Swane and Thomes & Anor

FAMILY COURT OF AUSTRALIA

SWANE & THOMES AND ANOR

[2020] FamCA 808

FAMILY LAW – CHILDREN – Unacceptable risk of harm – Threat to kill - Where the father and paternal grandparents both seek to spend regular unsupervised time with the children – Where the mother alleges that the father poses an unacceptable risk of harm to the children due to his alleged perpetration of family violence against the mother, including allegedly making threats to kill her and as such she seeks that any time between children and the father be supervised at a contact centre – Where the Court finds that there is an unacceptable risk of the children being psychologically harmed by being exposed to family violence and the impact of that upon the mother – Where the risk is exacerbated by the father’s inability to regulate his behaviour and his lack of insight into the impact of his behaviour – Where the risk posed by the father cannot be ameliorated by supervision – Where the mother seeks that any time between the paternal grandparents and the children be supervised as they would be unable to prevent the father from removing the children if he were to attend – Where the children have a close and loving relationship with their paternal grandparents and it is appropriate for them to spend time with them on a monthly basis but that time must be supervised – Where the father will spend no time and have no regular communication with the children but will be at liberty to send cards and gifts to the maternal grandmother on special occasions.

Family Law Act 1975 (Cth)

Baghti & Baghtiand Ors [2015] FamCAFC 71
Banks & Banks (2015) FLC 93-637
Bant & Clayton [2019] FamCAFC 198
Johnson & Page (2007) FLC 93-344
M & M (1988) 166 CLR 69
N and S and the Separate Representative (1996) FLC 92-655

APPLICANT:

Ms Swane

1st RESPONDENT:

Mr Thomes

2nd RESPONDENTS:

Mr & Ms A Thomes

INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid, Lyrene Wiid Lawyer & Migration Agent

FILE NUMBER:

BRC

4102

2019

DATE DELIVERED:

21 September 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Carew J

HEARING DATE:

3 to 6 August 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Byrne

SOLICITOR FOR THE APPLICANT:

Kanoon Law Group

COUNSEL FOR THE 1ST RESPONDENT:

Mr Drysdale

SOLICITOR FOR THE 1ST RESPONDENT:

O'Neill Family Law

COUNSEL FOR THE 2ND RESPONDENT:

Ms Murrell, solicitor advocate

SOLICITOR FOR THE 2ND RESPONDENT:

Wilsons The Family Lawyers

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Downes

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Lyrene Wiid Lawyer & Migration Agent

It is ordered that:

Ms Swane (“the mother”) have sole parental responsibility for the children, X born … 2014 and Y born … 2016 (“the children”).
The children live with the mother.
Mr Thomes (“the father”) spend no time and have no contact or communication with the children other than by posting to the maternal grandmother’s address a card and gift for each of the children on special occasions such as their birthdays, Christmas and Easter.
The father is restrained and an injunction hereby issues restraining him from:
(a)       Contacting or communicating with the mother by any means or requesting any other person to do so other than through a solicitor engaged by him;
(b)       Making critical or derogatory remarks about the mother or members of her family or her partner on social media sites such as (but not limited to) Facebook, Twitter or Instagram and the father shall do all things reasonably necessary to ensure that no other person does so;
(c)       Approaching within 250 metres of the mother or attending within 250 metres of the mother’s home or place of work;
(d)       Attending within 250 metres of the children’s school, day care or extracurricular activity;
(e)       Approaching within 250 metres of Ms B or attending within 250 metres of Ms B’s home or place of work; and
(f)        Contacting or communicating with Ms B by any means or requesting any other person to contact or communicate with her on his behalf other than through a solicitor engaged by him.
Mr and Ms A Thomes (“the paternal grandparents”) are at liberty to spend time with the children for a period of up to six hours once per month supervised by an agreed professional supervisor and in the absence of agreement, from 10:00am to 4:00pm on each fourth Sunday commencing on the fourth Sunday after this Order, supervised by ‘C Contact Centre’, Suburb D, Queensland with the paternal grandparents to pay all costs of supervision save for the initial intake sessions which shall be paid by the person attending the intake session.
The paternal grandparents advise the mother in writing by either email or text message at least 48 hours prior to any scheduled time in the event they are unable to attend the time as provided for in paragraph 5 herein.
The paternal grandparents are at liberty to communicate with the children by telephone or FaceTime at all such times as may be agreed in writing with the mother but failing agreement each Tuesday between 5.00pm and 5.30pm.
The paternal grandparents are at liberty to bring other family members (other than the father) with them when spending time with the children on condition that they obtain the prior written consent of the mother and the supervisor and on condition that any such person is instructed by the paternal grandparents not to inform the father of the location where time with the children will be spent. In the event the father does attend at the location, the children’s time with the paternal grandparents shall immediately cease and they shall be returned to the mother.
The paternal grandparents are restrained and an injunction hereby issues restraining them from:
(a)       Contacting or communicating with the mother other than in accordance with this Order or as agreed in writing between the mother and paternal grandparents or by a solicitor engaged by them;
(b)       Attending within 250 metres of the mother’s home or place of work unless with the prior written agreement of the mother;
(c)       Attending within 250 metres of the children’s school, day care or extracurricular activity unless with the prior written agreement of the mother;
(d)       Informing the father or requesting any other person to inform the father of the location where they will be spending time with the children or attending any extracurricular activity;
(e)       Permitting the father to be present during their telephone or FaceTime communication with the children.
The mother inform the paternal grandparents of any significant illness or injury suffered by the children as soon as reasonably practicable and inform them of any change of the maternal grandmother’s address.
Pursuant to s 65DA(2) and s 62B of the Family Law Act 1975 (Cth), the particulars of the obligations this Order create and the particulars of the consequences that may follow if a person contravenes this Order and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in this Order.

NOTATION

The Court notes that the father is the respondent to a domestic violence protection order and the mother is the aggrieved. That order includes a condition that the father not approach within 100 metres of the mother and not attend within 100 metres of the mother’s home or place of work. The order set out above extends the exclusion zone to 250 metres. In the event that the maternal grandmother is a named person on the protection order the order above permits the father to nevertheless post to her address a card and gift to the children on special occasions.

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

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

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4102 of 2019

Ms Swane

Applicant

And

Mr Thomes

First Respondent

And

Mr & Ms A Thomes

Second Respondents

REASONS FOR JUDGMENT

Ms Swane (“the mother”) and Mr Thomes (“the father”) are the parents of two young children, X aged five and Y aged four. The parents are unable to agree about parenting arrangements for their children.
Mr and Ms A Thomes are the paternal grandparents and separate parties in the proceedings. They want to spend time with their grandchildren and not be subject to supervision.
Currently, the children live with the mother and spend supervised time with the father and paternal grandparents at a contact centre.
For the reasons which follow, the children will continue to live with the mother but will spend no time with the father. The mother will have sole parental responsibility for the children. The paternal grandparents will continue to spend supervised time with the children. The father will have liberty to send cards and gifts to the children on special occasions.

Proposals of the parties

The mother proposes that she have sole parental responsibility and that the children continue to live with her and spend supervised time with the father for two hours per fortnight and with the paternal grandparents for two hours per month.[1]
[1] The precise terms of the order sought by the mother are set out in her Amended Initiating Application filed 3 July 2020 save that the mother contended for the supervision to be undertaken by C Contact Centre rather than F Town Contact Centre given the inability of the latter Centre to offer long term supervision.
The father proposes that the mother have sole parental responsibility and that she relocate back to E Town with the children and that he have gradually increasing unsupervised time with the children until they live with the parents in a 9/5 arrangement.[2]
[2] The precise terms of the order sought by the father are set out in exhibit 15.
The paternal grandparents propose that they spend unsupervised time with the children from 4.00pm Friday to 4.00pm Sunday one weekend in every four week period and for time during school holidays, and FaceTime or telephone communication once each week.[3]
[3] The precise terms of the order sought by the paternal grandparents are set out in exhibit 16.
The independent children’s lawyer recommends that the mother have sole parental responsibility for the children and that they live with her and spend no time and have no communication with the father. Further, that the paternal grandparents spend up to four hours of supervised time with the children. While no recommendation was made as to the frequency of the time with the paternal grandparents I have assumed the recommendation accords with what is proposed by the mother i.e. monthly.

Issues

The parties identified the following significant issues as requiring determination:
i)Does the father pose an unacceptable risk of harm to the children based on his alleged threats to kill the mother?
ii)If the father poses an unacceptable risk of harm to the children, can that risk be ameliorated by supervision?
iii)Are the paternal grandparents suitable persons to be supervisors?
iv)Is a continued relationship between the children and both parents likely to expose the children to family violence?
v)Does the father and/or the mother pose an unacceptable risk of harm to the children by reason of their inability to regulate their behaviour including by any alcohol and/or illicit drug misuse?
vi)Is the father able to protect the children from exposure to his alleged denigration of the mother and/or conversations in the presence of the children that are not age appropriate?
vii)Has the mother maliciously concocted allegations against the father of making threats to kill her?
viii)If the father does not pose an unacceptable risk of harm to the children, can the mother promote a relationship between the children and the father if the children live with her?
ix)Should the mother be required to return to live in E Town?
x)What are advantages/disadvantages of an order for the paternal grandparents to spend time with the children?
xi)What is the likely impact on the children and their relationship with the Father of a long term supervision order?
xii)What is the likely impact on the children if an order is made that they spend no time with the father?
Before considering the issues it will be helpful to set out some background to this case and the legal principles applicable to all parenting cases.

Background

The mother is 33 years of age and employed part time, working for a few hours on Mondays, Tuesdays and Thursdays. It is not clear to me what employment the mother is currently engaged in but previously she has had a variety of occupations. In addition, the mother is about to recommence TAFE studies to complete a certificate three. It is common ground that she had a good reputation as a worker prior to moving to Brisbane, Queensland. The mother lives with the children at an undisclosed address.[4] The mother receives $34 per month child support from the father and otherwise relies upon Centrelink benefits and her wages from casual employment.
[4] The mother provided her address to the Court and it remains sealed in an envelope marked ‘not to be opened unless by order of a Judge.’
The father is 35 years of age and a rural worker by occupation. He lives with the paternal grandparents on their property which is situated in a rural locality about 30 minutes’ drive northwest of E Town, Queensland.
The paternal grandparents are in their early sixties and operate a property with the assistance of their extended family.
The mother and father commenced cohabitation in July 2012. They have two children together, namely, X born … 2014 and Y born … 2016 (“the children”). The mother has another child from an earlier relationship, namely, Z born … 2005. The latter child lives in New South Wales with his father and spends holiday time with the mother and the children.
On or about 1 December 2018, the mother left the father, taking the children with her to live with an aunt at G Town, a town about 35 minutes’ drive southwest of E Town, Queensland. As a result of financial difficulties, the mother, father and children had been living with the paternal grandparents since March 2018. Notwithstanding the parent’s separation they took the children to the Gold Coast for a brief holiday together in December 2018 and the parents spent New Year’s Eve together in 2018. The parents were also undertaking relationship counselling. The father does not regard the date of final separation to have occurred until 10 March 2020.
The mother moved with the children from G Town to E Town on or about 21 February 2019 and then to Brisbane (about 1 ½ hours from E Town) on or about 24 March 2019 when she was assisted by police to move into a refuge. The mother and children have lived in independent housing in Brisbane since June 2019.
The father did not spend any time with the children from 22 March 2019 until supervised time commenced on 18 July 2019 at the E Town Contact Centre.
The mother and children are protected persons under a final domestic violence protection order made on 14 August 2019. The protection order remains in force until 13 August 2024. In material presented by police to the Magistrates Court in June 2019 on an application by police to vary the protection order it is stated:
This couple have been deemed high risk and the lethality for the [mother] is extremely high.
A temporary protection order was initially made on 25 March 2019 and the father was served with a copy of the order on 28 March 2019. A further temporary protection order was made on 4 June 2019 when the father was present in court. On 10 October 2019, the father was dealt with for breaching the protection order on 14 June 2019 and again between 2 July and 9 July 2019. On all charges the father was fined $500 and no conviction recorded. On 11 October 2019, the father was dealt with for further breaches of the protection order on 26 September and again on 1 October 2019. On all charges no further punishment was ordered and no conviction was recorded. The nature of the breaches involved the father posting photographs and making comments about the mother on Facebook contrary to a condition of the protection order, and communicating or trying to communicate with the mother contrary to a further condition of the protection order e.g. asking the child X during an arranged phone call with the children - “Is mummy there? Can you go ask mummy if mummy can talk to daddy for a second X? Just ask mummy if daddy can talk to her? Can I talk to mummy for a bit?”. The father’s Facebook posts included the following:
My poor kids I hope you get to come home soon daddy misses you.
She won’t let (sic) see or even talk to my kids
Hopefully she is off the drugs and the piss witch (sic) she is usually on
It’s just a fucking joke I can’t even talk to them because she won’t let me for some reason
The father has a criminal record dating back to 10 February 2009 when he was fined $350 with no conviction recorded for committing a public nuisance; on 13 October 2014 he failed to appear in accordance with an undertaking but he was not punished and no conviction was recorded; on 6 February 2015 he again failed to appear in accordance with an undertaking and again he was not punished and no conviction was recorded; on 30 April 2015 he was dealt with for common assault placed on a good behaviour bond for 12 months with a recognisance of $400 but no conviction was recorded, and the father was dealt with for breaches of the domestic violence protection order as noted above. The father was also the respondent to a domestic violence protection order made for a two year period on 30 October 2008. The name of the protected person is redacted on the records tendered in these proceedings and the father gave no evidence about the circumstances resulting in this protection order nor was he cross-examined about it. A further temporary protection order was made against the father on or about 24 October 2016. The name of the protected person is again redacted. The father gave no evidence about the circumstances of this protection order nor was he cross-examined about it.
On 15 June 2014, the father was transported by police to the E Town Hospital and examined pursuant to an Emergency Examination Order following an incident at an Oval where the father refused to leave the field and said that he “may as well neck himself on the goal post”. The father was subject to a ban by the Club from playing. At the hospital, the father presented as frustrated and angry and was assessed as having limited insight. The mother informed the medical staff that the father was extremely stubborn and would not let go of his issues with the E Town Sports Association. The father described himself as having been persecuted by the Association since he was 16 years of age. On examination, the father was noted to be preoccupied with his issues associated with the Association and was upset and angry throughout. It was noted that his speech was normal in tone and volume but was “dominated by swearing”. The father denied any intention to kill himself and was discharged into the care of the mother and his family.
The mother also has a criminal record, dating back to 2004 when she was placed on a good behaviour bond for nine months with a recognisance of $200 for trespass; on 25 August 2008 the mother was fined $1,100 with no conviction recorded for, among other things, assaulting a police officer; on 20 March 2009 she was convicted of obstructing or assaulting a police officer, being drunk and disorderly, and causing wilful damage to police property for which she was placed on community service; on 23 April 2010 the mother was convicted of breaching the community service order and fined $1,300; on 31 January 2011 she was convicted and fined $300 for contravening a direction or requirement; on 20 May 2011 she was convicted of six counts of committing a public nuisance, assaulting or obstructing a police officer, contravening a direction or requirement and placed on probation for ten months and fined $170; on 21 September 2011 the mother was convicted of breaching her probation order and for an additional two charges of assaulting or obstructing a police officer and sentenced to three months imprisonment and ordered to pay $450.60 in restitution; on 20 December 2011 she was convicted of two counts of assaulting or obstructing a police officer for which she was again placed on probation for 18 months; on 17 August 2012 the mother was convicted of breaching her probation order and fined $200; on 30 November 2012 she was convicted of a further breach of the probation order and sentenced to four months imprisonment; and on 19 September 2019 the mother was dealt with for stealing but no conviction was recorded.

The mother had her first child at age 17. In about 2011, and while the mother was in prison, the child, Z, was removed from the mother by Z’s father and he has lived with his father since then.
The mother has a history of depression, anxiety, self-harm and alcohol and drug abuse. She engaged with treatment services from time to time commencing about 2010.
On 2 March 2013, the mother presented to hospital with a laceration and bruising to her face reportedly having been punched by another person and pushed to the ground. The mother said she had a history of Bipolar and was taking Sertraline and Epillim. She also said she was binge drinking but wanted to stop so she could have access to her son.
On 4 November 2013, the mother attended the E Town Outpatient Clinic “predominantly to demonstrate to the Family Court that she has attended ATODS.”[5] The mother disclosed drinking one to two standard drinks of wine each night and about one per month would “have a big night”. She did not consider her drinking at that time to be problematic.
[5] An alcohol and drug rehabilitation service.
The mother attended an obstetric review on 25 June 2018 during which she said that she did not have a good relationship with the father and that when she had attempted to leave he threatens to harm himself.
On 19 December 2018, the mother attended at the paternal grandparents home (where the father was still living) in order to collect some personal belongings. The children were present. An altercation occurred which involved the father making a threat to put the mother in a machine.[6] It is common ground that the father made the threat but the father says he did so only after the mother had bitten him on the arm. The mother admits biting the father on the arm but says she did so in response to the father reaching into her car and pushing his arm against her face while removing her phone. Neither the mother nor the father made a complaint to police about the incident at the time it occurred.
[6] A harvesting machine that makes mulch.
On 22 February 2019 the mother again attended at the property to collect personal belongings. The children were in attendance. The mother alleges that the father whispered to her that he would slit her throat. Although police were in attendance at the time, it seems they did not hear the alleged threat.
On 25 March 2019, the mother attended at a police station and spoke with Mr H, a police officer, and told him that she had been contacted by a friend, Ms B, on 24 March 2019 and that Ms B had told her that the father was looking all over E Town for her and that he had placed a “hit” on her for $24,000 in an attempt to “end it”. The mother told the police officer that Ms B said she feared for the safety of the mother and the children and subsequently suggested she leave E Town. The police took the mother’s complaint seriously.
Police records dated 25 March 2019 report that between January 2019 and March 2019 the father had stalked the mother and made three specific threats to kill her and had been contacting her by phone over 200 times per day. Police spoke to a friend of the father named Mr B[7] and was told by him that he believed the father was a danger to the mother and if he located her he would not be surprised if he killed her. Mr B also warned police that the father would react badly if served by police with any documents. On the 26 March 2019 it appears Mr B again spoke to police and informed them that the father was trying to locate the mother and children and that he was concerned for the welfare of both the father and the mother. Mr B was not a witness in these proceedings. No objection was taken to the police records being tendered.
[7] The name of this person is redacted in the record forming part of exhibit 13 but during oral evidence the father identified this person as Mr B who is Ms B’s ex-husband.
On 31 March 2019, after the father had been served with a temporary domestic violence protection order, he made a complaint to police about the incident on 19 December 2019 when he was bitten on the arm by the mother. He also alleged he had been the victim of domestic violence over the previous seven years. The father’s request for police to apply for a protection order against the mother was refused. It was assessed that the father was not in fear of the mother and not at risk of harm from her. It was assessed that the father was attempting to locate the mother by looking over the shoulder of the attending police officer when he was at his computer. The police records also reveal that the reporting officer “has had considerable dealings with [the father] over the last 4 years and he has presented as a hostile, argumentative and intimidating individual.”
On 9 April 2019, the father filed his own application for a protection order against the mother in which he alleged that the mother had attacked him on numerous occasions in front of the children including threatening him with a knife. He also alleged that throughout their seven year relationship he witnessed her self-harming by slitting her wrists and ankles, that she misused drugs and alcohol while “her son” was in her care, and failed to take prescribed anti-depressant medication. In particular he alleged:
… She has also bit (sic) me in a frenzied attack in front of the children.
The father alleged in his application for a protection order that the mother was unpredictable and that he feared for his and the children’s safety. The father withdrew his application for a protection order on 12 June 2019.
The father made a complaint to the Department of Child Safety, Youth and Women (“the Department”) on 10 April 2019 raising concerns that the mother was suicidal, is an alcoholic, and a drug user. The Department concluded that there was insufficient evidence to conclude that the children are at an unacceptable risk of significant and detrimental harm and without a parent willing and able to meet their ongoing needs.
On 28 July 2019, the paternal grandfather made a complaint to police of having witnessed the mother threaten the father with a knife nine months earlier. In the police records relating to this complaint the following comments are included:
… The reporting officer is aware of the ongoing conflict and knows that the [the father] has been the subject of considerable investigation. It is noteworthy that this incident was not reported at the time it is alleged to have occurred over 9 months ago. This alleged assault is only being reported now that there is a custody dispute. … Use caution and professionalism when dealing with the [father] as he is volatile and can be hostile to police. Also note that the [father] records conversations and makes formal complaints and seek police reports via RTI. Good luck. …
On 29 July 2019, the mother was interviewed by police and denied the allegations made against her. The police took no further action.
In police records dated 11 September 2019 the following comments are included:
… The reporting officer knows the [mother] well and believes she is capable of being malicious and malevolent in her relationships.
…
The reporting officer finds the [father] a very difficult, rude and abrasive person to deal with …
On 10 October 2019, the father attended at the E Town Police Station and was arrested in relation to outstanding alleged breaches of the protection order. The police records include the following comment:
… Due to the aggressive and non-compliant state of the defendant, police were unable to interview the defendant at the time. The defendant was held in custody to appear at the Magistrates Court at the next opportunity.
On 19 November 2019, police records include the following comments:
The reporting officer is aware that there is a great deal of hostility between the [mother] and [father]. The reporting officer believes that the [mother] will continue to make complaints about everything she believes will cause at least an investigation if not a conviction.
On 22 February 2020, the mother contacted police and informed them that she had received a text message from the paternal grandmother saying that she knew where the mother lived and where the children went to school. At her request the police attended the paternal grandmother’s home and she confirmed sending the text message as alleged. She told police the address was visible from emails from the children’s school forwarded to the father and the paternal grandmother by the mother. Police then spoke to the father and he produced the emails and the police records include the following:
[The father] showed police the email forwarded to him by [the mother] in relation to the children’s school – confirming [the mother] herself has provided the information to [the father] of where the children are attending school. Police observed that the address on the email ([the mother’s] address had been blacked out with black texta (sic), however, was still visible. [The father] stated to Police he has no intention of attending [the mother’s] residence due to being charged with previous minor breaches. … Nil concerns that [the father] had intention of attending.
During the mother’s oral evidence before me, she appeared genuinely shocked that the name of the school and her address were still visible despite the attempted redaction.
There appear to be outstanding charges against the father for further breaches of the protection order during the period 2 and 10 March 2020. The nature of the breaches relate to two phone calls allegedly made by the father to the mother contrary to the conditions of the protection order. The father gave no evidence about these charges and was not cross-examined about them.
Since July 2019 the father and at times the paternal grandparents have spent weekly supervised time with the children at the E Town Contact Centre save for a number of months in 2020 when the restrictions associated with the COVID-19 pandemic precluded the visits.

Applicable legal principles

Every proposed parenting decision requires application of the relevant parts of Part VII of the Family Law Act 1975 (Cth) (“the Act”) which sets out the objects, principles and matters that must be considered when determining what parenting order is proper.[8]
[8]Family Law Act 1975 (Cth), s 65D.
A ‘parenting order’ is defined in s 64B of the Act and may deal with matters including:
a)The person or persons with whom a child is to live;
b)The time a child is to spend with another person or other persons; and
c)The communication a child is to have with another person or persons.
Section 65C permits a grandparent as well as a parent to bring an application for a parenting order.
The objects and principles of Part VII of the Act are set out in ss 60B (1) and (2) and those sections make it clear that the court is concerned with, among other things, a child’s right to be cared for by both parents when it is safe for that to occur.
In deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration (s 60CA).
The best interests of the child are determined by reference to primary considerations, namely, the benefit to the child of having a meaningful relationship with both parents and the need to protect the child from physical or psychological harm, and additional considerations including any views expressed by the child, the nature of the relationship between the child and each parent and other persons including grandparents, the past involvement of each parent with the child, the likely effect of any changes, the capacity of each parent to provide for the intellectual and emotional needs of the child, any family violence involving the child or a member of the child’s family etc. (s 60CC).
In considering the primary considerations the court must give greater weight to the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence (s 60CC(2A)).
‘Abuse’ is defined in s 4 of the Act and includes an assault, causing the child to suffer serious psychological harm, including when that harm is caused by the child being subjected to, or exposed to, family violence or serious neglect of the child.
‘Family violence’ is defined in s 4AB of the Act and means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful. Particular examples of such behaviour include assault, repeated derogatory taunts, intentional damage or destruction of property etc.
Section 60CG imposes a statutory imperative to ensure that a parenting order does not expose a person to an unacceptable risk of family violence and empowers the court to include in the order any safeguards that it considers necessary for the safety of those affected by the order.
In cases involving allegations of abuse or family violence a positive finding of abuse should not be made unless the court is satisfied on the balance of probabilities having regard to the “inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding” and proof to the reasonable satisfaction of the court “should not be produced by inexact proofs, indefinite testimony or indirect inferences”.[9] Where it is not possible to positively reject an allegation as groundless the court is required to assess and evaluate the magnitude of any risk to determine whether the risk of harm is unacceptable.[10] The components which go to make up a finding of unacceptable risk “need not each be established on the balance of probabilities. The court may reach a conclusion of unacceptable risk from the accumulation of factors, none or some only of which, are proved to that standard” although “a Judge may be cautious in coming to a finding of unacceptable risk if none, rather than some only, of the accumulation of factors considered, satisfy the standard of proof”.[11]
[9] M & M (1988) 166 CLR 69 citing Briginshaw v Briginshaw (1938) 60 CLR 336, 362 per Dixon J.
[10] M & M (supra); N and S and the Separate Representative (1996) FLC 92-655.
[11] See Johnson & Page (2007) FLC 93-344, 81,890, [68], 81,891, [71].
The Full Court of the Family Court recently reviewed the role of the court in assessing risk in Bant & Clayton[12] and said:
[12] [2019] FamCAFC 198.
In M v M (1988) 166 CLR 69 at 78 (“M v M”) the plurality of the High Court considered the assessment of the existence and magnitude of a risk in the context of sexual abuse of a child and said:
Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. … courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
It is to be remembered that the concept of “unacceptable risk” referred to in M v M was within the framework of resolving “the wider issue” namely what is in the best interests of the child and to which the resolution of the existence of an “unacceptable risk” is subservient (see M v M at 76; B and B (1993) FLC 92-357).
The process by which a risk is identified and its magnitude measured cannot, in parenting cases, be subject to rigid mathematical or empirical assessment. As the High Court said in CDJ v VAJ (1998) 197 CLR 172 (“CDJ v VAJ”) at 218:
…Given the nature of applications for parenting orders, there must often be a real chance that the order under appeal is not in the best interests of the child. Such applications necessarily involve predictions and assumptions about the future which are not susceptible of scientific demonstration or proof. Perceptions, predictions and even intuition and guesswork can all play a part in the making of an order. …
As long ago as 1995, in N and S and the Separate Representative (1996) FLC 92-655 at 82,713 – 82,714, Fogarty J said of this determination:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child.
The Full Court went on to stress the importance of the whole of the evidence in assessing risk and said:
The conclusion of the existence and magnitude of a risk was based on all of the facts and circumstances to which his Honour referred. It would not be proper to approach that task by analysing each fact or circumstance to see whether that particular fact would support the conclusion to which his Honour came, in the words of counsel for the father, to “atomise” that evidence (see Shepherd v The Queen (1990) 170 CLR 573; R v Baden-Clay (2016) 258 CLR 308). Rather, it was a conclusion formed by a consideration of all those aspects taking into account the necessary elements of prediction and assumptions about the future to which the court spoke in CDJ v VAJ.
The court is not required to make findings of fact on every factual dispute raised by the parties.[13] The paramount issue for the court is to determine what order is in the best interests of the subject child in the particular circumstances of the case and in the process of that determination the court “cannot be diverted by the supposed need to arrive at a definitive determination” on each and every factual dispute.[14]
[13]Baghti & Baghtiand Ors [2015] FamCAFC 71.
[14]M & M (1988) 166 CLR 69.
Each parent has parental responsibility (i.e. all the powers, responsibilities and authority which, by law, parents have in relation to a child), for a child subject to any order made by the court (s 61C).
Section 61DA provides that when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe that a parent has engaged in abuse of the child or another child who, at the time, was a member of the parent’s family or where there are reasonable grounds to believe a parent has engaged in family violence as defined in s 4AB. The presumption may be rebutted if the court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
Where the presumption does apply, the court is required to consider whether equal time or substantial and significant time is in the child’s best interests and reasonably practicable (s 65DAA).
Section 65DAC makes clear that an order for shared parental responsibility requires decisions about major long-term issues to be made jointly after consultation. Major long-term issues mean issues about the care, welfare and development of the child of a long-term nature and includes issues about education, religious and cultural upbringing, health, name, changes to living arrangements that make it significantly more difficult for the child to spend time with a parent (s 4).
Although I may not specifically discuss in these reasons each subparagraph of each relevant section I have considered all sections as required when making my determination.[15]
[15]Banks & Banks (2015) FLC 93-637.
I turn now to consider the issues in this matter.

Does the father pose an unacceptable risk of harm to the children based on his alleged threats to kill the mother?

There are three particular threats allegedly made by the father to the mother which involve serious threats to harm or kill the mother.

19 December 2018

On 19 December 2018, the mother returned to the property where she had previously lived with the father and his parents to collect some of her belongings. The mother describes what occurred:
76. … When I attended the property [the father] cornered me in one of the rooms and said to me a comment like, “you are not leaving this house until you sign over my kids.” … “What you are doing is wrong, everyone knows it. You are not leaving this house without signing over my kids. The only way you are going to leave this house is when I put you in the machine and you come out like mincemeat and nobody will ever find your body.”
77. I was absolutely petrified and called out to Ms J, [the father’s] sister-in-law, who I saw in the front yard. I was frightened and tried to run out of the room but [the father] put his arm across the door. Ms J then walked in and said to [the father] something like, “Stop, you can’t hold her here against her will. You need to let her go.” [the father] then started screaming at me something like, “You are a druggo, you are an alcoholic. You will never see the kids again.”
78. I ran out of the house and got in my car. [the father] then reached through the window, across my body to grab my phone. I was concerned that [the father] was going to take my phone so I could not call for help and then hurt me. [the father]’s arm was exposed as he reached across me so I bit down on it in an attempt to get him to stop. This did not seem to affect [the father] at all. [the father] took my phone and deleted the recording. Briana took my phone off him and handed it back to me. I then drove off. The following day I received a text message from Ashely to the effect of, “Sorry, I was drunk.” I do not believe [the father] was drunk on this occasion, he was not slurring his words, his eyes were not bloodshot, and I could not smell alcohol on him. …
The father admits he made a threat to put the mother through a machine but provides a different version of events. He says:
136. I recall [the mother] attended on the night of the 19 December 2018, and she was adamant that she was doing it at that time. [The mother] and I had an argument while she continued to take loads of her belongings to her car. I recall saying to [the mother] “You don’t have to do this, we can work this out” and I recall [the mother] saying to me “get fucked [the father] you are nothing but a cunt”, I attempted to stop [the mother] from leaving the house so that we could attempt to work through the problems and she bit me on the arm, to which I reacted by saying “if you don’t stop biting me I’ll put you through a machine you fucking mongrel dog.”
137. Although I accept that it is not an appropriate thing to say that I would put [the mother] in a machine, I say that this was purely a knee jerk reactions and an off the cuff comment reacting to [the mother] biting my arm so hard which resulted in bleeding and bruising. I regret saying that to [the mother] however I had no intention of actioning what I had said to [the mother], it was a direct reaction to [the mother] biting me on the arm.
It is rather telling that the father acknowledges only that it was not appropriate to threaten to put the mother in a machine. It appears he takes the view that calling the mother a “fucking mongrel dog” is appropriate.
When cross-examined about the threat the father admitted making a threat on the mother’s life by putting her through a machine but denied saying she would come out like mincemeat or that no one would find her. The father then said:
I would like to note I have never driven a machine or know even how to start a machine.
When asked why he threatened to put the mother through a machine the father gave various reasons as follows:
I was hurt and I was drunk.
…
She was collecting belongings that didn’t belong to her, and it upset me. She was – thought she can just come into the house and take whatever she wanted.
…
I was – emotionally, I was hurt, mate. I – I couldn’t imagine my life being without my children every day, and I didn’t handle the situation real well at the time.
…
It was because I was frightened I would never see my kids every day and how I was going to deal with it.
The father conceded that a person hearing the threat made by him would be scared but denied the mother would have been scared. He admitted standing in the doorway with his arm up against the wall and that the mother could not get past him. He described his arm being there as just a “convenience”. The father later suggested the mother “could have got through if she had chose (sic) to”. The father admitted yelling the threat to put the mother through the machine and in the same tone of voice calling the mother a “druggo”, an alcoholic and that - “you will never see the kids again.” The father described the threat having been made in the following circumstances:
What happened is I had my arm on the door, she has bit (sic) me, and while she was biting my arm I said, “If you don’t let me go, I will put you through a machine”.
Having initially said he did not recall his sister-in-law saying anything and suggesting that she was just quiet, the father later admitted that his sister-in-law had told him to “just let her go” which he took to mean let the mother leave. Having initially admitted that he said to the mother that she would never see the children again the father later denied saying that.
According to the father, his sister-in-law was present for at least part of the time on 19 December 2019 and crucially, at the time or shortly after the mother bit him. According to the mother, her sister-in-law was present outside the house when the father took the mother’s phone after leaning into the car, which is when the mother says she bit the father, and that her sister-in-law retrieved the phone from the father and returned it to the mother. Neither party called the sister-in-law nor explained her absence.
In relation to the incident on or about 19 December 2018 I make the following findings:
a)On or about 19 December 2018 the mother attended at the property to collect some belongings;
b)The father blocked the mother from leaving the premises by standing in the doorway with his arm extended;
c)The father threatened to put the mother through a machine;
d)The father yelled at the mother that she was a “druggo”, an alcoholic and that she would never see the children again;
e)The father called the mother a “mongrel dog”;
f)The father’s demeanour and threat caused the mother to be fearful;
g)The mother believed the father was capable of carrying out the threat;
h)At some point the mother bit the father on the arm;
i)The sister-in-law at some point told the father to let the mother go;
j)The threat to put the mother through a machine and the abusive remarks made to the mother involved acts of family violence perpetrated by the father;
k)The mother’s bite of the father’s arm involved an act of family violence perpetrated by the mother; and
l)The father sought to minimise the seriousness of his threat by suggesting variously that he did not intend to carry out the threat; he did not even know how to turn on a machine; he was upset; it was an off the cuff comment; it was purely a knee jerk reaction.

22 February 2019

On 22 February 2019, the mother attended the property in order to collect some of her personal belongings. She was in the company of her brother and police officers. The children were at the property with the father. The mother’s evidence in chief is as follows:
92. On 22 February 2019 I attended the property as arranged to collect my personal items with my brother and the police. When I arrived, the children ran out to greet me and I gave them a hug and a big kiss. [the father] then said to me a comment like, "I know the law, you can't be on my property". The police informed me something like, "This is now a civil matter, you will need to go to court". [the father] then walked past me very close and whispered to me, "I'll slit your throat for this". I was petrified by this comment, I did not want to leave the children but felt I had no other options. I got back in the moving van I had hired and said to Y something like, "Bye Y, Mummy loves you very much". I then heard [the father] say to Y something like, "Tell mummy to fuck off” and then [the father] stuck his middle finger up at me.
When cross-examined about this alleged incident, the mother initially denied that she was petrified when the father threatened to slit her throat. She described herself as being numb.
Q: … And you say you were “petrified”?
A: Is that what I said?
Q: Well I’m asking you. Were you petrified?
A: No … Not petrified. I was numb.
After it was pointed out to the mother that she claimed to have been petrified in her affidavit the mother said:
I was scared, yes. Petrified. I was scared.
On 25 March 2019, the mother provided a statement to police which included information about this particular incident. Her statement included the following:
34. On the 21st of February 2019 I went to get my things and we waited for the police. I attempted to get my things. [the father] wasn't there, but his parents were there with the kids.
35. I remember as we were moving things around the shipping container [the father] came home. He said something like, "Fuck off. Get off my property. Take me to court."
36. The police said it was a civil matter and nothing could be done. I started walking towards the kids to say goodbye. I had to walk past [the father] to get over to the kids. As I walked past [the father] he said quietly, "I'll slit your throat for this."
37. I immediately turned towards the police and said, "Did you hear that?"
38. The police told me they didn't hear it. They didn't seem too worried, so I didn't seem too worried. I don't think I was too fearful at the time as this behaviour was now getting normal.
The mother did not explain the apparent inconsistences in relation to both the impact of the father’s alleged threat on her or how it came about that he made the threat i.e. whether he walked close to her or whether she walked close to him to farewell the children, nor was she cross-examined about any reason for the apparent inconsistences.
The father denies threatening to slit the mother’s throat and denies that he approached the mother. He was not challenged when he said that the police were “right beside me”. The father denies saying to the child, Y, “Tell mummy to fuck off” but does admit to putting Y’s “rude finger up” and that his intent by that gesture was to tell the mother to “fuck off”. The child had just turned three years old at the time.
In the lead up to the mother attending the property on Friday, 22 February 2019 the mother and father and children had been at a circus together on the Wednesday prior. The father had agreed to the mother attending the property on Thursday 21 February 2019. The father also says that he agreed to the mother attending the property to collect her things but on the day after the circus outing he concedes he sent the mother the following text messages:
Don’t bother coming to get your shit. Don’t bother coming. Stay the fuck out of my life.
I thought we were making progress so we could get back together. Clearly you don’t think that’s best. In this case it’s no more Mr Nice Guy. If anyone comes on my property, I’ll bash them. You are a no-good fucking cunt. If you think you’re going to do what we’ve done for the last week with the kids you’re fucking dreaming of whatever hurts more. I know you had fun, enjoyed every bit. I’m going to fuck your life like you fucked mine. Before you know it, you’ll be back cutting yourself and I won’t be there to save you. I wish I let you bleed to death, then you wouldn’t be able to do this to me.
When cross-examined about these text messages the father sought to excuse his abuse. He said:
I was emotionally hurt at the time. I didn’t mean to hurt her – make her feel like that. That wasn’t my intention.
The father nevertheless conceded that a person receiving such messages would be somewhat threatened.
The mother contends that after receiving the text messages, the father then called her 200 times. The father denies calling 200 times but admits he called the mother “maybe 20 or 30 times”. The father said he could not understand why the mother would not answer her phone and talk about it. The father’s lack of insight is breathtaking.
The mother recorded two phone calls involving herself and the father on 21 February 2019. The first recording is only of the father and he informs the mother that her belongings are out in the rain and he variously calls the mother a “fucking idiot”, “cunt”, and “mongrel cunt”. The second recording subjected all those in the courtroom to an excruciating six minutes of the father screaming abuse at the mother in the vilest of terms. The purpose of the mother’s call was to speak to the children. The father made that impossible and screamed abuse at the mother including the following:
…
get used to it cunt. You got no say what goes on and you know what, I couldn’t give a fuck if I only got $20 for all the shit in the fucking donga.
…
… when I was first with you, you had nothink, you were a druggo that fucken slit your wrists and had nothink. An alcoholic to go fucking with it.
…
… you must be fucken dumb as dog shit.
…
You’re a fucking idiot.
…
you are a fucking idiot, you are dumber than dog shit.
…
you bring cops out here, around when my kids when they come around here, I’ll tell ya, you are no good ya cunt. You are getting better & better by the fucking minute cunt….
…
you are a fucking spastic, all your family are fucken retarded, re fucking tards.
you should have been knocked on the head at birth, you cunt.
I should have binned you 6 years ago, I should have left you bleed to death, you cunt.
I dead set, wish I left you bleed to fucking death now you cunt and that’s one thing I’m fucking certain of.
I wish when you cut yourself, I wish I would have left you bleed to fucking death.
…
you’re a no good fucking whore ya cunt. You root every cunt, you’re just a dirty slut like me old man said you were. I believe every word every cunt tells me. No good fucking slut, go sell yourself in a fucking brothel ya cunt. I’ll never come back to you, you cunt, I can fucking assure ya.
you’re a fucking whore ya cunt.
I am conscious that the father was unaware he was being recorded and that the parents were going through a separation at the time. I am also conscious that the father’s use of expletives is “cultural” and that during the relationship the mother also swore at the father, however the father’s tone of voice i.e. screaming, puts his language and abuse in a completely different context.
During her oral evidence when it was observed that the mother sounded very calm during the phone call, the mother explained:
I was used to the calls … It didn’t worry me over that much. I was getting hundreds of calls like that – hundreds – and it wasn’t until the following day when he said that he would slit my throat that I became more concerned.
…
Q: And so in the period from separation on or about 1st of December 2018, through until that phone call, do your best to tell us how many of those kinds of phone calls you had with the father?---Similar to that one?
Yes?---Maybe 80, 90.
80 to 90?---Some of them I recall I would answer – I couldn’t use my phone it was ringing that much – I would answer it and I would mute it so I couldn’t hear it and I would leave it on the phone. I would unmute it 20 minutes later and he would still be like that.
In relation to the incident that occurred on 22 February 2019 I make the following findings:
a)Having regard to the way in which the father abused the mother and threatened her in the lead up to her attending at the property on 22 February 2019 it is more likely than not that the father did whisper to the mother “I’ll slit your throat for this”;
b)I do not regard the inconsistencies in the mother’s account to be of such significance as to diminish the overall veracity of her evidence as to the alleged threat made to her;
c)The mother was used to being abused in the vilest of terms by the father;
d)As a consequence of such repeated abuse, the mother’s apparent calm response to the threats and in particular the threat to slit her throat was likely to be as a result of her developing a level of tolerance to being abused and threatened;
e)Despite the father’s evidence that the police were right beside him during the mother’s attendance at the property on 22 February 2019, I nevertheless find that he had the opportunity to whisper the alleged threat, whether it was when the mother walked past him or he walked past her;
f)The father demonstrates a complete lack of insight into the impact of his abuse and threats;
g)The father demonstrates a complete inability to regulate his behaviour;
h)I reject the father’s evidence that he was in the tractor away from the children when he abused the mother during the six minute phone call on 21 February 2019. While I cannot find that the children were definitely present at the time, I find that they were at the property and it is more likely than not that the father took no particular care to ensure that the children were not a witness to his abuse of the mother;
i)The father had no qualms about directly exposing the child, Y, to family violence on 22 February 2019 by using the child’s finger to convey the father’s insult to the mother i.e. to “fuck off”; and
j)The father’s threats and abuse of the mother both in texts, on the phone, and in person were acts of family violence.

24 March 2019

By early 2019, the father placed a restriction on the mother spending time with the children, namely, that it had to be in his or a member of his family’s presence. He objected to the mother driving the children to and from her home, work and the property including early in the morning and late in the evening. Thereafter the mother spent time with the children at the property and also at their kindergarten and swimming lessons. On one such visit the child, Y, became upset and clung to the mother. The mother contends that the father started screaming at her – “You are nothing but a druggo and an alcoholic who left her family and kids. Mummy is trying to take us to court to take you from me”. I accept her account as it is typical of the abuse he subjected the mother to at this time and his failure to protect the children from the dispute.
On 22 March 2019, the father relented and asked the mother if she wanted to have the children overnight. The mother says that she and the father arranged via text message for the stay to be extended so she would have the children until 24 March 2019. The mother admits that at the time of the agreement for the children to spend time with her she had no intention of returning the children to the father. She had recently obtained accommodation in E Town for herself and the children.
On 23 March 2019 the paternal grandmother was involved in a serious motor vehicle accident and the father wanted to children to visit her at the hospital. The father’s calls to the mother went unanswered. The mother was working on 23 and 24 March 2019. The children were being cared for by the maternal grandmother.
On 24 March 2019, the mother says that by 8.30am the father had already called her 13 times and when she finally spoke to him the father “went off” because the maternal grandmother was looking after the children while she was at work. The mother told the father to “fuck off” and after returning home at 9.00am she took the children to a “safer location” because she anticipated that the father would be driving around looking for her and she had already decided that she would not be returning the children. The mother contends that at about 12.30pm (during her cross-examination she says it was about lunchtime), a mutual friend of the mother and father, Ms B, phoned the mother and, according to the mother, said that the father “has been here, he said he has paid a hitman $24,000 to kill you. Get out of town”. In the mother’s statement to police provided on 25 March 2019, the mother says that Ms B telephoned her at about 12.30pm on 24 March 2019 and said she “had received a phone call from [the father] that day and [the father] said that he had paid someone $24,000 to end it all” and that the father “was driving around E Town looking for [her]”. The mother says that she honestly believed that the father had the means to act on his threat and she immediately fled the town. She reported the threat to police the following day and with their assistance relocated to a refuge in Brisbane.

During cross-examination, the mother said that Ms B told her:
That [the father] has inquired to have someone kill you, that he has found out it – it costs around $24,000. He’s going off. He’s driving around town looking for you. He has got people looking for you. You – you need to go. Don’t even go back home.
The mother denied that her versions of what she was told by Ms B were inconsistent i.e. that the father had paid someone $24,000 to end it all / the father had inquired to have someone kill her for $24,000.
In a statement provided to police by Ms B dated 20 February 2020 she said the following:
4. On 24^th March 2019, I received a phone call from [the father]. He told me that he was going to arrange to have the [mother] killed. He said he had looked into it and it was going to cost him $24,000. I told him he was being silly. He was upset because the [mother] had not dropped the children off to him. He then came to work at the stables where I was working and told me the same thing.
5. I rang the [mother] and told her what the [father] had said. I told her that she needed to be careful. …
6. I spoke to Police later that day in relation to what had happened. …
When cross-examined,[16] Ms B said she had spoken to the father initially by phone on 24 March 2019 at about 1.30pm and subsequently in person when he came to her place of work at about 2.00 or 2.30pm. She said she called the mother once or twice after the father had been to her place of work. She said the father told her he had “looked into it and it was going to cost $24,000 to end it”. As he said this, Ms B said he used his hand to simulate cutting his throat. She said the father was angry and was driving around the town looking for the mother.
[16] Ms B participated in the trial by video link after being subpoenaed by the ICL.
Ms B said she accompanied the mother to Brisbane in mid-2018 when the mother had an abortion. This information came as a complete shock to the father and his family. Ms B was not challenged by the mother on this evidence.
The father denies threatening to kill the mother or saying anything to Ms B along the lines suggested by her. While he admits he called Ms B on 24 March 2019, he contends that the alleged threat is a concoction by the mother and Ms B.
During the period 26 May 2019 and 30 October 2019, the father ignored Ms B’s repeated requests that he cease contacting her. In a number of the father’s text messages to Ms B he refers to her alleged attempts to kill herself; accuses her and her husband, Mr B, of “stitching him up”; refers to the mother as “fucking scum” and a “slut”. In Ms B’s statement to police referred to above she also says:
7. On 6^th August 2019, the [father] sent me a screenshot of a page from an affidavit by the [mother]. It mentioned in there the information I had provided police about the [father] arranging to kill the [mother].
8. He then sent me a series of messages asking me to contact him, but I refused as I want no further contact from the [father].
…
15. On the 21^st December 2019, I was at a Christmas function at the E Town Sports Club. … At about 10.30pm, … the [father] and his brother, Mr K Thomes, approached me.
16. They stood near me in a way that had me cornered. The [father] then yelled at me, “Why did you call the police on my parents?”
17. I said, “Because I told you a thousand times I want you to leave me alone.”
18. He then started verbally abusing me, calling me a ‘grub cunt’. He said, “It was okay for you when my parents tried to help you when you tried to kill yourself.”
19. I went to walk away while he was saying this. I said to him, “You’re the reason why everything has gotten to this.”
20. … I saw security approach the [father] and his brother and removed them from the club.
…
22. When I left …
23. The [father] was still outside near the entrance.
…
25. I said to the [father], “You’ll never get to see your kids again because of the way you act.”
…
27. I heard the [father] yell out, “You’ll never get into the ambos by the time I’m finished with you.”
The father gave a different version of his encounter with Ms B at the Christmas party but concedes calling her a “dog” and a “grub cunt” and making the threat “You will never get into the ambos by the time I’m finished with you.” The father also concedes that in saying what he did to Ms B on 21 December 2019 he was in breach of an injunction made against him by a Judge of the Federal Circuit Court on 4 November 2019 restraining him from contacting or communicating with Ms B.
In relation to the incident on 24 March 2019 I make the following findings:
a)On 24 March 2019 the father became angry with the mother and called her numerous times prior to her finishing work at about 9.00am;
b)The father was trying to locate the mother;
c)The father called Ms B and said, among other things, words to the effect that he had “looked into it and it was going to cost $24,000 to end it”;
d)The father repeated the threat when he visited Ms B at her place of work and added the gesture indicating cutting his throat;
e)It was reasonable for Ms B to interpret the father’s words and gesture as a threat on the mother’s life;
f)The fact that Ms B and the mother’s evidence about the precise words used and the time of the phone call to the mother differ to some extent can be explained by the fallibility of memory;
g)It was reasonable for the mother to believe that the father was going to have her killed, particularly in the circumstances where two previous threats to kill her had been made and the father’s history of family violence;
h)Mr and Ms B were mutual friends of the father and mother, and no reason has been established for them to make up the information they provided to police about the threat and/or their concerns for the mother’s safety;
i)The mother had led the father to believe she had suffered a miscarriage when she went to Brisbane in mid-2018 with Ms B. The preparedness of Ms B to divulge that the mother had in fact had an abortion (a disclosure against the mother’s interest), lends weight, in my view, to the likely veracity of her other evidence;
j)The mother and Ms B did not concoct the threat;
k)Prior to the threat made on this day it was not the intention of the mother to leave E Town. She had just obtained accommodation. Her mother lived in E Town. She had no prior connection to Brisbane and would not have moved to Brisbane at that time but for the threat made by the father. The mother literally fled E Town; and
l)The father’s threat was an act of family violence.

Conclusion about whether the father poses an unacceptable risk of harm to the children based on his threats to kill the mother

I have found that the father has made three threats to kill the mother. Whether or not the father actually intended to carry out the threats does not diminish the impact of having made the threats on the mother and indirectly upon the children.
Ms L, the family report writer, opined:
346. If [the mother’s] reports are true, [the father] is potentially capable of extremely serious violence which places [the mother] at a high level of risk.
Ms L’s opinion is shared by police (High Risk Team) who assessed the mother at “high risk of serious harm or lethality”. In Ms L’s assessment, the children have already been exposed to “the high level of conflict between the parents as evidenced by X’s report about the father yelling and the profanities he uses. The children have been present when the police have been involved due to this high conflict”. Ms L also noted that both parents disclosed volatile arguments during the relationship.
As a direct result of the threat made on 24 March 2019, the mother upended the children’s lives and moved to Brisbane which she would not have done but for the father’s threats. Also as a direct result of the father’s threats, the children have been deprived of a meaningful relationship with the father and his parents. As the mother said during her evidence - “had I not received that phone call from Ms B that day, we would still be there today”.
The cumulative impact of the threats upon the mother has been quite serious. The mother informed the Court that prior to giving oral evidence she had taken medication (the mother could not recall the name of the medication) prescribed by her treating psychiatrist for the treatment of Post-Traumatic Stress Disorder. The mother is also taking Zoloft (an antidepressant) and Valium.
While no evidence was provided by the mother’s treating psychiatrist, the parties were assessed by a psychiatrist, Dr M. The mother attended an interview with Dr M on 7 November 2019. The information provided by the mother caused Dr M to opine that the mother suffered from, among other things, panic attacks. The relevant part of his report is as follows:
When I enquired if she suffered from anxiety, “I didn’t think I did.” “I guess I read stuff in the report.” “When I was in court on Monday, I thought I was going to pass out,” but she has never suffered a panic attack. “I was extremely stressed by going back to E Town, I'm scared he will follow me.” At that time she experienced palpitations and shortness of breath, as well as a dry mouth, “and I was shaking that much it was embarrassing.” “But it's only when in court or driving to E Town.” “I thought I was having a heart attack.” (Comment: this in fact would be characterised as a panic attack in my view). She denied any previous similar experiences and denied any generalized anxiety.
As to the mother’s general mental health, while Dr M did not diagnose any major mental illness he did opine:
… it certainly appears that she had what would be described as an atypical depressive illness with an increased need for sleep consistent with major depressive disorder. … she was not presenting with any symptoms or signs of an ongoing Major Mood Disorder. I do note that she appears to have possibly attracted a previous diagnosis of Bipolar Affective Disorder, although I would tend to discount such a diagnosis given the history provided, and it would be more in keeping with her substances abuse at the time, as well as possible underlying personality vulnerabilities although atypical depression can be a feature of BPAD and it is difficult to exclude fully.
I also note that the mother is exhibiting features of an anxiety disorder with panic features which appears to be precipitated by the belief that the father was seeking to murder her. This could alternatively be characterised as Post Traumatic Stress Disorder. I note she remains on appropriate medication albeit at a moderate dose only …
…
With respect to her personality, her past abuse of illicit substances to regulate her affect, as well as past suicidal and parasuicidal behaviours, may suggest personality vulnerabilities in the borderline range, although it would not be my view on the history provided by the mother, that she was presenting with features of a personality disorder per se. She also did describe some cluster C personality traits in the obsessive-compulsive realm.
I accept Dr M’s assessment and opinions.
It is argued on the father’s behalf that even if the Court finds the father made the threats as alleged by the mother and Ms B the following matters must be taken into account:
a)There is no evidence he has made any threat since 24 March 2019;
b)He has not attended at the children’s school despite knowing since November 2019 where the child, X was attending;
c)He has not attempted to engage with the school or the mother (although I note the father has been dealt with for four breaches of the protection order and there are two outstanding alleged breaches from March 2020);
d)He has not attempted to follow the mother from E Town when she brings the children to the contact centre;
e)It would not have been hard for the father to find out where the mother lives if he were so minded;
f)There is no evidence the father has ever physically harmed the mother; and
g)There is no evidence he has stalked her.
It is further submitted on behalf of the father that the Court should not be “overly pernickety” about one phone call (referring to the six minute recording on 21 February 2019) and that while a court could find the father represents a risk because of past threats, the risk is not unacceptable when taking into account the above matters.
This case is not about one phone call. The history of the father’s uncontrolled outbursts have been witnessed by not just the mother but also police who have described the father as hostile, argumentative, intimidating and volatile. Ms L also describes the father’s outbursts at the family report interviews and even the contact centre employees have been subjected to the father’s abusive language and behaviour.
Ms L opines – “the children need to be protected both from the direct impact of their father’s behaviour and attitudes as well as from concern as to his potential to harm the mother.” In her addendum report dated 4 August 2020, Ms L opines that her “concerns for the children have significantly increased” (as a result of listening to the recordings of the father). It is Ms L’s opinion that the father presents a “significant risk to the children’s emotional development” and that his “coercive and controlling behaviour has significant implications for his parental functioning and his attitude to co-parenting with the mother.” In her view, the mother’s capacity to care for the children would be impaired if the children were to spend unsupervised time with the father. I accept Ms L’s opinions.
In my view, it is not necessary to find that there is unacceptable risk of carrying out his threats to kill the mother, although that is certainly a risk. In my view, the history of abuse and threats set out above portends a future risk of harm to the children which is unacceptable. The nature of the risk is exposure to family violence and emotional and psychological harm from being exposed to such threats and abuse and the impact of the threats and abuse upon the mother. The risk is exacerbated by the father’s lack of insight into the impact of his behaviour upon not only the mother but also the children and other people. More will be said about this latter aspect later in these reasons.

If the father poses an unacceptable risk of harm to the children, can that risk be ameliorated by supervision?

The purpose of supervision is to enable the children to benefit from an ongoing relationship with the father while being protected from behaviour that may harm them e.g. being exposed to the dispute or denigration of the mother or creating expectations about something that may never occur.
However, the father has not refrained from objectionable behaviour even under supervision at the contact centre. By way of example, during supervised visits the following has occurred:
a)On 11 September 2019, the father was asked by the family support worker not to make promises to the children about matters that had not been resolved e.g. going to live back on the property. The father responded by saying he was not going to lie to his children;
b)Also during this visit, the father repeatedly questioned staff about what would happen if the mother did not arrive to collect the children. He was adamant that the mother would be arrested that day and the children may have to go home with him. The father was advised to focus on the visit with his children;
c)On 13 November 2019, the paternal grandmother repeatedly reminded the father not to make remarks directed at the mother in front of the children;
d)On 20 November 2019, the father appeared unhappy when he arrived and told staff he had been “stitched up”. During the time spent with the children the following is noted to have occurred:
i)The father repeatedly said to the child, Y – “Who’s the best, daddy’s the best”;
ii)The family support worker redirected the father’s conversation when he made repeated derogatory comments about the mother. Although the father did not use the mother’s name, it was obvious to staff the father was referring to the mother and, when challenged, the father responded that the children did not know who he was talking about;
iii)On one occasion the father asked the child, Y, who had hung up during his last phone call with him and the child said it was the mother. The child, X immediately interrupted and said “no she didn’t. Y did”. The father responded by saying “I know who did”;
iv)The father also repeatedly made promises to the children about what he would be doing with the children e.g. daddy’s going to take you swimming, daddy is going to take you to the movies;
v)When the family support worker suggested hats and sunscreen while outside the child X immediately said that Y could not have sunscreen because he was allergic to it. The father said he did not believe that and – “She wouldn’t know if he was allergic, she wouldn’t be bothered to put sunscreen on him”. The father proceeded to put sunscreen on the child. After the family support worker confirmed with the mother that the child was allergic, the child’s face was washed by the family support worker. The father wanted it noted that the mother had not advised him of any allergy;
vi)The father whispered to X that he had enrolled her in school at Highfields and that she would be going to school with her cousins and living with the father and that the mother would not let the paternal grandmother come to the visits and instructed her not to tell the mother;
vii)The father told the children – “don’t worry you will be going home soon”;
viii)The father said to X – “Have a good time at your prep orientation tomorrow”. The father conceded during cross-examination that he had said this to the child in the hope that the mother would relent and send the child to the school in E Town;
e)On 12 December 2019, during conversation with the children the father was advised that it was inappropriate to discuss with X where she would be going to school as X had no control over these matters. The father said he did not think it was confusing to X and that she wanted to be with her cousins. The father complained about his lack of involvement in the decision making. He continued to complain about the mother and said she was a “fucking pig”. The father was asked to stop but he continued to talk over the family support worker. He was told that no staff member would engage in any conversation of such a disrespectful manner;
f)On 8 January 2020, the father gave the children some presents and said he was concerned that the mother would give them away and said to the child, Y, that he “pinkie promised” that he could come out to the property soon;
g)On 15 January 2020, the father told the children not to let anybody take the toys he had given them and promised the children that they would be with the father soon;
h)On 22 January 2020, Y was very rough and physically aggressive in his play with the father e.g. jumping on him and hitting, punching and pinching the father. The father allowed this behaviour and with the family support worker intervened and asked the child to stop this type of behaviour, the father did not support the request and allowed the child to continue his rough play and encouraged it;
i)On 18 June 2020, the father told the children that they would be able to ride motor bikes at his property and in five weeks they would be able to come to his property. He instructed the children that if the mother hung up the phone during his conversations with them to get the mother to call him back and also instructed the children not to let the mother throw away the food he gave them.

The father was repeatedly reminded of his obligations when spending time with the children. The reminders fell on ‘deaf ears’.
I accept the mother’s evidence that X was upset by the father’s references to her cousins and the school.
The father has also demonstrated an inability to regulate his behaviour towards contact centre staff. By way of additional examples:
a)On 30 October 2019, during a telephone conversation with a staff member at the contact centre:
… [the father] spoke with a raised voice, in an aggressive tone, continually swore and made derogatory comments about the mother and the court process. Ms N found this language offensive and disrespectful. Ms N asked father not to yell at her, father said that he was not yelling, he was just making sure that she understood what he was saying. Ms N reinforced to father that he needed to immediately stop yelling at her and she could hear and understand clearly what father was saying. At different points in the conversation the father was ‘ranting’ (yelling/swearing) and it was difficult for Ms N to be part of the conversation as father frequently spoke over the top of her.
b)On 5 November 2019 during another telephone conversation with a staff member at the contact centre:
[the father] spoke with a raised voice and aggressive tone. Father often swore and made derogatory comments about the mother and court process. Ms N asked father not to yell at her, father said that he was not yelling, he was talking loudly due to the wind, Ms N confirmed she was not having any trouble hearing the father and he said that he would turn his phone volume down. Ms N asked the father to stop swearing, father said staff could just document that he was angry. The father continued to 'rant' and staff reinforced staff were not able to assist him will all of his complaints and staff could not involve herself in these disputes. Ms N advised father that she would get further advice regarding the current court orders and she would confirm arrangements regarding the visit tomorrow with the father.
Ms L prepared two family reports in this matter having conducted interviews on 9 September 2019 for the first report, and on 24 June 2020 and a further video interview with the father on 1 July 2020 for the second family report.
After the release of the first family report, in which Ms L had quite properly made recommendations dependent upon what findings were made by the court but including a regime of supervision, the father sent a text message to Ms L in which he said:
How could you do this to my poor kids. System is absolute disgrace and a joke.
A short time after this text message Ms L had a missed call from the father. An accusation of the type mentioned in the text message is another demonstration of the father’s complete lack of insight and persistent failure to recognise that it is his own behaviour that had resulted in him not being able to have a relationship with his children.
During the interview with the father on 1 July 2020, Ms L reports the following:
106. As [the father’s] speech was disjointed, animated, loud and aggressive during his interview, the report writer asked him to reflect about his presentation. [The father] angrily responded - I am filthy and angry with the system.
…
236. When [the father] was being shown to the elevator, he immediately changed his demeanour and began to badger the report writer to organise negotiations with [the mother]. … [The father] would not cease his barrage of angry comments about how much he is paying the report writer and the cost of his legal fees etc. The report writer told [the father] that it was not appropriate to engage in mediation with [the mother] as she had not had her interview and he was not presenting in an appropriate manner. …
Ms L provided an addendum to her reports after listening to the recordings which were tendered during the trial. In her addendum, Ms L opines:
8. The report writer has over 30 years of experience in the area of child protection dealing with violent aggressive clients. That the report writer had difficulty managing [the father’s] behaviour in the office reflects the intensity of his behaviour and his limited self control. It should be noted that his outburst was moderate in comparison to his behaviour in the audio recordings.
…
10. [The father] has demonstrated he is unable to contain himself even when under the scrutiny of the Court process. The audio recordings are an indication of what [the father] is like when he does not have any limitations on his behaviour.
…
19. [The father’s] behaviours are more than angry. His comments are vicious and threatening. It is assessed that there are real concerns as to his potential reaction if he does not get what he wants from the Court. His lack of insight and his skewed perception of the current situation is evidenced by his inability to consider the impact of his behaviour. Instead he deflects and attributes blame to [the mother] and others.
I accept Ms L’s opinions.
In his dealings with police, the father has also been assessed as volatile and hostile and police officers have warned other police officers to approach the father with caution.
I conclude that the risk to the children cannot be ameliorated by supervision.

Are the paternal grandparents suitable persons to be supervisors?

I accept the difficulty presented by these proceedings for the paternal grandparents and their understandable loyalty to their son. I also accept that they were horrified by the content of the 21 February 2019 recording played during the proceedings.
They nevertheless present as apologists for the father. By way of example, the paternal grandfather sought to play down the seriousness of the father’s threat to put the mother through a machine by repeating the father’s comment that the father did not even know how to turn on the machine. The paternal grandfather even sought to excuse the father’s six minute abusive tirade on 21 February 2019 because the mother had deprived the father of a relationship with the children. The mother did not of course take the children until 24 March 2019. The maternal grandmother deflected questions about her observations of the father losing control even suggesting that the only reason he yells is because he is around machinery. I also note that during the supervised visit on 13 November 2019 the paternal grandmother had to make repeated requests to the father that he refrain from denigrating the mother. It seems that even when the paternal grandmother sought to place limits on the father’s behaviour he ignored her.
I further note that on the day of the father’s outbursts towards Ms L the paternal grandparents were present and at no stage did they intervene. I accept her evidence. The paternal grandparent’s denial that they had observed the father behaving badly is troubling. Either they are being untruthful or they are so desensitised to his behaviour they did not notice it.
In circumstances where even professional supervisors and someone with Ms L’s skills and experience cannot contain the father, I have no confidence that the paternal grandparents could do so, nor should they be put in that position.

Is a continued relationship between the children and both parents likely to expose the children to family violence?

For the reasons already discussed I find that a continued relationship between the children and the father would be likely to expose the children to family violence.

Does the father and/or the mother pose an unacceptable risk of harm to the children by reason of their inability to regulate their behaviour including by any alcohol and/or illicit drug misuse?

In relation to the father, I have already found that the father is unable to regulate his behaviour even under court scrutiny and, as such, he presents an unacceptable risk of harm to the children. The risk of harm to the children from the father is independent of any misuse by him of alcohol or illicit substances, neither of which were a feature in this case.
The mother has a significant history of alcohol abuse predating the commencement of her relationship with the father. She appears to have eventually become motivated to address her alcohol abuse and for at least a significant part of the relationship with the father her alcohol consumption was not an issue.
However, in 2018 it is apparent that the mother resumed her abuse of alcohol. Her intake of alcohol over many months was significant (the mother admitted consuming at least eight to ten ‘stubbies’ (375 millilitres per ‘stubbie’) of beer many nights each week) and it is concerning that the mother sought to minimise the seriousness of it, particularly in light of her history. However, I take into account the abusive nature of the relationship between the parents at the time and the fact that the mother tried to leave the relationship on more than one occasion. The father responded to the mother’s attempts to leave the relationship with threats of suicide. On one such occasion, the father sent the mother a photograph of a rope. I reject entirely the father’s ridiculous attempt to suggest that the photograph of the rope was not intended to convey to the mother the seriousness of his suicide threat.
The evidence does not establish that the mother’s misuse of alcohol continued after she left the father on 1 December 2018. For example, it is common ground that the mother had a good reputation as a worker prior to leaving E Town and as already noted the mother worked in a variety of occupations in the E Town region including babysitting and providing fairy parties for children.
In addition, during the period 1 December 2018 to February 2019, the children were shared between the father and the mother. The father makes no complaint about the mother’s drinking during this period and the father’s first notification to the Department was not made until April 2019 after his contact with the mother had ceased.
The mother has been driving to E Town from Brisbane weekly since June 2019 (save for the period late March 2020 to June 2020 when Covid-19 pandemic restrictions impacted on the availability of the contact centre) and there is no suggestion by the father or the contact centre that the mother has been under the influence of alcohol.
Accordingly, while I find that the mother did abuse alcohol frequently in 2018, I do not find that she thereby presents an ongoing risk of harm to the children. Allegations relating to illicit drug use by the mother was not a feature in this case.
While the mother may be well advised to refrain from consuming any alcohol given her propensity to misuse it, there is no current evidence that her parenting capacity is affected by alcohol abuse. I also note the mother’s evidence that she has obtained assistance from a psychiatrist and a psychologist since moving to Brisbane and the preparedness of the mother to seek help is a factor mitigating against risk.

Is the father able to protect the children from exposure to his alleged denigration of the mother and/or conversations in the presence of the children that are not age appropriate?

For the reasons outlined above and, in particular, the father’s repeated denigration of the mother during supervised time with the children and his refusal to follow direction during such time, I find that the father has a present inability to protect the children from exposure to his denigration of the mother and from conversations in their presence that are not age appropriate.
Another example of the father’s failure to appreciate the inappropriateness of his comments in front of the children is evident from the recording of his telephone conversation with the children on 14 July 2020. During that call, he repeatedly created expectations that things would be changing in a couple of weeks and repeatedly stated that he knew why the child, Y, was upset, namely, because he missed the father. He also repeatedly asked the child, X, why she did not like the school she was attending and suggested he would “fix that up”. When the child, Y, became more and more upset and said he wanted to have a bath the father did nothing to appease the child but asked him why he had not already had his bath. The undertone of criticism of the mother is very apparent. Even after the recording was played in court the father could not see that he had said anything at all inappropriate during the call.
Mr P’s observations and opinion about this recording, which I accept, include the following:
12. Of concern is that these audio recordings indicate that [the father] is unable to listen to his children and he lacks an appreciation of their emotional needs. His comments reflect a focus on himself and his needs. His comments to them are not responsive to their needs and instead reflect his beliefs - his interpretation is that they are missing him and that [the mother] is not facilitating his calls with the children. When Y is stating that he wants to have a bath, [the father’s] response is to question why he has not had a bath.
13. The father attempts to entice Y by promising that he will make his wishes come true. While speaking over X who is attempting to speak to her father, X then says three times that she wishes Y was dead. … X then attempts to end the call and [the father] maintains that she has to speak to him for half an hour.

Has the mother maliciously concocted allegations against the father of making threats to kill her?

I have already made a finding that the mother did not concoct the allegations against the father of making threats to kill her for the reasons set out above.

If the father does not pose an unacceptable risk of harm to the children, can the mother promote a relationship between the children and the father if the children live with her?

As I have found that the father does pose an unacceptable risk of harm, this question is somewhat academic but the fact that the mother proposes that the father have an ongoing relationship with the children, albeit under supervision, persuades me that, despite the father’s appalling conduct, the mother would facilitate a relationship between the father and the children if required. I come to this conclusion not only because of the order she proposes in this case but also because of her past conduct. When the mother left the property in December 2018 she continued to facilitate the children spending time with the father. It was not until the threat made on 24 March 2019 that the mother fled with the children. The mother’s response to that threat was completely understandable given the father’s previous threats and abusive behaviour towards the mother including in front of the children.

Should the mother be required to return to live in E Town?

The mother did not want to leave E Town. Her life was in the E Town area. X was enrolled in school in E Town. The mother had employment and friends and family in E Town. Friends of the mother’s such as Ms B no longer have anything to do with her because of the father’s intimidation. I accept the mother’s evidence that but for the father’s threat she would not have moved to Brisbane.
Now that she has lived in Brisbane for over a year she has settled and has employment, friends and a life in Brisbane. There is no basis to order the mother to return to E Town.

What are advantages/disadvantages of an order for the paternal grandparents to spend time with the children?

It is common ground that the children have a close relationship with the paternal grandparents, particularly the paternal grandmother. Indeed, the children had a close relationship with the entire paternal family prior to 24 March 2019. The mother accepts that the paternal grandparents love and care for the children and that the children would benefit from an ongoing relationship with them. The mother spoke warmly of the paternal grandmother and welcomed her input in assisting X with her homework, which has been occurring over the telephone this year. The mother said she would be happy for the paternal grandmother to call three or four times a week because the child, X, “loves doing [her homework] with nanny”.
If the children were to spend time with the paternal grandparents in the absence of the father, the mother does not suggest that the children would be at risk of harm from them. Her concern relates to their capacity to protect the children if the father turned up during the time the children were spending time with them. The mother believes they would be physically incapable of preventing the father removing the children. The paternal grandmother still suffers from the effects of the serious car accident she was involved in last year and the paternal grandfather has some physical incapacities which required the mother having to help him put his shoes on when she lived at the property.
There is also the risk of exposure to the paternal grandparent’s views i.e. they are apologists for the father and really do not consider that restrictions on him spending time with the children are justified. They view the mother as the one at fault and that she is responsible for the restrictions imposed on the father’s time with the children. They are seemingly blind to the impact of the father’s abusive behaviour. They failed to intervene at Ms L’s rooms when the father was behaving badly, leaving Ms L to respond alone.

What is the likely impact on the children and their relationship with the Father of a long term supervision order?

I have already found that the unacceptable risk of harm posed by the father to the children cannot be ameliorated with supervision but, in any event, the father sees no benefit in the children spending time with him on a long term supervised basis. If the Court finds he poses an unacceptable risk of harm he proposes that there be an order for no time.

What is the likely impact on the children if an order is made that they spend no time with the father?

The father’s time with the children has been observed over a considerable period by professional supervisors and on two occasions by Ms L. Overwhelmingly, the interactions between the father and the children are positive. The mother describes the children being upset when the children’s time with the father was cancelled on occasion. I have no doubt the children will grieve the loss of their father but this must be balanced against the need to protect them.

conclusion – what parenting order is proper?

It is common ground that the children should continue to live with the mother (although the father proposes a shared arrangement in the future).
It is also common ground that the mother should have sole parental responsibility. In any event, the history of family violence means that the presumption in favour of equal shared parental responsibility does not apply and having regard to the history of this matter I am satisfied that it is in the children’s best interests for the mother to have sole parental responsibility. Given my findings, I do not propose to require the mother to consult the father as sought by him nor do I propose to adopt the ICL’s recommendation that the mother inform the father of any significant illness or injury suffered by the children, but rather I will impose a requirement upon the mother to inform the paternal grandparents. I am satisfied that they will pass on any such information to the father.
It is a very grave step to prevent children from having a relationship with a parent but, in the circumstances of this case, having found that the father poses an unacceptable risk of harm to the children which cannot be ameliorated by supervision I propose to make an order that the father spend no time with the children. Even if I am wrong about whether the risk can be ameliorated by supervision, the father has rejected the prospect of spending time with the children if it is supervised.
Whether there is any prospect of the father being able to spend unsupervised time with the children in the future is entirely in the father’s hands. While the order I propose to make is final, no parenting order is truly final in the sense that if a party can establish a significant change in circumstances that would warrant change, a court may consider the matter further.

In order to satisfy a court that there has been a significant change in circumstances I would expect that the father would need to establish that he had successfully undertaken probably a minimum of two years intensive therapy with a skilled psychologist in the area of men’s behavioural change, anger management, and the impact of his behaviour on the children. An essential feature for any successful change would be a need for the father to firstly acknowledge his problematic behaviour.
The father has attended upon a psychologist, Dr P, on eight occasions spanning April 2019 to May 2020. The focus was very much on supporting the father through the court process and his understandable distress at not spending significant time with the children. Unfortunately, while making a few concessions to Dr P, the father very much presented himself as the victim in the whole process. At one point the father said to Dr P – “It makes me sick – honestly – how I could have kids with someone like that who’s doing what they’re doing now”. Dr P noted that the father “routinely uses expletives when expressing his frustrations, but against his cultural background I do not consider that aggressive or inappropriate”. While I accept that to be the case for Dr P, what is a problem for the father is that he does not have the capacity, willingness, or insight to temper his behaviour and language when people to whom he is engaging do find his swearing and aggression intimidating or offensive e.g. the staff at the contact centre, police officers and Ms L.
Dr P spent very little time with the father addressing the topic of anger management. He relied entirely on what he was told by the father. Dr P was provided with a copy of the family reports and the recordings tendered into evidence only shortly prior to being cross-examined. Dr P conceded that if the material he had been provided with contained truthful accounts, the father would certainly appear to be lacking insight and has a “skewed perception” of his own behaviour. He also said he would have concerns about the father spending unsupervised time with the children. Dr P opined that the success of any future therapy e.g. anger management, would be dependent upon the father recognising the need for change.
In this context, I note the father’s comment to Ms L that while he had commenced a Men’s Behaviour Change Program he was “unable to make a connection with why he is attending the program.”
Both the mother and the ICL propose that the father be enjoined from contacting or attending within 250 metres of her home, place of work, or ‘places she is known to attend’. The latter phrase is too vague, in my view, and would be difficult to enforce, but otherwise the injunctions will be granted. Given the history of the father posting derogatory comments about the mother on social media, he will also be enjoined from engaging in such activity (although I note the existing domestic violence protection order places similar conditions on the father but only until 2024).
Having regard to the father’s persistent attempts to contact Ms B in the face of repeated requests to be left alone, I propose to accede to the request of the mother and the ICL to enjoin the father from communicating with her or coming within 250 metres of her home and place of work.
The mother does not oppose the father being at liberty to send a gift and card to the children on special occasions. The place to which such gifts and cards may be posted will be the maternal grandmother’s home. The mother will be at liberty to vet the gifts and cards to ensure that they are appropriate to be handed on to the children. I do not otherwise propose to make an order permitting the father to communicate with the children. The history of telephone calls has been problematic for not only the parents but also the children. The children are often reluctant to engage in the call and the father has demonstrated an inability to remain child focussed during the calls as evidenced by the recorded call on 14 July 2020. The father has taken the opportunity to make veiled criticisms of the mother during such calls and I accept the mother’s evidence that the children have at times become upset as a result of the calls.
While it would be desirable for the children to spend unsupervised time with the paternal grandparents, I have no confidence that they would be able to remove the father if he turned up during their time with the children. The father has no insight and sees himself as the victim. He has no ability to regulate his behaviour and even those with experience in dealing with difficult people have been unable to manage the father. The combination of these factors make the prospect of unsupervised time for the paternal grandparents an unacceptable risk of harm for the children.
I am nevertheless satisfied that the paternal grandparents should be at liberty to spend time with the children if supervised. While it would be preferable for their time with the children to be flexible and be able to occur away from a contact centre, that could only occur if they were restrained from informing the father where they would be spending time with the children. My impression was that the paternal grandparents would do whatever was required of them to be able to maintain their relationship with the children. Monthly time would be appropriate as proposed by the mother and the ICL but I see no reason to restrict it to two or four hours if the paternal grandparents are willing to pay for more time. I am conscious that the paternal grandmother was reticent to travel from E Town but, given the findings I have made, I consider it too great an impost on the mother to require her to travel to E Town given its close proximity to where the father lives.
The paternal grandparents should be at liberty to bring the children’s cousins and other family members to the supervised visits but only with the mother’s and the supervisor’s prior written consent. With the mother’s consent, the paternal grandparents should also be able to attend the children’s school for significant events which grandparents might be expected to attend and extra-curricular activities, provided they refrain from informing the father of the location.
In summary, I have found that the father made threats to kill the mother. The father has a history of family violence and has no capacity to regulate his behaviour. The father poses an unacceptable risk of harm to the children that cannot be ameliorated by supervision. The children will continue to live with the mother and she will have sole parental responsibility. The children will spend no time with the father but will spend monthly supervised time with the paternal grandparents.

I certify that the preceding one-hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Carew delivered on 21 September 2020.

Associate:

Date: 21.09.2020

[2020] FamCA 808

21 September 2020

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Family Law

Equity & Trusts

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Injunction

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