by the mother and ICL) that if the Court were to find the father perpetrated family violence as alleged by the mother, an order be made that the child spend no time with him. In making this recommendation in the Family Report, the family consultant recognised that if the child were to spend no time with the father she would likely experience a termination of her relationship with him and other members of the paternal family as “confusing and upsetting”.
The family consultant recognised that each child and their circumstances are different but opined that the child’s capacity to cope with this loss in relationship depends upon the capacity of the parent that remains with the child to provide a coherent story about the child’s circumstances and other elements of comfort through a difficult situation. Although it is not possible to predict with certainty what will occur in the future, there is no evidence that suggests the mother has not managed to assist the child with difficulties that she may have experienced when, for example, the COVID-19 restrictions meant that she did not see her father for many months. Further, the family consultant did not have any particular concerns about the mother’s parenting capacity which may suggest that she could appropriately assist the child to manage her experience of loss of these relationships.
From the father’s perspective, this is clearly a salient consideration as the proposal of the mother and ICL will bring about a complete termination of the child’s relationship with him whereas under his proposal that relationship will continue albeit in a much more limited fashion.
The father’s counsel tried valiantly to maintain the position that as ceasing a relationship between a child and a parent is such a significant step, I should disregard the family consultant’s opinion that the arrangement proposed by the father for very limited highly supervised time between he and the child provides very little benefit to the child and brings with it other risks. The father’s counsel submitted that I should disregard the family consultant’s recommendation that in these circumstances the child should spend no time with the father in the future. Despite urging that the Court take this position, it was ultimately conceded on behalf of the father that if the Court accepts the evidence of the family consultant as to all matters then it would not be appropriate to make the orders that the father proposes.
As discussed earlier in these Reasons, I have no reason to disregard particular parts of the family consultant’s evidence and as a whole I accept it and attach particular weight to it. As explained, the family consultant well understood that there may be some disadvantages for the child brought about by a change in her circumstances that involves severing her relationship with her father and paternal family, but considers that these are outweighed by the disadvantages for the child in the orders proposed by the father.
Practical difficulty or significant expense involved in spending time with and communicating with the other parent
Any order for ongoing supervision of a child’s time with a parent which is to continue potentially for 12 years brings with it great practical difficulty and some expense.
In final submissions, it was conceded on behalf of the father that as his proposal for extremely limited supervised time at a contact centre had come so late in the proceedings, no enquiry had been made of any centre about whether it was prepared to facilitate those kind of arrangements indefinitely. Assuming that such arrangements could be made, the practical difficulty of long term supervision at a contact centre remains.
It is the family consultant’s opinion that the father’s proposal for ongoing supervision of the child’s time with the father while necessary to mitigate risk, (though in his view will not eliminate it), is impractical.
The undesirability of and practical difficulties associated with long term supervision of a child’s time with a parent at a contact centre is also well-documented in the authorities.[12]
[12] See Moose & Moose [2008] FamCAFC 108 at [119]; Slater & Light [2013] FamCAFC 4 at [40] and Gorman & Huffman & Anor [2016] FamCAFC 174.
Capacity of each parent and any other person to provide for the child's needs
Maturity, sex, lifestyle and background (including culture and traditions) of the child and either parent
Throughout the proceedings, including at the commencement of the final hearing, the capacity of each parent and the father in particular to provide for the child’s needs was likely to be a significant factor relating to the best interests of the child. This was especially so given that the father had not been involved in the day to day care of the child for many years and was proposing that he have a significant role in her future care.
There is considerable overlap between the risks posed by the father as a result of finding that he is the perpetrator of coercive and controlling violence, that this violence has escalated over time and that he has continued to fail to acknowledge it, and his capacity to meet the child’s needs if she were to be spending substantial time with him (as the father proposed up until the final day of the hearing). Further, the father himself had raised questions about his mental health and possible impairments to his functioning and presented to the family consultant as a person who may have difficulties in this regard. For this reason, the family consultant recommended that further information be obtained from the father as to this matter but no further evidence was forthcoming in the proceedings.
However, by the end of the hearing the potential importance of these matters had largely fallen away due to the significant change in the father’s proposal. Ultimately, parental capacity does not loom large in the resolution of this dispute as there is no evidence to suggest that the father does not have capacity to meet the child’s needs during the extremely limited time and under the supervised circumstances that he proposes she is to spend with him.
Matters relevant to each parent’s lifestyle and background especially where they relate to family culture and traditions are often matters of some significance and typically involve some exploration in parental disputes. However, neither party has adduced any evidence in relation to these matters other than that the child previously enjoyed the benefits of extensive time with her paternal family, a matter that has been touched upon when considering the child’s relationships. However, once again, considering the ambit of this dispute and the competing proposals this is not a salient matter to consider in resolution of this dispute.
Attitude to the child and responsibilities of parenthood demonstrated by each parent
There is considerable overlap between this matter and others already considered earlier in these Reasons. For example, it could be said that the father’s diligence in desiring a relationship with the child and seeking orders that would support the child having a relationship with him, and his consistency over the years in attending at a supervised centre to ensure that the child spends time with him, may be regarded as commendable. However, the father’s lack of acknowledgement of his violent conduct and demonstrated understanding of the risks he poses as a result of that violence has been the central matter in these proceedings from the outset and a matter that the father alone can address.
When the father was first assessed for the purposes of the Child Responsive Program (almost three years ago), the family consultant identified the issue of family violence as the most significant in the proceedings and raised at that early stage that if there was family violence, particularly if it was of a coercive and controlling dynamic that this may affect the time, if any, the child should spend with the father.
In relation to the future arrangements for the child, the family consultant then recommended that if there is veracity to the mother’s allegations regarding family violence, a suitable intervention for the father would be his completion of a Men’s Behaviour Change Program and provided an online web address for the father to obtain further information and locate a suitable service provider.
When that Memorandum was released in September 2018, the father had already been convicted in relation to the May 2018 incident and the June 2018 charges, and had not instituted any appeal in relation to them. In my view, in those circumstances it could not have been clearer to the father what was recommended in relation to his family violence. He also must have been aware that the Court may make an order that the child spend no time with him in the event that he continued to not acknowledge and take responsibility for his conduct.
In my view, the father’s failure to grasp the significance of matters that he alone could address and to take responsibility for his conduct may be seen as reflecting poorly upon his attitude toward the responsibilities of parenthood and ultimately, even his attitude to the child.
Family violence relating to the child or a member of the child’s family
As is clear from these Reasons, this is the most significant matter in these proceedings and has been dealt with at length when considering other matters.
CONCLUSION
Orders sought by the parties with respect to most matters in relation to the future parenting of the child have already been made. I consider those orders to be proper and in the best interests of the child.
So far as the only remaining matter in dispute is concerned, relating to the time the child is to spend with the father, as is clear from the foregoing discussion I attach particular weight to each of the primary considerations in relation to the best interests of the child and to the issue of family violence. I also consider the likely effect of change in the child’s circumstances that would be brought about by each of the party’s proposals, the practical difficulty involved in spending time with the father and the attitude to the responsibilities of parenthood demonstrated by each parent, as well as each of the other matters touched upon, as weighty factors in determining this dispute.
Further, for the reasons given I attach particular weight to the evidence of the expert especially in relation to the need to protect the child from the various risks identified as being posed by the father as a result of him being a perpetrator of serious coercive and controlling violence which he has failed to acknowledge. I also consider the family consultant’s opinion concerning the way in which the child is likely to experience the particular arrangements proposed by each of the parties as weighty.
I consider that the order sought by the mother relating to international holiday travel with the child is proper and in the child’s best interests having regard to the reality that the mother will be primarily responsible for the child’s future care and the long-term decision-making relating to her wellbeing. Only one slight amendment has been made to the form of the mother’s proposed order in this regard, being the insertion of the relevant provision of the Family Law Act to ensure that the mother is permitted to travel with the child as proposed, without the need to reapply to the Court.
In all of the foregoing circumstances, I am satisfied that the parenting arrangement and orders proposed by the mother and supported by the ICL are proper and in the best interests of the child and accordingly, I make the orders set out at the forefront of this Judgment.
I certify that the preceding two hundred and fifty (250) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hannam. Associate:
Dated: 5 August 2021
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