Weekes and Pitcher (No.2)

FEDERAL CIRCUIT COURT OF AUSTRALIA

WEEKES & PITCHER (No.2)

[2016] FCCA 2486

Catchwords:
FAMILY LAW – Parenting – child aged 4 – where the father committed serious acts of family violence in the presence of the child at or about the time of separation – where the child has been spending two nights a week with the father for almost two years and has a good relationship with him and where the father is able to provide satisfactory day to day care for the child - where there has been no further family violence – where the mother now seeks a reduction in the father’s time with the child including removal of overnight time – where the father asserts that this cannot be justified as the court cannot find that the child is at unacceptable risk of harm in his care – implications for the father’s time of the fact that he makes very limited admissions about the violence, has not done a perpetrators course and denies to the child that he hurt the mother – whether the child’s surname should be changed to a hyphenated surname incorporating the name of both parents.

Legislation:

Family Law Act 1975 (Cth), ss.60CC, 61DA

Cases cited:

Flanagan & Handcock (2000) FLC 93-074

Ryan & Burnett [2008] FamCAFC 72

Applicant:

MR WEEKES

Respondent:

MS PITCHER

File Number:

PAC 5871 of 2014

Judgment of:

Judge Terry

Hearing date:

7 and 8 July 2016

Date of Last Submission:

8 July 2016

Delivered at:

Newcastle

Delivered on:

5 October 2016

REPRESENTATION

Counsel for the Applicant:

Ms Mahoney

Solicitors for the Applicant:

Genlaw Pty Ltd

Counsel for the Respondent:

Mr Gorton

Solicitors for the Respondent:

Legal Aid NSW Gosford

ORDERS

All previous orders are discharged.
For all purposes the child X WEEKES born (omitted) 2012 shall be known henceforth as X PITCHER-WEEKES.
The mother is authorised to apply to the Registrar of Births, Deaths and Marriages for the State of New South Wales to change the name of the child X WEEKES born (omitted) 2012 to X PITCHER-WEEKES .
The Registrar of Births, Deaths and Marriages for the State of New South Wales upon the Application of the mother referred to in Order (3) above is to do all acts and things to register the change of name of X WEEKES born (omitted) 2012 to X PITCHER-WEEKES pursuant to Section 28 of the Births Deaths and Marriages Registration Act (1995) NSW notwithstanding that the consent of the father has not been obtained.
The child shall live with the mother.
Subject to Orders (7) and (8) the mother shall have sole parental responsibility for the child.
Unless the father consents in writing or the court otherwise orders the mother is restrained from further changing the child’s surname or from relocating with the child to a place which makes it substantially more difficult for the child to spend time with the father.
If a decision is required about a major long term issue in respect of the child the mother shall except in the event of an emergency inform the father in writing of matters about which a decision required and about her proposal and the reasons for her proposal and shall give the father fourteen days to put forward his proposal and the reasons for his proposal. The mother shall take the father’s proposal into account in coming to her decision and shall notify the father in writing within seven days of the decision she has made.
Until the child commences school in 2018 she shall spend time with the father as follows:
(a)Each alternate weekend commencing on 15 October 2016 from 9.00am on Saturday until 5.00pm on Sunday.
(b)Each alternate Wednesday commencing on 19 October 2016 from 3.00pm to 6.00pm.
(c)At such additional or alternate times as may be agreed between the parties.
Upon the child commencing school in 2018 she shall spend time with the father as follows:
(a)Each alternate week during school terms from 5.00pm on Friday until 5.00pm on Sunday.
(b)On one afternoon each alternate week during school terms from 3.00pm until 7.00pm and failing agreement on Wednesday.
(c)For one half of the school holidays which fall after Terms 1, 2 and 3 and in the absence of agreement:
(i)for the first half of the school holidays in 2018 and each alternate year thereafter from the conclusion of school or 3.00pm on the last day of Term until 12.00 noon on the following Saturday;
(ii)for the second half of the school holidays in 2019 and each alternate year thereafter from 12.00 noon on second Saturday of the holidays until 5.00pm on the last Sunday of the holidays;
(d)Notwithstanding any other Order during the Christmas school holidays:
(i)from December 2019:
A.     for 7 nights commencing at 9.00am on 2 January until 5.00pm on 9 January; and
B.     for 7 nights commencing at 9.00am on 16 January until 5.00pm on 23 January.
(ii)from December 2020 and each Christmas school holiday period thereafter:
A.     for 14 nights commencing at 9.00am on 2 January until 5.00pm on 16 January or as otherwise agreed between the parties.
(e)At such additional or alternate times as may be agreed between the parties.
Notwithstanding any other order the child shall spend the Mother’s Day weekend with the mother and the Father’s Day weekend with the father and if the child is due to spend time with the other parent on the weekend in question the weekends shall be swapped so that the child spends the Mother’s Day weekend or the Father’s Day weekend as the case may be with mother or father and the following weekend with the other parent.
Notwithstanding any other order:
(a)In each even numbered year the child shall spend time with her mother from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and with her father from 2.00pm on Christmas Day until 5.00pm on Boxing Day; and
(b)In each odd numbered year the child shall spend time with her father from 2.00pm on Christmas Eve until 2.00pm on Christmas Day; and with her mother from 2.00pm on Christmas Day until 5.00pm on Boxing Day.
Notwithstanding any other order the child shall spend time on the child’s birthday with each parent as follows:
(a)With the parent with whom she is not spending time with pursuant to these Orders, for 3 hours at times agreed and failing agreement from 3.00pm until 6.00pm;
(b)At all other times on the child’s birthday the time is to be spent with the parent with whom the child would usually be spending time with pursuant to these Orders.
Unless occurring at the child’s school all changeovers shall be implemented by the mother delivering the child to father’s residence at the commencement of their time and the father returning the child to the maternal grandmother’s residence at the conclusion of their time.
The parents shall communicate about the child and her arrangements through a Communication Book which is passed between the parents at changeovers but is only to be used as a neutral message book about non-urgent issues about the child’s arrangements, about any sicknesses the child may have suffered, about any medication or prescription medication that she is required to take, or about any upcoming events related to the child to which both parents are invited to attend, and about any other subject which relates to the child’s wellbeing and arrangements.
The parents shall communicate with one another by way of SMS text message in relation to any issues about the child which require urgent notification including any accident or other emergency, and including in the event that one party will be or has been unavoidably delayed for changeover.
The parties shall keep the other informed of their current mobile telephone number and advise one another of any change to that number within 24 hours.
The father shall keep the mother informed of his residential address and advise her of any change to that address within 8 hours of the child coming into his care in accordance with these Orders or within 48 hours when the child is not in his care, whichever comes first.
Each party shall ensure that the other party is kept informed of:
(a)Any serious medical issues or illnesses suffered by the child;
(b)Any medication that has been prescribed for the child which either party would be required to administer to the child whilst she is in his or her care; and
(c)Any social, school or religious functions which the child is to attend.
The parties shall both be entitled to attend extra-curricular events involving the child, whether those events fall on a week day or a weekend including:
(a)Sporting activities and fixtures;
(b)Extra-curricular activities that allow for parental attendance, including but not limited to cultural and religious activities;
(c)School functions and events that allow for parental attendance including but not limited to concerts, assemblies, sports days, canteen duties and social functions but not including parent/teacher interviews; and
(d)The parent who would usually have the child on their care on the day of such activities will be responsible for her day to day care at such event and for the child’s transportation to and from that event.
Both parents shall be entitled to obtain from the child’s school copies of newsletters, reports, order forms for school photographs and other information normally provided to parents and both parents shall be entitled to attend events at the child’s school normally attended by parents.

IT IS NOTED that publication of this judgment under the pseudonym Weekes & Pitcher is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

PAC 5871 of 2014

MR WEEKES

Applicant

And

MS PITCHER

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Weekes and Ms Pitcher cannot agree about
i)the time their daughter X aged 4 should spend with her father;
ii)the allocation of parental responsibility; and
iii)whether X’s surname should be changed.
X currently spends two days and two nights each week with the father pursuant to interim orders made on 15 December 2014. The father seeks to at least maintain this amount of time and hopefully to increase it. The mother seeks to significantly reduce it and to remove overnight time for the next eighteen months.
X has a secure attachment to both her parents and there was nothing to suggest that she was not coping with the current arrangement.[1]However the mother alleged that the father had committed serious acts of family violence at or about the time of separation to which X was exposed and had made minimal admissions about it and that as a result his time with X should be very limited. Her counsel also submitted that the current arrangements were not age appropriate.
[1] Family Report 193, 195, 196, 199, 200, 203, 213, 239
During cross-examination the father conceded that he committed some acts of family violence but his counsel submitted that on the state of the evidence the court could not find that there was any risk of him exposing X to family violence in the future and that there was no justification for cutting back X’s time with him when there was clear evidence that she was coping with the current time.
The orders the father sought in detail were that X live with the mother and spend time with him each alternate weekend from 5.00pm on Thursday until 6.00pm on Sunday and each alternate week from 3.00pm on Thursday until 3.00pm on Friday until January 2017. He proposed that time on alternate weekends then be extended so that it ended at 3.00pm on Monday and that when X commenced school in 2018 she spend five nights per fortnight with him in one block being from 3.00pm each alternate Thursday to 3.00pm on the following Tuesday and also half of the school holidays with him.
The mother proposed that until X commenced school in 2018 she should spend time with the father each alternate Saturday from 9.00am to 5.00pm and each alternate Wednesday from 3.00pm to 6.00pm.
She proposed that once X commenced school she spend time with the father from 9.00am on Saturday until 5.00pm on Sunday each alternate weekend and from 3.00pm to 7.00pm each alternate Wednesday.
She proposed that once X turned 7 in 2019 she spend time with the father from the conclusion of school on Friday until 5.00pm on Sunday each alternate weekend, from 3.00pm until 7.00pm each alternate Wednesday and for half of the school holidays.
As to the other issues in dispute:
·The father proposed equal shared parental responsibility and the mother sought an order for sole parental responsibility.
·The mother sought an order that the child’s surname be changed from Weekes to Pitcher-Weekes to signal to others the child’s connection with the mother and older sister Y who is known as Pitcher. The father said that X’s surname should not be changed from the name agreed when she was born.

The evidence

The mother relied on her amended response filed on 27 June 2016, her affidavits filed on 23 June 2016 and 7 July 2016 and the affidavits of her partner Mr S and her mother Mrs Pitcher both filed on 23 June 2016.
The father relied on his affidavit filed on 29 June 2016 and the affidavit of his grandmother Mrs Weekes filed on 30 June 2016.
A Family Report was prepared by Ms L, a Regulation 7 Family Consultant and was released to the parties on 9 November 2015.
All of the witnesses were cross-examined.

Background

The mother is 26 and the father is 27. They met in either March 2008 according to the mother or 2009 according to the father and commenced cohabitation in December 2009. They have one child, X, born on (omitted) 2012.
The mother has an older daughter Y who was born on (omitted) 2009. Y lived with the parties throughout their relationship.
It was common ground that the father worked fulltime until June 2014 and that the mother was the children’s primary carer until that time.
In June 2014 the mother began working full time and the father became the stay at home parent. It is unclear why this occurred.
There was a dispute about the date of separation, with the father saying that it occurred on 23 July 2014 and the mother that it occurred on 8 August 2014.
If the parties did separate in some form on 23 July 2014 it was a separation under one roof because they were both in the house with the children on the night of 29 July 2014. It was not in dispute that on that night there was a violent incident which revolved around the mother trying to leave the home with X (and Y) and the father resisting her doing so and eventually decamping with X.
The father returned home with X the next day and the mother also returned after spending the night at the maternal grandparents’ home. The mother said that she thereafter slept on the lounge but did not consider the relationship was over until about 8 August when the father ordered her out of the house. The mother was the more reliable witness especially as to dates and I accept her evidence although nothing really turns on which date is designated the date of final separation.
There was no dispute that X remained living with the father after separation whenever it occurred. The father implied in conversation with the family report writer that the mother chose to leave X with him and take only Y. The mother said that this was not the case and that the father would not let her take X. She said that the only arrangement he was prepared to consider was equal time and she would not agree to that.
Based on the evidence as a whole I accept the mother’s version of events and do not accept that the mother was ever happy to leave X with the father.
The mother kept going back to the home throughout August to see X and she alleged that on 16 August 2014 the father seriously assaulted her in the morning and sexually assaulted (raped) her in the evening. She told Mr S and the maternal grandmother about the assaults but despite their urging did not immediately report them to the police.
On 1 September 2014 the mother did make disclosures to the police but that was only because the maternal grandmother told the police who then questioned the mother. The following day the police applied for and obtained an interim Apprehended Domestic Violence Order (ADVO) against the father for the mother’s protection and the father was interviewed at length by police about the allegations.
After the father was interviewed by the police he moved out of the home and moved in with his grandmother and between 2 September 2014 and 24 September 2014 he refused to let the mother see X.
On 24 September 2014 the parties attended mediation and they agreed that X would spend two separate blocks of time with the mother between 24 September 2014 and 10 October 2014 and this occurred.
In late September the police informed the mother that they did not intend to charge the father.
On 10 October 2014 the parties attended mediation again but they did not reach any agreement. The father thereafter refused to let X spend any time with the mother and X did not see the mother between 10 October 2014 and 19 November 2014.
On 19 November 2014 the parties again attended mediation and this time the mother agreed to X spending equal time with each of them in the form of a split week. X went to the mother on 20 November 2014 but on 22 November 2014 having gained possession of X she refused to return her to the father and as a result the father commenced proceedings in the Federal Circuit Court at Parramatta.
The father’s application was given an urgent listing and came before Judge Harman on 15 December 2014 in a busy duty list. He conducted an interim hearing and ordered that X live with the father from 5.00pm on Thursday until 5.00pm on Saturday each week and otherwise live with the mother. He also transferred to the Federal Circuit Court in Newcastle at the request of the parties who both live on the Central Coast.
In due course a Family Report was prepared and it was released to the parties on 13 November 2015. It did not result in the parties reaching any agreement.
In February 2016 the mother filed an application seeking to vary the existing interim orders so that X spent reduced time with the father and did not spend any overnight time with him. She relied on the recommendations in the report, information which had emerged about admissions made by the father during the interview with police on 2 September 2014 and a video of a drag racing incident which occurred on New Year’s Eve 2015.
I heard the interim application on 4 April 2016. I declined to vary the interim orders but I did give the matter an expedited hearing date and it proceeded to trial on 7 and 8 July 2016.

The parties’ current circumstances

The father lives with his grandmother Mrs Weekes aged 81 in a 3 bedroom home in (town omitted). He was brought up by his grandmother; his mother was a drug addict who died when he was 3 and he had a very limited relationship with his father during his childhood and adolescence.
The mother questioned the suitability of the father’s accommodation but there was no evidence that it was unsuitable.
The father’s only current employment is that he works about 8 hours per fortnight as a (occupation omitted) with (organisation omitted). He has worked in the past as a (omitted) and a (omitted).
In his affidavit the father said that in January 2016 he commenced dating Ms E. She did not give evidence at the hearing.
The mother commenced a relationship with Mr S at around the time of separation and they commenced living together in about late 2014. Initially they lived at the home of Mr S’s parents but not long before the hearing they moved into their own rented accommodation.
Y lives with the mother and attends (omitted) Primary School where she is in Year 2. The mother’s sister Ms D, aged 12, also attends this school.
The mother works part-time as a (occupation omitted) at (omitted).

Y’s father is Mr L, a (occupation omitted). He did not see Y while the mother and father were together but he commenced spending time with her in late 2014 and now sees her regularly by agreement between him and the mother.

The family violence allegations

The mother alleged that during the parties’ relationship the father often became angry and called her a slut and a cunt and the family report writer said as follows:
The mother said the father’s intolerance of noise and activity resulted in her telling the children, especially Y, to be quiet a lot of the time just to keep him happy. The mother said that initially the father would express his displeasure by yelling at everybody in the house. After some time the father began to swear at she and the children. The mother said the father referred to the child Y as a “little c*nt” on a number of occasions. [2]
[2] Family report paragraph 107
The father did not deny these allegations at least to the extent of the mother alleging that the father had verbally abused her.
The mother alleged that there was a serious incident of family violence on 29 July 2016.
She said that about 8.00 or 8.30pm that night she told the father that she wanted to go to the gym. The father objected and a violent argument erupted.
When the argument commenced Y was in bed and X was in the lounge playing with toys. The mother picked X up and took her car keys and went out to the car. She began to place X in the car seat in her car but while she was doing it she could hear the father in the house yelling at Y “wake up, wake up, you’re mum is going to leave you”.
The mother took X out of the car and went inside where Y was crying. She said that the father grabbed her car keys and tried to bend them against the door frame. She was able to retrieve her keys and she picked X up and was trying to walk out with X and also shuffle Y out the front door. The mother went to her car and attempted to put the key in the ignition but the father had bent the key and it proved impossible to do so.
The mother had X on her lap while she tried to insert the key into the ignition and the father reached in through the window put his hands around her throat and started to strangle her. The mother said that she screamed for help and then started coughing and the father released his grip. The father began demanding that the mother give him X and then choked her again. She said that this happened four or five times.
The father then picked Y up and yelled in her face to stop crying. The mother said that the father also yelled to her “pick which kid you’re having because you’re not taking both of them tonight”.
The father put Y down and managed to take the mother’s keys and he also took X’s car seat out of the car. The mother said that the father again gripped her by the throat and tried to grab X from her and that X was screaming.
The father managed to get X from the mother and he then threw the mother’s keys and her phone down the side of the house and put X in his car and drove off.
The mother called the maternal grandmother who came and picked up Y. The maternal grandmother wanted the mother to call the police but she refused to do so.
The mother also called Mr S who was a friend of hers at the time and he picked the mother up and they drove around trying to find the father. They went to Mrs Weekes’ house but the father was not there. They eventually found his car at the house of a friend, Ms U. When the mother saw that the father’s car was at Ms U’s house she decided to leave the matter for the night as she thought that X would be safe at that home.
The mother said that the day after this incident she returned to the parties home but commenced sleeping on the lounge.
The mother suffered bruising to her chest and neck as a result of the incident on 29 July 2014.
The mother said that on about 8 August 2014 the father started arguing with her late at night and began throwing things at her, kicking her, and pestering her to come to bed. She said that he sat on her on the lounge and put his hands awkwardly near her neck causing her pain and that she bit his hand to get him off her. She said that the father began yelling “get out, get out” and that she took Y and left.
The mother said that she was afraid to try and take X.
On the mother’s case this was the date of separation and she did not sleep at the house again. However she went around to the house after work to see X and on 16 August 2014 she went to the house on two separate occasions.
On the first occasion the mother was doing some cleaning and had her phone on the bench. The father saw a message come up on her phone from Mr S and demanded the passcode for the mother’s phone but she would not give it to him and he took her phone and held it out of reach.
The mother sat on the lounge and the father sat next to her. The father handed the mother’s phone back and she said that she was leaving and the father said “No your not.”
The mother said that the father took her phone and car keys and walked off. The mother followed him and as she got to the doorway of the lounge room the father used two open palms to push her in the chest area and she fell back against the door.
The father called the mother a slut and used his hand to grab her throat and said “I am going to put you in your fucking grave.”
The mother said that she pushed the father who began to cry and that she hugged him and he gave her phone and keys back. She put the phone down the front of her shirt and her keys in her pocket and went to leave. When the father realised that she was leaving he grabbed her shoulders and threw her to the ground and sat on her and used both hands to push on her chest to try and find the phone.
The mother said that the father pulled her shirt and jacket causing the zipper on her jacket to break. She used her fingernails to try to force the father off her. She said that the incident went on for about 10 minutes and she kept asking the father to stop as X was in the house.
After about 10 minutes the father let the mother go and she noticed that her nose ring was missing and she was bleeding from the nose piercing. She went to the bathroom to clean up her face and when she came out the father called her a cunt. In response the mother slapped him and he used his left hand to punch her in the right hand side of the lower jaw with a closed fist. She said “Did you really just punch me?” and the father replied “You’re lucky it was only just a punch, the next time I’ll knock you the fuck out. Just fucking leave.”
The mother went to Mr S’s house and told him what had happened and also went to the maternal grandmother’s house and told her what had happened. She said that as a result of this incident she had bruising and red marks on her chest and throat and the lower right side of her jaw. The maternal grandmother took photos of the mother’s injuries on her iPhone and at the trial photographs of the mother showing bruising on her chest, neck and under her jaw were tendered.
The mother said that she thought about reporting the matter to the police but was scared about what might happen if she did.
Notwithstanding this incident the mother went back to the home that evening. The father was drinking. The mother went to get some food for X who had not eaten and when she returned the father asked her to take X so that he could continue drinking.
The mother said that while she was on her hands and knees near the lounge looking for X’s clothes the father sexually assaulted her. She said as follows in her affidavit:
That night Mr Weekes forced himself on me and had sex with me without my consent. It happened on the lounge in the lounge-room. I repeatedly told Mr Weekes no, that I didn’t want to, that he must stop, but he did not stop. I started crying during the assault but I tried to keep it quiet because X was awake and she was sitting on the lounge at the time. X stared crying when she was just able to climb out from where she had been sitting and squashed into the corner of the lounge by the motion of mine and Mr Weekes’s bodies during the assault. She looked me in the face. She was crying and saying repeatedly, “Mummy, Mummy”.[3]
[3] Paragraph 63 of the Mother’s Affidavit filed on 23 June 2016. There is greater detail about this incident in the mother’s statement to police dated 1 September 2014 which is Exhibit I
The father let the mother take X from the home after this assault but she returned X to him the next day.
The father’s counsel asked the mother in cross-examination why she did this and she said:
I just remember feeling I had to do it. I cannot even give you an explanation for why I did it. That day I actually crashed the car because I was thinking what he did to me.
The mother told Mr S and the maternal grandmother about the alleged sexual assault. They both urged her to report the matter to the police and indeed Mr S drove her to the police station and they sat outside in the car for a while but the mother did not want to do so.
Notwithstanding what had happened the mother continued to make efforts in the days which followed to spend time with X by going to the parties home.
On 31 August 2014 the father allowed the mother to take X away with her for a period of time but the mother said that the father rang her while she was at her parents’ home and said that if she did not let him have X back that night he would burn all of Y’s photos that were still at his house and stab her (omitted) brother D.
The mother said that she only had hard copies of the photos because her computer tablet was broken and she was frightened that the father would carry out his threats and took X back to him that night.
On 1 September 2014 the mother went to the police station with her parents to seek assistance to recover her things from the home. The maternal grandmother told the police about the assaults on 16 September 2014 and the police asked the mother to tell them what had happened and she did.
The following day the police applied for an ADVO for the protection of the mother, X and Y although X was later removed as a protected person. The police also conducted a record of interview with the father. He denied sexually assaulting the mother and although he made some admissions of violence the police decided not to charge him with anything.
In his trial affidavit the father gave his version of events about the incidents which occurred on 29 July 2014 and 16 August 2014. He made no mention of any incident on 8 August 2014.
The father gave a very brief account of what happened on 29 July 2014. He admitted forcibly taking X from the mother when she was sitting on her lap in the car and said that he used his arm to restrain the mother so that she could not prevent him taking X. He said that he forcibly took the child because he was concerned that the mother might drive off with her on her lap which was unsafe. He said that he regretted having used force on the mother on that occasion.
The father also gave a very brief account of what happened on the morning of 16 August 2014. He admitted withholding the mother’s phone from her and said that he had palmed the mother in the face but said that he did it because she slapped his face.
The father denied that he raped the mother and said that they had consensual sex.
The father said that he regretted his behaviour on 29 July 2014 and on the morning of 16 August 2014.
The father said that on 31 August 2014 he threatened to burn some of the mother’s things if she did not come to the house to collect them (although he denied that it was the baby photos) but said that it was done in the heat of the moment and he regretted making the threat. He did not admit threatening to stab her brother.
The father made no admissions about any other violence to the mother and did not admit that he had ever choked her or placed his hand around her throat.
Unfortunately for the father his interview with the police on 2 September 2014 was played in full during the hearing and during that interview the father said and did things which seriously call into question whether the court should accept the sanitised version of events in his affidavit.
When the police asked the father if he had grabbed the mother around the throat during the incident on 29 July 2014 he said:
There’ve been a few times when I’ve grabbed her by the throat but not then.
Later in the interview he said that “I whacked her and held her back while I leaned in and got X.”
He also said:
I ripped the keys out and threw them
and
We got into an argument and I was choking her.
When he was questioned about the incident on the morning of 16 August in which the mother said she sustained bruising to her chest the father said:
I agree that I might have been pushing her in the chest before I handed her the phone.
When he was asked whether he had walked toward the mother and grabbed her by the throat he answered:
Not then.
Later in the interview the father also said:
X was in the toy room playing. I was trying to get to her. I pushed her [the mother] against a chair and she kicked me and I grabbed her and threw her to the ground. I picked X up and….she [the mother] punched me several times in the back of the head.
In his affidavit the father said that during the argument on the morning of 16 August 2014 he palmed the mother across the bottom of the jaw. During the police interview he demonstrated a forceful upward push with his hands and said:
I palmed her on the side of the jaw, crack.
He added:
She was holding her jaw but there was no blood.
The father agreed that the mother slapped him during this incident after he called her a “slut” or a “fucking slut.”
The police questioned the father at length about the mother’s allegation that he had raped her. The father maintained that he and the mother had consensual sex. He blamed the allegation partly on the mother “going off her meds”.

Conclusion about the family violence allegations

Even on the father’s own evidence he committed numerous acts of family violence during and after the relationship.
He did not deny that he called the mother a slut and a cunt during arguments and although the mother’s evidence could have been more detailed I am satisfied that this behaviour comes within the definition of repeated derogatory taunts which is one example of family violence in s. 4AB of the Family Law Act.
The father admitted that he physically restraining the mother on 29 July 2014 and forcibly took X from her. He admitted to police that he whacked and choked her. I do not accept that the father’s assertion that he admitted choking the mother because he felt under pressure during the interview but did not actually do it.
The father admitted in his affidavit to taking the mother’s phone and withholding it on the morning of 16 August 2014 and he made an admission about palming her to the face. During the police record of interview he described a more serious blow to the mother’s face and he admitted pushing her over and throwing her to the ground which he did not mention in his affidavit.
He admitted engaging in coercive and controlling behaviour by threatening to damage property on 31 August 2014.
Therefore even on the father’s own admissions he committed numerous acts of family violence including acts of physical violence which injured the mother and making threats which were intended to coerce and control her.
However the mother said that the father was not telling the full truth about what occurred. She asked the court to accept her evidence about the events of 29 July 2014, 8 August 2014 or thereabouts, 16 August 2014 and 31 August 2014.
In assessing the mother’s account of what happened on these occasions I need to be conscious of the fact that the events of 29 July, 8 August and 16 August erupted quickly, sometimes went on for some time, included different elements and were very distressing and frightening for the mother and the mother did not report the incidents for up to a month after they occurred. It is possible that she has made some mistakes about exactly what occurred or the order in which events occurred on any particular occasion or even innocently got things which happened on one occasion mixed up with things which happened on another.
However the information the mother has given on different occasions about what occurred on each of these dates has been broadly consistent and coherent and the maternal grandmother who was a credible witness gave similar (although not identical) evidence to the mother about the threats made on 31 August 2014 which she heard because the mother put the phone on speaker.
The father was not a witness of credit about the violence allegations. He did not mention family violence at all in the affidavit he filed in December 2014. He did not mention family violence to the family report writer at all until she questioned him about it and when asked questions he gave a very sanitised version of what had occurred and suggested the violence was mutual. He also made minimal admissions about his conduct in his trial affidavit filed in July 2016. However the father made concerning admissions to the police close to the date when the events occurred. He confirmed that he had choked the mother, whacked her and palmed her hard enough to the jaw to cause him to follow his physical demonstration of what he did with the word “crack.”
I prefer the mother’s evidence about what happened on 29 July 2014, 8 August 2014, the morning of 16 August 2014 and 31 August 2014 to the father’s evidence.
I am also satisfied on the balance of probabilities that the parties did not have consensual sex on the evening of 16 August 2014.
The fact that the police declined to charge the father does not mean that the mother’s version of events should not be accepted. The police are required to prove a charge beyond a reasonable doubt and may well have formed the view that there was insufficient evidence to proceed with a prosecution when there was no independent evidence to corroborate the mother’s claims. In this court however it is only necessary for the court to be satisfied on the balance of probabilities that certain things have occurred.
The mother became very upset when questioned about the sexual assault during cross-examination and said that she did not like talking about it which is consistent with her version of events that the parties did not engage in consensual sex.
The mother told Mr S and her own mother immediately after the incident that the father had raped her and Mr S observed her to be very upset. It is also most improbable that the mother would have agreed to have sex with the father on the evening of 16 August given what had occurred on 29 July and 8 August and on the morning of 16 August.
The father made allegations that the mother was violent to him on occasions. He alleged that she bit him on the hand when he was trying to remove X on 29 July 2014, slapped his face on 8 August after he called her a slut and a fucking slut and punched him in the back of the head several times during the incident where he pushed her to the ground.
The mother admitted biting the father’s hand but said that it was not on 29 July 2014 but on another occasion when she was trying to get him off her. She admitted slapping him but said that it was in response to him verbally abusing her. She denied punching him in the back of the head.
I am satisfied that any physical actions by the mother were in the context of her either defending herself or responding instinctively to verbal abuse. I am not satisfied that the father was frightened by the mother’s actions or that they were done with any intention to coerce or control. I do not accept that the mother was violent to the father as family violence is defined in s. 4AB of the Family Law Act.
The father also tried to suggest that somehow he and the mother were equally responsible for the conflict on 29 July 2014 and 16 August 2014 but it is noteworthy that on each occasion the father was the instigator of the confrontation and it was the mother alone who suffered injuries. I do not accept that the parties were equally responsible for the violence.

X’s best interests

Any orders I make about X must be orders determined by treating her best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine X’s best interests.
The primary considerations in s.60CC(2) are the benefit to the child of having a meaningful relationship with each of her parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
The additional considerations in s.60CC(3) include things such as the child’s views, the nature of her relationship with each of her parents, the likely effect of any change in her circumstances, the capacity of each parent to provide for her needs and a consideration of the implications of any family violence.
I intend to commence by making findings about the additional considerations.
The first of the additional considerations is the views of the child and the weight which can be given to the views but there is no evidence that X has a view about parenting arrangements.
Both parents claimed that there were times where X said that she did not want to go to the other parent prior to changeover but this is not evidence that X has any view about where she should live.
I must consider the nature of the relationship of the child with each of her parents and any other person.
The family report writer provided independent evidence on this topic. She commented that X was appropriately affectionate to both the mother and the father, did not show any undue anxiety when separated from her parents to be assessed individually and appeared to be appropriately attached to both her mother and her father.
She said that on observation the child’s primary attachment appeared to be to her mother. She did not explain what underlying facts led her to this conclusion but X was primarily cared for by her mother until not long prior to the parties’ separation when she was approaching two years old and she has lived primarily with her mother since the interim orders were made in December 2014. The mother is a competent and loving parent and in these circumstances it is reasonable to suppose that X’s primary attachment is to her and in any event the father conceded during cross-examination that the mother was X’s primary attachment figure.
It is important to note however that the report writer observed X to be attached to both parents and said that she showed obvious affection towards the father.
X has a good relationship with her sister Y. The family report writer observed her playing cooperatively with Y.
The report writer observed X to be happy in the company of Mr S. The father made no complaint about Mr S, and it is reasonable to suppose that X has a good relationship with him. He has been living with the mother for about 18 months.
The report writer observed that X interacted well with Mrs Weekes the paternal great grandmother and the maternal grandmother Mrs Pitcher gave unchallenged evidence that X had a close relationship with her.
I must consider the extent to which each parent has taken or failed to have taken an opportunity to spend time with or communicate with the child or to make decisions about the child.
Each parent has been keen since separation to be involved in spending time with X and making decisions for her.
I must consider the issue of financial support for the child but that was not addressed in the parties’ affidavits.
I must consider the likely effect of any change in the child’s circumstances, including the likely effect on the child of any separation from either of her parents or any other child or other person including any grandparent or other relative of the child with whom she has been living.
The father proposed that X commence spending four nights a fortnight with him in blocks of 3 nights in one week and one in the other immediately and that as of (omitted) 2017 when she was 4 years and three months old the time be five nights per fortnight in blocks of 4 nights in one week and one in the other.
The reasoning behind this proposal was that the father did not want to lose any time with X but felt that it was preferable that she be able to spend a whole weekend with each party.
The mother’s counsel submitted that this was too much in one block and was not age-appropriate.
On the state of the evidence it is not open to me to conclude that X would not cope with three consecutive overnights with the father simply because of her age. Four consecutive nights from the beginning of 2017 does seem a stretch but I am not bound by the father’s proposal and could defer the commencement of more extensive time until X was older.
My primary concern about X spending three or four nights in a block with the father is whether this is appropriate in light of the family violence findings and I will need to consider this later in the judgment.
The mother also proposed a significant change namely that X cease spending overnight time with the father and that overnight time not resume until she commenced school in January 2018.
The mother said that this should happen because of the father’s commission of acts of violence and his denial of responsibility for violence. It was her case that X was at risk of exposure to family violence in the father’s care in the future.
X has a good relationship with her father but she also has a good relationship with her mother, her sister Y and Mr S and I consider it more likely than not that she would take a reduction in the time she spent with her father in her stride.
However such a reduction in time would limit the things the father could do with her and it would mean that he would not be involved in caring tasks such as making a meal for her in the evening, putting her to bed and reading her a story, or getting her breakfast in the morning. He would have less time to engage her in some of the activities they do at present and it is possible that as a result of this he would become a less significant person in X’s life.
I will have to consider after making findings about all of the s.60CC (2) and (3) matters whether on balance a change which involves a reduction in X’s time with the father is a change which would be in her best interests but in my view there is no doubt that it would change the nature of her relationship with him.
I must consider the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child's right to maintain personal relations and direct contact with both parents on a regular basis.
This is not an issue because the parents both live (location omitted).
I must consider the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child including her emotional and intellectual needs.
In some respects the father has a satisfactory capacity to provide for X’s needs. He feeds and clothes her appropriately and he does various activities with her which she enjoys. I am not concerned about the father’s accommodation because the paternal great grandmother Mrs Weekes gets on well with X and X has a bedroom in her home, and there were no allegations that the father used drugs or had any mental health issues and he does not have a criminal record.
The mother alleged that on one of the occasions when she was assaulted on 16 August 2014 the father was heavily intoxicated but she did not allege that the father had a problem generally with alcohol consumption.
However the family report writer who interviewed the father at length was concerned about the lack of empathy he displayed for both the child and the mother and there are limitations to the father’s capacity to provide for the child’s emotional needs.
In reference to the family violence the report writer said as follows about the incident on 29 July 2014:
During his dialogue the father did not refer to any physical risk he might have placed the child in by wresting her in the manner he did. Neither did he address any emotional trauma the child might have undergone as a result being caught in the middle of the violence.[4]
[4] Paragraph 58 of the Family Report.
There was no evidence in the father’s trial affidavit that he had considered the impact on the mother and X of the events of 29 July 2014 and 16 August 2014 even insofar as he admitted misconduct.
In reference to withholding the child from the mother for two extensive periods in 2014 the family report writer said as follows:
The father did not seem to consider the distress the child may have felt through lack of spending time with the mother during the time he retained her. Neither did the father refer at any point to any distress the mother might feel as a result of him retaining the child during their period of high dispute. This lack of appreciation for the needs of others would be considered a limiting factor to the father’s ability to respond to the needs of the child in an effective manner.[5]
The father was brought up by his paternal grandmother from infancy and unfortunately also appeared to have limited time spent with his father. Although his grandmother clearly did the best she could in raising the father, the father’s lack of a strong maternal bond with his own mother may have compromised his capacity to appreciate the importance of the mother/child relationship. The father was notable in the manner in which he failed to address the effects his retaining the child and limiting time spent between the mother and the child may have had. In this regard the father was considered to have showed a lack of empathy for the mother or the child.[6]
[5] Paragraph 69 of the Family Report.
[6] Paragraph 214 of the Family Report.
Whether the father’s lack of empathy for the mother and X is due to his own upbringing is speculative; it could have other causes. However I agree with the family report writer that he lacks empathy for others and his treatment of Y at and after separation is another example of his inability to empathise with others.
Y was (omitted) months old when the mother and father commenced cohabitation. She lived with the parties throughout their relationship and during that time had no interaction with her father Mr L. The only person Y she knew as a father between the age of 10 months and the age of 5 was the father in this matter.
It was the mother’s case that the father was initially well disposed to Y but that after X was born he began to find her irritating and preferred X over Y. Wherever the truth may lie about that the father has shown a very strong lack of empathy to Y since July 2014.
The father behaved cruelly to Y on 29 July 2014 when he manhandled her while screaming at and assaulting the mother while trying to prevent her from taking X with her in the car.
In early August 2014 the father sat Y down when the mother was absent and videoed her while asking her questions about whether the mother was seeing anyone. This shows a total absence of empathy for Y and a total fixation on the father’s own wants and needs.
The mother took Y with her when she ceased living at the former matrimonial home and there is no evidence which satisfies me that the father has sought to spend any time with her since.
The father’s rejection of Y is deeply concerning. X is attached to her sister and they have a strong sibling relationship. This behaviour by the father toward the child’s sister strongly indicates that X should be spending less rather than more time with the father because the more time she spends with him the less the very important sibling relationship with her sister will be promoted given that the father almost seems to want to pretend that Y does not exist.
To return to X, the father made no comment either in his affidavit or to the report writer about how X might have been impacted on by the violent incident on 29 July 2014 and he is prepared to deny to the child his responsibility for violence. He said as follows in his affidavit:
X has sometimes said words to the effect of “mummy won’t let you come. She said you’d hurt her. You wouldn’t hurt mummy though.” I believe that X still has a positive opinion of me because she often follows such comments with words to the effect of “you are nice, you wouldn’t do that, mummy is silly.” When X makes comments like these I reply with words to the effect of “no, you know I wouldn’t do that” and I try to change the subject.[7]
[7] Father’s affidavit paragraph 88
I acknowledge that the situation the father finds himself in when the child makes such comments is a difficult one but I am concerned about his capacity to provide for the child’s emotional needs when he denies the allegations of violence made by the mother and when the child raises the issue with him conveys to her that incorrect information has been given to her by the mother.
There is no evidence that this is currently causing X difficulty but it could cause her psychological confusion as she gets older.
The mother is capable of providing well for X on a day to day basis. She is more than capable of properly feeding and clothing her and she enrolled her in pre-school in 2015 which X very much enjoys.
The father alleged in his trial affidavit that the mother drank excessively during her relationship with him. He alleged that she drank daily and on occasions would drink a bottle of ‘Moscato’ at a sitting.
The mother vehemently denied that this was correct and it is somewhat difficult to credit that the father genuinely believes that the mother has a serious alcohol problem when he was proposing equal time and is currently proposing that the child live with the mother.
There was no evidence that the mother had ever been involved in any alcohol related incidents either in respect of driving or at licensed premises and no independent evidence that she had ever had a problem with alcohol consumption. I do not accept that the mother has an alcohol problem.
The mother does not use drugs and although she has had some problems with depression in the past there was no evidence that she had any disabling mental health issues.
Mr S does not have a criminal record, does not use drugs, and it was not alleged that he drank excessively. There was nothing to suggest that he lacked the capacity to provide for X’s needs.
I must consider the child’s maturity, sex, lifestyle and background (including lifestyle, culture and traditions) and that of either of the child’s parents and any other characteristics of the child that the court thinks are relevant.
X has just turned 4 and according to her parents and the family report writer is meeting her developmental milestones and is a delightful child.
I must consider the attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents.
The father demonstrated a poor attitude to the child at separation by demanding that he spend equal time with her and withholding her from the mother for two quite extensive periods because the mother would not agree to this.
The mother can also be criticised for withholding the child from the father; the father’s actions do not justify her actions because it has never been her case that the father should spend no time with the child at all.
I must consider any family violence involving the child or a member of the child’s family.
The father committed a number of very serious acts of family violence immediately prior to and immediately after separation and he subjected the mother to repeated derogatory taunts during the relationship.
The family report writer observed as follows about the circumstances in which violence in July and August 2014 occurred.
The information presented strongly suggested that the violence described occurred in the context of the father becoming jealous of the mother’s relationship with Mr S and that he was attempting to control the mother through the child in addition to fearing that he would lose his relationship with the child when his relationship with the mother broke down.[8]
[8] Family report paragraph 225
The family report writer also noted that there was no evidence that the father had been violent in previous relationships and those two things taken together support a finding that the violence was situational and would not necessarily be repeated in the future.
It is important to note however that the father’s physical violence to the mother did not spring out of nowhere. There was no evidence of physical violence prior to 29 July 2014 but the mother’s uncontradicted evidence was that during the relationship the father was verbally abusive to her and called her a ‘slut’ and a ‘cunt’ and this behaviour comes within the definition of family violence.
In the light of this I certainly could not be satisfied that the physical violence which occurred was something that occurred within the context of separation difficulties in a particular relationship and that there was no risk of such behaviour occurring again if the father entered into another live in relationship.
It is also important to note that whether violence is likely to occur again in the future is not the only matter I need to consider. The fact that the violence occurred has other implications.
One consequence of the father committing the acts of violence at or around the time of separation is that the mother is fearful of him. She said that she was and she has acted consistently with that fear since the events occurred. For example she would not agree to the father attending X’s first day at pre-school although she subsequently sent him photographs and information about what had occurred and I accept that she did not want him to attend because of her fear of him.
There was an occasion when the father and mother both attended the child’s swimming lesson but Mr S was present on that occasion. The mother has not done any changeovers with the father alone since the orders were made in December 2014. The maternal grandmother has accompanied her to every changeover and this is a direct consequence of the father having committed the acts of violence.
The mother became extremely distressed in the witness box when cross-examined about the violence allegations. When and if her fear about how the father will react if she challenges him or upsets him will abate cannot be known.
The fact that the father minimises what occurred between himself and the mother and denies the most serious allegations of violence gives rise to concern because it indicates a complete failure by the father to accept responsibility for his actions and in that respect the father is a very poor role model for the child.
The father’s refusal to acknowledge the violence means that the child is forced to deal with two different versions of events, one given by the mother to explain things such as her not being willing to allow the father to attend the child’s first day at pre-school and the other given by the father to maintain his image with the child as a good person. There is no means of resolving this issue save for the father taking responsibility for his past behaviour.
Finally the family report writer expressed the opinion that given the father’s actions at or around the time of separation and other indications in the evidence that he needed to be in control, that difficulties could arise in his relationship with X when she became a teenager and wanted to exercise some control over her own life. There is force in this opinion but of course X is a long way from being a teenager.
I must consider if a family violence order applies or has applied to the child or a member of the child’s family and any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in or in proceedings for the order, or any other relevant matter.

The police applied for and obtained an interim ADVO for the mother’s protection following her complaint to the police on 1 September 2014 and a final ADVO was made on 18 September 2014 for a period of six months. I cannot draw any conclusions from the fact that this order was made.
On 19 September 2014 the father filed an application seeking an ADVO against the mother. He alleged that she had been stalking, harassing and intimidating him by making numerous phone calls to him and driving past his home.
The mother defended this application. Her position was that she had only attempted to contact the father to try and arrange time with X or find out where she was.
A defended hearing in relation to the father’s application took place on 16 January 2015 and the Magistrate hearing the application considered that there was sufficient evidence to make a final ADVO protecting the father for a period of eighteen months. This ADVO has only just expired.
I was not provided of a transcript of the proceedings. The mother alleged that the Magistrate said “what’s good for the goose is good for the gander” and made the ADVO.
It would be unsafe for me to conclude that this occurred but without a transcript I cannot determine why the order was made and on the evidence available to me I am not satisfied that the mother did stalk, harass or intimidate the father after separation with a view to coercing or controlling him or that the father was ever in fear of the mother as a result of her actions in the first six months after separation. The application by the father for an ADVO has a ‘tit for tat’ flavour to it.
I must consider whether it is preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It is not possible to identify an order which would be least likely to lead to further proceedings in relation to X.
I must consider any other fact or circumstance the court considers relevant
The parties’ capacity to communicate is a relevant matter I need to consider.
The parties had a woeful capacity to communicate in the period between July and December 2014 but it was the father’s case that things had improved since then and he referred to a number of occasions when the parties were able to agree about various issues.
On 23 November 2015 the mother asked the father if he would please not attend the child’s first day at pre-school and the father said that although he was disappointed he agreed not to attend.
On 7 and 8 January 2016 the parties agreed to change days so that the father could go away. On 17 March 2016 they were able to agree on a change to the drop-off and pick-up arrangements and they also had a productive discussion about trialling various things such as a change to the detergent the father was using to deal with a rash which X was experiencing.
These examples do not establish however that the parties are likely to develop a good and respectful relationship which will allow them to easily resolve any disputes which may arise about issues concerning X.
The family report writer was of the view that there was a power imbalance between the parties. She said as follows in her report:
The father impressed as a rather dominant person with a high need for control. The mother impressed as submissive. A power imbalance is considered to be a risk factor for further conflict or violence.
The evidence before me establishes that there is a power imbalance between the parties. At the time of separation the father was adamant that he would not agree to X living in anything other than a shared care arrangement and he resorted to violence to ensure that he retained possession of X pending the mother agreeing to this. The mother’s personality is such that she was not able to deal effectively with this and the result was that the last five months of 2014 X lived a very unsettled existence.
The parties have been able to agree on some things since the December 2014 orders but not on others. The mother did not consult with the father about enrolling X in pre-school. He agreed not to attend X’s first day at pre-school when the mother requested it but this was in circumstances where the parties were involved in court proceedings and the father may well have been conscious of what he had to lose by creating a difficulty in relation to this issue.
In my view the parties’ capacity to communicate and effectively resolve disputes is likely to remain poor and the mother is likely to remain nervous about disagreeing with the father.
I must now return to the primary considerations and the first of those is the benefit to the child of having a meaningful relationship with each of her parents, noting of course that pursuant s.60CC(2A) of the FamilyLaw Act this requirement must give way to the need to protect the child.
X will benefit from having a meaningful relationship with both of her parents.
The mother is warm, loving and empathic and there is no doubt that X will benefit from having a meaningful relationship with her.
I have concerns about the father in terms of his capacity for empathy, his attitude to the mother and Y and his resort to violence but he has good qualities. He has a good working history, he abhors drug use and he loves his daughter. X relates well to her father and he organises many activities for her which she enjoys and it is important that X have a relationship with both a mother and a father if possible, especially when it is an opportunity the father was denied.
The family report writer commented that lack of a strong maternal bond with his mother may have compromised the father’s capacity to appreciate the importance of the mother child relationship. I cannot be sure that this is true but to not have a parent in a child’s life is a loss and if X does not have a strong relationship with her father it will have implications for her later in life.
Sometimes a good and loving step-father can fill the gap for a child but it is impossible to know what the future holds for X in that regard and given that the father is keen to have a role in his daughters life and has the capacity to interact with her on a day to day basis in a very positive way it would be regrettable if X lost the opportunity to have a meaningful relationship with him.
The mother did not propose that X spend no time with the father but she did propose that time occur on only one day a week for the next eighteen months and that there be no overnight time until X commenced school in 2017 and no holiday time until X turned 7. X’s relationship with her father and his importance to her would be considerably weakened if those orders were made.
The father’s counsel submitted that there was no justification for reducing the father’s time let alone rejecting his proposal for increased time when it was not open to the court to find that X was likely to be exposed to family violence in his care in the future. While there was no doubt that violence flared up between these particular parties at separation, there had been no threats, stalking or intimidation since court orders were made eighteen months ago and this was not a case in which the perpetrator had convictions for offences of violence or where there was evidence that he had been violent to other family members or in other domestic relationships or in the community generally.
I do not accept the submission that there is no likelihood at all of X being exposed to family violence in the father’s care in the future.
First, I cannot be satisfied that there is absolutely no risk of the father committing acts of family violence if he enters into another live in relationship. The father was 19 when he commenced his relationship with the mother so he does not have a long history of being in any other live in relationship and he was verbally abusive to the mother throughout their relationship and very violent at around the time of separation. He has made minimal admissions about his violence and he has shown no inclination to engage in a program such as ‘Facing Up’ or ‘Taking Responsibility’ which the family report writer recommended he do. He is only 27 and I cannot be satisfied that there is no risk that he will not again find himself in a domestic situation where he is tested and reacts violently.
Second, there is some risk of further violence between the mother and father in the future even if just in the form of coercive and controlling behaviour or repeated derogatory taunts. The father developed a habit during the relationship of resorting to yelling and name calling and verbal abuse when displeased and he resorted to threats and withholding of the child after separation. He has not done a perpetrators course and I cannot be satisfied that he will never behave in this manner again.
However an order for sole parental responsibility (which the mother sought) would remove the need for the parents to consult with a view to reaching an agreement about major issues concerning X and thus reduce the potential for conflict and the parties have to date been able to manage changeovers by the use of the maternal grandmother as an intermediary and they can continue to do that in the future and may also be able to do some changeovers at school.
I do not accept that there is no likelihood of X being exposed to family violence in the father’s care in the future but the father is not in another live-in relationship at present and if the safeguards of an order for sole parental responsibility and carefully managed changeover arrangements are in place then the risk of X being exposed to family violence in the father’s care in the immediate future is low.
I cannot be satisfied that there is absolutely no risk of X being exposed to family violence in the future in the mother’s care. The mother was in a relationship with the father from the age of 18 until she was 22. She presented to the family report writer as a fairly passive person, for quite a period she tolerated verbal abuse from the father in the form of being called a slut and a cunt during the relationship and there was some serious physical violence and threats around the time of separation.
There is always a risk that if a person has been in one violent relationship they may find themselves in another but there are some things in this case which make it less likely that this will happen for the mother.
First, there was no evidence that Mr S was prone to violence or that there was any violence in the mother’s relationship with him and they had been living together for 18 months in July 2016.
Second, the maternal grandmother is not a person to tolerate family violence. She pressured the mother to report the assaults by the father to the police and gave information to the police on 1 September 2014 which resulted in the mother making a complaint. She might well be vigilant for any signs that her daughter was getting herself into such a situation again.
Third, the mother has had some extensive family violence counselling since separation.
The mother is not an assertive person and this means that it is impossible to say that there is no risk that she will tolerate family violence in the future but it seems to me in light of the above that the risk is very low and that there is a very low risk of X being exposed to family violence in the mother’s care in the future.
X is not likely to be exposed to abuse or neglect in the care of either of her parents.

Parental Responsibility

Pursuant to s.61DA of the Family Law Act I am required to apply a presumption that it is in the child’s best interests that the parents have equal shared parental responsibility for her absent a finding that one of the parents has engaged in abuse of the child or family violence.
I am satisfied that the father engaged in family violence and the presumption therefore does not apply.
The father nevertheless asked me to make an order for equal shared parental responsibility and it is possible for such an order to be made even if the presumption does not apply.
The mother on the other hand sought an order for sole parental responsibility.
As previously mentioned although the father has shortcomings he also has good points and even on the mother’s case he will continue to be an involved part of X’s life. X is a healthy child, the parents are not in dispute about religion, and the father agreed during the hearing that she could attend the school Y attends, so at present it does not seem likely that many major long term decisions will need to be made about her.
These things suggest that it may be premature to remove parental responsibility from the father.
On the other hand I am satisfied that the family report writer correctly identified that there is a significant power imbalance between the parties. The mother fears the father and did not wish him to attend X’s first day at pre-school although she showed sympathy for him by sending him copies of photographs taken on the day.
The mother might well have difficulty, as the family report writer suggested, standing up to the father and promoting her own point of view if the parents disagreed about some arrangements that needed to be made about X in the future.
An order for equal shared parental responsibility requires the parents to consult and attempt to reach agreement which holds within it a germ of a risk of future family violence even if only in the form of name calling or threats.
I cannot be sure what the future holds and what decisions may be required about X, I have to give weight to s.61DA(2) which provides that the presumption of equal shared parental responsibility does not apply if there has been family violence, and the family violence in this case was serious, it occurred fairly recently and it has resulted in the mother being fearful of the father.
I am therefore not prepared to make an order for equal shared parental responsibility if the mother opposes it.
I do however intend to make orders that once the surname issue is dealt with the mother is restrained from changing the child’s surname, and also that she is restrained from relocating the child’s place of residence to a place which will make it significantly more difficult for the father to spend time with the child.
I also intend to require the mother to inform the father if decisions need to be made about the child and to invite his input and take it into account before finally making a decision.
Other than that I intend to order that the mother have sole parental responsibility for X.

The family report

When the family report was prepared the father was seeking equal time while the mother was seeking that X live with her and spend limited time with the father.
The family report writer was very concerned about the violence allegations and the fact that the police record of interview suggested that the father had not been honest with her about the violence he had perpetrated. She was also concerned about what she considered to be the father’s need to be in control and his lack of empathy for the mother and X.
The family report writer recognised that X related well to the father and had no difficulty spending time with him and displayed no fear of him but she did not support a shared care arrangement and her recommendations were as follows:
The current interim orders were made on the 15^th December 2014 before Judge Harman and provide for the child X to live with the mother and spend time with the father from 5.00pm Thursday until 5.00pm Saturday each week.
If the court determines that the child is at risk of being exposed to further violence then the Court may decide that the mother’s proposal for time spent with the father may have merit. Under this arrangement the child would live with the mother and spend time with the father each Saturday from 9am until 5pm and each Wednesday from 3pm until 6pm until she is four years old. At the commencement of school the child would spend time with the father from 9am Saturday until Sunday at 5pm and one afternoon after school each week from 3pm until 7pm. From the age of 7 years the child would visit with the father each alternate Friday from finish of school until Sunday 5pm.
If the Court does not determine that the father poses a risk of harm to X in the manner outlined above then it may decide the child X spend time with him as currently outlined in the Interim Orders.[9]
[9] Paragraph 250 of the Family Report.
As can be seen the recommendations turn on the issue of whether the court could be satisfied that X would be at risk of harm in the father’s care. It was effectively the father’s case that the court could not find that he posed an unacceptable risk of harm to X and that the court should therefore place weight on the recommendations in the report and at the very least not reduce X’s time with him.

Conclusion

By the time the hearing commenced the father had abandoned his shared care proposal. He proposed that X live with the mother and spend time with him and in broad general terms this is an entirely appropriate outcome.
Equal time would not be appropriate given the family violence, the mother’s fear of the father and the power imbalance between the parties. An arrangement of this kind would require frequent respectful interaction between the parties and the parties are not capable of implementing such an arrangement.
X will be well placed with the mother who is a warm, loving and capable parent. X has a good relationship with Mr S and if she lives with her mother her time with her sister Y will be maximised.
The significant difficulty in the case is what to do with the issue of the father’s time with X.
It is important to emphasise that I have to decide the matter on the basis of the evidence before me today, not on the basis of what the outcome might have been if all the evidence which is now available to me had been presented and tested in December 2014.
As a result of the evidence I have heard I am satisfied that the father committed several very serious assaults on the mother at or about the time of separation during which she suffered injuries and engaged in other coercive and controlling behaviour. If this had been established in all its colour and detail in December 2014 it is unlikely that the same orders would have been made about X spending time with the father and given her then age and the seriousness of the violence it is possible that only supervised time would have been ordered.
However on 15 December 2014 the matter came before a Judge as a first return matter in a busy duty list. The father made no mention of the violence allegations in his affidavit and asserted that immediately prior to separation he had been the child’s primary carer. The mother’s documents which did mention family violence and made assertions about the mother’s role as primary carer were only filed that morning. The Judge was confronted with a situation where the parties were in dispute about whether family violence had occurred and about who had been the child’s primary carer. He had no means of resolving those disputes and in the face of conflicting evidence he ordered that the child spend two days and two nights a week with the father and the remainder of the time with the mother.
Since those orders were made the father has provided satisfactory day to day care for X and the family report writer was satisfied that she had a strong bond with him. The father has not stalked harassed or intimidated the mother since the orders were made. He makes minimal admissions about the violence he perpetrated and he has not done a perpetrators course but he has been respectful of the mother’s unwillingness to have him around her when she has made an issue of it; he did not argue when she said that she did not want him to attend X’s first day at pre-school.
The father’s counsel submitted that it was not open to me to find on the state of the evidence that there is an unacceptable risk of X being exposed to family violence in the father’s care at present when there was no evidence of previous family violence in previous relationships, the father has no convictions for offences of violence and there has been no troubling post-separation behaviour.

In the light of this his counsel submitted that weight must be placed on the following recommendation in the family report:
If the Court does not determine that the father poses a risk of harm to X in the manner outlined above [i.e. a risk of exposing her to further family violence] then it may decide the child X spend time with him as currently outlined in the Interim Orders.
Family violence takes many forms and physical violence is only one. There is little likelihood of physical violence occurring again between these parties in the future but the father engaged in a pattern on yelling and name calling through the relationship and he engaged in behaviour such as withholding the child and making threats to force the mother to do what he wanted and I cannot be sure that this will not occur again in the future.
I also do not accept that this matter can be decided simply by saying that the risk at present of the father exposing X to further family violence is either low or non-existent and that therefore she should spend no less time with the father than she is doing at present. To determine the appropriate outcome I must consider all of the s. 60CC (2) & (3) matters.
There are a number of matters which cumulatively mean that in my view the father should spend less time with X than he is doing at present.
I am concerned about the father’s parenting capacity. He can provide for X’s day to day needs but he does not have insight into the effects of his behaviour or empathy for others. He has rejected Y since he and the mother separated; she rated almost no mention in his affidavit. He exposed X and Y to serious incidents of family violence perpetrated against the mother and he has expressed no genuine remorse for this. He said in his affidavit that he regretted his behaviour on 29 July 2014 and the morning of 16 August 2014 but the underlying theme of his affidavit was that what occurred was mutual violence and that he was also a victim. He does not accept responsibility for his behaviour.
The father neither understands nor accepts the impact his behaviour has had on the mother, indeed his counsel in submissions questioned whether the mother was truly fearful of the father by referring to an incident where she and her partner sat near him at a swimming lesson. The father’s counsel did not refer in submissions to the mother’s distress when cross-examined and therefore asked to relive the violent incidents.
The father showed no recognition of the damage done by a negotiating style which involved threats and withholding the child to coerce the mother into doing what he wanted.
I do not consider that spending extensive time with someone who has a blunted capacity to provide for her emotional needs is in X’s best interests.
The family has a difficult issue to deal with in that the mother maintains and I accept that she was sexually assaulted in August 2014 which the father denies and also maintains that he subjected her to much more serious physical assaults on two other occasions than the father is willing to admit. The mother is not only fearful of the father but also no doubt somewhat resentful that he was not charged.
X is already being torn between her parents one of whom says that they were hurt by the other and the other of whom says that he did cause hurt. I am satisfied that the mother was hurt and am concerned about how X is going to deal with these two conflicting stories. The mother did not suggest that the father spend no time with X but in my view she should spend a strictly limited amount of time with him given that he is the parent who is presenting an inaccurate version of reality to the child.
X can maintain a meaningful relationship with the father if she sees him less frequently namely for one afternoon a fortnight and overnight on alternate weekends.
I am not satisfied that a case has been made out for removing X’s overnight with the father altogether. The father’s own history brings into poignant relief the desirability of a child having a relationship with both parents if they can safely do so and X’s relationship with the father will lose considerable meaning if she does not spend an entire period of two days with him.
I intend to order that X spend time with the father each alternate weekend from Saturday morning to Sunday evening and for a few hours on Wednesday afternoon in the other week. This will ensure that she maintains a meaningful relationship with him but limit the time she spends with a parent who has an inability to empathise with her and who refuses to admit his culpability for violence.
I also intend to order that X commence spending holiday time with the father, limited to one week blocks, once she commences school in 2018.
It is important to note that although it is not open to me to find that there is an unacceptable risk of X being exposed to family violence in the father’s care at the moment, it is highly likely that the father will form another live in relationship and there is a risk that the father may perpetrate family violence in that relationship. He was verbally abusive to the mother and engaged in coercive and controlling behaviour and was seriously physically violent to her at the end, he minimises his culpability for the violence and will not do a perpetrators course and he is not empathic to others.
That fact that this risk exists is not sufficient to justify reducing X’s time with the father at present; it is a risk but it is not an unacceptable risk balanced against the benefit to X of feeling loved and valued by her father. However if X is ever exposed to family violence in the future the father’s time with her may become very limited indeed if not removed altogether.

X’s surname

The mother sought an order that X’s surname be changed from Weekes to Pitcher-Weekes. She said, and she was not challenged about this, that when X was born she asked the father to agree to her surname being Pitcher-Weekes but the father would not agree and the mother gave in and consented to the child being registered as Weekes.
The mother said that both she and Y used the surname Pitcher and that if X was called Pitcher-Weekes she would have a name in common with the mother and Y and it would be obvious to all that they were part of the one family.
It was the mother’s case that X was young and would easily adapt to a change of surname.
During cross-examination the father said that he considered that X’s name should remain Weekes because that was the name she was given at birth.
There are numerous reported decisions on change of surname applications and the two things which can be distilled from these cases are:
i)That in cases in which an order is sought for a change of surname (as opposed to a case in which an injunction is sought restraining a parent from using a particular surname) the best interests of the child are the paramount consideration.[10]
ii)That every case of this nature turns on its own facts.[11]
[10] Ryan & Burnett(2008)FamCAFC72
[11] Flanagan & Handcock (2000) FLC 93-074
The parenting orders I intend to make will see X spending the vast majority of her time with her sister and mother who both bear the surname Pitcher, and it will make sense to the child that her name includes the name of her mother and sister. It will also make it clear enough to other people who are introduced to the sisters that they are sisters, without tedious explanations needing to be given.
The only reason the father put forward for the name not being changed was that X had been christened Weekes at birth but that is not a reason for refusing to change the name if other factors favour the name being changed.
X does not have a view about the surname issue and I am sure that she will adapt to a change of name. It will not be a complete change because Weekes will still be her very last name and Pitcher-Weekes is a euphonic name.
I am satisfied that it would be in X’s best interests to order the change of surname and I will make orders to this effect.

I certify that the preceding two hundred and seventy five (275) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 5 October 2016

[2016] FCCA 2486

5 October 2016

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Jurisdiction