Tiede & Friso
[2024] FedCFamC1F 316
•14 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Tiede & Friso [2024] FedCFamC1F 316
File number(s): CAC 157 of 2022 Judgment of: CURRAN J Date of judgment: 14 May 2024 Catchwords: FAMILY LAW – PARENTING – Where the proceedings have been consolidated – Where there are two respondent mothers – Where orders made by consent for the respondent mothers to have sole parental responsibility for their respective children and for the father to spend no time with them – Where the father has perpetrated family violence – Where the children have been exposed to family violence – Whether the father should be permitted to send letters, cards, and gifts to the children – Whether restraints should be made against the parties – Where the father poses an unacceptable risk of harm – Whether there is a risk to the parenting capacity of the respondent mothers – Where the father permitted to send cards and gifts Legislation: Australian Passports Act 2005 (Cth) s 11
Family Law Act 1975 (Cth) ss 60CA, 60CC, 60CG, 67ZC
Cases cited: A v A (1998) FLC 92-800
Bayer & Imhoff [2010] FamCA 532
Dunst & Dunst [2016] FamCAFC 15
Eastley & Eastley (2022) FLC 94-094
Grant & Grant (1994) FLC 92-506
Helbig & Rowe [2016] FamCAFC 117
Hollister & Gosselin [2016] FamCA 759
Isles & Nelissen (2022) FLC 92-092
Keane & Keane (2021) 62 Fam LR 190
Loddington & Derringford (No.2) [2008] FamCA 925
Mazorski & Allbright (2007) 37 Fam LR 518
McCall & Clark (2009) FLC 93-405
Re Andrew (1996) FLC 92-692
Rice & Asplund (1979) FLC 90-725
Russell & Close [1993] FamCA 62
Division: Division 1 First Instance Number of paragraphs: 141 Date of hearing: 29 April 2024 – 3 May 2024 Place: Canberra Counsel for the Applicant: Mr Sabharwal Solicitor for the Applicant: Prudential Legal Solutions Counsel for the First Respondent: Mr Stagg Solicitor for the First Respondent: Jeanine Lloyd & Associates Counsel for the Second Respondent: Ms Baker-Goldsmith Solicitor for the Second Respondent: Mazengarb Family Lawyers Solicitor for the Independent Children's Lawyer: Legal Aid ACT ORDERS
CAC 157 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR TIEDE
Applicant
AND: MS FRISO
First Respondent
MS MILTON
Second Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
CURRAN J
DATE OF ORDER:
14 MAY 2024
THE COURT ORDERS THAT:
X and Y
1.X, born 2017 (“X”) and Y, born 2017 (“Y”) shall have no contact with the father, Mr Tiede, save that the father is at liberty to send to X and Y a card and/or a gift simultaneously on no more than four occasions per calendar year.
2.For the purposes of order 1 above:
(a)The father is to ensure his communication does not refer to any dispute he has with Ms Milton or his previous domestic partners, does not contain any negative or otherwise derogatory content regarding Ms Milton or his previous domestic partners, the extended maternal family, or the extended paternal family, and is child-focused.
(b)Ms Milton is at liberty to review the contents of any cards and or gifts she receives from the father for X and Y.
(c)Within 21 days of the date of these Orders, Ms Milton shall, through their respective lawyers, provide the father with a postal address to where the cards and letters for X and Y may be sent.
(d)It is at Ms Milton’s discretion to provide any such cards and / or gifts she receives to X and Y.
3.Within 30 days of the of these Orders, the Independent Children’s Lawyer and the Court Child Expert, Ms B, shall meet with X and Y to explain these Orders.
4.The mother, Ms Milton, shall be granted leave of s 121 of the Family Law Act 1975 (Cth) (“the Act”) to provide a copy of the Family Report of Ms B to any mental health professional or general practitioner treating the either of children or herself.
Passport and international travel
5.The mother, Ms Milton, be allowed by this Order to apply pursuant to section 11 of the Australian Passports Act 2005 (Cth) to permit the renewal and/or issue of an Australian Passport for the children without requiring the consent of the father.
6.The mother, Ms Milton, be allowed by this Order to travel outside of the Commonwealth of Australia with the children without the consent of the father.
Z
7.Z born 2021 (“Z”) shall have no contact with the father, Mr Tiede, save that the father is at liberty to send to Z a card and/or a gift on no more than four occasions per calendar year.
8.For the purposes of Order 7 above:
(a)The father is to ensure his communication does not refer to any dispute he has with Ms Friso or his previous domestic partners, does not contain any negative or otherwise derogatory content regarding Ms Friso or his previous domestic partners, the extended maternal family, or the extended paternal family, and is child-focused.
(b)Ms Friso is at liberty to review the contents of any cards and or gifts she receives from the father for Z.
(c)Within 21 days of the date of these orders, Ms Friso shall, through their respective lawyers, provide the father with a postal address to where the cards and gifts for Z may be sent.
(d)It is at Ms Friso’s discretion to provide any such cards and / or gifts she receives to Z.
9.The mother, Ms Friso, shall be granted leave of s 121 of the Act to provide a copy of the Family Report of Ms B to any mental health professional or general practitioner treating the child or herself.
Passport and international travel
10.The mother, Ms Friso, be allowed by this Order to apply pursuant to section 11 of the Australian Passports Act 2005 (Cth) to permit the renewal and/or issue of an Australian Passport for the child without requiring the consent of the father.
11.The mother, Ms Friso, be allowed by this Order to travel outside of the Commonwealth of Australia with the child without the consent of the father.
Restraints
12.The parties are restrained from consuming illicit substances, including marijuana, during any period they have care of any child of these proceedings.
13.The parties are restrained from making critical or unkind comments about any of the other parties in the presence or hearing of any child of these proceedings.
Provision of reports to treaters
14.The father shall be granted leave of s 121 of the Act to provide a copy of the Family Report of Ms B to his psychologist.
15.The father shall be granted leave of s 121 of the Act to provide a copy of the Psychological Report of Mr C to his psychologist.
Discharge of Independent Children’s Lawyer
16.The independent children’s lawyer shall be discharged 14 days after compliance with order 3 above.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tiede & Friso has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CURRAN J:
INTRODUCTION
These are consolidated proceedings concerning three children of Mr Tiede (“the father”). Ms Friso (“the first respondent mother”) is the mother of Z, born 2021 (“Z”). Ms Milton (“the second respondent mother”) is the mother of twins Y (“Y”) and Z (“Z”), born 2017, collectively referred to as “the twins”. All of the subject children shall be referred to collectively as “the children”. The father has two children from previous relationships, D born 2006 (“D”), who is the child of the father and Ms E, and F born 2008 (“F”) who is the child of the father and Ms G.
On the fifth day of the hearing, the father withdrew his application to spend time with the children, and consented to orders including that the respective mothers hold sole parental responsibility for the children, that the children live with their respective mothers, and that he spend no time with the children. Those orders were made by consent on the last day of the trial as I was well satisfied on the evidence before the Court that such orders were in the best interests of the children and were in accordance with the recommendation of the Court Child Expert Ms B (“the Court Child Expert”).
The only discrete issues that remained to be determined were:
(a)whether the father should be permitted to send letters, cards and gifts four times each year, as sought by himself and the Independent Childrens Lawyer, or, whether there should be no communication, as sought by both respondent mothers;
(b)whether an order should be made for the respective respondent mothers to be permitted to obtain passports and travel internationally with the children;
(c)whether the parties should be restrained from consuming illicit substances including marijuana, or from having a Blood Alcohol Concentration such that they would be unable to drive during any period they have care of the children;
(d)whether restraints should be made to prohibit the parties from denigrating any of the other parties in the presence or hearing of the children; and
(e)whether leave should be granted to provide a copy of the Family Report to the children’s respective psychologists.
The primary issue for determination as to whether communication of any form is in the best interests of the children is informed by whether such communication would expose the children to an unacceptable risk of harm due to psychological harm to them, or to their respective mothers. Z, the daughter of the first respondent mother, is only three years of age, has never met her father and does not know who he is. X and Y, the children of the second respondent mother, are twins aged seven, who know of and remember spending time with their father. The children spend time with one another, and spend time with the paternal grandparents and their other half siblings D and F.
BACKGROUND
The father and the first respondent mother commenced a relationship in 2020. They separated on a final basis in January 2021, and their daughter Z was born in 2021.
The father commenced proceedings in respect of Z in February 2022. Z was born after her parents’ separation. The father has not met Z.
The father and the second respondent mother commenced a relationship in 2016. The twins were born in 2017. The parties were married in 2019 and final separation occurred in November 2019.
After separation, the twins spent time with their father on an ad hoc basis by agreement. There was an incident in late 2020 when the children were spending time with the father and the first respondent mother (who was pregnant with Z) in which the children were exposed to an incident of family violence between the first respondent mother and the father, and the police and ambulance service attended.
The last time that X and Y had any communication with the father was in 2021 on their birthday, when the mother alleges that he said over FaceTime “next time I have you, I will make sure it’s just me and you and we will then all disappear.” The mother terminated the call and the children have not communicated with their father since that time.
The father commenced proceedings in respect of X and Y in June 2022.
The children currently spend no time and have no communication with the father. There have not been any parenting orders made in these proceedings.
The proceedings were consolidated on 26 October 2022 by orders of a Judicial Registrar.
MATERIAL RELIED UPON
The father relied upon:
(a)his Initiating Application filed 1 February 2022;
(b)Response to Initiating Application filed 24 March 2022
(c)affidavit of Ms H filed 5 April 2022;
(d)his Initiating Application filed on 30 August 2022;
(e)affidavit of Mr C filed 31 August 2023;
(f)Response to Final Orders file 23 October 2023;
(g)affidavit of the first respondent mother filed 8 September 2023;
(h)his affidavit filed 22 September 2023;
(i)affidavit of Mr C filed 28 October 2023;
(j)his affidavit filed 16 April 2024;
(k)ICL Tender Bundle filed 15 April 2024;
(l)Family Report of Ms B filed 27 November 2023; and
(m)affidavit of Ms J filed 26 April 2024.
The first respondent mother (Ms Friso) relied upon:
(a)her Response to Initiating Application filed 23 October 2022;
(b)her affidavit filed 19 October 2023;
(c)her affidavit filed 8 September 2023;
(d)affidavit of Mr C filed 31 August 2023;
(e)affidavit of Mr C filed 28 October 2023; and
(f)Family Report of Ms B filed 27 November 2023.
The second respondent mother (Ms Milton) relied upon:
(a)her Response to Initiating Application filed 24 March 2022;
(b)her affidavit filed 8 September 2023;
(c)her affidavit of filed 19 October 2023;
(d)affidavit of Mr C filed 31 August 2023;
(e)affidavit of Mr C filed 28 October 2023; and
(f)Family Report of Ms B filed 27 November 2023.
The Independent Children’s Lawyer (“ICL”) relied upon:
(a)Initiating Application filed 1 February 2022;
(b)Response to Initiating Application filed 24 March 2022;
(c)Initiating Application filed 30 August 2022;
(d)Response to Final Orders filed 23 October 2022;
(e)affidavit of Ms H filed 5 April 2022;
(f)affidavit of the first respondent mother filed 8 September 2023;
(g)affidavit of the father filed 22 September 2023;
(h)affidavit of the second respondent mother filed 19 October 2023;
(i)affidavit of Mr C filed 31 August 2023;
(j)affidavit of Mr C filed 28 October 2023; and
(k)Family Report of Ms B filed 27 November 2023.
ORDERS SOUGHT
Until the final day of the trial, in respect of Z, the father sought orders that he spend time with her in a graduating fashion, commencing with supervised time for a few hours every week for a period of three months, and ultimately culminating in him spending time with Z each alternate weekend, and half of the school holidays.
Until the final days of the trial, in respect of X and Y, the father sought that the children live with their mother and spend supervised time with him each third weekend for three visits and gradually increasing until they spend unsupervised time with him each third weekend from Friday until Sunday, and half of the school holidays.
The first respondent mother sought sole parental responsibility for Z and that Z spend no time and have no communication with the father.
The second respondent mother sought sole parental responsibility for X and Y, that they live with her, and that the father spend no time and have no communication with them.
The ICL sought that the father spend no time with the children, that their respective mothers hold sole parental responsibility, and that the father be permitted to send letters, gifts and cards to the children on no more than four occasions per year.
On the final day of the trial, after submissions were made by both the ICL and the counsel for the first respondent mother, the father amended his application to seek orders as sought by the ICL which limited the issues for determination to whether the sending of letters, gifts and cards was in the best interest of the children, whether a passport orders should be made as sought by both mothers and whether certain restraints in respect of denigration and consumption of alcohol should be made.
Meaningful relationship
It is ordinarily in the best interests of a child to have a meaningful relationship with both parents, but the Court must focus on whether such a relationship as set out by the Full Court in McCall & Clark (2009) FLC 93-405 at [122], will derive a positive benefit for the child. Such relationship is one that is “important, significant, and valuable to the child” (Mazorski & Allbright (2007) 37 Fam LR 518 at [26]). Cronin J similarly declared in the decision of Loddington & Derringford (No. 2) [2008] FamCA 925 at [169] that “for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child.”
Z’s relationship with the father
The father has not met Z, and as such, she has no relationship with him. She does, however, have a relationship with her paternal family, as she spends time with her paternal grandparents for approximately one week every 10 weeks, and spends time with her paternal half-siblings, F, X and Y at the home of the paternal grandparents. Until recently she also spent time with D at the home of the paternal grandparents, however the father’s evidence was that this had recently ceased given D has moved in with him.
The twins’ relationship with the father
X and Y have not spent time with their father in person since late 2020 following the incident set out below at paragraph 37 involving the father and the first respondent mother. They know and remember the father.
The second respondent mother lives in the Town K region, and the paternal grandparents provide after school care to X and Y four days per week. The Court Child Expert reports, and it is accepted by the second respondent mother, that Y in particular has a close relationship with the paternal step-grandfather.
Both respondent mothers reported that the children have an “amazing” relationship with each other, and spend time together regularly, including having telephone calls once per week.
Need to protect the child from harm
Pursuant to Isles & Nelissen (2022) FLC 94-092, in assessing unacceptable risk the Court is required to have consideration to all of the circumstances, including historical conduct, and whether there is sufficient evidence to make a finding of fact on the balance of probabilities in relation to the allegations made, in order to determine whether there is a possibility of harm arising in the future.
In Eastley & Eastley [2022] FedCFamC1A 101; (2022) FLC ¶94–094 (“Eastley”), the Full Court observed the need for a trial judge to consider the cumulative effect of the whole of the evidence in determining an assessment of risk, rather than merely dealing with each individual allegation in an isolated fashion at [33]:
…the law did not require the primary judge to assess the potency of the risk of harm posed to the children by reference to the evidence concerning individual events in isolation from the remainder of the evidence. On the contrary, the primary judge was required to assess the level of risk posed to the children on the whole of the evidence, since the strength of the evidence lies in its cumulative effect, much like how the strength of rope derives from the combination of its individually weaker strands (Transport Industries Insurance Co Ltd v Longmuir [1997] 1 VR 125 at 127–130 and 141; Savage v Lunn [1998] NSWCA 203; J.D Heydon, Cross on Evidence (LexisNexis Australia, 13th edition, 2021) at [1110] and [9040]).
It was submitted on behalf of each of the respondent mothers that orders allowing for the father to send letters, cards, and gifts to the children would expose them to an unacceptable risk of psychological harm on account of the father’s historical perpetration of family violence. This was submitted to be particularly the case for Z, in circumstances where she does not know him, as to receive communication from him would cause complex emotions.
It was also submitted that an order that the father be permitted to send letters, cards, and gifts would cause psychological harm to each of the respondent mothers such that their parenting capacity would be impacted, thereby exposing the children to an unacceptable risk. The principles are set out by the Full Court in Helbig & Rowe [2016] FamCAFC 117 in considering the Re Andrew (1996) FLC 92-692 (“Re Andrew”) principle, as follows as adumbrated in A v A (1998) FLC 92-800 at 84,996:
The first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk. If there is not, the Court may then need to consider whether the residence parent has a genuinely held belief that such a risk exists and whether that will have a significant impact on that party's capacity as the resident parent and so impinge on the best interests of the children. The Court then needs to take steps proportionate to that circumstance.
In Keane & Keane (2021) 62 Fam LR 190 (“Keane”) the Full Court confirmed at [72] that the task is:
…to analyse carefully the evidence led on behalf of the mother in relation to the impact that allowing the child supervised time with the father would have on her caregiving capacity. For present purposes however it may be accepted that there would need to be very cogent evidence that, to use the language of the Full Court in Marra & Marra, the mother's caregiving capacity would be discernibly impaired by any order that the child have time with the father (see Re Andrew, at 83,201) for such an order not to be made. Ultimately, as the Full Court has consistently observed, the lodestar is the welfare and best interests of the child, which principle now finds statutory expression in s 60CA of the Act: Re Andrew, 83,199.
The Full Court in Keane at [75] summarised that the authorities relating to the Re Andrew principle, relating to the impact of a genuinely held belief on the primary caregiver’s ability to parent has been expressed in a variety of ways including:
a. “may so impinge upon her capacity as the primary caregiver of the children” [A & A (1998) FLC 92-800];
b. “her co-parenting capacity would deteriorate and impinge the children’s best interests” [Dunst & Dunst [2016] FamCAFC 15 at 81];
c. “as her likely being unable to continue to function effectively so as to adequately care for the children” [Hollister & Gosselin [2016] FamCA 759 at 193];
d. “genuine fears of the residential parent about such a risk may so impinge upon the parent’s capacity” [Bayer & Imhoff [2010] FamCA 532 at 177];
e. “where such anxiety is likely to impact adversely on that parent’s caregiving ability…” [Russell & Russell v Close SA 45 of 1992 an unreported decision of the Full Court];
f. “have an effect on the custodial parent which will impair to a significant degree the emotional support and for that matter physical support which the custodial parent can render the child” [Grant & Grant (1994) FLC 92-506 at 81–259]
DOES THE FATHER POSE AN UNACCEPTABLE RISK OF HARM?
Perpetration of Family Violence
In order to understand why whether to be permitted to send letters, cards and gifts is such a finely balanced decision, it is necessary to set out the behaviour of Mr Tiede that supports the finding that I make that he was, during both relationships, manipulative, deceptive and perpetrated family violence. It is only in this context that it is possible to understand the high levels of apprehension in each of the mothers as to the risks to the children even of such limited communication.
The father has been married four times and was in a de facto relationship with the first respondent mother. There was no dispute that the father had perpetrated family violence against three of his former partners being Ms E, Ms G, and the first respondent mother. Despite his denials I am also satisfied on the evidence that he also perpetrated family violence against the second respondent mother. His criminal record including particulars of allegations of violence, threats of violence, threats of suicide, and stalking, intimidating and harassing behaviour, were detailed in the police and criminal histories and were largely accepted by the father as having occurred. The violence extends from intimate partner violence to violence and threats towards his mother and stepfather. There are currently final Apprehended Violence Orders (“AVOs”) protecting both of the respondent mothers, as well as the father’s mother and stepfather.
The evidence supports a finding that the father perpetrated family violence against the first respondent mother. It was conceded by the father that it had occurred, though he denied some particulars of the allegations. One example is the incident that occurred in late 2020.
In late 2020, during an incident at the father’s home, the father was recorded as “yelling and screaming having a psych episode at the location.” The first respondent mother’s evidence was that the father had earlier attempted self-harm, went to the kitchen and grabbed a knife which he held up to his own throat in the presence of the twins, and pressed the knife against her pregnant belly in front of the twins. The AFP facts record that he was reported as having threatened to kill his partner (the first respondent mother), having previously threatened to hang himself days prior, and having woken up in a rage and thrown his brother out of the house. The police statement of facts contained in Exhibit 8 record that the father reported that he had a physical medical condition contributing to anger and psychotic episodes. The police and ambulance were called, and the father was placed under an involuntary mental health order.
The father says that it was the first respondent mother who was having a psychotic or drug fuelled episode, but that he took the blame with the authorities as she was concerned about her older two children being taken away.
The second respondent mother advised that she needed to collect the children, as the father had been admitted to hospital, which she did.
The police and ambulance records tendered in respect of the incident corroborate the version of the first and second respondent mothers. There is no record by the police of the first respondent mother having an episode of mental health dysfunction. The first respondent mother was not challenged in cross-examination on her evidence of this incident. For those reasons, I do not accept the evidence of the father.
The first respondent mother says the twins were distressed. The second respondent mother gave evidence that the children reported the incident and that police attended to her while she was driving home after collecting them.
The Court Child Expert reports that on 31 October 2023 when interviewed, X reported on the late 2020 incident that “[the father] got a bit angry. [the first respondent mother] had to shut us in a room, because she didn’t want us to see the police”, and that she felt “a bit worried” when the father was angry because the first respondent mother was pregnant. It is clear that X has a clear memory and was distressed by the family violence that she witnessed, that she was worried about the first respondent mother, and that this event has had a long-lasting impact on her. I do not accept the father’s evidence that the children were not exposed to family violence. On the evidence of X, the first respondent mother and the independent records I am satisfied the children were exposed to family violence.
The father denied absolutely and emphatically any family violence against the second respondent mother.
The second respondent mother alleged that in late 2019, she and the father engaged in a heated argument, during which he grabbed her and punched her in the stomach, and in which she reacted and struck his face. The father’s evidence was that the second respondent mother had given him a black eye. When questioned about the incident by the police in 2019, the father reported he had hit her in the stomach with his head after falling through the baby gate. The second respondent mother’s evidence is supported by the police records contained in Exhibit 20. I accept the evidence of the mother which is corroborated by the contemporaneous police records.
An AVO was taken out against the father in late 2019 with the second respondent mother and the twins names as the protected persons. In late 2021, that AVO was extended for a period of five years.
The police records show that the father has, at various times, made threats to kill his partners, his mother, and his stepfather. He also made threats to end his own life, as reflected in the police material and alleged by the mothers. When the conduct was put to him in cross‑examination the father could often not recall doing so, however would say words to the effect of “sounds like something I would have done”.
It was submitted that the father also had a pattern of threatening to make people, particularly his children, “disappear”. The second respondent mother deposes that around the twins’ birthday in 2021 the father said to the twins on a FaceTime call that “next time I have you, I will make sure it is just me and you and we will then all disappear.” The father accepted that he said to the twins the word “disappear”, however said it was merely a poor choice of words and he meant “have holidays and go to places […].” He was at pains in his evidence to explain he had been taken out of context. He denied any threat for the children to disappear and said he would never do that.
For the reasons that follow, I do not accept the father’s account.
First, for the father to say such a thing to children, in the context of him having no time with them, is not innocent, as he claims. The children were distressed. The second respondent mother, who, to her credit, was trying to keep communication going between the children and the father, upon contemporaneously hearing the comment, terminated the call due to concern.
Secondly, despite his denials, the father threatened to have the first respondent mother “disappear” when she was pregnant with Z. Exhibit 18, a police statement of facts contains a report of a Facebook message from the father to a friend of the first respondent mother’s in early 2021 which read “And u think I harassed my ex!!! U aint seen nothing wait till the baby is born and my ex may just disappear like she abandoned he baby. U watch and see revenge is more sweet don’t forget that”.
Given that comment, and the evidence of the second respondent mother I find that the father by his words was intending to intimidate and threaten the second respondent mother with abduction of, or harm to, the children. The father has a history of making direct and veiled threats. I accept the “disappear” comment was made, and that it was a threat and was intended to be so taken to achieve the father’s goal of intimidation and control.
The nature of the other threats made by the father were deeply concerning. He threatened his mother that he would kill her, or kill himself, insinuated that he would destroy her home; he falsely reported his stepfather as being a paedophile to police, and he sent text messages to his step-father which included threats such as “next time we r face to facw I will knock the fuck out!!!”.
A further example of the father’s propensity to threaten and intimidate is illustrated in his conduct in sending intimate images of himself and the first respondent mother to her former partner. His explanation was that it was “silly” and that he had done so because he had effectively been taunted by the former partner about not having met Z.
This behaviour is significant as it occurred in late 2021, which is after the father had commenced a relationship with Ms J, his current partner, and after he had ceased using any form of an illicit drug. His explanation was at that time that he was still coming down from his long-term drug use.
I find that his behaviour was coercive and controlling and designed to intimidate and control the first respondent mother.
Coercive control and manipulation
The father told both the first and second respondent mothers at different times that he had an incurable illness. He did not. He knew he did not. He agreed and I find that he told them of a false diagnosis and terminal prognosis to elicit sympathy, and particularly to manipulate them into either remaining in the relationship with him or getting back together. The extent of his lie in respect of having an incurable illness and only having months to live was broad as he also told his mother, medical practitioners, police, and paramedics.
He maintained this lie over a significant period.
The father claimed he made such a claim when under the influence of drugs and he could not remember specifically doing so.
The fathers conduct in lying to the second respondent mother about having an incurable illness in order to manipulate her into remaining in the relationship, and in continuing with the lie with the first respondent mother, reporting it to his mother, his sons and police and paramedics as part of his ruse, is coercive and controlling family violence, being manipulation to illicit his own desired outcome.
In his report, Mr C said that such a lie was either attributable to the father’s drug use or a personality deficit, but that he could not determine which without further assessing the father.
I do not accept the father’s conduct was purely attributable to the drug use. He himself said during periods of drug use he was employed and was active as a father. He had periods of sobriety from illicit drugs when he maintained the ruse. I find that such conduct was knowing, deliberate and deceptive. It was designed to achieve sympathy, which he gained. Probably the most disturbing element of the lie was that he used it, in conjunction with his story as to the impact of his medical condition, to excuse violent and abusive conduct.
There is no doubt, and I find, that in doing so he was perpetrating coercive and controlling family violence and that his conduct cannot be explained by reference to him being intoxicated on illicit drugs. Having said that there is no doubt that he repeated the lies during periods of intoxication which I accept would have impaired his judgement.
The husband gave evidence he was diagnosed with a medical condition. His medical history records his reports of the same. He presented no evidence of such diagnosis despite the many references to the condition. The medical records produced on subpoena, marked as Exhibit 5 contain a letter from the father’s general practitioner Dr L which states “on [a scan] in 2021, […] there was no evidence of [the condition].”
The father may have had the medical condition as he claims. This is not clear on the evidence. He certainly reported that he had. However, the suggested impact of his claimed “[medical condition]” causing him to be dysregulated, violent and aggressive, was again a lie used to deceive, manipulate and garner sympathy. His ruse worked with the first respondent mother who, after the incident of violence in late 2020, is recorded in the police notes as having “confirmed the effects of his [medical condition] and that he had become frustrated aggressive and expressed wanting to die”.
I do not accept that the medical condition story was entirely due to his drug addiction. The evidence he gave was that during his relationship with the second respondent mother he was working and was involved with the children. The second respondent mother confirmed his narrative about being able to work. He had periods of sobriety sufficient to engage in employment and engage with medical professionals and schools.
The father’s lies and manipulation as to being diagnosed with a terminal illness and the medical condition led to his behaviour being excused by his victims. He told the lies to each partner but further to his child from a previous relationship, his parents, the police and paramedics. The lies were to pressure his partners to stay with him, to excuse his violent behaviour and were designed to control. These occurred he said while being addicted to an illicit drug.
However, the sharing of the intimate images occurred after the father had not used the drug for five months. It was another appalling example of controlling and coercive behaviour.
Further, the father had his current partner Ms J contact the second respondent mother to collect belongings and upon meeting in Town K, Ms J told her she could lose her job due to her being guilty of parental alienation. This is further example of intimidation and manipulation at the request of the father.
The father accepted, and I find, that in each of the relationships the father engaged in conduct that was serious family violence and behaved in a way that was coercive and controlling toward both of the respondent mothers. The evidence overwhelmingly supported such a conclusion,
Lack of insight and emotional regulation
During the final hearing it was clear that the father had difficulty regulating his emotions. He slapped the table whilst giving evidence, at times raised his voice, reacted in an animated fashion whilst sitting in the gallery, and during a period of adjournment had an outburst where he yelled in the corridor.
When cross-examined as to his violent behaviour in the past, the father frequently acknowledged that he was addicted to drugs and that he did awful things to the respondent mothers and to other people, but that it was the effect of the drugs and that he has since turned his life around. There was not any party, the Court included, who suggested that the father should not be congratulated for his achievement in abstaining from his drug use. However, the father was unable to grapple with the lasting impact of his behaviour on each of the respondent mothers and on the children, and he refused to be educated as to same despite offers made to him.
The father commenced these proceedings seeking time with Z in February 2022 and with X and Y in June 2022.
The father was assessed by Mr C on 18 July 2022 and the report dated 30 August 2022 recommended that the father undertake schema therapy, dialectical behaviour therapy, and engage with M Health Service in relation to his addiction.
On 11 October 2022, the file note of the corrections officer Ms N, marked as Exhibit 15, said:
When the subject of DV counselling was brought up, [the father] become notably agitated and angry. He was stating that he did not think he needed it, deflected the need for it, and expressed a denial that he was a perpetrator of his current crime. He stated that this subject of intervention makes him very angry and that when its brought up we can expect him to get agitated with us.
On 9 November 2022, the corrections officer Ms N communicated with the Acting Director of the family violence program in relation to the father’s participation. The file note says “This CCO explained that [the father] believes he is the victim, often talks negatively about his ex partner’s and will not participate in any form of DV counselling and awareness training.”
Significantly, the father denied such offers were made. His evidence was if they offered domestic violence counselling and awareness training, he would have undertaken it.
On the balance of probabilities and having regard to the detailed records of the corrections officer, I am satisfied that offers of family violence counselling were made. The detail of communication with the corrections officer, as well as the details of the offer to engage in the pilot by reference to the Acting Director of the family violence program and explanation as to why he would not, is a comprehensive and contemporaneous record on which I place weight. I do not accept the father’s denials of any offer in the face of the records.
The offer for family violence counselling were made after the initial report of Mr C had been received. The fact that the father was well aware after commencement of proceedings that his past conduct, the coercive and controlling behaviour, the violence, and his lack of insight, were the issues before the Court and yet still refused such assistance, is the most stark example of the father’s rigidity and unwillingness to change his behaviours.
There were other blatant examples of the father lying to the Court during his oral evidence, and only retracting such statements when he was shown evidence to the contrary. Several examples of his lack of candour are set out below.
It was put to the father that during a period of adjournment he left the courtroom and yelled, in the close vicinity of his partner. He denied that occurred and gave evidence to the effect that he just went outside, went down the stairs through security and for a cigarette and that he did not hear anybody yelling. Shortly after, Ms J was called to give evidence and she confirmed that the father did exit the courtroom and yelled in frustration.
The father maintained that he was a great dad to the twins and claimed that whilst he did stupid things it never “corresponded to the children.” The father was then taken through his criminal history which detailed events that occurred in the presence of his older sons D and F respectively. He was also taken to Exhibit 8 which read “upon arrival at the location, Police identified [the father] sitting on the floor in the living room with his two 3 year old children”, and the family report which records X’s recollection of the event and that she was “worried”, following which he became distressed and said “it hurts”. This demonstrates that the father had little awareness of whether the children were in fact present and being exposed to family violence, and little insight as to the impact on them, such that he maintained at the beginning of his evidence that he was a “great dad”.
I find that the father poses an unacceptable risk of harm to the children, by exposure to family violence and by psychological harm on account of his historical pattern of manipulative and coercive behaviour and his complete lack of insight into his behaviour its impact.
SHOULD THERE BE AN ORDER PERMITTING THE FATHER TO SEND CARDS GIFTS AND LETTERS?
The father relied upon the opinion of the Court Child Expert who identified certain benefits to the children of contact and communication continuing.
The benefits identified by the Court Child Expert included that contact and communication could be of benefit to the children, as to have a relationship with their father could fill the void that would be left by there being no father in their lives.
The twins know of and remember their father. The Court Child Expert identified that they could experience sadness and grief from losing their father in their lives.
Z does not know who her father is and accordingly is not in the same situation as the twins, in that she is not going to experience a memory of a loss. However, there is no doubt she will reach an age where she will become aware there is no father in her life, unlike some other children, and may ask questions of who her father is. It should be noted that she has two other siblings through her mother, that she resides with and who have a different surname and father to her. She may not have a feeling of sadness and loss but will equally have questions and possibly become aware of a void of no father in her life.
The unusual situation in this case is that the children from the four relationships of the father each spend time with each other and spend regular time with the paternal grandparents. The eldest child, D, lived with the paternal grandparents following the incident of violence against the first respondent mother witnessed by the children of the second respondent mother. The child F, who has significant disabilities, spends time with the children at the home of the paternal grandparents. The twins and Z spend time together most holidays and the twins are cared for by the paternal grandparents four days each week.
It is accordingly reasonable to infer that the children will discuss their familial connection as they become older. Z will become aware of the existence of her father. In circumstances where there is such regular contact with the paternal family and half siblings, it is naïve to suggest otherwise. The children do not, as counsel for the father suggested, “live in a bubble.” I am satisfied that it is likely that, because of the connection with paternal family, questions will be asked by the children, including Z, as they get older, about their father. It is for these collective reasons that it is in the best interests of the children that the arrangements are consistent for each of them, despite the twins previously having a relationship with their father and Z not having met him.
The Court Child Expert identified a positive factor, being that with some communication and connection, demonisation, or alternatively, idealisation, of the father could be avoided. Additionally if some connection through communication and gifts is established the children will be given an opportunity as they grow to form their own opinions as to their father.
The proposed order of the ICL, as adopted by the father, gives the respondent mothers absolute discretion as to providing the gifts, cards and letters to the children. It was conceded by counsel for the father that the order should be made with the respondent mothers having full discretion as to whether to show the children the cards, for example in the event that the communication was not appropriate. Given that complete discretion, in my view, there is very little risk of the father causing psychological harm to the children as any inappropriate communication would not be provided to the children.
If the respondent mothers continue to make child-focused decisions, and the cards and gifts are positive, the children will derive benefit from receiving some communication from their father. This arrangement avoids the risk of demonising and idealising the father, and removes the void identified by the Court Child Expert. If the father’s communication is negative, the respondent mothers will not pass on the gifts and cards.
The respondent mothers have said they will have their own ongoing psychological and other support. They said they will seek assistance for the children as required, which may include advice as to the timing of provision of the cards and gifts. There is no risk apparent from such an approach.
Both mothers have final AVOs against the father.
An extract of the AVO for the protection of the second respondent mother contains the standard provisions that he not, assault or threaten, stalk, harass or intimidate her. I consider this a protective factor which may empower the second respondent mother to take action in the event that the limited cards the father is permitted to send are used inappropriately or are harassing or manipulative in nature.
In my view, orders permitting the father to send cards to the children are consistent with the terms of the AVOs made for the protection of the respondent mothers.
Both the father and the ICL propose for the respondent mothers to provide a postal address for which the gifts and cards are to be sent. They could be sent to a PO Box or through the children’s or mothers’ counsellors. This again gives the respondent mothers a safety net and autonomy in where and how the communication occurs.
The restraints sought on the content of the letters and cards is a further safeguard against any negative emotional impact on the respondent mothers and the children. Such restraints also provide an opportunity for the father to discuss the orders with his own psychologist with whom he will engage for his schema therapy to ensure compliance.
Each of these factors weigh in favour of the orders being in the best interests of the children, as they align with the concerns identified by the Court Child Expert of filling the void, of a safety net of communication with restraints such as distance by the PO Box coupled with the complete discretion of the respective mothers as to how, when and whether to provide the cards gifts and letters in consultation with their own and the children’s therapists. It should also be noted that the communication will only be directed from the father to the children, as the children will not be required to communicate anything in reply.
The first and most compelling of the factors indicating against such orders is the impact on the respondent mothers and on their respective parenting.
The Court Child Expert opined in her report that:
There is also a risk, that if the children spent time or communicated with the father, this could cause each of the respondents’ significant stress and conceivably impair their parenting capacity. Ideally it is preferable for the father to receive some information regarding the children, to reassure him they are safe. Nevertheless, discussions with the respondents did not identify a suitable mechanism through which this could occur, largely due to them fearing receipt of any such information could place the children or themselves at risk of harm.
The first respondent mother has the care of Z and two older children from a previous relationship. Her evidence was that, when required to deal with the father, she became short tempered and snappy with Z. She was however able to articulate the supports and techniques she uses to manage such stressors.
The first respondent mother deposes in her affidavit that she has post-traumatic stress disorder (“PTSD”), and that she is terrified of the father. Her diagnosis of PTSD was not challenged by the father.
I accept her strong desire is for there to be no communication between Z and the father, given her history of being subjected to family violence and coercive control by the father. The manipulation she experienced with the lie as to having a terminal illness and being unable to contain his anger due to his medical condition, was extraordinary. She believed his lies and as such, excused his behaviour.
However, the mother’s evidence in court were responding to questions about stressors for in person time between Z and the father. She was not asked about the impact of communication in the form proposed of gifts and cards. I accept that any form of communication will likely cause the mother some anxiety however am not satisfied that such impact outweighs the benefit to the child of the communication.
The mother presented as child-focused and resilient, and as having capacity to seek any professional or familial support she may need to support her in the event of communication orders sought being made. She was extremely child focussed.
It is her evidence that Z currently does not know she has a father, so in effect, an order permitting cards gifts and letters would force the topic to be raised with her. I agree that such information should not be forced on Z until she is emotionally ready to deal with the information. However, the discretion to the respondent mothers to provide the gifts, cards and letters enables the first respondent mother to make an informed decision in consultation with respective counsellors as to how, when, where and whether to provide such communication.
The evidence before the Court is that X and Y know the father and have asked about him. X remembers him and has expressed concern to the Court Child Expert. Y spoke of wanting to spend time with the father if the father gave him “big hugs”.
The second respondent mother was visibly distressed at the suggestion of engaging with the father. I accept her evidence as to her distress and fear as I observed her visibly struggling to remain calm in the witness box at the time of her cross-examination. There is no doubt she was terrified of the father, and I accept her distress against a background of findings of manipulation, coercive control and family violence.
The second respondent mother has support in the form of her own counselling and regular practical and emotional support from the paternal grandparents. She was able to give evidence about her methods of coping, such as the use of breathing techniques, as displayed during her oral evidence.
The evidence of both of the respondent mothers does not meet the high standard identified in Keane, that the respondent mothers’ caregiving capacity would be “discernibly impaired” by allowing the father to send cards and gifts to the children no more than four times per year.
The concerns and fears are ameliorated to some degree by the factors identified above, including that the respondent mothers have discretion as to how the cards will be received and whether and when the gifts and cards are provided to the children and will engage in ongoing supports for themselves and the children.
The father has perpetrated extreme control and manipulation over both the respondent mothers while addicted to illicit substances. He has also been manipulative, coercive, and controlling since no longer being addicted as set out above. For this reason, it would not be appropriate to allow the father to communicate with the children in long form such as through letters.
On balance, it is in the children’s best interests to receive cards and gifts, but not letters, from the father on no more than four occasions per year. Under s 60CG of the Act, the Court must, as far as possible, make orders that are consistent with any family violence order and which do not expose a person to an unacceptable risk of family violence. The father is prohibited from contacting the first respondent mother, except in accordance with an order or parenting plan made under the Act. The father is prohibited from contacting the second respondent mother except through a lawyer or as agreed in writing between them about contact with children My assessment is that the risk posed by such order, including to each of the respondent mothers, is low on account of the ameliorating and protective factors set out above, namely the complete discretion afforded to the mothers and one way nature of the communications. In my view, making such an order will ameliorate the concerns raised by the Court Child Expert of the children feeling a void and either demonising or idealising the father should they have no contact with him.
Accordingly, I make the orders as sought by the ICL and the father for communication of no more than four times each year. I order that in respect of the twins that the communication occur in respect of both X and Y at the same time, that is the father must communicate with the twins at the same time such that the contact with their home is limited to four times per year in total.
OVERSEAS TRAVEL
The respondent mothers each sought orders to be permitted to travel overseas with the children. I infer that the respondent mothers, who each hold sole parental responsibility for the children, will make decisions for travel that are in the best interests of the children. No submission was made as to why such an order to permit the children to experience overseas travel, broaden their minds and experience such opportunities, would not be the best interests of the children. I accept that it is in the best interests of the children for such opportunity to be made available to them in the future and accordingly make such an order in respect of each of the children.
MENTAL HEALTH PROFESSIONALS FOR THE CHILDREN
The father and the ICL sought that the respective mothers are required to take the children to mental health professionals for ongoing support as to their understanding of their relationship with their father. No evidence as to the time frame for such to occur was provided. The evidence of the Court Child Expert was that the children are at risk of feeling a “void” in their lives given the absence of their father.
There were no submissions made by the father nor the ICL identifying the evidence in support of such an order.
All parties agreed that the respondent mothers should hold sole parental responsibility for the children. I am satisfied that the respondent mothers have acted protectively and made decisions that are in best interests of the children thus far, and that they each will continue to do so. I am confident they will each seek professional psychological assistance if they or the children require it, and accordingly will not order that they do so.
I am satisfied, however, that it is appropriate that in the event either respondent mother seeks professional assistance, that it is in the best interests of the children that the report of the Court Child Expert and these reasons be made available to the respondent mothers’ and children’s respective mental health professionals pursuant to s 121.
I am also satisfied that it is appropriate that the Family Report and both reports of Mr C, together with these reasons, should be made available to any treating psychologist, psychiatrist or general practitioner of the father.
RESTRAINTS AND OTHER ORDERS
There was no evidence that the first respondent mother posed a risk to Z through alcohol misuse. No submission was made by the ICL as to why such an order was necessary or in the best interests of Z.
I am not satisfied that such an order is necessary or in Z’s best interests.
The evidence supports a finding that the second respondent mother was using alcohol to cope during periods of stress, as she reported to the Court Child Expert. Her evidence is now that she consumes alcohol once or twice a week and she usually does not consume more than two alcoholic drinks when she has care of the children. This was not in contest. Her evidence was also that she works with children and has support from the paternal grandparents. She gives evidence that she ceased consuming marijuana subsequent to separating from the father.
Her evidence as to her sobriety and her familial support was not in contest. I am not satisfied on the balance of probabilities that such a restraint is supported on the evidence and decline to make such an order.
A restraint on use of illicit substances whilst a party has care of the children is an appropriate order given the history of drug use by the parties, and noting such order is also made with the consent of the respondent mothers who will be subject to it.
The ICL sought that each party be restrained from saying critical or unkind things about the other parent in the hearing or presence of the children. This is an appropriate order given the history of the matter and the young ages of the children who spend time with members of the paternal family.
The ICL and the father sought an order that requires the ICL and the Court Child Expert to meet with X and Y to explain the effect of these orders. No submissions were made as to why that would not be appropriate. I am satisfied that it is an order in relation to the welfare of the children pursuant to s 67ZC and accordingly I make that order.
ADDITIONAL CONSIDERATIONS
s 60CC(3)(a) - Any views expressed by the child and any factors that the court thinks are relevant to the weight it should give to the child’s views
This has been addressed in the body of the judgment above.
s 60CC(3)(b) - the nature of the relationship of the child with each of the child’s parents and other persons (e.g. grandparents)
This has been addressed in the body of the judgment above.
s 60CC(3)(c) - the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child; and to spend time with the child; and to communicate with the child
This is not a factor relevant to this determination.
s 60CC(3)(ca) - the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents obligations to maintain the child
This is not a factor relevant to this determination.
s 60CC(3)(d) - the likely effect of any changes in the child’s circumstances
For the twins, X and Y, the orders will modestly change their circumstances in that they will have contact from their father, who they remember, and who they have not had contact with for some years. The frequency of such contact is limited, and as such will not change their circumstances markedly.
The receipt of communication from the father will change Z’s circumstances. In the day to day, for the same reasons as for the twins, it is unlikely to markedly change her circumstances. However, she will soon become aware of her father and who he is, which will represent a change to her circumstances, which is to be managed and controlled by the first respondent mother who has indicated that she would seek out support for Z during this period.
s 60CC(3)(e) - the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is not a factor relevant to this determination.
s 60CC(3)(f) - the capacity of the each of the parents and any other person to provide for the needs of the child (e.g. emotional and intellectual needs)
The respondent mothers have each demonstrated that they are attuned to the emotional and intellectual needs of the children in their preparedness to obtain professional help and care for each of them. This is not in dispute. The father’s capacity to provide for the needs of the child is limited against the background of family violence and his lack of insight. In my view, the orders made ameliorate any risk that arises from his lack of capacity to provide for their needs.
s 60CC(3)(g) - the maturity, sex, lifestyle and of the child and of either of the child’s parents
This has been addressed in the body of the judgment above.
s 60CC(3)(I) - the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
This has been addressed in the body of the judgment above.
s 60CC(3)(j) - any family violence involving the child or a member of the child’s family
This has been addressed in the body of the judgment above.
s 60CC(3)(k) - if a family violence order applies, or has applied, to the child or a member of the child’s family - any relevant inferences that can be drawn from the order
This has been addressed in the body of the judgment above.
s 60CC(3)(l) - whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Much reference was made in submissions about the institution of further proceedings in the event that the father continues to better himself and implements the recommendations of the experts who gave evidence. In my view, the orders made are in the best interests of the children and allow the father to maintain a connection to the children in some respect, which may lead to the institution of further proceedings. Should the father demonstrate a change in circumstances to meet the threshold of Rice v Asplund (1979) FLC 90-725, he will be at liberty to pursue such orders that he seeks.
CONCLUSION
Having consideration to all the evidence, I conclude that the orders are in the best interests of the children.
I certify that the preceding one hundred and forty-one (141) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Curran. Associate:
Dated: 14 May 2024
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