Watkins and Minnow
[2010] FamCA 1059
•25 November 2010
FAMILY COURT OF AUSTRALIA
| WATKINS & MINNOW | [2010] FamCA 1059 |
| FAMILY LAW – CHILDREN – With whom a child spends time – Serious allegations of violence – whether the children should have any time with the father and if so the amount of time and whether supervised |
| Family Law Act 1975 (Cth) |
| MRR v GR [2010] HCA 4 Cave and Cave [2007] FamCA 860 APC & RM [2004] FMCAfam 56 Maluka v Maluka [2009] FamCA 647 |
| APPLICANT: | Mr Watkins |
| RESPONDENT: | Ms Minnow |
| INDEPENDENT CHILDREN’S LAWYER: | P L Corby & Co. |
| FILE NUMBER: | HBC | 284 | of | 2008 |
| DATE DELIVERED: | 25 November 2010 |
| PLACE DELIVERED: | Launceston |
| PLACE HEARD: | Launceston 11, 12 August & 1 September |
| JUDGMENT OF: | Benjamin J |
| HEARING DATE: | 11 & 12 August 2010, 1 September 2010 30 September 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Bugg |
| SOLICITOR FOR THE APPLICANT: | Dobson Mitchell & Allport |
| COUNSEL FOR THE RESPONDENT: | Mr P Fitzgerald |
| SOLICITOR FOR THE RESPONDENT: | Rae & Partners |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr J Waterhouse |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | P L Corby & Co. |
Orders
Ms Minnow (“the Mother”) have sole parental responsibility for F born … February 2000, J born … June 2003; and Z born … July 2004 (“the children”). Such parental responsibility includes:-
(a)the sole authority to apply for passports for the children;
(b)determining where the children live within the Commonwealth of Australia;
(c)determining which schools the children should attend;
(d)the mother is permitted to allow the removal of the children from the Commonwealth of Australia for the purpose of holidays or education provided that she shall give the father at least one (1) calendar month’s notice of any such proposed departure. Such notice to be by ordinary prepaid post to the last known address of the father and of the paternal grandparents.
The children live with the Mother.
Except as specifically provided in these orders or as otherwise agreed in writing between the parties, the father be restrained from approaching or meeting the children or any of them, communicating or spending time with the children or any one of them.
The father communicate with the children by way of letters and cards which are to be posted to the mother’s postal addresses provided:-
(a)Both parents provide a post office box or other mail address to the other party (through their respective solicitors) within fourteen (14) days of these orders and keep the other party informed, through such addresses, of any changes of such mailing address.
(b)Commencing December 2010 the father may send one (1) card to the children (as a group) for Christmas and one card to each of the children for each anniversary of the birthday of such child; and
(c)Commencing 1 March 2012 the father may forward one letter per year to the children (as a group) on or about 1 March ; and
(d)the mother or her nominated person may read such letters and cards and those which the mother considers are inappropriate are to be returned to the father. The remainder are to kept and made available to the children if requested or a child seeks information about the father. Such letter and cards are to be retained by the mother for the children’s later reading or for a child to have a copy of such letters and cards after each child’s eighteenth birthday.
(e)Nothing in these orders imposes any duty upon the children to respond to such letters, cards or presents.
IT IS DIRECTED that the mother and the children’s paternal grandparents contact the Family Relationships Centre, within six (6) months from the date of these orders, to mediate whether arrangements can be made for the paternal grandparents to see the children or have some exposure to the paternal side of the family, excluding the father.
Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All subpoenaed documents be returned to the persons or institutions from which they emanated and all exhibits are returned to the person or persons who tendered the same.
The appointment of the Independent Children’s Lawyer be discharged twenty eight days from the date of this order.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment under the pseudonym Watkins & Minnow is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT LAUNCESTON |
FILE NUMBER: HBC 284 of 2008
| MR WATKINS |
Applicant
And
| MS MINNOW |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
Ms Minnow and Mr Watkins have three children, F aged ten, J aged seven and Z aged six. The children have had no contact with their father since 2007 and the father seeks orders that the children spend time with him.
The mother opposes that application and seeks orders that the children spend no time with the father.
The mother alleges a long history of domestic violence perpetrated by the father on her. The father denies all of the violence asserted by the mother apart from two instances which he said were not significant.
These proceedings have been dealt with under the Magellan protocol and a report was prepared by the Department of Health and Human Services. An Independent Children’s Lawyer was appointed to represent the interests of the children and a Single Experts Report was prepared.
These proceedings were commenced in March 2008 and in December of that year interim orders were made by me and a Single Experts Report was ordered. That report was issued in May 2009. The parties, in one form or another have not been able to get themselves ready for the hearing. The Court has endeavoured to accommodate the interests of the children through earlier hearings without success until August 2010.
In these reasons any statement of fact is to be regarded as a finding of fact unless it is clear from the context of such statement.
The proceedings were to be conducted over two days in August 2010. Unfortunately the evidence could not be completed in that time and it was then adjourned for hearing for two days on the 1 and 2 September 2010.
At the commencement of hearing the Court was informed that the Independent Children’s Lawyer now required evidence from a social worker Ms L, a school counsellor Ms H and a child protection worker Ms S who would not be available for a few weeks. Accordingly, the cases of the father and mother were completed on 1 September 2010 and the proceedings adjourned for further evidence and submissions on 30 September 2010 at Hobart.
The mother claimed that she was fearful of the father and as such attended court on the first two days of hearing by telephone connection to her counsel. On 1 September 2010 the father observed the proceedings by way of a video link from a building in Launceston whilst the mother gave her evidence.
In the afternoon the mother and instructed and observed the hearing by telephone whilst the father attended court. This was a process which was accepted by both parties, their legal representatives and the Independent Children’s Lawyer.
BACKGROUND
The parties commenced cohabitation in 1983 and they married in 1997.
It is not an issue that the mother was the principal carer for the parties’ three children F, J and Z. There is an issue as to the extent of the father’s involvement with the children during the relationship.
The mother raises significant issues of family violence which is dealt with later in these reasons.
In about August 2007 the parties separated. The father has not seen the children since late 2007.
At the commencement of the hearing the mother sought orders to be excused from attending the hearing. Having regard to the serious violence allegations and there being no objections from either the Independent Children’s Lawyer or counsel for the father I gave leave to that end.
The mother also sought an order that when she gave evidence in person that the father be excluded from the court room. She requested that the father attend by telephone.
I made enquiries as to whether the father could view the proceedings via videolink from one of the private solicitor’s firms in Launceston whilst the mother was giving evidence. The result of this was unsuccessful. As a result of the serious allegations of violence I directed that the father attend by telephone-link whilst the mother gave evidence. I allowed sufficient time for the father’s counsel to obtain instructions during the course of that cross-examination.
RELEVANT LEGAL PRICINPALS TO BE APPLIED
In exercising its jurisdiction in relation to children, the Family Court is bound by the provisions of the Family Law Act 1975 (Cth) (“the Act”). This is a proceeding to which the provisions of Division 12A of Part VII of the Act applies.
The object of the Act relating to children is to ensure that the best interests of the children are met. Section 60B(1) of the Act provides that this can be done by:-
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles set out in s 60B(2) that underlie those objects are that, except when it would be contrary to a child’s best interests:-
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Each of the parents of a child has complete but several parental responsibility for their child pursuant to s 61C of the Act. This is subject to any court order and must be considered in the light of the so called presumption arising out of the operation of s 61DA of the Act. The section provides that a Court must apply a presumption that it is in the best interests of a child for that child’s parents to have equal shared parental responsibility[1] for the child, subject to subsections 61DA(2), (3), (4) and (5).
[1] Parental responsibility is defined by s61B to mean “all the duties, powers, and responsibilities and authority which, by law, parents have in relation to children.”
If the presumption is not rebutted and it is in the child’s best interest a court must make an order for equal shared parental responsibility. Logically, if the presumption is rebutted under 61DA(2), but a Court determines that it is in a child’s best interest for an order for equal shared parental responsibility, it should be made.
The effect of an order which provides for shared parental responsibility, whether equal or not, is set out in s 65DAC.
The question of the allocation of parental responsibility generally needs to be determined before the question of with whom the child lives and/or spends time with, and the degree of communication a child is to have with another person is determined (see s 64B(2)). This is because where the presumption of equal shared parental responsibility applies, the Court must consider whether it is in the best interests of the child to order equal, or substantial and significant time pursuant to s 65DAA. In circumstances where s 65DAA does not apply because the presumption does not apply, there still should be consideration of whether in the factual circumstances, an order for equal, or substantial and significant time is appropriate.
Should parties be unable to agree about the living arrangements of a child, a court must, in determining whether it should make orders or in determining what orders should be made, have regard to the best interests of the child as the paramount consideration. Section 60CA of the Act provides:-
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The factors guiding how a court to determines what is in the best interests of a child are set out under s 60CC of the Act. From 1 July 2006, those best interests are determined under a two tiered approach pursuant to s 60CC, that lists “primary considerations” and “additional considerations”. A court must consider the matters set out in s 60CC unless considering a consent order, in which case the Court may, but is not required to, have regard to the matters set out in ss 60CC(2) and (3) of the Act. The relevant parts of s 60CC read as follows:
Primary considerations
(2) The primary considerations are:-
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:-
(a)any views 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 to the child’s views;
(b)the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture);
(ii)the likely impact any proposed parenting order under this Part will have on that right;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applies to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m)any other fact or circumstance that the court thinks is relevant.
A court must consider the s 60CC(2) considerations as “primary considerations”. This does not mean that they inevitably outweigh the “additional considerations”, but some weight must be attached to the term “primary”. A Court should consider each of the additional considerations separately, then have regard to all of the matters set out in s 60CC (including subsections 4 and 4A) and in the light of those factors, weigh up questions of parental responsibility, face to face time and communication.
In that evaluation, if there is to be an order for equal shared parental responsibility (whether arising pursuant to the presumption or otherwise), the Court must consider;
Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents[2].
[2] MRR v GR [2010] HCA 4.
The Court should then determine time, communication and other parenting issues having regard to the nature and quality of the parent/child relationship and the need to make orders in the best interest of the child.
Family Violence Orders
After the “nail gun” incident in August 2006 (referred to later in these reasons) a Family Violence Order was put in place. This initially prevented the father and mother from living with each other. That order was varied to enable the parties to reconcile and cohabitate.
There is evidence that a further order was made on 4 December 2007 which was to operate for twelve months.
I have had regard to all of those family violence orders.
The mother claims that she has been the victim of significant family violence over the whole of her relationship with the father.
In his affidavit filed 28 June 2010 the father denies the allegations contained in the mother’s affidavits and her notice of child abuse. He says approximately eight years ago (2002) when the parties were living in Hobart he flicked the back of his mother’s head with his fingers after a discussion. He says further that when the parties were living at K in regional Tasmania he grabbed the mother’s right hand on one occasion when she was shaking F too hard. He amplified this event in his evidence. The description he gave was of abuse of a child.
The mother submitted that the father would often slap her around the head and he would push and shove her into walls, which on one or more occasions caused her ear drum to perforate. The father denied that this occurred.
In the clinical notes from the Royal Hobart Hospital[3] there is a report of the mother suffering an injury to her ear where the reporter (the mother) denied a slap over the ear but was not convincing. I am satisfied that on that occasion the mother was hit over the ear by the father.
[3] Exhibit M2.
On 24 July 2002 the mother visited her general practitioner, Dr U. He observed an injury to the mother’s ear. His notes record:-
… was caused by a blow to right ear by spouse – has reacted to blow to head in past angered – he has been to counselling didn’t do any good. [mother] once went to Women’s Shelter – discussed – he knows it is not appropriate, he should remove himself from the home
Having regard to this objective evidence I am satisfied that the father’s denial that he assaulted the mother by hitting her across the ear is not reliable and I am satisfied that he has on a number of occasions, at least, hit the mother across the head causing damage to her ear.
The mother complained that the father used to push and shove her into walls and furniture, and punch her in the body causing bruising and other marks. The father denied this abuse. I prefer the evidence of the mother in this respect.
The children’s maternal grandfather filed an affidavit[4] and observed that there was significant damage done to the house at K. I find that the father was physically aggressive in terms of damaging the home.
[4] On 4 August 2010.
I accept the evidence of the children’s maternal grandmother that she observed the father punching the mother in the stomach shortly after the birth of Z in circumstances where the child had been delivered through caesarean section. As such I accept the evidence of the mother and maternal grandmother and find that the father has on regular occasions punched the mother.
In October 1989 clinical notes from the Royal Hobart Hospital[5] show that the mother was treated at that time after someone smashed a window and glass flew into her face. The evidence of the father in relation to this incident was unconvincing. I am satisfied that the father, at that time, locked the mother in a shed and threw stones at the shed causing the window to break and causing injury to the mother.
[5] Exhibit M2.
The mother complained that the father would degrade and belittle her and call her names. This was, to a limited degree, conceded by the father. Having regard to my views of his evidence I am satisfied that he used abusive and demeaning names to the mother throughout their relationship. The father was dismissive of the mother’s care of the home. He called her “domestically lazy”. The mother had the care of three children, limited financial resources and limited or no emotional or physical support from the father.
I am satisfied that the mother was subjected to demeaning and belittling comments from the father throughout the relationship particularly after the children were born.
The mother claimed that the father isolated her from family and friends by moving the family to K in regional Tasmania. She said she had limited transport and was at home with the children. The father denied this and said that over the duration of the relationship the mother had five cars. I am satisfied that the father moved the family to K to further isolate the mother and continue his control over her.
There is no issue that after the “nail gun” events discussed further on, the father damaged the mother’s car (and microwave oven). I prefer the evidence of the mother that she was isolated and did not have access to motor vehicles to the extent asserted by the father.
In some regards the father’s evidence and that of his friend Mr E are indicative of this in that the mother needed to contact the father to obtain basic needs from time to time.
The parties relied upon support from the children’s maternal grandmother for many years into their relationship. She lived with the parties for a long period of time. After the parties moved to K the mother says she was financially controlled by the father. The father spent a considerable part of his income on cannabis. At some stages he endeavoured to blame the mother by saying this was a combined endeavour. He later conceded the mother did not drink or smoke for a period of time before the birth of their eldest child until at least a couple of years after the birth of their younger child.
In many ways this evidence of the father impeached the reliability of the evidence of Mr Y.
In about 1997 the mother says that she and the father were travelling to N in northern Tasmania to visit their family. Their dog was in the car and it slipped off the seat onto the floor. The mother says that the father then drove down a road at a frightening speed, stopped at the bottom, produced a large hunting knife and held it to the dog’s throat. The father denied this occurred. On balance, I prefer the evidence of the mother.
This evidence has some resonance of the behaviour of the father with regard to the evidence of his mother, the children’s paternal grandmother. The paternal grandmother deposed that:-[6]
It is true that [the father] and I argued and that he took my dog. It related to financial issues. … however [the father] returned my dog within about an hour after he had taken it.
[6] Affidavit of the paternal grandmother filed 5 July 2010.
When cross-examined on this point the paternal grandmother said that the father had come around seeking money for food for the children. The paternal grandmother had obtained advice from her doctor and offered food instead of money. She says that this was because they were tired of providing money to the father whenever he sought it. The reasons she said had nothing to do with the father’s use of drugs.
I do not accept that evidence and I infer from the evidence and the father’s cannabis use that there was a concern whether the money was actually used for the benefit of the children. She offered the father food which was declined and the father seized his mother’s much loved dog and ran out of the house with it. The father was agitated. The paternal grandfather was worried about the father’s behaviour and called the police.
The father described his traffic record as “a few traffic infringements”. The father’s driver’s licence was disqualified in February 1985, July 1997 and February 2001. Since that time he has the following infringements in relation to motor vehicles:-[7]
[7] Exhibit M1.
January 2002 - Used vehicle in contravention of standards.
February 2002 - Speeding.
June 2005- Speeding.
October 2005 - Drive without driver’s licence, drive unregistered. and uninsured vehicle.
November 2005 - Unregistered vehicle.
May 2006- Unregistered and uninsured motor vehicle.
August 2007 - Exceed speed limit.
November 2007 - Exceed speed limit and drive whilst not the holder of a driver’s licence.
December 2007 - Exceed speed limit.
February 2008 - Exceed speed limit, drive without a driver’s licence and using a hand held phone.
May 2008- Exceed speed limit.
July 2008- Exceed speed limit.
November 2008 - Exceed speed limit.
October 2008 - Drive without appropriate licence.
October 2008 - Exceed speed limit.
April 2009- Exceed speed limit.
This is an example of the father minimising culpability. In anyone’s language that is a poor driving record.
The mother asserts that in 2005 the father threatened to put the child F in a box in the bush. She says this was at a time when they were separated. The mother says the father alleged he would pick up the child from school and she would find him in a “box in the bush”.
When cross-examined in relation to this issue the father conceded that he may have said something to that effect but it was innocuous. I do not accept that it was innocuous. I accept this was a pattern of on-going abuse, control and violence by the father against the mother.
On 12 August 2006 the mother and father were having an argument at home. The father concedes he was intoxicated and had been using cannabis. He said the mother was likewise intoxicated. During the course of the argument he said to the mother “you’re a dead bitch”. The father in cross-examination conceded that he said to the mother “I will fucking kill you”. The mother called the police without the father’s knowledge.
Police officers arrived at the scene and as a consequence of the events that followed the father entered a plea of guilty to two charges of aggravated assault. The comments on passing sentence were tendered in court.[8] The facts to which the father admitted, the father having been represented at that time, were as follows:-[9]
His Honour
The victims of these assaults were two police officers who had been called to his [the father’s] home in the middle of the night when he had been drinking whisky, smoking cannabis, arguing with his partner and possibly threatening her. This was last August. After the police had begun speaking with him he ran away from them, ran into his shed, pursued by the two police officers. He picked up a pressurised nail gun and assaulted the police officers by making threatening gestures, indicating that he was about to shoot nails at them. In fact he could not have done so, since the design of the gun made it impossible for a nail to discharge through the air. Each of these assaults amounting to a crime of aggravated assault because [the father] was trying to avoid being lawfully detained by the police in connection with allegations that he had assaulted his partner. It is not asserted in these proceedings that he had in fact assaulted his partner.
Both of these officers were alarmed. They sheltered behind a vehicle, fearing that [the father] might otherwise shoot them. However there is no suggestion that either officer has suffered any lasting psychological harm.
[8] Exhibit M3.
[9] Ibid.
The father in his affidavit significantly minimised this event and endeavoured to do so in the witness box, he was unconvincing in that regard.
The mother and children were escorted from the home and a family violence order was made. As a consequence of his criminal behaviour the father was sentenced to 140 hours community service.
Subsequent to that event the father attacked the mother’s car by smashing a microwave through the windscreen of that car. He conceded that fact.
As I have indicated earlier the mother complained that she was economically controlled by the father. In 2007 the mother says that she received a large power bill. She said the father cut the plug off the heater cord. The father in part admitted this but gave an innocent explanation. I do not accept his explanation.
When the father was cutting the heater cord the children hid. The father attacked the mother and endeavoured to strangle her. It is significant that F recalls this event. The mother describes a terrifying and frightening violent incident. She called the police and asked to be taken to a women’s shelter. The mother moved out of the home and moved to N where she presently resides.
There is some subjective amplification of the mother’s views of the violence however I am satisfied that she has been the subject of violence throughout the relationship. From time to time she was violent in reply by way of reactive violence however, I am satisfied that the primary instigator of the violence was the father.
I am concerned that the father does not acknowledge his violence and has not done so over many years. The comments of Dr U are troubling and the father has still not dealt with his violence adequately or with any effective acknowledgement. He endeavours to blame others for that behaviour.
I am satisfied that the father endeavoured to use his nail gun in 2006 to intimidate and threaten the police. The mother lists many other instances of violence of which I have had regard and I do not need to repeat those in these reasons. The mother asserts, and I accept, that she was isolated in physical terms and in economic terms.
The father complained that the mother was violent to her own mother with a knife on an occasion prior to the parties having children. The children’s maternal grandmother and mother have given explanations in relation to that event and I am satisfied with those explanations.
It is troubling that the father said in cross-examination that “if the children are fearful of him he has done nothing to cause that fear”. He says much of the mother’s evidence is false. He has either no insight into his violent behaviour or is just untruthful, either way it raises serious concerns about his interaction with the children.
When the mother separated from the father she left photographs and personal possessions of herself and the children at the then matrimonial home. Through her legal practitioners she requested the return of those personal effects from the father. There was correspondence about the return of these possessions. The father says that he delivered them to a shed at the maternal grandmother’s home in Hobart, with an implication that somebody had stolen them between the time he left them and when the mother attempted to collect them. When the mother became aware that these possessions were allegedly available she went to the maternal grandmother’s home and in the shed she found no possessions and in their place was a magazine with a photograph of a severed human head. This deeply upset the mother. She has now lost these few possessions. I do not accept the father’s evidence that he delivered the possessions of the mother and children and to that address.
Having regard to the father’s history I am concerned that these items may have been either retained by him or destroyed.
The father complained about the mother’s cooking for the children but said that she did look after him “reasonably well”.
The children’s maternal grandmother said that in December 2004 over the Christmas period the child J ate a Nutella sandwich and had a violent reaction. The mother asked the father to take the chid to the doctor quickly. The father put J in the back seat of the car and the mother got in. F wanted to go too and climbed into the back of the car. The father got out of the car, grabbed F and threw him violently to the ground. The mother gave similar evidence in her affidavit.
Evidence was provided by the mother’s brother who described the same incident. I am satisfied that incident occurred substantially as these three witnesses asserted.
The mother admitted she committed some violent acts against the father earlier in their relationship and in fact broke his nose and on another occasion caused a glass injury to his eye. The mother says that after a particular violent event where the father used an axe in about 1985 or 1986 she became intimidated and thought he might attack her.
Her evidence following that time is somewhat contradictory but it is fuelled by the nature of the family violence which the single expert acknowledged.
WITNESSES
Mr V
Mr V (“the single expert”) gave evidence in accordance with his report dated 19 May 2009 which report was read into evidence. His qualifications were not in issue.
The single expert had interviewed the parents, the children’s paternal grandparents, Mr E, Mr R Minnow and the child F.
The single expert determined[10] that he could not conclude the father had mental health problems that would interfere with his capacity to parent.
[10] At paragraph 106 of the single experts report dated 19 May 2009.
He determined that the mother shows some indication of histrionic behaviour which, he said, could easily distort her perception of events and also contribute to fuelling domestic disagreements.
The single expert used a Millon Clinicial Multiaxial Inventory Test to test the clinical personality patterns and clinical syndromes of the relevant adults. This test was applied to the parents and to the children’s paternal grandparents.
All of those tested scored significantly in the compulsive personality area. In so far as the mother was concerned he said “her results indicate a probable presence of clinically significant traits in compulsive and narcissistic traits and a much stronger score in relation to histrionic tendencies”.[11]
[11] Ibid at paragraph 86.
He defined histrionic tendencies as: “expressively dramatic / over-active, attention seeking, flighty / thoughtlessness / suggestible / vagarious / shallow disjointed cognitive organisation, tendency to disassociation, and particular mood”.[12]
[12] Ibid at paragraph 89.
He concluded that in respect of the mother there is presence of some degree of personality disturbance being there is one extremely high score and whilst this appears to be the case, there are no other mental health problems.
The single expert was provided with some material by the mother’s counsel which included the following:-
·Best Practice Principals for Use in Parenting Disputes when Family Violence or Abuse is Alleged – Family Court of Australia 2009.
·Report from the Wingspread Conference on Domestic Violence in Family Courts by Ver Steegh and Dalton.
·Differentiation among types of Intimate Part Violence: Research Update and Implications for Inventions by Kelly Johnson.
·Custody disputes involving Allegations of Domestic Violence: Towards a Differentiated Approach to Parenting Plans – Jaffe, Johnston, Crooks and Bala.
The single expert was not convinced that this was a coercive controlling behaviour on the part of the father. He accepted the qualifications of the experts and their reports. Having regard to the history of this matter I am satisfied that the violence at the commencement of the relationship was likely to be situational but developed into coercive controlling violence on the part of the father.
The single expert agreed that the father would have to accept some degree of culpability for his violence for there to be change. I am satisfied that the father has minimised the violence perpetrated on the mother and family and as such is unlikely, at this stage, to change.
The single expert has concerns about the veracity of the mother’s statements.
The evidence of the single expert was that there is exaggeration by the mother but that if there was a finding of violence his views may be somewhat different. He said the mother would need to acknowledge that she contributed to the situation and has damaged the relationship between the father and the children. If both were at fault they would need the support of the Children’s Contact Service and re-integration slowly over a period of time with the Court over-seeing that process.
He said if the substantial submissions of the mother are untrue then the mother would need to accept greater accountability and it would require more active case management and greater court involvement. Either way he paints a bleak picture of the children having normal time with the father.
Part of the material put to the single expert was a Magellan Report. The single expert had regard to it but was cautious of the Report because some of the conclusions were not supported. I give the Magellan Report some, but not significant weight.
The mother genuinely believes the father is a threat and that he poses a genuine threat. The next question is does he pose a genuine risk to the children.
The single expert said that if the children were safe (and whilst it would cause unhappiness to the mother) a relationship between the father and the children was a positive thing.
The single expert, in his report, has significant doubts as to the veracity of the assertions of violence. Understandably, that must at some levels impact upon his report. This Court had the benefit of seeing the witnesses and having the evidence tested by cross-examination. The reality of the violence was much clearer in the light of such evidence.
Ms H
Ms H, a social worker, prepared a report which was annexed to her affidavit filed 20 September 2010. The affidavit was read into evidence without objection and none of the parties wished to cross-examine that witness.
Ms H is a school social worker who saw F on two occasions in October and November 2007. Her evidence was that F spoke about missing his friends in Hobart and missing the good things about his dad.
F defined the good things as being when his “father was nice” and “did not yell or hurt his mum”. Her material went on to say:-
He [F] spoke about being happy in [N] due to his father not being there and recalled a time when his father had come to their home and attempted to choke his mother.
From her report it appears that F had settled well, at that time, into the
N school environment.
Ms L
Ms L is a counsellor with the Family Violence Counselling and Support Service under the control of the Department of Health and Human Services. She has a Bachelor of Social Work with Honours and has had seventeen years experience as a counsellor.
Ms L counselled the children and provided a report attached to her affidavit filed 21 September 2010. That affidavit was read into evidence without objection and none of the parties required her for cross-examination. I am satisfied that the parties regard her evidence as uncontentious.
With regard to F, Ms L saw him on twelve occasions between December 2007 and August 2009. F informed Ms L that he had seen “mummy being choked by daddy”.[13]
[13] At paragraphs 6.1 and 7.1 of the report dated 23 August 2010.
F reported having nightmares and was scared of his father turning up at the home. Ms L said that he presented as a child who was experiencing significant levels of post traumatic stress.
In terms of future fears, Ms L observed:-[14]
[F] has consistently expressed fears and worry about his father’s return. In one counselling session [F] reported that he thought he saw his father and described the fear he felt. [F] stated his “body froze when I saw the car. I didn’t know which way to go”.
[14] Ibid at paragraph 9.1.
In counselling F was asked:-[15]
How would you feel if you were to see your dad? [F] stated that he would be “scared”. [F] further stated that he was “happy” because his “dad is not here”. (17/11/08). [F] at the conclusion of counselling stated he did not want to have a relationship with his father.
[15] Ibid.
I accept that that is F’s view and that it is likely to continue having regard to the evidence of the single expert.
Ms L recommended that F be allowed to choose whether he has contact with his father into the future. She said this would allow him to have a greater sense of safety and to navigate the relationship with his father in terms with which he feels comfortable. I accept that recommendation.
Counsel for the father said I ought to be careful in adopting this course. I was careful and I am conscious that the mother may have, either unintentionally or intentionally conveyed some stories to the child which are derogatory of the father.
However, I am equally satisfied that the child has observed his father’s violence over many years including the father attempting to strangle his mother.
I am also conscious that Ms L’s history is entirely one sided. However, having regard to all of the evidence and particularly that of the single expert I am satisfied with her recommendation and her observations.
Ms L also saw J between December 2007 and August 2009.
Ms L reported:-[16]
[J] experienced extreme fear when she heard loud noises.
[16] Ibid at paragraph 8.1 of the Report dated 23 August 2010.
There was some evidence that J had engaged in aggressive activity.
Ms L said that after their sessions J was better able to regulate her emotions particularly her anger and fear. Ms L did not explore J’s relationship with the father.
In terms of Z, Ms L saw her on about six occasions between December 2007 and August 2009. Ms L said that with Z it was difficult to maintain her focus, which is not unusual having regard to her age and the short time she had lived in the household with both the mother and the father.
Ms L observed that little engagement took place between herself and Z and that she did not explore her relationship with the father. I accept that evidence.
Mr A
Mr A is a child protection worker with the Tasmanian Department of Child Protection Services. He was present during a number of interviews and assisted in the preparation of a report for this matter pursuant to the Magellan protocol that exists between the Family Court and the Department of Health and Human Services Tasmania.
The Report is an assessment in response to an order made requesting the Department to intervene in these proceedings. The Department did not intervene however the Report was of significant assistance.
The Department interviewed F in June 2008 at which time F said:-[17]
He likes it in [N] because dad is not here and there is no violence.
[17] At page 1 of Volume 1 of the subpoenaed documents from Department of Health and Human Services (F).
He quite clearly stated that he feels “scared around dad”. He talked about the time when his father got angry with his mum and threw a burger at the wall. He also spoke about a time when his father got so angry he broke the wall with a hammer.
F reported to the Department that he had bad dreams and fears of his father.
In that interview with the Department officers, the father, at some levels at least, conceded that he made verbal threats:-[18]
Only when the police visited the Family Violence Order about verbal threats but this was around [about] a threat to kill her in bed and he did not mean it.
[18] Ibid at point 28.
When asked by the interviewers whether the father had punched himself in the head and hit himself against the wall the father said he had no recollection of doing it.
In respect of the incident which occurred in the early part of the parties’ relationship where the axe was allegedly imbedded in the dashboard and bonnet of the mother’s car (about 1988/1989) the father said he recalled the incident but said the implement was an axe or a block buster or something similar.
In relation to the incident where the mother was locked in the shed in about 1992 (according to the Court) the father conceded that he locked the mother in the shed saying it was because she behaved like an animal. He denied that he broke the glass. It is significant that he later threw rocks and broke the glass but again, in my view, minimised his culpability in that respect.
In respect of the threats made in about 2005 that he would put F in a box in the bush the father said to the enquirers:-[19]
[the father] denied this but admitted to police he told [the mother] to “fuck off” and had said to them he would put the whole family in a box in the bush.
[19] Ibid at point 64.
The assessment of the investigators of the Department was that the father minimised the effects of family violence. That is consistent with my assessment of him. He otherwise denied most of the claims of abuse. I accept the evidence of this Report as being accurate records of the interviews.
It is also a fine example of how passing information from State agencies can assist greatly in terms of determinations of difficult issues.
The father relied on evidence from himself, his father, his mother and a friend Mr E.
The father
The father gave evidence in accordance with his affidavit filed 28 June 2010.
In many areas the quality of his evidence was impeached. I have dealt with that in other areas in these reasons.
The father was not a convincing witness, he minimised his violent, controlling and abusive conduct to the mother and the children. He endeavoured to deflect blame to others.
His evidence is unreliable and I do not accept his denials of violence and abuse for the reasons set out herein.
Mr E
Mr E’s affidavit filed 1 July 2010 was read into evidence. Mr E gave evidence in terms of his affidavit and was cross-examined. Mr E is a friend of the father and his affidavit was quite supportive of him.
Mr E gave evidence of the mother ringing the father asking her to collect items for her from the shops. His view of this was that it was the mother being demanding of the father. I infer from that evidence and the mother’s evidence it was because the mother was isolated and, having regard to the evidence of the father that he controlled the cash (although there is an issue as to credit card/s of which I prefer the evidence of the mother). The father had informed Mr E of the nail gun incident but had grossly understated it to him.
Mr E was critical of the mother’s care of the home but it was instructive to note that the father and Mr E used to meet after work and sit at the back of the home smoking cannabis and drinking whilst the care of the children was left to the mother. At some levels it reflected a lack of insight as these two men intoxicated themselves and complained about the mother’s care of the home.
I regard the evidence of Mr E as something of a “cheer squad” variety and it is not particularly reliable.
The paternal grandfather
The father’s father, the children’s paternal grandfather gave evidence. His evidence was in accordance with his affidavit filed 28 June 2010.
He has a dislike of the mother and does not believe her nor does he accept that his son was as violent as asserted or at all.
The paternal grandfather was upset that his son entered into a relationship with the mother because of the changes in the father’s behaviour soon after the relationship commenced and the mother’s inability to manage a household domestically.
The paternal grandfather said he not verbally abusive to the mother out of deference to his son’s wishes.
From a subjective point of view his evidence was not impeached but it was strongly supportive of the father and partisan.
The paternal grandmother
The father’s mother, the paternal grandmother, gave evidence in accordance with her affidavit filed 5 July 2010. She endeavoured to give evidence accurately and in a straight forward fashion. In doing so I am conscious that she was endeavouring to protect the father (her son). She at some levels accepts his explanations uncritically and accepts his criticism of the mother.
The evidence of the paternal grandmother was not seriously impeached and I am satisfied she endeavoured to tell the truth from her own perspective. However, that “truth” was coloured by her uncritical analysis of her son and over-critical analysis of the mother.
The paternal grandmother regards the mother as the reason her son has behaved badly.
She and her husband arranged to take F to school on many occasions and assisted the parents in emotional and practical terms including providing money to the parents to pay for electricity bills, firewood, cigarettes, and petrol bills.
She was initially permitted to see F in Easter 2008 but that arrangement was prevented by the mother.
The paternal grandmother and her husband the paternal grandfather had at one stage been parties to these proceedings. However, they withdrew as they were concerned by the following:-[20]
She [the paternal grandmother] believes that [the mother] has turned the children against them and that the children will now be terrified of meeting them. She is concerned for the welfare of the children but does not wish to cause any harm and so is concerned about how the children will react if they were to meet them. She believes that the children would need a third person to be present with whom they would have confidence in so that they would feel safe and not be traumatised by meeting with them. [The paternal grandmother] believes that the children’s attitudes have been shaped by their mother telling them lies.
[20] At paragraph 45 of the single expert report.
The paternal grandmother sent F a card for his eighth birthday in 2008 but was asked by the mother not to send anymore. She abided by that request.
It seems to me important for these children to have a significant relationship with their paternal grandparents as they had significant involvement in the children’s lives prior to separation. That involvement was positive and constructive. I am aware that the paternal grandparents do not think highly of the mother but both paternal grandparents were impressive in their love of their grandchildren. It would seem that it may be to the children’s benefit to spend some time with their paternal grandparents and communicate with them. The real problem would be how to ensure that they did not bring the children into contact with the father. Their support for the father may cloud their judgments in that respect.
The mother
The mother gave evidence in accordance with her affidavits filed 27 May 2008, 2 July 2008 and 3 October 2010. All affidavits were read into evidence. By leave the mother said that she did not have access to the father’s income. She said she had her own account into which Centrelink money was paid and that was the only money she had for housekeeping.
The mother gave further evidence of violence which was, generally consistent with the material contained in her affidavits.
The mother was cross-examined by the Independent Children’s Lawyer and by counsel for the father. She clarified some parts of her evidence and made appropriate concessions.
In terms of her evidence the single expert formed the view that there was some histrionic aspect to her personality and it was put that she exaggerated. I am satisfied that there was some level of exaggeration but that she was generally frank (albeit subjective) in relation to the events that occurred to her.
The mother and father commenced a relationship when they were both very young. The mother was sixteen and her father had recently passed away. The father was one year older. The parties commenced cohabiting in 1986 when the mother was about eighteen or nineteen.
I accept that neither of the parties’ parents accepted the relationship.
The parties lived together for about fourteen years before their first child was born and then separated about seven years later.
Having regard to the findings I have made elsewhere in these reasons I am satisfied that the mother was subjected to significant violence throughout the relationship, particularly after 1989 and this increased after the birth of the parties’ children.
The father was physically violent, verbally abusive, controlling, manipulative and threatening.
With regard to the caution raised by the single expert and having considered that there is some element of exaggeration I generally accept the evidence of the mother as being truthful. Some of it is supported by objective material and other supported by the children’s maternal grandmother and maternal uncle.
The mother’s evidence about the father was that she did not hate him but she was frightened and fearful of him and disliked what he had done to her and the children in terms of the suffering that they had endured.
The mother does not speak of the father with the children and when she does he is referred to by his first name. After the first two days of hearing the mother raised with the children separately whether they would like to receive letters and cards from the father. Each of the children expressed a desire not to do so. I accept the mother’s evidence in that regard.
I was generally impressed by the mother’s evidence and she is child focused.
The mother was asked why she stayed in an abusive relationship. She explained it by saying there were various reasons, including that she thought she was going to be killed and she thought the father had a mental illness which could be improved and she did have a love for him. In addition she said that she took the blame for his behaviour and tried to adjust her behaviour to avoid the violence. It did not work. I accept that evidence of the mother.
The mother gave evidence that at least every week there was an episode of the father being aggressive, intimidating and frightening. The mother said of Mr E’s evidence that he only visited three or four times and much of his evidence was exaggerated. On balance I prefer the mother’s evidence to that of Mr E.
The father spent most of his time at home with friends consuming alcohol and smoking cannabis. I accept the father’s evidence and the mother’s evidence that she did not smoke cannabis after she fell pregnant with the parties’ first child.
The father complained that the mother was shaking F. The mother gave an explanation as to the events where she was stopping F from hitting his younger sister and the father over-reacted by pushing her against the wall. I accept that evidence. This was not raised by child protection authorities with the mother.
The mother says that she believes that the children were traumatised by the violence and that if they were forced to see the father it would re-traumatise them. Having regard to the findings of fact I am satisfied that the mother has grounds to base that conclusion.
The mother says the children have progressed well since separation in a violence free environment. I accept that evidence.
The maternal uncle
Evidence was given by the children’s maternal uncle in relation to an event he observed when it was asserted that the child F was thrown out of a car by his father. He also gave evidence in respect of the state of the home after separation and the state of the mother’s car. I generally accept that evidence.
There is a difference in terms of his version of the events, with regard to F, than that of the mother and the maternal grandmother.
This needs to be seen in the context that this was a dramatic time. The child J was suffering breathing difficulties as she had apparently suffered an anaphylactic shock. The versions given by the mother, her brother and the maternal grandmother are inconsistent in a number of factual areas.
Whilst that is the case I am conscious that dramatic incidents such as these can create different perceptions in the minds of the observers. What I am satisfied of is that there was a violent interaction between the father and F when the father threw F out of the car to the ground and that F began to cry. I do not accept the father’s version of that evidence.
I generally accept the evidence of the maternal uncle although it must be seen as evidence supporting his sister which is somewhat partisan.
The maternal grandmother
The children’s maternal grandmother gave evidence in accordance with her affidavit.[21] The parties resided in her home in a suburb of Hobart from about 1990/1991 until the mother left in 1995. The parties remained at the Hobart home until shortly after the birth of their youngest child.
[21] Filed the 10 August 2010.
The maternal grandmother gave evidence of F being thrown out of the car. I simply repeat the comments I made earlier.
The maternal grandmother gave frank and direct evidence and I generally accept her evidence. The maternal grandmother gave evidence of the father punching the mother in the stomach a day after she had come home after the caesarean birth of the parties’ youngest child. I accept that evidence. I accept that the mother from time to time had telephone discussions with the maternal grandmother in respect of the violence to which she was exposed.
FINDINGS
In 1989 the parties were engaged in a violent incident which is set out in paragraph 33 of the mother’s affidavit filed 27 May 2010. The father had been jealous and attacked the car in which the mother was sitting with an axe or a block buster. The car was hit a number of times and when the mother escaped the father followed the car and rammed it from behind.
The mother says that from that time on she was terrified of the father albeit she still had some love for him and expressed a hope that he could overcome his difficulties. She also was of the view and remained for many years of the view that much of what occurred was her fault not his.
I am satisfied that:-
(a)The father has on many occasions during the course of the relationship verbally and physically abused the mother. The mother has been pushed into walls and sustained injuries.
(b)The father at least weekly and often daily was verbally abusive to the mother including calling her demeaning names and using threatening tones.
(c)In 1992 or thereabouts, there was an argument between the parties and the father locked the mother in a shed and threw rocks at the windows of the shed causing glass to break and injure the mother.
(d)In about 1996 the father pushed the mother to the ground and kicked her repeatedly to the legs and back.
(e)In about 1997 the father threatened to kill the mother’s dog by holding a hunting knife to its throat. This is consistent with the father’s behaviour in removing his mother’s dog some years later.
The mother complains that she was verbally and physically abused by the father and eventually fell to the ground and suffered a perforated ear drum. This incident occurred in 1992.
There is objective support for this incident which is contained in the medical records of the Royal Hobart Hospital.[22] I am satisfied that in 2002 the mother was hit around the head by the father in July of that year and suffered a perforated ear drum and had suffered a similar injury some time around that incident.
[22] ICL3.
The mother asserts, and I accept, that in about 1998 the father pushed her against a large glass window causing it to break.
In 2000, just after the birth of the parties’ eldest child while the mother was breast feeding the child in bed, there was an altercation between the parties over the doona and the mother says that the father punched her in the head. She left the bed with the baby and went to another room and the father came and punched her in the head twice. She called the police but did not want the father charged. The father denies this event.
I prefer the evidence of the mother and accept that she was assaulted as she asserted.
I accept that as a consequence of the father’s abusive and controlling behaviour the mother had few friends and rarely went out socially. The father limited the money available to the mother and this was a technique used by him to exercise control over her.
The mother gave evidence, which I accept, that on three occasions the father endeavoured to choke her. There was an escalation in this violence in that each event was more serious than the former. The final incident occurred about a week before the parties separated when the mother was holding the parties’ youngest child and the father squeezed her throat.
On the day of separation the father was agitated, abusive and threatened the mother by putting his hand around her throat in a choking gesture. The mother said she believed she was going to die. I accept her evidence in that regard.
On the date of separation the mother saw the father was deeply agitated. He was walking around the car port and threatened to kill himself. She eventually saw him locked in the car with a plastic bag over his head. It was this which drove the mother to contact the maternal grandmother and arrange for her family to collect her and the children.
The mother was cross-examined as to exaggeration of events and as I have said earlier there were some levels of that but generally her evidence was, in my view, reliable.
In the month or so that followed separation the father threatened to kill the mother and the children as asserted by the mother.
I do not intend to go through all of the allegations of violence in detail. The father’s action in relation to the police and the nail gun is deeply troubling. The father threatened police with a nail gun (they were not to know that it could not fire at them) and was completely out of control.
The father has threatened, terrified and intimidated the mother throughout the whole course of their relationship. Some of the abuse asserted by the mother is supported by the objective material in the evidence of her mother and brother.
It is not unusual for a victim of domestic abuse to understate what happened during the abuse and to feel blame worthy for the violence and abuse which he or she has suffered.
The father has a long history of violence towards the mother which is, at some levels, supported by the criminal records and the events in 2006.
There were criticisms of the mother as a housekeeper in that the house was always “messy” and she did not cook, wash clothes or prepare meals for the father. Interestingly the father’s witness Mr E says the mother always appeared to be a good mother.
I am satisfied that the mother is well able to care for the children and has done so since separation.
The mother gave clear evidence as to the fear she has of the father. I accept her evidence in that regard. Whilst there may be some levels of a histrionic nature to it, bearing in mind the almost twenty years of abuse she suffered at the hands of the father, it is understandable.
To require the mother to make the children available to see the father, even supervised, would impose a terrible burden upon her and would significantly impact on her ability to parent the children. The mother said she would comply with the orders but it is clear that she would struggle in doing so.
I am satisfied that the nature of the violence is coercive controlling behaviour particular to the mother and that the father poses an unacceptable risk to the children arising from his violent and uncontrolled past which continued up to the time and subsequent to the time of separation (including the threats to the mother that she and the children were not safe in the home at N).
There were serious allegations of violence and at some levels there were admissions of violence. Accordingly the presumption under s 61DA did not apply.
Having regard to all of the findings and facts in these reasons I am satisfied that it is not in the best interests of the children for there to be equal shared parental responsibility.
The mother has been the primary carer of the children and despite the criticisms made of her in these reasons, it is appropriate that she continue in that role as she has done for all of their lives. Accordingly, I will make an order that the mother have sole parental responsibility for the children.
I am satisfied having regard to all of the facts, findings and factors in these proceedings that the children should continue to live with the mother. There was no argument or debate in respect of that order. The issue was in respect of the children spending time and communicating with the father.
Section 60CC(2) Factors
(a)the benefit to the child of having a meaningful relationship with both of the child's parents; and
In relation to this aspect I accept that the children are afraid of the father. Whilst the youngest child Z would have limited memory of the events in the household she is part of a family and I accept the mother’s evidence that she is fearful of the father.
F has expressed strong views. Having regard to all of the findings and evidence I am not satisfied that there is any benefit to the children in having a relationship with the father let alone a meaningful relationship. The children have needed counselling since separation and I accept the mother’s evidence that they have flourished in a violent and abuse free environment since separation.
I am not satisfied there is a benefit to these children having a continuing relationship with the father.
The father said that he had a close and loving relationship with the children leading up to separation. In terms of that aspect of his submissions I am not satisfied that he had a close and loving relationship with the children. I have no doubt that the father loves the children however, his abusive and violent behaviour has had a significant impact on them, in particular on F.
The father left most of the parenting to the mother and to other members of the parties’ family including the children’s paternal grandparents.
There is no doubt the father has not had a meaningful relationship with the children since separation, three years ago.
The question is whether that relationship can be restored with gradual but increasing re-introduction of him to the children and if that is a benefit to the children how it should occur.
The evidence of the single expert is that this would not occur without the mother’s strong support. Having regard to the violence which the mother has endured over many years, her evidence and the evidence of the single expert I am not confident that the mother would support a re-introduction of time between the children and the father.
There is no issue that the children have a close and loving relationship with their mother and that she has been the main provider for them. I am satisfied that the children’s view of the father has been influenced by the mother’s attitude.
The single expert is of the view that the relationship between the father and the children was positive prior to separation.[23] Whilst I am satisfied there were some good parts to that relationship I am equally satisfied that the violence and impact of the violence had a profound effect on the children. The children observed the father’s abuse both verbally and physically to the mother.
[23] Paragraph 126 of the single experts report dated 19 May 2009.
What troubles me in terms of the benefit of a meaningful relationship is the question of violence. The expert observes that:-[24]
…. Based on the information available to me at this time and as a result of my assessment of the situation, I cannot conclude that [the father] has a mental health problem that would interfere in his capacity to act as a parent. He appears to be a well functioning individual with no significant mental health issues.
[24] Ibid at paragraph 106.
However, whilst the father may have no significant mental health issues he was extraordinarily violent. His violence to the mother, his violence to the police and his violence generally was witnessed by the children. On at least one occasion he was violent to F. Even if some of the mother’s evidence is exaggerated or histrionic there is ample evidence of this violence continuing over decades.
The children have been exposed to this violence and the father has not taken any significant steps to acknowledge or deal with that violence. It would be pointless sending him on an anger management course or other similar course as the first step in any such course is to acknowledge the underlying problem. In addition his violence is control based not anger based.
The children no doubt loved their father and accepted him in their household. However the underlying questions which I have referred to above means I have serious doubts as to whether there is a benefit in a meaningful relationship being restored between the children and the father and I have serious doubts as to whether the mother would genuinely support such an approach if it was ordered.
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
A statement of the relevant law in relation to family violence is set out in the decision of APC & RM [2004] FMCAfam 56 where Walters FM said:-
123.Insofar as domestic or family violence is concerned, I refer to the decision of the England and Wales Court of Appeal in Re L, V, M & H (Children) (2000) EWCA Civ 194; 2002 FamLR (UK) 334. In that case, Waller LJ emphasised “the key points” in the judgments of the other two members of the Court as follows:
1.The effect of children being exposed to domestic violence of one parent as against the other may up until now have been underestimated by Judges, and advisors alike;
2.It follows that alleged domestic violence is a matter which ought to be investigated, and on which findings of fact should be made because if it is established, its effect on children exposed to it, and the risk to the residential carer are highly relevant factors in considering orders for contact and their form;
3.In assessing the relevance of past domestic violence, it is likely to be highly material whether the perpetrator has shown an ability to recognise the wrong he (or less commonly she) has done, and the steps taken to correct the deficiency in the perpetrator’s character;
4.There should, however, be no presumption against contact simply because domestic violence is alleged or proved; domestic violence is not to be elevated to some special category; it is one highly material factor amongst many, which (factor) may offset the assumption in favour of contact when the difficult balancing exercise is carried out by the Judge applying the welfare principle and the welfare check list.
124. Insofar as Waller LJ’s reference to the “welfare principle and the welfare checklist” is concerned, it is clear that the Australian counterparts of those considerations comprise the principle that the best interests of the children are to be the paramount consideration in a case involving parenting issues, and the factors set out in section 68F(2) of the Family Law Act.
125.In Re L, Butler-Sloss P said that:
It may not necessarily be widely appreciated that violence to a partner involves a significant failure in parenting – failure to protect the child’s carer and failure to protect the child emotionally.
126.Her Honour and the remaining member of the Court of Appeal (Thorpe LJ) also cited with approval the following passage from the Judgment of Wall J in Re M (Contact: Violent Parent) (1999) 2 FLR (UK) 321:
Often in these cases where domestic violence has been found, too little weight in my judgment is given to the need for the father to change. It is often said that, notwithstanding the violence, the mother must nonetheless bring up the children with full knowledge in a positive image of their natural father and arrange for the children to be available for contact. To often it seems to me the courts neglect the other side of that equation, which is that a father, like this father, must demonstrate that he is a fit person to exercise contact; that he is not going to destabilise the family, that he is not going to upset the children and harm them emotionally.
127.As Butler-Sloss P summarised:
Assertions (to the effect that a parent who has behaved inappropriately has now changed), without evidence to back it up, may well not be sufficient.
…
129.The decision in Re L was cited with approval by Mushin J in K & K (2003) FamCA 1358. His Honour commented that (Re L):
…makes it clear that the balance between the need of children with an apparently good relationship with their contact parent to have on going contact, and the effects of family violence on a family, is a very difficult balancing act for a Judge.
130.His Honour was of the view, however, that:
I need to say to (the father) that the ways in which he has acted (cause him to be) a completely inappropriate role model for his children … I need to demonstrate to (the father) that he needs to get professional assistance.
131.In the present case, unlike the matter before Waller LJ, the father has not acknowledged that he has acted inappropriately. He has done nothing to demonstrate that he understands the nature of his behaviour, let alone deal with it. There is an unacceptable risk that his will continue into the future. The children and their mother need to be protected from such violence.
The father, and indeed his parents, have not acknowledged or have minimised the father’s violent and controlling conduct. As such the children are at unacceptable risk of physical and emotional harm by reason of the father’s violent and controlling behaviour.
I am satisfied that the father’s behaviour is such that it will place the children at risk of family violence whether directed to themselves or to the mother and that the father has limited insight into the impact of that violence, or has complete insight but uses it for his own purposes. The father shows no sign of gaining insight into his violence.
The paternal grandparents are protective of their son and keen to see their grandchildren. They were initially parties in these proceedings. Whilst it does not completely impeach their evidence it causes me concerns as to the quality of that evidence.
Section 60B of the Act imposes upon the Court an object to:-
Protect children from physical or psychological harm from being subjected to, exposed to, abuse, neglect or family violence
The Act goes on to provide that:-
The presumption of equal shared parental responsibility does not apply where there are reasonable grounds to believe that a child (or a person who lives with the parent of a child) has engaged in abuse of the family or family violence.
Clearly s 60CC2(b) sets out the need to protect the child from physical or psychological harm and from being subjected to, or exposed to, abuse neglect or family violence. This is one of the primary factors which the Court must take into account when deciding what orders to make in the child’s bests interests.
In that respect I have had regard to The Best Practice Principals published by the Family Court which observe:-[25]
The Best Practice Principals have been developed in recognition and understanding of the devastating effects of family violence and abuse on victims; in furtherance of the commitment of the Family Court protecting children and parents from harm resulting from family violence and abuse; in furtherance of the accepted recommendations contained in the Family Court’s family violence strategy: in recognition of the principals driving the Magellan Case Management System for the effective and efficient disposition of cases involving allegations of sexual abuse or serious physical abuse of the children, and in recognition of a place accorded to the issue of family violence in the changes to Part VII of the Family Law Act 1975.
[25] Preamble.
As I said in Maluka v Maluka [2009] FamCA 647 at paragraph 443:-
The principles suggest to Judicial Officers that they should consider the extent of which the allegations of family violence are consistent with the principle features of “Controlling Family Violence” and setting out the matters which may be considered at final hearing including but not limited to the extent that the violent party is alleged to have:-
· used coercion and threats;
· used intimidation;
· used emotional abuse;
· used tactics to isolate the other party;
· minimised and/or denied the abuse;
· blamed the other party for the violent behaviour;
· used the children as tools; and
· denied the other party access to fiscal resources.
The father engaged in an insidious and serious pattern of coercive and controlling behaviour throughout the marriage and particularly after the children were born. The mother complains that the father would degrade and belittle her and call her names. This was, to a limited degree, conceded by the father. Having regard to my views of his evidence I am satisfied that he used abusive and demeaning names to the mother throughout their relationship. The father was dismissive of the mother’s care of the home. He called her “domestically lazy”. The mother had the care of three children, limited financial resources and limited or no support from the father.
The single expert said that the incidents described by the parties were “serious matters”. He then went on to say that there were possibilities that it did not occur and were fabrications and if they did occur they have been misrepresented and exaggerated by the mother.
The incidents have generally been denied by the father and if true, the single experts view was that:-[26]
[the father] should be seen to pose a danger to [the mother] and the children and thus any contact between him and the children should be supervised.
[26] Ibid at paragraph 121.
I accept that the acts of violence were substantially true. The question is then whether the time should be supervised and if so where does it lead from there.
The father has shown a predisposition to acting out in extraordinarily violent ways. This continued through the relationship and occurred the year before the breakup with the “nail gun” incident and then in the circumstances of the relationship breakup including the choking of the mother and the damage to her motor vehicle.
There is some suggestion that it continued after separation with regard to the threats to the mother and the personal property that went missing. I accept the evidence of the mother in terms of the threats.
The single expert was not convinced the father plans to harm the children and he said there was no evidence that the father had intended to do this in the past. The father conceded to the single expert that he had, on one occasion, said he would put the family in a “box in the bush”.[27]
[27] Ibid at paragraph 124.
I am confident that the father does not plan his acts of violence. The violence is triggered by an explosive temper and a loss of control. I am satisfied that that problem continues and will continue particularly in relation to any interaction he has with the mother and is likely to continue as the children become older and more challenging of his authority.
Section 60CC(3) Factors
(a)any views 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 to the child’s views;
The children have a close relationship with the mother. They have no relationship with the father. They have no present relationship with the paternal grandparents.
F has expressed negative views in relation to seeing his father and having regard to the history and the consistency of those views I give them some weight.
In doing so I am conscious that the mother has influenced those views, either explicitly or implicitly.
(b)the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
The children had a close relationship with their paternal grandparents up to the time of separation. I am satisfied that the paternal grandparents had a good and close relationship with the children as at the time of separation, particularly with F.
As I have said earlier the mother is the primary carer of the children. The father has no present relationship with the children. The father had a relationship with the children prior to separation, albeit a poor one.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The mother is unlikely to encourage a relationship between the children and the father having regard to the findings of facts.
The single expert gave evidence that without the mother’s active support it is unlikely that contact with the father, even supervised, would occur or would be for the benefit of the children. I accept that evidence and I accept that it is unlikely that the mother will support a relationship between the children and the father.
I accept the submissions, on behalf of the father, that the mother is unable to foster a relationship between the children and the father. I also accept that that will be an impediment to the restoration of a relationship between the children and the father.
The father claims that he will encourage the continuation of the children’s relationship with the mother. I do not accept his evidence in that regard. The father has been brutal and violent throughout the marriage and has shown little sensitivity to the mother and to the children. The father lacks insight into his violent character.
(d)the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
There was an assertion that the father has been dilatory in the process of his case. I do not accept that this is the position. Unfortunately the father was initially represented by a solicitor who was not as engaged in the proceedings as he ought to have been and that has in many ways, delayed the prosecution of these proceedings. In any event that is not a significant feature in these proceedings.
Whilst the father’s absence from the children’s life will have some impact the children appear to be flourishing in their present environment. If I put in place orders that the father spend supervised time with the children it will have a significant impact on the mother.
The children would need to travel from N in northern Tasmania to Launceston for supervised time and this would initially be once a month or once a fortnight, if I accept the father’s approach. On the submission of the father this would be a transitional step. I am concerned that the mother will not cope with those arrangements and will have difficulties complying with them.
(e)the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
If the children were to see the father on a supervised basis it would seriously impact upon the children and the mother’s ability to parent the children.
In addition, it is likely that F would eventually reject his father and continue his own views as to the father.
(f)the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is an argument as to the mother’s care of the children. The father asserts that the mother was a poor and dirty house keeper and a poor provider of food. He was aware of these alleged short comings through the many years the parties lived together prior to having the children It seems that the father did not regard this as a significant factor prior to separation.
Whilst I do not accept the mother would be a perfect home maker and parent I am satisfied that she is able to properly care for the children. She may need help from her family from time to time.
I do not accept that the father is able to meet the children’s emotional physical and intellectual needs. The father left the parenting of the children to the mother together with the assistance of his parents and the maternal grandmother.
Having regard to all of the findings and the concerns I have raised in respect of the father I am not satisfied that he has the capacity to provide for the children’s needs.
(g)the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
This is not a relevant consideration in these proceedings.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This is not a relevant consideration in these proceedings.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The father has not taken his parenting obligations at all seriously. The evidence is that he focuses most of the time upon his own needs (as exhibited through his use of marijuana) and as exhibited through his violence and abuse of the mother.
It has been of assistance to see the improvement of the children with the assistance of counsellors and at school since separation.
(j)any family violence involving the child or a member of the child’s family; and
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
Violence is a significant factor in this case. The father is a violent person whom the mother obtained a Family Violence Order against.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
I have reached the conclusion that the best interests of the children are most likely to be served by an order that the father spend no time with the children and leaving it open for the children to resume their relationship with their father, should they wish to do so after they attain the age of 18 years and on their own terms.
(m)any other fact or circumstance that the court thinks is relevant.
I have considered all of the relevant evidence before me.
Section 60CC(4) of the Act
Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
I have had regard to all of the events that have occurred since separation.
In coming to the conclusions in these proceedings I have reflected on all of the evidence to consider the extent to which the children’s parents have fulfilled or have failed to fulfil their responsibilities as parents as set out in s 60CC(4). In having regard to all of the material before me and all of the findings of fact I determine that in my view the best interest of the children are served by the orders set out at the commencement of these reasons.
Nothing new arises out of the considerations of the matters in s 60CC(4) and (4)(A) which have not already been discussed in detail in these reasons. I have dealt with almost all of those issues in these reasons so far.
DISCUSSION
The parties commenced a relationship when they were very young. For many years that relationship was coloured by abusive language and mutual threats to each other. There are a number of earlier issues which I need to address.
I accept the evidence of the mother that in her mid to late teens she hit the father in the nose but in less dramatic circumstances than asserted by the father.
Similarly the mother and father had an altercation when the mother was about seventeen in which the father was cut with a glass. I have no doubt that the mother was aggressive in that incident.
The father asserted that the mother slashed the dashboard with a knife. In her affidavit filed 3 August 2010 the mother gives a somewhat innocuous account of that event. I accept that explanation. Similarly I accept the explanation of the mother with regard to the incident where the maternal grandmother’s hand was cut very early in the parties’ relationship.
This needs to be seen in the context of an adolescent grieving for the loss of her father and being in a relationship which was not approved of by either her mother or her partner’s friends and family.
Having regard to all of the facts and circumstances in this matter I am not satisfied that it is in the children’s best interests to have an ongoing or developing relationship with their father.
I have adopted the submission that the Independent Children’s Lawyer seeks in terms of leaving the “light on the porch” so that the father has some knowledge of the children and, more importantly, the children (if they wish) have some knowledge of the father.
The children are likely to be inquisitive about their father and as such I am satisfied that there should be a method by which the children can receive letters and cards (to a limited extent) to enable them to know that their father exists and has an interest in them. Should a child or children ask for information or express interest, perhaps in their teens and after they attain majority, then that will be a matter for them. They will know where their father is and his interest in their lives. I have structured orders to that effect and required the mother to keeps such letters and cards and make them available. The mother’s evidence, which I accept, is that if the children (in their teens) wish to see the father she would facilitate that process. This order and the order about time and communication by written agreement gives method and effect to that evidence.
In these reasons I have referred to various parts of affidavits and reports. That is not to be taken that I have only regarded those aspects. I have considered all of the material in coming to this determination.
I have rejected the submissions of the Independent Children’s Lawyer about restoring supervised time having regard to the findings of fact I have made in these reasons.
I have had regard to the violence and the effects of that violence on the children and allowing the children to have tranquillity and stability which has been a feature of their lives since separation.
The risk if the father’s relationship with the children is restored is that he will destabilise the family and cause the children further emotional harm.
One of the orders I will put in place is an order enabling the mother to obtain passports for the children. In this present age overseas travel, particularly for school children in their teens, is quite common. The purpose of including the power for the mother to apply for passports for the children will enable her to do so without the necessity of returning to court. The mother is permitted to remove the children from Australia for the purpose of a holiday or for education provided she gives the father written notice (at his address and that of his parents) of her intention to do so.
The effect of that order is to enable issue of passports for the children to travel, however, ensuring that the father is apprised of such travel. It is not intended to permit the mother to relocate the children outside of the Commonwealth of Australia.
The orders otherwise provide that the father is restrained from approaching the children or communicating with them. The children and the mother have lived in fear of the father and for the sake of their peace of minds, such an order is warranted.
During the course of the hearing I raised with counsel the question of the children’s contact with the paternal side of their family via the paternal grandparents. The paternal grandparents had initially been parties to these proceedings, however, they stood back to enable them to be argued between the children’s parents.
The paternal grandparents have some antipathy towards the mother and blame much of their son’s difficulties on her. They think of her poorly in terms of her role as a house keeper and as a parent. It is a difficult issue as they were significant in the children’s lives but their involvement will impact on the mother.
The mother relied upon the grandparents to assist her with the children prior to separation. I am satisfied that, at that time, the paternal grandparents had a good relationship with at least the eldest two children, particularly F. I am satisfied that the paternal grandparents were aware of their son’s predisposition towards violence and ignored or suppressed it.
However, in the medium to long term it would of benefit these children to know the paternal side of their family and have some interaction with them. This should not be seen as a back door method of the children being exposed to the father but as a way the children could, from time to time, spend some short time and or communicate with their paternal grandparents.
As that aspect of the case was not argued before me I do not propose to make any compulsive time or communication orders. However, I will direct that the mother and the paternal grandparents both contact a Family Relationships Centre, within six months from the date of these orders, to see whether some arrangements can be made or should be put in place.
The Independent Children’s Lawyer submitted that the child F should spend some time with the father on a supervised basis. In the light of these findings I do not agree.
As to the violence the Independent Children’s Lawyer submitted that I should be careful of the father’s evidence and that he grossly understated the violence. I accept that the father has significantly understated the violence.
The father was critical of the mother in terms of her performance as a housewife and as a parent. The evidence of Mr E, whilst problematic and partisan was indicative that the father was content to leave the parenting of the children to the mother. I am satisfied that the mother, albeit at times with difficulties, has been the primary carer for the children for all of their lives. The father has wasted significant resources of the parties on his cannabis addiction and gave his needs in that regard greater priority than the needs of the children.
I accept the submission of the Independent Children’s Lawyer that the parties’ respective families were polarised. This has a historic basis bearing in mind the age of the parties when they commenced their relationship and the unhappiness of the respective families in terms of their son or daughter being in a relationship with the other party.
In my view the father had limited or no insight into the significant increase in the mother’s duties in the care of the three children and was not as helpful as he asserted in that regard.
All counsel made submissions in respect of violence. The incident with the axe in the late 1980s when the mother’s car was attacked was an extraordinarily violent action by the father. I do not accept his evidence that he simply kicked the car, I generally accept the evidence of the mother that the car, with her in it, was attacked with an axe or blockbuster in a terrifying and intimidating way and that it created in the mother a genuine, and as history would show, (and well founded) fear of the father.
I accept that the mother is somewhat histrionic in terms of her memory and has, at some levels, exaggerated the violence. However, there is a history of constant and continual underlying physical, emotional and economic violence which underpinned the relationship. This violence includes but is not limited to economic violence in refusing to provide the mother with sufficient money to meet the needs of her and the children.
In respect of the incident with regard to F when he was removed from the car by the father, I am satisfied that it was a violent incident where the father lost his temper and threw F to the ground.
There was criticism of the evidence of the mother, maternal grandmother and the children’s paternal uncle. There is no doubt that there were differences in their evidence but the underlying evidence of a violent attack on this small child was consistent. I accept that it happened and that the child was thrown to the ground by the father. I reject the father’s evidence that he simply removed the child from the car. That is an example of his minimisation or denial of his violent behaviour.
The nail gun incident with the police was another example of the father’s extreme and uncontrolled violence. The events surrounding separation which I have referred to elsewhere is also an example of the father’s significant and uncontrolled violence.
I accept that the father has made continuing threats to the mother in the months following separation including threats to kill her and the children.
The father says that he left the possessions of the mother in the shed and does not know what happened to those possessions and did not leave the terrible note when the mother went to collect those possessions. I do not accept his evidence. I do not know what happened to those possessions but I am satisfied that the father did not make them available to the mother as he asserted. It is controlling and vindictive behaviour to deprive a partner and children of their personal possessions.
The father has exhibited a pattern of violence and controlling coercion over decades. I accept that the violence continued through the 1990s and do not adopt the submission of the Independent Children’s Lawyer that I should treat this as a “quiet time”. The violence continued throughout the relationship.
It was submitted that I should have some doubt about that violence because the mother “did not leave”. Whether the mother remained in or left the relationship is not indicative as to whether the violence occurred or did not occur.
The Independent Children’s Lawyer submitted that the children would benefit from a relationship with their father. I have reservations in that regard. Firstly it is unlikely that a meaningful relationship will take place. The mother has well based fears of the father and has passed on those fears to the children. It is not clear that she has done that consciously or unconsciously. I am satisfied that it is unlikely that the mother will overcome her fear of the father and her distrust of him bearing in mind the decades of abuse she was forced to endure.
As such any time the children spend with the father would be at a contact centre, the closest being Launceston. This would mean the children would see the father once a fortnight at best for a few hours, and more likely once a month. I do not believe that this would work, and it is not in the children’s best interest. The negatives are the impact on the mother, and consequently the children and the distance of travel.
Counsel for the father submits that any orders made in that respect would need to be interim orders, I agree and I ask rhetorically where the matter would go from there. It would seemingly develop into more time between the father and the children. On the evidence before me, the father could not seriously consider unsupervised time, and even with supervision the fears of the children would remain.
What is the benefit of that for the children? Having regard to the significant adverse effect the father had on the children during the course of the time he spent with them I have doubts as to whether there is any significant benefit for the children. It would rekindle the fears which, in the case of F to a large extent and J to a lesser extent, has taken years of counselling to manage. The children are coping well in the absence of the father. I am not satisfied that there is any benefit in respect of a meaningful relationship between the children and the father. In that respect I have had regard to what I said in Cave and Cave (2007) FamCA 860:-
101.There is no statutory guidance as to what factors I should consider in determining what constitutes a “meaningful” relationship between a child and a parent. Some of the considerations I regard as relevant and which I take into account are:
a)The nature of the relationship which has existed in the past between the parent and the children;
b)The extent to which the parent in question has sought to be involved in the children’s lives;
c)The attitude of the parent in question to the children, their primary carer and other significant persons in their lives;
d)The general social behaviour of and the role model which would be provided for the children by the parent in question;
e)The personal disposition of the parent in question, that is, is he or she able to engage in a meaningful relationship with the children and for the benefit of the children;
f)What can be discerned from the evidence about the children’s view of the relationship, or if they are too young or unable to express a view, what is the most likely view they may hold having regard to their ages and level of maturity.
g)The other considerations under ss 60CC (2) (b), (3), (4) and (4A) of the Act, insofar as they may have an impact on the relationship between the children and the parent.
h)If orders are not made as sought by a parent, what would be missing from the lives of the children at present and into the future.
The mother struggled with the abuse throughout the marriage, she expressed that she initially at least loved the father and believed that it was her fault that the violence occurred. The mother hoped that she could change the violence.
I have had regard to the evidence of Ms L and in particular in respect of the views of the children. There is evidence that the children are doing very well at school.
The mother was criticised for constantly contacting the father at work. I am satisfied that she had limited financial circumstances including no petrol for the car and limited housekeeping money. These are more examples of the father’s pattern of controlling behaviour rather than the mother being over-demanding.
It is of value to note that the father conceded that he made a threat to kill the mother but he says he did not mean it. The father admitted that he did attack the mother’s car with something like an axe but now says he kicked the car. The father admits pushing the mother but says that it was in defence of the child F.[28]
[28] Ibid at paragraph 101.
Having regard to the evidence of the single expert, I have significant concerns as I have said earlier, about the mother’s ability to engage with the father in terms of encouraging a relationship between the father and the children.
The single expert does not discount a resumption of time between the children and the father even if the serious acts of violence asserted by the mother are established. His evidence was, and I accept, in those circumstances any such presumption of contact would need the mother’s support and would need to be done sensitively over a period of time. That is not likely to happen.
With any time put in place the mother and the children would feel threatened and would likely be traumatised.
There is an unacceptable risk to the children’s physical and emotional wellbeing in spending time and/or communicating with the father. As such I will make only the limited orders as discussed earlier. The children and the mother are entitled to be free of the violence and the fear that the father created when he was part of their household.
I certify that the preceding three hundred and eight (308) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Benjamin
Associate:
Date: 25 November 2010
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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Injunction
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Procedural Fairness
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