Stephens & Constable
[2022] FedCFamC2F 410
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Stephens & Constable [2022] FedCFamC2F 410
File number(s): NCC 140 of 2015 Judgment of: JUDGE BETTS Date of judgment: 4 April 2022 Catchwords: FAMILY LAW – Parenting – final orders – two children, aged 11 and 7 years – where the mother brought fresh proceedings in 2019 after the father breached previous final orders by physically disciplining the oldest child – where the court made interim orders in 2019 formally ceasing the father’s time with the children – where the mother seeks that the “no time” interim order be made as a final order – where the father seeks that time with the children recommence – where both parties have engaged in denigration and family violence – where an AVO was taken out for the protection of the mother and the oldest child – where the father has undertaken real steps to improve himself – where the court must decide whether the father poses an unacceptable risk of harm to the children – where the ICL contends that the father would not pose an unacceptable risk subject to various safeguards and injunctions in the orders – best interests of the children. Legislation: Family Law Act 1975 (Cth), Pt VII Cases cited: A v A (1998) FLC 92-800
B and B (1993) FLC 92-357 (“B and B”)
Helbig & Rowe [2016] FamCAFC 117
Keane & Keane [2021] FamCAFC 1
M & M (1988) FLC 91-979
Marra and Marra (Unreported, Full Court of the Family Court, Fogarty, Baker & Butler JJ, 8 September 1993)
Russell & Close (Unreported Full Court, 25 June 1993)
Sedgley & Sedgley (1995) FLC 92-623
Division: Division 2 Family Law Number of paragraphs: 230 Date of last submission/s: 18 August 2021 Date of hearing: 16, 17 and 18 August 2021 Place: Newcastle Counsel for the Applicant: Mr Mooney Solicitor for the Applicant: Ashby Family Solicitors Counsel for the Respondent: Mr Willoughby Solicitor for the Respondent: Joplin Lawyer Counsel for the Independent Children’s Lawyer: Ms Ticehurst Solicitor for the Independent Children’s Lawyer Legal Aid NSW Domestic Violence Unit ORDERS
NCC 140 of 2015 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS STEPHENS
Applicant
AND: MR CONSTABLE
Respondent
ORDER MADE BY:
JUDGE BETTS
DATE OF ORDER:
4 APRIL 2022
THE COURT ORDERS THAT:
Parental responsibility
1.The Mother is to have sole parental responsibility for the major long-term issues of the children X born 2010 and Y born 2014 (“the children”).
2.In the exercise of parental responsibility pursuant to order 1:
(a)The Mother is to notify the Father in writing within fourteen (14) days of making any major long-term decision/s for the children;
(b)The Mother is restrained from changing the children’s surname.
Living arrangements for the children
3.The children live with the Mother.
The children’s time with the Father
4.The children spend time with the Father as agreed between the parties in writing but failing agreement as follows:
In 2022:
(a)from the making of these orders, each Saturday from 10.00am until 3.00pm for four (4) weeks and thereafter each Saturday from 10.00am to 5.00pm;
(b)upon eight (8) Saturday visits having occurred, or four (4) family therapy sessions having occurred between the Father and the children – whichever occurs last – the children will spend time with the Father each alternate weekend from the conclusion of school Friday (or 3pm on a non-school day) until the commencement of school Monday (or 9am on a non-school day);
(c)during the end of Term 1 and end of Term 2 school holidays in 2022, the usual weekend arrangements will apply in accordance with order 4(b);
(d)during the end of Term 3 school holidays in 2022, the usual alternate weekend arrangements will apply in accordance with order 4(b) save that the Father’s weekends will conclude at 9am (or commencement of school) on the Tuesday;
(e)during the end of Term 4 school holidays in 2022, the usual alternate weekend arrangements will apply in accordance with order 4(b) save that the Father’s weekends will conclude at 9am (or commencement of school) on the Wednesday;
In 2023 and onwards:
(f)commencing in 2023, the alternate weekend time in order 4(b) will conclude at the commencement of school Tuesday (or 9am on a non-school day). In Terms 1 & 4 the alternate weekends are to commence on the first weekend of Term. In Term 2 the weekends are to commence so as to avoid falling on Mother’s Day. In Term 3 the weekends are to commence so as to fall on Father’s Day;
(g)commencing from the end of Term 1 school holidays in 2023, the Father’s alternate weekend time is suspended during all school holiday periods. Instead the Father will spend time with the children during school holidays as follows:
End of Term 1, Term 2 & Term 3 school holidays:
(i)in odd years from the conclusion of school Friday (or 3pm if a non-school day) until 5pm on the following Friday;
(ii)in even years from 5pm on the middle Sunday until recommencement of school on the Monday (or 9am if a non-school day);
End of Term 4 school holidays:
(iii)in odd years, from the conclusion of school Friday (or 3pm if a non-school day) until 5pm on the third Saturday thereafter. IT IS NOTED that the children will accordingly spend Christmas Day with the Father;
(iv)in even years, from 5pm on the third Saturday prior to recommencement of school until recommencement of school on the Monday (or 9am if a non-school day). IT IS NOTED that the children will accordingly spend Christmas Day with the Mother.
5.It is a condition of the Father’s time with the children pursuant to these orders that he:
(a)enables them to contact the Mother electronically or by telephone at any reasonable time that they request;
(b)organises to promptly return the children (or either child) to the Mother’s care in the event the children (or either child) becomes distressed in the Father’s care and is unable to be settled.
Family Therapy
6.Within seven (7) days of the making of these orders, both parents must contact B Service to arrange for the Father and the children to attend Family Therapy and the Father is to provide B Service with a copy of these orders and my reasons for judgment.
7.Thereafter the Father must attend, and the Mother must cause the children to attend, at least four (4) sessions of Family Therapy involving the Father and the children as arranged with B Service. For the purposes of Family Therapy, the Father is to be solely responsible for the costs, including two (2) Family Therapy sessions involving the Mother whether or not the Father or children are present for same.
Changeovers
8.Changeovers at commencement or conclusion of a school day will occur at the school.
9.On non-school days, the Father is restrained from attending changeovers but is to send a nominee on his behalf who is known to the children. Changeovers are to occur at a location agreed in writing between the Mother and the Father’s nominee, but failing agreement inside McDonalds at Suburb C.
Communication between the parents
10.For the purposes of these orders, the parents are to communicate with each other in writing, which includes by letter, by email or (if urgent) by text message.
11.Each parent is to ensure that the other parent is kept informed of their respective mailing address, email address and contact mobile telephone number and is to notify the other parent within three (3) days of any change in those details.
12.Each parent will keep the other informed of:
(a)any medical problem/s or illness/es suffered by either child while in that parent’s care;
(b)any medication that has been prescribed for either child.
Access to information about the children
13.The Mother is to provide a copy of these orders to any school/s attended by the children and to the children’s usual treating GP (or medical practice), and is to keep the Father informed as to the identity and contact details for the GP (or medical practice).
14.These orders authorise the children’s schools to send the Father (at his expense) any school-related documents or information, including but not limited to copies of school reports, school photograph order forms and any other documents ordinarily sent by the schools to parents.
15.These orders authorise the Father to obtain (at his expense) any medical information about the children from their usual treating GP.
Injunctions
16.Pursuant to section 68B of the Family Law Act 1975 (Cth), for the personal protection of the children:
(a)by consent, each parent is restrained from bringing the children into contact with the paternal grandmother Ms E;
(b)the Father is restrained from administering corporal discipline to either of the children, or permitting any other person to do so;
(c)each parent is restrained from making critical or derogatory remarks in relation to the other parent (or members of that parent’s family or household) while in the presence or hearing of either child and that each parent do all things necessary to ensure that no third party makes critical comments about the other parent (or any members of that parent’s family or household) in the presence or hearing of either child;
(d)each parent is restrained from discussing the family law proceedings with the children or showing the children any documents filed in these proceedings;
(e)each parent will ensure that the children are not knowingly exposed to “family violence” during any time that the children are living with or spending time with that parent and each parent will immediately remove the children from any environment where family violence is taking place. For the purposes of this order, “family violence” has the meaning set out in section 4AB of the Family Law Act 1975, a copy of which will be attached hereto;
(f)in the event that the Father is charged with any further act of violence, or with any domestic violence offence, then the Father must advise the Mother no later than forty-eight (48) hours before the children are to spend time with him, or immediately should the children be already spending time with him;
(g)in the event that the Father is convicted of any offence relating to any act of violence or domestic violence then the Father is to notify the Mother within twenty-four (24) hours of such conviction and the Father’s time with the children is thereafter suspended.
Interstate and overseas travel
17.If either parent intends to travel interstate with the children, that parent is to provide the other parent with at least three (3) weeks’ notice in writing. The travelling parent must provide an itinerary, contact telephone numbers and accommodation addresses for the children at least seven (7) days prior to departure.
18.Each party be permitted to travel internationally with the children on giving the other party not less than ninety (90) days prior written notice of such intended travel with the written notice to include the following details:
(a)copies of all forward and return travel tickets;
(b)an itinerary of the planned travel arrangements;
(c)the location details of where the child/ren will be staying at all times.
(d)a contact telephone number where the child/ren can be contacted while travelling at all times.
19.Neither parent is permitted to holiday or travel across any border into a non-Hague Convention country.
20.The Mother is to hold the children’s Australian Passports at times when the Father does not require them for overseas travel. The Mother is to release the passports to the Father no later than twenty-eight (28) days prior to travel and the Father is to return them to the Mother no later than fourteen (14) days after returning from overseas.
Explaining the orders to the children
21.The Independent Children’s Lawyer is to meet with the children and explain these orders to them as soon as possible, with the Mother to co-operate with any request made by the Independent Children’s Lawyer for this purpose.
Costs and any other procedural orders
22.By consent, the Father is to pay the Independent Children’s Lawyers costs fixed in the amount of $5,715.25 with payment to made within 14 days.
23.The proceedings be removed from the List of Active Pending Cases.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Stephens & Constable has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE BETTS
OVERVIEW
This difficult parenting case concerns two (2) boys:
·X born 2010, who is presently 11 years of age; and
·Y born 2014, who presently 7 years of age.
They are the children of the volatile and violent de facto relationship between Ms Stephens (“the Mother”) and Mr Constable (“the Father”). Their relationship commenced in 2009 and, after various separations and reconciliations, finally ended in mid-2014 while the Mother was pregnant with Y.
X’s early life was marred by his parents’ conflict, including physical conflict to which he was exposed. During that time, and since, he has been traumatised more than once by the behaviours of one or both of them. Y has also been impacted by the parental conflict, albeit to a lesser extent.
Since separation both parents have remained living in the D Region, about 20 minutes away from each other. The Mother is single; she and the children live with the maternal grandmother. She works at a D Region business owned by the paternal grandfather, who is estranged from the Father. The Father has re-partnered with Ms F; they live together with Ms F’s daughter G (now 10) and her son H (now 9). He runs his own business as a self-employed tradesman.
This is in fact the second round of proceedings between the parents. The Mother commenced the first round of proceedings in January 2015 after the Father had withheld X. In the course of those proceedings a Family Report was ordered and an Independent Children’s Lawyer (“ICL”) appointed. Ultimately on 7 March 2017, the proceedings were finalised by way of a consent order.
Pursuant to that order the parents were to have equal shared parental responsibility, the children were to live with the Mother and spend alternate weekends, Wednesday nights and half school holidays (in a stepped fashion) with the Father.
There were some specific safeguards included in the order:
17.That the parents are restrained from using corporal punishment upon either child and will not permit or allow any other person to use corporal punishment upon either child.
24.That each parent is restrained from making critical or derogatory remarks in relation to the other parent (or members of that party’s family) in the presence or hearing of the child/ren…
25.That both parents shall ensure that the children are not exposed to family violence during any times that the children are living with or spending time with them and shall remove them from any environment where this is taking place.
27.The father is restrained from allowing the children to spend time with the paternal grandmother without the father being present.
Unfortunately the order came unstuck and the parents have ended up back here.
Specifically, on 5 January 2019 the Father disciplined X with a piece of cable, causing him to sustain welts and bruises. This incident caused X real distress, and it also greatly distressed the Mother when she found out about it later that day. The Father’s actions constituted a flagrant breach of order 17 (and order 25) as well as breaching both X’s and the Mother’s trust.
The Mother took X to the Police the same day and showed them his injuries; the Father was charged with assaulting X and an AVO was taken out to protect him from the Father. The Mother also ceased the Father’s time with both children, thus leading to this second round of proceedings.
The court has again had to order a Family Report and appoint an ICL. The “no time” arrangement was formalised by an interim order very early on and as a result the Father has not spent time with either child since 5 January 2019 save for casual encounters at sports games although even these have been eventful. The boys miss the Father and would like to again spend time with him, with Ms F, G and H.
In these proceedings the Father seeks orders which would enable resumption of those relationships. Moreover, the Father and Ms F now have their own daughter J born in 2020. The Father’s proposed orders would also enable the boys to get to know her.
The Mother seeks that the “no time” order be made on a final basis. Her primary case is that the Father still poses an unacceptable risk of physical and emotional harm to the boys as a result of his anger issues and past violence. If that argument fails, her fallback position is that an order for time would so adversely impinge upon her capacity to discharge her role as primary carer that a “no time” order would not be in the boys’ best interests.
The Mother’s “no time” position has been consistent throughout this round of litigation. She does not support a relationship between the children and the Father.
The Independent Children’s Lawyer (“ICL”) contends that this is a “very close case” but that ultimately an order for time should be made – with safeguards. For the reasons which follow, I have also come to that view.
THE FINAL HEARING
The final hearing in this matter took place by videolink on 17, 18 and 19 August 2021.
At the hearing, Mr Mooney of counsel represented the Mother, Mr Willoughby of counsel represented the Father and Ms Ticehurst of counsel appeared on behalf of the ICL.
The parties had each filed Case Outlines. The Mother relied upon her Initiating Application filed 28 February 2019, her trial affidavit filed 16 July 2021 and the affidavit of the maternal grandmother Ms K filed 8 January 2021. The Father relied upon his trial affidavit filed 19 July 2021 and the affidavit of Ms F filed 28 January 2021. The ICL relied upon the two (2) Family Reports prepared by Family Consultant [1] L which were marked as exhibits.
I had the benefit of seeing and hearing the witnesses give their evidence.
The ICL had helpfully prepared a tender bundle for the hearing, some of which documents were tendered as exhibits. At the close of the hearing the ICL’s proposed minute was tendered as exhibit 27 and the Father’s proposed minute was tendered as exhibit 28.
I also thank counsel for their submissions and assistance throughout the hearing.
THE PARENTS’ VOLATILE RELATIONSHIP
The parents commenced their relationship when they were in their early twenties. Their relationship was volatile; there were a number of separations. At times each perpetrated physical and emotional abuse towards the other.
Prior to meeting the Mother, the Father already had a significant criminal (mainly traffic) history suggestive of impulsiveness and a lack of respect for authority. He had been twice convicted of driving with a suspended licence and twice convicted of driving with a disqualified licence. As a result, he had been placed on bonds, ordered to perform community service and ultimately given suspended prison sentences ranging up to nine (9) months.[2]
The Father is a large, heavily-built man. For a time he had engaged in sport professionally. He could potentially intimidate the Mother who was much smaller. That said, the Mother was no “shrinking violet” in some of their exchanges.
The Mother’s affidavit makes various allegations of family violence against the Father.
She alleges that on New Year’s Eve 2010 when the parties were staying at a friend’s home:
[Mr Constable] had punched me and hit me…until I was unconscious. I woke up in hospital with a broken nose and cuts to my face. I was very sore, bruised and swollen for several weeks after this.
Although I reported this to Police and they interviewed [Mr Constable]; I recall that [Mr Constable] told the Police that I had been hitting him and he acted only in ‘self defence’. As [Mr Constable] was a professional [athlete] at that time, I was shocked that the Police believed him and took no action against him. [3]
The Father claimed to have only restrained the Mother on this occasion; he denied hitting her.
Neither parent’s evidence was reliable.
Given the inconsistencies in the evidence and the fact that each parent had been drinking, it is not possible to set out the exact course of events in precise detail. I am however satisfied from the reasonably contemporaneous Police records [4] that parents had in fact been drinking since that afternoon. At around 12.30am the Mother asked the Father to feed X (who was then just months old). The Father was sitting on the couch with X feeding him when an argument broke out. The Mother told the Father that she would “just find X another father” to which the Father responded that he didn’t care as long as X was alright.
Physical violence then erupted between them – instigated by the Mother who stormed up to the Father and launched herself at him. She hit him in the arm and face, either using her knee or her arm. She clawed at the Father’s eyes and may also have punched him in the face. The Father grabbed her by the hair and tried to push her away while she was swinging punches at him. While doing so, he hit her three (3) times on the side of the head. She backed away and may have fallen over.
By this stage X was screaming and at this point their friend stepped in and removed him from the situation.
The Father walked away, but the Mother followed him, hitting him in the back of the head. The Father swung around and “back-handed” her in the mouth.
While it is true that the Mother attended the hospital after this event, she told Police it was because of bleeding from her mouth. She made no complaint of a broken nose or of being knocked unconscious.
The Mother complained about the matter to Police on 1 January 2011; they interviewed both parents. The Mother admitted starting the physical aggression and punching the Father. According to Police each parent had only “minor visible injuries. [Mr Constable] has minor swelling to the left hand side of his mouth and a small visible lump. [Ms Stephens] had a swollen top lip and soreness to her nose.” The upshot is that the Mother was charged with assault, not the Father.
If the Mother had been knocked unconscious or if she had sustained a broken nose, then such matters could easily have been corroborated by a hospital note - yet none was tendered at the hearing. While not diminishing the Father’s actions, I do not accept that the Mother was in fact knocked unconscious or that she had a broken nose.
In summary, both parents were physically violent to each other on this occasion. However, the Mother was the primary aggressor and she directly put X in physical danger.
The Mother deposes [5] that sometime in 2013, when X was around three (3) years old, the parents were arguing and that the Father kicked the screen door off its frame, causing it to fall onto X who had been standing just behind it. The Mother deposes that X was hit in the face, resulting in a swollen lip and bruising.
The Father denies that this event occurred. There are no Police or medical records to corroborate it. I prefer the Father’s evidence.
The Mother deposes [6] that when she was pregnant with Y in 2014:
[Mr Constable] was yelling at me and he put his hands around my throat and was squeezing. I recall that [X] was standing next to me watching and he was crying and screaming at [Mr Constable] to stop. Eventually he let me go.
The Father denies this event. Again there are no Police or hospital medical records available. I prefer the Father’s evidence.
The Mother deposes that at separation in July 2014 the Father threatened to “trash my house” to punish her for ending the relationship. She gives evidence [7] that shortly after he made this threat:
I had been out and when I returned home I found that the front door had been kicked in and the house had been ‘trashed’. I saw my clothes stuffed underneath the drain pipes at the front of the house, there were numerous things throughout the house had been smashed and broken. The kitchen window and a number of other windows in the house were smashed. I went into the bathroom and saw that my pillow was shoved in the toilet and there was urine and faeces on it. I could see that there were stab marks from a knife on the bedroom door and my king sized bed had the slats underneath it snapped and broken.
I called the Police and they attended at the house with a forensics team. They told me they had found [Mr Constable]’s fingerprints but they said to me that since [Mr Constable] had lived in the property previously, that his fingerprints were not conclusive that he had caused this damage. I continue to believe that [Mr Constable] did this to the house to punish me and I was very fearful that he would come back and do it again.
The Father denied being responsible for the home invasion; he denies threatening the Mother and says that he was not upset that the relationship was over but relieved. He also said that most of the damaged or destroyed property in the house in fact belonged to him.
But this was not a random home invasion. Whoever did this was acting in an intensely personal, hateful and humiliating way towards the Mother. In what is essentially a circumstantial case against him, I consider it more likely than not that the Father was responsible.
The Father also accuses the Mother of perpetrating family violence during the relationship.
The Father gave evidence that the Mother could behave aggressively towards both he and X if they made a mess and that on occasions - likely in anger or frustration - she could be physically aggressive towards X, including punching him in the arm on one occasion and holding him so tightly as to break his skin with her nails.
The Father also gave evidence that (in relation to he and X):
11.It was normal that upon returning home from work each day that I was made to sit on the front step until after dark as [Ms Stephens] would be cleaning the home. [Ms Stephens] would physically push, or shoulder charge me out the door. I recall that on many occasions that once [Ms Stephens] would let me into the house that she would say words to the effect of:
“take that little cunt, I’ve had him all day, it’s your turn” and “you fucking deal with him.”
The Father gave evidence that, when angry, the Mother could be emotionally abusive. She would threaten him that she would “find X a new father” (as she did on New Years’ Eve 2010). Sometimes in the Father’s presence she would directly tell X that she would find him a new father, or that “Daddy doesn’t love you.”
Though the Mother denied the above allegations she also admitted that this was a period of her life where she had “blocked things out” of her memory. I accept the Father’s evidence as to these matters. Though they do not excuse his acts of family violence, they do provide relevant background context as to the relationship dynamics and the Mother’s own contribution to the conflict.
POST-SEPARATION CONFLICT & VIOLENCE
After separation X remained in the Mother’s care; she facilitated time between he and the Father.
Further family violence occurred on Saturday 6 September 2014 when the Mother was heavily pregnant with Y.
On this day the parents attended X’s swimming lesson together. The Mother was driving home, with the Father and X in the back seat, when the parents got into an argument. In a fit of pique, the Father said to X “Your poppy touches your willy.” This baseless allegation was directed at the maternal grandfather and upset the Mother immensely. She pulled over on a side street at which point the Father grabbed X from the car and carried him over to the other side of the road. He left the car door open, the Mother had to get out and shut it before driving over to them. By this stage X was screaming.
The Father was holding X’s small backpack. As the Mother approached she told the Father that her wallet was inside it, at which point he opened the backpack, grabbed the wallet and threw it onto the roof of a nearby building. X, still screaming and upset, got back into the car at which point the Father then kicked numerous panels on the passenger side, before coming around to the driver’s side and kicking at the driver’s door. The Mother locked the car, drove off and parked in a nearby street where she called Police. They attended a short time later, noted various dents and estimated the repair bill at $2,000. They also retrieved the Mother’s wallet from the roof. [8]
In the witness box the Father admitted “having the shits” that day and throwing the wallet. However he denied kicking the car, reasoning that at that time he was paying it off for the Mother and that damaging it would therefore have made no sense. His trial affidavit annexes some unpleasant texts exchanged between the parents afterwards in which he offered her $1 for the car and she responded by saying that since he said he wanted the car, she “might as well keep smashing it”. The Father suggested that her text demonstrated that it was the Mother who smashed the car and not him.
Looked at in context, the Father’s $1 text was clearly inflammatory as was her reply. I do not consider that she damaged the car, noting that she was intending to keep it and also noting that the Police attended within a short time afterwards. I accept the Mother’s evidence that the Father damaged the car.
After this event, Police took out an AVO to protect the Mother from the Father. X was also named in the order.
On 2 December 2014 the Father contacted the Department of Communities & Justice (“DCJ”), informing them that the Mother was putting X at risk of emotional and sexual abuse. The emotional risks were said to arise as a result of the Mother denigrating the Father to X, as well as re-partnering with an alleged drug dealer and telling X that he would never see the Father again. The sexual risks were said to relate to X’s young cousins who had allegedly engaged in sexualised behaviour towards one another. [9]
The DCJ took no action. That said, I am satisfied that the Mother was denigrating the Father as he alleged. I make no findings about the sexual allegations; these were not pursued in any way at the hearing.
Having facilitated the Father spending sporadic time with X, the Mother then ceased X’s time with him that same month. Her decision was at least partly motivated by resentment and hurt at the Father re-partnering with Ms F. It may also have been partly motivated by the DCJ complaint.
I accept Ms F’s evidence that in the early days of their relationship, she started to receive calls at all hours from an unknown number. When she answered it was typically a female voice saying “slut”. I am satisfied that the Mother was responsible. Likewise the Mother sent Ms F numerous harassing Facebook messages, accusing her amongst other things of being a “slut”, a “homewrecker” and making various threats that the Mother would come for her. On one occasion she pushed Ms F in a shopping centre; on another occasion she removed X from Ms F’s car.
The Father responded to the cessation of his time with X by taking matters into his own hands. On 15 January 2015 he unilaterally removed X from daycare and kept him for the day. When the Mother found out, she was angry and called Police. Later that day she was able to recover X from the Father in a tense encounter.
Just four (4) days later the Father “upped the ante” when he sent a third party to collect the Mother’s car from her home and bring it back to his place. The car was registered in the Mother’s name but by agreement between them he had been making the repayments. Police became involved and they negotiated the return of the Mother’s belongings left in the car. [10]
THE FIRST ROUND OF PROCEEDINGS
That same month the Mother commenced the first round of proceedings in this court.
In due course an ICL was appointed and a Family Report ordered. Though a lot of tension remained between the parents, the Mother and Ms F were at least able to patch up their relationship to the point where they became reasonably amicable and cooperative.
By the 2015 Family Report interviews the Mother said she had no current concerns about family violence. She had been prescribed an anti-depressant and she had been recommended to see a psychologist.
X was being difficult with the Mother, at times swearing at her and hitting her - for instance when she tried to remove his mobile phone. He complained that she would swear at him. He would also co-sleep with the Mother at least some of the time. The Mother organised some counselling for him to manage these issues.
For his part, the Father completed M Service’s parenting course.
In the course of the proceedings the Father was able to build on his relationship with both X and Y. The boys also developed good relationships with Ms F and her children. To reduce conflict, Ms F and not the Father, generally facilitated the changeovers.
The proceedings were concluded by the final orders of 7 March 2017 referred to earlier.
PROBLEMS WITH THE ORDERS / X IS BECOMING DIFFICULT
Unfortunately for X and Y, the consent order of 7 March 2017 did not represent “peace” between the parents; it was more of a temporary ceasefire. Their mutual resentment continued to simmer away.
For example, the Mother particularly lamented agreeing to the order for equal shared parental responsibility, complaining that it did not sufficiently take the Father’s past family violence into account.[11] She says she was much happier when Ms F attended changeovers, as she was still fearful of the Father. She says that when the Father did attend changeovers, he very obviously ignored her. This seems to be true; the Father admits that he did not seek to communicate with the Mother at changeovers, reasoning that text communications were best as “I do not need to be friends with Ms Stephens to co-parent with her”. While this is true, X and Y would certainly have benefitted from seeing the parents show some respect for each other and perhaps even exchange some basic greetings. It should not have been too much to ask.
The Mother withheld Y a few times early on, citing illness. The Father reacted angrily; on one occasion while driving and talking to the Mother on speakerphone he yelled out “I should fucking kill you and your mother!” The Mother could hear X crying in the back seat of his car while he was talking.
The Mother complained to Police; the Father did not deny his behaviour. They took out another AVO to protect the Mother from him, the order being in place for twelve (12) months.
Notwithstanding these difficulties, both children broadly attended the Father’s home pursuant to the consent orders. They had the chance to further develop their relationship with the Father and the Mother accepts that the children particularly enjoyed spending time with G, H and Ms F.
Unfortunately in 2018, real cracks began to show in the relationship between X and the Father. X became increasingly oppositional and defiant to the Father and would swear at him and denigrate their home. The Father would sometimes swear at him in response.
X could also be insolent and defiant towards Ms F, for instance calling her a “slut” on occasions. He wouldn’t do as he was told. As a general statement, his behaviour was very hard to manage and Ms F particularly struggled as she felt she had little or no capacity to control him. It placed enormous pressure on their household.
The reason for X’s behaviour at that time is probably not black and white, but it was likely contributed to by a number of factors including:
·the emotional trauma experienced by him from the youngest age as a result of being exposed to his parents’ violence and aggression towards one another;
·his ongoing immersion in their conflictual co-parenting dynamic, including exposure to denigration by each of the parents;
·perhaps some sense of “abandonment” as a result of the Father re-partnering and taking on a full-time parenting role for G and H, he seemingly being jealous of H in particular.
In any event, whatever the cause of X’s behaviour the Father did not have the skillset to manage it. The text exchange between the parents on 20 August 2018 provides a poignant example of the dynamics at the time:
[Father] [Y] even said my mum hates her. [X] can get fuckd. Fuckn user and don’t have time for him. Nothing is said about your mum. Take my hat off to her putting up with you dumping kids on her all the time.
[Father] Why can’t I ever FaceTime [Y]s iPad?
[Mother] I don’t know [Mr Constable]. After last night why would you want to ring [X]
[Mother] Seriously, grow up. You favour one and I’m not having it
[Father] Ask [X] the last time he wanted to speak to me. Tells me to fuck off every day…
On 31 August 2018 both children went to spend time with the Father pursuant to the orders. Ms F later phoned the Mother to advise that “Mr Constable is going away for a fishing trip and I have to go to an appointment. Mr Constable wants to leave the kids with his mum (Ms E). I just thought that I should let you know”.
Leaving the children with the paternal grandmother would have been a breach of the injunction. The Mother thanked Ms F for the advice and they then arranged for the Mother to have the children while Ms F was at her appointment.
Unfortunately, when the Father found out the next day he was enraged. He rang the Mother and asked her “What’s your fucking problem cunt?” She hung up on him. Ms F, aware of his anger, removed her own children from the scene and took them for a swim. A short time later the Father again rang the Mother and this time left a voicemail: “How about you record this, you funking slut, you want to push me over the edge, I’ll fucking shatter your fucking eye sockets you fucking cunt”.
As a result, Police charged with the Father with the offence of “stalk/intimidate intending to cause fear of physical harm etc” as well as taking out a further AVO to protect the Mother from him. This order was drafted broadly; it included a “no contact” clause except for text messages in relation to the children.
The Father accepts that he left the voicemail. He says that he was fishing with his brothers as his pop had just passed away, and that he had made arrangements with Ms F to place the children with the paternal grandmother for one hour only – with the neighbour to be present. Even so, this would also have been a breach as the Father was required to be present.
Ms F acted appropriately and protectively by contacting the Mother and in my view nothing can excuse the Father’s aggression to the Mother. In terms of his offence of stalk/intimidate, the Father was convicted and sentenced to a conditional release order for a period of one year. A five (5) year AVO was imposed, being the maximum allowable by law. The Father’s attitude towards the Mother at that time is best illustrated by the fact that he asked the Magistrate to impose a twenty (20) year AVO to keep them apart.
In the meantime X remained difficult to manage and his relationship with the Father continued to deteriorate. On approximately ten (10) occasions in late 2018, either X or Ms F contacted the Mother and arranged for her to collect X early. The Father blamed X’s ongoing defiance on the Mother, accusing her of undermining and denigrating him. But this was not a new phenomenon; each parent was guilty of that. And each refused to acknowledge their own contribution to the dysfunctional dynamic.
In the witness box, the Father became visibly tearful when cross-examined about this period of his life. His sense of distress was palpable as he said he had “tried his guts out” to fix things between he and X. I accept that he and Ms F were simply overwhelmed by X’s ongoing behaviour.
In her own words, Ms F told the Mother on 28 November 2018 how difficult the situation had become:
If I don’t try and guide him in the right direction when he is here someone will get hurt so I have to be the bossy bitch and do all the discipline and then they hate me but then the kids are like we don’t have to listen to you but then I have you if something bad happens asking questions and I have to answer why the kids were allowed to do this or that or I’m a mum I should know better than that and then [Mr Constable]’s solution is to smack them and if I don’t smack them and “show my authority” then he is not helping me cause I have no control but I refuse to smack them because then I have to answer to you. It’s all too much. I can’t be bothered anymore. I just say whatever to most things now. If they want iceblocks for dinner whatever your dad wants is my answer to everything. They don’t want a bath they don’t want to clean up pretty much anything they don’t listen to the first time I just leave. As long as they are fed in some way shape or form and they aren’t killing each other and are safe that’s my job done I can’t be fucked anymore….[Mr Constable] put his arm around [X] the other night after the movies cause [H] and [G] were going for that sleepover at their friends house but I cancelled it cause [X] got too upset, [X] was calling [Mr Constable] a cunt and saying how much he hated him cause the kids aren’t staying and he’s not staying at our dero house without the kids. There’s heaps of emotion behind it all and [Mr Constable] has tried to fix it but can never get through to him and it just gets worse each time he spends here. But [Y] and [Mr Constable] are different. They are inseparable. They love each other so much. I know that [Mr Constable] wishes he had that with both boys but I know he has tried for so long with [X] and he sees no respect and he’s never happy here so he doesn’t want him to keep bothering if it’s not enjoyable for either of them.
The Mother responded:
Please I don’t need to read your excuses for [Mr Constable] now it’s too late I’ve got thousands of messages of months worth of the negative crap that [Mr Constable] has done to [X].
Given her own contribution to X’s problems, the Mother’s lack of empathy is striking.
Things continued to be difficult over the 2018 / 2019 Christmas holidays. On 28 December 2018, Ms F advised the Mother that “X and Mr Constable are already fighting. Mr Constable has told him to fuck off about three times and go back to you. They are just all sitting inside with me atm.” On 2 January 2019 Ms F texted the Mother that “X must really hate it here. I worry about him and why he’s so angry when he’s over.” She also said that, unlike Y, X never wanted to spend one-on-one time with the Father but preferred to stay with her, G and H.
On 3 January 2019, the Father sat X down and discussed his behaviour with him. He lectured X about his rudeness to he and Ms F and he was hoping that things might improve.
THE ASSAULT OF 4 JANUARY 2019
On the morning of 4 January 2019, X, Y and H were playing hide and seek inside the house. H came out of a bedroom and advised Ms F and the Father that “X just did a wee in the wardrobe and told me not to tell, it’s a secret”.
The Father and Ms F went straight to the bedroom, with H, G and Y following. X was alone in the room. The Father asked him what had happened and X said words to the effect of “it’s not piss, I spat on the mirror, it’s spit I’ll even lick it to prove it”. The Father observed that a yellow liquid had run down the back of the mirror, that it was pooled in the tracks of the sliding door and covered some of Y’s clothing.
The Father was livid, telling X that he was going to get a smack. Ms F quickly removed all the other children from the scene and took them outside.
The Father retrieved a piece of insulation cord, returned to the bedroom and then struck X at least twice with it, hitting him hard in the back and across the legs. This was obviously very painful; welts formed soon after.
The Father says that he provided X with some toilet paper and made him clean up the urine. He says that afterwards X went into the backyard where he played with the sports until Ms F returned he and Y to the Mother at the Suburb N pool later that day.
When they met at the pool, the Mother immediately saw that X was very pale. He turned around and said “Mum, look at this” whereupon the Mother saw several open, inflamed and bleeding diagonal welts on his legs below the knee.
The Mother asked Ms F what had happened. When Ms F told her about it, X claimed that it was H and not him who had urinated in the cupboard. He also said the Father had flogged him and then told him he had to drink the wee or get another flogging. He said that as a result he did drink it.
I accept the Mother’s evidence that she was shocked, that she didn’t know what to do and felt nauseous. She took X to the Police later that afternoon when a formal complaint was made.
Whether or not the Father demanded X to lick up the urine is a disputed fact. Obviously X was not a witness at the hearing, but the Father was adamant that he had never asked X to lick it up. He said that it was X who offered to lick it to prove that it was spit rather than urine.
There are no witnesses to this event apart from the Father and X. X seems to have falsely blamed H; the Father and Ms F’s evidence was that X had a prior history of similar behaviour at their home including urinating on the dog on one occasion. But equally, he was consistent in his version that the Father made him lick it up.
Weighing up all the evidence I consider that the Father’s evident fury on this occasion either caused him to make that demand, or more likely that X offered to lick it because he was terrified. Perhaps it does not matter much which of those two versions is correct; on any view the Father perpetrated a heinous act of family violence.
The Police promptly took out a broad AVO to protect X from the Father. On 2 July 2019, a final AVO was made for a period of two (2) years. The order was drafted broadly; it prohibited the Father from approaching X’s school, any place where X might go for childcare, or the Mother’s home.
The Father was charged with three (3) offences arising out of this event - stalk/intimidate, threatening injury with intent to commit an indictable offence, and assault occasioning bodily harm. Ultimately these were dismissed, the Father instead pleading guilty to one charge of common assault. He was placed on an eighteen (18) month community corrections order, as well as being ordered to perform one hundred and fifty (150) hours community service. His twelve (12) month conditional release order arising from his 1 September 2018 stalk/intimidate offence was also called up and he was ordered to undertake twelve (12) months supervision by Community Corrections NSW. According to his criminal history, his actions of 4 January 2019 also resulted in a conviction for breach of AVO although it is entirely unclear to me why that was so. There was only one (1) AVO at the time and this protected the Mother, not X. Perhaps his criminal history is erroneous, I simply do not know. Perhaps it does not matter much in any event.
But the Father’s criminal and AVO woes were just some of the many unhappy consequences of the events of 4 January 2019.
Because of the assault, what little trust the Mother had in the Father was shattered. The consent orders prohibited physical discipline - yet the Father had done it anyway, in a rather savage fashion. Accordingly she stopped the Father’s time with both children. She also rebuffed his request that she send Y over on his own.
The Father’s assault of X, and subsequent Police involvement, also triggered a notification to DCJ. One of their case workers spoke to the Mother, and later rang Ms F on 8 January 2019 to discuss DCJ’s concerns about the Father physically disciplining the children within their home. At that time Ms F’s focus was on X’s misbehaviour rather than what the Father had done to him. Unfortunately Ms F misled the case worker by saying that she and the Father were not in an intimate relationship when they were. I consider that she did so in order to keep them at bay.
Ms F told the case worker that the Father had never laid a hand on her children and that they did not use physical discipline in the home. Notwithstanding, she agreed to their request that she talk to the Father about not using physical discipline in future.
There is a related note in the DCJ records [12] which raises a concern about H having apparently complained to the school about the Father hurting his arm. The note also suggests that Ms F had been to the school to discuss it with them.
The note is vague; there are minimal details and the notifier is unknown. No school records were tendered at the hearing. The Father and Ms F denied this event and Ms F in particular appeared to be genuinely confused. I am satisfied that in the witness box she was hearing about it for the first time; it did not happen.
Shortly after the Mother stopped the Father’s time with the children, he abruptly ceased paying child support to the Mother, previously $975 per month. For a brief period he paid no child support at all, before resuming the payments at a relatively meagre $50 per month. On balance I am satisfied that this was no more than the Father retaliating against the Mother, to the children’s detriment.[13]
RELEVANT EVENTS DURING THESE PROCEEDINGS
Early events
The Mother commenced these proceedings on 28 February 2019, seeking sole parental responsibly and a “no time order”. The Father’s initial position was to agree that he have no time with X, while seeking equal time with Y.
X was struggling. He regressed to co-sleeping with the Mother, while displaying significant anxiety and “lashing out” behaviours. Y missed seeing the father, both children missed seeing Ms F and both particularly missed seeing G and H with whom they had developed sibling-like relationships.
The Father, Ms F and her children also suffered. They all had counselling to help them cope with having “lost the boys” from their household.
On 30 April 2019 the court made interim orders for the Father to spend no time with either of the children. In addition to the relatively “fresh” risk issues relating to 4 January, the court was particularly concerned about the Father’s proposal to effectively split X and Y.
Some limited contact occurs
G, H, X and Y are all keen sport players and play for the same club on the D Region.
As a result, notwithstanding the “no time” order, the Father continued to have some limited interactions with X and Y at the sports games he attended with G and H. On occasions the Father “pushed the envelope” by calling Y over to him on the sidelines and Y would briefly go over and talk with him. At some sports games X would also wave to the Father as well as speaking to G and H. Both boys did so knowing that the Mother did not approve of such contact.
The Mother gives evidence that X and Y felt anxious when they saw the Father at the games, as did she. Essentially the Mother accuses the Father of “bulldozing” by initiating contact contrary to the spirit of the interim order. She also complains that the Father was attending training as well.
In this rather fraught environment, a particularly sad scene unfolded when Y won a Certificate at a game in May 2019. Having been presented with it, he excitedly ran over to the Father and jumped into his arms to show it to him. The Father was able to photograph it just before the Mother marched over and physically attempted to remove the Certificate from his hands. I accept the Father’s evidence that the Mother then pushed or punched the Father in the chest, saying “Give me the fucking certificate” and “that’s it buddy I am not going to stop until you’re in gaol”.
The Mother gave evidence of another altercation at a match on 15 June 2019 when she says she overheard the paternal grandmother swearing at her. However, it is apparent from subpoenaed records that the Mother did not in fact hear the abuse herself but rather was told about it by someone who did.[14]
Around this time, the Mother took matters into her own hands by removing Y from the team. He was very unhappy about it. Within a short period Y’s behaviour at home deteriorated; he had angry outbursts in which (for example) he smashed his iPad, he would swear and kick doors and the Mother struggled to control him. She took him to the GP who put him on a mental health plan.
Y returned to sports again in 2020 although Covid-19 had a big impact on the season. When games were on the Father did attend and would deliberately position himself behind the goal so he could call out to X. The Mother was unhappy about it; the Father says that H and G were also playing.
In my view, the sports interactions were somewhat more nuanced then either party might suggest. I accept that the Mother felt some anxiety and frustration about the Father’s presence and would have much preferred that he was not there. She made no attempt to hide her feelings from the children. Equally, the children were well aware of the unhappy family dynamic but nonetheless wanted to maintain some sort of contact, particularly Y. X was more ambivalent. The situation was not “black and white”.
Mother’s car tyre slashed at work
The Mother’s evidence is that someone slashed one of her car tyres while she was at work on 8 August 2019. She said she had seen the Father’s car in the vicinity that day. The Father denied doing so and I am unable to find on the evidence that he was responsible.
Delivery of presents etc for special occasions
At special occasions, Ms F and her children still delivered presents and cards to X and Y to maintain some connection. The Mother was unhappy about it, as was the maternal grandmother.
The children were probably happy about it however. On 14 April 2020, X secretly texted Ms F using the Mother’s phone. Ms F initially thought she was communicating with the Mother and sent some photos of H and G, with a request on their behalf to say hello to X and Y and to let them know that they miss them.
Soon after X revealed his identity, initiating a FaceTime call. Ms F saw that he was hiding underneath some blankets so that he would not be seen. X told her “I hope that the Court will let me come back over to Dad’s house in about 12 months”. The call lasted for about six (6) minutes before X ended it, saying how much he loved and missed them all.
X was obviously emotionally torn. Within a week of this call, the Mother had taken him to a GP and he was placed onto a mental health plan to manage his anxiety and mood.
In June 2020, Ms F’s children attended the Mother’s home when the maternal grandmother and children were home. The maternal grandmother answered their knock on the door at which point G and H entered the home and dropped off some gifts for X and Y.
The Mother later complained to the Father about this and he in turn accused her of “needlessly rubbishing him” to the children.
In July 2020 X started psychological counselling for his anxiety and behavioural outbursts, primarily anger in the face of perceived threats. His medical history suggested that his behaviour was due to previous emotional trauma.[15]
Christmas Day 2020 – gifts delivered in breach of AVO
A few days before Christmas, Ms F’s children said they wanted to give presents to X and Y. By then it was too late to post them, so on Christmas Day the Father and Ms F drove to the Mother’s home to enable the children to drop the presents off personally.
The Father parked outside a nearby home, but within the 100m limit proscribed by the AVO. Armed with their presents, the children went to the Mother’s front door. Having heard a knock on the door, the Mother opened it to see the children bearing presents and she also saw the Father’s car parked nearby. She was caught by surprise and immediately felt anxious. She went inside and grabbed her mobile phone, attempting to record the Father’s vehicle as it drove off. She captured about eight (8) seconds of footage, following which she complained to Police.
The Mother says that she spent the whole day in a very distressed state. She felt that the Father was acting like a law unto himself.
Though the Father was later charged with breaching the AVO, it is noteworthy that the Magistrate imposed no penalty. To be clear, the Father breached the AVO and should not have parked so close by the Mother’s home. Equally, he did not park directly outside her home, he did not himself exit the vehicle and in that sense he was not acting with “malice” per se.
Application to vary AVO
Around May 2021 the Mother again started seeing the Father at sports games and so she decided to apply to vary the AVO to prohibit the Father from approaching to within 200m of her. The upshot was that in August 2021, the AVO was varied so that the Father was not to “stop his vehicle within 100m of the Mother’s address at any time”.
Such were the circumstances when the matter came on for hearing before me.
PARENTING PROCEEDINGS: THE LAW
The court’s power to make a “parenting order” [16] is found in Part VII of the Family Law Act (“the Act”). The court must regard the best interests of the children as the paramount consideration: s 60CA, s 65AA.
Section 60B sets out a number of key objects and principles which underpin the operation of Part VII. These find practical expression in section 60CC, which prescribes the various mandatory considerations for the court.
Section 60CC(2) sets out the two (2) “primary” considerations. The first primary consideration is the benefit to the children of maintaining a meaningful relationship with both parents: s 60CC(2)(a). The other is the need to protect children from the risk of physical or psychological harm from being subjected to, or exposed to, neglect, abuse or family violence: s 60CC(2)(b).[17] Where a tension exists between the two primary considerations, the latter is to be given greater weight than the former: s 60CC(2A).
In M & M (1988) FLC 91-979, the High Court of Australia created the test of “unacceptable risk”, ie. the court cannot make an order that would place the children at unacceptable risk of harm. The “unacceptable risk” test has been applied ever since and is now settled law.
In addition to the two primary considerations in s 60CC(2), there are fourteen (14) so-called “additional” considerations prescribed in s 60CC(3). Given the necessarily broad drafting of s 60CC, there is often substantial overlap between various of the primary and additional considerations.
For convenience, s 60CC(2), s 60CC(2A) and s 60CC(3) are reproduced below.
Primary considerations
(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).
Additional considerations
(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.
In closing, s 61DA of the Act creates a statutory presumption that it would be in the best interests of the children to make an order for the parents to have equal shared parental responsibility for them. The making of such an order then triggers the statutory pathway set out in s 65DAA of the Act in relation to the allocation of the children’s time as between both parents.[18]
Given the family violence in this case, the presumption in s 61DA does not apply. Moreover, the Father concedes that the Mother should have sole parental responsibility for X and Y, with some safeguards.
BEST INTERESTS FINDINGS
The fundamental question in this case is whether or not it would be in the best interests of the children to have the opportunity for a relationship with the Father, and by extension with the other members of his household. The Father’s case is that subject to various safeguards, it would be. The ICL agrees with the Father though proposes a more conservative regime.
The Mother’s case is that an order for “no time” is in the children’s best interests.
I have already made numerous factual findings which engage the overlapping mandatory best interests considerations in s 60CC. Many of my findings are relevant to more than one consideration and I will try to avoid unnecessary repetition.
PRIMARY CONSIDERATIONS: SECTION 60CC(2) & SECTION 60CC(2A)
In subtle ways, both X and Y are longing to resume some form of relationship with the Father. The Father long ago abandoned the idea of splitting the boys. In the Family Report interviews on 27 March 2020 he made it clear that he wanted to spend time with both children.
I consider that both children would benefit from having a meaningful relationship with him; they know him as their Father and have spent substantial time with him over the years. The real issue is whether there would be a net benefit in making an order for time.
It is convenient in this context to go straight to the issue of unacceptable risk. I begin by observing that neither parent is entirely blameless.
Both parents have engaged in denigration in the presence of the children, thereby causing them emotional harm. Both have perpetrated family violence, though the Father’s violence has been at a much higher level. His intimidation of the Mother in September 2018 was particularly heinous conduct as was his assault of X on 4 January 2019. The latter was both “abuse” and “family violence” as defined in the Act.
The Mother contends that the Father simply cannot be trusted to comply with orders, be they AVOs or parenting orders. She points to his past history of recidivism.
The issue is whether making an order for time at this stage would expose the children to an unacceptable risk of being subjected to, or exposed to, further family violence or abuse in the Father’s care. If so, are there safeguards that could be deployed so as to reduce the risk to a level that is acceptable in the circumstances?
As I noted earlier, I had the distinct advantage of watching the Father give his evidence at trial. As a broad statement, he came across as exhausted by the ongoing parental conflict and embarrassed by some of his past actions. This is not to say that he admitted to everything he had done, but nor for that matter did the Mother.
In mid-2019 the Father enrolled in the O programme but later withdrew after being told that the Mother would be involved in the process. He completed the P program instead, finishing it in February of 2021. While candidly acknowledging that he had undertaken the programme on legal advice, he was nonetheless adamant that it had assisted him to behave less impulsively and he wishes he had done it sooner.
According to the Certificate of Completion annexed to his trial affidavit, the programme covered the following topics:
•What are emotions?
•Emotions and behaviours
•Family of origin
•Values, beliefs, barriers and responsibilities
•Relationships and communication
•Positive personal change.
The Father’s evidence is that the programme helped him to identify triggers to his impulsive behaviour, as well as giving him tools to adopt when he feels he is being triggered – including breathing and mindfulness exercises.
Separately the Father has watched numerous “Youtube” videos by various experts, including a clinical psychologist and a doctor specialising in child trauma. He has also implemented the “Wimhof Method” which utilises breathing and meditation techniques to better manage his mental and physical health.
The Father also said he would commit to undertake any other course or programme considered necessary to show that he has something to offer X and Y as a parent.
I consider that the Father has made real efforts to gain insight into his own behaviour. He has also developed much more empathy for the boys and the Mother, and how his behaviours would have impacted them – particularly in relation to his threatening voicemail on 1 September 2018 and his assault of X on 4 January 2019.
He accepted that hitting X was a very poor decision on his part. He accepted that his criminal punishment was entirely appropriate.
He understood that his assault, coming just four (4) months after his threatening voicemail to the Mother, would have devastated her. While saying he would have handled the situation differently if he was in her shoes, in hindsight he respected her decision to stop time.
I also accept the Father’s evidence in paragraph 133 of his affidavit:
I feel that I have matured in recent times. My relationship is in a really good and stable place. Work is going well. [J] is wonderful. Our family unit is working very well. I feel like I have recently gained a little more perspective as to what is important in my life. I am no longer interested in having petty and pointless arguments like those that I used to have with [Ms Stephens]. I have outgrown that mentality now. I just want to live my life and spend time with my family including [X] and [Y]. They need me and I need them. I will be the best parent I can be. I will still make mistakes, all parents do. But I will do my best and put into place the things I have learned recently to try and be the best father to them that I can be.
Overall, while the Father has been a slow learner, he has finally learned some painful lessons about himself, his behaviour, and its impacts on others. He has taken real steps to improve himself.
Subject to various safeguards being imposed (including injunctions), the ICL contends that the Father would not pose an unacceptable risk to the children on account of his past family violence and anger issues.
The Mother accepted that the incident of 4 January 2019 was the only time he had deliberately hurt X. The Father has not been physically abusive to G, H or Ms F notwithstanding some tensions in their relationship from time to time. Ms F was previously in a violent relationship with the father of her children; she is anxious not to repeat that experience again. The evidence establishes that she was able to put X’s needs first by removing him from conflict situations in 2018 and generally acting as a conduit between the parents. Put shortly, her heart has been in the right place. Although she was not able to protect X on 4 January 2019, she was at her proverbial wit’s end at the time [19] and she at least removed the other children from the scene. Like the Father, Ms F has learned a painful lesson and is anxious that there be no repeat.
Given the past issues between the Father and X and all of the family upheaval since 4 January 2019, the ICL also suggests that commencement of the Father’s time be contingent upon there being four (4) sessions of family therapy beforehand. The Father also proposes family therapy, but says that his time should not be contingent upon it; rather it should occur contemporaneously.
Also relevant to this inquiry is the protectiveness or otherwise of Ms F going forward. There is no doubt that the Mother felt let down by Ms F on 4 January 2019, but equally Ms F had generally been a protective and supportive stepmother in the past and had in fact facilitated X’s return to the Mother on a number of occasions in 2018. It is quite apparent that Ms F was at a low ebb in late 2018 and early 2019 but, even though she was unable to protect X from the Father’s rage on 4 January, she at least removed the other children.
I was broadly impressed with the evidence of Ms F and consider her to be a protective figure.
In the end, after weighing all the evidence I do not consider that the children would be an unacceptable risk of physical or emotional harm if they were to spend time with the Father, particularly with safeguards in place. The Father is more insightful and highly motivated to make any arrangements work.
If X was uncomfortable and genuinely wanted to return home to the Mother, the Father would facilitate it – in all likelihood Ms F would return him as had occurred previously.
ADDITIONAL CONSIDERATIONS: SECTION 60CC(3)
I am satisfied that both boys want to resume a relationship with the Father, Ms F, G and H.
X told Family Consultant L that in the past he felt harassed by the Father; he was scared of getting into trouble or the Father getting angry at him. Still, he said he missed the Father a little bit and he “really missed seeing the kids and also Ms F”. Ultimately, he wanted to be able to see the Father but only if it was “safe”.
Perhaps most poignantly, if given one wish X “would make it so that everybody just got on with one another and did not harass each other”. This is a common but sad refrain from children whose parents are in chronic conflict; I hope X’s parents take his comment on board.
Y said that he wanted to be able to see Ms F and her children. As for the Father, he said that seeing him was “good and bad”. He wanted to see the Father but was scared of getting into trouble. He explained that it was good to see Ms F’s children but bad when the Father put poo in his face. No detail was given in this respect and both he and X were laughing at the time. It was not a serious allegation; there is no substance to it. By way of background, Y has a chronic soiling issue and in February 2020 the Mother contacted the Police after one of the children apparently told her that a few years earlier the Father had made Y eat his own poo. No formal complaint was ever made and the matter was not treated seriously and to be clear, I reject any suggestion that the Father ever behaved in such a way. The Mother’s decision to involve Police was at best hypervigilant and at worst histrionic.
I would close off on the topic of the children’s views by observing that they want a relationship with him in some form or another despite his own past angry and at times aggressive conduct, and despite the Mother’s obvious resistance to such relationship. In the case of X, he is somewhat more wary and apprehensive which is understandable.
In terms of their relationships, the boys are obviously very close to the Mother and the maternal grandmother. Those relationships are solid and not at any risk by any orders I might make. The Mother also facilitates the boys’ relationship with the paternal grandfather.
The relationships between the boys, the Father and the members of the Father’s household are very much at risk. The Mother effectively seeks to stifle, if not extinguish, such relationships.
The boys would suffer immensely if that were to occur. They love their Father, they love their stepmother Ms F, and they love H and G in a sibling-like way. Since the boys stopped visiting the Father, there has been a palpable sense of loss for them all.
Tellingly, Ms F said in the witness box that X had bumped into her at a skate park when she was pregnant with J. It was an entirely chance encounter but X came up and hugged her. Through tears in the witness box Ms F explained that she had told X she wished he could have come with them on their recent family holiday to Q Region and that they (and particularly G and H) would love to see the boys again. Ms F’s emotion was real; the relationships remain deep and reciprocal.
There is also J to consider; she is but an infant whose relationship with the boys has been an inevitable casualty of this dispute. X was even unsure as to his little sister’s name at the time he was interviewed by the Family Consultant. With appropriate safeguards it would plainly be in the interests of the boys to be able to develop a relationship with her.
Lastly, it is common ground that the paternal grandmother has drug abuse issues and that she ought to have no relationship with the children.
In terms of parental decision-making and involvement, the Mother has clearly been in the driver’s seat although the Father played a significant role up until January 2019.
The Father’s attitude to financially maintaining the boys is a concern. The amount of support he provides has at times been reactive to what is going on as between the parents – and this is inappropriate. In more recent times he has been assessed to pay $493 per month to the Mother but even so, he had accrued child support arrears of $1,134 by the time the matter came on for hearing. The backdrop is that the Father owns his own home, two (2) cars and runs his own business. He could – and should – have done better. At trial the Father explained that his business had been struggling but this is not a complete explanation.
The making of an order for time would not give rise to any serious practical difficulties or expenses.
In terms of the children’s individual characteristics, each has required counselling for anxiety and aggression issues, most significantly X. Y has had ongoing soiling issues, sometimes soiling himself up to five (5) times a day. The Mother’s evidence is that doctors are hopeful that he will “grow out of it”.
I have already addressed family violence issues and relevant AVOs. I note that the AVO protecting the Mother remains current; the AVO protecting X expired in 2021.
It is convenient to collectively address the issues of parental capacity, parental attitudes and the effect on the boys of any change of circumstances.
Each parent has the capacity to parent the children and to provide for them physically and emotionally. The Mother’s capacity as primary carer has been proven.
But each parent’s attitude could also be roundly criticised.
Each has denigrated the other parent to the children. The children are well aware that the parents do not like each other.
Each parent has perpetrated family violence, though the Father’s violence was at a much higher level. His anger and impulsiveness have hurt X in particular. He also has a history of breaching orders. I am however satisfied that the Father has made genuine steps to improve himself and to demonstrate a more responsible attitude to parenting.
The Mother is unsupportive of an ongoing relationship between the children and the Father. While some of her attitude stems from the Father’s violent actions, the Mother’s motives are not entirely altruistic and child-focussed.
For instance, it was noteworthy that in cross-examination the Mother said that the boys missed G and H and she said she had considered the impact on them of losing those relationships. She accepted it would have quite an impact. Yet when asked about the impact on the children of losing their relationship with the Father, she said she had “done no research”. It was obvious that, from the Mother’s perspective, the father/child relationships did not much matter.
At present the boys are not spending any formal time with the Father, nor having any real communication with him. At most they have casual public encounters at sports games.
Continuing the “no time” order would come at a significant cost to the children’s emotional and psycho-social development. They will continue to miss the Father, Ms F, G and H. They will be curious about their little sibling J, and may wonder why they can’t have a relationship with her either. They will carry the emotional burden of having a perennially absent parent, which will be a challenge.
Given that the parents live close by and attend the same sports club, a “no time” order still also inevitably leads to awkwardness when the families come into contact. This may occur at sports games but also at other places like cinemas, shopping centres, cafés and the like. [20]
As Family Consultant L observed, there are real benefits to the children having a male role model, and potential negative inter-generational effects that arise when a child loses a relationship with a parent. I consider that other potential longer term risks are that they may come to idealise the Father and resent the Mother for stopping contact. They may come to rebel against the Mother’s authority, reject her and seek him out instead.
Restoring the children’s time with the Father would be a significant change for them. The children would be immensely happy to resume their relationships with the Father, Ms F, H and G. They would also benefit from getting to know J and developing a relationship with her.
The benefits to restoring the relationships are obvious and need no elaboration. But is also carries with it various risks that must be weighed up.
History has shown that these parents have ample capacity to immerse the children in their disputes and to otherwise place them in harm’s way emotionally. One benefit of “no time” has been that the children (and the Mother) have had something of a break from that conflict, though not a complete break. The Mother says that X in particular is now much more settled than he was before. But “no time” comes at a real cost to both boys.
In the interviews for the first Family Report the Father candidly said that the parents “hate each other’s guts”. I consider that the Father has mellowed his attitude somewhat since those interviews. In her interview, the Mother said the children did not talk about the Father at all in her household; that has not likely changed despite the children’s casual sports interactions with him. On any reasonable assessment, these parents would do well to limit their interactions to the minimum necessary to facilitate any orders.
Orders can be made to ameliorate the risk of future conflict between the parents. For example, it is common ground that the Mother should have sole parental responsibility. The risk of conflict at changeovers can be largely removed by having them occur at school. When this is not practical, changeovers can occur at some other safe public location with the Father not to attend in person.[21] Orders for family therapy can also provide some helpful scaffolding for all concerned.
There is a risk that X in particular may find it confronting and difficult to return to the Father’s home; he may want to leave early. But the Father (and Ms F) have facilitated this in the past and would do so again. I consider that they would be sensitive to X’s needs in this respect. Family Consultant L in particular considered that the Father’s proposal of five (5) nights per fortnight might be too difficult for X and I accept that this may be so.
Any order which brings the Father and the children back into contact inevitably carries with it a risk of future litigation. That said, the Father sensibly retreated from his proposal of equal shared parental responsibility so that major decisions should not be contentious. His proposed orders also include various safeguards and restraints – for instance in relation to changeovers and his non-attendance when changeovers occur other than at school.
Limiting the time the Father spends with the children, imposing appropriate safeguards, and providing for orderly changeovers should greatly reduce the risk of future litigation although some risk will remain given the unhappy past history between the parents.
Any resumption of litigation would be stressful for the boys and not in their best interests. One advantage of a “no time” order is that it would effectively remove that risk.
The court is also required to consider the impact on the Mother’s parenting capacity of making an order for time. For convenience this will be addressed below.
THE IMPACT ON THE MOTHER OF MAKING AN ORDER FOR TIME
Though this issue engages a number of the best interest considerations in section 60CC, I will for convenience address it as a discrete topic.
In Keane & Keane [2021] FamCAFC 1, the Full Court of the Family Court [22] reviewed the various authorities and observed:
78In Russell v Close, the Full Court referred to the decision of the Full Court in B and B (1993) FLC 92-357 (“B and B”) and stated, at [32]:
In upholding children's right to protection from sexual, psychological and/or emotional harm, the court must take into account any anxiety on the part of the primary caregiver concerning the child's exposure to potential harm where such anxiety is likely to impact adversely on that parent's caregiving ability.
79In the cited decision of B and B, the Full Court at 79,780 stated:
It is not unreasonable for the Court to take into account in assessing whether an unacceptable risk exists, the need of a custodial parent to be assured of the children's protection. As primary caregiver, anxiety about the children’s exposure to potential harm is likely to impact adversely on that parent’s ability to care for the children.
80Subsequent authorities, however, confirm that it is an error to assume that, in each and every case where a parent is concerned about the safety of a child in the other parent’s care, the court will infer that there is an unacceptable risk that the concerned parent’s parenting capacity will be adversely impacted. To do so risks elevating those fears to an extent that it overshadows the totality of considerations set out in s 60CC of the Act. In particular, as noted by the primary judge, it does not give the concerned parent a right of “veto” over whether the child should have time with the other parent, citing Marra and Marra (Unreported, Full Court of the Family Court, Fogarty, Baker & Butler JJ, 8 September 1993). As explained in Marra at [6]:
The genuinely held beliefs or concerns of the custodial parent as to access are relevant considerations in deciding what access to order (s.64(1)(bb)(i) and (v)). However, it does not give to the custodian a veto. Its relevance is the extent to which it may have an adverse impact upon the welfare of the child as a result of it affecting the custodian's caregiving capacity. The wife’s fears in the present case, whilst of personal concern to her, do not appear likely to have significant effect upon her capacity as a custodian. The trial Judge in this case, though bound to take account of the wife’s fears, elevated her fears to an extent which transcended the consideration of the best interests of the children.
81Importantly, the Full Court in Marra held that not only is it necessary for the court to determine whether a parent has a genuine concern about the welfare of the child in the care of the other parent but it is also necessary to determine whether the concerned parent’s parenting capacity will be “discernibly impaired”. ‘Discernibly’, or similar expressions that have been used in the relevant authorities to which we have referred, means no more than being an evident or detectable impairment in parenting capacity such that there is an unacceptable risk that the child’s welfare will be adversely impacted.
82We respectfully agree with senior counsel for the father that the Full Court in Blinko did not intend to modify the principles adumbrated in the relevant authorities that have considered whether, on the facts of each particular case, the primary judge did or did not err in finding that a primary carer’s parenting capacity had been adversely impacted by the emotional and/or psychological consequences of orders being made for a child or children to spend time with the non-resident parent. What the Full Court did in Blinko was draw upon the line of authority commencing with Russell v Close and, at [83], usefully summarised the relevant principles adumbrated in those authorities as follows:
[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.
83Also of assistance is the decision of the Full Court in Helbig & Rowe [2016] FamCAFC 117 which explained, at [214], the correct approach in considering what the mother, in this case, has described as “the Re Andrew Principle”, as adumbrated in A v A (1998) FLC 92-800 where the Full Court said at 84,996, [3.29]:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party’s capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
(Emphasis added)
I accept that the Mother does hold some genuine concerns about the children’s welfare with the Father. The events of 4 January 2019 were traumatic for her; they were a gross breach not only of the parenting order but also of the Mother’s trust. Given the Father’s past history, she does not trust him. She considers him to be a law unto himself and she asserts that she remains fearful of him and of his temper.
Family Consultant L considered that “the Mother has a significant and enduring fear of the Father, and such a fear is unlikely to abate”.[23] He also considered that the Mother’s fear of the Father would also likely have been observed by, and become intrinsic to, the child X.
Family Consultant L did express concerns about the impact that making an order for time would have on the Mother. He said she showed some signs of hypervigilance and flagged that she may be constantly “on edge” while the children were visiting the Father. One of his concerns was that, in the leadup to a visit, the Mother may project her fears onto the children by saying things like “Tell me if he does anything.”
The Family Consultant said that there could be a diminution of the Mother’s parenting capacity, noting that the children were vulnerable to her state of mind. He also considered that the Father needed to do significant work to show the Mother that his behaviour had changed before she could have a reasonable belief the children were safe. He considered that the Mother would benefit from some individual therapy to manage her anxiety in this respect.
I add here that the Maternal Grandmother, a close support to the Mother, is also afraid of the Father and of his temper. She has her own first-hand experience of being distressed by his verbal abuse. She fears that the children may come to harm if an order is made for him to resume time with the children. Her fear likely reinforces the Mother’s fear.
Having made these observations, I should also observe that not all of the Mother’s expressed fears are reasonable. For instance the Mother deposes in her affidavit that “I believe that my life is at risk and that Mr Constable could attempt to seriously hurt me or even kill me just to “pay me back” for what I have done to him by standing up for my children”. Yet he agreed to the five (5) year AVO and there is no suggestion that he has since threatened her in any way, including after she stopped his time with the boys in January 2019. While it is true that he interacted with the boys at sports games he did not seek to engage the Mother at all; when Y won his Certificate it was the Mother who behaved aggressively. While not excusing the Father, the fact is that when he breached the AVO on Christmas Day 2020 he did not himself exit the vehicle but instead sent G and H to deliver the presents.
I am satisfied that to some extent the Mother’s evidence remains tainted by her own longstanding ill-feeling towards the Father. Not all of it can be sheeted home to his own actions.
In closing submissions the Mother’s counsel contended that the Father had perpetrated extremely severe family violence over time, pointing to various affidavit references to her being fearful. He submitted that it was difficult to conceive of a more graphic reaction than how the Mother handled Christmas Day 2020, contending that she was clearly highly anxious and moreover that she could not objectively take any comfort in the making of restraining orders as the Father would not comply. He said that the Father’s decision to drop off the presents showed a lack of insight on his part.
Ultimately, the Mother’s counsel contended that there was a grave risk that in making its decision the court may not give appropriate weight to the Mother’s fears and to the long-term impact of the Father’s past family violence upon her as well as X.
The Father’s counsel submitted that, even if genuine, the Mother’s expressed fears were an insufficient basis for a finding that the making of an order for time would result in a “discernible impairment” of her parenting capacity. Pointing to the need for cogent evidence that the Mother’s parenting would be discernibly impaired, the Father’s counsel highlighted the absence of any evidence in the Mother’s case from a treating doctor, counsellor or psychologist.
It should also be noted that the Family Consultant’s own evidence was that, provided there was no unacceptable risk, an order for time would be in the children’s best interests notwithstanding the Mother’s fears.
The Father’s counsel also referred to the Mother’s evidence in the witness box that that she would comply with orders of the court “one hundred percent”, and she would take the children to family counselling if ordered. She also said that if necessary she would access her own family, counselling or medical support although she would be reluctant to take medication.
The ICL’s counsel broadly agreed with the Father’s submissions, albeit while proposing a more conservative time regime than his.
WEIGHING THE COMPETING PROPOSALS
Family violence is an insidious and destructive dynamic, with longstanding impacts on victims and children. In some cases, the incidence of family violence does warrant a “no time” order so as to protect children from a perpetrating parent.
But each case must turn on its own unique facts and, in this finely-balanced case, I have concluded that orders for the boys to spend time with the Father in a structured and careful way would be of a net benefit to them and ultimately in their best interests.
The orders I propose to make will not expose the boys to an unacceptable risk of harm from the Father.
The orders will include a number of safeguards and scaffolding to assist all concerned. While the orders will likely cause the Mother some anxiety and distress, they are unlikely to cause a discernible adverse impact on the Mother’s parenting capacity. I consider that the Mother is somewhat more resilient than she perhaps thinks. The Mother also acknowledged that over time she may be able to learn to trust Ms F again as she used to prior to 4 January 2019.
To the extent that an order for time may result in an adverse impact on her parenting capacity, I am satisfied that:
·the children’s welfare would not be placed at unacceptable risk; and
·the benefits of the order would outweigh the detriments arising from any adverse impact.
Going forward, the Mother needs to address her anxieties and do all that she reasonably can to promote the Father’s relationship with the boys – restoration and repair of the relationships would be far and away the best outcome for these children. The Father needs to act sensitively and apply the things he has learned in terms of managing his own behaviours.
Though not without some risk, the risks are not unacceptable. They will involve a degree of sacrifice for the parents, but sacrifice is an unavoidable part of proper parenting.
CONCLUSION & ORDERS
For these reasons I propose to make the detailed parenting orders set out at the commencement of the judgment. Broadly, the orders are self-explanatory and represent an amalgam of the orders sought by the Father and the ICL. In case the orders require any further explanation I make these further specific findings and observations:
(a)it is in the best interests of the boys that the Mother have sole parental responsibility in respect of any major-long term issues. I do not consider that she should be obliged to consult the Father in advance of making a decision, as this may lead to resentment – particularly if the Father suggests a different decision only to be overridden be her. It would be ideal if, over time, the Mother and Father could try to work together and reach agreement however at this stage that appears merely aspirational;
(b)the Mother should be restrained from changing the children’s surnames. There is no suggestion that she intends to do so in any event and it would be in the best interests of the boys to take that issue entirely off the table;
(c)the Father sought to restrain the Mother from moving more than 50 kilometres away from her current residential address but I am unwilling to make that order. There is no suggestion the Mother intends to move away from her current home or from the D Region more generally; moreover the proposed 50 kilometre radius is entirely arbitrary. The Mother ought to enjoy such freedom of movement as is compatible with compliance with her obligations under the orders;
(d)the orders provide for the Father to spend substantial and significant time with the children in a graduating manner. I have endeavoured to avoid unnecessary changeovers and, insofar as special occasions are concerned, I have struck what I consider to be an appropriate and workable balance. Things such as birthdays will just have to be celebrated on the nearest day as appropriate;
(e)the Father should bear the costs of Family Therapy given the assault of 4 January 2019 and this should include 2 sessions involving the Mother. It is a small price to pay in the grand scheme, particularly given my findings about child support and maintenance;
(f)orders have been included to regulate interstate and overseas travel so as to lay down clear rules and hopefully minimise the risk of conflict. As to international travel, neither party is a flight risk but out of an abundance of caution and to allay any potential anxiety I am excluding travel to non-Hague Convention countries.
I certify that the preceding two hundred and thirty (230) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Betts. Associate:
Dated: 4 April 2022
FAMILY LAW ACT 1975 - SECT 4AB DEFINITION OF FAMILY VIOLENCE ETC.
FAMILY LAW ACT 1975 - SECT 4AB
Definition of family violence etc.
(4)For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
(5)Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
(6)For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(7)Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c)comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d)cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
[1] As they were then styled; their new title is “Court Child Expert”.
[2] Exhibit 19. The Father also perpetrated various other offences during this period, including an affray.
[3] Mother’s affidavit, paragraphs 5(a) and (b).
[4] Exhibit 3.
[5] Mother’s affidavit, paragraph 5(c).
[6] Mother’s affidavit, paragraph 5(d).
[7] Mother’s affidavit, paragraphs 5(e) – (i).
[8] Exhibit 17.
[9] Exhibit 21.
[10] Exhibit 15.
[11] Mother’s affidavit, paragraph 4
[12] Exhibit 23
[13] He had a history of retaliating against her, as evidenced by “trashing” her house after separation and effectively repossessing her car after she stopped his time in January 2015.
[14] Exhibit 3.
[15] Exhibit 6, Exhibit 24 (same document).
[16] As that term is defined in s 64B of the Act
[17] “Abuse” is defined in s 4 of the Act; “family violence” is defined in s 4AB
[18] See the Full Court decision of Goode & Goode (2006) FLC 93-286
[19] She was also recovering from painful shoulder surgery at the time
[20] A matter also raised by Family Consultant L in the witness box
[21] See s 60CG of the Act
[22] Alstergren CJ, McClelland DCJ & Benjamin J
[23] Exhibit 2, paragraph 16
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