Welcher & Welcher
[2021] FedCFamC2F 628
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Welcher & Welcher [2021] FedCFamC2F 628
File number(s): DUC 407 of 2017 Judgment of: JUDGE OBRADOVIC Date of judgment: 22 December 2021 Catchwords: FAMILY LAW – Parenting – serious allegations of family violence – verbal, psychological and emotional abuse –father’s belligerent attitude and approach – risks to child – order for no time. Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA, 117, 102NA Cases cited: Banks & Banks [2015] FamCAFC 36
Chapman & Palmer [1978] FamCA 86
Mazorski & Albright [2007] FamCA 520
McCall & Clark [2009] FamCAFC 92
MRR v GR [2010] HCA 4
Slater & Light [2011] FamCAFC 1Division: Division 2 Family Law Number of paragraphs: 154 Date of hearing: 28, 29 and 30 July 2021 Place: Dubbo (via video link) Appearing for the Applicant: In Person Counsel for the Respondent: Mr Dalzell Solicitor for the Respondent: Peacockes Solicitors Appearing for the Independent Children's Lawyer: Ms Blackman Solicitor for the Independent Children's Lawyer: Legal Aid Dubbo ORDERS
DUC 407 of 2017 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR WELCHER
Applicant
AND: MS WELCHER
Respondent
ORDER MADE BY:
JUDGE OBRADOVIC
DATE OF ORDER:
22 DECEMBER 2021
THE COURT ORDERS THAT:
1.The Mother shall have sole parental responsibility for the child, X, born in 2015 (“the child”).
2.The child shall live with the Mother.
3.The child shall spend no time with the Father.
4.The proceedings are listed for hearing in respect of costs at 9:30am on 9 May 2022 at Dubbo.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym Welcher & Welcher has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE OBRADOVIC:
Introduction
The applicant, Mr Welcher (“father”) and the respondent, Ms Welcher (“mother”) have one child together, 6 year old X (“child”), who is the subject of these proceedings.
The parties separated in October 2016, shortly after the child had turned 1. The mother has always been her primary carer and primary attachment figure. After separation, the child spent very limited time with the father initially as arranged between the parents and in the presence of the mother, and then time supervised at a contact centre from early 2019, with such time being disrupted by the COVID-19 pandemic restrictions in 2020. The last time the child spent with the father was in February 2021.
For reasons which are explained herein, the Court has serious concerns about the father’s attitude, not only to the mother, but to society and authority in general. He is a dangerous and belligerent man. The father has displayed a high-degree of anti-social behaviour for the majority of his adult life.
In all of the circumstances, the only order which is in the child’s best interest and which will ensure some level of safety for both the child and the mother, is for there to be no time between the child and the father.
Procedural History
On 2 July 2018, the father commenced parenting proceedings in the then Federal Circuit Court of Australia at the Dubbo Registry. On 15 October 2018, orders were made for the appointment of an Independent Children’s Lawyer (“ICL”). The mother filed her Response on 29 October 2018.
On 20 November 2018, a child dispute conference was held between the parties and a Family Consultant, where an agreement was reached for the child to commence spending supervised time with the father. On 18 December 2018, orders were made for the preparation of a Family Report and by consent interim orders were made for the child to spend supervised time with the father for 2 hours each week. On 21 November 2018, a divorce order was made, with the divorce taking effect from 22 December 2018.
Following this, the Family Report was released on 3 February 2020, with trial directions being made on 20 February 2020. On 18 September 2020, orders were made setting the matter down for final hearing on the 28, 29 and 30 July 2021, and the Court declared that pursuant to s.102NA of the Family Law Act 1975 (Cth) (“Act”) the father was restrained from cross-examining the mother.
The father’s solicitor filed a Notice of Withdrawal as Lawyer on 13 July 2021.
The matter was due to be heard on circuit in Dubbo over three days commencing on 28 July 2021. Due to COVID-19 restrictions in force in New South Wales preventing intra-state travel, the matter was heard remotely, with appearances by Microsoft Teams. On the morning of 28 July 2021 the matter was stood over until 29 July 2021 to allow the father, who represented himself in these proceedings, the opportunity to avail himself of all the relevant documents within the Court file. The ICL assisted by providing to the father hard copies of relevant documents.
On 29 July 2021, upon application by the mother, the Court declared that the father is also restrained from cross-examining the maternal grandmother, Ms B, pursuant to s.102NA of the Act.
The mother and the ICL relied on Case Outline documents filed 23 July 2021 and 26 July 2021, respectively. At the conclusion of the evidence, the parties all provided written submissions which the Court has had regard to.
Applications before the Court
The matters requiring determination by this Court are parental responsibility, living arrangements and the time each parent is to spend with the child.
The father in his Amended Initiating Application filed 3 August 2020 seeks orders, inter alia, that the parents have equal shared parental responsibility and that the child lives with both parents on a week about basis. Leading up to the week about time, the father also seeks orders in accordance with the Application in a Case filed 24 September 2020, namely that the child remain living with the mother for a period of 8 weeks and that the child spend each Sunday for 8 hours with the Father, unsupervised. The father moves the Court for changeover to continue to occur through the services of C Family Services.
In her Amended Response filed 17 July 2020, the mother seeks orders, inter alia, that she have sole parental responsibility for the child, that the child live with her and spend no time with the father.
The ICL supports the mother’s application but moves the Court for an additional order that the father be able to send letters, cards and gifts to the child, with the caveat that they contain no derogatory messages.
Relevant Legal Principles
The central enquiry is for the Court to determine the outcome that will be best for the child the subject of these proceedings.
Parenting proceedings are governed by the provisions of Part VII of the Act. Section 60CA provides that in deciding whether to make a particular parenting order, the Court is to regard the best interests of the child as the paramount consideration. Section 60B of the Act outlines the objects and principles underlying Part VII of the Act.
In determining what is in a child’s best interests, the Court must consider the matters set out in s.60CC. Section 60CC outlines the primary and additional considerations that the Court is to take into account in determining what is in the best interests of the child. The Act does not mandate the discussion of considerations under s.60CC in any particular order, and it is well recognised that additional considerations may outweigh primary considerations (see for example Slater & Light [2011] FamCAFC 1 at [45])
In applying the primary considerations, the Court is to give greater weight to the need to protect children from harm than to the benefit to the child of having a meaningful relationship with both of their parents.
A meaningful relationship “is one which is important, significant and valuable to the child” (Mazorski & Albright [2007] FamCA 520 at [26] cited with approval by the Full Court in McCall & Clark [2009] FamCAFC 92 (“McCall”) at [121]). The focus is not on the relationship as such, but on the benefit the relationship might have for the child (McCall at [122]).
Section 61DA of the Act provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility. The presumption does not apply where there are reasonable grounds to believe a parent has engaged in abuse of the child or family violence and the presumption may be rebutted if the Court is satisfied that an order for equal shared parental responsibility would not be in the child’s best interests.
In the event that the Court orders the parents to have equal shared parental responsibility, the Court must apply the provisions of s.65DAA which provide for a consideration of the child spending equal time with the parents. If the Court finds that it is not in the child’s best interests or reasonably practicable, then the Court must consider the child spending substantial and significant time with the parents. Section 65DAA is expressed in imperative terms (MRR v GR [2010] HCA 4 at [15]).
While all relevant primary and secondary considerations have been considered, not each of the considerations has been discussed in the reasons. In any event, discussion does not mean consideration (Banks & Banks [2015] FamCAFC 36).
Credit
During the hearing, the father took every possible opportunity to obfuscate the issues in respect of which he was being questioned. He also took every possible opportunity to sling mud at the mother.
This is a matter in which it is necessary and proper to make credit findings. The father’s evidence in a number of material respects was unsatisfactory, not as a consequence of inadvertence but rather, because he deliberately attempted to mislead the Court. His oral evidence was at times in contradiction to his affidavit(s). Where relevant, particular findings have been made about the father’s evidence. The father was not a witness of credit.
The mother on the other hand, was thoughtful in her evidence and careful to answer to the best of her ability. Her answers were at times not particularly helpful to her case, but she did not shirk from them.
Relevant Factual Findings
Brief Chronology
The father was born in 1972, he is presently 49 years of age.
The mother was born in 1978, she is presently 43 years of age.
Both parties have children from previous relationships.
The mother has 3 other children being D, born in 2006 (presently aged 15), E, born in 2009 (presently aged 12), and F, born in 2010 (presently aged 11).
The father has 4 children of previous relationships including two adult children namely, G, and H and two non-adult children namely, J (presently aged about 13), and K (presently aged about 9).
In 2013, the father engaged with Corrective Services for previous domestic violence offences.
The parties began a relationship in or about mid-2013.
The parties were married in 2014. At this time, the mother’s three children who were then aged 8, 5 and 4 respectively, remained living with the mother and as such commenced living with the father, the respondent in these proceedings.
The parties’ child, X, was born in 2015.
In 2016, the mother suffered a miscarriage and required minor surgery.
The mother alleges that in July 2016, during an argument with the father he assaulted her. The father was not charged with any offence. Shortly thereafter, the mother received a threatening email which appeared to have been sent by the father. An Apprehended Domestic Violence Order (“ADVO”) was made for the mother’s protection.
In late July 2016, the mother was admitted to L Hospital mental health ward, and remained there for approximately one week.
The mother alleges that in October 2016, the father kicked her multiple times whilst she was in bed and that she suffered bruising as a result.
The parties separated on a final basis in October 2016, following a short separation in July 2016 and then a reconciliation.
In or around December 2016, the father sent the mother multiple abusive and derogatory text messages.
In or around January 2017, the mother alleges that the father pinned her against a wall and had his hands around her neck, whilst screaming verbal abuse at her, all the while the child was in the mother’s arms and the mother’s other children were present. The police were called in relation to this incident and the father was consequently arrested.
In May 2017, an incident occurred where the father refused to exit the mother’s vehicle. The mother had to seek the assistance of a neighbour. The mother then threatened to call the police unless the father exited the vehicle. The father then left the car.
On 13 July 2017, a final ADVO was issued for 12 months, where the mother was the person in need of protection and the father was the defendant.
On 15 May 2018, the ADVO was varied and extended until 14 May 2019.
The parties were divorced on 22 December 2018, when the decree became absolute.
In 2019, the mother commenced a relationship with her current partner, Mr M.
On 3 September 2019, after having supervised time with the father, the child returned to the mother with words “I love you mum” on the child’s chest and circles around both of the nipples, which were drawn by the father during his time with the child at the contact centre. The matter was reported to the police.
On 19 November 2019, 8 photographs of the mother in her underwear and in the nude were received by the maternal grandmother at her place of work. The mother contends that the father produced these images, as only he would have had access to such photographs. The father has denied this allegation.
On 21 November 2019, an interim ADVO was issued against the father in relation to the mother, the child, and the maternal grandmother, Ms B.
On 13 February 2021, the father made inappropriate comments during supervised time with the child. The contact centre asked the father to accept that the comments made were inappropriate and to refrain from making them in the future. Subsequently, the supervised time with the father was suspended.
On 11 May 2021, the City N Local Court made a final ADVO for the protection of the mother and the maternal grandmother, as a consequence of the photographs received by the maternal grandmother. The ADVO expires in May 2023.
Findings of Family Violence
Not every allegation of family violence which has been made by the mother is the subject of particular findings, nor is it referred to in these Reasons for Judgment. Only certain events are referred to below.
At the time of her miscarriage in 2016, the mother says that the father said to her “You did this. You killed the baby... It’s your mother’s fault the baby is dead. She caused you stress… You have mental health issues. You killed the baby and need help.” The mother found it extremely difficult to deal with the father’s accusations and says that “he ran [her]… into a dark hole”. The Court accepts the mother’s evidence about the father’s attitude to her and the blame that was laid at her feet.
In or around July 2016, an incident occurred in the presence of the mother’s children and the subject child, where the mother alleged that the father grabbed her by the hair and dragged her to the ground, pinning her head against the ground while he was on top of her.
The father denied the mother’s allegation and instead said that that it was in fact the mother who was physically violent and “hit” him in the shoulder and arm with a large bucket. In his evidence in chief, the father stated that he “grabbed” the mother and “sat her down” to prevent her from “assaulting” him. In cross-examination, the father said:
Ms Welcher had started an argument with G. Then when I came out of the shed Ms Welcher came over, started hitting me with a bucket that she had in her hand and like hysterically going off as she had done for months on end… I went to grab her by the shoulder but got her by her ponytail and I just sat her on the ground. And then when I sat on the ground crying to her, “Stop, please, this shit has to stop.” Because she had just been like a wild animal..
The police were called but no charge was laid against the father. It appears that during their investigation, the police spoke to the father’s son G. The mother and father separated after this incident.
On balance, the Court finds that in or around July 2016, during an argument between the parties that the father grabbed the mother by the hair and dragged her to the ground, and that he then pinned her head against the ground while he was on top of her. The Court finds that not only the child, but also the mother’s other children were present during this episode of family violence perpetrated by the father. The father’s behaviour on this occasion constituted family violence within the meaning of s.4AB of the Act.
Following this incident, referred to in paragraphs [56] – [59] above, on 18 July 2016, the mother received an email which appeared to have been sent by the father. The email read:
Just so you know I have padlocked both blocks so stay the fuck away CUNT
You must be a dumb CUNT if you think G wouldnt support my story
And why the fuck didnt you leave his fucking keys like he asked ???????
Thats right because your a trouble making CUNT
If you take any of my stuff from the house or do anything to my stuff your horses are fucking gone
And if you think your going to cause trouble for me and G think again cause next time i will drive your fucking face into the ground CUNT
(Errors in original)
The father denies that he sent the email. He asserts that because he and G were in Suburb O on the day the email was sent and because the email has a particular signature block, that it could only have been sent from his home desktop. He also stated that “the matter was investigated by police” and the “police seized [his] phone and confirmed [he] could not have sent the email”.
In cross-examination, the father said that he did not write the email, but rather that it was the mother. He further said that he had proved to the police, “beyond the shadow of a doubt that the only place that email could have been sent from was from my computer… it was quite easy to prove that I couldn’t send it from my phone… it has like a email footer thing on the bottom”. When asked questions about the fact that the email address was a hotmail address which could be accessed remotely, the father feigned ignorance and said that he was “pretty limited with technology”.
There is no evidence as to any findings made by the police or indeed what investigations, if any, the police undertook in relation to the father’s assertions that the mother sent the email to herself. Had the mother engaged in such a fraudulent act it is likely that the police would at least have taken some steps to investigate the father’s allegation. There is no evidence that they did.
The Court does not accept the father’s evidence about the email not being sent by him nor the reason put forward as to why he could not have sent it. The Court further finds that the father’s evidence about the email is deliberately untruthful. The tone and content of the email is consistent with the manner the father addresses the mother in text messages sent later that year and it is consistent with the event as found to have occurred in paragraph [59] above.
The Court finds that the father did send the email to the mother on 18 July 2016. It is behaviour that falls within the definition of family violence within the meaning of s.4AB of the Act.
Next, the mother was admitted to Mental Health Ward of L Hospital on 28 July 2016 for suicidal ideation. The mother spent one week in the hospital and was discharged on 4 August 2016. The mother’s evidence, which the Court accepts, is that this admission was due to the difficulty of dealing with the domestic and family violence, breakdown of the marriage, financial stress, as well as the ongoing Family Court proceedings with her former partner.
An interim ADVO was then made for the mother’s protection.
The parties commenced couples counselling in or about August 2016. During such a counselling session on 8 September 2016, the father threw a babies’ bottle into a wall. The child was present. During cross-examination the father attempted to minimise the abusive nature of his conduct, and in general obfuscated the issue. He said:
No, it didn’t smash. And this was just another example. We go to counselling to try and sort out our problem and Ms Welcher just turns it into a popularity contest. Sits there, just full on, I’m this and I’m that and just completely running me down to… the counsellor. And you know, wouldn’t stop… And so I just threw the bottle at the wall and said “Stop. This has got to stop.”
Then, when asked by Counsel for the mother if he considered his behaviour inappropriate the father answered with:
“Of course. It’s all my fault, You don’t think her behaviour is inappropriate, mate?”
The father’s behaviour on this occasion constituted family violence within the meaning of s.4AB of the Act. After this incident the counselling service would no longer engage with the parties.
The mother says that on one occasion in October 2016, the father and her were arguing. The father then began kicking her whilst she was in bed, until he kicked her to the floor. The mother managed to get up off the floor and took X out of the cot which was in the parties’ bedroom. At the time, the child was screaming in fear. The mother went out into the lounge room, and the father followed her calling her names and verbally abusing her. D came out of her room to check on the mother once the noise stopped. The mother was too frightened to go back to bed and spent the night in the lounge with X in her arms. Notwithstanding that she had some bruising, the mother did not seek any medical attention.
A few days after this incident, the parties had another argument about a family birthday party and whether the mother would be permitted by the father to attend with all of the children. During the argument the mother turned her back to the father and promptly heard smashing sounds. She ducked down in fear and observed that the father had thrown a computer mouse at the wall and left a hole. The mother also observed some items on the father’s computer desk which were broken. The mother grabbed the child and left the former matrimonial home for good.
Following this incident, the father was charged with assault, but subsequently was found not guilty. An ADVO was however made for a period of 12 months for the protection of the mother.
When he was cross-examined about the two incidents in October 2016, referred to above, the father denied that the incidents occurred in the way the mother alleged. He further went on to say:
…no. And this again was all proven in court. No. Another one of her stressed-out stories…
No. But I recall that Ms Welcher had me charged at some point about… some incident that happened around that time. And it was proven in a court of law not guilty because it didn’t happen. Just her – I don’t know, she seems to think she can just use the justice system to gain some sort of revenge against me for whatever reason. I don’t know.
The Court accepts the mother’s evidence in relation to the two incidents described to have occurred in October 2016, and finds that such behaviours by the father constitute family violence within the meaning of s.4AB of the Act.
Between 12 December and 29 December 2016, the father sent the mother multiple abusive and derogatory text messages. The father does not deny that he sent the messages, but rather says that the record is not complete and that the mother doctored the chain of messages and deleted the messages which she had sent him, which were abusive themselves.
The Court accepts that the mother has not in any way doctored the messages or their chain, and that her evidence contains both the father’s messages to her and her messages to the father. Examples of the father’s text messages are as follows:
Every one can see just what a lying, manipulating Phycotic… piece of trash you a really are
Your an evil peice of shit
I just hope you drop dead real soon
Your lying peice of shit
The best thing that could happen to those kids… is to be taken off you… because your a lying cunt
Evil bitch
You slut
S lutt… by name
S lutt by nature
Have a nice life… Shitbag
You ungrateful lying peice of shit
Your just a face peice of shit with no loyalty
Your nothing but a Cum sponge & a sponge on my finances
Miserable slutt
You even look like an evil.. Fake piece of shit
You are the biggest peice of shit I’ve ever met
You look soo evil in that picture
Like the devil
(errors in original)
At this point, the mother responded with “And your a fat slob Who treats people like shit So fuck off & get a life” and “You’re a walking financial disaster Go get yourself in a diet And do something with that head”.
The barrage of abuse by the father then continued, with some examples being:
Your a fucking embarrassment… Same goes for your kids… There nothing to me
Those kids will only grow up to be shit bags like you… So there is no loss either.. Spoiler little cunts…
Your no better than a 2 bit hooker
(Errors in original)
The mother annexes to her affidavit some 65 pages of screen shots of text messages exchanged between the parties during this period. They are mostly from the father to the mother, and a large portion of them are abusive and harassing. The mother then blocked the father’s mobile number. The father however kept emailing the mother in a similar vein.
The text messages the father sent to the mother in December 2016 are vile, abusive, and threatening, and constitute family violence within the meaning in s.4AB of the Act.
The most serious assault perpetrated by the father which the mother describes occurred in January 2017. The mother’s evidence at paragraphs [45-47] of her affidavit about that incident is as follows:
45. A few days after Christmas Day 2016, Mr Welcher requested to see the girls and X. I was reluctant but tried to facilitate contact. We agreed to meet at the former matrimonial home in early January 2017. Mr Welcher and I began to talk about the number of dogs G had at our place. Mr Welcher exploded into a rage. I observed Mr Welcher kick a wooden box and smash a fishing tank. The next thing I knew I was pinned up to a wall. His hands were tight around my neck. I was gasping for air. Mr Welcher was centimetres away from my face, screaming abuse at me. X was in my arms. I remember being so scared that I was going to fall, and she would get hurt. It felt like forever, but the incident probably was only a few minutes.
46. Mr Welcher then grabbed me by the back of my neck with both hands and forcefully pushed me towards the front door. He was behind me. He reached around, opened the door and then forcefully shoved me out the door. X was still in my arms. As I was being shoved out the front door, I saw D out of the corner of my eye run out the side door. I could hear E and F behind me, screaming. I managed to turn around once I was outside after I had regained my balance and saw Mr Welcher shove E and F out the front door. The girls ran next door screaming and crying. E wet her pants she was so scared. I also went next door and called the police. Mr Welcher was subsequently arrested.
47. In January 2017, the children and I were placed in the Staying Home Leaving Violence (SHLV) program through police. The SHLV staff assisted me and the children to get into a woman's refuge where we stayed for a couple of weeks until we got a safe house through Compass Housing. I was also issued a duress alarm to keep us safe. SHLV staff also assisted in getting quotes for further security upgrades to the house.
When cross-examined about this incident, the father denied that the event occurred as described by the mother. Instead the father said that:
Ms Welcher… just started going off about G and his dogs. You have to start his again. And I asked her to leave and she wouldn’t leave. So I walked her to the door, shut the door behind her. Went back, got her handbag, put it out there, said please leave. And I locked the door behind her. Simple. Happy environment for everyone. It’s no good for the kids, like, for this constant crap to be going on. That’s why I always used to go and put an end to it, straight away.
The father said that the claim that he tried to strangle the mother was “absolute rubbish”. He said that:
I was behind her with my arms around her waist. Gently walked her to the door. Then out the door and I shut the door behind her.
The father also said that he could not have had his hands around the mother’s neck as she alleged because he has “underdeveloped” fingers (he is missing a knuckle joint in his fingers) and thus it would “make it pretty awkward to try and wrap your hands around someone’s neck and choke them to death”. He then said that while he can work and do things in his everyday life, “Just not killing people, not good at strangulation, that’s all.”
While the father was charged and ultimately the charges were dismissed relating to this incident, the Court finds on balance that the father did assault the mother in the manner she alleges. Such conduct was a serious physical assault and constituted family violence within the meaning of s.4AB of the Act.
The mother describes another incident which occurred in May 2017, which left her frightened. The incident is described in detail in her evidence in chief. The crux of it was that the mother had agreed to help out the father by driving him to and from an open day held at the City N Fire Brigade. The mother had X and her other children in the car. When she took the father home, he refused to get out of her motor vehicle. After some time trying to negotiate with the father, the mother got out of her motor vehicle on the pretence that she needed to change the child’s nappy and sought the assistance of the father’s neighbour, who came out and tried to help the mother. Ultimately, the mother said to the father that if he did not get out of her car, she would call the police. It was only after this that the father exited the mother’s motor vehicle, after which he went into his home. The mother and the children left, and the mother reported the matter.
It is denied by the father that any argument took place in May 2017, where the mother alleged that the father refused to exit the mother’s car. The father stated that the mother was “acting very strange”, and that after this date the mother “refused to talk” to him.
The Court accepts the mother’s evidence about this event in May 2017, and prefers her evidence over that of the father, who again attempted to minimise his behaviour and blame the mother.
In or about November 2019, explicit photographs of the mother were posted to the maternal grandmother’s place of work. From the maternal grandmother’s evidence at paragraph [34] she stated that the envelope “had an incorrect name and address on it”, but she could see that it was intended to be addressed to her place of work. The maternal grandmother then opened the envelope and found explicit photos of the mother, which made her feel “physically sick”.
The mother said that she recognised the photographs taken of her in her underwear as photos which were taken during the course of the relationship with the father. The mother’s evidence is that no other person could have had those photos as she did not send any photos of her in her underwear or in the nude to any other person, other than the father. It was the mother’s evidence that the only person who could have sent those photos to the maternal grandmother was the father. The mother reported the incident to the police, who then made an interim ADVO against the father dated 21 November 2021.
The father denies that he sent the photographs and in his written submission wrote that this was a further attempt by the mother “to manipulate the system in her favour”.
The mother also alleges that the father used money as a means of controlling her, giving her a strict budget in which she was to do all grocery shopping and pay expenses. If she required more money she would be made to provide reasons as to justify the additional expenses. On balance, and despite the father’s blanket denial, the Court finds that the father did use financial means to control the mother and that this was part of a pattern of behaviour in which he engaged, with such behaviour amounting to family violence within the meaning of s.4AB of the Act.
The father asserted that he was charged multiple times by police for various offences including charges of domestic violence. It is the father’s position that where the police chose not to charge him it was because the police “did not believe [the mother’s] story”. He stated that on the occasions he was charged by the police, the charges were either dismissed, or if the matter was taken to trial, he was found not guilty and therefore no weight should be given to these charges. The father also gave evidence that he was harassed by the police and that the mother had them in their pocket, which is why they were acting on her complaints.
The father’s untruthful denials, minimisations of his poor behaviour even in the face of some admissions, his version of events and the mocking manner in which he gave evidence, speak very strongly of the contempt he holds for the mother and the legal processes.
Father’s criminal and related history
The father has a long history of criminal and anti-social behaviour:
· Offence Date/Charge Date
· Offence
· Sentence
· 1990
· Offensive Language
· s.556A recognisance: $200 and good behaviour for 6 months
· 1993
· Offensive Language
· Fine $150, Court Costs $45
· 1993
· Malicious Damage – 2 counts
· Fined $200 on each count, Court costs $45 and Compensation $50
· 1996
· Mid-Range PCA
· Fined $800, court costs $50, Licence Disqualification 3 months
· 1996
· Mid-Range PCA
· Fined $1000, court costs $50, Licence Disqualification 6 months
· 1996
· Offensive Language
· Fined $300, Court costs $51
· 1996
· Breach of Apprehended Violence Order
· Fined $400, court costs $51
· 1997
· Assault Police
· Resist Police
· Drive whilst cancelled
· Fined $200, court costs $51
· Fined $200, court costs $51
· Dismissed
· 1998
· Offensive Language in/near Public Place/School
· Fine $600, court costs 451
· 1999
· Common Assault
· Convicted s.80AA, warrant to issue
· 199
· Contravene ADVO Order
· Warrant to issue
· 2001
· Contravene ADVO
· Imprisonment, 12 months
· Suspended on enter bond s.12, 12 months
· 2000
· Assault
· Contravene ADVO
· Convicted s.25(2), warrant to issue
· Warrant to issue
· 2000
· Common Assault
· Contravene ADVO
· Commit an Act of Cruelty Upon an Animal
Imprisonment, 12 months, suspended to ender bond s.12, for 12 months
Fine $500, court costs $56
· 2000
· Assault
Imprisonment, 12 months, suspended to ender bond s.12, for 12 months
· 2001
· Contravene ADVO
· Assault with Act of Indecency
Fine $500, court costs $56
Dismissed
· March 2001
· Contravene ADVO
Imprisonment, 12 months, suspended to ender bond s.12, for 12 months
· February 2001
· Contravene ADVO (3 counts)
·
· Contravene ADVO
· Bond s.9, 18 months attend programmes and comply with ADVO
· Dismissed
· 2003
· Common Assault
· Destroy or Damage Property
· Withdrawn
Withdrawn
· 2003
· Wilfully Obstruct Officer in Execution of Duty
· Assault Officer in Execution of Duty
· Resist Officer in Execution of Duty
· Behave in Offensive Manner in/near Public Place/School
· Obstruct/Delay Police Officer in Execution of Duty
· Use Offensive Langue in/Near Public Place/School
· Bond s.9, 12 months, court costs $61
· Withdrawn
Withdrawn
·
· Withdrawn
Withdrawn
Adjourned generally
· 2003
· Larceny (3 counts)
· Goods in personal custody suspected of being stolen
· Fine $500, court cots $61
· Withdrawn
· 2004
· Contravene ADVO
· Fine $500, court costs $63
· 2004
· Drive unsafely loaded vehicle causing death/injury/damage
· Fine $500, court costs $63
· 2004
· Common Assault
· Maliciously wound
· Withdrawn
· Community Service Order (“CSO”), 500hrs, severity appeal with stay lodged
· Appeal: Conviction confirmed, in lieu of CSO, 150 hrs to comply with supervision regarding Drug/Alcohol and anger management
· 2012
· Common Assault
· Bond s.9, 12 months
· 2013
· Use carriage service to menace/harass/offend
· Recognisance s.20(1)(A), Fined $500, 12 months supervised NSW Probation Service
· 2013
· Common Assault
· Destroy or Damage property
· Imprisonment, 9 months suspended on entering into a Bond s.19, 9 months supervised NSW probation Service
· 2013
· Contravene ADVO
· Imprisonment, 9 months commencing 18/12/2014 concluding 17/09/2015, non-parole period of 1 month.
· 2014
· Contravene ADVO (18/10/2014)
· Dismissed
· 2014
· Contravene ADVO (22/11/2014)
· Fine $500
· 2015
· Common Assault
· Dismissed – Not guilty after hearing
· 2015
· Common Assault
· Contravene ADVO
· Assault occasioning ABH
· Contravene ADVO
· Contravene ADVO
· All Dismissed – Not guilty after hearing
· 2017
· Contravene ADVO
· Dismissed
· 2017
· Detention Application- Arrest
· Use of Offensive language in/near public place/school
· Assault officer in execution of duty
· Breach of bail established
· Dismissed – Not guilty after hearing
· Dismissed – Not guilty after hearing
· 2018
· Detention Application- Arrest
· Contravene ADVO
· Contravene ADVO
· Contravene ADVO
· Contravene ADVO
· Breach of bail established
· Fine $100
· Fine $100
· Fine $300
· Dismissed – Not guilty after hearing
· 2018
· Contravene ADVO
· Dismissed – Not guilty after hearing
· 2019
· Not give particulars to other Driver
· Use unregistered motor vehicle on road
· Use uninsured motor vehicle
· Drive vehicle while licence suspended
· Not give way
· Fine $250
Fine $500
Fine $500
Dismissed – Not guilty after hearing
Dismissed – Not guilty after hearing
· 2019
· Warrant
· Use of Offensive language in/near public place/school
· Carry cutting weapon
· Behave in Offensive manner in/near public place/school
· Warrant executed
· Dismissed – Not guilty after hearing
· Dismissed – Not guilty after hearing
· Dismissed – Not guilty after hearing
· 2019
· Drive vehicle while licence suspended
· Dismissed – Not guilty after hearing
· 2019
· Drive vehicle while licence suspended
· Dismissed – Not guilty after hearing
· 2019
· Interim ADVO
· Issued against the father in relation to the mother, the child and the maternal grandmother
· 2021
· Final ADVO
· Issued against the father in relation to the mother, and the maternal grandmother, set to expire 10 May 2023
Despite the above, the father has maintained throughout the proceedings that after the assault on his son in 2012 (which the father submitted ought to be bundled with the breaches of apprehended domestic violence orders in 2013) he is a changed man as he is no longer drinking.
In or around 11 February 2013 an incident took place between the father and his ex-partner, Ms P, the mother of K, at a local McDonald’s. During this altercation the father did not allow his ex-partner to leave with K and as a result an argument took place. The father then threw a “cup full of Coke” at his ex-partner to “cool her down”. The father then hit his ex-partner in the face whilst she was holding their daughter. The incident then culminated with the father taking a pair of sunglasses from his ex-partner’s head, throwing them on the ground and then stomping on them causing them to break. The father was subsequently charged and imprisoned for a period of 9 months which was suspended and he was place on a s.12 Bond.
The father in cross-examination explained that his ex-partner “crossed the restaurant and like to wrestle with me”. The father admitted that he did throw the cup of Coke at his ex-partner, and that he destroyed the sunglasses, but remained adamant that he did not hit her.
While the Court accepts that the evidence supports the father’s assertion that he is longer drinking alcohol and that he has not done so since 2012 when he assaulted his then 16 year old son by “giving him a belting”, the Court does not accept that he is a changed man.
There is no evidence of the kinds of matters referred to by Mr Q, such as a psychiatric assessment, psychiatric intervention or some sort of medication, which might have satisfied the Court that the father has insight into his behaviours and their affect, or indeed that he is no longer engaging in these types of behaviours. Indeed, Mr Q is of the opinion that the “father needs to learn some skills to deal with conflict and managing adverse situations rather than just with both barrels…”
The father simply does not have these skills nor does he in any way acknowledge that he has a significant, or indeed any deficit, in that regard.
Determination
Family Violence
A matter which looms large in these proceedings is the issue of family violence and the father’s violent and anti-social behaviours.
The father has an extensive history of domestic violence claims against him. There is currently an ADVO, made by the City N Local Court on 11 May 2021, against the father preventing him contacting the mother or maternal grandmother, or from going within 200m of where they live or work. The ADVO does not lapse until 10 May 2023. It is also noted that previous ADVOs have been issued against the father restraining him from approaching the mother.
Further, the father has also had ADVOs against him in relation to his former partners and there have been proceedings for ADVO contravention. As a result of the contravention the father was incarcerated in December 2014 for 1 month.
The mother’s evidence of incidents of family violence is detailed. The father, in essence, denies all allegations of family violence, stating that they have been fabricated by the mother in order to manipulate the outcome of these proceedings. The Court accepts the mother’s detailed evidence and finds that the father perpetrated family violence as explained earlier in these reasons for judgment.
It is important to understand at least some of the historical events in order to understand the father as he presents to the Court at the time of hearing.
Mr Q gave the following evidence:
… the father appears to be aggressive and has very poor conflict resolution skills, that, if there’s any sort of conflict, it’s just wham, bam. Let them have it… A very low frustration tolerance. There’s impulsiveness, and also poor problem solving skills, and there does appear to be a lack of insight into his behaviour and the effect that his behaviour would have on other people, including perhaps his daughter…
The mother’s other children, D, E and F, are “terrified of [the father]” and have described him as a “pure evil monster” and “dangerous”. Mr Q did not see any direct evidence that the mother’s other three daughters had been “put up to” telling the Family Consultant that there had been violence perpetrated by the father, but that it was possible that they were influenced by the mother’s position about the father. The concerns raised by those there children appeared to Mr Q to have been genuine.
Not only does the father not have the will or the skills to change his poor conflict resolution skills, but he refuses to acknowledge that he has been physically and verbally abusive to the mother, and he continues to belittle her.
The degree of domestic violence trauma experienced by the mother was described as “severe” by her counsellor.
Maturity, sex, lifestyle and background and Attitude to child and responsibilities of parenthood
A stark example of the father’s attitude to the mother, his total incapacity to foster a co-parenting relationship or indeed to foster or encourage any type of relationship between the child and her mother, and his general attitude to the responsibilities of parenthood is found in his written submissions, where he says the following:
My life with Ms Welcher was one of extreme highs & happiness
To extreme darkness & dispear
The only real way I can describe it is ;
The Beautiful, kind, fun loving girl that I met & married – I still miss everyday
However the Evil, Narsisitic, hurtful, spiteful person she became & I believe still is now.
Possessed by the Devil – like something from the Excorcist.
I can not stand the sight of or stand to be around…
(errors in original)
The fact that the father believes and/or thinks that it is not only acceptable, but somehow persuasive, to speak of the mother in this manner (and indeed to address the Court in this manner) is demonstrative of the contempt he holds the mother in and of his condescending, and smug attitude. It also leads the Court to infer that the father has a belief that he is morally and intellectually superior to the mother, which is completely misguided.
Findings have already been made about the father not having the skills to deal with conflict and managing adverse situations or that he has acknowledged that he has a deficit in this regard.
The Court is considerably troubled by the father’s attitude and lack of respect for the mother and the maternal family. When asked about whether it was appropriate to be saying to the maternal grandmother that she was “nothing but a bitch” the father responded with “Yes. It’s true… I could have used much harsher language. So I don’t believe it was over the top, no, given the situation.” The situation described occurred in a hospital following the mother’s admission in July 2016.
The father has sent text messages to the mother’s step-father (the child’s grandfather), which were derogatory and abusive. For example on 3 December 2017, the father sent Mr R a text message which read “Please tell your big fat mrs & her mad daughter to keep away from my house” and “the pair of trouble making cunts”. This was a reference to the maternal grandmother and to the mother. The father admitted to sending the messages, and upon questioning refused to concede that the language used was offensive, threatening or inappropriate. Indeed, in the father’s view, such language “amongst men in the real world” is “just normal behaviour”.
The father has told the child that the mother’s current partner is a “retard”. In his oral evidence he admitted to doing so “Because he is retarted.” The father again, did not see anything wrong with such language or such behaviour. To his mind, he had every right to tell a young child what he thought of her mother’s partner.
The father has spent no time with the child since 13 February 2021, due to the contact centre suspending supervised contact. The reason provided by the contact centre for suspending contact was due to the father’s inappropriate behaviour towards the child, where the father was telling the child about the mother’s miscarriage and calling the mother’s new partner a “retard”. The father also refused to take instruction from the supervisor who repeatedly asked for the father to keep the conversation with the child “age appropriate” and refrain from discussing the topic. While the father denied in cross-examination that these matters were brought to his attention by the centre in this manner, the Court prefers the evidence contained in Exhibit 2 as being a correct record of what occurred rather than the father’s oral evidence.
As noted earlier the mother has had an admission to hospital in respect of mental health issues. The father submitted that the mother suffered from severe post-natal depression and was admitted to Hospital in order to seek treatment. He also alleged that the mother has been prescribed medication to treat her depression and that when she failed to take her medication she became violent and took “out her aggression on the girls”, which then resulted in physical violence.
The Court does not find on the evidence that the father’s assertions of the mother being violent towards the children has been established.
While the Court accepts that the mother was suffering and having difficulties at the time of her admission in July 2016, the Court does not accept that the mother was violent or volatile in the manner described by the father in his evidence.
The mother is presently in a stable relationship. She is feeling healthy and happy. There are no indicators that she presently suffers from any mental health issues or that even if she did, that such issues impact upon her parenting capacity.
Any views expressed by the child and Nature of the child’s relationships
X is not of an age or level of maturity where her views would be given any meaningful weight.
The contact centre records as well as Mr Q’s evidence, indicates that in general the child has been able to experience a positive relationship with the father, and that she has enjoyed her time with him in the confines of a supervised contact service. This is to be understood in light of the mother’s evidence where she says the child was receiving gifts from the father on a regular basis (despite centre rules that this not occur) and that X is generally a happy and loving child.
The mother is the child’s primary care giver and her primary attachment figure. The child has lived with the mother for the entirety of her life, and the mother has been able to provide a safe and loving home to her post separation.
The child has important and established relationships with her half-siblings who have lived with her for the entirety of her life. She also has important and established relationships with her extended maternal family.
Participation in child’s life and capacity to provide for needs of child
The father has not availed himself of all of the available opportunities of spending time with the child. He has chosen to blame the mother for this, rather than taking the time to try to understand what it is that the contact centre was telling him about his own behaviours.
After time at the contact centre was suspended, the father had the opportunity of doing some self-reflection and thinking about what would be in the child’s best interest. He had the opportunity of putting the child’s needs first, rather than his own. He had the opportunity of trying to maintain and build a relationship with his daughter. Instead he chose to act on his hurt feelings and sense of indignation.
When asked to describe the child, the father gave an answer that was almost entirely focused on him. He said of the child:
She’s happy. She’s like always glad to see me. She’s always like “Daddy” and comes running and jumps and throws her arms around me and she’s very affectionate. Like, always like at the C Family Services thing she spends most of the time sitting on my knee while we like colour in or play with whatever we’re doing like at a table.
…
So, she’s a very loving child I guess we will say. Affectionate.
The father’s answer did not shed any light on what the child was actually like or what the father thought the child was like, except that he described her as affectionate. In one sense it is understandable given the limited time that he has spent with her. However, his answer shows that the father’s focus is on himself. There is very limited, to no evidence, which would lead to a conclusion that the father has an understanding of what his child is like, what her needs are and wants might be, and how he could meet her emotional and physical needs.
The father’s conversations with the child at the contact centre about the miscarriage the mother had in 2016, and about the mother’s partner being a “retard” were completely inappropriate. Such conversations show that the father lacks capacity to meet the child’s emotional needs.
The mother has been and is able to meet the child’s emotional and physical needs. Her capacity to do so in the future may become compromised if the child is to spend time with the father, as noted elsewhere in these reasons for judgment.
Likely effect of Change
The orders which the father moves the Court for would see a significant change to the child’s living arrangements. The father wants the child to live with him on a week about basis. This would see the child away from her mother and her siblings with whom she has lived her entire life, for significant periods of time. It would see her living in a home that is new to her, and living with a person who she hardly knows. The father’s application shows his lack of understanding as to the effect such changes would likely have on the child and her sense of security and wellbeing.
Other relevant matters
The father has an extensive criminal history. The Court accepts the mother’s evidence that when she found out about these matters early on in the parties’ relationship, she did not believe that she was in danger. The mother explains that the father had this ability to make what he said sound completely rational, even if there was evidence to the contrary.
The Court made findings at paragraphs [85] and [94] above that the father’s denials, his versions of events, and the mocking manner in which he gave evidence speak very strongly of the contempt he holds for the mother and the legal processes. This is further supported by his proud admission that he considered barristers and solicitors “and such” as being “just pond scum and feed[ing] off the misery of other people and little kids”.
The father’s submission as to relevant authorities being “Kramer vs Kramer 1979” and “One flew over the cuckoos nest 1975” which according to the father “clearly demonstrate just how unfair & broken the legal systems that governs people’s lives really are” also support the Court’s finding in relation to the contempt the father holds the legal process in, and lead to a further finding that the father is very much mocking the legal process. He considers himself an untouchable and beyond the reproach of the law.
This finding, together with his history of breaches of protective orders, lead to a finding that there is a real and significant risk that the father will not comply with the orders of this Court. There is at present an ADVO for the mother’s protection, which provides a further measure of safety for the mother. But for that, the Court would have been inclined to make an order pursuant to s.68B of the Act.
Primary Considerations
While there is some evidence that the child enjoyed spending time with the father, the Court accepts the mother’s description of X as a child who is generally very agreeable and a child who “loves” everybody. No doubt, during the limited periods of time that she did spend with the father at the contact centre, X was showered with love and affection, and given her personality returned such affection.
However, there is real doubt whether long term the father has the capacity to have a relationship with the child which will be meaningful to her in a way that is beneficial.
The father poses a danger to the child, not only through his attitude towards the mother, but also through his violent and abusive behaviours. Furthermore, there are real and significant risks that the father will continue to engage in abusive behaviours and that he his poor conflict resolution skills would result in the child being in a situation that is volatile and dangerous. She is still very young and vulnerable, and needs to be protected.
Parental Responsibility
Given the findings of family violence, the presumption of equal shared parental responsibility has been rebutted.
The parties do not have any capacity to communicate with each other in a meaningful way which might see them even discussing, let alone deciding together, important long term decisions concerning the child. In all of the circumstances, it is in the child’s best interest that there be an order for the mother to have sole parental responsibility for the child.
Conclusion as to Time
The Family Report writer stated that “the parental relationship between the parties is non-existent” and asserted that “a shared care arrangement for X faces the obstacles of a poor parental relationship between the parties that is unlikely to ever improve, the living distance between the parties and the father’s untested capacity to provide day-to-day care for X in an unsupervised environment”. The Court has already indicated that the father’s application for equal time is in all of the circumstances not child focused.
Mr Q’s recommendations for an incremental increase in time, were predicated on the proviso that there is a finding of no safety concerns with the child seeing the father.
There are serious safety concerns the Court holds should the child be spending time with the father which is not supervised.
Long term supervision is simply not an option. The father has demonstrated an incapacity to behave in a manner which is not detrimental to the child even under supervision. His discussion of the mother’s miscarriage with a young child who cannot possibly understand such things, his refusal to comply with centre rules about bringing gifts, his stated opinions of the supervisors at the contact centre as being “self proclaimed experts” and “a joke”, where they “don’t give a fuck about the child’s rights or the father’s rights”, and that they are “only interested in wrapping the mother in cotton wool”, all speak against an order for supervised time.
The Family Report writer stated that “if the Court were to find that X would be unsafe with her father in an unsupervised environment it would be contrary to her best interests for unsupervised paternal time to occur.”
Furthermore, the mother gave the following evidence:
Question:If the court makes an order for X to recommence spending time with her father, what impact do you think that that might have on [your]… sense of wellbeing…?
Answer:… it would be traumatic. That is, it would be traumatic not just for me. I’ve got three other kids who he has – terrified of him. I know it’s one thing for him to sit there and say “Oh, none of this happened.” Those children saw everything and the only reason they can’t give evidence is because of their ages. … He is soul destroying. That’s not what I want for any of us…
The Court accepts that the mother and her three children from a previous relationship, would find it traumatic if X was to spend time with the father. Given that the mother is the child’s primary care giver, the mother’s wellbeing is a relevant factor to be taken into account. Being traumatised in the way she says she would be, would likely have a detrimental effect on her capacity to parent.
In all of the circumstances, it is in the child’s best interest that there be an order that she spend no time with the father.
Mr Q was of the opinion that it would be of benefit to the child that if there was an order for no time, that there then be an order for the child to receive gifts or cards from the father on special occasions. The mother has concerns about such a proposal but has indicated that she would comply with such an order.
The child will not be spending any time with the father. This in itself poses some risks to the child long term as identified by Mr Q. Those risks would be somewhat ameliorated by an order that the child have the opportunity of receiving an occasional card or gift from the father, which would in the words of Mr Q, have the benefit of the child knowing “that her father cared about her, which is a big positive, and she would know that her father was thinking about her, and would give her a feeling that she had been valued…” but only if they were not disruptive and “there was nothing untoward about the gifts and the cards”.
Given the evidence in the proceedings and the findings made, the Court is not persuaded that on balance there will be any benefit to the child receiving cards, gifts and letters from the father. Indeed, the Court is not persuaded that there is any objective evidence that the reason why the father would send such cards, gifts and letters was because he cared for or valued the child. It is the Court’s assessment of the father that he would view this opportunity as an open invitation to ingratiate himself back into the child’s life. Yes, the child might suffer some long term loss as a result of not having her father in her life, but she might suffer more if such gifts, cards and letters are seen by the father as an opportunity to manipulate the child. He was not able to behave in a child focused manner at a contact centre. He will likely not be able to behave in a child focused manner in the way that he sends cards, presents and letters. It will be for the mother to vet such cards, presents and letters, and she has already been traumatised enough by the father’s behaviours.
The father has already indicated that he will be filing a contravention application as soon as he comes to the view that the mother has breached the orders. Having an order such as the one the ICL proposes, leaves the door open for further proceedings. This is not in the child’s best interest.
For all of those reasons, orders as set out at the forefront of these Reasons for Judgment will be made.
I certify that the preceding one hundred and fifty-four (154) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic. Associate:
Dated: 22 December 2021
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