Treadwell & Hyams
[2024] FedCFamC2F 1283
•19 September 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Treadwell & Hyams [2024] FedCFamC2F 1283
File number: MLC 6100 of 2022 Judgment of: JUDGE CHAMPION Date of judgment: 19 September 2024 Catchwords: FAMILY LAW – Parenting – Where the children are aged 15 and 12 – Where Father has a history of family violence – Where the parties agree that the 15 year old child ought to live with the Mother and spend time with the Father in accordance with the child’s wishes – Where there was unacceptable risk of emotional harm for the 12 year old child spending time with the Father because of continuing family violence and other factors – Whether there are methods of risk amelioration available to avoid a no time orders as a last resort – Orders for no time made Legislation: Evidence Act 1995 (Cth) s. 140
Evidence Act 2008 (Vic) s. 141
Family Law Act 1975 (Cth) ss. 60CA, 60CC, 61DA, 65DAC, 67Z, 68R, 69ZW, 69ZT
Family Violence Protection Act 2008 (Vic) s. 74
Firearms Act 1996 (Vic) s. 3
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r. 6.05
Cases cited: A v A (1998) FLC 92-800
Amador & Amador [2009] FamCAFC 186
Baranski & Baranski [2012] FamCAFC 18
Bielen & Kozma [2022] FedCFamC1A 221
Britt & Britt (2017) FLC 93-764
Cole & Rudzik [2024] FedCFamC2F 14
Cotton & Cotton (1983) FLC 91-330
Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5
Fitzwater & Fitzwater (2019) 60 Fam LR 212
Helbig & Rowe [2016] FamCAFC 117
Hendy & Penny [2018] FamCAFC 257
Holman v Holman (1964) 5 FLR 406
In the Marriage of JG and BG (1994) FLC 92-515
Isles & Nelissen (2022) FLC 94-092
Johnson & Page (2007) FLC 93-34
Judd & Pryor [2020] FamCA 78
Keane & Keane (2021) 62 Fam LR 190
Khalil v Tahir-Ahmadi (2012) 47 Fam LR 347 (FC)
Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 36
M v M (1988) 166 CLR 69
Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61
McCall & Clark (2009) FLC 93-405
Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611
Rejfek v McElroy (1965) 112 CLR 517
Stott & Holgar [2017] FamCAFC 152
Summerby & Cadogen [2011] FamCAFC 205
Chisholm, Richard, ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010
Fogarty, John, ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249
Division: Division 2 Family Law Number of paragraphs: 286 Date of last submissions: 17 July 2024 Date of hearing: 18–19 April, 3 May, 27–28 June, 17 July 2024 Place: Melbourne Counsel for the Applicant: Ms Damon Solicitor for the Applicant: V M Family Lawyers Counsel for the Respondent: Ms Papadinas, Mr Levine Solicitor for the Respondent: Bramham Lawyers, Maciel Pizzorno Lawyers Counsel for the Independent Children's Lawyer: Ms Glaister Solicitor for the Independent Children's Lawyer: Taft Lawyers ORDERS
MLC 6100 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MS TREADWELL
Applicant
AND: MR HYAMS
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
19 SEPTEMBER 2024
THE COURT ORDERS THAT:
1.All previous parenting orders are discharged.
Sole parental responsibility
2.The Applicant Mother have sole parental responsibility for the children X born in 2008 (X) and Y born in 2011 (Y) (collectively the Children).
Live with arrangements
3.The Children live with the Mother.
4.The Mother will inform the Father in writing of any serious illness or injury suffered or sustained by either of the Children as soon as practicable and provide the Father with details of any decisions made or outcomes with respect to any treatment required or received by either of the Children.
Spend time and communication arrangements
5.X spend no time with the Father unless X seeks such time in writing and for the purpose of this order the Father keep the Mother informed of his current email address and contact telephone number and the Mother shall provide that information to X.
6.Y spend time and communicate with the Father as follows:
(a)on four occasions per year, on dates and times as agreed between the parties and failing agreement in March, July, October, December for a period of no longer than four hours;
(b)such time occur supervised by B Contact Service or other agreed supervisor (the supervisor) at the Father’s sole expense;
(c)the Father give the Mother notice of his intention to spend time with Y at least 2 weeks prior to the proposed time, in writing and in consultation with the supervisor; and
(d)such additional time as the Mother agrees in writing.
School
7.The Mother is to authorise the Children’s school to allow the release to the Father of the Children’s school reports to enable him to obtain information as to the academic progress of the Children.
8.The Father shall not attend at the Children's school or school events unless agreed by the Mother in writing.
Injunction against denigration
9.The parents are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent to or in the presence or hearing of the Children and from allowing any other person to do so; and
(b)discussing these proceedings, or other proceedings in which the parents are involved, or the contents of any court related documents filed in these proceedings, with or in the presence or hearing of the Children and from allowing any other person to do so.
Physical Discipline
10.The Mother and Father must not discipline the Children by any physical means.
Independent Children’s Lawyer
11.The Mother is requested to make the Children available to consult with the Independent Children’s Lawyer as soon as practicable following the Judgment to enable him to explain the Orders made.
12.After the Independent Children’ Lawyer has consulted with the Children in accordance with Order 11 the appointment of the Independent Children's Lawyer is then discharged.
13.Pursuant to Sections 62B and 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
14.Under s. 114Q(2) of the Act, the Mother and the Father may disclose these orders to the principal or his or her delegate of any school the Children attend in relation to ensuring compliance with these orders.
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 a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
Ms Treadwell, the Applicant Mother, has applied for parenting orders for two children, X, born 2008, now 15 years old, and Y aged 12 (the Children). Mr Hyams is the Respondent Father.
The Mother applies for final orders that X spend time with his Father in accordance with his wishes and that Y spend no time and have no communication with the Father (Ex. A16). The Independent Children’s Lawyer and the Mother seek similar orders. Alternatively, the Mother seeks orders that Y spend time with and communicate with her Father on four occasions yearly with such time to be supervised by B Contact Service or other agreed supervisor at the Father’s sole expense (Ex. A16).
The Father applies for orders that Y spend time with him each alternate weekend from Friday after school until the commencement of school on Monday (a 3:11 configuration of nights fortnightly) and that Y spend additional time after school with him on Thursdays from 3:30 PM until 8 PM. He seeks orders that Y spends time with him for half of the school holidays.
WHAT IS THE COMMON GROUND?
Live with orders
The Children currently live with the Mother. As each party framed their case, there is no issue that it is in their best interests that they continue to do so. I am satisfied that it is in the Children’s best interests that they continue to live with the Mother.
Spend time with orders as to X
It was common ground that X should spend time with his Father in accordance with X’s wishes. Because X is now 15 and has a level of understanding and maturity under s. 60CC(3)(b) to make such decisions I am satisfied that such an order is in his best interests.
The allocation of sole parental responsibility to the Mother
It was common ground that I should make an order that the Mother have sole parental responsibility for major long term decisions as to X and Y. The presumption under s. 61DA(2) as to equal shared parental responsibility does not apply because there are reasonable grounds to believe that the Father has engaged in family violence.
In any event, the high conflict between the parents made clear that they would be unable to discharge the responsibility of joint decision-making. As Austin J said in Manifold & Alderton (2021) FLC 94-015; [2021] FamCAFC 61 at [109] the intractable and enduring conflict between the parents is irreconcilable with the discharge of the joint legal responsibility under s. 65DAC of the Act. The Father said of the Mother that “the thought of her makes me sick” (T315:L13-23). Pressed by counsel for the ICL in cross-examination as to sole parental responsibility the Father said (T335:L23-25):
[COUNSEL FOR ICL]: And let me put this to you, given the state of your relationship, it would not be possible for you two to make joint decisions about the care of the children?
FATHER: That’s probably true, yes.
The Family Report Writer opined that “these two couldn’t share parental responsibility” (T470: L19). The Family Report Writer made the following recommendation in her Report Addendum (5 April 2024) at [32]: “[the Mother] …have sole parental responsibility for the children”. I accept her evidence.
Because the Children live with her Mother, she is relatively better placed than the Father to discharge the obligations of parental responsibility. In closing submissions, the Father accepted that sole parental responsibility ought to be allocated to the Mother (T561:L11-14).
WHAT ARE THE ISSUES?
The following issues arise for decision:
(1)Is there an unacceptable risk of emotional harm to Y when spending time with the Father?
(2)Is there a need to protect Y from risk in the Mother’s home?
(3)How do the other primary considerations and additional considerations in s. 60CC affect the orders to be made in the Children’s best interests?
(4)If there is an unacceptable risk for Y spending time with the Father, can steps be taken to mitigate any unacceptable risk so as to avoid a no time order as a last resort?
(5)Does the potential adverse impact on Y of severing her relationship with her Father outweigh the risk of harm to her by spending time with the Father?
(6)What orders are in the Children’s best interests?
The balance of these reasons is structured as follows:
(a)summary;
(b)some notes as to the course of the trial;
(c)the necessary background; and
(d)the six issues identified above.
WHAT IS MY SUMMARY?
There is an unacceptable risk of emotional harm for Y from spending time with her Father. No party advanced practical available steps to mitigate that risk so as to avoid the last resort of a no time order. The Father strongly opposed an order for professional supervision. He said professional supervision was not practical given Y’s age. I will make an order that Y spend no time with her Father save for four times a year. Such limited time will enable Y to know her father and to resume a relationship with him when she has the maturity to make those choices for herself without exposing her to the unacceptable risk of emotional harm of frequent and regular time on a fortnightly basis as the Father proposed. Supervision four times a year for a period not exceeding 4 hours is realistic for a period in a way in which supervision of 3 nights each fortnight is not practicable.
My reasons follow.
WHAT WAS THE COURSE OF THE TRIAL?
On 18 April 2024 the hearing commenced. It occurred in stages over 6 days.
Because this trial commenced before 6 May 2024. I must decide the issues in accordance with the law as it stood before amendments to Part VII of the Family Law Act 1975 (Cth) commenced.
I heard evidence from the parents and Ms C, the paternal grandmother. Ms D, the Family Report Writer, gave evidence and was cross-examined. As I have noted below, Ms E, the Father’s current partner, was referred to in the evidence but did not give evidence before me.
In part the trial occurred in stages because the Father’s retainer of his previous lawyers ended very shortly before the trial’s scheduled third day on 3 May 2024. On 3 May 2024, the Father told the court he had COVID-19 and was not present in court for the scheduled resumption of the trial. On 3 May 2024 his recently retained lawyers applied for, and I granted, an adjournment.
On 3 May 2024 I also made an interim order suspending weekly face time or other electronic communication between Y and the Father because it was submitted that the Father had said during the most recent FaceTime communication that “I have a plan, you will be coming back into my care” (T282: L14-21). I made an interim order suspending time because I regarded the Father as inappropriately involving Y in the parental dispute. When the trial resumed, the Father disputed that he had conducted himself inappropriately in any Facetime communication in the period leading up to 3 May 2024.
On 28 June 2024 the Father applied to re-open his case to have the Mother recalled for cross-examination. I gave leave to the Father to have the Mother recalled for further cross-examination as to a number of identified discrete topics as to which she was not previously cross-examined.
WHAT IS THE NECESSARY BACKGROUND?
Chronology
The Mother is 38 years old. The Father is 39 years old.
From early 2008 until May 2013 the parents were in a relationship. Despite the Father’s denials, as I have explained below, I accept the Mother’s allegations that the Father was repeatedly violent during the relationship.
In 2008 X was born.
In 2011 Y was born.
In May 2013 the parents separated on a final basis.
After the Mother commenced another relationship with Mr F, she had another child with Mr F, G, born in 2014. G is now 9 years old and lives with the Mother and her partner, Mr H.
Since about 2018 the Children have lived with the Mother and Mr H. The Mother and Mr H have a daughter from their relationship, J, aged 4. Mr H has two teenage children from a previous relationship.
There are six children who live in household of the Mother and Mr H: X, Y, G, J and Mr H’s two teenage children.
The Mother is employed full-time as a community worker. Mr H is a tradesperson.
From about late 2019, the Father commenced a relationship with Ms E. The Mother’s evidence was that, since Mr Hyams started his relationship with Ms E, he became more consistent in spending time with the Children on alternate weekends.
In 2021, the Father was jailed for domestic violence offences and contravening a family violence order in which Ms E was the named protected person (Ex. A5).
In November 2021, the parties entered into a Parenting Plan which provided for the Children to spend time with the Father each alternate weekend, Friday to Sunday.
In early 2022, the Mother’s evidence was that Ms E told her that the Father had assaulted her. Ms E told the Mother that the assault was sufficiently serious that Ms E required surgery. The Father denied these allegations.
As a consequence of the alleged assault, the Mother’s evidence was that the DFFH advised her not to provide the Children to spend time with the Father. In early 2022, the DFFH closed the case and the children recommenced spending time with the Father.
Both parents live in suburban Melbourne. The Father does not live with Ms E. The Father lives with Ms C, the paternal grandmother, a short drive from the Mother’s home.
Events leading to the commencement of the current proceeding
On 2 June 2022 Y refused to get up for school. The Mother’s evidence was that when the Mother told her to get up, she picked up Y’s iPad and put it on the bed so that she would not step on it. Y said words the effect: “I’m going to tell dad that you threw that at my head so I can live with him.”
Y spent time with the Father that weekend. The Father was due to return the Children to the Mother on Sunday.
On 5 June 2022 the Father withheld Y (then aged 10).
On 8 June 2022 the Mother commenced these proceedings by the filing of an urgent recovery order application.
On 9 June 2022 this Court made orders that the Father return Y to the Mother that day (order 12). On 9 June 2022 the Court made further orders that the Children spend time with the Father each alternate weekend and half school holidays.
In August 2022 there was a text exchange between X and Ms E, the details of which I will return to below, which referred to the Father’s alleged threat to kill the Mother.
In mid-2022, following an urgent police application and the alleged threats to kill, the Magistrates’ Court made an order under s. 68R of the Act suspending the interim orders made in this Court on 9 June 2022 for the Children to spend time with the Father.
The DFFH filed a s. 67Z Response letter dated 21 September 2022 following the parties filing Notices of Child Abuse, Family Violence or Risk. Both children reported to the DFFH that they felt safe and happy living with the Mother. The s. 67Z Response concluded that the DFFH intended to close its investigation. DFFH recommended that the Children live with the Mother and that any contact arrangements with the Father were “subject to their wishes as there are significant power imbalances between them and [Mr Hyams],” while recommending that supervised contact at a contact centre may serve to mitigate these risks.
On 19 October 2022 this Court made interim orders for the Children to spend supervised time with the Father. The orders provided for X to spend additional time with the Father in accordance with his (X’s) wishes.
On 5 August 2023 the provider of the supervision service noted that X refused to spend time with the Father under the supervised time orders.
On 26 September 2023 a supervision report was released.
Also on 26 September 2023, the Court made orders that Y spend time with her Father each alternate Thursday after school until 7:30 PM and progressing to each alternate weekend from Saturday (10 AM) until Sunday 5 PM. The Court made orders that X spend time and communicate with the Father in accordance with his wishes.
From 26 September 2023 until February 2024 Y spent time with her Father each alternate Thursday after school until 7:30 PM and each alternate weekend from Saturday (10 AM) until Sunday 5 PM.
In early 2024, the Father was charged and remanded in custody in connection with various criminal charges including persistent breach of a family intervention order (IVO) as to Ms E. Shortly before the Father was charged, the Mother withheld Y from the Father. The Father served approximately 20 days in jail on remand in early 2024.
On 20 February 2024 the Court suspended the interim orders made on 26 September 2023.
Since February 2024 Y has spent no time with her Father.
In early 2024 the Father was released from jail on the basis of time served following a plea of guilty to some charges. Other charges were struck out or withdrawn.
WHO ARE THE RELEVANT PEOPLE?
It is necessary to say something of the main witnesses, the Mother and the Father and something of the circumstances of Ms E who did not give evidence in this case.
In Lehrmann v Network Ten Pty Ltd (Trial Judgment) [2024] FCA 36, Lee J at [147] said:
…many experienced judges have expressed the caution that any criticisms of a witness, which go beyond the legitimate necessities of the occasion, should be avoided. Unnecessary credit findings should be eschewed. Part of this reticence reflects a body of research casting doubt on the ability of judges to make accurate credibility findings based on demeanour: see Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 (at 129 [31] per Gleeson CJ, Gummow and Kirby JJ).
Adopting those words, I say the following.
Ms Treadwell
The Mother impressed me as focused on the best interests of the Children. Where she made allegations of past violence against the Father she did so with specific reference to events. She had the insight to acknowledge that in 2013–2016 she had prioritised her relationship with Mr F ahead of her Children which had led to the involvement of the DFFH and a protection order which was operative between mid-2013 and mid-2016. Since 2016, to her credit, she had sought out appropriate support services from community organisations. The Mother is appropriately engaged with the Children’s lives. She referred to X pursuing an apprenticeship one day a week. She was seeking to enable Y to access counselling but in a way which would protect Y’s relationship with her peers. I accept her evidence.
Mr Hyams
The orders I will make that Y spend no time with the Father are doubtless orders with which he strongly disagrees and are likely to be distressing to him.
I acknowledge that I have no doubt that the Father loves his daughter and that Y loves him.
As will appear throughout these reasons, the reasons that underpin my orders are that the Father’s past conduct – towards his partners over a long period of time – proves that he has a propensity to violence. Despite the evidence, he refuses to accept that he has engaged in this violence. He further refuses to accept that his violence poses a risk of emotional harm to Y.
Although as Lee J observed in Lehrmann at [136] “rejecting part of an account of a witness of an event … [does not] mean one must reject all aspects of the account of the witness”, significant parts of the Father’s evidence lacked credibility.
I note the following.
The first issue of concern about the Father’s evidence was that – despite the weight of evidence of his violence directed towards different women with whom he had been in relationships over many years – he refused to accept that there was a history of substantial violence. The core of the incontestable evidence of his violence was in his criminal record. Despite his criminal record, he did not accept that he had been violent towards these women. His steadfast denials in the face of the weight of evidence against him meant that I was unwilling to accept his evidence when it was in conflict with other evidence.
The second issue is that on at least one issue by reference to documentary evidence before the court as to drug tests, I find that the Father knowingly took active steps to conceal the true state of affairs and took steps to mislead the court.
The Court made orders on 19 October 2022 that the Father submit to random supervised drug screening tests. The Father knowingly altered a drug test result (Ex. A9 and Ex. A10). On 22 May 2023, the Father (via his then lawyers) provided a urine drug screen in which illicit drugs were “not detected”. Ex. A9 recorded:
This sample was collected on 02/05/2023. Time unknown.
The original version of this pathology report, obtained on subpoena from N Medical Centre (Ex. A10), includes an additional notation not on the copy the Father had provided in answer to the ICL’s request (via his then lawyers):
PLEASE NOTE: Unsupervised urine collection
Ms E’s affidavit which, ultimately, she did not adopt in evidence, set out that the Father had “whited out” the notation that the urine collection was unsupervised. That information acted as a catalyst for the Mother to issue the subpoena for the original pathology report which highlighted the discrepancy between the reports. In cross-examination, the Father provided no satisfactory explanation for the difference between the pathology report he first provided and the original. I find that the Father tampered with the drug test result as he first provided it to conceal the true state of affairs and mislead the Court. This issue detracted from his credibility as a witness. Although his counsel submitted to the contrary (T590:L10) it also gives rise to an inference that as to the underlying issue that he in fact had an ongoing issue with illicit drugs.
The third issue is that on several issues the Father’s evidence was fanciful or incredible, in the sense of being unable to be believed. In 2017 he was convicted of cultivating a narcotic plant (cannabis) and sentenced to a Community Corrections Order. I infer that the serious criminal sanction was proportionate to the seriousness of the charge: this was no trifling matter. His evidence was in effect that the conviction was of little moment because he had a “botanic” interest in the cannabis plants.
He appeared on television at a hate group gathering. His evidence was that he believed that the gathering was a business networking meeting.
He gave sworn evidence that he had not used illicit drugs since X was born (15 years ago) but there was an audio recording of him acknowledging his use of illicit drugs in a conversation with Ms E a conversation which occurred in 2020 or more recently.
His evidence as to the conviction on the cultivation of cannabis, his attendance at the hate group gathering and his denial of the use of illicit drugs was fanciful and incredible. I reject it.
The fourth issue concerned a tendency to understate the evidence adverse to his case. A standout example was that the Father in his affidavit admitted that in early 2024 “I entered into a plea of guilty for breaching an intervention order”. In fact, he entered a plea of guilty also to unlawful assault and contravening a conduct condition of bail. As to the intervention order, the charge was in fact persistent contravention of an intervention order.
In a related point, the Father had a duty of disclosure under r. 6.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) as to parenting proceedings. In significant part, issues concerned whether there was an unacceptable risk to Y spending time with her Father because of ongoing family violence. Important to that issue were the facts as to the Father’s recent criminal convictions in early 2024, about a month before the trial started.
Under applicable criminal procedure, the Magistrate must have sentenced the Father by reference to a summary of the charges as to which he pleaded guilty: a summary often amended by negotiation or agreement between the parties. The sentencing Magistrate requires a summary on the plea so that he or she can understand the facts and assess the gravity of the offending as to which a sentence is being imposed. Despite repeated requests for the Father to disclose a copy of the summary read in the Magistrates Court as to which he entered a plea so that I could assess those matters as to which he accepted criminal responsibility in the framing of parenting orders in the best interests of the Children, the Father did not disclose the summary which form the basis for the exercise of the sentencing discretion (see T540:L1-6). The Father downplayed the significance of the recent criminal charges. The Father’s failure to disclose that document has the effect of causing me to proceed on the basis that any summary would not have assisted his case.
The absence of credibility as to his evidence in respect of the issues above detracted from his credibility as to evidence as to his possession of an unregistered firearm as a prohibited person to which I will return below.
Ms E did not give evidence at the trial
Ms E is the Father’s current partner. The evidence was that she had been in a relationship with the Father since about 2019. She did not ultimately give evidence in the proceedings before me, but there is more to it than that.
Ms E made an affidavit on 9 February 2024 in which she made serious allegations of domestic violence against the Father. It was by reference to the factual matters that Ms E set out in that affidavit that the Father was remanded in custody, ultimately served 18 days in jail and was released in early 2024 on the basis of time served when he pleaded guilty to some charges and other charges were withdrawn or struck out.
In early 2024 Ms E (in writing by police statement) retracted her allegations.
In those circumstances, the Mother requested that the court issue a subpoena with a view to having Ms E adopt her affidavit in this Court. Ultimately, the Mother did not call on the subpoena. It was apparent that the Mother acted out of a concern for Ms E’s predicament given her ongoing relationship with the Father in not calling on the subpoena.
The Family Report Writer said – over objection as to her expertise to express such an opinion – that in her professional opinion Ms E’s conduct of making allegations of violence and then withdrawing them was consistent with the conduct of a person seeking to leave a relationship where there was domestic violence. The Father’s Counsel in the course of an objection to questions being asked of the Family Report Writer as to this issue said it was consistent with Ms E being a “liar.”
Although I must proceed on the evidence before me, the Mother’s reference to the Full Court decision in Hendy & Penny [2018] FamCAFC 257 at [76] was apposite. There the Full Court said in the context of an erroneous evaluation of evidence of family violence being unreliable where there were inconsistencies in the account of the victim:
Amongst other things, this approach fails to recognise how hard it is for victims of violence inflicted by a family member, who is often someone they love or on whom they rely for sustenance, to speak about what has happened. The subject matter is distressing and giving voice to what has occurred can be traumatic in itself. We cannot say strongly enough that those involved in cases such as this must bear in mind that in this setting, disclosure is a process that often requires time before a complete picture emerges.
The Father’s evidence was that he has resumed his relationship with Ms E. He did not call her to give evidence. Although in those circumstances the drawing of a Jones v Dunkel inference may have been available as to the Father not calling his current partner to give evidence it was the fact that the Mother had first filed an affidavit from Ms E on the basis that she would call Ms E as a witness. I have determined that the appropriate course is to proceed on the basis of the evidence before me and not draw any Jones v Dunkel inference either way. I will however have regard to such evidence as is before me in accordance with s. 69ZT(1) and (2).
For context, I set out in a little more detail the sequence of events.
On 31 January 2024 Ms E provided the Mother with a video depicting drug paraphernalia. She said that she had made a report to Victoria Police about the Father’s “aggressive behaviours.” She also provided an audio recording of a conversation between Ms E and the Father in which he admitted using illicit drugs (Ex. A11).
On 1 February 2024 the Mother ceased Y’s time with the Father after receiving this information.
In early 2024 the Mother was present with Ms E when a Detective of Victoria Police advised that a warrant had been issued for the Father’s arrest.
In early 2024 the Father was interviewed by police and released without charge.
In early 2024 it was conveyed to the Mother that the police had applied for an intervention order against the Father on Ms E’s behalf.
On or about 9 February 2024 Ms E made an affidavit in which she made serious allegations against the Father. As noted, Ms E did not give evidence or adopt that affidavit in evidence before me. I did not admit that affidavit into evidence.
In fact, on 12 February 2024, Ms E made a statement of no complaint which the Father annexed to his trial affidavit. Ms E said (among other matters):
The reason I wish to withdraw this complaint is I was too heated and angry at the time of reporting the incident, and after thinking about what happened with a clear mind, | don’t want to proceed with the matter. In my statement but after thinking about this at a later time, I recalled these were actually gel blasters that we use as props for a dress up over two years ago.
…
On 19 February 2024 Ms E sent the Mother a long text which included the following:
I was meant to set him up Police said it would help if they were called while he was at my house so they can arrest him — it ended up a mess 1 can’t even talk to explain cos the girls are here ... as soon as he left i did what he told me to do... like usual only out of fear — no one understands the manipulation & how bad he has got so while in that house I said ok to him *…
I am tired of living in fear...
The police told me they are aware that I was made to make that statements & I told her I made out of fear, …
My mind is so messed up now that I cannot think straight. …. I don’t want to live like this anymore….
— I'm just really sad that he has messed up my life & it involves police [a domestic violence service], counselling Fear, guilt. Hiding out. My friends are affected by it, everyone :( 1 don’t need this anymore. None of us do. I don’t know how u did it but I just don’t feel strong enough anymore. I just don’t know what fo (sic) do. Reporting him each time, that doesn’t save anyone... He is out still angry and wanting revenge 1 don’t know I'm just really lost right now. Nothing will ever stop him from doing what he wants to do. We just live with fear ect forever ... makes sense ()
“No we didn’t fix things no way... he came to say he will leave things in peace if I made new statement so I did — But afer that he started thr eaoning me with mor: es He that’s when I told the police that 1 can’t do this anymore
They know it’s [the rifle] is his They know he forced me to do it They know that I am only doing things right now out of fear cos he is making me worse
…..I told them that just feel like he has messed my whole life up.
[As written]
On 20 February 2024 this Court suspended the interim orders for Y to spend time with her Father.
A Remand Brief apparently prepared for a hearing in the Magistrates Court in late February 2024 was in evidence before me (Ex. A8). It contained substantial material as to the Father’s protracted history of domestic violence. An issue arose for me in circumstances in which the Father denied many of the matters in the Remand Brief and made partial admissions as to other matters in circumstances in which Ms E gave no evidence before me as to what weight, if any, should be accorded to matters in the Remand Brief.
Section 69ZT and the Evidence Act 1995
In a parenting proceeding, some of the rules of evidence do not apply because of s. 69ZT of the Family Law Act. Under s. 69ZT(2) I have a discretion as to what weight (if any) I give to evidence admitted as a consequence of a provision of the Evidence Act 1995 (Cth) not applying because of s. 69ZT(1).
The allegations Ms E retracted were serious: namely, that the Father “had threatened to kill her, she believed he had access to firearms and that he continued to use illicit drugs”.
A Full Court discussed s. 69ZT in Khalil v Tahir-Ahmadi (2012) 47 Fam LR 347 (FC). I am asked to make serious findings as to domestic violence. To the extent that allegations in Ms E’s affidavit informed the material in the Remand Brief, I am also conscious that those allegations have not been directly tested, although the Father was cross-examined extensively by reference to the content of the allegations set out in the Remand Brief. The Father did not object to me receiving the Remand Brief into evidence.
In Khalil, the Full Court approved the trial judge’s approach in relation to evidence admitted with reference to s. 69ZT where the trial judge had said (Khalil, [15]; referring to the trial judge’s reasons at [25]):
evidence in relation to the question of family violence will have to be established clearly, and matters of opinion put in the appropriate context and given the appropriate weight, depending upon who is expressing the opinion and on what basis, and the establishment of the necessary background facts.
I have endeavoured to identify the “appropriate context” and “appropriate weight” as to my findings of family violence in these reasons by reference to the source of the material as to the allegations.
ISSUE 1: IS THERE AN UNACCEPTABLE RISK FOR Y OF EMOTIONAL HARM IF SHE SPENDS TIME WITH HER FATHER?
It is axiomatic that I must regard the “best interests of the child as the paramount consideration” (s. 60CA).
In determining what is in Y’s best interests I must consider the “primary considerations” of the benefit to Y of having a “meaningful relationship with both of her parents” [s. 60CC(2)(a)] and “the need to protect [Y] … from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence” [s 60CC(2)(b)]. I am to give greater weight to the need to protect Y from harm set out in s. 60CC(2)(b) [s. 60CC(2A)].
Legal principles as to unacceptable risk
In Stott & Holgar [2017] FamCAFC 152 at [38], the Full Court confirmed that, where unacceptable risk is alleged, I must consider whether the facts could reasonably be said to raise an unacceptable risk of harm. If a determination is made that such a risk exists, I must then consider whether that unacceptable risk can be ameliorated by safeguards.
A Full Court in Isles & Nelissen (2022) FLC 94-092 set out the principles in assessment of whether a child would be exposed to unacceptable risk of psychological and/or physical harm. “The assessment of risk is a predictive exercise and while it is, naturally enough, liable to be influenced by factual findings about past events …. risks of harm must be heeded even if they are improbable eventualities” (approving Fitzwater & Fitzwater (2019) 60 Fam LR 212 (Austin J, in dissent)). As Austin J said in Fitzwater at [139]: “[a]t some point on the continuum the risk of such harm becomes so potent it cannot be tolerated: it is unacceptable”.
Further, “in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not” (Fitzwater, [142], approving Hale LJ in Re C and B (Children) (Care Order: Future Harm) [2001] 1 FLR 611 at [28]).
Additionally, the following guidance emerges from authorities:
(a)“unacceptable risk” includes not merely physical harm but also includes an assessment of the risk of emotional harm (A v A (1998) FLC 92-800 at 84,996; M v M (1988) 166 CLR 69 at 77);
(b)unacceptable risk can include any or all matters that compromise the safety, welfare and well-being of a child, and is examined in light of an accumulation of factors proved (Director General, Department of Family and Community Services (NSW) and the Colt Children [2013] NSWChC 5 at [146]–[148]);
(c)the components which lead to a conclusion that an unacceptable risk exists need not each be established on the balance of probabilities. The Court may reach a conclusion of “unacceptable risk” from the accumulation of factors, none or only some of which are proved to that standard: Johnson & Page (2007) FLC 93-34’ at [68], endorsing and applying the principles set out in a paper prepared by the Hon John Fogarty AM, ‘Unacceptable Risk: A Return to Basics’ (2006) 20 Australian Journal of Family Law 249; and
(d)while each factor establishing risk need not be proved to the standard of s. 140 of the Evidence Act 1995 (Cth), insofar as determining whether an unacceptable risk exists involves a prediction of the future, based on findings of fact: “the confidence one will have in the prediction will be, in part, a reflection of the confidence one has in the factual findings that base the prediction” (Hon Richard Chisholm, ‘Unacceptable Risk – A Comparison of the Family Law and Care Jurisdictions’, Paper presented at the Children’s Court Conference, Parramatta, 1 September 2010, 15).
How should those principles be applied in this case?
I have identified five factors below as being the factors which cumulatively underpin my conclusion that there is an unacceptable risk of emotional harm to Y from her spending time with her Father on a fortnightly basis:
(1)the Father’s criminal history comprised of a history of domestic violence towards four adult partners;
(2)the Father’s violence towards the Mother;
(3)the Father’s illicit drug use;
(4)my finding (explained below) that the Father possesses a firearm; and
(5)the Father’s extreme political views.
These matters must also be considered in the context of any evidence that the Father has changed, has insight into his past violence and in context of the expert opinion of the Family Report Writer. I have dealt with these matters sequentially below.
(1) The Father’s criminal history of violence against his female partners
There was evidence before the court as to the Father’s criminal history by way of a Court Outcomes report (Ex. A5) and a Remand Brief as to some criminal charges in 2024 (Ex. A8).
The Court outcomes report as to the father’s criminal history
As to the Court Outcomes report (Ex. A5) the Father had convictions:
(a)for cultivating narcotics (cannabis) in 2017 for which he was convicted and ordered to serve the Community Corrections Order;
(b)in late 2021 for contravening a family violence order, failing to answer bail and stalking another person for which he was sentenced to an aggregate 24 days in jail;
(c)In 2024 he was convicted of unlawful assault, contravening a condition of bail and persistent contravention of a family violence order for which he served an aggregate of 18 days in jail.
Where there are convictions recorded against the Father those convictions resulted from admissions or findings that the charged offences were proven against him by a state court beyond reasonable doubt under s. 141 of the Evidence Act 2008 (Vic). As Austin J said in Judd & Pryor [2020] FamCA 782 at [67] his criminal record was sufficient proof because the accuracy the entries was not disputed.
The remand brief prepared in February 2024
As to the Remand Brief, which was prepared and led to the Father being remanded in custody for approximately 15 days in early 2024, I need to proceed with caution as the Father disputed a number of the matters within it.
The Mother submitted that an extract from the Remand Brief (Ex. A8) encapsulated her concerns that there was an unacceptable risk of emotional harm to Y of spending time with the Father because of the Father’s past, and ongoing, criminal history characterised by violence towards his partners. In the Remand Brief prepared in February 2024, police said that the Father:
…has a long history of coercive, controlling, abusive and violent behaviours towards 4 different partners over the last 15 years. His significant family violence history, misogynist attitude towards women and years of contact with police and the judicial and corrections systems, have shown no rehabilitative effect or positive impact on his behaviour as he continues to be involved in offending of the same nature.
I accept that statement accurately and concisely encapsulates the Father’s criminal history.
As to the recorded convictions the Remand Brief provided some more details. I note the following.
In late 2021 the Father was convicted of contravening a family violence interim intervention order, failing to answer bail and stalking other person. He was sentenced to an aggregate of 24 days imprisonment. It was apparent that the conviction was in respect of his current partner Ms E. The charges appeared to stem from conduct that he was “tracking [the] car” of Ms E and her tyres were slashed.
In early 2024 the Father was convicted of “unlawful assault, conduct contravening a condition of bail and persistent contravention of a family violence order.” He was sentenced to an aggregate of 18 days imprisonment which was time he had already served. The persistent contravention of the family violence intervention order again concerned Ms E (Ex. A5). Other charges including being a prohibited person possessing a firearm (to which I will return), making a threat to kill and contravening a family violence interim intervention order to harass a witness were withdrawn.
A history of domestic violence against four adult partners
The Father was cross-examined as to a more extensive history of domestic violence against four adult female partners. He agreed that there had been intervention orders in which each of four women (all his disclosed adult intimate partners), chronologically: Ms L, the Mother, Ms K and Ms E have each been named as the protected family members in an IVO. Each woman had a made an allegation that the Father had made a threat to kill them. Part of the cross-examination of the Father was as follows (T224:L39-41):
So that’s four relationships, four lots have ended with you with intervention orders and four lots of threats to kill. You agree that that’s what has happened?---I agree that’s what has happened, yes.
I note that the Father denied that he had made a threat to kill the Mother.
Ms L
Chronologically in early 2008 the Father admitted that he attended the house of the boyfriend of Ms L, his former partner and admitted assaulting him. The Father says he was 20 years old time (T222:L46). The criminal outcome was a fine.
The Mother
I will return to detailed allegations of the violence against the Mother in due course. The Remand Brief set out that in late 2018 the Father attended the Mother’s house and “was banging on the door and yelling to let him inside as he wanted to see his children”. Under the criminal law he was fined for breach of an IVO. This outcome did not appear in the Criminal Outcomes document (Ex. A5).
The Mother said in her trial affidavit:
[Mr Hyams] often threatened to kill me, saying that he had guns and could do it easily. He would make threats to use the gun on me on a regular basis. It was his go-to threat because he knew it scared me because I knew he had a gun and ammunition.
Ms K
Ms K had made an allegation that the Father threatened to shoot her in the face.
In early 2016 the Remand Brief (Ex. A8) recorded that Ms K reported that she had been in a three-year relationship with the Father who had been “verbally abusive, aggressive and controlling during their relationship.”
The allegation in the Remand Brief was that the Father attended Ms K’s work:
…And told her that if they didn’t get back together he would shoot her in the face so no one could have her, that if she went to the police he would wreck every day of the rest of her life.
He denied that allegation. The Father also denied that he had threatened to kill her.
The Father accepted that he had pleaded guilty in about 2016 to a lesser charge of threatening grievous bodily harm. He was cross-examined as follows (T220:L20-24):
So even though there’s a conviction for that offence, you say that’s not an accurate summary?---Yes. But – because – because the police dropped the charge down to threatening to – threatening grievous bodily – like it was a – it was a lower charge and I just – I – I pleaded guilty to that on the day, just to – just to get it over and done with.
The Remand Brief recorded a conviction and a fine as to this matter.
Ms E
In the Remand Brief, there was evidence that in early 2024 the Father said to Ms E (Ex. A8):
I'll blow your head off, I will easily do 10 years for you, it will be easy. I did six weeks and it was a walk in the park
The Father was not convicted as to this charge.
Ms O: Ms E’s adult child
The history of violence extended to include people other than the Father’s partners.
In early 2024 one of the charges to which the father pleaded guilty was “unlawful assault” (Ex. A5). The victim of the assault was Ms O, Ms E’s adult child, age 25. The Father said in his evidence that he thought he was pleading guilty to approaching Ms O in a threatening manner (T147:L42-43).
As I have noted, despite his duty of disclosure, the Father did not disclose the facts which underlay the charge to which he pleaded guilty as to Ms O.
The extent of the evidence before the Court as to what happened with Ms O are the allegations in the Remand Brief as follows (Ex. A8) and what inheres in the Father’s acceptance of criminal responsibility from a plea of guilty to a charge of unlawful assault:
[MS O] was waiting in a vehicle and observed the accused aggressively moving towards [Ms E]. Fearing he was going to assault [Ms E], she exited the vehicle, moved towards the two of them and yelled at the accused not to hurt [Ms E]. The accused re-directed and advanced towards [MS O] in a threatening manner while yelling at her. [MS O] began stepping backwards while [Ms E] quickly approached the accused and pushed away from [MS O]. [MS C] yelled at the accused to get back inside as [MS E] and [MS O] got into the vehicle.
(2) Father’s violence towards the Mother
The Mother and the Father were in a relationship from early 2007. They separated on a final basis in April or May 2013 when X was four and Y two years old.
The Mother gave evidence of significant family violence during the relationship. The Father denied the family violence. I prefer and accept the Mother’s evidence rather than the Father’s denials of the violence for the following reasons.
In Amador & Amador [2009] FamCAFC 186 at [79] a Full Court said:
To the extent that it is submitted that the mother’s allegations of “horrific domestic violence” could only be accepted if objectively corroborated, we do not find that any such requirement exists. Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission. We have not been referred to any authority in support of such a proposition.
First, her evidence was specific and detailed as to particular events.
Secondly, despite the weight of evidence of the Father’s violence directed towards different women with whom he had been in relationships over many years by and large he did not accept that he had been violent towards these women. His steadfast denials in the face of the weight of evidence against him from a number of people meant that I was unwilling to accept his evidence when it was in conflict with other evidence.
Thirdly, as I have noted the Father’s evidence as to his conviction for cultivating cannabis and his attendance at the hate group gathering was fanciful and I reject it. He did not fully disclose in his evidence the extent of his criminal convictions in early 2024. The absence of credibility as to his evidence as to those issues further detracted from the credibility of his denials as to allegations of family violence. It also detracted from his credibility as to his possession of the firearm to which I will return below.
In 2009 or 2010, during the relationship, the Mother said that the Father slammed her head into a brick wall in the street causing her head to bleed.
The Mother said that the Father punched her in the face breaking her front teeth which required dental treatment. The Father made an outright denial as to this violent behaviour.
In April or May 2013, the Mother says that the Father threw X across the living room and X struck his head on a coffee table. The Father physically attacked the Mother. This event ended the relationship. The Father denied this incident.
In 2017 the Mother says that the Father came to her house and demanded that she have sex with him. She said in her affidavit, and I accept, that:
…when I refused and told him to get out, he put his hands around my neck and choked me while screaming that he was “going to kill” me…. [X], who is about [nine] is old, woke up and came out yelling words to the effect of “what are you doing to my Mum?”
I accept the Mother’s evidence of domestic violence in this case and reject the Father’s denials.
The Family Report Writer said that even though the children were young when these events occurred these events set up the brain to operate in a certain “hyper–vigilant” way as to indicators of violence (T469:L44-45).
A threat to kill in late 2022
In late 2022, X, then aged about 13, gave a police interview as to events which occurred whilst X and Y were in the Father’s care. X gave a statement to police recorded in a police interview (ICL-1) that:
[the father] has begun to call their mother various names including bitch and slut and stated directly to [X] that he wished he could kill his mother, that he wanted to kill her, and that he did not care if you went to prison for 15 years it would be worth it. This incident continued for possibly 30 minutes in which [X] asked the [father] to stop talking about his mother in that way multiple times to no effect.
The Father denied the conduct. I do not accept his denial.
In late 2022 X showed his mother a Snapchat conversation he had been having with Ms E. It included the following:
[X]:yes he has said he will kill my Mum too
[Ms E]: Omg I know he is told me! Is just been calling and calling me! He said he will happily do jail time after he kills me! Lol seriously? He needs help! It’s not normal to treat anyone like this … My cousin & [Ms E] are also worried as they heard on the phone – he is going absolute the crazy
[X]: it’s getting really bad now
[Ms E]: Have your dad told u he wants to kill ur Mum to u also? Have u told her? Maybe u should let her know that he said that while angry … That way she is on guard … I don’t want him to lose it at her or u or me … His temper is way too unpredictable. Sorry ur seeing all this, it’s so sad as I really hoped I was going to be able to changeur dad!!! Is losing his mind… I don’t want anything to happen but while he’s in this state I worry…
The police (twice) interviewed X as to this matter.
The report writer set out that:
About reportedly making a threat to kill [Ms Treadwell] to [X], he described a scenario where he had joked with [X] about how it would be viewed had he accidentally killed [Ms Treadwell]. His explanation was not reassuring.
The Family Report Writer regarded the fact that the children (T476:L23-24):
…would have witnessed his attitudes towards his partners, his current partner and their mother, and that, in itself, is injurious to children.
Father’s attitude to the mother
The Father said in evidence before me that the Mother made him feel sick (T315:L13-23):
About her mother?---I don’t – I don’t – I do not talk about [Ms Treadwell] to the kids at all. I don’t, like – the thought of her makes me sick, and I – and I – and, like, I – and I can – I know that there’s no way of, like, ever having a proper conversation with her, because she’s not capable of having a good conversation. So, like, I don’t even talk about her to the kids, not at all. I don’t want her, like, she doesn’t enter my mind. So – yes.
The thought of her makes me sick. That’s [Ms Treadwell]. The thought of [Ms Treadwell] makes you sick?---Yes. Like, look at the – look at – look at all this, everything that she says about me and – and all the allegations that – that – that haven’t happened that need to be addressed.
I find on the balance of probabilities that the Father has engaged and continues to engage in serious derogatory conduct directed towards the Mother in his home. I find that because of the matters set out in X’s police interview and the exchange of text messages with Ms E that the children have been exposed to his conduct seriously denigrating the Mother.
The Family Report Writer commented that she found X to be “mature.” X spoke to the Family Report Writer about his Father’s attitude towards women which he (X) “deplored” (T467:L35).
(3) The Father’s illicit drug use and other issues
In 2017, as noted, the Father was convicted of cultivating cannabis. He was sentenced to a Community Corrections Order. I infer that the substantial criminal sanction was proportionate to the serious character of the crime.
Recording as to drug use
There was a more recent audio of a conversation between the Father and Ms E in evidence (Ex. A11). The date of the audio recording was disputed although its provision to the Mother at the end of January 2024 led her to withhold Y from spending time with her Father. Suffice to say, the conversation must have occurred in 2020 or more recently given that it was about 2020 when the relationship between the Father and Ms E started. As I have noted in observations as to the Father’s credit, in his sworn evidence, the Father denied use of illicit drugs since X was born “15 years ago” (T231:L24-25).
I find that the recording proved the Father’s illicit drug use despite his denial on his sworn evidence. The recording included (Ex. A11):
2.56 (time stamp)
[MR HYAMS]: Sometimes things get-get to me, ok? Ok? Look, babe – listen to me here. I know- I know what you’re think- I know what you’re thinking. …Listen, look at me… I will stop, ok? Babe? Look at me… do you hate me?
[MS E]: I don’t hate you, baby. You know what I’ve always thought about drugs.
[MR HYAMS]: Ok, I know that. I know that, babe. I know that.
4:09 – 4:33
[MS E]: I’m actually relieved…
[MS E]: That you don’t have to hide it?
[MR HYAMS]: yes, that’s right – but I’m not going to do it. I don’t want to do it. Babe, listen to me?
[MS E]: I don’t want even little [Y] to ever know her dad… is someone that takes – that.
4:54 – 5:16
[MS E]: It’s a huge thing, [Mr Hyams].
[MR HYAMS]: I know that. I know. I know.
[MS E]: It’s something that you can struggle to get off, you know?
[MR HYAMS]: I know, I know – and I have. I have. I have, babe. I have. I have, babe.
[MS E]: It explains why you get angry and short tempered, and you don’t even realise it.
[MR HYAMS]: I know.
As the Family Report Writer observed, a parent who is struggling with illicit drug use will not be child focused and there are issues as to inappropriate modelling too (T472:L38-42).
Drug and urine tests
The Court made orders on 19 October 2022 that the Father submit to random supervised drug screening tests upon request by the ICL. The ICL made ten requests between 21 February 2023 - 27 November 2023. The ICL received confirmation of a negative result for 3 of these requests. The ICL did not receive confirmation of results for the remaining 7 drug screening tests.
For the reasons set out above, I find that the father knowingly altered a drug test result (Ex. A9 and Ex. A10).
I must assess risk to Y from emotional harm from the parties’ proposals. The Father denies illicit drug use for more than 15 years since the time X was born, yet is audio recorded acknowledging drug use with his current partner, who has been his partner since 2020. The Court orders aimed to obtain reliable evidence as to the Father’s drug use. He tampered with a test. I draw the inference that he did so as to deny to the court a true picture as to his drug use.
The Father’s denial of any issue with illicit drug use when there is evidence of illicit drug use makes it difficult to set guardrails to mitigate risk.
(4) The firearm
In around 2012, the Mother alleges that the Father stole a rifle from a farmhouse and hid it in the house where they were living. Also, in 2012, the Mother alleges that she saw the Father shoot and kill a cat with the rifle. Around 2012-2013, the Mother alleges that the Father showed her the rifle and threatened to kill her and reminded her that he had a gun and could shoot her easily.
In 2024 the Father was charged as a prohibited person – he was a prohibited person because he was subject to an intervention order – with possessing a firearm (Ex. A8). In early 2024 the charges as to possession of the firearm were struck out or withdrawn (Ex. A5).
There was, however, more evidence than that as to the firearm.
In the Remand Brief before me, Ms E is recorded as having said that in early 2023 the Father had shown her a rifle and told her he was going to “store it behind her bed head” (Ex. A8). The Remand Brief records that in late 2023 Ms E said that she had a conversation with Ms C who said that Ms E did not have to worry about the rifle as she had taken it up to her partner Mr P’s mother’s address: that is, to the home of Ms Q, now aged 94. I have noted that the Remand Brief recorded that in early 2024 the Father said to Ms E:
I'll blow your head off, I will easily do 10 years for you, it will be easy. I did six weeks and it was a walk in the park
The Remand Brief recorded that police attended at Ms Q’s home in early 2024:
…located an old grey blanket with black tape wrapped around it. The blanket was unwrapped and opened. This revealed a […] rifle with a […] scope attached. The rifle was photographed and seized.
In cross-examination by the Mother, the Father denied that it was his rifle. He said (T316:L6-7):
[Counsel for the Mother]: So the first one, the rifle you say, that’s your mum’s, that was at [Ms Q]’s?---Yes, I will never knew about it until I got charged with it.
Ms C’s evidence as to the firearm
Ms C (the paternal grandmother) gave evidence that it was her gun that it had come from a farm and she had forgotten about it. She said (T411:L1-8):
My father had passed away, and my mother was moving, and I was cleaning out the garage and I found the rifle wrapped up in a blanket. So I took the rifle and was going to get rid of it, and I took it home, put it in a locked cupboard and then sort of forgot about it. And then it got moved around when I moved, and then it ended up under the house at my partner’s mother’s place, and it had been there for years.
Ms C said that she had stupidly told Ms E about the gun one night.
I reject Ms C’s evidence as implausible. In my assessment Ms C’s evidence about the gun was motivated solely by a desire to advance her son’s interests in this case as she perceived them to be. The preparedness to give that evidence, in my assessment, marks her as an unsuitable person to supervise time any time Y might spend with the Father to avoid a no time order as a last resort.
As the Full Court observed in Amador at [88]:
in appropriate cases, it may be important to make findings … if they are available and necessary to determine what is in the best interests of the child.
I am satisfied on the balance of probabilities under s. 140 of the Evidence Act that the gun at Ms Q’s home was the Father’s gun. I accept the Mother’s evidence that he had previously shown the Mother the gun. Even though the evidence is second-hand and therefore I must proceed with some caution, I can (and do) give Ms E’s statements in the Remand Brief weight under s. 69ZT(2) that the Father had told her about the gun. The way in which the police came to locate, then seize, the gun at Ms Q’s residence is cogent evidence that Ms E had told them that is where it was being hidden, because the Father had told her and that is how they were able to locate the gun. I do give some weight to the fact that she apparently told the police these facts in circumstances in which she was fearful of the Father. I reject as fanciful the evidence that the Father simply did not know about the gun.
Whilst possession of the gun has not been proved beyond reasonable doubt in criminal charges, as the High Court said in Rejfek v McElroy (1965) 112 CLR 517 at 521, the difference between the criminal and civil standard of proof it is a “matter of critical substance”.
Because I am satisfied under s. 140 of the Evidence Act that it was the Father’s gun, it follows that I am concerned about his denials in the evidence that it was his gun before this Court. He is a person with a criminal history as to violence. He is a person who has made threats to kill. He is a person by law prohibited from possessing a gun because he is the subject of an intervention order. The gun was unregistered. A firearm is a lethal weapon. The evidence concerning the gun is evidence on which I place some weight in my ultimate conclusion that there is an unacceptable risk of emotional harm from Y spending time with her Father.
Uncontradicted evidence: the firearm
I have rejected the Father’s evidence of that he knew nothing of the gun. I have also rejected Ms C’s evidence that it was her gun. In Cross On Evidence (12th Ed), the authors write at [1610] “Courts are free to refuse to accept uncontradicted evidence”. It is certainly the case, however, where evidence is uncontradicted usually the Court will accept it. The authors of Cross On Evidence continue to observe however that it may be relevant to the acceptance or rejection of the evidence if the uncontradicted evidence is “unreasonable or improbable.” In Holman v Holman (1964) 5 FLR 406, Sugarman J said at 408:
Leaving aside questions of the witnesses' demeanour or manner, it may be said that in general uncontradicted evidence in an uncontested proceeding which is not improbable or unreasonable should be acted upon-
I do not regard the evidence of Ms C and the Father as truly uncontradicted. I prefer the other circumstantial evidence. There is the background evidence of the Mother that she had seen the Father with a gun during the relationship hidden in the home which matched the description of the gun ultimately seized. She had seen the father shoot a cat with the rifle. There is the important evidence in the Remand Brief that the police found the gun at Ms Q’s home on the basis of information provided to them by Ms E as to its location at a point in time at which it is clear that she was fearful of the Father.
Although Ms E did not ultimately give evidence, neither the Father nor Ms C disputed that a concealed gun was found at Ms Q’s place. Further, there was no explanation given as to how the gun was located at Ms Q’s home unless it was on the basis of the information Ms E provided to police.
In cross-examination as well as directly denying that she had hidden the Father’s gun at his request (T412:L1) Ms C denied telling Ms E where the gun was located (T411:L12-13):
And did you tell her where it was hidden?---I said it was in a safe place, and she said, “Is it your house?” and I said, “No.”
I do not lightly find that I must reject Ms C’s evidence. But, in the circumstances, I am satisfied on the balance of probabilities that it was the Father’s gun located at Ms Q’s home.
The predictive exercise as to risk
I must not conflate positive findings about past facts and the predictive assessment of future risk (see Isles, [82]–[83]). Under s. 140 of the Evidence Act, I have made a positive finding that it was the Father’s gun located at Ms Q’s home. There may still be an unacceptable risk of harm even if past events are not proven on the balance of probabilities.
Even if I was not satisfied of the Father’s possession of the gun, my primary focus is the predictive exercise of unacceptable risk. Even if I had not been persuaded on the balance of probabilities that the Father was in possession of a firearm, the highly plausible allegations that he was a person in possession of a firearm – in combination with the Father’s history of and ongoing propensity to perpetrate family violence – would have lead me to conclude that there is an unacceptable risk of Y spending time with him. The risk is of the emotional harm to a leader of her spending regular time with her Father where he has shown himself to be a person prepared to make serious threats and there is a plausible allegation that he backs up his threats by possession of an unregistered gun. That is a risk of an unacceptably stressful and fearful environment. Based on the known facts and circumstances, even if there was only a plausible allegation of his possession of a firearm, taken together with all the other circumstances (his past violence etc) means that the risk of Y spending time with him is too high to tolerate (see Isles, [86]).
(5) The Father’s extreme political views
In 2021 a television program aired a story in which the Father was depicted as attending at a meeting member of a hate group.
I repeat that I found his evidence that he believed the meeting to be a business networking meeting to be fanciful and I reject it. The violence which inheres in hate groups is repugnant. There was evidence that X was embarrassed by his Father’s political views. There was, however, no evidence that the Father’s violence had a political underpinning. Those extreme political views are an ancillary risk but I do not give them any substantial weight.
The Father lacks insight into his violence
The Father’s acceptance of any responsibility as to his past violence verged on non-existent.
Despite each of his four adult partners having obtained an IVO and his admissions as to criminal matters about breaching intervention orders he asserted to the Family Report Writer that he did not have a problem with physical violence. The Family Report Writer set out and I accept that the Father “scoffed” when she said to him that if there were “several IVO’s” that would indicate a pattern of family violence.
I also accept the Mother’s submission that the Father’s evidence tended not to take responsibility for his own actions. There was an audio recording of a conversation between X and his father when X did not wish to attend a sports awards night (Ex. A7). The Father says to X:
Don’t come crying, moaning and whinging to me after this court shit is done, and your mum stopped sucking up your ass and treating you like shit again.
Insight is a precondition to change. Because the Father lacks insight into his violence, and does not take responsibility for his own conduct, he does not have the insight to change his violent behaviour.
The Father has not changed
The Father said in his trial affidavit (at [135]):
I worked very hard on myself and wish to stay out of the criminal justice system, particularly for the sake of the children.
To the extent that the Father attempted to present himself as a person who had changed such that I should find that his past violent conduct was unlikely to repeat, I do not accept his evidence.
The Father’s history of domestic violence against his partners dates back to 2008, all of X’s life. There has been a continuing pattern of domestic violence against each of four adult partners. His pattern of violence has continued from 2008 until into 2024 which has led to him twice serving a period of imprisonment of most recently in early 2024.
The Family Report Writer’s opinion was unequivocal. She agreed with a proposition that the Father had limited prospects of changing past behaviour as to family violence (T502:L25-26). She also said that the Father had not demonstrated any insight into family violence behaviours (T502:L28-30). I accept her evidence.
There was evidence that the Father had completed a one day Men’s Behavioural Change Program some time in 2022 or 2023. Given that there had been a recurrence of family violence since that date any course he undertook did not seem to have effected a behavioural change.
Given the recent nature of violence – the convictions in early 2024 – it is not possible to characterise the Father’s past violence as “historic”. There was no evidence of significant steps the Father had undertaken to try to change the pattern of violence. The continuing pattern of violence poses a real risk of emotional harm to Y.
The Family Report Writer
In closing submissions, the Father referred me to a decision in Cole & Rudzik [2024] FedCFamC2F 14 where Austin J said at [34]:
Expert opinion evidence is not decisive of the dispute as judicial power to decide the legal dispute always rests in the hands of the trial judge, not the expert witness. Expert opinion evidence is liable to be influential, but not if it is discounted for valid reasons. The Court is never obliged to accept expert evidence
Acknowledging that the power to decide the legal dispute rests with me as the trial judge, in this case the Family Report Writer’s evidence was influential. Although he plainly disagreed with the Family Report Writer’s professional opinion, the Father offered no valid reason that I should discount those opinions. I found no valid reason to discount the expert opinion of the Family Report Writer.
The Family Report Writer was concerned about the effect on Y of the Father’s violence towards his domestic partners whether Y witnessed it or not (T468:L27-29)
she would be likely, I think, to struggle significantly in her own future relationships with intimate partners if she is witness to those attitudes and beliefs.
This is one mode of expressing a professional view that there was a risk of emotional harm of Y spending time with her Father given the evidence of his attitudes and beliefs towards women, proved from a prolonged pattern of violence.
In her oral evidence, the Family Report Writer’s professional opinion was (T475:L12-17):
my professional opinion was that [Y] was significantly impacted by her father’s attitudes and behaviour, which I’ve described before and which does come within the definition of “family violence” in as far as it was likely to affect her relationship with her mother, and, according to her mother, it did. So my opinion is that she shouldn’t be spending time with him, and that’s based on my view about what was going on for her.
In the Family Report Writer’s opinion, there was also a risk of emotional harm to Y that her spending time with her Father undermined her relationship with her Mother. The Mother had described to the Family Report Writer that Y is “like a different person when she is not under pressure from [the father] to choose to be with him”. The Family Report Writer also said:
If [Ms Treadwell]’s narrative about [Y] being more settled and less stressed is accepted there seem to be two possible reasons. The first is that she is not having contact with her father and she feels unsafe when she is in contact with him or that she is not being involved in the parental conflict anymore and she feels emotionally and psychologically unsafe when she is involved.
On 22 October 2023, after Y returned from spending time with her Father, the Mother reported that Y was angry and aggressive towards her. She told the Mother to kill herself and “go and get fucked.”
What is the specific unacceptable risk from which Y needs to be protected?
Each of the Mother and the ICL submitted that because of an unacceptable risk of harm it was in Y’s best interests that she spends no time with the Father. I must identify with specificity the risk from which Y must be protected (see M v M, 78, above).
I have reached the conclusion that there is an unacceptable risk of emotional harm to Y from her spending time and communicating on a regular basis with her father. My conclusion of “unacceptable risk” rests on an accumulation of factors (Johnson, [68]; above). The risk of harm to Y from spending time with her Father is so great that it is at a point on the “continuum of risk” that it cannot be tolerated: it is unacceptable (Fitzwater, [139], above).
The risk of emotional harm has a number of aspects.
Exposure to violence is not safe for Y because there is a situation of stress and fear
First, there is a risk of emotional harm to Y from being exposed to violence the Father perpetrates against his partners: it is a “situation of stress and fear that may will be damaging over a period” (JG and BG, below) and an unsafe environment for a 12-year-old girl to be spending time with her Father. Given his past and ongoing violence against his female intimate partners the violence is likely to continue because what has occurred in the past is likely to be the most reliable guide as to what will happen in the future given that there is no evidence that the Father has insight into his past conduct or has taken steps to change.
Further, as to the scope of the situation of stress and fear, the Father’s violence has extended beyond partners to include the adult daughter of Ms E: that is, Ms O.
In closing submissions, in addressing the issue of emotional harm, the Father emphasised that there had to be a “link” back to the Children. It was insufficient if the Father “behaves poorly towards his partners. And that’s it” (T570:L40-42).
The violent conduct of a parent in relation to parenting orders is relevant only as far as it relates to the welfare of a child. Where the violence is directed at a child, it is obviously and directly relevant to their welfare. Relevant acts of violence, however, are not limited to these narrow circumstances. In the Marriage of JG and BG(1994) FLC 92-515, Chisholm J said at [81,317]:
For children to grow up in a climate of a potentially violent and dominating relationship between their parents seems to me to be an unacceptable model of family relationships, and would be very likely to create a situation of stress and fear that may well be damaging over a period. It is quite wrong, in my opinion, to assume that violence can be relevant only if it is directed at the children or takes place in their presence. It is equally wrong to assume that violent behaviour will necessarily be repeated, or to assume too readily that it will harm children, or to give it excessive importance; it is of course only one factor relevant to the assessment of what the child’s welfare requires, and it will be more important in some cases than in others.
[Emphasis on the original]
There is a link in this case to the Children. There is evidence that the Father’s children have been exposed to violence. The Father submitted that X had not witnessed or been the victim of physical violence (T584:L41). I note that X was directly caught up in it by way of text exchanges with Ms E (at a time when he was relatively close to Y’s age now) which led to him making police statements. I find that in the past the Father has exposed his children to this violence. There is an unacceptable risk that Y will be exposed directly to this violence if she spends time with her Father which would involve real risk of emotional harm to her. It is a stressful and fearful situation and not a safe environment. It may be an environment marked by unpredictability and instability.
The risk of harm to Y in her relationships
Second, relatedly, there is an unacceptable risk of emotional harm that exposure to violence of this kind will normalise that kind of violence for Y which will affect her future emotional development. Exposure to the violence may involve witnessing the violence directly or dealing with its aftermath. There is a risk that Y will learn, as counsel for the ICL put it, that “she doesn’t get on the wrong side of her father for fear of there being an angry explosion” (T552:L23-26).
In her Addendum Report, the Family Report Writer opined at [28]:
It is the writer’s opinion that [Y] would show signs of anxiety (such as [Ms Treadwell] described) had she experienced the Family Violence in her father’s home.
The Family Report Writer said (and I accept) that there could be a risk of emotional harm to Y even if she did not witness violence of the Father towards Ms E. She agreed with a proposition that if Ms E was the victim of violence, she may be “walking on eggshells” in the Father’s presence. The Family Report Writer said (T507:L11-16):
I guess it goes to some degree of modelling about men and women in relationships. So that the woman would submit and agree and not rock the boat, or to put it like that, and not be assertive. So for [Y], that’s a particular type of modelling of how to be a woman that is likely to put her at some — well, I’ve mentioned before, at risk in her own relationships in the future for —yes.
Unfortunately, because the Father denies his violence, he has no insight into how damaging it is for Y and therefore there is an unacceptable risk that the future will entail a continuation of his past conduct.
Although the Father canvassed the notion of injunction which would prevent the Father from bringing Y in contact with Ms E (T586:L26), such a proposal struck me as unrealistic. It also did not address the underlying issue: namely, the risk of emotional harm to Y by the unacceptable risk of a recurrence of the Father’s violence.
The risk of serious harm because of the gun
Third, as to the seriousness of the potential harm, no violence is insignificant, but I regard the issue of the nature of the violence to which Y would be exposed as serious. I set out above that Austin J said in Fitzwater at [142] (approved in Isles) that “in child-related proceedings, a comparatively small risk of really serious harm can justify action, while even the virtual certainty of slight harm might not.” I have found that the Father, as a prohibited person, has possession of a firearm, a lethal weapon. Further, at the very least there are plausible allegations that the Father has used a gun to threaten the Mother, Ms K and Ms E. I assess the risk of emotional harm as serious.
Risk as to drug use
Fourth, the Father has not been frank about his drug use. A parent who has a problem with illicit drug use is unlikely to be child focused or to make good decisions. Given the Father’s denial as to his drug use, I cannot ameliorate a risk the Father says does not exist. Because there is a risk that the Father continues to use illicit drugs, there is a further risk of emotional harm to Y.
Undermining Y’s relationship with her Mother
Fifth, there is a component of the risk that Y spending time with her Father will undermine the Mother’s parenting. The Family Report Writer noted that the Mother “impressed as very fearful of [Mr Hyams]” (Family Report, 14 February 2024, [30]).
I accept that there is evidence that Y spending time with the Father has undermined Y’s relationship with the Mother. For example, the Family Report Writer said at [6]:
[Ms Treadwell] described that [Y], now in Year 7 at [name omitted] […], struggles emotionally and with behaviours at home since she has been spending time with her father, after a period of about 12 months whereby she had no contact. In [Ms Treadwell]’s opinion [Y] progressed well during the no contact time, was more settled, and did not appeared weaponised towards [Ms Treadwell]. However, on recommencing time with her father, [Y] has reportedly become moody, and uses the parental conflict to threaten to live with her father when she is reasonably disciplined by her mother.
The Family Report Writer said that the Father “did not appear to be able to consider the impacts of his behaviours on [Y]’s relationship with her mother [and] he appeared unable to make protective parenting decisions” ([87]). The Father holds the Mother in contempt. I find that if Y spends time with the Father inevitably Y will be exposed to that attitude of contempt. There was evidence of Y being unsettled when she returned from her Father’s care which was consistent with instability in her Father’s household and undermining of the Mother as the primary carer.
Finally, as the Full Court said in Britt & Britt (2017) FLC 93-764 at [34], I should not consider one factor in isolation from the rest of the evidence. This is a case in which a number of pieces of evidence when considered together have a probative value greater than if each were considered individually.
In combination, these facts lead me to conclude there is a strong case that there is a need to protect Y from the risk of emotional harm by means of orders that she does not spend time with her Father under s. 60CC(2)(b). Under s. 60CC(2A), I am to give greater weight to the need to protect Y from harm than the benefit to Y of having a meaningful relationship with her Father even though the effect of such orders would be to make difficult Y having a meaningful relationship with her Father. Unfortunately, the prospect of the Father continuing the pattern of his past violence means that is an unacceptable risk.
The fact of the unacceptable risk is not the end of the matter. In Bielen & Kozma [2022] FedCFamC1A 221, the Full Court said the following at [3]:
where the primary judge had identified an unacceptable risk of the children suffering psychological harm in the care of the mother, the primary judge failed to consider whether steps could reasonably be taken to allow the children to retain their meaningful relationship with their mother, to the maximum extent possible, consistent with protecting them from that identified risk. The indefinite severance of the children’s relationship with their mother was, in those circumstances, disproportionate to the identified risk.
In Bielen at [34] the Full Court continued that:
the trial judge was nonetheless required to give some consideration to the prospective benefit of the children’s relationship with their mother (s 60CC(2)(a)) and the additional considerations in s 60CC(3) to the extent that they were relevant to the disposition to this matter.
Further, with reference to the reasoning in Bielen at [48], I must consider the potential impact on Y of “indefinitely severing” her relationship with her Father as against the risks of her communicating and/or spending time with her Father.
Further, if there is an objectively an unacceptable risk the Full Court in Keane & Keane (2021) 62 Fam LR 190 at [84] (approved in Bielen at [52]) stated:
A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent.
[Emphasis added]
Further, “the termination of a child’s relationship with one of her parents is a course of last resort” (Summerby & Cadogen [2011] FamCAFC 205, [95]; approved in Bielen, [53]). In closing submissions, the Father took me to a decision of Baranski & Baranski [2012] FamCAFC 18 at [143], which set out expert material as to the seriousness of the potential detriment to a child of having no direct contact with a parent in the context of past domestic violence. The detriments included deprivation of a relationship with the parent, loss of an opportunity to know that parent first-hand with the loss of identity, loss of opportunity to know grandparents and other relatives, loss of a meaningful relationship, absence of an opportunity to repair relationships and the lessening of the likelihood of the child being able to get in touch and/or form a meaningful relationship at a later stage. I accept each of these detriments is a serious consequence of Y spending no time with the Father.
In this case, having determined that there is objectively unacceptable risk I must consider “whether that risk could be mitigated” (Bielen, [55]). As a result, before fixing on any orders in the Children’s best interests, it is necessary to consider risk in the Mother’s household and the totality of other matters in s. 60CC(3).
ISSUE 2: IS THERE A NEED TO PROTECT Y FROM RISK IN THE MOTHER’S HOME?
I have considered the need to protect Y from harm in the Mother’s home.
From mid-2013 until mid-2016, a DFFH a protection order was in place. At some point during this period, because of the DFFH’s protective concerns, both Children were placed in the Father’s care. Under a s. 69ZW order of the court, the DFFH provided documents to the court as to its concerns about significant family violence between the Mother and her then partner, Mr F in that 2013–2016 period. In the documents DFFH recorded at one point of time:
A Protection Application was issued and both children were placed in [Mr Hyams] care. The case closed with [Ms Treadwell] and [Mr Hyams] signing an undertaking which addressed the protective concerns.
The Mother accepted that she had not sufficiently prioritised the Children’s safety during her relationship with Mr F in the 2013–2016 period.
I do not find that these matters pose an unacceptable current or future risk of the Children living in the Mother’s household.
First, I was satisfied that these matters between 2013 and 2016 were historic. They occurred more than 8 years ago.
Second, following her relationship with Mr F, the Mother had sought and received support from community organisations. The Family Report Writer recorded at [41]:
[the Mother] spoke about having recovered with the support of [domestic violence services] and other community organisations who helped her understand about family violence and how difficult it can be to leave.
I find that it is to the Mother’s credit that she sought out and received the support of community organisations when she found that she was in a relationship in which she was the victim of family violence. That she did so demonstrated insight that she needed to change.
The Father exhibited to his trial affidavit a recording on his telephone which depicted and recorded the Mother threatening physical discipline of X (MRH-2). The Mother acknowledged in cross-examination that her conduct was unacceptable (T459:L1-6–T460:L8-12):
And you lost your temper because [X] wouldn’t listen to you; is that correct?---Yes.
You also stated that it was all right to physically discipline the children; is that correct?---In that video, yes.
…
Well, in order to make changeovers proceed smoothly, shouldn’t you have been calm?---Yes. Probably. Yes.
Your behaviour in that video, how upset you were, would have affected the children; that’s correct, isn’t it?---Yes. It would upset [X].
The Father’s evidence was that the video was taken in 2017. Any risk the Mother poses by the Mother assessed by reference to her remarks in this video in is not of such magnitude to warrant the descriptor unacceptable. I will mitigate any risk by an order that both parents not engage in physical discipline of the Children.
As I have noted, the Mother’s current partner is Mr H. The Family Report Writer recorded at [97] that: “[X] said they get along well and he thinks well of him”. The Father was critical of the Family Report Writer, who wrote at [106] of the report that: “[Y] reportedly dislikes [Mr H] and thinks that he does not like her. She was reluctant to explain further.” The Family Report Writer explained in the face of Y’s reluctance she did not press Y further.
The Father gave evidence that “[Y] has expressed to me that she is fearful of the mother’s partner, [Mr H]”. There was a text message that “[Mr H] is being rude.” There was no evidence which provided the foundation for a conclusion that there was a need to protect Y from physical or psychological harm from living with Mr H. The Father’s proposed live with orders were that Y live with the Mother on an 11:3 fortnightly arrangement. It is difficult to accept that he would propose such orders if he had a genuine concern about Y’s safety in that household.
There is no unacceptable risk to Y or to X from orders that they live with Mother.
ISSUE 3: THE OTHER PRIMARY CONSDERATION AND THE ADDITIONAL CONSDERATIONS IN SECTION 60CC
Primary considerations
A meaningful relationship
In considering the benefit to Y of a “meaningful relationship” with her Father (s. 60CC(2)(a)) “no doubt in the majority of cases, there will be a positive benefit for the child having a significant relationship with both parents, but there will also be some cases where there will be no positive benefit to be derived” (McCall & Clark (2009) FLC 93-405 at 83,476, [122]).
In Cotton & Cotton (1983) FLC 91-330, Nygh J noted that it was desirable for a child to maintain a meaningful relationship with both parents, however, his Honour stated at 78,252:
And that desirability only operates when there is a chance of a meaningful relationship, which is beneficial to the child. It is not, in other words, a question of contact for contact sake. If there is a situation where contact with a parent is, on balance, likely to cause more harm to the child than good, or even is not likely to confer any benefit, then little purpose is served by this Court making orders for such contact. That does not detract from the desirability of the child having a meaningful relationship, but the possibility of a meaningful relationship must first exist.
[Emphasis added]
I have dealt with risk factors above (s. 60CC(2)(b)). In line with Nygh J’s analysis in Cotton above, on balance I have decided that Y spending time with her Father is “likely to cause more harm … than good” if the court orders are for her to spend time on a regular and recurring fortnightly basis. So that she may resume a relationship if she so chooses when she is mature enough to make that decision, I will order that there be supervised time 4 times a year, not exceeding 4 hours. The limited amount of time, professionally supervised, mitigates the unacceptable risk of Y being exposed to emotional harm.
Additional considerations
Section 60CC(3)(a)–(m) of the Act sets out a number of additional considerations which I must consider as far as they are relevant.
Views expressed by the children
I must have regard to any views expressed by the Children under s. 60CC(3)(a).
The parties agree that X should spend time with his Father in accordance with his wishes. X is now 15 years old. The Family Report Writer said X was “mature” and opined that “[X]’s wishes should carry considerable weight and he has capably decided not to spend time in person with his father”. I accept her evidence. The Child Impact Report Writer (Ms R) who provided an earlier report also described X as an “intelligent” and “mature adolescent” (Ex. CE-4). My task is to quell the controversy between the parties. Given the parties’ agreement, X’s maturity and the clarity of his expressed views, I am satisfied that the agreed position that X should spend time with his Father in accordance with his wishes is in his best interests. Given his age and the strength of his views, any other order is likely to prove ineffective.
Y is younger than X, about 12 years old. As to Y, in her first report, the Family Report Writer described Y as “caught in the parental conflict, confused and angry about that” ([122]). In her Addendum Report, the Family Report Writer said that Y has said that she “wanted the judge to know that she does not want to be involved in the decision-making” ([25]).
As to Y the Family Report Writer wrote at [25]:
If [Mr Hyams]’ proposal for [Y] to live with her parents according to her wishes were implemented, she is likely to feel highly distressed about the pressure that places on her. [Y] had expressed reluctance to be interviewed at the previous Family Report interviews and refused at this Memorandum interview, save to say that she wanted the Judge to know that she does not want to be involved in the decision making.
The ICL met with Y on 27 June 2024 (after the fourth day of trial). Counsel for the ICL communicated to me that Y “didn’t want to engage” (T465:L7). She also said (T465: L17-21):
That she would not be happy just seeing her father at a supervised contact centre. She did want to see him. She feels frustrated by not being able to see him. If the court made an order, she would be accepting of it. Everything is fine at mother’s house. She had no concerns or issues to raise with respect to her residence at her mother’s.
At 12 years old, Y’s views should be given real weight. Evidently, she has been caught in a protracted, significant parental conflict. It has been communicated to me that Y loves her Father. Despite her views, having taken into account all of the matters in s. 60CC, my orders will reflect conclusion that it is in her best interests for her not to spend time or to communicate with Father save and except for 4 times a year. I do not intend to place the pressure on her at the age of 12 to make the decision. Although I place real weight on her views, she does not yet have the maturity or level of understanding, particularly as to the prospective emotional harm of ongoing violence, to make that decision. The Family Report Writer’s expert opinion was that even if Y wanted to spend time with her Father it remained her view that was inappropriate (T475:L19-25). I accept her evidence.
The nature of Y’s relationship with the Mother
As to the nature of Y’s relationship with her Mother [s. 60CC(3)(b)], I note that Y says that she has no concerns or issues about living with her Mother.
The Family Report Writer opined that the Mother had a “nuanced understanding of the children’s developmental needs” ([84]). The Family Report Writer said that the Mother “also had a good understanding of [Y]’s developmental needs as she is in the early stage of adolescence” ([86]). The Family Report Writer noted at [120]:
Both children spoke about [Ms Treadwell] caring for them appropriately and it appeared she provides a loving, stable and secure environment, having engaged with community supports in the past to learn about family violence impacts.
I give some weight to the Mother’s reports to the Family Report Writer that when Y was not spending time with her Father she was “relaxed” and “more respectful towards her mother” (T469:L13). A resulting harm of Y spending time with her Father is “conflict in the mother’s home”. The Family Report Writer agreed that the Father’s behaviour risked “destabilisation” in the Mother’s home (T469:L10).
As to the nature of her relationship with her Father, the evidence was that Y loves her Father. There was some suggestion that he was “love bombing” her or “turning her head” by way of expensive gifts the Mother could not match. On the evidence I am not prepared to criticise the Father (or draw a conclusion adverse to him) for any material generosity he is able to provide to Y. This matter is not a matter which would support a “no time” order.
Under s. 60CC(3)(b), a parenting order that Y live with her Mother and spend time no time with her Father will in practical terms largely mirror arrangements for X, her brother.
Ms C’s (the paternal grandmother) evidence was that she had “a very close, loving relationship with both [X] and [Y] and I have always minded them and had them overnight stays since they were babies.” There was, however, an absence of other detail in her affidavit about Y’s relationship with her.
Under s. 60CC(3)(c), the Mother has taken all opportunities to spend time with Y and to communicate with her. I also accept that, on the Mother’s own evidence, since the commencement of his relationship with Ms E, the Father has taken opportunities to spend time with Y and communicate with Y. There was no significant evidence which would affect the parenting orders I will make as to particular decisions about major long-term issues.
If, as I will do, make an order that Y spend no regular time with her Father the separation from her Father is likely to cause Y a grieving process. That grief will be real. On my assessment, in the circumstances of this case, the need to protect Y from emotional harm outweighs the impact on Y of any grief (T500:L31-44). I note that the Family Report Writer prioritised the need to protect Y from emotional harm as more significant than any grief she might suffer from the separation process. There was the following exchange:
His Honour: … if I were to be persuaded that a no time order was appropriate, which is the course the mother urges upon me, it seems to me that I need to think about the potential adverse impact of permanent separation from [Y] with her father. What would you say to me about that?
FRW:Well, because any attachment with a parent, whether it’s a good one or a not good one, will trigger grief, if there’s a permanent separation, so she would likely have some grief that would be related to that. But grief – grief is a normal process when there’s a significant loss, and she would go through that, which might mean that she has intense emotional feelings, like you do when you grieve, and she might need some support around that.
His Honour: What about communication other than spending time with her father by FaceTime or some other means; in her best interests or not?
FRW: ---I tend not to think so, because part of that coercive control profile is usually a highly manipulative person, and I – my worry would be that she would be subtly influenced to follow him.
Under s. 60CC(3)(d), further change in Y’s circumstances is likely to be detrimental to her. I give some weight to the fact that since February 2024, that it was the Family Report Writer’s view that “they [the children] have been stable with their mother for a period of time, and that stability needs to continue” (T471:L2-3)
As to the parental capacity to provide for the needs of the child under s. 60CC(3)(f), the Family Report Writer’s assessment was that the Mother was well attuned to Y’s needs. As to the Father, because of his choice to perpetrate family violence, I find that his capacity to provide for Y’s needs is lacking, most particularly as to her emotional needs to be kept safe from emotional harm. In addition, my concerns about the Father’s continued use of illicit drugs, detracts from his capacity to provide for Y’s needs.
In terms of the attitude to the children and to the responsibilities of parenthood s. 60CC(3)(i), the Family Report Writer set out at [111] that:
[Y] reportedly believed that no one in her family including her would be upset if she were to spend each alternate weekend with her father.
I inferred that the Mother had shielded Y from the Mother’s own negative perceptions of the Father. For an extended period, up until events in February 2024, the Mother supported the Children spending time with the Father. Her own assessment of acceptable risk changed because of events which led to criminal charges in early 2024.
On the other hand, I find that the Father had engaged in repeated conduct seriously denigrating the Mother, and conduct threatening her, including in the presence of the Children. The evidence as to X’s police reports in mid-2022 serves as an example. The Father’s unguarded statement in his evidence that the Mother made him feel sick showed no insight as to the impact this attitude might have on the Children.
As to issues of family violence under s. 60CC(3)(j), as I have set out above, I find that the evidence proved that there was a pattern of violence over a long period of time – and continuing – by the Father against his partners and at least one other (Ms O).
A family violence order
As to whether a family violence order applies under 60CC(3)(k), in mid-2013, subsequent to the parties’ separation, the police obtained a 12 month intervention order (IVO) against the Father with the Mother and the Children named as protected persons.
The IVO’s operative period has been since extended several times.
In 2018, the Victoria Police obtained a further intervention order against the Father naming the Mother, Y, X and G as protected persons.
In late 2022 the Magistrates’ Court made a final intervention order against the Father naming the Mother, the Children and G as protected persons (MST-5). The order expires in 2030.
The Father was not at court and therefore did not contest the allegations in the IVO; nor did he consent to the order. Even though the Father did not contest the making of these intervention orders the power of the Magistrates Court to make a final order under s. 74 of the Family Violence Protection Act 2008 (Vic) provides that:
the court is satisfied, on the balance of probabilities, that the respondent has committed family violence against the affected family member and is likely to continue to do so or do so again.
The relevant inferences that can be drawn are that the Magistrates Court repeated extensions of the orders where the Mother and the Children are named as protected persons demonstrate that that the Court was satisfied that the Father’s was likely to continue to commit family violence. I note also that a respondent to a final family violence order is a prohibited person from the possession of a firearm under s. 3 of the Firearms Act 1996 (Vic).
ISSUE 4: CAN STEPS BE TAKEN TO MITIGATE THE UNACCPETABLE RISK OF Y SPENDING TIME WITH HER FATHER?
In Helbig & Rowe [2016] FamCAFC 117, (approved in Bielen at [51]) the Full Court explained at [214]:
that where a case is conducted on the basis of it being contended that there is an unacceptable risk of harm to a child in the care of one parent, “[t]he first enquiry is whether there is objectively an unacceptable risk. If there is the Court must take steps proportionate to the degree of risk”.
[Emphasis added]
In Bielen at [52] the Full Court referred to the earlier Full Court decision in Keane & Keane (2021) 62 Fam LR 190 at [84] where the Full Court stated:
In undertaking the task of considering what steps are “proportionate to the degree of risk,” the decision of Blinko makes it clear that the mere finding that a child may be at an unacceptable risk as a result of spending time in the care of another parent does not conclude the task before the primary judge. A necessary consequence of that finding, having regard to the totality of matters that the court is required to consider pursuant to s 60CC of the Act, is for the court to contemplate whether steps can be taken to ameliorate or mitigate against that risk such that the child can maintain a meaningful relationship with the other parent.
[Emphasis added]
Supervised time?
In Bielen at [55], the Court considered one way in which the risk might be mitigated is supervision. I have considered the possibility of Y spending supervised time with her Father.
The Father did not propose supervised time in the event that I concluded that there was an unacceptable risk. Both the Father and Y (via what she said to the ICL) were adamantly opposed to supervised time at a professional contact centre.
In my assessment, there is an important distinction between supervision of regular fortnightly time and supervision 4 times a year so that Y can know her Father. As to regular fortnightly time, I did not see that there was a mode of supervision which would provide guard rails as to protecting Y from emotional harm. Supervised times 4 times a year protects Y from emotional harm because the time is restricted. It is one way I may ameliorate the risks of a total no time order.
Ms C, the paternal grandmother, is not a suitable supervisor
I considered whether Ms C could act as a supervisor for supervised time. As discussed above, there was a dispute as to whether the Father as a prohibited person (because he was subject to an intervention order) was in possession of a firearm. He denied that it was his firearm. Ms C gave evidence that it was her firearm and I have rejected her evidence and find that she was prepared to give that evidence with a motivation to persuade the court to make parenting orders more favourable to the Father. Her evidence prioritised the Father’s interests (as she perceived them) over Y’s interests as to a matter which was important to Y’s safety. This evidence marked her as a person who was not suitable to act as a supervisor for any time Y might spend with her father. Further, I accept the Mother’s submission that in her evidence Ms C showed herself to have a toxic dislike for the Mother. Y spending supervised time with her father with Ms C in substantial attendance would not mitigate the unacceptable risk.
The Father does not abide court orders
I also accept the Mother’s submission that there was substantial evidence that I could not ameliorate any risk by court orders in the nature of restraints of injunctions. The Father has shown a past abject disregard for court orders. Most recently, in his plea of guilty to certain criminal matters in early 2024, he pleaded guilty to breach of a bail condition and persistent contravention of intervention orders, offences which have at their core a disregard for prior court orders.
The Father did not propose any other way in which supervised time was an order in Y’s best interests. Because supervision will not mitigate unacceptable risk save and to the extent that time is limited to 4 times a year, it is in Y’s best interests that she spends no time with her Father.
ISSUE 5: DOES THE POTENTIAL ADVERSE IMPACT ON Y OF PERMANENT SEPARATION FROM HER FATHER OUTWEGH THE RISK OF HARM BY HER SPENDING TIME WITH THE FATHER?
As the Full Court said in Summerby “the termination of a child’s relationship with one of her parents is a course of last resort.” I have considered the proposed orders of no time on that basis. I have decided that the objective magnitude of the risk of emotional harm to Y from spending time with her Father outweighs the potential adverse impact of terminating her relationship with her Father save to the extent that I will make orders that she spend time with and communicate with the Father four times each year.
I accept the evidence of the Family Report Writer that Y will have “some grief about not having contact with her father.” In the assessment of the Family Report Writer the Mother had the “parental skills to be able to support [Y] through that adjustment” ([88]).
WHAT ARE MY ORDERS?
Order 2 allocates sole parental responsibility to the Mother. As noted, this was not a contested issue.
Order 3 is for the Children to live with the Mother.
Order 5 is that X should spend time with his Father in accordance with his wishes. I have adopted a form of order the ICL proposed that should X seek to spend time with his Father he should seek such time in writing to avoid dispute about whether X does (or does not) seek to spend time with his Father. A written communication of X’s wishes, with the clarity that a written communication entails, is an order less likely to lead to the institution of further proceedings under s. 60CC(3)(l).
The Father submitted that the Court should make an order that he be able to attend at X’s sports matches. I do not intend to make any special order about sports matches. If X wishes to see his Father, that will be a matter for X in accordance with X’s wishes.
Order 6 gives effect to my conclusion that it is not in Y’s best interests to spend any time with her Father save to the extent that I will order that she spend time with her Father on four occasions each year in accordance with the Mother’s alternative proposal so that Y can know her Father and be protected from emotional harm. I have adopted the Mother’s proposal that the supervisor be the B Contact Service (or otherwise as agreed) so that supervised time may occur in the community. The maintenance of that limited contact between Y and her Father will mean that Y may resume a relationship with him should she so wish when she has the maturity and level of understanding to make that decision for herself.
The Family Report Writer’s opinion was that communication with the Father was not in Y’s best interests. She said (T477:L41-43):
I tend not to think so, because part of that coercive control profile is usually a highly manipulative person, and I – my worry would be that she would be subtly influenced to follow him.
I accept the Family Report Writer’s evidence.
As to Order 7 I have favoured the Mother’s position that school reports be released to the Father rather than an order that the Father has greater access to school information which may undermine the Mother’s household.
Order 10 is an order as to physical discipline in light of the video annexed to the Father’s affidavit.
The other orders require no elaboration.
I certify that the preceding two hundred and eighty-six (286) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 19 September 2024
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