Tenney and Stiles
[2019] FCCA 2194
•30 July 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| TENNEY & STILES | [2019] FCCA 2194 |
| Catchwords: FAMILY LAW – Parenting – Father seeking an order that a child aged 7 live with him – where the child has always lived with her mother and has siblings in that household – where the father was violent to the mother during and after their relationship – where the mother has since had two problematic relationships which have exposed the child to risk of harm – where the father of mother’s youngest child was in jail at time of hearing but was about to be released – where that father has an extensive criminal record and has been using ice – where there is considerable doubt about whether the mother will be able to end that relationship even if willing to do so – where if that relationship ends there is a high risk of the mother re-partnering with another unsatisfactory individual – where the father has not done a perpetrator’s course but has indicated a willingness to do so – where the court is faced with an unpalatable choice but where the safest option for the child at present is to live with her father. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65DAA |
| Applicant: | MR TENNEY |
| Respondent: | MS STILES |
| File Number: | NCC 3546 of 2017 |
| Judgment of: | Judge Terry |
| Hearing dates: | 4, 19 & 20 June 2019 |
| Date of Last Submission: | 20 June 2019 |
| Delivered at: | Newcastle |
| Delivered on: | 30 July 2019 |
REPRESENTATION
| Counsel for the Applicant: | Mr Levick |
| Solicitors for the Applicant: | Boyd Olsen Lawyers |
| Counsel for the Respondent: | Ms Carty |
| Solicitors for the Respondent: | Koulouris & Associates Pty Ltd |
ORDERS
All prior parenting orders in relation to the child [X] born … 2011 (“[X]”) (“the child”) are discharged.
The parents shall have equal shared responsibility for the child.
The mother is restrained and an injunction granted restraining her from allowing [X] to be brought into contact with, or communicate with in any way with, Mr A and Mr B or either of them and is further restrained from causing or permitting any other person to allow [X] to be brought into contact with, or communicate with Mr A and Mr B or either of them.
[X] shall live with the father.
Unless otherwise agreed in writing, [X] shall spend time with the mother as follows:
(a)During the school term from after school Thursday or 3.30pm until return to school or 9.00am Monday each alternate weekend commencing 9 August 2019 and thereafter commencing on the first Thursday of each school term.
(b)During the school term each alternate week from after school or 3.30pm on Wednesday until the conclusion of Hobby, or 7.00pm if [X] stops attending hobby class commencing on Wednesday 7 August 2019 or thereafter commencing on the second Wednesday of each school term.
(c)If not already in the mother's care pursuant to these Orders, on Mother's Day from 9.00am until 6.00pm;
(d)During the school holiday periods being Terms 1, 2, 3 school holidays:
i.For the second half of such holidays commencing from 9.00am on the second Saturday and concluding at 9.00am on the Saturday immediately preceding the first day of the new school term.
(e)During the Term 4 school holidays:
i.In even numbered years:
1.From 3.00pm on 24 December until 3.00pm on 25 December;
2.From 3.00pm 26 December until 9.00am 2 January;
3.From 3.00pm 9 January until 16 January;
4.From 3.00pm 23 January until 4.00pm on the immediately;
preceding Sunday before the first day of the new school term.
ii.In odd numbered years:
5.From 3.00pm 25 December until 9.00am on 1 January;
6.From 3.00pm 8 January until 9.00am on 8 January;
7.From 3.00pm 15 January until 9.00am 22 January.
Easter
Unless otherwise agreed by the parties in writing, orders 4 and 5 above are suspended over the Easter period defined as commencing at 3.30pm Maundy Thursday and concluding at 7.30pm on Easter Monday and the child will spend time with the parents during the Easter period as follows:
(a)With the father
ii.In even numbered years from the conclusion of school or 3.00pm on Maundy Thursday to 9.00am on Easter Sunday;
iii.In odd numbered years from 9.00am Easter Sunday until 7.30pm Easter Monday.
(b)With the mother:
i.In even numbered years from 9.00am Easter Sunday until 7.30pm Easter Monday;
ii.In odd numbered years from the conclusion of school or 3.30pm on Maundy Thursday to 9.00am on Easter Sunday.
Implementation of the mother's time
For the purposes of implementing the time spent by the child with the mother under these orders, the parties shall respectively ensure the child's:
(a)Collection from school whenever the child's residence or expenditure of time with a party is to commence at or about the conclusion of school during school term;
(b)Return to school whenever the child's residence or expenditure of time with a party is to conclude at or about the commencement of school during school term; and otherwise.
(c)Collection from hobby classes while the child continues to attend hobby classes when the mother’s time with the child ends at the conclusion of hobby classes.
(d)The McDonalds Restaurant at Town J, NSW.
Both parties are to immediately upon the making of these orders, provide to the other their residential address, their mobile telephone numbers and notify the other of a change in those details within 24 hours of such change taking place.
Each parent will telephone the other immediately upon the happening of any of the following:
(a)The child becoming seriously ill;
(b)The child becoming hospitalised; or
(c)The child being involved in an accident.
Each parent provide such requisite consents and/or authorities required by the school attended by the child:
(a)To enable each parent to receive reports, school photographs or any other notices relating to the child; and
(b)To permit both parents to attend the school or school of the child for the purpose of attending special events involving the child and/or to speak to the teachers of the child concerning their school performance at all reasonable times subject to the direction of the principal of the subject school.
Each party will:
(a)Notify the other parent in writing beforehand of any scheduled non-emergency medical, psychological or dental appointment; and
(b)Keep the other parent informed in writing of any treatment plan or prescribed medication administered or recommended as a result of such appointment;
Each party is restrained from denigrating the other party, or permitting any other person from doing so in the presence or hearing of either of the children.
Each party shall sign a passport application for the child if requested to do so by the other parent, with the party requesting to pay the costs of the passport application.
If a passport application is not signed by the other parent within 21 days of being requested, the party requesting the issue of the passport can apply to the Australian Passports Office for a passport to issue for the child without the consent or otherwise of the other parent.
Any passport that issues for the child shall be held by the father.
Each party may travel outside the Commonwealth of Australia with the child provided that:
(a)The travel occurs during school holidays.
(b)At least 42 days’ notice is given to the other parent of the intention to travel, destinations, addresses where the child shall be staying and proposed dates of departure and return.
(c)At least 28 days prior to the intended travel, copies of airline or ship tickets are provided to the other parent.
For the purposes of facilitating the international travel by the child when they are in the mother's care the father make available for collection by the mother the child's passport at least 21 days prior to the date the child and the mother are to depart from Australia.
Within 48 hours of the child returning to Australia following international travel with the mother the mother is to return the child's passports to the father.
THE COURT NOTES THAT:
The child shall commence living with the father at the conclusion of school on 31 July 2019.
The father has enrolled in the Facing Up men’s behaviour change program.
IT IS NOTED that publication of this judgment under the pseudonym Tenney & Stiles is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3546 of 2017
| MR TENNEY |
Applicant
And
| MS STILES |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This is a parenting dispute about [X] who is seven and who is living with her mother. Her father proposes a change of residence; her mother proposes that the child continue to live with her.
Both parents propose that the child spends four nights a fortnight (from Thursday to Monday) and half of the school holidays with the parent she does not live with.
In his amended application the father proposed that the child also spend four hours a week one afternoon in the off-week with the mother although he did not specify on which day that should happen.
The father proposed that [X] spend five nights a fortnight with him if she continued to live with her mother but the outcome he strongly advocated for during final submissions was a change of residence.
Both parties sought an order for sole parental responsibility.
Some cases I hear are relatively easy to decide and I can come to a decision that I am comfortable with. This case however is difficult and causes me anguish because there is no good outcome for [X].
There is a very high risk that no matter order I make, due to the behaviour and attitudes of her parents this sweet seven year old child will grow up to be either an unpleasant abusive adult, an adult who enters into relationships in which she is abused, or both.
The evidence
Evidence was given in the father’s case by the father and his partner Ms C and in the mother’s case by the mother and the maternal grandmother Ms D.
A family report was prepared by Mr E, a Regulation 7 family consultant.
All of the witnesses were cross-examined.
There are credit concerns about the mother, the father and Ms C.
The father gave minimal evidence about the family violence incidents in which he was undoubtedly a participant and in particular gave very limited evidence, in fact virtually none in his affidavit, about the incident which led to him being charged with assault.
The father said that he had a close relationship with his current partner and that may be true but he did not reveal that they had a significant separation of quite a few months which based on the text message evidence was acrimonious.
The father said in his affidavit that he had no issue with [X] identifying as Aboriginal but he sent the mother a text message which began:
She ain’t no coon just like you ain’t no white.
Ms C failed to reveal the separation in her affidavit either and she also failed to reveal her own criminal record. In the context of this case it is for minor offences but it was clearly relevant.
The mother minimised the difficulties in her relationship with Mr A and there was a particularly obvious conflict between her evidence about a particular incident and the information about it in the subpoena material.
The father alleged in his affidavit that [X] told him about an occasion when she had to hide in the bathroom because of Mr A coming to the home.[1] The mother referred to this allegation in her affidavit and said that Mr A had never chased her around the yard and the children had never hidden in the bathroom. However the COPS event for 23 June 2016 gives very clear information about an occasion when the mother and children hid in the bathroom.
[1] Mother’s affidavit paragraph 54
There were credit issues with both parties and indeed I cannot be 100% satisfied that any of the significant people in this matter have always told me the truth.
Background
The father is 34 and the mother 32. They commenced a relationship in 2006 when they were 22 and 20 respectively and it was common ground that they separated, in terms of ending their de facto relationship, either in December 2013 or January 2014.
There was some debate during the hearing about when the parties separated in terms of ending any emotional or sexual relationship. The father said that a sexual relationship continued for over 12 months. The mother did not concede this but there is no doubt that there were times during that 12 months when the parties had a civil and supportive relationship and when the mother was at the father’s home.
I am going to call December 2013/January 2014 the date of separation because even if the parties had an intermittent sexual relationship after that the mother was also in an on/off relationship with Mr A and the parties agreed that they did not live together after early 2014.
The parties have one child, [X], born on … 2011. [X] has lived with the mother since the parties separated.
The mother has an older child, J, who was born on … 2005.
J was a baby when the relationship commenced and he lived with the parties throughout their relationship. He was eight when the parties separated and at that time he believed that the father was his father.
The father blurted out during an argument with the mother after separation that he was not J’s father. He was asked about this during cross-examination and an unattractive aspect of the father was that he expressed no concern about the impact this would have had on J. When he was asked about it he simply said that he was forced to be a father to J and by that answer implied that he had done nothing wrong or insensitive in abruptly revealing the truth to the child. He has completely severed his ties with J. He has spent no time with him since the parties separated.
In … 2014 the mother commenced a relationship with Mr A and they have a child K born in … 2016. The relationship ceased in November 2017 but the extent to which they cohabited or were even in a continuous relationship prior to that is unclear.
The mother said that the relationship was on and off and that she and Mr A would separate for months at a time. Mr A did not give evidence and I have no means of determining that issue.
The relationship did end though in November 2017 and either in mid-2018 (according to the mother) or April 2018 (according to the father) the mother commenced a relationship with Mr B.
The extent to which Mr B lived in the mother’s home is also unclear but it appears that he was living there in November 2018 when an order was made restraining the mother from allowing [X] to spend time with him because he went to jail immediately that order was made and the mother said that this was because he was no longer able to live in her home.
Mr B was still in jail when I heard the matter in June 2019; he was due for release in ….
The mother and Mr B have a daughter L, born in … 2019.
The father commenced a relationship with Ms C in … 2016 and they are still together. They have no children together but Ms C has two children from a previous relationship.
This matter is replete with allegations of family violence.
The mother alleged that the father was violent to her during the relationship. She also alleged that he seriously assaulted her in either late 2014 or January 2015 and although the father did not concede the details of this assault there is no doubt that he was charged with and convicted of either assault or assault occasioning actual bodily harm. The exact charge was not clarified during the evidence and I am going to call it a conviction for assault. An ADVO was also made at this time for the mother’s protection.
The mother alleged that there were other assaults or acts of intimidation after separation and gave evidence about an incident in November 2016 which involved the father behaving in a violent and intimidating manner. She also made allegations about the father using abusive and intimidating language.
I will have to make findings about the extent to which the father was violent to the mother but there is no doubt that he was.
Notwithstanding this, the mother largely facilitated [X] spending time with him after separation save for a period between November 2016 when she made a complaint to police about an incident at changeover and February 2017 when time resumed following mediation.
The father commenced court proceedings in November 2017. He alleged that Mr A was being violent to the mother and he sought an order that [X] live with him. The mother opposed that application. She denied that any physical violence was occurring in her relationship with Mr A although she conceded verbal arguments.
The father’s application was filed in the Family Court and a Child and Parents Intake Assessment (CAPIA) was prepared and in December 2017 interim orders were made for [X] to live with the mother, for the mother to have sole parental responsibility and for [X] to spend time with the father as she was then doing. An order was also made restraining the mother from bringing the child into contact with Mr A.
The mother’s relationship with Mr A ended after the father commenced proceedings and from the information in the CAPIA it looks as if the only dispute between the parties after that was whether [X] would spend an extra night with the father.
Sometime between April and August 2018 the mother commenced a relationship with Mr B. He has a very extensive criminal history and a history of using drugs including methamphetamine (ice).
The father had some knowledge of this and said that when he found out that the mother’s new relationship he contacted Mr B and that Mr B told him that he had changed. In his affidavit the father said that he had made mistakes himself and was willing to accept that people could change and he therefore took no immediate action as a result of the mother forming a relationship with Mr B.
However the father said (and I accept this given the history of Mr B’s convictions and drug use), that in October 2018 he received information that Mr B was using ice and on 16 October 2018 he became aware through a newspaper article that there had been a home invasion at the mother’s home.
The mother and Mr B were present in the home as was [X] and perhaps K and J when three people armed with a sawn off shotgun forced their way into the home at midnight, stole cash and jewellery and decamped.
Until then the father had been considering settling the matter on the basis that [X] continued to live with the mother as long as he got the extra night but on 19 October 2018 as a result of this development he filed an application for a change of residence.
I heard that application. I did not immediately order a change of residence but I made an order restraining the mother from bringing the child into contact with Mr B.
At trial the mother’s counsel said the mother had complied with that order. That is not entirely correct. Mr B almost immediately went to jail so there was no opportunity for the mother not to comply with it. Mr B was off the scene and in prison.
After this a family report was ordered and it was released in March 2019. The family report writer recommended that [X] live with the father. The matter did not settle and it was listed for trial and I heard it in June.
The mother’s relationships
This matter is factually complex and in order to make a decision I must make some findings about what has occurred in each of the three relationships the mother has been in since the age of 20.
The father
The first one was with the father. The mother said she and the father frequently argued and would often say nasty things to each other but she said that the father would become physically violent.
She alleged that the first assault occurred within six months of them starting to see each other. She described incidents which involved the father punching her in the head, grabbing her hair and smashing her head into a surface, pinning her against a wall and putting his hands around her throat.
She said that he would punch walls, kick furniture and spit on her and that he punched and choked her on one occasion in 2013 after she argued with his mother and that he once stomped on her head. She said that the father started using steroids in about 2012 and that his temper then became worse and he became very verbally aggressive and would punch walls and kick furniture.
The mother admitted that she would argue back but said that the arguments would usually end with her being hit, punched or spat on.
The mother said she did not report any of this behaviour to the police but she said that she would sometimes break up with the father and then go back. She also said that the police were called on a number of occasions by neighbours. That may be true but my attention was not directed to any COPS events which confirm this and no charges were laid against the father prior to separation.
After the parties separated they continued an association of sorts. The mother did not allege that there was any family violence during 2014 except for the incident which lead to the father being charged and I am not 100% cent sure of the date of that incident. It may have happened in late December 2014, it may have been in January 2015.
The mother said that this incident began with an argument at the father’s house. She said that he slammed her head into a wooden toy box. She escaped and got into the car and the father punched her in the head through the car window.
The mother was injured and went to the hospital. She initially lied about what had happened but the truth came out, the police were contacted and the father was charged. He was ultimately convicted of assault and an ADVO was made.
I am extremely concerned about the evidence the father gave about this incident. In his affidavit he referred to the fact that he was arrested and charged with assault and subsequently convicted. He said that he regretted the incident which occurred but made no admissions about having committed any assault.
He told the family report writer that he punched the mother once but he did not even say that in his affidavit. I am concerned about his lack of acceptance of responsibility for his behaviour and I will come back to that later.
The next violent incident, which involved property damage and intimidation, occurred on 15 November 2016.
The father was angry because the mother had not come as quickly as he wanted to pick [X] up. He sent her a text message calling her a cunt. When the mother turned up he was extremely angry. He banged on the window of her car. During the hearing there was a dispute about whether it was with his fist or the heel of his hand but it does not really matter.
The mother was frightened and attempted to drive off. She said that as she did the father jumped on the bonnet of her car and grabbed her windscreen wipers. The father said that the mother reversed and tried to run him over and that he ended up on the bonnet of her car.
I suspect that the father ending up on the car probably was due to the mother driving off rapidly rather than the father trying to jump on the car but the father bashed on the window in extreme anger frightening and intimidating the mother and it was a serious act of family violence.
The mother went to the police. The parties gave conflicting versions of what happened and the police did not charge the father. An interim ADVO was made for the mother’s protection. The father defended the application for a final ADVO and it was dismissed but that does not detract from the father’s culpability for what happened on 15 November 2016.
The mother did not allege that any violence of that kind had occurred since November 2016 but she did allege that the father had been verbally abusive to her.
She alleged that in February 2018 he yelled at her and repeatedly called her a junkie slut and accused her of “being on ice with Mr F” as well as yelling other abuse.[2]
[2] Mother’s affidavit paragraph 98
The mother went straight to the police and made a report. Once again an interim ADVO was made but nothing came of that.
I am going to refer now to one other allegation that was made but it is one I cannot make findings about and I am going to refer to it and put it to one side.
In the mother’s affidavit she alleged that in 2013 the father kicked her in the chest during an argument. She said that she was vomiting and passed out. She dragged herself up and called an ambulance. She was taken to hospital. She was found to have a broken rib and she told the hospital that it was the result of an accident and that she had tripped and fallen over the coffee table. The mother said that she told a lie and that it was the father who injured her.
During the trial the mother said that this incident occurred in April or May 2015, not 2013, and this was because the hospital records confirmed that this was when she went to hospital and was found to have a broken rib.
I cannot find on the balance of probabilities that the father injured the mother in 2015.
In January 2015 or thereabouts when the father assaulted the mother by bashing her head into a coffee table and punching her in the head she went straight to the police. In November 2016 when the incident happened with the car she went straight to the police. In February 2018 when the father verbally abused her at the school she went straight to the police. This was a period when the mother was going to the police. She was also repeatedly calling the police about Mr A but we will come to that in a moment. She did not however go to the police on this occasion and I cannot rule out the very real possibility that this injury was indeed the result of an accident.
However I need to make some findings about the family violence otherwise.
The father could not possibly deny that he assaulted the mother in January 2015. He was convicted of assault, and in the face of him failing to give any evidence at all in his affidavit about exactly what happened I am satisfied that the mother’s evidence should be accepted. I accept her evidence about her head being banged onto something and being punched in the head.
I also accept the mother’s evidence about what happened in November 2016 as far as the bashing on the window and the intimidating behaviour is concerned. I accept her evidence that she was called a junkie slut and other unpleasant names in February 2018. I consider it extremely unlikely that simply because the father came along and said something innocuous to her the mother would have rushed off to the police station and reported him.
On the balance of probabilities I also accept that the father perpetrated family violence against the mother during the parties’ relationship. It is most unlikely that the extreme physical violence to the mother in January 2015 came out of nowhere and that there was no background to it. I consider it more likely than not that the mother’s evidence about what she endured during the relationship is largely credible.
I am not comfortable about making findings about specific incidents because the mother was unreliable about the 2013 incident and some of the incidents happened a long time ago and I cannot necessarily be 100 % per cent certain about detail. However I am satisfied on the balance of probabilities that the father perpetrated physical violence and damaged property during the parties’ relationship.
There are a couple of other indications that this is likely to be the case. For one thing the father referred to not liking the person he became during the relationship.
The father alleged the mother was verbally abusive to him during the relationship. He also alleged, and I think this was in conversation with the family report writer, that there was an occasion when she scratched his face and hit him over the head with a bottle.
The father was not always a witness of credit and in any event I cannot rule out that things like scratches might have been due to the mother defending herself. I am not prepared to make a finding about the bottle allegation as the allegation only appeared in the family report.
On the mother’s own admission she was verbally abusive to the father during the relationship just as he was verbally abusive to her. I cannot find on the state of the evidence that this constituted family violence but there is no doubt that the mother was a participant in the volatile relationship between her and the father prior to separation.
The severity of that and the possible impact of that on [X] cannot be overstated because the father said that the parties had verbal arguments every few days. I am also satisfied there was some physical violence and property damage. [X] would have been in the home when incidents occurred after her birth. The parties have clearly exposed [X] to violent and destructive behaviour during their relationship.
In summary in relation to the father my findings are that:
i)On the balance of probabilities it is likely that during the relationship he was violent to the mother including physically violent.
ii)There were serious incidents of family violence in January 2015 and November 2016. I am also satisfied that the father was verbally abusive to the mother at the school calling her a junkie slut and other names.
It is often said that if people are not willing to fully accept responsibility for their actions then there is a limited prospect of them changing and the father made very limited admissions about his perpetration of family violence and I do not accept some of his denials. He also made a number of excuses for his behaviour which always causes me unease. His counsel’s submissions in particular were peppered with excuses, for example that the father was frustrated or that his behaviour was the result of the mother doing something.
The father’s description of the November 2016 incident in his affidavit suggests that somehow the mother was at fault for being late and upsetting him.
iii)The father did not show any insight in his affidavit or in conversation with the family report writer into how extremely frightening the November 2016 incident must have been for the mother and he is dismissive of the mother’s experience of family violence. An email he sent her not long before the trial included the words “don’t play the victim card”.
He has no insight at all into the impact on the mother of being exposed to family violence and he also shows little respect for her.
iv)The father has not done a perpetrator’s course. When I raised this with him while he was being cross-examined his counsel leapt to his feet and vigorously protested that the father had done such a course. However the document which was tendered at the end of the trial clearly stated on its face that the course the father had done was not, and “not” was underlined, a men’s behaviour change program.
The father has done a course and I will refer to that later but he has not done a perpetrator’s course and in relation to the course he did do the only thing he said in his affidavit he had learned from it was the importance of communication with the mother. There is no evidence that he learned anything about the impact of his behaviour on another adult, the impact of his behaviour on children or even anything about such things as triggers which might cause him to react in that way.
I accept the mother is genuinely frightened of the father’s anger. She is not always frightened to approach him and there have been periods when they have spoken peaceably, but when a person knows that another person is capable of inflicting injury or yelling vile verbal abuse during an argument, it makes them very cautious about disagreeing with that person. It is not the foundation for a good relationship and I accept the mother feels intimidated by the father.
Mr A
The mother’s next partner, and she went almost immediately from one partner to the other, was Mr A.
The father said that the mother told him that Mr A was abusive to her and that she kept going to the police and had obtained an ADVO. He said that she told him that Mr A had punched her in the mouth and showed him an injury.
The father said the mother also played him a voice message left by Mr A saying, “I hate you, slut. I’m going to kill you. I’m fucking coming for you, bitch” and things of that nature.
The father said that [X] disclosed to him that Mr A had been violent and said that Mr A had chased the mother around the yard and that the family hid in the bathroom when Mr A was trying to get into the house. He said that [X] was worried about the mother and K because of Mr A’s behaviour.
The mother made very limited admissions about what had happened with Mr A. She said that the relationship was on and off and agreed that he was verbally abusive but she denied that he had physically abused her or the children or damaged possessions.
There are problems with that. The mother denied there had been an incident when the family hid in the bathroom and the police records show otherwise. Also Mr A did damage property on one occasion when he slammed a door open and damaged a doorjamb.
There is also a troubling entry in the FACS records. The mother was asked whether Mr A had been violent to her. She said:
Is this going to be reported?
It was explained to her the FACS was a mandatory reporter and she then denied that any violence had occurred.
The mother has credit issues and I do not accept her denials that Mr A was ever violent to her. I consider it highly likely that she is minimising what occurred with Mr A.
However even if I were to accept the mother’s evidence that there was no physical violence, there is no doubt that throughout her association with him there were frequent verbal arguments and frequent police call-outs. They are referred to in the tender material.
In January 2015 there was a verbal argument and the mother was distressed and called the police. When the police arrived she would not elaborate on any details and the police went away. Two days later, on 6 January 2015, there was another argument. Mr A slammed the door open. Police attended on that occasion and spoke to the mother about this and other incidents. Police applied for a non-urgent ADVO and it was made and was in place for the next 12 months.
It does not appear that much happened while that was in place but on 29 February 2016 the mother called the police at 3.20 am because of an issue with Mr A.
On 23 June 2016 the police were called again. There was an allegation that there had been a heated argument. This was the occasion when the mother is reported by police to have locked herself in the bathroom with the children. When the police arrived the mother did not want to report much. She said that she had just called the police to make Mr A go away.
In November 2016, around the time of the incident with the father, Mr A went to the police. He told them that he and the mother had recently stopped using ice. He said that there had been a verbal altercation. Police did not do anything about that.
In February 2017 the mother called the police. When police attended she alleged that Mr A was drug affected and had taken the mother’s phone but had returned it prior to the police arriving. The mother made light of what had happened and the police left the scene.
At the very least, the mother’s relationship with Mr A involved behaviour by Mr A which exposed [X] to debilitating arguments and to the police attending her home.
[X] was very clear when she spoke to both the family consultant at the CAPIA and to the family report writer that she did not like Mr A. At the CAPIA she said that she was a little afraid of him but she would not be drawn on why.
Part of the reason I have difficulty accepting the mother’s denials that Mr A was ever violent to her is that there is clear evidence that he was violent to a previous partner. In March 2012 Mr A’s partner reported to police that he had called her a “slut” and a “whore” and said that he was going to bury her. It was reported that he said that she was a “fat cunt”, started to hit her with a pillow and grabbed her head and punched her in the eye and that she bit his hand.
Mr A was arrested and charged with and convicted of assault.
In March 2012 Mr A was arrested for mid-range DUI. He has another DUI conviction as well.
Mr A has priors for offences of domestic violence. There were numerous police call-outs during the relationship. The mother was not a witness of credit. [X] was certainly exposed to some very aggressive behaviour by Mr A and I do not accept the mother’s denial that there was physical violence. The father said that the mother told him at the time that there was and that [X] told him that there was. On the balance of probabilities, although I cannot make any findings about exactly what occurred, I am satisfied there was some physical violence as well as very unsettled and threatening behaviour in that relationship.
Mr B
In 2018 the mother commenced a relationship with Mr B who has an extremely lengthy criminal record. He was born on … 1992 and his first conviction was in 2006 when he was about 14 years old. He has had endless convictions since then, right up to almost the current time.
Mr B has convictions for common assault; enter enclosed lands; goods in custody; unlawful use of a motor vehicle; aggravated break and enter; commit a serious offence in custody; destroy and damage property; shoplifting; offences committed on trains; stealing a motor vehicle; negligent driving; unlicensed driving; being in a stolen motor vehicle; damaging property by fire; break, enter and steal; custody of an offensive implement; driving offences and car theft; being in possession of stolen goods; further break and enter; further damaging property by fire; driving disqualified and further driving offences; possessing a prohibited drug; numerous occasions when he was arrested for breach of bail or charged with breach of bail; stalk intimidate; possessing a prohibited weapon; being involved in a police pursuit where he did not stop; possessing housebreaking implements; and again of being in possession of prohibited drugs.
Mr B has been to jail on a number of occasions and on a number of occasions he has been referred to the Drug Court after he has been charged on the basis that his offences were committed in connection with drug use.
On … 2015 he was stopped and caught by the police and found to be in the possession of ice. On … 2016 he was again stopped and found to be in possession of ice.
Cannabis has been found on him and there are some COPS events which reveal some quite serious issues in relation to his former partner.
Mr B separated from this partner, with whom he has a child, not that long ago and this partner has made reports to the police about his behaviour.
In … 2016 Mr B had an argument with his partner after she told him he needed to stop taking ice. She later reported to police that he had entered the home while she was away and poured bleach-like substances over her clothes. She said that she did not want the police to do anything and that she was mainly concerned about Mr B’s welfare.
On … 2017, three or four months after he had been released from another jail sentence, Mr B had an argument with his partner and the dog was growling. He picked up an axe and threatened to kill the dog in the presence of the mother and his child.
Mr B’s partner was concerned about his mental health. She called the police and said that she wanted him helped and he was taken to the G Hospital.
On … 2017 his partner reported that Mr B was in front of her home and had taken a knife out of his pocket and threatened to throw it.
On … 2017 Mr B failed to appear in court.
On … 2017 his partner contacted police and said that he was threatening self-harm saying that he feared he would be going back to jail. Police looked everywhere for him but could not find him.
On … 2018 his partner reported to the police that Mr B was still harassing her but police said that she was very reluctant to report anything further to the police.
A couple of months after that or at least some time later in 2018 Mr B commenced a relationship with the mother.
The extent to which Mr B lived in the mother’s home is unclear to me but he was living there prior to this court making an order in October 2018 restraining him from being in [X]’s presence and when that order was made he almost immediately went back to jail.
Mr B is a person of considerable concern. It is not just that he has had prior complaints made against him in relation to violence toward a domestic partner. He has led a totally lawless life for something like the last 13 years and has been endlessly in court and in trouble with the police. He has been using ice since at least 2015 and perhaps earlier and he has served many terms of imprisonment.
Whether he has been violent to the mother or not, he is a totally unsatisfactory person to have around a little girl, or any children for that matter. He is a potentially dangerous man. He acted out violently to his previous partner on a number of occasions and on one occasion it was allegedly over her not letting him see the child.
The mother said that there had been no violence in her relationship with Mr B but in one of the play therapy records [X] is reported as saying that she was worried for her mother when she had to go to school or was not there because she thought that the mother and Mr B might fight.
Given Mr B’s history and his drug use, I am very concerned about [X] having made that comment and I cannot discount the possibility that the mother is less in control of Mr B’s behaviour than she would have me believe.
The other incident of huge concern is the home invasion.
Given Mr B’s criminal history, his history of drug use and the kind of people he must inevitably have been associating with, it is difficult to believe that he and the mother were just random victims of somebody who wanted to steal something.
It is much more likely that the kind of lifestyle that Mr B has engaged in over the last 13 years and his drug use attracted the home invasion. That is extremely concerning because people entered the home with sawn-off shotguns. The mother, Mr B and any children in the home could have been seriously injured or even killed.
The mother told the family report writer in March 2019 that she intended to resume her relationship with Mr B when he got out of jail and that was one of the reasons why the family report writer recommended that [X] live with her father.
At trial the mother seemed to realise that taking that position was likely to be detrimental to her case and she proposed an order that Mr B not live in the house when [X] was there. She also told the court that she was not going to continue her relationship with Mr B when he was released from jail.
However during cross-examination the following exchange occurred:
Are you intending to continue the relationship?
Realistically, it can’t continue. There’s an injunction in place and I have to end the relationship.
Are you going to continue seeing Mr B?
I don’t know.
Are you still attached to him?
Yes.
The mother said that she could see on paper that a lot of things had happened in Mr B’s life and commented:
He can’t really be in my life if I have [X] in my life.
However the mother admitted that she had been speaking to Mr B every second day on the telephone. She admitted that she had not told him that the relationship was over and she made certain apologies for him. She stressed that he had done a domestic violence course while he was in jail and said:
He should be able to do the courses. He should be able to see his child eventually. I’m going to speak to him as long as he’s back on the right track.
During final submissions the mother’s counsel asked me to find that [X] would be perfectly safe if she continued to live with the mother because I could make an order that Mr B stay away and I could depend on the mother to comply with it and therefore there would be no risk to [X] if she continued to live primarily with the mother.
That was the case forcefully put to me by the mother’s counsel.
I am satisfied however that there is a considerable risk that the mother will not keep Mr B away because she is still attached to him. She does not really see the necessity for it and she wants him to have a relationship with his child L.
I am concerned that she may not be able to keep him away. Mr B is a lawless individual: he repeatedly commits crimes and he repeatedly does not turn up in court in answer to bail and warrants have to be issued for his arrest. There is nothing to suggest that if the mother says to Mr B, “You have to stay away,” that Mr B is going to do so.
And finally even if the mother is successful in keeping Mr B away and he is now completely out of her life, the mother has been in a series of relationships since she was 20 years old which have involved either family violence, the police being repeatedly called to the home or her being in a relationship with a completely lawless individual. There is an extremely high risk that if she ends her relationship with Mr B the next man in her life will be another one just the same.
Violence in the family
As I was going through the material preparing this judgment I also had to ask myself, “What is going on in this entire family on both sides?” because I have described the allegations of violence in relation to the father, Mr A and Mr B but there are also other allegations in the material.
The father alleged that the mother’s brother, Mr F, was behind an incident where a car was rammed into the car parked in his carport while Ms C was in the house.
Mr F and another brother or stepbrother of the mother have extensive criminal records for drug and property offences. I cannot rule out the possibility that they might have been behind that incident although I cannot be sure about it either.
The father claimed that the mother made a fist at the paternal grandmother and called her vile names. There was also an allegation of a violent incident between family members at a hobby event in Melbourne not that long ago.
The mother alleged the paternal grandmother punched her three times in the back of the head on one occasion.
So I have to ask myself after all of this, “What on earth is going on in these two families?” However I have made findings about the relationships which are critically important to what I have to decide.
[X]’s best interests
Any orders I make about [X] must be orders determined by treating her best interests as the paramount consideration and the matters I have to take into account in order to determine her best interests are contained in s.60CC(2) and (3) of the Family Law Act 1975.
There are additional and primary considerations and I am going to start with the additional considerations in s.60CC (3).
I am going to make it easy by taking out a few which do not really help me: child support was not raised as an issue; practical difficulty and expense is not an issue in this case; there is nothing about the child’s maturity, sex and background that is relevant; she has some medical needs but I will refer to that in the parenting capacity section; and making a separate finding about the parties’ attitude to the child and the responsibilities of parenthood is not going to help me.
The first thing I have to consider is the child’s views and the weight to be given to those views.
During the CAPIA in 2017, [X] told the family consultant that she was content living with her mother. She said that she did not want to live with her father because she would miss her mother too much but her responses revealed that she had a good relationship with her father.
In 2019 [X] told the family report writer that she wanted to live in an equal time arrangement. She said that this was because she missed each parent when she was with the other one. Interestingly, despite the case the mother ran at trial which strongly emphasised the father’s perpetration of family violence, the mother also told the family report writer that [X] wanted equal time and did not seem particularly fazed about that.
I cannot place any weight on the view [X] expressed to the family report writer given her age and what she has experienced in her life. I cannot be sure about the extent to which it is her true view.
There is evidence in the material, and particularly in the play therapy notes, that [X] is quite worried about her mother. There is a mention of her being worried about going to school and leaving her mother on her own.
In the play therapy notes, and it shows what [X] has been exposed to in the mother’s care and why it is so concerning, she is reported as saying:
Sometimes I get frightened.
In response the therapist said:
Do you want to talk about that?
[X] said:
I get afraid when mum runs down the hallway outside my room.
[X] also refers to being told by someone at the school that there had been a report in the paper about masked men entering her home. [X] confidently says she did not think they had been in her home because the mother told her there had been an incident with neighbours.
It is troubling that a child of [X]’s age feels the need to be protective of her mother and is worried about leaving the mother on her own. As a result of this and as a result of other things in the case, I cannot place weight on [X]’s views although I probably would not be able to give them much weight anyway because of her age.
I must consider the nature of the relationship of the child with each of her parents and any other person.
The father said that [X] had a close relationship with him and was enthusiastic about spending time with him. That is confirmed by her comments to the family report writer, the observations at the family report interviews and the comments she has made during the play therapy sessions.
The play therapy notes record [X] as saying:
We went to the beach for a little holiday on the weekend. I don’t like boys but I love Dad and J and Dad is my best friend.
There is no doubt that [X] has a good relationship with her father and the mother did not seek to run any different case.
I am also satisfied that the father loves and cares for [X]. I commented during the hearing that the only time I saw him smile was when I was looking at a photo of [X] and mentioned what a lovely little girl she was.
The father said that [X] had a good relationship with K and L, his partner’s children, and the mother made no complaint about those relationships.
There is also no doubt that she has a good relationship with the father’s partner. She made very positive comments about her to the family report writer and the report writer also said as follows:
When I asked [X] what it was like living with her mother, she replied by saying, “okay, I don’t usually talk to her”. When I asked [X] why she replied by saying, “I usually talk to Ms C (the father’s partner), I’m more comfortable with her”. [X] also indicated that she talks to her father, but often when Ms C is not around. [3]
[3] Family Report paragraph 94
[X] also has a good relationship with her mother. She loves her, she is happy to be with her and the family report interview observations in that regard were very positive.
My only concern there is that there are signs emerging of [X] feeling a need to take care of her mother. It is potentially very damaging for a child if they feel they have to look after their parent because of the way other adults are behaving to that parent.
[X] has three siblings in the mother’s home and there is nothing to suggest they are not very important to her.
I must have regard to the extent to which each parent has sought to spend time with the child, communicate with the child and make decisions about the child.
The father has always been interested in his daughter. The mother has been her primary carer so she has clearly been interested in her as well but the father has always wanted to spend time with her.
He has also always wanted to be involved in decision-making and he has been very concerned about the issues she has had with her bowels and with constipation. He sought to be involved with her doctor, as did the mother, and he has sought to be involved with her school and has made some effort to attend school events.
The next relevant consideration is the likely effect of a change in the child’s circumstances.
The father proposed that the child live with him which would be a significant change. He said that it would mean that she was less at risk of being exposed to unsatisfactory partners of the mother and less at risk of being exposed to another event like the home invasion or to the mother being assaulted. He also said that there would be an emotional benefit to her in that she would not feel the constant need to be caretaking her mother.
I will have to make a finding at the end of the judgment about whether I accept that those benefits outweigh the benefit to the child of continuing to live with her mother and her siblings.
In relation to parenting capacity, the father is able to offer [X] a good and stable home.
He has been in a relationship with Ms C since … 2016 and her two children (K born in 2012, and L born in 2015) live with Ms C and the father. The father and Ms C separated for a few months but they are back together and they have been steadily together for some time.
The father is a labourer which means he needs to work on a roster. He was doing that before he separated from the mother. He is able to draw on assistance from Ms C and from his parents if [X] needs to be picked up or looked after while he is working. From that perspective I am satisfied that he is able to give her a good home and to properly look after her.
The father said in his affidavit that if [X] lived primarily with him he would keep her at her current school because she was doing well and was settled there.
The father has also dealt appropriately with the child’s bowel issues and in fact one of the reasons he separated from Ms C for a period was that he took umbrage with the fact that she was suggesting that [X]’s soiling was a behavioural issue, not a medical issue. He stood up for his daughter, but he subsequently reconciled with Ms C.
The mother alleged that the father had had a problem with steroid abuse. She described him injecting steroids. I cannot be sure that the father is necessarily telling me the complete truth about what happened with that in the past but there is no evidence that he is currently taking any drugs or using steroids.
The father is drug tested at work, which means he cannot turn up on site affected by drugs. There is nothing about his appearance to suggest that he is using drugs. The mother alleged that he and Ms C had historically used ice but there is no other evidence to support that contention.
At the moment the father is capable of providing [X] with a good home on a day-to-day basis.
Rather than compartmentalising it in the family violence section though just to complete what the father can offer [X], I am going to deal with the family violence issue here.
The father perpetrated some quite serious family violence during and after his relationship with the mother and since the end of the relationship he has behaved in a verbally abusive and disrespectful way towards her on occasions. That has continued until quite recently and it is a very concerning aspect of what the father offers [X].
The father minimised what happened during and after the relationship. He has not fully accepted what he has done and he has not done a perpetrator’s course.
This would sometimes raise a concern that the father might behave in that way in another relationship and the mother alleged that she had heard reports that there had been family violence between the father and Ms C. However on the state of the evidence I cannot find that this has occurred.
There is nothing in the CAPIA that was prepared in 2017, the family report interviews in 2019 or in the play therapy notes to suggest that this is an issue of concern for [X]. It seems almost inevitable that she would have said if it was because she disclosed being frightened that Mr B would fight with the mother and she disclosed being scared of what happened when Mr A was around.
The chances are very high that she would have said something if there had been issues between the father and Ms C. She has not said anything and there is nothing else, such as police callouts to that home, which suggests that there has been any family violence and I cannot on the state of the evidence be satisfied that it is occurring.
That is not the end of the family violence issue but in terms of what the father can offer [X] at the moment it is a good stable home with the father in a good job, the father having a good relationship with his daughter and caring for his daughter, his daughter having a good relationship with Ms C and no evidence of any disruption in that home in terms of police callouts or family violence occurring.
[X] is in some respects doing very well in the mother’s care. School reports were tendered and she is doing well at school and she is attending school regularly.
J is 13. He is regularly attending school and is doing very well; nobody suggested otherwise at the trial.
K, Mr A’s child, is three. Sadly she has cerebral palsy but the mother is engaged with Support Services, an Aboriginal service, who are providing her with support. There is nothing to suggest the mother is not doing a very good job caring for K.
There is also nothing to suggest she is not properly caring for L who is only a few months old, and again she has the support of Support Services in that regard.
There are positives about the mother’s parenting. Her children attend school and are doing very well at school. She is properly attending to K’s medical needs and she is properly looking after baby L; the Support Services records confirm that is the case.
The major negative about the mother is her choice of partners.
I am very concerned about the father’s behaviour toward the mother during and after the relationship but the situation of [X] being exposed to family violence, disruption and vile verbal arguments did not end when the mother ended her relationship with the father.
The mother re-partnered with Mr A. I do not accept that there were no incidents of violence in that relationship and even leaving that aside there were numerous police callouts. [X] did not like Mr A and was a little afraid of him.
That relationship ended only because the father filed an application for parenting orders and a restraining order was made.
Then Mr B appeared on the scene and of all the mother’s partners he is the worst in terms of having a horrific criminal record and he has a history of having acted out violently against a domestic partner.
There is no evidence that the end of the mother making a poor choice of partner is in sight. There is no sign in her affidavit that she recognises what her choices of partner are exposing her children to. She has had no domestic violence counselling.
As recently as a few months ago the mother was intending to continue her relationship with Mr B. It is probable that she only went back on that because she realised that if she did not say that she was not going to expose [X] to Mr B she was going to lose [X]. Whether she is completely willing or alternatively able to keep Mr B out of her life is seriously open to question.
Finally, given the history of the mother’s relationships since she was 20 there is nothing to suggest that if Mr B goes away or is got rid of because he ends up with another lengthy jail sentence that the mother is not going to make a similarly bad choice. She does not seem to accept or understand or recognise that she is making bad choices.
That is the problem with the mother’s situation and there were little snippets of evidence which suggest that it is impacting on [X]. She did not like Mr A. She told her father about having to hide in the bathroom. She has referred in play therapy to being worried about the mother and worried when she went to school about the mother being left alone. These are troubling signs of the impact on [X] of what she is being exposed to as a result of the mother’s choices.
One of the issues raised in this case was that the mother, like Mr B, might be using ice. It was alleged that she had historically done so.
The mother has complied with drug testing orders and has never tested positive for illicit drugs, so it is not open for me to find that the mother is currently using drugs. However Mr B is an ice user and if the mother associates with someone who has a significant history of ice use there is a considerable risk that she might find herself in a situation where she is tempted to use and does use the drug. That is another risk in the mother’s association with Mr B.
I must consider, if [X] is an Aboriginal child, the benefit to her of being able to enjoy her culture with someone who shares that culture.
The mother identifies as Aboriginal through her father. She is currently engaged with Support Services and she takes the children to H Medical Centre. [X] is identified as Aboriginal at school.
In his affidavit the father said that he had no issue with [X]'s Aboriginality but in a text message he sent to the mother when he was challenging her decision to take the child to H Medical he said:
She ain’t no coon, just like you ain’t no white. It’s just another money scam for you claiming that shit.
I do not consider that the father is as accepting of [X]'s Aboriginality as he maintained in his affidavit and it will be quite damaging for [X] if she is exposed to the father making those kind of comments about Aboriginal people.
I will skip over family violence because I have covered that in the parenting capacity section.
A family violence order was made against the father after he was convicted in 2014. A couple of other applications have been made in respect of him but they have ultimately been dismissed. However that does not mean that the behaviour the mother complained of which led to those applications being made did not occur and I have found that it did.
An ADVO was made against Mr A for the mother’s protection and it was in place for 12 months. Again it is the behaviour which led to the order being made which is relevant rather than the mere existence of the ADVO.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
This is rarely a determinative consideration but I have to make some findings about it.
An order that [X] lives with the father is the order least likely to lead to further proceedings.
There is a very high risk that Mr B will not disappear out of the mother’s life or that he will cause further incidents at the mother’s home or that the mother will take up with an equally problematic partner if he disappears. If I leave the child with the mother and any of those events occur the matter will quickly come back to court.
I must consider any other relevant matter.
The father said that the mother would not communicate with him or involve him in decision making. There is some evidence that this is the case although given the extremely aggressive way the father behaves to the mother sometimes he needs to reflect on why that might be happening and whether the mother might be genuinely frightened on occasions of approaching him or talking to him about certain things.
The mother said that the father was intrusive of her time with [X] and that he enrolled his partner’s daughter at the same hobby club which led to some unpleasant interactions and that his partner was rude to her at hobby events.
However despite the family violence that has occurred between the mother and the father and despite the fact that on occasions there is verbal abuse and failure to communicate, there are also periods when the mother and father get on and reach agreement about things and there have been times when the mother has turned to the father and asked for his help and there is a period of peace.
There has not been an unalloyed pattern since separation of the parties having a bad relationship; sometimes they have had a good relationship, sometimes they have had a bad one.
I am going to return now to the primary considerations and they are the benefit to the child of having a meaningful relationship with both of her parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
[X] will benefit from having a meaningful relationship with both of her parents. It is clear from every intervention in this matter that she wants to have a good relationship with both of them.
The mother’s counsel forcefully promoted the idea that if the child lived with the father her relationship with the mother would be under threat. She alleged the father was likely to denigrate the mother to the child and make it difficult for her to see the child.
That is not made out on the evidence.
There was family violence in the relationship between the father and the mother and even recently the father has made some very unpleasant comments to the mother such as, “Don’t play the victim card”. However there is no evidence of the father making any attempt to undermine the mother’s relationship with [X] or denigrating the mother to [X].
I say that because of all the independent evidence about things [X] has said. She talked to the family consultant at the CAPIA, she talked to the family report writer at the family report interviews and she has talked to somebody at the play therapy group. On every occasion she has talked about wanting to spend time with both her parents. There is not the slightest suggestion in anything she has said that either parent is saying anything negative about the other parent to her.
The father has been concerned for his daughter for years because of what he believes has been happening in the mother’s home but there is no evidence that this concern has flowed over into denigration of the mother to the child. This is also not a case where the father has ever withheld the child from the mother arising out of his concerns.
The father is rude and disrespectful to the mother on occasions but there is no evidence that if the child lived with him he would deliberately try to undermine her relationship with the mother or would not comply with orders.
Despite all the justifiable complaints she makes about the father the mother has also not engaged in behaviour where she has denigrated the father to [X], tried to make [X] think badly of him or tried to undermine [X]’s relationship with him.
The first primary consideration does not greatly assist me. The risk of harm as a result of exposure to family violence is the significant issue in the case.
The family report writer said this:
Ms D’s decision-making with regard to her two most recent partners does not inspire confidence in the mother’s protective capacity with regard to [X], or any of her children.
I strongly endorse that sentiment.
The mother has entered into a series of damaging relationships. One of them was with the father but then she moved into a relationship with Mr A which involved Mr A causing trouble at her home and the police repeatedly being called and I am far from convinced that he was not violent to her on occasions.
Then we have Mr B. The mother said that there was no violence with him. I cannot be sure whether that is true because the mother was not a witness of credit in regard to her partners’ behaviour and Mr B has priors for being violent to a domestic partner, and seriously violent, threatening a dog with an axe and a person with a knife. There was also the home invasion at the mother’s home which it is impossible to believe did not arise out of Mr B’s criminal connections.
There is an unacceptable risk of [X] being exposed to family violence if she remains in the mother’s care unless the mother either changes the partners she chooses or complies with restraints that are made to keep Mr B, or someone like him, out of the child’s life.
The mother’s counsel repeatedly stressed in submissions that the mother would abide by any injunction I made to keep Mr B away but the difficulty is that because of the way Mr B behaves and the fact that the mother has a child with him I cannot be absolutely sure that the mother will be able to comply with such restraint and her evidence raises a significant concern that she may not be willing to do it.
Turning to the father, he has been a perpetrator of family violence. He has not done a perpetrator’s course. He does not seem to understand that some of his verbal utterances are intimidating as well as being disrespectful. There is a risk of him acting out against the mother again in the future. It might just be a risk of verbal abuse but in the past the father has become angry and has been violent; that happened as recently as November 2016.
In circumstances where the father makes few admissions, has not done a perpetrator’s course and shows little insight into the impact of his behaviour I cannot rule out the possibility that something like that could happen again.
However there has been no such extreme incidents since November 2016. The parents do not come into much contact with each other at pick up and drop off which reduces the risk of anything adverse happening between them and I cannot be satisfied that there is family violence in the father’s relationship with Ms C.
In summary I am concerned that there is an unacceptable risk of [X] being exposed to family violence in the future perpetrated by Mr B or another partner of the mother’s. I have concerns about whether simply making an injunction against the mother bringing [X] into contact with Mr B is going to be a significant protection against that.
I have concerns about the father committing acts of family violence toward the mother but the risk of [X] being exposed to that can be mitigated to a large extent by pick up and drop off happening at school, thus keeping the mother and father apart. Therefore in terms of the risk to [X] it is a lesser risk than might be posed by people the mother chooses to partner with.
The family report
The family report writer said that he was concerned that the mother intended to resume her relationship with Mr B once he was released from prison. Focusing on the child’s immediate safety he recommended the child live with the father because Mr B posed a serious risk of harm for her whereas the father he felt posed less or none because there had been no family violence since separation.
The family report writer went on to propose the child spend every fortnight weekend from Thursday to Monday with the mother. He did not make a recommendation about parental responsibility.
There are some issues with the report. Clearly the statement in the report that there had been no family violence since separation is wrong. There were two significant incidents after separation, one of which led to the father being charged with and convicted of assault. The last one was in November 2016 but there has been sporadic verbal abuse since then.
However the family report writer was not in error in concluding that Mr B posed a serious risk of harm to the child.
At trial the mother changed her position. She prevaricated about whether she personally intended to see Mr B although in the end she said she did not and said that she would abide by an injunction to keep him away from [X].
When the family report writer was asked about that during cross-examination he said that the mother’s statement that she intended to end her relationship with Mr B did not have credibility for him.
He observed that the mother grew up in a family where family violence was perpetrated by her father. Her relationship with the father involved family violence. Her two following two partners had either been violent to her or were people who had perpetrated family violence. He said that he could not accept that within a very short space of time the mother had suddenly gained insight into the dangers posed to [X] by the mother being in those sorts of relationships or by someone like Mr B.
Notwithstanding that the mother had changed her position about whether Mr B would continue to have contact with [X], the family report writer did not change his recommendation.
Parental responsibility
There is a presumption in s.61DA of the Family Law Act 1975 that the parents should have equal shared parental responsibility for [X] absent of finding that one of them has engaged in family violence or abuse of the child.
The presumption does not apply because the father perpetrated family violence.
I can still make an order for equal shared parental responsibility if I choose but the parents both sought an order for sole parental responsibility.
When the mother’s counsel was making submissions she said that the court would have to give one parent sole parental responsibility. I responded by saying no, just because both parents sought sole parental responsibility the court was not obliged to make that order and it was open to the court to make an order for equal shared parental responsibility.
In my view no matter what order I make about where [X] lives it would be in her best interests for the parents have equal shared parental responsibility for her.
The father has perpetrated family violence and I accept that on occasion the mother is quite frightened of him and may be frightened about saying certain things to him but there have also been occasions since these parties separated when they have been able to communicate with each other.
[X] has issues with her bowels and there may be issues to do with her education that the parents need to discuss although there aren’t any on the horizon at the moment.
No matter what order I make both parents are going to continue to be involved in this child’s life. I am concerned about the behaviour and choices of them both and I do not consider that it would be in [X]’s best interest to select one of them and give them parental responsibility with the result that the parent is simply going to be an onlooker in decisions about [X]’s life.
The parents will not necessarily find it easy to communicate and the father is strongly advised to do a perpetrators course as he said that he would so that he learns to communicate more respectfully with the mother. It is simply unacceptable for him to be calling her names or telling her that she is playing the victim card.
However that is not enough for me to find that these parents cannot share parental responsibility. They are only going to have to communicate with each other about big issues to do with [X], for example if she requires some particular treatment for her bowel problem or if there is to be a change of school in the future. An order for equal shared parental responsibility does not mean they are going to have to talk to each other every day and removing parental responsibility from one parent will not solve any problems for [X].
The parents communicate sufficiently well to make it work if they don’t have to do it very often and I am satisfied that an order for equal shared parental responsibility would be in [X]’s best interests.
As I intend to make that order I must have regard to s.65DAA of the Family Law Act 1975 but neither parent proposed equal time and they both proposed that the child live with one of them and spend substantial and significant time with the other so I do not need to trouble myself about s.65DAA. I simply have to come to a conclusion about where [X] should live.
Conclusion
The mother’s case, or arguments which could be martialled in favour of the mother’s case that [X] live with her, are these.
[X] is doing well at school. The mother is dealing appropriately with her constipation/bowel problem. She has always encouraged [X]’s relationship with the father and [X] has three siblings in the mother’s home that she has a good relationship with and has grown up with.
[X] also has a good relationship with her mother. There is a little bit of a tinge of her going into caretaker mode sometimes which is concerning but she has a good relationship with her mother. She has also never said that she wanted to live primarily with her father. The most she has talked about is shared care.
Another argument that could be martialled in favour of the mother’s case is that the father is a family violence perpetrator. He continues to speak to the mother in a derogatory manner. There is a risk of physical assault although that has abated and if the parents are kept apart it is not an unacceptable risk but there is still a risk of some verbal abuse occurring.
The mother’s case if she wanted to put it this way although her counsel didn’t, was that it would be sending a very poor message to the community if a perpetrator of family violence was given primary residence of a child, especially when he minimised his offending, showed no insight into the impact of it on his former partner and had not done a men’s behaviour change program. If you wanted to draw that argument out to its natural conclusion you could say that it would be almost punishing the victim and rewarding the perpetrator.
The mother would say that she knows that she has to end her relationship with Mr B. She may be reluctant to do so but she abided by the court order about Mr A and her counsel’s submission was that the mother would do what she needed to do to retain the care of [X]. If it was necessary for her to keep Mr B away from [X] the mother would do everything she could to ensure that occurred.
Those are the arguments that could be mounted in favour of the mother’s case. [X] is doing well in her care. She loves her mum. She loves her siblings. She is going to school. The father is a family violence perpetrator. The mother will end her relationship with Mr B or at least will abide by a restraint to keep him away and it is premature to consider removing [X] from her care. The tenor of the mother’s case was that I should give her a chance to show that she could protect [X] from further harm.
Arguments that could be martialled in favour of the father’s case are that he is productively employed. He is a contributing member of society. He has none of the issues of lawlessness in his life which have plagued Mr B’s life. There is no risk of home invasion at his home because he is dabbling in criminal activity or associating with people who are.
There is no evidence that he is using drugs. There is no evidence that he has problems with other substances and his counsel said that he would do a perpetrator’s course if the court made an order for that to occur.
I say arguments that could be martialled because not all these arguments were made but some of them are open on the evidence.
The father’s counsel would also say that although the father made few admissions about family violence, he made a few and he did do a course. It wasn’t the course he should have done; it wasn’t a perpetrators course, but it was a six-session course that was to do with learning emotional control. At least he made an effort and did a course. The mother has not shown enough insight to do a course to deal with her situation.
Another argument that can be mounted in favour of the father’s case is that there is no family violence in his relationship with Ms C. There are no police callouts to that home. The incident that occurred in the garage was more likely to have been in retaliation for the father bringing court proceedings than to have arisen from the father having any criminal associates. It would be the father’s case that that incident could not be compared with the home invasion.
The other argument that the father would make is that since the mother was 20 years old she has moved from one unfortunate or damaging relationship to another. After she ended her relationship with him it was Mr A and now it is Mr B. There is no evidence in her affidavit that she has any insight into to the damage that has been done and is being done to [X] by her choices.
The mother has not done any counselling or any courses and the Court would have be extremely concerned about whether she will be able or willing to end her relationship with Mr B. It is unclear whether she will be able to control Mr B if he turns up on her doorstep. Almost certainly she won’t. She may call the police but that may not prevent [X] being exposed to an unfortunate incident.
There is a very high risk either that Mr B is going to continue in the mother’s life and cause chaos or that there will be another unsatisfactory partner. If I leave [X] with the mother and give the mother another chance and then the mother lets [X] down because she either can’t keep Mr B away, doesn’t keep him away or re-partners with another one the same, [X] will face further problems and further litigation and perhaps have to face a change at that stage.
There is also a little bubble of a risk of [X] starting to demonstrate school refusal because her concern about the mother leads to her not wanting to leave the mother. There is also a slight risk that [X] might start not wanting to go to the father because she does not want to leave the mother and wants to be protective of her.
Another argument that the father would make in favour of his case is that [X] has a very good relationship with him and has no problems with Ms C. She has not expressed a wish to live primarily with him but she has talked about living with him 50/50. She can stay at the same school and it is his case that given that she has a good relationship with him and with Ms C and can stay at the same school there is a very good prospect of her adjusting to a change of residence.
She will not see as much of her mother or her siblings but she will still see quite a bit of them and she is not going to lose her relationship with them.
Another argument the father could martial in favour of his case is that the family report writer recommended that the child live with him. He said that the need to protect [X] from an immediate risk of harm was the most important issue. He was not quite correct in his assessment of the family violence the father perpetrated but even after being apprised of that he still maintained that the court needed to focus on protecting [X] from immediate risk of harm and he did not alter his opinion that the preferred outcome was that [X] live with the father.
It causes me considerable pain to place [X] with a family violence perpetrator but in my view the preferred outcome for [X] is that she live primarily with her father. At the moment the father is the one who can provide a risk-free, trouble-free home for [X]. [X] has good relationships within that home. I suspect that she is going to grieve a little bit about being separated from her mother more than she is at present but she has very good relationships in that home. She can stay at her current school and there is a very good chance of her adjusting well to that change.
There is an unacceptable risk that the mother is not going to be able to keep Mr B away, will not keep him away because she does not want to or that if she does manage to get rid of him because he goes back to jail or for some other reason, she will re-partner with another person the same. There is no sign that the mother has any insight into the nature of the problem or any capacity to stop forming these problematic relationships.
I indicate again, and I am sorry to have to say this to the father, that it gives me no pleasure to make that order because I am very concerned about the father’s perpetration of family violence.
The father said he would do a perpetrators course. I am not satisfied that I can necessarily order him to do it because if I was to do that I would have to make [X] living with him conditional on him doing it and I am not prepared to do that. However although I am not going to order him to do a perpetrators course I would strongly recommend that he do it. He does not appear to recognise the nature of some of his behaviours and the impact of some of his attitudes and I go back to what I said in the beginning: what does he want his daughter to grow up to be? An adult he is proud of or an adult who is disrespectful, rude, angry and perhaps partners with somebody who abuses her?
The father needs to do the perpetrators course so that he makes sure that he never gets back into a situation where he is violent in a relationship but I am going to make a notation about that rather than an order because I am going to be making some final orders about what happens with [X].
I will make a notation that the father enrol in such a course but I have now been informed that the father has enrolled in a course commencing August.
I certify that the preceding two hundred and eighty-seven (287) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 26 August 2019
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Fiduciary Duty
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