Valerie & Bridgley
[2023] FedCFamC1F 22
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Valerie & Bridgley [2023] FedCFamC1F 22
File number: NCC 3850 of 2017 Judgment of: SMITH J Date of judgment: 27 January 2023 Catchwords: FAMILY LAW – Children – final hearing – Where mother and new partner have a child and are engaged – where mother’s new partner has a history of poor mental health, alcohol abuse and family violence against multiple prior intimate partners – Whether mother’s new partner has changed – Whether mother’s new partner poses an unacceptable risk of harm to the children – Whether mother is able to safely supervise her new partner with the children – Whether the mother’s new partner and the mother are likely to comply with an injunction restricting his presence when the children are with her.
FAMILY LAW – Where mother’s new partner poses an unacceptable risk – where mother is not able to adequately supervise as she denies there is any risk and adopts her new partner’s positions – where there is a high risk the mother and her new partner will not abide in the long term with injunctions that he not be present when the children are with her.
FAMILY LAW – Orders: Children to live with father. Father to have sole parental responsibility with an obligation to consult. Children to have daytime only time with the mother on two days each month and limited special occasions. Mother may attend school, extra-curricular events and medical appointments so long as her new partner does not attend. Children to have regular audio-visual communication with mother. Ancillary orders.
Legislation: Evidence Act 1995 (Cth) s 140
Family Law Act 1975 (Cth) ss 60CA, 60CC, 65AA, 68B.
Cases cited: B and B (1993) FLC 92-357
Banks & Banks [2015] FamCAFC 36
Division: Division 1 First Instance Number of paragraphs: 447 Date of last submissions: 19 July 2022 Date of hearing: 6-8 June 2022; 13-15 July 2022; 19 July 2022 Place: Sydney by Microsoft Teams Counsel for the Applicant: Mr Mooney Solicitor for the Applicant: Jennifer Blundell and Associates Counsel for the Respondent: Mr Boyd, then Mr Willoughby Solicitor for the Respondent: The Family Law Co Counsel for the Independent Children's Lawyer: Mr Gutteres Solicitor for the Independent Children's Lawyer: Legal Aid NSW ORDERS
NCC 3850 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR VALERIE
Applicant
AND: MS BRIDGLEY
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
27 JANUARY 2023
THE COURT ORDERS THAT:
1.All previous orders are discharged.
Parental responsibility
2.Mr Valerie born in 1990 (“the father”) is to have sole parental responsibility for making decisions about the major long term issues, including the care, welfare and development of the children, X born 2015 and Y born 2016 (“the children”). These issues include but are not limited to the child’s: education; religious and cultural upbringing; health; name; and any changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent, or for the parties to comply with these orders.
3.Whenever an issue relating to the long-term welfare of the children or either of them arises, prior to exercising his sole parental responsibility the father will (other than in a genuine emergency), contact Ms Bridgley born 1993 (“the mother”) in writing and
(a)Identify the issue;
(b)Set out his proposal;
(c)Invite the mother to respond with any alternate proposal,
(d)Make a bona-fide effort to reach a joint decision, and thereafter
(e)Advise the mother of his decision.
Live with father
4.The children are to live with the father commencing no later than 5pm on Saturday 28 January 2023 and the mother is to do all things reasonably necessary to achieve this.
Time with mother
5.The children will spend time with the mother as agreed between the parents, but failing agreement:
(a)On the second and fourth Sunday of each calendar month from 10:00am to 4:00pm, commencing from 12 February 2023.
(b)On each of the children’s birthdays from 2pm – 5pm if a non-school day, or 4:00pm – 7:00pm if a school day.
(c)On 25 December the children shall spend 2pm to 6pm with the mother, and this order will take precedence over order (a) above.
6.For the purpose of facilitating changeover, any changeover that does not occur at the children’s school shall occur by the parties or their nominees (with the exception of Mr B born in 1990 (“Mr B”)) attending at C Town McDonalds and the change over time shall be the start and end of the mother’s time.
Attendance at functions
7.The mother is authorised by these Orders to attend functions and public events relating to any school or extra-curricular activity in which the children, or either of them, are involved and to which parents and/or members of the community are normally invited, on condition that Mr B does not attend.
Communication with mother
8.The children will communicate with the mother by FaceTime or other agreed audio‑visual means three times per week, at times as agreed between the parents or otherwise every Tuesday and Thursday night between 5-5:30pm and each Saturday morning between 9-9.30am.
9.For this purpose, the mother will call the father’s mobile phone and the father will ensure that his mobile phone is turned on and that the children are ready to take the call.
10.If the children ask to speak with the mother at other times the father may contact the mother to ask if she is available to speak with them, and if she is the father may permit the children to speak with the mother for up to 10 minutes each. This shall be at the father’s discretion.
Communication between parents
11.The parents shall communicate in relation to all matters concerning the children by using the Our Family Wizard app, or any other co-parenting app agreed in writing, save for in an emergency, where they shall communicate via telephone call.
12.Each of the parents shall keep the other promptly informed of any serious health issues that impact the children or either of them while they are in their care.
Non denigration
13.The parents are restrained from denigrating the other parent or anyone in the other parents family or household in the presence or hearing of the children, and from permitting the children to remain in the presence or hearing of another person denigrating the other parent or anyone in the other parents family or household.
No corporal punishment
14.The parents are restrained from using corporal punishment on the children, or either of them, or from allowing any third party to do so.
School enrolment
15.Within 7 days, the father is to do all things reasonably necessary to enrol the children at D School and ensure their attendance.
16.Within 28 days, the father is to do all things reasonably necessary to liaise with D School to enquire as to any other support or services that may be available or connected with the school for X.
Relationships Australia
17.Within 7 days, the Independent Children’s Lawyer will nominate a program or programs provided by Relationships Australia to support the children transitioning into the father’s care.
18.Within 7 days of receiving notification from the Independent Children’s Lawyer, the father will do all things reasonably necessary to enrol in and ensure completion of the nominated program or programs.
Medical care
19.Within 14 days, the father will make appointments with a paediatrician at E Health Service for the children in relation to their respective medical and mental health needs, and follow any treatment advice, obtain referrals to any recommended specialists, mental health practitioners and allied health providers that the paediatrician deems necessary and do all things reasonably necessary to make and attend appointments with those practitioners and follow any reasonable treatment advice of those practitioners.
20.The father shall promptly notify the mother in writing of any appointments that he makes for either of the children including the date and time of such appointment and the name and contact details of the practitioner.
21.The mother is entitled by these Orders to attend any and all appointments with any paediatrician and other medical or allied health provider as if she was a person exercising parental responsibility, on condition that Mr B does not attend.
22.Each of the parents is authorised by these Orders to obtain information directly from any medical practitioner, mental health practitioner or allied health practitioner upon whom the children, or either of them, attend.
Provision of orders
23.A copy of these orders may be provide to the children’s school or educational institutions and medical or allied health practitioners.
Passport Orders
24.The father is at liberty to do all things and sign all documents to cause an Australian Passport to be issued for the children and to thereafter ensure that the children continue to hold a valid Australian Passport absent the consent of the mother.
25.The father will retain the children’s passports and is to provide the mother with a certified copy of the children’s current passport within 7 days of a request by her.
26.The children are permitted to travel overseas in the care of the father provided the father has written to the mother with the following information not less than 56 days before the intended departure date or unless otherwise agreed in writing;
(a)The time and date of departure from Australia and time and date of return to Australia; and
(b)The address and contact details of where the children will be staying throughout the trip including the names of hotel and other accommodation; and
(c)A copy of the flight or other transport details and any available itinerary; and
(d)A copy of the children’s current passport if the parent does not already have one.
27.At least 72 hours prior to overseas travel with the children, the father will register the children with Smart Traveller or similar authority of the Australian Government and provide the mother with confirmation and details of the same.
Father not to consume excessive alcohol
28.The father is restrained from consuming alcohol to the point that it would make it illegal to drive a motor vehicle in NSW while the children are in his care or for 12 hours before the children coming into his care.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Valerie & Bridgley has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
SMITH J:
INTRODUCTION
The families
These parenting proceedings are primarily about the risks X born 2015 (aged 7), and Y born 2016 (aged 6) (“the children”) face in each of their parent’s households.
The children presently live with their mother Ms Bridgley (“the mother”) (aged 29) and their half-sister Z at F Street, Suburb G. Z is the child of the mother and her new partner Mr B (“Mr B”) (aged 32). The mother does not currently work. The maternal grandparents are other significant people in the children’s lives.
The mother has been in a relationship with Mr B since about mid-2020. They are engaged to be married. Because of Orders of this Court of 25 September 2020 restraining Mr B from spending unsupervised time with the children, the mother and Mr B have never cohabited. The mother says she wants to live with Mr B but that will depend upon the outcome of these proceedings.
Mr B presently resides in a rental property in H Town, NSW, over an hour from the mother’s home. He works in industry. He has a child of a previous relationship, J (aged 6). J lives with her mother Ms K. Mr B says that J spends time with him each alternate weekend, and otherwise as agreed between Mr B and Ms K. During most of the period prior to Trial Mr B would attend the mother’s residence of a weekend in order to provide assistance with the care of Z.
In his oral evidence Mr B said that he was commencing work on a weekend roster of 12 hour shifts from Friday to Sunday and not working weekdays. He planned to spend the weekdays from Monday to Thursday mainly at the mother’s house. That roster was to be in place for 6‑12 months. It cannot be known whether that roster will continue. He said he had reached an agreement with Ms K about time with J on Mondays and Tuesdays for extra curricular events as he will not be able to see her on weekends. Mr B said his desire is to live with the mother and Z and the children, but also said that would depend upon the outcome of these proceedings.
The children presently spend time with their father, Mr Valerie (“the father”) (aged 32) each alternate weekend and the alternate Tuesdays overnight pursuant to Orders of 21 May 2021. That time is also spent with his partner Ms L (“Ms L”) (aged 29) and their child, the children’s other half-sister, V born 2022. The father and Ms L own and live in their home at M Street, N Town, NSW. The father works fulltime for O Limited. He works from 7 am until 3.30 pm and says his work hours are flexible.
Ms L works in retail in Suburb P. At the time of giving evidence in mid-2022 she was on maternity leave. She intended to return to work part-time during mid-2022. She also indicated that the outcome of these proceedings would determine how many days she would work. She said that if the children live with the mother she will work three days per week, but if the children live with her and the father she intends on working one or two days a week. The paternal grandparents and extended family are other significant people in the children’s lives.
Relationship history
The parties commenced their relationship in early 2014, began cohabitation in mid-2014 and separated on 21 November 2017. They had a difficult relationship marred by the father’s issues with mental health, alcohol abuse and his family violence perpetrated against the mother.
The father commenced proceedings on 12 December 2017, soon after separation, in the context of the mother seeking to relocate with the children.
Consent final orders, entered on 26 July 2018, provided for equal shared parental responsibility, with the children to live with the mother, spend time with the father, and a restraint against the mother relocating further than 75kms from the father’s residence. There was also a restraint on the father consuming alcohol for a period of 12 hours prior to spending time with the children or during the children’s time with him.
The father entered his de-facto relationship with Ms L in late 2018.
There was ongoing mediation and further consent orders were made on 12 February 2019. These orders confirmed equal shared parental responsibility and made further provision for the children’s time with the father.
From early 2020, by informal agreement, the children commenced spending each alternate weekend from Thursday afternoon to Monday morning, and each alternate Tuesday overnight with the father.
As far as the mother was concerned there were no recurrences of the father’s prior violent behaviours during this period. The co-parenting arrangement was working well. The mother brought the children to wish Ms L a happy Mother’s Day in 2020. In cross examination the mother said she never had a problem with Ms L until the smacking incident (below).
In about mid-2020 the mother commenced her relationship proper with Mr B.
About four weeks later, the co-parenting relationship went from good to high conflict as a result of an incident in which it appears someone smacked Y hard enough to leave a hand mark on his buttock, and also other marks, and X also had marks on his leg at this time (“the smacking incident”).
The mother involved the Department of Communities and Justice (“DCJ”). An interim ADVO was taken out against the father, which he consented to without admissions, and his time with the children ceased. DCJ later became aware of Mr B’s significant history of family violence and a safety plan was then put in place around Mr B’s time with the children.
The father then commenced these proceedings.
The mother’s evidence in cross examination was she had come to believe the father had genuinely changed until the smacking incident, which was why she had allowed the children to spend much more time with the father than the orders permitted. She believed the father had reverted to violence and struck Y and X.
The mother did not consider at the time, and repeatedly stated in her evidence that she will not consider, the possibility that it was Mr B, rather than the father, who smacked Y. The mother’s evidence revealed that the father and Mr B each had the opportunity.
The main issues
The primary issue identified by the Court Ms Q (‘the Family Report writer”) and the parties was whether or not Mr B presents an unacceptable risk of physical or psychological harm to the children (“an unacceptable risk”).
It is common ground that Mr B has a mental health condition, a history of alcohol abuse, self-harm, and threats of suicide. He engaged in family violence across 2017 to 2019 against former partners, including Ms K (J’s mother), and two subsequent partners “Ms R” and “Ms S”, which involved police involvement and some convictions.
Mr B described his view of the situation to the Family Report writer as set out in the Family Report at [87]:
When discussing his past offences in this assessment, [Mr B] said that he was an "aggressive" person because he had [an] unmanaged [mental health condition], associated depression and anxiety, and was abusing alcohol. He described himself as the type of person who 'pushes back' if he feels attacked; which he has experienced in his previous relationships.
Mr B’s evidence at Trial was that he had developed significant insight into and accepted responsibility for his past family violence. He also gave evidence that while not having any medical management for his mental health condition he has undertaken lifestyle changes including reducing his alcohol consumption. On this basis both Mr B and the mother gave evidence that they believe that Mr B does not pose any risk to the children. These were all contested issues and took up a large part of the Trial.
In relation to the smacking incident, ultimately all parties submitted that as both the father and Mr B each had the opportunity to have caused the marks the evidence was insufficient to allow the Court to make any reliable finding, noting the provisions of s 140(2) Evidence Act 1995 (Cth). I accept these submissions and have not taken the smacking incident into account as evidence of excessive physical chastisement by any person in assessing the risks that either the father or Mr B pose to the children. However, I have taken conduct around the investigation into account as discussed elsewhere.
If Mr B poses an unacceptable risk, the issue then becomes whether the mother has the capacity to protect the children and effectively supervise Mr B if the children spend time with them, and if not whether Mr B and the mother would likely comply with an injunction over the long run that Mr B not spend any time with the children if such an injunction was ordered.
The issue of the risks the father poses to the children was also addressed, given his history of poor mental health, alcohol abuse and family violence towards the mother. However, no party ultimately submitted that the father poses an unacceptable risk to the children.
Other issues considered included the question of each parents overall parenting capacity and of the likely impact of a change of primary residence on the children, and in particular on X who has autism spectrum disorder.
Summary of findings
In the Family Report, the Family Report writer expressed the opinion that Mr B posed an unacceptable risk to the children and that the risks could not [170] “be effectively ameliorated by Safety Plans, injunctions or supervision requirements”. She maintained that opinion in her oral evidence having been advised of the parties’ oral evidence at Trial. The father and the Independent Children’s Lawyer (“ICL”) largely adopted the Family Report writer’s opinion for the reasons she had given and proposed a change of primary residence, with orders for the children’s time with the mother to be subject to injunctive orders to protect the children from spending time with Mr B, or else for minimum time with the mother to reduce their exposure time to Mr B.
In closing submissions, counsel for the mother conceded there was a risk that Mr B would engage in family violence towards, or in the presence of, the children of the kind he previously engaged in. It was sensibly conceded that unless the risk of a recurrence was assessed as low, the magnitude of the consequences of exposure to such family violence meant that the Court would find that Mr B presents an unacceptable risk to the children.
The essence of the mother’s case was that the risk of recurrence was low because Mr B has changed. Further, she submitted that his prior conduct was highly situational to conflicts in his prior domestic relationships and that as such conflict was unlikely to occur in his relationship with her and he was unlikely to engage in family violence again.
It was conceded for the mother that the issue of whether or not Mr B was an unacceptable risk was “a close call”. However, she submitted the risk fell under the “threshold” for “unacceptable risk”.
For reasons set out below, I do not accept that Mr B has developed insight into, or accepted responsibility for, his past family violence, nor adequately addressed his mental health or alcohol use.
I find that Mr B presents an unacceptable risk of both physical and psychological harm to the children if he has any unsupervised contact with them, and that the mother is not a suitable supervisor as she does not accept that Mr B poses any risk at all to the children. Further, I find there is a significant risk that Mr B and the mother jointly will not abide by an injunction that Mr B not be present when the children are in the mother’s care.
I find that while there is a risk of a recurrence of the father’s prior behaviours of family violence, that unlike Mr B he has in fact accepted responsibility and changed. I find the risk the father presents is relatively low and that he does not pose an unacceptable risk.
The risk Mr B poses, the inability of the mother to adequately supervise, and the risk of non‑compliance with a long term injunction together mean the children’s best interests require they change primary residence to live with the father and further that they spend relatively limited time with the mother to reduce their exposure to Mr B.
I find that it will be extremely traumatic for such young children to be removed from their historical primary carer, and then have limited time with her, but that they will eventually adapt.
I find the Orders I will make will adversely affect the children’s capacity to maintain a meaningful relationship with the mother and to develop a relationship with Z, and will negatively impact on their relationship with the extended maternal family, which will cause them distress and represent a significant long term loss to them.
This is a tragic result for the children. However, given the grave risks posed by exposure to Mr B it is the least worst option available.
PROCEEDINGS
History
On 22 July 2020 the father recommenced Court proceedings by Initiating Application. The mother accepted in closing submissions that this was a consequence of the father finding out about Mr B’s history.
On 26 August 2020 the Court ordered a Family Report and the appointment of an ICL. Mr B swore an affidavit on this date considered elsewhere. The parties entered into Consent Orders discharging the Final Orders of 26 July 2018. These Consent Orders provided for the children to live with the mother and spend supervised time with the father for no less than two hours a fortnight. The Orders also provided for the father to communicate with the children each Tuesday, Thursday and Saturday night by FaceTime. The mother was required to provide information regarding Mr B’s past treating psychologists/psychiatrists, his GP and any admissions into mental health facilities. On 18 September 2020 the father commenced two hour supervised visits at his parents’ house through T Family Services.
On 25 September 2020 a Justice of this Court made orders that the mother was to be present with the children at all times when B was in the company of the children. These were not consent orders. There was also an order by consent that each party be restrained from using corporal punishment on the children.
In late 2020 X was diagnosed with Autism Spectrum Disorder.
The father defended the ADVO taken out after the smacking incident. It was listed for hearing in early 2021, but withdrawn and dismissed without any evidence being called.
On 3 February 2021 the parties entered into further Consent Orders. The parties were to have equal shared parental responsibility. The children were to spend time and communicate with the father as agreed, or failing agreement each alternative weekend commencing at 4.30pm Friday and concluding at 4.30pm Sunday with changeover to occur at C Town McDonalds. The father was to have FaceTime communication with the children each Thursday and Friday at 5.00pm. The parties also each agreed to be restrained from travelling with the children by car for a distance of more than 100km for more than one return trip a fortnight during school terms. It was further ordered the mother would ensure that X attended his specialist appointments and provide authorisation for the father to communicate with and obtain information from medical practitioners at his expense.
On 28 May 2021 the parties entered Consent Orders discharging all previous orders “in relation to the father’s time with the children” and for the children to spend time with the father each alternate week from the conclusion of school (or preschool) Friday until Monday and alternate Tuesday overnight to school the next day. The father was authorised to attend any treatment appointments in relation to X. These further Consent Orders did not discharge the Orders of 25 September 2020 requiring the mother to be present with the children at all times they are in the company of Mr B.
On 22 December 2021 the parties reached an agreement for the continuation of the children’s time with the father through the December and January school holidays, including provisions for Christmas day.
The mother’s evidence was that in early 2022 Y said to her: “Sometimes I feel like cutting myself with knives. I could cut my foot with a piece of glass if I want to.”, and, “I can hurt myself on purpose.” Following this the mother stopped time between the children and the father for a period of time. She says she was advised to do so by somebody at DCJ. The Family Report writer accepted this sometimes happens and complicates matters.
Y was seen by a paediatric psychiatrist, provided a mental health plan and placed on surveillance. The mother was told the disclosures were most likely a trauma response but there was no identification of a person responsible. DCJ were contacted but did not substantiate any allegation or risk against any person and closed the complaint due to insufficient information. After correspondence between the parties, time with the father recommenced. It was common ground in submissions that it is not possible to draw any inferences in respect of either Mr B or the father from this apparent trauma response, which would be consistent with Y sensing the high parental conflict.
Trial and evidence
The matter was listed for a five day final hearing, commencing Monday 6 June 2022. Each party was legally represented including by counsel.
There was a Joint Court Book with the primary affidavits and reports which consisted of 246 pages which was marked for identification (MFI 1) and a tender bundle (MFI 5) containing documents consisting of 362 pages which included most of the documentary material admitted into evidence at Trial. There were also a range of other documents provided separately and admitted throughout the Trial.
The father relied upon an Amended Initiating Application filed 25 May 2021 and a Case Outline as an aide-memoir (MFI 3 / AM 2). He relied upon a proposed minutes of order provided at the conclusion of the evidence (MFI 7). He read his Affidavit sworn or affirmed 6 April 2022 and filed 14 April 2022, and his further Affidavit affirmed and filed 12 May 2022, an Affidavit of Ms L affirmed 6 April 2022 and filed 14 April 2022, and an Affidavit of his father Mr U (the paternal grandfather) sworn or affirmed 7 April 2022 and filed 14 April 2022. The father, Ms L, and the maternal grandfather were cross examined.
The mother relied upon her Amended Response to Final Orders filed 4 May 2022, her Notice of Child Abuse filed 25 August 2020 and a Case Outline (MFI 3). She read her Affidavit sworn or affirmed 3 May 2022 and filed 4 May 2022, and the Affidavit of Mr B sworn or affirmed 4 May 2022 and filed 5 May 2022. The mother and Mr B were cross examined.
The ICL relied upon a Case Outline as an aide-memoir (MFI 6 / AM 3) and a proposed minute of order provided at the end of the evidence (MFI 11). The ICL tendered the “Children and Parents Issues Assessment” dated 17 December 2020 (Exhibit ICL 1) (“CAPIA”) and the Family Report dated 28 September 2021 (Exhibit ICL 2) (“the Family Report”) prepared by the Family Report writer. The Family Report writer was cross examined.
The Trial commenced on the 6th and proceeded on 7th of June 2022. As a consequence of a medical emergency, the matter was adjourned by me, of my own motion, over the mother’s objection. The Trial continued on 13, 14, 15 July 2020 with oral submissions delivered on 19 July 2022.
DOES MR B POSE AN UNACCEPTABLE RISK?
The risk factors identified in the Family Report were the inter-related issues of Mr B’s untreated mental health condition, history of alcohol abuse, history of self-harm attempts and threats, and history of family violence against multiple partners.
The Family Report writer considered, based on Mr B’s presentation and statements to her, that he had not accepted responsibility for his prior behaviours or changed his attitudes, had not adequately addressed his unmanaged mental health condition as he elects not to have medical supervision, and had not adequately addressed his alcohol issues as he continued to consume alcohol.
The CAPIA and Family Report
On 16 December 2020, the Family Report writer interviewed the parents and observed the children with each parent for the Children and Parents Issue Assessment.
The Family Report writer re-interviewed the parents and also interviewed Mr B, Ms L, Ms W (the paternal grandmother) and Ms BB (the maternal grandmother) for the Family Report. Due to the COVID-19 pandemic the children were not observed again and were not interviewed.
As the mother was in Mr B’s home at the time of her interview the Family Report writer said that a detailed assessment of the mother’s and children’s relationship with Mr B was not appropriate. This was acknowledged to be a limitation of the Report. Counsel for the mother submitted in closing that this was a factor reducing the weight to be given to the Report. I consider this relevant to the weight to be given to the Family Report writer’s assessment of the relationship between the mother and Mr B, considered elsewhere, but of only limited relevance to the Family Report writer’s assessment of the risks posed by Mr B given the expressed basis of her opinion.
The Family Report writer’s written opinion about Mr B
In relation to the issue of family violence the Family Report noted at [121]:
121.[Mr B] has a serious history of family violence against others; verified by NSW Police records (subpoena 15). These records provide examples of abusive incidents by [Mr B] towards several ex-partners, which include:
a.[Mid] 2019: [Mr B] threatened to end his life in retaliation to his ex‑partner (separating in [mid] 2018) not allowing him to see their children. [Mr B] was scheduled to a mental health unit by police, later absconded, and was subsequently brought back to hospital by police.
b.In [mid] 2019, [Mr B] contacted his ex-partner in breach of an AVO in place at the time, stating “You know I can shoot a gun, I’d have no problem with shooting you in the head and putting a hole in you”. [Mr B] was arrested for this abuse, and for [another offence].
c.In [early] 2019, [Mr B] threatened his partner of three months, “I am going to burn all of your stuff and all of your daughter’s stuff…I am going to beat you worse than you’ve ever been beaten before”. Later [Mr B] pushed his partner, kicked her in the back, hit her in the face/head, punched the door of her car, and tailgated her erratically in the car with her three year old child. [Mr B] denied some of the allegations, but was arrested and charged.
d.In [late] 2018, [Mr B’s] ex-partner (relationship between [mid] 2017 – [mid] 2018) sought an AVO after threats and abuse from [Mr B], including ”I’m going to destroy everything you hold dear” and threats suggesting [Mr B] was stalking her. There were concerns that [Mr B] damaged a car at his ex-partner’s property.
e.In [late] 2017, [Mr B] threatened the father of his ex-partner (relationship ended [early] 2017) and subsequently attended his home and assaulted him. [Mr B] was arrested and charged.
f.In [late] 2017, [Mr B] was arrested for breaching his bail conditions after abusing and harassing his ex-partner.
g.In [late] 2017, [Mr B] was arrested and an AVO issued to protect his ex-partner after he abused and threatened her, including threatening to run her vehicle of [sic] the road.
The issue of Mr B’s insight into and acceptance of responsibility for his history of family violence was raised by the Family Report writer with Mr B. The Family Report writer noted in her Report the following exchange at [88]:
88.[Mr B] was asked to identify the worst thing he had ever done towards a partner/ex-partner. He said, "Putting myself those situations and taking their bait". Upon further challenge, he conceded that he has caused fear to others with his words, which he said can be "vicious". He initially commented "there was never any physical violence"; but conceded to pushing an ex-partner in a situation where he said the violence was mutual. When reflecting on his family violence history, he described himself as being in "a cycle I couldn't break at the time"; he explained that he wanted people to help him, but when they didn't, he would continue drinking and the 'cycle' would continue.
(As per the original)
The Family Report writer placed significant weight on these answers in forming her view that Mr B had not in fact accepted responsibility for his past behaviours.
In relation to Mr B’s mental health the Family Report writer recorded:
87.When discussing his past offences in this assessment, [Mr B] said that he was an “aggressive” person because he had [an] unmanaged [mental health condition], associated depression and anxiety, and was abusing alcohol. He described himself as the type of person who ‘pushes back’ if he feels attacked; which he has experienced in his previous relationships.
…
89.[Mr B] confirmed a history of [a mental health condition] for which he was previously medicated. He said he ceased medication for his mental health in [late] 2019 (despite records indicating he had a serious mental health episode in 2019), but denied any issues since. [Mr B] denied ever undertaking any programs or interventions to address his mental health issues, but said he reduced his alcohol use. He also said he relocated his employment from [City CC] to [DD Town], and disconnected from his past relationships, which he believes had a positive impact on his mental health.
The Family Report writer also said at [148-149]:
148.In this assessment, [Mr B] reported that he has been diagnosed with ADHD and [a mental health condition], and has experienced periods of associated anxiety and depression. He said he was medicated for a period of time, but ceased all medication in 2019. [Mr B] denied engaging in any psychological intervention for these issues. [Mr B] denied that his mental health should be considered an issue of concern. It is noted that in an interview with DCJ in [mid] 2020, [Mr B] denied having any mental health issues (subpoena 2).
149.There is collateral information available pertaining to [Mr B’s] mental health. These records indicate that in 2019, [Mr B] was scheduled by police for a mental health assessment after he threatened to end his life (NSW Police, subpoena 15). Hospital notes pertaining to [Mr B’s] assessment (subpoena 7) indicate that he had been previously assessed in 2017 for suicidal ideation and was diagnosed with “[a mental health condition]”. Notes further indicated “reported [self-harm] 3 years ago”. [EE Hospital] records (subpoena 13) indicate that [Mr B] presented to hospital with suicidal ideation in 2017 in context with a relationship breakdown.
The Family Report writer was also concerned about the power dynamic in Mr B’s relationship with the mother. She expressed concern at his comment at paragraph [81] of her Report, that the children “approach him (when they need something) in preference to the mother”.
She also noted at [85]:
85.A concerning observation was made of [Mr B] at the end of the interview, when he was more relaxed and speaking more freely as the interview was being concluded. In this discussion, the family consultant complimented the mother. [Mr B's] demeanour instantly changed. He became sullen and criticised the mother. It was the impression of the family consultant that [Mr B] did not like the focus taken from him, especially positive attention towards the mother. This, in addition with [Mr B's] perception that the children show a preference towards him over the mother, raises concerns about his psychological fragility and the potentially unhealthy nature of the mother's relationship with him.
The Family Report writer said at [125]:
125.[Mr B]'s approach to the issues does not appear to have changed since these aforementioned concerns were raised by other assessors. [Mr B] also displayed characteristics in this assessment which were strong indicators of risk to the mother; such as his sense of entitlement in his relationship with the mother, his stark negative reaction to positive sentiment expressed towards the mother, and his perception that the children show preference to him.
The Family Report writer said at [167]:
167.[Mr B’s] own presentation amplified concerns in this assessment about the safety and wellbeing of the children and mother with him. His hostile reaction to a shift in attention from him and positive focus towards the mother, and his portrayal of himself as the children’s preferred relationship over the mother, exposed specific characteristics in [Mr B] which would be considered further indicators of risk.
The Family Report writer’s written “Evaluation”
The Family Report writer said that the children had established close relationships with both parents despite the instability and discord in the parental relationship. That was not in issue at Trial. The Family Report writer considered the likely exposure to emotionally harmful behaviour by adults across both households was “likely to have generated considerable stress for the children, and diminished their sense of safety and security in their family.”[1]
[1] Family Report dated 28 September 2021, paragraph 162.
The Family Report writer’s summary of the issues in the Family Report under the heading “Evaluation” substantially reflected the issues at Trial:
164.The mother has alleged a history of aggressive behaviour by the father towards her and the children. However she felt these issues resolved after separation when the father addressed his alcohol and mental health issues, and as such, she supported the children spending substantial time with him. It would appear that, unless the Court finds that the father has relapsed with respect to his alcohol abuse or mental health, there is limited contextual evidence at this time to indicate that the children are at an unacceptable risk with the father.
165.The other primary issue requiring consideration in this matter is whether there is an unacceptable risk to the children with [Mr B]. At the commencement of these proceedings, [Mr B] was the defendant on two separate AVO’s protecting two separate partners, and was subject to a CCO related to family violence offences. [Mr B] has [a mental health condition] and an associated history [sic] suicidal ideation and self-harm; yet he has not been medicated since 2019 (noting that he had a series of family violence and mental health incidents throughout 2019).
166.[Mr B] denies that there should be any concerns in relation to his history of family violence. Yet he would appear to have made minimal effort to address his offending behaviour and associated issues. He has not engaged in any family violence programs, and is not currently undertaking treatment for his mental health. He has not addressed his history of alcohol abuse, and continues to consume alcohol regularly. Research indicates that future risks of family violence are considered to be very high and potentially potent in a context of substance abuse and/or mental health issues; particularly if there is a history of self-harm and/or homicidal threats against others.
167.[Mr B’s] own presentation amplified concerns in this assessment about the safety and wellbeing of the children and mother with him. His hostile reaction to a shift in attention from him and positive focus towards the mother, and his portrayal of himself as the children’s preferred relationship over the mother, exposed specific characteristics in [Mr B] which would be considered further indicators of risk.
168.The mother commenced a relationship with [Mr B] in [mid] 2020. His last reported family violence offence to police was only five months prior. Eight weeks after the mother commenced the relationship, one of the children had handprint marks on his buttocks. In the course of the JCPR investigation, the children disclosed to authorities that [Mr B] physically disciplined them. Within twelve weeks into the relationship, the mother proposed a relocation with the children to the remote town of [DD Town] to live with [Mr B]. Within [the first six] months of the relationship, the mother fell pregnant with [Z].
169.The mother denies that there are any concerns for the children or herself in this relationship. This is despite obtaining knowledge of [Mr B’s] history, and despite a Safety Plan being established by DCJ which prevents her leaving the children in [Mr B’s] care and/or allowing him to provide care or discipline to the children. The mother has adopted [Mr B’s] distorted portrayal of the issues; that he has been a victim in his circumstances, and that any actions by him have either been provoked or ‘mutual’. This may be representative of the mother having already fallen prey to abusive tactics by [Mr B]; noting that offenders often manipulate victims to believe that any abuse in the relationship would be their fault.
170.The future safety of the mother with [Mr B] is a concern. Based on information available for this assessment, it would appear that [Mr B] poses an unacceptable risk to the children. Given the dynamics in the mother’s relationship with [Mr B], it does not appear that the risks could be effectively ameliorated by Safety Plans, injunctions or supervision requirements.
After discussing issues of relocation, which were not pressed by the mother at Trial, the Family Report writer continued:
174.Sadly, if the Court finds that [Mr B] poses an unacceptable risk to the children, and the mother maintains her relationship with him, then consideration will need to be given to the father’s proposal for the children to live primarily with him.
175.If the children live with the father, then they are likely to be afforded stability in their living arrangements and will maintain access to social and familial supports. The father proposes a change of school for the children, which he believes will better cater to the children’s needs; however, thereafter proposes to stabilise the children in this school. If the children live with the father, it is likely that their relationship with the mother will be positively supported; providing that the father and [Ms L] create and maintain a child-focussed environment around these children.
176.While the father as primary carer of the children is an untested arrangement; the children have experienced substantial and shared care with him in the past. If the father has not adequately addressed his mental health and alcohol abuse issues, then there is a risk that the father may relapse, and this may generate risks to the children with the father. However, [Ms L] appears to be a protective factor for the children and if the father’s wellbeing declines, there is a degree of confidence that [Ms L] would prioritise the safety and wellbeing of the subject children (and her future child/ren). Nevertheless, if the children lived primarily with the father, he would be encouraged to engage in psychological intervention to address any unresolved issues which compromise his long-term stability.
177.The father proposes that the children spend substantial (almost equal) time with the mother if she remains living in [YY Region] ; noting that he also proposes an injunction on the children being brought into contact with [Mr B]. If the mother resides in [YY Region] without [Mr B], then this proposal may be realistic. However, if [Mr B] lives with the mother in [YY Region], it is difficult to foresee how the children could practically spend substantial time with the mother.
178.The father proposed that if the mother relocates, the children should spend time with her alternate weekends and holidays. However, if there is an injunction imposed on the children being brought into contact with [Mr B], then the children’s time with the mother may need to occur in [YY Region] (such as in the current ‘granny flat’ residence of [Mr B’s] parents, which may or may not be a practical or available option). If the children spend alternate weekend time with the mother in [DD Town], then the children will continue to endure travel associated with their parenting arrangements.
179.The time the children spend with the mother if they live primarily with the father is an important consideration, given that the mother has always been the children’s primary relationship and they love her. It would appear common ground, that if the children’s time with the mother reduced significantly, this would be very distressing for the children. The degree of impact on the children of such circumstances would be influenced by a number of factors; including the children’s access to other primary relationships (such as the father, [Ms L], and extended paternal family), and the degree to which their other development needs (such as safety, security and stability) would be met. While there would be concerns for the children emotionally with a change of residence, their safety must be prioritised.
180.Physical discipline of the children has presented throughout these proceedings as an issue affecting the children in both households. It is therefore suggested that the current injunction prohibiting physical discipline be included in Final Orders.
181.The family consultant’s view of the parents having shared parental responsibility is that it may be problematic given the very poor state of the co‑parenting relationship throughout this litigation, and the risks of further litigation. If the Court finds the mother’s decision making for the children is impaired by dynamics in her relationship with [Mr B], then this may also be a reason to consider the allocation of sole parental responsibility. However, it would be an unfortunate outcome for these children if the parents were unable to retain shared parental responsibility, given that they have demonstrated periods of cooperating well for the children in the past. Shared parental responsibility would also be consistent with proposed arrangements of substantial/shared care.
Mr B’s evidence
Mr B trial affidavit was affirmed after the Family Report was released and made explicit reference to it. Mr B addressed his history of family violence, mental health and alcohol use, as well as his statement to the Family Report writer about “taking the bait”:
Previous Domestic Violence Charges
15.In or around 2018, I was charged with assault […] against my ex-partner. I was found not guilty and the charge was dismissed.
16.In or around 2019, I was charged with common assault (DV) and was sentenced […].
17.I have also been subject to […] previous Apprehended Domestic Violence Orders naming my ex-partners [Ms S] and [Ms R] as the persons in need of protection.
18.I was charged with breaching the ADVO between me and [Ms R] on two (2) occasions due to initiating contact with her during the period of the ADVO.
19.The ADVO between me and [Ms R] was extended for two (2) years after an incident at the local pub, whereby [Ms R's] partner arrived with a group of friends and provoked a verbal altercation. The following day, [Ms R's] partner reported the incident to the police.
20.I am extremely regretful and embarrassed of my actions which led to these charges.
21.At the time of the charges, I had [an] unmanaged [mental health condition], was consuming alcohol in excess, was triggered easily and was highly reactive in arguments. I was also having a difficult time processing my marriage breakdown with [Ms K]. [J] was [less than a year old] at the time we separated and had difficulties coming to terms with the fact that I would not be physically present in [J's] life on a daily basis.
22.Both [Ms S] and [Ms R] also struggled with addiction problems, which contributed to the difficulties in our relationships.
23.I recall that during the family report interviews, I was asked to consider the worst thing I have done in a relationship, to which I responded, ''putting myself in those situations and taking the bait." Upon reflection, the worst thing I have ever done is cause fear to my ex-partners and threaten their safety and I consider my behaviour during those relationships to be inexcusable.
24.In recent years, I have taken proactive steps to better myself and my living situation. I no longer reside in [City CC] and surround myself with positive people. I no longer drink alcohol to excess and attend upon my general practitioner in relation to my diagnosis of [a mental health condition]. I have shifted my focus to my job and children.
My Mental Health
25.I am not currently medicated for [my mental health condition] and ceased medication in or around [late] 2019. I am currently experiencing good health and have done so since [late] 2019.
26.I exercise regularly and put a lot of my time and energy into my [education], my relationship with [Ms Bridgley], and my children.
27.I am now able to better understand my symptoms of poor mental health and in the instance, I suffer poor mental health in the future, I will attend upon my general practitioner immediately.
(As per the original)
In the course of giving his oral evidence Mr B said he had taken time to reflect on his past behaviours, cut back on his drinking a lot, had taken on a job that challenged him mentally and physically, and removed himself from areas and groups of people who did not support a good lifestyle. He also said he was mindful of his issues and “red flags”. He said that he used to not talk about his feelings but a support network had changed this for him.
In terms of undertaking a behaviour change course, as raised by the Family Report writer, Mr B said he had never been advised to do such a course, and did not believe he needed to, but would if ordered to by the Court.
Mr B said that when he said in his affidavit that he “rarely” consumes alcohol he meant twice a week and at social events, and agreed he had told the Family Report writer that he drank two to three nights a week. He said he intended to convey that he drinks about two beers three times a week. He said that he did not consider his consumption of alcohol posed any risk at present. He said he drinks even less now. Mr B said he had addressed his issues by not drinking to excess. He agreed he had not undertaken any drug or alcohol counselling. He said he was alcohol tested at work every day.
Mr B said he developed a mental health condition from his early to mid-twenties and was medicated for this with various medicines from about 2011 to 2018.
Mr B said he ceased taking medication for his mental health towards the end of 2019, when he got a job in DD Town, as well as cutting back on drinking and going to the gym. He said he started to wean himself off medications, and that his friend Mr FF who he was bailed to live with gave him “some hard truths”.
In terms of his diagnosis of his mental health condition he said people he had spoken to, not being doctors but other people with the same issue, had suggested cutting back drinking or stopping drinking, changing diet and activities.
He said he had spoken with his GP and said he did not want medication in about early 2020 after meeting the mother. He said he struggled with the side effects of the medication and stopped taking it of his own accord. Mr B said he is no longer taking medication. He last spoke with his GP about medication a couple of years ago.
There is no evidence from Mr B's GP nor from any other medical or allied health practitioner concerning Mr B’s current mental health status.
Mr B was asked whether he accepted that, given his history of alcohol abuse, mental health issues and family violence, he posed any risk to the children or the mother. He said he strongly disagreed that he posed a risk as he did not accept that there was any risk of recurrence of his prior family violence behaviours.
Mr B said given how hard the last two years have been if he was still the person he used to be there would have been evidence of relapse in his behaviours. He said there had been no relapses as evidenced by the lack of any police involvement.
In terms of co-parenting, Mr B said that he 100 per cent believed the father was trying to control what the mother did. He said that this was through the Court orders the father had sought. Mr B said he understood the father’s concerns, given his record, but did not have a good opinion of the father. Despite that he said he would like to be in a position to work with the mother and the father to allow them to co-parent the children because it would be the best result for the children.
During cross examination Mr B was taken in detail through events related to his mental health, alcohol abuse and family violence history.
Taking the bait
In cross examination for the father, Mr B was asked why he had told the Family Report writer the worst thing he had ever done towards a partner or ex-partner was "Putting myself in those situations and taking their bait".
Mr B said that he had not read the Family Report but agreed that it had been discussed with him during the preparation of his affidavit. He said he reflected on his answer about “taking the bait” straight after the interview because he realised it was not a reflection of how he truly felt. He denied he had included this in his affidavit merely as a way to deal with evidence which suggested his attitudes had not in fact changed.
The ICL returned to this topic and offered Mr B an opportunity to explain why he would have given this answer as recently as late 2021 if it was not in fact a true reflection of how he felt. Mr B said it was because he was not good at interviews and that he would get “muddled”. When pressed he then said he had had a big week at work and was tired and did not really want to respond to the question. He conceded that his answer put some of the blame for his violent behaviours on his ex-partners. He agreed he knew he was being asked questions by a court appointed expert in the context of a formal assessment for the purposes of a report for these proceedings. When pressed yet again on why he would have given that answer if it was not a reflection of his true view at that time, Mr B said he could not provide any explanation for his initial answer.
Late 2016 – mental health consultation
Mr B was asked about a letter produced on subpoena dated late 2016 from Dr GG at HH Medical Practice. He confirmed Dr GG was his regular GP who he had been seeing for about five years. Dr GG had prescribed medication. The letter was a referral to Dr JJ at KK Psychologists.[2] That referral included the statement “He now reports features suggestive of [a mental health condition]”.
[2] MFI 5, p. 170.
Mr B said at that time he was struggling with a very young child on the top of the 18 months of stress from the IVF process, together with financial stress, and was starting to get “down”. He said he was drinking quite heavily. He said he entered into a mental health care plan.
Shortly after this in early 2017 he separated from Ms K. Mr B said he was taking medication at the time of separation.
On the same day Dr GG wrote a referral to Dr LL, psychiatrist.[3] Mr B said he did not see Dr LL as Dr LL had moved to Sydney. He said Dr GG was looking for another psychiatrist but that no further referral was received. Mr B did not follow this up. Dr GG referred to starting Mr B on a trial of medication, but Mr B said he had been prescribed it earlier and it seems this was another trial. Mr B agreed he had been prescribed medication, which was noted as having last been prescribed in late 2014. He said this was an anti-psychotic medication also prescribed as a mood stabiliser, but that he was only on that medication for a short period. Mr B said he did not return to review the medication because he was having a rough period. He said that in hindsight it was a mistake not to go back.
[3] MFI 5, p. 172.
Early 2017 – mental health consultation
In early 2017, Mr B had a consultation with Dr GG.[4]
[4] MFI 5, p. 165.
The consultation notes referred to “long standing ADHD” and:
detailed history
has features of [a mental health condition]-heightened period last longer than one wk
-more productive
-sleeps less
-racy thoughts
-very happy-
-impulsive
-risk taking
also interspersed with 2 days of depression
FH of ADHD ? [and another mental health condition]
?? [A mental health condition]
discussed
explained to wife as well
ref to [Dr JJ] for assessment
start [medication] – explained s/erev in 2 wks
(As per original)
Late 2017 – attempted suicide
In late 2017, Mr B attempted suicide. Mr B said this occurred in the context of his marriage to Ms K breaking down.
Late 2017 – Family violence involving Ms K and her family
In cross examination by the mother Mr B was questioned by reference to a police event dated late 2017 which read, in part:[5]
…In some of the messages the accused called the victim a slut and a piece of shit. He goes onto to continually tell her she is a slut who will fuck whoever will fill her hole. The accused then sent a text where he writes about running the victim's bus off the road, that she was intending on catching to a concert later that day. The accused was constantly writing that the victim is an unfit mother and that he will come and take the child and there is nothing she can do about it. During further messages the accused writes, "I cant wait to catch up with captain coconut". This refers to a [foreign] friend of the victim…
(As per the original)
[5] MFI 5, p. 222.
Mr B agreed he had sent Ms K a number of text messages and called her a “slut” and a “piece of shit”. He agreed he had told her that she was “a slut who will fuck whoever will fill her hole” and also sent her a text threatening to run a bus off the road that she was in, and a text saying that she was an unfit mother and that he would take J, and that he could not wait to catch up with her friend “Captain Coconut”. He agreed that this was a threat to her friend. He agreed there was an AVO and he was charged and convicted and in late 2017 he received a 12 month good behaviour for a charge and fined for use of a carriage service to menace as set out in his criminal history.[6]
[6] MFI 5, p. 157-158,
He also agreed that in late 2017, about one week later, he sent her a text saying “Send me to jail. Fuck it. How bitter and twisted was another weekend away”, and left her voice messages calling her “A fucking worthless cunt” and a “worthless piece of shit”. He agreed he was arrested and charged, and he was convicted and sentenced.
Mr B was asked to explain why these events and convictions were not addressed in his affidavit, given his specific evidence at paragraph 15 of his affidavit that other charges against an ex‑partner had been dismissed. He said he assumed since his criminal history was available to everyone they would have been included in his affidavit when it was drafted.
Late 2017 – mental health consultation
Mr B was cross examined about a consultation with Dr GG in late 2017.[7] This was just after he was arrested for breaching the AVO in place to protect Ms K. It recorded that he had been through a lot, including having been in a police cell for breaching his AVO.
[7] MFI 5, p. 167.
The consultant notes recorded, amongst other things, “has depressive features” … “no taking [medication] for 6months..” … “mother stated he tried to [self-harm] months ago […]” … “doesn’t have any suicidal thoughts /plans at present.”
There was said to be no psychosis, suicidal or homicidal thoughts at that time just “low mood”.
The names of 3 psychologists were provided for Mr B’s mother to book an appointment with and then to return for a mental health care plan.
Mr B confirmed that he had tried to harm himself in late 2017, and was restarted on medication as an anti-depressant and that he was told about red flags and when to present to hospital. He said he was not sure he had understood the explanations given to him by the doctor. He did not recall the referral to psychologists.
Late 2017 – Family violence involving Ms K’s father
Mr B was also charged with contravene an AVO and assault occasioning actual bodily harm in relation to communication and an incident allegedly involving a scuffle with Ms K’s father. The police report included a history that:[8]
"The Accused and the Victim began sending each another abusive text messages prompting the Accused to write a message saying “See you in 5 sweetie". The Victim responded and wrote back to the Accused saying "Bring it on weak one". At 9.30pm that night the Victim was inside his home when he heard a Vehicle pull into his driveway before hearing the Accused banging on his front door telling him to come outside. the Victim immediately went to the front door and opened it before making his way outside where he and the Accused began arguing. The Altercation quickly became physical with the Victim and Accused pushing each other on the Victims front lawn. As a result of one of the pushes, the Victim fell into his garden and cut his right arm on a bush. The Victim immediately got back up and continued pushing and shoving with the Accused.
(As per the original)
[8] MFI 5, p. 219.
Mr B said that he did not admit the allegations and the charges were dismissed.[9] However, he agreed there were a series of text messages exchanged with Ms K’s father, that he wrote “see you in five, sweetie”, and when Ms K’s father replied “bring it on, weak one” he then went to Ms K’s father’s house and banged on the door. He agreed there was a scuffle and Ms K’s father fell over and cut his arm on a bush. He agreed that it was a poor decision to go to Ms K’s father’s house and said he was acting on emotions. He said he reacted poorly because up to that point he and Ms K’s father had been communicating well and he was shocked by the way he spoke to him when they crossed paths earlier that day.
[9] MFI 5, p. 158 and 219.
Mr B agreed this was what he was referring to when he said at paragraph 15 of his affidavit that the charge of assault occasioning actual bodily harm against an ex-partner was dismissed. He said he intended it to refer to an ex-partner’s father.
Mid-2018 – Alcohol use
Mr B confirmed his partner after Ms K was Ms R. It appears they were together from about mid-2017 to mid-2018.
Mr B was taken to the police event report of mid-2018 which reported that Mr B and Ms R had been in a de facto relationship for the previous 12 months.[10] Police recorded:
MOST RECENT INCIDENT: [MR B] and ...... ... got into a verbal disagreement over something that had been said earlier in the night by another male . ......... left the scene and the disagreement continued via telephone . ......... returned and [MR B] wanted to leave the scene and return home, however he was unable to drive due to his level of intoxication . .. ....... refused to give [MR B] the keys and ended up telling him another friend had accidently left the party with the car keys. [MR B] calmed down and when police arrived he was calm and quietly talking with .... ..... in the back shed . .. .. ..... stated that she had no fears of [MR B], there had been nil instances of violence and nil offences committed. Both parties advised that a report would be made on the COPS system.
(As per the original)
[10] MFI 5, p. 218.
Mr B was not sure who called the police but did not think it was Ms R. He said he thought Ms R was worried about his wellbeing in terms of driving home intoxicated.
Late 2018 – mental health consultation
Mr B was asked about his visit to his GP in late 2018, amongst other reasons for: [11]
Depression. recurrance after stopping [medication] few months ago. nil s/e with [medication]. needs to restart [medication]. nil other ppting stress. erv in 4 wks
(As per the original)
[11] MFI 5, p. 168.
Mr B said that when things were really bad he would take his medication but when things started to get better he would take himself off the medications without speaking with his GP and would try to find better ways to cope. He agreed he did not attend the review. He agreed that during this period of time his attempts to self-manage this process of taking himself off medication were unsuccessful.
Late 2018 – New relationship with Ms S
Mr B said he commenced a relationship with Ms S in about late 2018, after his relationship with Ms R ended. Therefore he was already in a new relationship when the events of late 2018 involving Ms R occurred.
Late 2018 – Family violence involving Ms R
Mr B was taken to the police event report of late 2018:[12]
About 11:50am on […] 2018, the victim/PINOP; ......... , attended [Suburb NN] Police Station, to report a domestic incident. . The victim/ PINOP and PN/defendant; [Mr B] were in a relationship from about [mid] 2017-[mid] 2018. The victim/PINOP and PN/defendant have no children together, but children from previous relationships. The victim/PINOP states the relationship was verbally and emotionally abusive. Since the break-up the victim/PINOP and PN/defendant have remained in contact on social media; Facebook/Instagram. Many messages go to and from the parties. The PN/defendant is often abusive towards the victim, this behaviour appears to follow up with messages which aim to minimise the behaviour/show guilt/blame the victim and the cycle continues. Messages include statements from the PN/defendant such as; "You have seen my real monster ......... and if you both keep pushing me I'm going to fucking destroy everything you both hold dear. You need to remember how my family are and what we are involved in. My heart is the reason I'm still busting my arse for you no reason it always fucks me." (spelling errors recorded as message written) Message date [late] 18. At 6am on […] 2018, the victim/PINOP received a message on Instagram from the PN/defendant stating; "Have fun struggling you fat are lying cunt. Don [sic] with pieces of shit like you using me. That fucking retarded looking cunt is dead I'm coming for him the sarvo [sic] after work ... Nice white [car] in the drive way same one that was just a work mate lying stinky box slut." On [that day], her current partner's car, was parked outside her home address
…
About 8am that morning two passerbys knocked and informed the victim/PINOP of damage to it.
(Emphasis added)
[12] MFI 5, p. 217-218.
Mr B said he had broken up with Ms R in about mid-2018, about six weeks after the event with the car keys, and these events occurred about 3 months post separation.
He agreed he sent the text message commencing “You have seen my real monster ......... and if you both keep pushing me I'm going to fucking destroy everything you both hold dear.” He said the other person referred to in terms of “both keep pushing me” was Ms R’s new partner.
When asked to explain what he meant by “my real monster” Mr B said he meant she had seen him be “really depressed” and unable to leave the house. He denied it was meant to convey anything about his capacity to be angry. When asked to explain what he meant by “going to fucking destroy everything you both hold dear” Mr B denied it was intended to convey how angry he could get. He said he did not know what he intended to convey. He said it was an emotional message that was not intended to mean anything.
Mr B was further pressed on the content of his text messages and, after some time, conceded that he wanted to make sure Ms R was hurting as much has he was. Having made that concession he then denied, however, that he wanted to frighten Ms R. He did not explain how he would hurt Ms R with the message if not by frightening her. He then denied that Ms R would have been frightened by that message. When further pressed on how the message could be read other than as a threat he finally conceded that he had in fact intended the message to be frightening. However, he remained adamant that Ms R would not in fact have been frightened.
In relation to the text message including the message “That fucking retarded-looking cunt is dead…’ and that he was “coming for him” Mr B agreed this was in reference to Ms R’s new partner. There can be no doubt that this was a threat to harm Ms R’s new partner. Mr B explained that he was very jealous at the time.
He denied he had been the person who damaged the motor vehicle. He said the damage occurring at the time he threatened it must have been mere co-incidence. No findings can be made about the damage to the motor vehicle.
Early 2019 – mental health consultation
In early 2019 Mr B attended his GP.[13] He was only questioned about this after being asked about the events of early 2019 involving Ms S, considered next, however it is relevant to examine this history before considering the events of early 2019. The history was:
[13] MFI 3, p. 168-169.
has new partner .. 6months ago
for last 3 wks ...
more irritable
down
sleep up and down
nil suicidal
getting angrier ..
allowed to vent
partner - has had enough ... not talking to hiom ..
nil homicidal thougths
feels he needs to get better
Reason for visit:
Depression/Anxiety
increase [medication] to 150mg
et [second medication]
rev in 2 wks(As per the original)
I will return to this attendance further below.
Early 2019 – Family violence involving Ms S
In early 2019, Mr B was arrested in relation to an offence involving Ms S. The police event recorded :
… There is no history of domestic violence between the parties, however according to the victim in the last few weeks the accused's behaviour has become controlling. There are no apprehended domestic violence orders between the parties. [In early] 2019, the victim and her daughter went out for the day fishing with the witness, .......... About 8.00pm, the victim received a phone call from the accused. During the phone call the accused stated, "I am going to burn all of your stuff and all of your daughters stuff'' and "I am going to beat you worse than you've ever been beaten before ." Shortly after, the victim and .......................... ..... ..... ......... ......... to collect belongings. The accused was standing in the driveway. The victim got out of her vehicle […] ......... ......... and collected some of her property……… spoke to the accused about the way he had spoken to the victim during the phone call. The accused went inside before returning back outside a short time later. The accused yelled at ......... , "You gap teeth fat cunt, don't ever speak to me like that or I will knock you out." The accused went towards……., and the victim pushed the accused away fearing that .. ....... was going to be assaulted . The accused pushed the victim by both shoulders up against her car …. .... .. ... went to assist the victim, and she too was pushed up against the car by the accused. Both .. ....... and the victim have got into the car in an attempt to leave, when the accused has punched the drivers [sic] side passenger door causing a large dent. The victim has got out of the vehicle, and the accused has kicked the victim in the back causing pain. At some stage, the victim states she had her mobile phone to her ear in an attempt to call Police, and the accused has struck her to the right side of her face with his right hand, causing the phone to fall to the ground and smash. The victim has returned to the vehicle and driven away. The accused has followed in his vehicle tailgating the victim and flashing his high beams. The victim's 3 year old child was inside the vehicle at this time. The victim contacted Police and made her way to [Suburb NN] Police Station with .......... The victim provided a DVEC statement to Police. The victim did not have any visible injuries, however states she has soreness to her back . .... ..... did not sustain any injuries as a result . ......... was not willing to provide a statement at the time, stating she would provide a statement at a later date. About 10.30pm, Police attended ......... ...... ... ......... where the accused was arrested and cautioned. The accused was conveyed to [Suburb NN] Police Station where he was introduced to the custody manager and explained his rights. The accused agreed to participate in an electronically recorded interview in which he made full admissions to damaging the victim's vehicle by "palming" the door causing the the dent. The accused denied threatening the victim in the phone call. The accused further denied assaulting the victim or .......... The accused stated he felt threatened by the victim and ......... when they attended the property and he stated he pushed them away during the confrontation due to this. The accused stated at one point he had to hold both the victim and ......... up against the victims vehicle to stop them coming towards him. The accused stated he sustained redness to both his wrists from the victim and ......... grabbing at him. He further stated at some point in the altercation he was struck to the right side of the face. Slight redness could be seen on the accused's right cheek area. The accused denied following the victim from the property and tailgating her in his vehicle. The accused stated he had consumed about 15-20 beers from 12 midday and was unable to drive due to this. The accused stated that he received a phone call from the victim stating, "I've been to the cops, you're fucked." During the interview the accused stated that the victim has made similar threats in the past to have the accused arrested. The accused's showed Police damage to the rear tail light of his vehicle, and claims this must have been caused by the victim and …… the accused is charged with the matters now before the court.
(Emphasis added)
Mr B denied he threatened to burn all of Ms S’s or her daughter’s stuff or to beat her, or that he had made any threats. He said he had just called Ms S to find out what time she might be home because she had been out for several hours fishing. He agreed she later drove to his parent’s house. When asked whether she was there to collect some of her property, he said that he had already packed her bags as she was leaving him on that day. This provided some context to the dispute.
When asked why she was leaving, Mr B said it was because the relationship was not going in the direction they both wanted. He said although he was not unhappy in the relationship it was not a “suitable” relationship to be in. He said the split was going amicably to this point and denied relationship issues.
Mr B specifically denied being irritable in the period prior to this event, saying he was attending the gym four to five times a week and work was going well.
Mr B denied calling anyone a “gap toothed cunt”. He said Ms S hit him and that was when he pushed her against a car. He said Ms S’s friend had hit him and he then restrained them both. He denied punching the car door and said he pushed it with an open palm, but admitted denting it. He denied Ms S’s three year old was there at all, denied striking her to the right side of the face causing her phone to fall and break, and denied tail gating Ms S and flashing his high beams. He said he did not follow Ms S in her car because he had been drinking and was unable to drive, having had about 15 beers across a day at a sports match.
On Mr B’s version of events to me there was an amicable separation due to minor differences and no reason why Ms S would have suddenly fabricated serious charges against him on the day she collected her belongings.
Mr B said that he pleaded not guilty. He accepted he was convicted of common assault and stalk and intimidate, and that he was sentenced to community service.
He accepted this was the event referred to at paragraph 16 of his Trial Affidavit where he said “In or around 2019, I was charged with common assault (DV) and was sentenced to a Good Behaviour Bond and [a] Community Corrections Order”.
However, while he conceded that he was convicted he effectively denied responsibility in his evidence before me. On Mr B’s version of events to me, this conviction was a miscarriage of justice. Nevertheless, this is one of the events identified as causing him to suffer embarrassment and regret.
Mr B was asked why, when admitting the convictions, he did not disclose in his affidavit that he was referring to an ex-partner, particularly given he had made the point at paragraph 15 that charges relating to an ex-partner had been dismissed, although those charges were in fact in relation to Ms K’s father.
Mr B then said that he did not “divulge” that information to the Court in his affidavit because he was “not proud of it”. He said he had told the mother this related to an ex-partner but agreed he did not tell the Court. However, he did not agree that he did not want the Court to know the conviction was in respect of an ex-partner.
The Family Report writer then concluded that:
164.The mother has alleged a history of aggressive behaviour by the father towards her and the children. However she felt these issues resolved after separation when the father addressed his alcohol and mental health issues, and as such, she supported the children spending substantial time with him. It would appear that, unless the Court finds that the father has relapsed with respect to his alcohol abuse or mental health, there is limited contextual evidence at this time to indicate that the children are at an unacceptable risk with the father.
The Family Report writer was cross examined on why she came to a different assessment of the risks the father poses to the children to that assessed for Mr B given that the major factors which caused her to form her opinion about Mr B, that is his history of poor mental health, alcohol abuse and family violence, were also present for the father.
The Family Report writer said that the pattern of Mr B’s offending with multiple partners over a period of time was a significant difference. Further, the father sought assistance for his conduct at the time. The Family Report writer also said the evidence that the father had attended a psychologist would be the kind of proactive engagement she was referring to when asked about Mr B, and that this was a risk mitigation factor in terms of the children’s safety in the father’s house.
However, the Family Report writer placed the most significant weight on the fact that that she assessed the father as acknowledging responsibility for, and being remorseful about, his family violence. She said she considered the father felt a warmth towards the mother, who was his victim, when she interviewed him. She said that warmth and acceptance of responsibility were lacking when she spoke with Mr B about his victims. She accepted that this involved an element of clinical judgement but maintained that it was based primarily on the father’s answers and not just his presentation.
The Family Report writer did say that she was concerned about the father’s limited insight into the risks posed by the ongoing consumption of alcohol given his history of alcohol abuse, and that if the Court considered that the father’s mental health was not being addressed, or if there was evidence of dysregulated behaviours, those other contextual matters would increase her concerns about the father’s ongoing consumption of alcohol. However, there was nothing brought to her attention in the interviews or at the Trial that caused her current concern.
Submissions
The father’s history involves very similar features to Mr B’s. While not asserting an unacceptable risk, and proposing orders that the children spend significant and substantial time with the father, the mother raised issues of the father’s history of physical violence and controlling behaviours in their domestic relationship, threats involving a weapon and attempted suicide, as well as the children’s disclosures to her that the father had smacked them in breach of the Court ordered restraint. This was in the context of the argument that there is no difference in the risk posed by Mr B to that posed by the father.
The mother’s submission was that the Family Report writer was so focussed on Mr B’s history, and the risks he potentially posed, that she did not undertake a similar assessment of the similar factual issues of alcohol abuse, mental health issues and family violence which the father conceded.
The mother conceded that Mr B has a series of recorded events involving multiple partners that appeared more serious and consistent than the father’s history with her, but submitted that the difference was that she was not reporting each event to police and that she tolerated his abuse for a longer period than Mr B’s partners.
The mother submitted that the only distinction between the father and Mr B on the issue of their mental health posing a risk was the father’s report from Dr WW. It was submitted that little weight could be placed on the report of Dr WW which did not address the relevant issues. The mother also submitted that no credit should be given to the father for obtaining medical treatment for, or evidence about, his mental health because it was suggested to him by the Family Report writer. The fact that the same recommendation was not made to Mr B was submitted to show the Family Report writer’s bias against Mr B.
The mother’s submission was implicitly premised on a finding that Mr B has in fact accepted responsibility and changed.
The ICL submitted that the Family Report writer identified and considered the same indicia of risk for the father as for Mr B, but formed a different conclusion taking into account the different patterns of historical offending, and her assessment that the father accepted responsibility for his family violence behaviours, felt remorse for them, and expressed warmth towards the mother. As with the assessment of Mr B, it was submitted that the assessment of whether or not the father has accepted responsibility for his past behaviours, and had insight into and was managing his mental health and alcohol use risks, was a matter for the Court, giving weight to the Family Report writer’s opinion.
The ICL submitted that the father also presented risks to the children, but that he was not an unacceptable risk. The father is untested as the primary carer, and it was submitted that some aspects of his evidence in relation to parenting capacity were less than ideal, including failing to understand the impact of the parental conflict on the children. It was submitted that his evidence and actions, in relation to the children’s medical and health needs, suggested he was more focused on point scoring against the mother than on being proactive and getting the children the help they needed.
Despite some concerns on these issues the ICL submitted that the father had the parenting capacity required to meet the needs of the children and was not an unacceptable risk which made a change of primary residence appropriate.
However, given the fathers’ ongoing use of alcohol in the context of his history of alcohol abuse, it was submitted that the restraint on his consumption of alcohol beyond the point where he could legally drive should be imposed on a long term basis as a protective measure.
Summary and findings
The major factual issue that distinguished the Family Report writer’s opinion of the risks posed by father and Mr B was her opinion that the father had in fact accepted responsibility for his past family violence and that Mr B had not.
I have set out my reasons for finding that Mr B has not in fact accepted responsibility for his prior family violence elsewhere. While I took into account the Family Report writer’s expert assessment, my finding was primarily based upon my assessment of Mr B and the evidence he gave before me.
I have come to quite a different view of the father. While I cannot exclude the possibility that the father is merely a skilful liar who was better at pretending at acceptance of responsibility and remorse than Mr B, my impression was that unlike Mr B the father does in fact accept responsibility for his past behaviours and has therefore shifted his thought processes and so changed his behaviours. That conclusion was based on his overall acceptance of what was put to him in cross examination and the lack of significant prevarication in his evidence rather than on any aspect of demeanour.
The fact that the Family Report writer reached a similar conclusion in the application of her clinical expertise after her interview with the father bolsters me in that view, however, my finding is based primarily on the father’s oral evidence before me.
There is no reliable evidence that the father has breached the restraint against physical chastisement.
In relation to the allegation of bias of the Family Report writer, it is clear that she identified and addressed the father’s history of family violence, alcohol abuse and mental health issues. The mother advised at the time of assessment that she did not consider either the father’s mental health or alcohol use to be relevant and current issues requiring consideration. Nevertheless, the Family Report writer did consider these issues in the Family Report.
In relation to the question of medical management, the evidence was that the father had a single period of poor mental health and no diagnosis of a longer term condition was provided. That is quite distinct from Mr B’s diagnosis of a mental health condition which expressed itself over a period of time. The father sought treatment when recommended, which is to his credit. The report from Dr WW, though short, provides the Court with some comfort that a qualified professional has spoken with the father and considered he had no current mental health issues and did not require ongoing supervision.
This is a significant difference from the position with Mr B, who has elected not to have recent or ongoing medical management and in respect of whom there is no current medical evidence of his mental health.
The allegation of bias in not recommending medical treatment for Mr B in the recommendations was not put to the Family Report writer. However, I note that the father was a party, whereas Mr B was not. Further, the Family Report writer squarely raised the fact that Mr B was not obtaining medical management of his mental health condition as a major issue in the proceedings, and as central to her findings and recommendations. I do not accept that the Family Report writer was biased in this regard.
The father’s current use of alcohol was not identified as an issue by the mother, but was identified as a risk factor by the Family Report writer.
I do not accept that the Family Report writer was relevantly “biased” in terms of taking into account irrelevant factors to the detriment of Mr B. It is clear that the Family Report writer’s opinion was based upon the evidence provided to her and through the careful and reasoned application to that evidence of her specialised knowledge.
While the father’s decision to continue using alcohol does mean that there is some risk, I am satisfied that his acceptance of responsibility for his behaviours is evidence of a change of thinking which means that the risk of a recurrence of the prior family violence behaviours is low. On that basis, I find that the father does not present an unacceptable risk to the children arising from his mental health or history of family violence. However, the ICL has recommended a restriction on the level of alcohol the father consumes and this seems a reasonable restraint to address this risk.
I accept that the father’s actions in seeking restraints around Mr B were motivated by the information received from DCJ, who were similarly concerned, and was not evidence of coercive or controlling behaviour. I am satisfied that the father’s concerns are solely related to the children’s safety around Mr B and are well founded. I am satisfied the father would support the children’s relationship with the mother and that the orders he seeks are based on the assessment of risk to the children posed by Mr B.
MS L
The mother identified Ms L as a safe and significant relationship for the children to the Family Report writer at the CAPIA. The mother confirmed in cross examination that she had never had a problem with Ms L prior to the smacking incident and that she had taken the children to see Ms L on Mother’s Day prior to that incident.
There was evidence from the mother and Ms L about Ms L obtaining some medication for Y for conjunctivitis in circumstances where the mother did not believe Y had conjunctivitis. The mother said she believes the father and Ms L were trying to make her look bad. This is indicative of the very poor co-parenting relationship that followed the smacking incident.
Ms L was cross examined and denied any family violence had occurred in her relationship with the father. She indicated she was supportive of the father seeking primary care of the children and noted her willingness to modify her work schedule to accommodate the children’s needs.
The Family Report writer identified a concern that Ms L was minimising the father’s prior history of family violence and, in cross examination, the Family Report writer said that it was a concern because she was challenging the mother’s version of events.
The Family Report writer said in cross examination that Ms L had approached the interview a litigious way, scrutinising documents and evidence to find inconsistencies in the mother’s material to assist the father. The Family Report writer did not suggest Ms L was not being honest, but said that it was difficult to get a sense of what she actually thought about issues, including the father’s history of family violence against the mother.
Although Ms L’s oral evidence indicated a strong alignment with the father’s case, there was nothing in her evidence that suggested to me that she would not be a positive influence in the children’s lives nor that she would not support the children’s relationship with the mother.
THE PATERNAL GRANDFATHER
The mother identified the paternal grandparents as a safe and significant relationship for the children to the Family Report writer at the CAPIA.
The paternal grandfather was cross examined, including on the father’s history of family violence which included an assault on him. His evidence was relatively straight forward. Although he is also clearly aligned to the father’s case, I consider him to continue to be a safe and meaningful relationship for the children. Otherwise, his evidence was of little practical import, given the major issues in the proceedings and that I accept the mother’s evidence on the father’s history.
THE CHILDREN’S BEST INTERESTS
The paramount consideration pursuant to the Family Law Act 1975 (Cth) is a child’s best interests (ss 60CA, 65AA) taking into consideration the factors set out in s 60CC.
The two primary considerations are the need to protect a child from physical or psychological harm, that is, from being subjected or exposed to abuse, neglect or family violence, and the benefits to a child of having a meaningful relationship with both parents. Greater weight is to be given to protection. There are a range of additional considerations which are also to be considered, a number of which overlap with these primary considerations.
The parties defined the issues and conducted the Trial primarily by reference to the question of any risks posed by Mr B and the mother’s capacity to protect the children from any risk he posed. (See Banks & Banks [2015] FamCAFC 36 at [48-50])
Given my finding that Mr B poses an unacceptable risk, that the mother does not have the capacity to act as a supervisor, and that there is a high likelihood that Mr B and the mother will not comply in the long run with injunctions preventing Mr B from being present when the children are with the mother, the other considerations necessarily play a smaller role in the determination of the appropriate orders.
The children have excellent relationships with both the mother and the father. There is no doubt that there would be a real benefit to the children in being able to maintain a meaningful relationship with both parents. The children have, and will be able to maintain, a meaningful relationship with the father. The orders I make give rise to a significant risk that the children will not maintain a meaningful relationship with the mother, albeit even with some time spent with her, regular FaceTime and meetings at school or medical appointments. These orders involve a real risk of serious long term emotional and psychological harm from the loss, or significant diminution, of this key parental relationship.
The ICL did not agree with the Family Report writer’s opinion that only monthly day time with the mother would be appropriate. I accept the ICL’s submission that I must balance the risks to the children from potential exposure to Mr B and from the loss of, or damage to, the relationship with the mother. However, having reviewed the evidence, I agree with the Family Report writer’s assessment that this is a proportionate response to the highly potent risk that Mr B presents. It is a tragic result for the children, but one that reflects my assessment of the potent risks that exposure to Mr B pose.
The children will also largely lose, or have significantly diminished, their relationship with Z and any other half sibling the mother and Mr B may have. The children will likely lose their relationship with the broader maternal family, including maternal grandparents. Each of these losses are real and tragic, but again are a necessary consequence of the orders required to protect the children from significant risk of harm.
The mother submitted that the children will also lose their connection with Mr B. Given my findings of risk that is not a factor I give significant weight.
The relevant factors relating to the maturity, sex, lifestyle and background of the parents have been identified elsewhere.
The specific characteristics of the children that are relevant to my assessment are that X was diagnosed with Autism Spectrum Disorder in late 2020. He requires management by a paediatrician with ongoing occupational therapy and speech therapy. This has been funded through the NDIS. This impairment may make the transition to the father’s primary care harder for X. Y’s comments about self-harm are particularly concerning given his age. Absent any specific identifiable events leading to these statements, the Family Report writer considered that this may reflect that the children were in a situation of very high conflict which they would sense and which would be traumatising.
The mother was cross examined at length about the fact that she had ceased taking X to the occupational therapist and speech pathologist in early 2022, and about her failure to interact with the services leading to a cancellation of the services. I accept that she was dealing with a difficult balancing of the need for treatment with the need for regular school attendance. The mother has adequate parental capacity, other than in relation to her capacity to protect the children from Mr B. However, her lack of insight into and refusal to accept the risks Mr B poses is a significant impairment of her parental capacity and renders her unable to adequately and safely provide for the children’s needs on other than a very limited basis.
The father’s general parenting capacity was not submitted to be impaired. I find that the father has adequate parental capacity to provide for the children’s physical, psychological and emotional needs, including X’s special requirements and the need to assist Y to address his current trauma through obtaining appropriate support.
Each parent has participated in the children’s lives and fulfilled their obligations to maintain the children. I consider that the father takes seriously the responsibilities of parenthood. I consider that, except where Mr B is concerned, the mother takes seriously the responsibilities of parenthood.
The children are too young for any views they have to be given any weight.
There is no doubt that the effect of the proposed orders on the children will be significant, and in many respects negative, given the substantial removal of a long term primary carer and attachment figure in the mother.
Both parents propose a change of schools which will impact on the children.
The Family Report writer considered that the father and Ms L would be able to manage the change of primary residence.
The Family Report writer agreed that, given the amount of time the children are already spending with the father, there would be short term distress if they moved to live primarily with the father and spent similar time with the mother as they now do with the father. The level of distress will be higher given the limited time the Family Report writer recommends and I accept, however, the Family Report writer considered that at their ages the children would cope over the longer run.
The children’s ability to cope was premised on the children’s relationship with the mother being positively supported, so far as possible in line with the recommendation for significantly reduced time. This would involve regular FaceTime and the mother being able to attend school events which parents are invited to attend and medical appointments. It was also dependent on the children’s routines being stabilised which the primary residence with the father and the selection of long term schools will address. Professional intervention as proposed by the ICL, and supported by the father, will also assist the transition.
The Family Report writer stated at paragraph 181 of the Family Report that it would be a shame if equal parental responsibility could not continue. However, in terms of the capacity to repair the co-parenting relationship the Family Report writer said in oral evidence that she was concerned that the parties had taken strong positions against each other. The Family Report writer said that the parents spoke about each other quite warmly, and were both able to reflect on good parts the relationship in their interviews, but she said the parties had adopted a litigation approach focused on point scoring and not the children’s best interests.
The Family Report writer therefore expressed concern about equal shared parental responsibility given the lack of trust and high conflict. She considered there should be an obligation on the father to consult and that the mother should be able to access to the usual school and medical materials.
In closing submissions, the mother and the father each proposed that the parent the children primarily live with have sole parental responsibility. This was based on the high conflict and low trust between the parties. The father also raised his concern that Mr B’s ongoing involvement in the mother’s life would lead to conflict given the father’s view is that conflict would be driven by Mr B through the mother.
The ICL proposed equal shared parental responsibility. The ICL’s submission was that despite the high and ongoing conflict the fact that that the parties co-parented effectively before the smacking incident suggested that they have the capacity to do so again. It was noted that X in particular would benefit from involvement by both parents, and that despite the ongoing conflict the parties had managed to speak warmly of each other to the Family Report writer. It was submitted that awarding sole parental responsibility would entrench the conflict to the detriment of the children.
The presumption of equal shared responsibility is rebutted by the historical family violence. While it would be beneficial if the parents could co-parent, I accept the parents’ mutual submission that co-parenting is unworkable given the high level of conflict and distrust. In those circumstances, it is not in the children’s best interests.
There are no significant practical difficulties or expenses relating to arrangements for time and communication which would substantially affect the children’s right to maintain regular personal relations and direct contact with both parents in line with my orders.
The father proposed that if there is accepted to be a risk that the mother and Mr B will not abide by an injunction in the long run, as I have found, then the injunction that Mr B not be present should not be made, and the risk should be accepted for the short periods of time the children is with the mother. This approach, which is consistent with my findings, reduces the risks of ongoing litigation about whether or not Mr B is present and accepts that the risk is ameliorated and balanced by the significant reduction in time.
There is no way to eliminate the ongoing risks of litigation, however, the orders I make in my view adequately address the risks of future litigation.
There are no other factors not already mentioned which I consider relevant to the determination of the children’s best interests.
PROPOSALS
The mother’s proposal was based on a finding that Mr B did not pose an unacceptable risk and sought orders as set out in her Amended Response filed 4 May 2022. The mother sought sole parental responsibility, that the children live with her and spend time with the father each alternate weekend from 6 pm Friday to 3 pm Sunday, half of each short school holiday and also half of each Christmas holiday on a week about basis, with special provision for father’s and mother’s day, Easter, and the children’s and parents’ birthdays. She proposed electronic communication with the parent the children were not with each Tuesday and Thursday from 5 pm to 5.30 pm. She proposed orders for each parent to keep the other informed of addresses and contact details, for non-denigration and physical punishment restraints, for each party have access to information from educational or health agencies, for notice requirements for illness or other emergency, and for a restraint on the father from consuming alcohol 24 hours prior to spending time with the children. She accepted the father’s proposed changeover location and also with regards to non-denigration orders.
The mother did not propose orders on the basis of a finding that Mr B was an unacceptable risk.
The ICL relied on the “Minute of Proposed Order of the Independent Children’s Lawyer” (MFI 11). The ICL’s proposal was premised on a finding that Mr B was, and the father was not an unacceptable risk, largely in line with the findings I have made. However, the ICL implicitly accepted that Mr B and the mother would comply with an injunction that Mr B not be present when the children are in the mother’s care.
The ICL proposed equal shared parental responsibility, that the children live with the father and spend time with the mother each alternate week from after school (or 3 pm) Friday until before school (or 9 am) Monday, and for one half of the school holiday periods, with special provision for alternating arrangements for the Christmas period, Mother’s Day and Father’s Day. However, that time with proposal was on the basis that the children’s time with the mother at [7] be “subject to” an order that the parents are restrained by injunction from causing or permitting the children, or either of them, to be or remain in the presence of Mr B.
The ICL’s proposal also made provision for the children to communicate with the mother by FaceTime between 5 and 5:30 pm every Tuesday and Thursday night they were not with her.
The ICL’s proposal was for the father to be restrained from consuming alcohol while the children were in his care, or for 12 hours before coming into his care, for changeovers otherwise than at school to be by the mother or her nominee collecting the children from and returning them to the McDonald’s at C Town, and for standard restraints on denigration and corporal punishment.
The ICL proposed that the father to do all things required to enrol the children at D School public school, and facilitate the children engaging in a program provided by Relationships Australia to support the children transitioning into the father’s care, with such program to be nominated by the ICL, and to make appointments with the paediatrician at E Health Service.
The ICL also proposed orders concerning referrals and attempting to obtain support services at school for X, authorising each parent to obtain information from any medical or allied health practitioner, requiring the mother to be kept informed of appointments, and for each parent to keep the other promptly informed of any serious health issue impacting themselves or a child, and authorising each parent to attend functions and events and extracurricular activities parents would normally be permitted to attend, and, communication to be done through the “our family Wizard app” or a similar application, with telephone calls to occur between the parents only in an emergency.
The father’s proposals were made on the basis of a finding that Mr B poses an unacceptable risk. The father’s proposed minute included minute “1” to apply “If the court is satisfied that the mother could/would comply with an injunction regarding Mr B” and minute “2” to apply “If the court is satisfied that the mother could/would NOT comply with an injunction regarding [Mr B].” (original emphasis) I accept the dichotomy as relevant but consider the issue is not whether there is a positive finding they would or would not comply, but rather as to the possibilities or probabilities they would or would not comply.
On each of the father’s proposals the children would live with the father, and the father would have sole responsibility for the children subject to an obligation to consult and make a bona fide effort to reach a joint decision (at orders [2-4]).
Minute 1 was premised on an injunction pursuant to section 68B of the Family Law Act 1975 (Cth), for the benefit to children of restraining the mother from allowing the children “to be in the presence, sight or hearing of, or have any contact or communication with” Mr B (at order [10]). On that basis, and conditional on ongoing compliance with that injunction, the father proposed that the children spend time with the mother each alternate weekend from after school or 3 pm Friday to the commencement of school or 9:00 am Monday and half school holidays with special provisions for sharing 24 to 26 December including Christmas day. FaceTime communication was proposed each Tuesday and Thursday between 5-5.30 pm when the children were not in the mother’s care. Changeovers where proposed for C Town McDonalds as proposed by the ICL and accepted by the mother.
Minute 1 also included proposals allowing each parent to receive information from a school or a medical practitioner, and to attend the usual school functions. It proposed standard restraints on denigration and corporal punishment, the enrolment of the children at D School, enrolment in a program with Relationships Australia, appointments with a paediatrician, application for support services for X, notice to the mother of medical appointments or by each party of illness or similar events. The father also proposed he be able to obtain and hold the children’s passports, and either parent be able to travel overseas with notice to the other parent.
Minute 2 proposed in the alternative that the children spend time with the mother “on the last Saturday and Sunday of each calendar month from 10:00am to 4:00 pm” and on each of the children’s birthdays for three hours, and from 3:00 pm - 6:00 pm on 25 December. This proposal does not include a restraint on bringing the children into contact with Mr B on the basis that there would be no utility. The proposals for change-overs, FaceTime, authorisations for documents and to attend school events, restraints, enrolment at D School and notifications and for the passport and travel orders are in similar terms to minute 1.
Orders
The mother’s proposed orders did not address the findings I have made.
Given my findings that Mr B poses an unacceptable risk of harm to the children, that the mother is not able to adequately and safely supervise him if he is present with the children, and that Mr B and the mother are unlikely to comply with an injunction that restricts him from being present when the children are with the mother in the long run, and where the father is not an unacceptable risk and the children will cope with a change of primary residence, it follows that the children’s primary residence should change.
I will discharge all previous orders. I will order that the children live with the father.
That leads to the question of time the children should spend with the mother. I have considered whether a no time order is the most appropriate order. I take into account that neither the Family Report writer, the ICL nor the father proposed such an order. While I have grave concerns about the risks Mr B poses if there is any contact with the children, balancing the risks I accept the Family Report writer’s opinion that on balance some time with the mother is in the children’s interests, and so will not make a no time order.
However, I find that the balancing of risks requires the children’s time with the mother to be only be the limited day time only arrangement proposed by the Family Report writer, as effectively adopted by the father in his second proposal, and not the more extensive time proposed by the ICL.
I will make time orders broadly as proposed by the father in his second proposal. However, the father proposes that there be two day time visits per month on the last Saturday and Sunday of the month. I consider two day time visits per month appropriate. However, I consider that spreading these visits out so they occur twice during the month at roughly fortnightly intervals will better support the children’s capacity to maintain a meaningful relationship with the mother and to assist them in the transition. Accordingly, I will order that the children spend time with the mother on the second and fourth Sunday of every month commencing on the second Sunday in February 2023.
There was consent to the proposed change over location.
I will make the orders proposed by the Family Report writer and supported by the ICL and father that the mother can attend the usual school and extra-curricular activities, and medical appointments, so long as Mr B is not present. This may increase the children’s capacity to spend time with and maintain a relationship with the mother.
I will also order regular audio-visual communication to augment the time with the mother as proposed by the ICL and the father.
Unfortunately, I find that equal shared parental responsibility is unworkable due to the high level of conflict and the low level of trust between the parties. Accordingly it is not in the children’s best interests for the parents to share parental responsibility. I will make orders for the father to have sole parental responsibility for the children, with an obligation to consult.
I will make the non-denigration, no corporal punishment, school enrolment and Relationship Australia course orders proposed by the ICL and adopted by the father.
I will make a passport order for the father. The risk of the mother travelling overseas and Mr B then joining her somewhere is too great to permit the children to travel overseas with the mother.
The father’s second proposal did not involve an injunction against Mr B where it is likely to be ineffective in the long run and where the risk is to be managed by restricting the children’s time with the mother. Accordingly, I will not make the injunction as proposed by the ICL.
However, I will make the mother’s right to attend school and extracurricular functions and medical appointments conditional on Mr B not being present.
Given my findings and the orders I propose the children’s primary residence should change by 5 pm on Saturday 28 January 2023.
The audiovisual time should commence from next week and the first monthly time on the second Sunday of February 2023.
Costs
If any party seeks to make an application in respect of costs they are to file an Application in a Proceeding and supporting affidavit in accordance with the Rules.
I certify that the preceding four hundred and forty-sever (447) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 27 January 2023
0