W and W - [2001] FMCAfam 227

FEDERAL MAGISTRATES COURT OF AUSTRALIA

W & W

[2001] FMCAfam 227

FAMILY LAW – Children – residence – contact – relationship with third party – conduct of parents – violence – best Interests of the children – orders.

Family Law Act 1975 s60B, 65E, 68F.

H & H (1995) FLC 92-598, B & B Family Law Reform Act 1995 (1997) FLC 92-755, H & H (1979) FLC 90-713, Jaeger and Jaeger (1994) FLC 92-492, JG & BG (1994) FLC 92-515, Blanch and Blanch (1999) FLC 92-837, M & M (2000) FLC 93-006.

Applicant:

C A W

Respondent:

L M W

File No:

ZP 804 of 2001

Delivered on:

13 October 2001

Delivered at:

Parramatta

Hearing Date:

4 October 2001

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

Mr Bock, Ian Bullock & Partners,
DX 8207 Parramatta NSW 2124

Solicitors for the Applicant:

Ms Bui, Van Houten, PO Box 647 Parramatta NSW 2124

ORDERS

All prior parenting orders are discharged.
The children of the marriage, B T W born 7 November 1994, A R W born 23 January 1997, and B TREVOR W born 14 October 1998, are to reside with the Applicant husband.
The Respondent wife is to have contact with the said children defined as follows:
(a)Each alternate weekend from 6:00pm on Friday to 6:00pm on Sunday commencing on Friday 19 October 2001, provided that where a public holiday falls on a Monday immediately following a contact weekend, then contact shall conclude at 6:00pm on Monday;
(b)For the first half of each gazetted New South Wales school holiday period, excluding the Christmas school holiday period, concluding on the middle Saturday;
(c)For one half of each gazetted New South Wales Christmas school holiday period being the first in the 2001/2002 Christmas school holidays and the second half in 2002/2003 alternating annually thereafter;
(d)For a period of not less than three hours on the mother’s birthday and on each of the children’s birthdays;
(e)For 9:00am to 6pm on Mother’s Day if that day does not fall on a weekend when the mother would otherwise be entitled to contact; and
(f)At such other times as the parties shall agree.
In the event that Father’s Day falls during a period when the children would otherwise be with the mother, then contact will conclude at 6:00pm on the Saturday before Father’s Day.
School Holiday contact;
(a)Will commence at 9:00am;
(b)Will conclude at 6:00pm;
(c)Will be calculated from the day after the last day of school until and including the day immediately before school resumes; and
(d)Pupil free days are deemed to be school holidays.
During school holidays weekend contact will be suspended and will resume on the first Friday after the children have returned to school.
For the purpose of exercising contact pursuant to these orders, the father shall deliver the children to the mother’s residence at the commencement of the contact and the mother shall return the children to the father’s residence and the conclusion of contact.
Each party is restrained form denigrating or criticising the other party or using offensive language to the other party in the presence of any of the children or permitting a third party to do so.
The mother shall use her best endeavours to ensure that S B does not consume any alcohol in the presence of any of the said children.
The mother shall not permit any of the said children to come into contact with S B if the said S B is affected by alcohol.
All exhibits are to be returned at the expiration of one month from the date of these orders unless an appeal is lodged.
All outstanding applications are otherwise dismissed.
I require a transcript of my reasons for decision.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
PARRAMATTA

ZP 804 of 2001

C A W

Applicant

And

L M W

Respondent

REASONS FOR JUDGMENT (Ex Tempore)

Application

Before the court today is an application by the father that the three children of the marriage should reside with him and that the mother should have contact with them. There are three children of the marriage, B, born on 7 November 1994; A, born 23 January 1997 and B born 14 October 1998. The parties commenced cohabiting in Wagga Wagga in December 1991. They were married on 13 February 1993. During this time they operated a business together.
The first child, B, was born on 7 November 1994. A was born in January 1997. B was born late the following year in 1998. The business operated by the parties did not prosper and eventually failed. Whilst they were operating the business the father says that he and the mother took turns to stay at home and care for the children although this was before the advent of B in October of 1998. After the business came to an end the parties moved to Queensland in March of 1999 and separated late that same year.
In April of this year, the husband relocated back to Sydney, the children and the wife remained living in Queensland although they moved to Currumbin in July of last year. It was at that time that the wife rekindled a relationship with a man called S B. She had known Mr B years earlier in her hometown of Junee. In January of this year the wife and Mr B and the children moved back to Junee. There were incidents in January and February involving the wife and Mr B, which I will deal with shortly. The husband and wife were divorced in March of this year. The proceedings were commenced in this court by the father seeking the children should reside with him.
An incident occurred whereby the father foolishly decided not to return the children after contact. The matter came back before this court in April. On 2 April the matter was before the court and the parties entered into interim orders whereby the children were to reside with the wife, the husband was to have contact with the children on alternate weekends and during half of school holidays and notably order number 5 was that the wife be restrained from allowing the children or any of them to come into contact with S B.
The order relating to S B arose as a result of two incidents, first of all on the night of 17 and 18 January this year and then later in the evening of 22 February. On the night of 17 January Mr B is alleged to have been affected by alcohol, an altercation took place in which Mr B allegedly broke items of furniture, threatened the wife and then she complains that he struck her. She also complains that he broke a TV set and DVD player and a graphic equaliser.
The matter was reported to police and an apprehended violence order was taken out. The second incident took place on 22 February when again it was alleged that Mr B was affected by alcohol, arrived at the home shared by himself, the wife and the children, a further altercation took place in which Mr B turned over items of furniture, allegedly smashed a telephone. He had, it is alleged, previously that day assaulted two women and then when he arrived back at the home it is alleged that he assaulted the wife in these proceedings by biting her on the face.
Not surprisingly, he was charged with a number of offences arising out of these incidents. He has pleaded guilty and faces sentencing in respect of 17 charges arising out of these matters on 22 October. He was placed on bail, requiring him to reside where directed by the Probation and Parole Service, he was required to undergo alcohol rehabilitation and in fact spent time as an in-patient at a hospital undergoing alcohol rehabilitation. Other relevant matters are that the applicant moved, he removed relocated himself back to Coolamon in New South Wales where his family lived, Coolamon is some 30-odd kilometres from Junee and an approximately similar distance from Wagga Wagga where he has obtained employment.
The applicant husband resides with his parents and seeks that the children reside with him. He says that his parents will provide him with assistance and his father gave evidence to that effect. Contact has been taking place on a more or less regular basis notwithstanding a degree of acrimony between the parties. The wife says that the children should continue to reside with her. They have resided with her all their lives, which in B’s case is coming up to 7 years. She is firmly of the belief that it is in the children’s best interests to remain residing with her and to have regular contact with their father.
The complicating factor is the mother’s relationship with S B. The mother wishes to resume or continue this relationship with S B by whom she is pregnant. She expects to give birth to his child possibly as soon as this month. Notwithstanding his earlier behaviour she wishes to reside permanently with him and it is her intention that once Mr B is free to do so that she, Mr B, the three children of the marriage and her child by Mr B would all reside together as a family.
The family report was prepared and the regulation 8 officer, J S who prepared this report, was available to give oral evidence and was cross-examined at some length by Mr Bock for the father. It is fair to say that the report identifies strong points in favour of each parent even the counsellor reports an extreme antipathy between the parents. She describes the applicant as presenting as a concerned father who has a loving relationship with his children and the documented incidents of domestic violence indicate his concerns about Mr B are rational and well-founded.
The caveat is that his attribution to the children’s distress at the end of contact with him may be affected by his extreme antipathy towards the partnership between Mr B and his former wife. While his attitude to his children seemed caring and his descriptions of the warmth in their relationship genuine he did not seem to comprehend the impact of his previous absence on the children especially when they were so young and his movements in the period following separation appear to have been somewhat impulsive.
The wife presented as being firmly of the opinion that the children should continue to reside with her. She denied there were any difficulties in the home between her and the children or that she had any difficulty managing them. She was emphatic that she and Mr B were complying with the court order and that he was not living with the family but she could not explain why the children were giving the impression that Mr B was living with them and she saw this as possibly a reflection of the positive relationship they had enjoyed with him in the past.
She described herself as shocked and repelled by the incidents of violence and notwithstanding the period of time he spent in custody being refused bail, apparently some five weeks, she said that she had been impressed by his acknowledgment of his guilt and his insight into his difficulties with alcohol abuse and anger management and the remorse which he has shown. She now is extremely supportive of his returning to the home that she shares with the children. She saw herself as having a strong bond with all three children but described the oldest child, B, as being more affectionate with his father than with her.
She saw B as being somewhat torn between her and the husband. She confirmed the husband’s view that she had no contact with her immediate family, specifically her mother and brother, even though they live in the Junee area. She gave the counsellor the impression that this estrangement had occurred at least partly due to her relationship with Mr B. Indeed, her brother gave evidence for the husband. I am clearly of the view that the wife is estranged from at least her mother and her brother at the current time. Notwithstanding that the summary by the counsellor was that the wife presented as a loving mother who showed some insight regarding the needs of her children. She responded appropriately and protectively regarding the incidence of violence and spoke uncompromisingly about her attitude regarding these assaults.
She placed a high degree of importance on the children’s relationship with their father and her explanation of the children’s reactions to separation appeared realistic. Mr B was interviewed by telephone. He denied living in the home, he said he was frustrated about that. The counsellor said that he spoke freely about the assaults. He denied any other occasions of domestic violence or any previous history of assaults or other incidences of violent behaviour. The counsellor saw the children as a group. They were consistent in stating their allegiances to both parents and expressed a desire to live with both.
They described both their mother and father in warm and affectionate tones. Interestingly, they were asked about Mr B after he was spontaneously spoken about by his nickname, “The Captain”, by A who expressed some surprise that he had not joined them on the trip to Sydney. All three children confirmed that Mr B lived with them but it was difficult for the counsellor to establish whether they understood what this meant as they were largely non-responsive to questions about their day to day life.
The children were observed with their father and the counsellor noted that they greeted him warmly when they first saw him. They were all physically affectionate with their father and appeared happy to see him and comfortable with participating in the observation session beside him. They interacted with him in a familiar and reassuring way. When the child A became defiant the father spoke to her firmly and effectively and a later altercation was also admonished by the father, the counsellor reported the children seemed to respond to him at least temporarily.
The atmosphere was calm and contained and the father and children appeared natural and comfortable in their interactions. The children were also reported as being relaxed about participating in the observation session with their mother. When there were shows of defiance, again by A, the mother was seen to admonish them calmly, at one stage corrected B for swearing. The atmosphere was relaxed and easy. In summary, the children were seen as responsive, affectionate and relaxed in their interactions with both their mother and their father. They displayed a similar degree of oppositional behaviour in the presence of their parents and each parent was seen to respond appropriately to these behaviours and in the manner in which they attempted to set the limits.
It was the counsellor’s view that the children have a close familiar relationship with each parent. The counsellor identified three options. The first, the children residing with their mother with contact with their father on a fortnightly basis with Mr B being re-integrated into the home. Option two was for the children to remain with their mother with contact to continue with the father but with the restrictions on contact with Mr B continuing in place. The third option was for the children to reside with their father with restrictions on contact with Mr B remaining in place.
The counsellor gave some support to the first option of Mr B being re-integrated into the home with the mother and the children. She did however signal that that would mean a change in the family dynamics and there would be a potential for family stress caused by lack of sleep and extra work involved with the new baby. The counsellor took the view that it remains difficult to predict the level of risk of future incidents of violence and expressed caution as history is an important predictor of future behaviour, it would be useful to check Mr B’s criminal record.
Option two, with the children remaining with their mother and Mr B being continued to be barred from the home was not supported by the counsellor and I am of the view that there is no evidence that would support a permanent continuation of what has been a temporary step. Against this the counsellor saw the proposal of the children to change residence and live with their father as also having its own problems. They haven’t spent longer than a weekend in his care since separation, regular contact was only renewed in the last nine months from the date of the report. The children had always lived with their mother.
The counsellor did not form the view that the children were fearful of Mr B or unhappy about living with the mother. The counsellor in the long run did make recommendations about reviewing Mr B’s police record and the need for some counselling if he did return to the family home. In cross-examination by Mr Bock for the husband, it certainly appeared that Mr B in his telephone interview had not been entirely frank and forthright with the counsellor about his criminal history. The criminal history, which was tendered in evidence, indicated a prior finding of guilt in respect of an assault dealt with under the provisions of section 556A of the New South Wales Crimes Act.
That, of course, involves the offence being found proved but the court deeming it inexpedient to proceed to a conviction. There was, of course, a prior matter involving drinking and driving. It is also significant in Mr B’s evidence that he has the misfortune to come from a family, which has had a history of dysfunctionality in which domestic violence was not uncommon. Certainly, it transpired that his mother had taken a downgrading the seriousness of his behaviour. In cross-examination Mr B admitted that at some time in the past year he and his brother had been involved in a physical fight and being asked about the police going to his family home he said – and I accept this is an exaggeration – they had in fact attended the home on millions of occasions.
Leaving aside the virtual impossibility of that description the court is still left with the impression that Mr B came from a dysfunctional family with a tendency towards behaviour which at the very least attracted the attention of the police.
What then are the principles the court should apply in dealing with matters of this nature? The court must be mindful of the object and principles set out in section 60B of the Family Law Act. Subsection (1) says:
The object of this part is to ensure that children receive adequate and proper parenting to help them to achieve their full potential and to ensure that parents fulfil their duties and meet their responsibilities concerning the care, welfare and development of their children.
Subsection (2) sets out four principles which include the fact that the children have the right to know and be cared for by both their parents, that the children have a right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development, that parents share duties and responsibilities concerning the care, welfare and development of their children and that parents should agree about the future parenting of their children.
When one looks at the principles set out in section 60B(2)(b) about children’s right of contact on a regular basis with both their parents and with other people significant to their care, welfare and development, the court notes that there is evidence that the wife is alienated from members of her immediate family who did live either in the same town or in the Junee area including a brother and her mother. In fact it appears the only way the children would have contact with these members of their extended family, at least in the short run, is through their father who has remained on good terms with them.
Looking at the principle in subsection 60B(2)(d) that parents should agree about the future parenting of their children it is clear that in page 9 of the family report that the counsellor saw the parents relationship as having been acrimonious and antagonistic involving angry verbal exchanges in front of the children. At present she said if there is a need to communicate they do so in writing. The counsellor did go on to say that since the husband has moved to the local area in July of this year he and the wife have been able to co-operate sufficiently to maintain a regular schedule of fortnightly contact.

Section 65E of the Family Law Act states that in deciding whether to make a parenting order in relation to a child a court must regard the best interests of the child as the paramount consideration. In section 68F(2) sets out the matters the court must consider when determining what is in the child’s best interests. They include, as set out in section 68F(2)(a) any wishes expressed by the child and any factors such as the child’s maturity or level of understanding that the court thinks are relevant to the weight it should give the child’s wishes.
The wishes of the children, of course, have been the subject of consideration by the Full Court of the Family Court of Australia in H v W reported in 1995 FLC 92-598 where the court held that the wishes of children are important and proper and realistic weight should be attached to any wishes expressed by the children. As a matter of practical day to day experience the problem in this area usually related to the ascertainment of the wishes of the child and their interpretation and assessment in the face of conflicting evidence. Against that background the court will attach varying degrees of weight to a child’s stated wishes depending upon, among other factors, the strength and duration of the wishes, their basis and the maturity of the child including the degree of appreciation by the child of the factors involved in the issue before the court and their longer term implications.
Ultimately the overall welfare of the child is the determinant. In the judgment of Baker J his Honour said, at pages 81 967 and 81 968:
“In my opinion a child’s wishes must not only be considered but must be shown to have been considered in the reasons for judgment of the trial judge. Further more, if a trial judge decides to reject the wishes of a child then clear and cogent reasons for such rejection must be given.”
His Honour went on to say:
“The wishes of children should not be discounted simply because they are expressed by children. The weight to be given to the wishes of a child depends upon the individual child and the trial judge must make an assessment of the validity of the wishes in each individual case. Such an exercise will require a consideration of both the child’s level of maturity and understanding.”
In this case the children are aged 6, 4 and 3. The eldest child, B, turns 7 in November of this year in just under a month. He, B, has been described by the mother as being torn between both parents, each child has expressed a desire to live with both parents although B who is only just about to turn 4 is pretty young and relatively uncommunicative as far as these issues are concerned.
Needless to say, the counsellor, quite properly, did not interview him at any length on that particular subject. It is clear that when the children were brought to the counselling section to be interviewed by the counsellor that they did not have a particularly clear idea as to what the purpose of the exercise was. The evidence remains that the children have a positive relationship with both parents and would ideally like to live with both parents.
Section 68F(2)(b) relates to the nature of the relationship of the child with each of the child’s parents. It is clear from the family report that the children have a close familiar relationship with each parent. Each parent favourably impressed the counsellor with the way that that parent interacted with the child. Section 68F(2)(c) relates to the likely effect of any changes in the child’s circumstance where there would be a change. The eldest child B would have to change school because the father lives in Coolamon and it would be too far for him to continue to go to school in Junee each day albeit that it is only 30 kilometres.
The two other children at this stage are too young to attend school and all else being equal, if there were to be a change in their residence, it would be better for this to take place before school commenced. Section 68F(2)(d) relates to the practical difficulty and expense of the child having contact with the parent. At this stage the parents live some 30-odd kilometres apart in Junee and Coolamon. It is not a long distance in the country. There are many country towns that are only that far apart and they are separated by a good road. Parkes and Forbes are another example. The distance, the time taken to travel from one country town to another is substantially less than the time taken to travel a shorter distance in different suburbs of Sydney.
I am not of a view that whether the children live in Junee or Coolamon there is going to be practical difficulty with contact with either parent. It certainly appears clear that each parent has the view that there should be contact leaving aside the question of Mr B. Section 68F(2)(e) looks at the capacity of each parent to provide for the needs of the child. Again, leaving aside the question of Mr B, the mother certainly has the capacity it would seem to care for the children’s needs, each parent was observed by the counsellor to react appropriately as far as disciplining the children was concerned in the observation session.
It is fair to say that the father is somewhat at a disadvantage as the children have spent less time with him in recent months and in the short run at least he would need some assistance from his parents. Section 68F(2)(f) relates to the child’s maturity, sex and background. The oldest child, B, is yet to turn 7. A is 4. B was born in 1998 and is 3 years of age. B is a little boy, A is a little girl, and B is a little boy. They are the children who were born in a country town, they have returned to a country town from where they came and they are in familiar surroundings.
Section 68F(2)(g) relates to the need to protect the child from physical or psychological harm. I propose to leave a consideration of this issue until I discuss the issues under section 68F(2)(i) and (j). Section 68F(2)(h) relates to the attitude to the child and responsibilities of parenthood demonstrated by each of the child’s parents. The father presents as a concerned father who has a loving relationship with his children. The mother was seen to deal with the children in an appropriate way and presented as a person who understood the need for the children to have regular contact with their father.
Section 68F(2)(k) deals with whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children. I am of a view that the need to settle the residence question is clear. The situation between the parties will, to my mind, remain volatile in the short term whatever order the court makes. Leaving aside the questions of family violence and apprehended violence orders and the need to protect children from physical or psychological harm, I am of a view there are no other facts or circumstances the court thinks relevant.
Section 68F, section 65E, section 60B, and the way they interacted were all considered by the Full Court of the Family Court of Australia in B v B Family Law Reform Act 1995 reported in 1997 FLC 92 755. The court held that the best interests of the particular child in that case remained the paramount consideration. The court must consider the matters set out in section 68F to the extent that they are relevant and the weight to be attached to any one consideration depends on the circumstances of the individual case. It is a discretionary exercise by the trial judge and ultimately it is a question of applying in a commonsense way the individual section so as to achieve the best interests of the children in a particular case.
The family report provides assistance to the court as to the counsellor’s observations although the report did not express a strong recommendation either way. The counsellor was cross-examined extensively by Mr Bock for the father and, as I said earlier, it appeared that Mr B had not made a full disclosure of his previous criminal and personal history. Neither Mr B nor the wife had brought these matters to the counsellor’s attention although they were clearly relevant.
The leading case of Hall v Hall reported in 1979 FLC 90 713 a decision of the Full Court of the Family Court which looks at the way a court at first instance should deal with a family report. There is no magic in a family report, a judge is not bound to accept it and there should never be any suggestion that the counsellor is usurping a role of the court and a judge is abdicating his responsibilities. The family reports are meant to be and almost invariably are valuable and relevant material to assist the judge in forming his ultimate conclusions.
I would comment at this stage that I am quoting from pages 78 819 and 78 820:
“While the counsellor’s views will normally have weight with the court because of his expertise and experience the counsellor doesn’t usually have the same opportunity as the trial judge to weigh the evidence, observe the demeanour of the witnesses in court under examination and cross-examination and make findings of fact based on evidence before the court which might not have been available to the counsellor. Hence the counsellor’s assessment of the parties may often be based upon facts which the counsellor has accepted which turn out to be wrong. Sometimes the family report will necessarily be neutral. Whether the report contains a positive recommendation or whether it be neutral, whether the report is accepted by the judge or whether it is not the report will still the court well and assist the court’s investigations. It follows in some cases it may be desirable to question counsellors about the bases of their recommendations”.
Which was, of course, the situation in this case:
“Where there is a proper reason for cross-examination the court will be assisted”.
And I am of a view that there was in this case.
The evidence before the court in this case has had the shadow of the wife’s relationship with Mr S B hanging over it. This is a matter that can’t be swept under the carpet. Section 68F(2)(g) refers to the need to protect children from physical or psychological harm. Section 68F(2)(i) relates to any family violence involving the child or a member of the child’s family. Section 68F(2)(j) relates to any family violence order that applies to the child or a member of the child’s family. Of course, after the incidents of the night of 17, 18 January, the wife obtained an apprehended violence order against Mr B covering herself and the children although she later made an application to the local court to vary and reduce its terms. It is also significant that the man Mr B faces sentencing on the 22nd of this month for a number of charges which have now grown to 18 as a result of an incident in August of this year where he was charged with and pleaded guilty to the offence of driving whilst disqualified.
What weight does the court place on family violence? In the matter of Jaeger and Jaeger reported in 1994 FLC 92 492 the Full Court held that the trial judge was not correct in rejecting evidence sought to be led in an affidavit by the wife’s sister relating to the possibility of violence in the wife’s household. The affidavit of the sister, so far as was relevant to the case, related to an occasion where she had said she went to her mother’s home and saw the wife and had a discussion with her and the wife showed her injuries from which she was then suffering. The overall of that, if accepted, was that the wife was suffering from significant injuries and that she ascribed that to an assault upon her by her de facto.
Whilst the trial judge did not allow the evidence, this attitude was criticised by the Full Court because it was a matter which was of considerable significance. In that same year came the decision in JG and BG a decision of Chisholm J reported in 1994 FLC 92 515. In that case there were a number of allegations against the husband relating to physical and verbal violence and because of the importance of the topic of family violence the court said that it would identify and state the legal principles relevant to allegations of violence in the context of proceedings relating to guardianship, custody and access or residence and contact as they now are.
I will restate the principles now, as I am of a view that they are important for the court to bear in mind.
1.In proceedings relating to custody, guardianship and access, evidence of family violence is relevant insofar as it assists the court in determining what orders will best promote the welfare of the children.
2.The court will have regard to the fact that family violence may be directly or indirectly relevant to children’s welfare in a variety of ways and may be relevant even where it is not directed at or witnessed by the children.
3.So far as the evidence allows the court will attempt to understand the nature of any family violence that has occurred and its potential effect on the children.
4.Where the evidence permits the court to make findings of contested allegations of family violence where such findings are necessary in order to determine what orders will promote the child’s welfare the court will make the findings.
5.Where the court is in a position to make findings on allegations of family violence which are relevant to the children’s welfare but doesn’t need to do so in order to determine what orders will promote the welfare of the children it may be open to the court to refrain from making the findings.
The other matters referred to by his Honour are not immediately relevant to these proceedings. In the more recent decision of Blanch and Blanch reported in 1999 FLC 92 837 the court held that in cases of severe and sustained domestic violence the court is required to give a clear indication whether and why it accepts the case advanced. In that case the wife’s evidence of domestic violence was precise, detailed and corroborated and his Honour’s findings that the husband’s violence was a product of the relationship rather than his personality is not reasonably open to him.
The court went on to say that the trial judge had failed to adequately address the risk to the children’s development arising from growing up under the care and tutelage of a violent role model, quite separately from any risk that they themselves might become victims of the violence which is a matter to which, regardless of whether or not it is raised by counsel, a judge of the Family Court must turn his or her mind, and so it follows must a federal magistrate. Indeed, that very point of the violent role model was raised by Mullane J in the recent decision of M and M reported in 2000 FLC 93 006 where the description of the father’s behaviour given at great length by his Honour was little short of hair-raising.
It is perhaps an understatement at the headnote of the case to describe the father as an aggressive, abusive and intimidating man who was unable to deal with people without resorting to abuse and was unable to accept responsibility for his behaviour. In addition to threatening his former solicitors and the expert involved with the case the father was physically and verbally abusive of the mother throughout the relationship including in the presence of the children. His Honour held that the father’s abusive behaviour presented a multi-faceted danger to the children in that there is the risk and injury and fear and the risk that the children will learn from the abusive behaviour and ultimately treat it as acceptable.
I would comment that Children’s Courts throughout this country and New Zealand have seen too many cases of children who have learned violent behaviour from within the home and have formed the view that that is the way relationships between men and women or men and men for that matter are carried out. Mr Bock for the father was critical of Mr B for attempting to down play the effects of his behaviour and was critical of the wife in her apparent back-pedalling in describing the incidents that had occurred in January and February of this year and of her subsequent actions.
There is before the court a copy of the wife’s statement made to the police on 18 January. She described Mr B on the evening of Wednesday, 17 January, having consumed alcohol and she said:
“We’d only been there for about an hour and I realised that S was drunk.”
Notwithstanding that after a verbal altercation she described seeing Mr B drive off in a motor vehicle. She stayed at her brother’s house where the altercation had taken place and was then driven home to the house in which she was residing with the children. She said that when she got home she found Mr B asleep on the lounge with the television going so she put the children to bed. She turned the TV off, she went to bed. Later, about 15 minutes later Mr B came to bed, got into bed, turned his back on her and said, “Fuck off”.
She ignored him. About 15 minutes later he got out of bed and she heard a glass smash. She got up and saw that a picture sitting on the mantelpiece was now face down on the floor and there was glass all over the floor. She saw a hole in the wall above the mantelpiece where the picture had been sitting and said:
“I saw that both of S’s knuckles were bleeding. He just started ranting and raving saying, ‘find all me fucking gear’. With that he started going through the house collecting his clothes. I saw him pull a drawer out of the bedside table. I was standing in the bedroom and he threw the drawer towards me. I moved quickly to one side and the drawer hit the bedroom wall and put a big hole in the wall. I got out of there and went back to the lounge room. I heard him throwing stuff around, I was scared. S came out into the lounge and started to vacuum up the glass. I had a little bit of glass in my finger and foot, he had calmed down by this stage and wanted to try and get it out for me. I rejected his help and I said to him, “no, you’d better ring your mother to come and pick you up”. He said, ‘No, L, I’d be running home to mummy, wouldn’t I?’ I said, ‘No, you wouldn’t, I think you should go’. I was sitting on the lounge at this stage and he was standing right in front of me and then he hit me up the side of the head. He hit me on the left side of my head and said, ‘I’ve been trying to be nice’. With that I told him that, ‘five minutes of cleaning up wasn’t going to undo what you’ve just done’. Then he yelled at me, ‘find the fucking dog now’. He’d bought me a pup a couple of days ago so I went into the boys’ bedroom and found the puppy under their bed. I took it out and wrapped it up on the lounge. He then asked me, ‘go and see if the kids are all right’. I then went into the bedrooms to check on my children. All the kids were crying. I just calmed them all down and told them to lie down. My little girl asked for the puppy so I went and got it and put it in the bed with her and told her to cuddle it because it was frightened too. While I was doing this S was putting his stuff in the ute. He came back inside, I went to the kitchen and he followed me in. He said, ‘I want the dog’.“
She then went on to describe how she went and got the dog and took it out to the ute. She said to him, “Please don’t take the pup”. She then described how he held her in the air for about 10 seconds and slammed her down on to the kitchen floor. She said he was yelling abuse at me while he was doing this but I think I must have switched off because I don’t remember what he was saying:
“I was lying on the floor and I was crying. He walked over to me and said, ‘What have I done’. He tried to pick me up. I screamed at him, ‘Don’t touch me’. I got up on my own. With that he hit me on the right side of my head and then he pushed me in the chest. I went backwards into the fridge. I put my right arm to stop myself and I hit my arm on the fridge. He left and I saw him go down to the shed.”

She then described how he came back and said, “You’d better move back to Queensland if you know what’s good for you. If I ever see you in town with another man you’d better watch out.” Then, as he was leaving he said, “L, your $7000 TV is no good to you now”. I then saw him pull my DVD player and the equaliser off the top of the TV. The equaliser has then fallen through the front of the TV smashing the screen. The DVD player fell on the ground and he left and drove off.
The injuries, which the wife described, were that she had a bruise and a mark on her right arm, which she got when she hit the fridge. She had a bruise on her right leg where something he was throwing around hit her. She said, “there was so much thrown I don’t remember exactly what happened or what it was. I have a headache and a lump on my right forehead, my head is sore on both sides of my head around my eyes. I’m sore under the chin where he’s picked me up. I have a bruise and swelling on my left upper arm and my left hip is sore too from where I hit the floor when he threw me.”
An apprehended violence order was taken out the following day. Notwithstanding this, on the night of Thursday, 22 February a further incident took place. The wife described how there was a knock at the door and when she went to answer it she saw S B standing there. He had a small amount of blood on his forehead. He seemed to be upset and he said, “You’d better go talk to mum.” I then went outside and spoke to his mother who was sitting in a car. She said, “He’s just jobbed the two sluts across the road”. I said, “You’d better go and get him out of my house”. She said, “He’ll go off.” I said, “I don’t care”’. I then walked back inside to get him out.
She described how she went back into the house, saw him standing in the lounge room and said that he had better go with his mother. He said, “Can’t I just stay here for a little while and then I’ll take off through the paddock“. She said, “No, you can’t stay here, you’ll have to go, I’m thinking of your AVO you know, you’re not allowed to stay here or even be here”. He said, “Thanks for nothing, I thought I’d be able to turn to you.” She said, “You’ll have to learn to take responsibility for your own actions”:
“I said, ‘What does it tell me about you, you’ve just hit another woman’. He then lost his temper and turned over a picnic table and chairs in the lounge room and knocked an Esky over as well. I tried to calm him down as my children were watching and crying and upset. He then slammed the front door breaking the lock. I tried taking my children down the hall into one of the bedrooms but he followed me down the hall. I pushed my children into the bedroom and tried to go out the back door. I had got out of the back door when he picked up the ironing board from the laundry, which is just inside the back door. He threw the ironing board at me but it narrowly missed me. I screamed out,’“Mum, mum, mum.’ My mother lives close by and I was screaming for help from her.”
She then later described how she picked up the phone, he took it from her and smashed it into the floor causing it to break apart. His mother was in the lounge room, she said, “Trying to keep him from getting to me”. He was yelling out, “Let me at her, I’m going to smash her face in”. He was yelling and swearing constantly:
“He then pushed his mother in the side of the head causing her to stumble across the room. He then began pushing me by my shoulders backward towards a lounge chair. He pushed me very quickly into the chair forcing me to sit at it. He then leant over me and said, ‘you can go and get rid of my fuckin’ kid’. He then leant over me and bit my face it was one big bite, which caused a wound under my right eye at the base of my nose on the left side and the top lip. The bite broke the skin under my eye and on my nose.”
She then described how his mother criticised his behaviour; he backed away from her, and she got up and ran outside. She then says:
“I grabbed my children aged 6, 4 and 2 on the way out. I was very scared of what might happen next. We stood in the carport with the children. I heard him yelling and leave by the front door. I walked round to the front of the house and saw him drive off.”
She later says:
“As a result of the assault on me I’m suffering pain in my nose, I have a terrible headache and I’m finding it difficult to breathe properly due to the swelling in my nose. My lip has also swollen up, it’s causing me a lot of discomfort. My children became extremely upset because of witnessing the assault on me and they are having trouble sleeping.”
As a result of those incidents Mr B was charged with a number of offences. Indeed, he spent a period of weeks in custody, bail refused. He was released on bail on 26 March 2001. He was bailed to appear at Junee Local Court on 22 October. He pleaded guilty, as he told this court, and faces sentence in respect of the following charges: Two charges of assault occasioning bodily harm, four charges of section 61 assault, four charges of malicious damage to property, one charge of entering enclosed lands, one of breaching an apprehended violence order, one of driving under the influence, one of driving whilst disqualified, one of resisting police, one of possessing an unauthorised firearm and one of handling and use of a firearm.
Needless to say, as a result of the drink driving charge or as a result of an earlier drink driving charge he had been disqualified and of course he remains a disqualified driver. He entered a rehabilitation centre by a local hospital and served a period of time there as an inpatient. The orders then on 2 April were, of course, ones that included the prohibition on Mr B entering the premises. Notwithstanding those orders made on 2 April which were entered into by consent, on 11 May the wife’s then solicitors wrote to the husband’s solicitors informing them that the wife had recently spoken to the husband indicating that she has now discovered that she is expecting a child from the relationship with S B and that the anticipated date of birth is 24 October 2001.
I would comment that there was a reference in the wife’s statement relating to the incident of 22 February of a child made by Mr B. In any event, the letter goes on to say:
Our client is anxious to explore the possibility of resuming cohabitation with S B particularly bearing in mind that she would like her child when born to have both parents together in a domestic relationship under the one roof.
The husband, of course, had refused to consent to that condition being lifted and that situation remains. Notwithstanding that it is significant that the children when interviewed by the counsellor gave the counsellor the impression that Mr B was in fact living with them. It is quite clear that the wife intends to continue her relationship with Mr B and that she in fact intends to reside with him on a permanent basis once he is free to do so.
He is not free to do so at the moment as a result of the interim order that was made nor as a result of his bail conditions as he has to reside where directed by the Probation and Parole Service. That situation will no doubt remain until Monday 22 October when he is due for sentencing. It is regrettable that Mr B has not remained trouble free since he was released on bail in March. He gave evidence in these proceedings that he faces an 18th charge. He has pleaded guilty to another charge of driving whilst disqualified arising from an incident when, on the evidence before me, he was not affected by alcohol, he had been out with the wife and she had experienced some difficulty relating to her pregnancy, apparently started to bleed. He said that he panicked, wanted to get her to a hospital, he came under notice from the police and was charged with driving whilst disqualified.
He pleaded guilty to that and he is also facing sentence for that, on

22 October. It is fair to say that it is a bold of possibly very foolhardy defendant who, on a Griffiths remand for charges involving alcohol related violence and alcohol related driving offences chooses again to break the law whilst driving a motor vehicle whilst disqualified. He will in fact face sentencing for two separate offences of driving a motor vehicle whilst disqualified. He will, of course, be in a position where he will not have a driver’s licence for a lengthy period of time which I suspect would be measured in years rather than months.
He is also, in my view, in serious jeopardy of receiving a substantial prison sentence on 22 October. It is a matter of concern also that Mr B’s behaviour notwithstanding his apparent abstention from alcohol indicates an impulsive nature and an inability to abide by the restrictions placed on him. He had been the subject of an apprehended violence order, which he has broken. He had been disqualified from driving by a court and has chosen to drive again. The evidence is not sufficient for me to find that he has in fact been residing with the wife whilst ordered by this court and by the conditions of his bail and by the conditions of an apprehended violence order not too. There remains a suspicion that to my mind the evidence is not sufficient to show that that is in fact what he has done.
It is quite clear however the wife from a comparatively early period of time has been prepared to forgive, if not prepared to forget, that she wishes to resume a live-in relationship with Mr B. She wishes the children to reside with Mr B. Notwithstanding the fact that she has been assaulted by Mr B on two occasions this year, her property has been damaged and destroyed and she has suffered frightening painful and humiliating attacks. It is a matter of serious concern that this violence has taken place in the presence and hearing of the children. The wife is of the view that Mr B has rehabilitated and that he has shown such remorse that he is unlikely to offend again.
This may be so. I am of the view however that the violence which has been exhibited of which the children have been the unfortunate witnesses has certainly had the impact of frightening the children and has the potential to traumatise them further and there are the twin risks referred to by Mullane J in M and M, not only the danger of being the subject themselves to violence but of observing that violence and learning that violence in the home is an appropriate method of communication. The answer is quite clear, it is not.
There is no doubt that Mr B is a person who has, by his own admission, assaulted the wife and other women this year and this year in particular. This court, like all courts in Australia, regards such matters extremely seriously indeed. If the wife chooses to continue the relationship with Mr B there can be only one answer. I am not satisfied that it is in the best interests of the children for them to reside in a house where there is the potential for serious domestic violence. I am of a view that residing permanently in a house with Mr B represents an unacceptable risk to these children.
If the wife is to invite Mr B through the front door of the house the children must leave by the back. There is no alternative that will to my mind see the children safe.

I certify that the preceding seventy six (76) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate:

Date: