Wellington and Frost

[2018] FamCA 216

FAMILY COURT OF AUSTRALIA

WELLINGTON & FROST [2018] FamCA 216

FAMILY LAW – CHILDREN – Family violence – where there is a long history of violence including imprisonment sentences against the husband – where the husband asserts change but the court finds it is too early to tell – where the psychological evidence establishes the wife’s fear of the husband makes her parenting role difficult – husband’s application for time even under supervision denied – risk found to be unacceptable.

Family Law Act 1975 (Cth)

In The Marriage of N and S [1996] FLC 92-655
Napier & Hepburn [2006] FamCA 1316

Fogarty, John, “Unacceptable risk – A return to basics” (2006) 20 Australian Journal of Family Law 249

APPLICANT: Ms Wellington

RESPONDENT: Mr Frost

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: DGC 2795 of 2013

DATE DELIVERED: 9 April 2018

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 19 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Hall

SOLICITOR FOR THE APPLICANT: Duffy and Simon

COUNSEL FOR THE RESPONDENT: Mr Whitchurch

SOLICITOR FOR THE RESPONDENT: Wheeler Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: McCormack and Co

Orders

1. That the father is restrained by injunction from having contact with the children B born … 2004, C born … 2007, D born … 2007 and E born … 2012 save as provided by these orders.

2. That the husband be at liberty to send to the children a letter or card every two months and in addition, a letter, card and present for the relevant child’s birthday and for all children at Christmas.

3. For the purposes of paragraph 2, the children’s mother has the right to vet all such correspondence and determine whether it should be given to the children.

4. That the mother have sole parental responsibility for major long-term decisions relating to the children.

5. The mother forthwith authorize the children’s schools to provide the father with school newsletters, school progress reports and photographs and for that purpose, the husband be at liberty to provide the school with his address.

6. The other is authorised to provide the schools with a copy of these orders.

7. The appointment of the Independent Children’s Lawyer is discharged.

8. All extant parenting orders are otherwise discharged and save as to issues of costs, all extant applications are dismissed.

9. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wellington & Frost has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: DGC 2795  of 2013

Ms Wellington

Applicant

And

Mr Frost

Respondent

REASONS FOR JUDGMENT

1. This parenting dispute is confined to the determination of what time, if any, Mr Frost (“the husband”) should have with his children B, C, D and E. 

2. There is no challenge by the husband to, nor request for, the decision-making role in parenting responsibility nor for the children to live with him.  He just wants the children in his life.  He has not had time with them since the middle of 2017.

3. When the hearing began, the husband sought unrestricted weekends and holiday time with the children but at the end, his proposal was for weekends supervised by his partner for six months followed by unsupervised time increasing as months went by.

4. Ms Wellington (“the wife”) contests the husband’s application and seeks orders that there should be no contact with the children at all.  Her position is supported by the Independent Children’s Lawyer representing the interests of the children.

5. Although not immediately apparent from the parties’ documents, all counsel agreed that the case was confined to three issues.  They were:

   (a)Had the husband changed his attitude and approach such that there was no risk of physical or emotional harm to the children?;

   (b)Allied with (a), was there any risk of harm to the children in the husband’s care if his assertion about change was rejected and was the risk unacceptable? Could such a risk be managed or ameliorated by some form of supervision to ensure his relationship with the children continued?; and

   (c)What impact would there be on the children regardless of the answers to (a) and (b) if the court found that the wife could not cope psychologically with orders for contact?

6. To give context to (a), it must be understood that the husband has been to prison a number of times for breaching intervention orders but has also been involved in other lawless and violent behaviour.  His criminal history sheet was in evidence and shows that as far back as 1996, he was fined for intentionally or recklessly causing injury.  In 1998 he was fined for resisting police and being drunk in a public place.  In 1999 he was convicted and sentenced to a community based order for six months for recklessly causing injury having faced 13 counts of breaching an intervention order which were “struck out”.  However, on two counts, the penalty was included in the community corrections order.  This all occurred prior to his relationship with the wife.

7. In 1999, the husband faced similar charges but this time was sentenced to imprisonment for four months wholly suspended for 12 months.  Only months later, the suspended sentence was wholly restored and the husband was ordered to serve four months imprisonment.  The breach of the suspended sentence arose from charges of stalking, assault and using a telecommunications device to menace someone.  In addition, he was driving a motor vehicle when he should not have been and was sentenced to three months imprisonment which was also suspended.

8. Over the ensuring years, there were other offences of assault, stalking, failing to comply with a community based order and recklessly causing injury.  The undisputed criminal history sheet shows a variety of approaches by the Magistrates’ Courts but there was no evidence about why the conduct was occurring or more importantly, how serious those courts viewed it.  Sentencing remarks were not in evidence. 

9. After his relationship with the wife began, the husband’s history shows offences in 2013 including breaches of intervention orders, making threats to kill and using a communications device to menace, offend or harass.  These relate to the wife.  Some of those charges were either struck out or withdrawn but I draw little comfort from that because it is apparent that the “head” sentence was the focus of the sentencing court.  The last court hearing shown in the record was December 2016 and whilst that conviction does not reflect when the offences occurred, it is important to note that the court appearance was only a little over a year ago.  The husband now asserts that he has changed.

10. Of his conduct, the husband’s evidence shows how serious the courts viewed things subsequent to the breakdown of the relationship with the wife.  He was in custody from May 2013 to August 2014.  He was again sentenced to imprisonment from January 2015 to August 2015 relating to his conduct after August 2014.  A third time, he was arrested in January 2016 and held on remand until March 2016 when he was released.  Importantly, having been released, during the following month he breached the intervention order by being present at a football game where he should not have been and was sentenced to continue a community corrections order until the end of 2018.

11. Below, I shall set out what he maintains he has done to rectify his position but in my view, only time will tell.  I find it is too early to be confident he has changed.

12. The husband is in a new relationship which has seen the birth of two children one of whom was only born days prior to this hearing commencing.  The husband says that that relationship has been a part of the catalyst for his change.

13. To also give context to issue (c) above, the wife who has repartnered, has been diagnosed by her psychologist with acute stress and adjustment disorders “at times” yet she seems to cope with all of the responsibilities of parenting such as to be “very functional”.

Background

1. The only relevant background about the relationship is that the parties commenced living together in 2002, B was born in 2004 and the marriage occurred in 2006.  Twins, C and D were born in 2007 and the relationship came to a permanent end in September 2011.  E was born months later in 2012. 

2. I have referred to the parties throughout these reasons as the husband and the wife despite them being divorced.  I do so for my own convenience and ease of description; it is not intended to be disrespectful.

Has the husband changed?

1. Of the three defined issues, it is convenient to deal with change first. 

2. The wife’s evidence is that she is frightened of the husband and in particular, of having any contact with him.  I turn to the evidence of the husband set out in an affidavit for the trial but it was only in his oral evidence that his case became clear despite what he had said in his affidavit only weeks before.  In his oral evidence, the husband admitted the accusations against him of abusive behaviour.  Remarkably, he said he was “giving you the truth (now)”.  He regretted the “bad comments” he had made and observed that he had put the wife “through hell”; he said he knew how she felt.  As the end of his evidence drew near, he said he was “sorry”.

3. The husband’s evidence also has to be seen in the context of the unchallenged evidence of a number of experts.  Two were Dr F who is a forensic psychiatrist and Mr G, a forensic psychologist.

Mr G’s first report

1. Mr G provided an assessment and opinion to the Federal Circuit Court in October 2014 as a result of an order of Judge Small.  That order was made in July 2014 by consent of the parties and the date is significant in the history.  All it ordered was a non-descriptive family report.  Mr G was therefore given a licence to explore what he professionally considered would assist her Honour. 

2. In October 2014, Mr G wrote that the husband had just completed a fifteen month custodial sentence for breach of intervention orders.  Just after this assessment by Mr G, the husband was again imprisoned. 

3. Mr G said that the husband told him he believed his sentence was “harsh and excessive”.  He said the husband gave “qualified acknowledgement” to the seriousness of his problems and past behaviour but explained that in the context of other stressors.  The husband acknowledged that there had been significant problems in the past.  Mr G noted that of the allegations of “domestic violence and abuse”, the husband gave a “qualified account”.  The husband did not believe alcohol was an issue but denied that he ever “physically harmed” the wife.

4. The husband told Mr G there were times that he did not behave appropriately but in any event, implied that his prison sentences were excessive and punitive “in response to the reality of the situation”.

5. In the context of that discussion, the husband told Mr G that some of his telephone calls to the wife were “silly” because he was “angry”, “intoxicated”, “irrational” and “irresponsible”.  He told Mr G he did not remember these calls, a position he repeated in cross-examination before me.

6. This asse3ssment also shows that in 2014, he acknowledged the community was rightfully concerned about family violence and, significantly, that the parole board which had released him, was “particularly tentative” around the scrutiny of their decisions.  That led, he said, to participation in a number of men’s behaviour programs, sought individual counselling and had taken the time to “look at himself”.  Then, Mr G said this:

   (He) clearly sees himself to be a different man, that he has changed, that he has greater insight and that (the wife’s) concerns about him are unnecessary. (My emphasis).

7. That last quote therefore also focuses on whether the wife’s fear is now reasonable.

8. In 2014, the husband saw himself as an important part of the upbringing of his children.  He told Mr G that he had enormous guilt for what he had “done” to the family and his only concern was the “health and wellbeing” of his children. 

9. There is no dispute here that when the husband was subsequently observed under supervision with the three younger children, there was mutual affection, admiration and enjoyment.  I would not make the same finding in respect of B.  Despite those findings, the three issues outlined earlier still predominate and permeate the making of any order not only as to what is in the children’s best interest, but also what is proper. 

10. In 2014, Mr G opined that the husband maintained he was not a danger to the wife and was definitely never a danger to the children.  He felt that he needed to have more time with the children.  In the context of what the husband now says, Mr G remarked that the husband maintained that he had changed, was different and that:

    He has reflected on his behaviour and has a better understanding of the origin of his anger and his guilt, and that much of this has to do with loss and regret.

    Mr G thought that the husband was “saying the right things” but whether the expressed view of the husband was “real and genuine” was then difficult to assess.  It did not take long for that to be seen as flawed.

11. In January 2015, the husband was returned to prison for action after August 2014.  He remained there until August 2015.  Thus, in the same period that he was espousing reformation, he was committing offences, the target of which was the wife.  The relevance of this sort of conduct in a parenting case ought be self-evident but one matter the court must contemplate in assessing what is best for the future of the children is the way in which the parents act responsibly as parents.  The August 2014 period must be seen as irresponsible parenting by the husband on his own admission.

A specific 2016 threat

1. On 5 January 2016, the husband spoke to B and then wanted to speak to the wife.  The unchallenged evidence of the wife is that he yelled at her in an aggressive manner.  He made a threat to her about a lot of “things on the news at the moment”.  He said that one day it would happen to her.  In context, and bearing in mind all that the wife had endured to that time, this threat was not different to those of the past except that on the same day, the ABC news reported that in South Australia, a man had driven his two children off the end of a wharf at high speed and they all died.  The news article is in evidence as Exhibit W2.  Having regard to the words that the husband used, the wife linked that article with the threat.  The husband did not deal with this accusation in his trial affidavit.  When cross-examined about it, he said he did not deny it but he just did not remember.  He was then asked whether he intended by these conversations (presumably those that he did remember) were intended to cause the wife fear.  His response was that at times that was so.

2. The January 2016 incident was quite alarming not only for the words used but also the context.  For the wife to see an article referring to a man driving off a pier with children on board, would understandably exacerbate her anxiety.  Despite that, she agreed the children could have time with the husband but under conditions.  These can be seen in orders made in November 2015.

The H Town weekend

1. As the wife was not present during weekend contact periods at this time, all she had to rely upon was what the children told her.

2. Two weeks after the January 2016 incident, the wife complied with the November 2015 order.  The husband was to have the children from Saturday morning to Sunday afternoon but on the basis that the paternal grandparents or either of the husband’s sisters were to remain in “substantial attendance”.

3. When the children returned home, the wife learned that the husband had driven them to a beach.  From what she was told, she concluded no-one was in substantial attendance and the husband had driven whilst his right to do so was cancelled.  On 12 August 2015, according to the husband’s criminal history sheet (Exhibit W4) he was disqualified from obtaining a licence for 12 months from that date.  If that was right, he should not have been driving a car but that issue is relatively insignificant by comparison to the evidence about the fact that he was not being monitored by his family who were to be in substantial attendance.  His 2018 evidence was:

   [78]I deny that I was unsupervised as my parents accompanied us to [H Town].  I deny that I drove the car and say that [Ms J] drove the car.

   The picture became clearer when the paternal grandmother gave evidence.  She said in response to a question as to whether she was in substantial attendance that she was but it soon became apparent that she was in a car following that of the husband.  The husband’s words “accompanied us” were misleading.  However, in the context of how serious his behaviour was and specifically the risk posed by his January 2016 threat, the grandmother’s evidence was very concerning.  Her view was that the husband had put up with this supervision for long enough and had done nothing wrong and there was not difficulty about what he was doing.  That was a cavalier approach having regard to the nature of the order that had only been made six weeks before and he had only been released from prison in August.  This also highlighted the obfuscation that the husband was prepared to allow. 

4. Even accepting that Ms J was present that day, she was not the person named in the order.  When it was put to the paternal grandmother that she had not mentioned the detail in her affidavit, she agreed.  Ms J said she had been the driver but that does little to assist in the context of the threat just weeks before.  This evidence about the husband and those around him supports the conclusion that the wife will remain anxious if the husband has the children.

5. The husband was then sent back to prison again for six weeks which concluded in March 2016.  All of that was with the parenting issue unresolved.  Judge Small ordered the husband undergo a psychiatric examination by Dr F which was to be followed by a review assessment by Mr G.  Dr F saw the husband in June 2016.

Dr F

1. One matter of immediate relevance from the evidence of Dr F was that there was little indication of contrition of the nature observed by Mr G in 2014.  On the contrary, the husband was critical of the wife for being manipulative but the courts obviously took a different view as he had breached the intervention order.  Dr F reported that the husband denied the allegations of the wife saying that they had been “made up”.  He told Dr F that the wife was either manipulating the situation, “trapping” him and “generally out to get him” for the purposes of restricting his contact with the children.  He described the wife as having “doctored” phone calls.  In his evidence before me almost two years later, the husband had little recollection of the details.

2. In August 2016, Dr F opined:

   (The husband) is a man who has trouble with his internal locus of control, can be violent and aggressive, volatile and unpredictable and is inclined to justify his behaviour based on his perceived treatment by others.  [Mr G’s] comment that the past is the best predicator of the future has proved to be accurate and whilst (the husband) at the time presented well, his subsequent behaviour has been a repeat of the past with further incarcerations and significant breaches with threats to kill, stalking, and contravening Family Violence Orders on 15 occasions, all of which he was inclined to dismiss or explain away.

1. Dr F found that the husband was not impressing him as “truly remorseful”.

2. Dr F diagnosed the husband as having an Antisocial Personality Disorder with Dependent and Aggressive Features.  Only a year and a half later, there is no other professional evidence.

3. Subsequent to this report, the husband was asked in cross-examination about introspection.  He said he had done 16 weeks of a men’s “behaviour change” course, a mental health assessment relating to drug and alcohol use, a nine week parenting course and one course called “Change for Good”.  He had done 200 hours of community work on Sundays including cleaning up the removal of graffiti in the Suburb K area and, until the end of 2018, he has to receive visits under his community corrections order.  In my view, attendance at these courses is one thing but how have they made a difference to the psychiatrist’s diagnosis?  The court was not told. 

The second G report

1. In June 2017, Mr G wrote a second report to the Independent Children’s   His views were not the subject of any challenge and he was not required for cross-examination.  Of the husband, and again focussing on the first issue about which I have to make a determination, Mr G noted that the husband’s presentation was overly friendly and a bit familiar.  He was described as amiable in his conversation but tending to minimise the seriousness of matters now and those which had led to his incarceration.  He acknowledged having had enormous amounts of time to think and reflect on his past behaviour and the present situation.  Mr G noted that this same conversation had occurred in 2014 and:

   Whilst the sentiments convey optimism, his behaviour suggests something different.

   The husband’s view was that both he and the wife needed to overcome their problems in order to safeguard the welfare of the children but in expressing his thoughts that way, he conveyed to Mr G a sense of minimisation around his own past behaviour and the choices he made.  In respect of those choices, Mr G said there was a tendency for the husband to convey an idealised sense of himself and his behaviour.  The husband wanted things to be normal but did not acknowledge that his behaviour had to a very large extent, contributed to the problems.  The husband was armed with this report for many months.  His written evidence could have covered the expression of concern by Mr G but it did not.  That was left to cross-examination.

2. Mr G obviously had the unique opportunity to interview the husband two years after previous observations.  Of that, Mr G said that when he raised the past history, the husband maintained he was chastened and had developed new insights and had curtailed his behaviour.  That all led Mr G to opine:

   [56]There is much about (the husband’s) presentation that supports the diagnoses of personality disorder.  The history of anti-authority behaviour, challenging rules, lack of insight, the external locus of control, the minimisation of responsibility, and identifying (the wife) as almost the exclusive target of blame, all suggest behaviour characteristic of personality dysfunction.

3. Mr G then opined:

   [57]It seems clear to me that (the husband) continues to struggle to genuinely understand the nature of the concerns regarding him, and his behaviour, and so consequently, he is at greater risk of doing so and especially so when he feels that he is being treated unjustly or that the system or authority is against him.

4. Mr G expressed caution about what the husband said on the basis that what he said and what he did were not necessarily the same.  He acknowledged that it was “mildly encouraging” that in the six months prior to the middle of 2017, there had been a time of “relative calm”. 

5. The husband’s affidavit sworn in February 2018 was responsive to the wife’s litany of events of repeated violent behaviour.  A fair reading of the husband’s evidence would not indicate concerns expressed by either Dr F or Mr G had disappeared.  The 94 paragraphs of his affidavit were replete with denials of the wife’s assertions of fact.  In the context of what the husband told Mr G in 2014, that was very odd.  Amongst other things, he said that where he did not respond to comments, conjecture, unparticularised assertions or submissions, his failure to respond should not be taken as an indication that he agreed with what the wife said.  If he was a changed man, why not make it abundantly clear?  Paragraph [27] of his affidavit said that he had confined his allegations to the issues raised by the wife that were “relevant to this proceeding”.  One must wonder what could be more relevant than the three issues that I identified at the commencement of these reasons. 

6. Notwithstanding his oral evidence began by confirming that what he had said in his affidavit was true and correct, he denied that he had perpetrated any physical violence towards the wife during the relationship and was not verbally abusive or aggressive to her.  I reject that.  There are assertions as long ago as early in the relationship where the husband grabbed the wife by the throat and pushed her against a wall.  There is evidence that the wife was breastfeeding one of the children and he stood on her feet deliberately.  These things, he denied and he would have the court accept that there were no problems during the relationship.  Whilst he may have been in a “dark place” as he described it subsequent to the relationship ending, the wife’s calm and measured evidence would suggest to me that she was telling the truth and that the husband had forgotten a lot of these events.  I accept her evidence in respect of those matters.

7. There is other evidence about the husband’s aggressive nature.  He had a disagreement with a community corrections officer who was apparently sufficiently concerned to take out an intervention order but for which she was unsuccessful.  The husband’s view was that this person had overstepped her authority and in his mind, that was reflected in the magistrate’s dismissal of the application.  Whatever occurred, the court was left to guess but the outcome was that the husband’s reporting place was altered.  He explained that away too but there was no evidence from these authorities. 

8. The husband also complained about the intervention by the Department of Health and Human Services in his current relationship.  They too did not take action under state law but his response was that he was vindicated because he took the view that they had acted inappropriately.  Indeed, the inference he would have the court draw was that the wife had taken some steps to ensure that intervention but I am satisfied that she had no such role at all.  On her evidence, the department contacted her but they were already aware of the husband’s new relationship.

9. The husband’s mother gave evidence that the husband had been in counselling, had family support and had even been given medication, but the details were left to her to explain.  None of that evidence was produced to the court.

10. There is also the evidence that the children told Mr G about family violence in his previous relationship with a Ms L.  When cross-examined about problems in that relationship, the husband’s response was that this woman had mental health issues and she had taken his money.

11. There are other examples of disputes with authority where the husband has had difficulties with the contact centre supervising the children.  His response is to point the finger at the centre.

12. All of these matters were not, and could not, be fully explored in this hearing but with the background of 20 years of recorded aggression, his psychiatric examination with a diagnosis of a personality disorder involving aggression and, Mr G’s expressions of concern about what to accept, all lead me to question why this evidence was not produced. 

13. The husband was cross-examined by the Independent Children’s Lawyer about his defensive affidavit evidence.  He repeated the mantra that no-one had asked him about how he felt and he had not been asked to write about these things.  There is some strength to that argument because his mother said exactly the same.  He said however that he thought he would be asked to speak about these things in the court.  A number of conclusions must follow from that assertion.  First, he must not have been advised about the nature of this court process; secondly, he had no concept of what the issues (as distinct from the relief that he was pursuing) were; thirdly, even if it was accepted that he intended to wait for the court hearing to express his views, the wife in the meantime would have concluded that the husband was disputing her factual assertions and would have to face cross-examination upon them.  The husband, being armed with the wife’s evidence and in particular, the evidence of the experts upon whom she relied, had obviously not considered the impact of this particular waiting period on her. 

14. Fourthly, if his position was that change had occurred, bearing in mind his repeated bad behaviour immediately after the August 2014 report, corroboration of that change was largely missing.  I would not accept that the evidence of his mother, nor of his partner Mr J, adds much to strengthen his argument that he now understands what he has done. 

15. The fifth point is that the husband’s position which is apparent in the 2017 report of Mr G was that the wife’s motivation for her allegations was to deny him time with the children.  Yet, he largely did not dispute his abusive behaviour.

16. Counsel for the husband cross-examined the wife but, in my view, responsibly.  Save for two matters relating to the stress of these proceedings, there was no accusation of lack of candour.  Cross-examination was proper but the husband put the wife to the test and only then endeavoured to explain that he felt for her anguish. 

17. This case has been on foot for many months.  There was an interlocutory hearing where there was complaint that Mr G would not be available for cross-examination and when I queried whether or not a set of “interrogatories” had been sent to Mr G to test out some of his propositions; that had not been done.  Questions were then sent to Mr G.  It was only at the end of the case that Mr G’s responses to the questions were tendered in evidence (see ICL 1).

18. In addition to his 2017 report, Mr G acknowledged the benefits of the children spending time with their half siblings but that does not seem to me to be a contentious issue.  It does not follow that the husband has to be involved.  Mr G said that the wife was a victim of family violence “at the serious end of the family violence continuum”.  He described the wife’s concerns regarding the children as being imbedded within her direct experience.  He acknowledged that she had been traumatised as a consequence of the abuse to which she had been subjected.  That explanation was in the context of a question of what emphasis Mr G placed on the mother undertaking counselling in relation to herself and her beliefs around the husband and his ability to be a parent contributing to the children’s welfare.  It would have been a curious question in the light of the husband’s oral presentation that he regretted his “disgusting” behaviour of the past. 

19. When this set of questions was drawn, the husband’s position was that the wife had done little to assist in dealing with her own psychological health arising from the violence.  When the letter was written to Mr G on 21 February 2018, the husband had already filed his trial affidavit.  The husband had already received the affidavit material of the wife’s psychologist.  I do not know whether Mr G knew of the psychological counselling the wife was receiving.

The evidence of Ms J

1. The only serious corroboration of the husband’s evidence came from his partner Ms J.  At best, she devoted two paragraphs of her affidavit which should be quoted in full.  She said:

   [17]I understand that (the wife) feels hurt by decisions that (the husband) has made in the past.  I also see that (the husband) has said things in the past that have caused a significant cost to him, (the wife) and the children.

   [18]I believe that (the husband) has learnt a lot over the past years and is in a much better place now.  He has never been violent towards me or around me, but I do see that he has been able to process his emotions better during the time that we have been together. 

   No-one challenged those statements but in the context of the husband’s evidence and the vagueness with which those two paragraphs were expressed, I intend to give them little weight as they are equivocal.  Ms J’s paragraph [17] refers to a significant cost to the husband as well as to the wife and the children.  That related to decisions the husband had made but also the things that he had said.  What were they?  He might now be in a “better place” than he was, but what does that mean?  Ms J could have been cross-examined but counsel for the wife and counsel for the Independent Children’s Lawyer both chose not to do so.  I have inferred that not much more could be said than what the affidavit material contained but I do not know how much Ms J knew.

2. There is no evidence here to say that the diagnosis of Dr F was wrong then or that it was a passing phase.  The husband says that he is still working on his issues.  That is, he recognized he has a way to go.  Corroboration therefore is important.  He remains on a community corrections order until the end of the year and well understands the risks he faces of a breach of community-accepted norms but is it the metaphorical Sword of Damacles hanging over his head or is it genuine change?  In my view, the limited evidence he produced does not support a finding that substantial change has occurred as yet.

Issue 3:  The wife’s capacity to cope

1. In the husband’s outline of case document under the heading of “What Issues are in Dispute”, the question was raised by him as to what steps the mother had taken to address “her perception of trauma and its impact upon her ability to parent the children and facilitate the children’s relationship with the father.

2. As a witness, the wife was calm and responsive and made appropriate concessions.  When challenged about her accuracy of versions of events, she stood firm and also expanded upon statements previously made.  Those statements made her evidence plausible.

3. Much of what the wife was challenged about was unnecessary because of the husband’s evidence that he did not remember a lot of what he had done.  Four examples of her evidence confirm what the husband described as having put her “through hell”.

4. Counsel for the husband put to the wife that the husband had never threatened to kill her.  She calmly responded that he had done so on “numerous occasions” but then added that he had not done so in the last two years.  That would be small comfort.  Although no details were given, counsel did not press her further.  I accept her evidence.

5. A second example was that the wife came home one day to find an email had been sent from her computer to the husband’s email address which had attached to it, correspondence between her lawyer and herself.  Counsel for the husband put to her that she had only “presumed” that it was the husband.  Her calm response was that the husband had told her in a text message that he had come to the house on that day, knocked on the door but found it opened when he pushed against it.  This was not in her written evidence.  Unexpected as such an answer might have been, the wife said she had the text message available.  It was not called for.  Counsel then put to her that the event had not happened the way she expressed it or alternatively, that she herself, had “inadvertently” sent the document to the husband.  Bearing in mind the state of communication between the parties at that time, her expressed fear of the husband, the intervention order, and the husband’s late concession that he had made the wife’s life “hell”, the evidence of the wife must be seen as more plausible than the proposition put by counsel in circumstances where the husband’s position in evidence was a simple denial without explanation.  Accordingly, I accept her version of that event.

6. The third example but more concerning was what was described as the “bubble wand” incident.  This was more concerning because it is said to have occurred in April 2017 which is in the period during which the husband is said to have changed.

7. In early 2017, the children were having supervised visits with the husband.  The wife delivered them to a park.  She said she returned to collect them from the supervisor and stood outside  her vehicle.  She saw the father walk towards another vehicle but he then doubled back so that he was in her line of vision and “stared directly” at her, lifted his chin and puffed out his chest.  In the meantime, she put the children’s equipment in the car and spoke to the supervisor during which time she had a clear view of the father.  She said she saw the father with two “giant bubble wands” in his left hand and she watched him drag the top of a wand across his throat whilst staring at her.  She told the supervisor who immediately looked but did not see anything although she described the husband as facing them.  The wife was cross-examined about the distance which she said was about four to five car spaces across the road.

8. The husband gave evidence that he was about 70 metres away from the wife but he said he could not see her although he knew she was there. He denied the actions that the wife described.  That denial had been set out in paragraph [84] of his affidavit but he had made no further statement about the incident.  Leaving aside whether he made the gesture with the bubble wands, there does not seem to be a significant dispute about the distance that the husband was from the wife and he knew she was there.  The evidence of the supervisor Ms U is inconsistent with the husband’s evidence that he could not see the wife seven car lengths away.  The husband was observed by the supervisor.  Accordingly, I accept the wife’s version.

9. The fourth example albeit very early in the relationship occurred when the wife said that the husband picked her up by the throat and held her against a wall saying that she should never again mention an altercation he had in a bar.  This evidence arose out of cross-examination of the wife.  It was put to her that there had been cross words but “no actual physical violence”.  The wife denied that and then gave the example of what had occurred.  It was suggested to the wife that the accusation was untrue but she calmly responded otherwise.  She had also given evidence that the husband had stomped on her toes when she was breastfeeding, an accusation that the husband also denied.  Grabbing her by the throat was “actual physical violence”.

10. There were other violent incidents most of which occurred after separation.  Most of them involved significant verbal threats and abuse.  With the effluxion of time, some of these events might seem innocuous but as part of a bigger picture, and a consistent course of conduct, I accept that they more likely than not did occur as the wife described. 

11. Of the two parties, the wife was a good witness.  When the husband was cross-examined about the fourth incident above, he equivocated.  First, he denied that it occurred but then said that he did not recall the incident.  He did recall an intervention that day by his brother in law conceding that the two men had “words”.  In assessing the two versions of events here, much of it is uncontroversial save for the specific incidents of violence.  Because of the husband’s vague recollection, I accept the wife’s version is the more plausible.

The wife’s fears

1. The wife subjected herself to cross-examination about her fears bearing in mind what the husband’s outline of case document asserted.  She did not accept that the husband had taken steps to rehabilitate himself.  She pointed out that what the husband had done to her, had also occurred to a woman before her.  She volunteered that every time the husband was released from prison, he returned to the same behaviour.  She was of the view that he could not harm her now because he had no means of contacting her.  She acknowledged she was afraid of him and notwithstanding the absence of his involvement, she had not changed her mind.  She acknowledged having met his family and his partner but had not talked to them about the problems.  She confirmed that endeavours had been made to get a family relationship going with the children but the husband’s sister had told her that it was her problem and accused her of “trying to screw him over”. 

1. Like the husband, the paternal grandmother’s evidence was vague and indeed, as she described it, her affidavit was “insipid”.  There was nothing in her evidence to indicate that she had decided to work with the wife to try and sort out a way to protect the wife from her own son’s conduct.  She was very keen to tell me that she and other members of the family had worked with the husband and that he was in a good place and very positive.  It is unfortunate that the wife did not know that either from personal contact with the husband’s family or more importantly, from the affidavit material that she had to read. 

2. It was suggested to the wife that she had overreacted by taking the children to psychologists after the 2017 Mr G report.  Having regard to the unchallenged evidence of those psychologist, there could be no foundation for such an assertion.  The assertion no doubt strongly believed by the husband, is that as soon as his time was suspended in mid-2017, the wife took the children to psychologists who reinforced the concept that he was not good for the children.  That is far too simple a proposition and denies the fact that these children do have problems.  The evidence below establishes that.

3. It was suggested to her that she had done nothing to show the children a positive relationship about their father.  There was no evidence to suggest that was correct.  I accept the wife had fostered the relationship as best she could.  She said there were complaints by the children about the things the husband said and did, and in many ways, that is corroborated by the intervention described by some of the supervisors.  Albeit the husband then immediately ceased what he was doing, it was clear that he did not see boundaries as a problem until he was pulled up.  The wife pointed to her attempt to retain an important image for the children by photographs of the husband in the house although in one case, that photograph had ended up in a cupboard.  She thought that was her daughter’s decision.

4. From the children’s perspective, the Independent Children’s Lawyer pressed the wife as to why she remained anxious if the husband had shifted his positon about his history and also family violence.  She responded that it was difficult to answer but that she felt she had to be hyper vigilant because the children had issues which she felt caused them anxiety and in turn, caused her anxiety.  She was asked to explain.  She said that when B was with her father, she waited for the husband to talk about the wife’s companion Mr M or her grandparents.  B felt she had to please her father.  B worried about things and therefore felt obliged to see her father.  That is consistent with the view of Mr G that children can have an idealised view about their parents. 

5. The wife said that C did not trust the husband but that was more so from a physical perspective because he was frightened of being smacked or yelled at.  C told Mr G in 2014 that he loved his father but feared him.  He said that he remembered that his father was really angry and on one occasion, had been thrown to the ground and he was not sure that his father would not do so again.  C is a worrier.  This evidence of the wife was not challenged.

6. In 2017, C told Mr G about the constant conflict in his family and the “tensions across the family” including extended family.  Mr G said that C seemed conflicted about his father and what he should do.  This was a child aged 10 years.

7. The wife told the court that she even had anxiety about the supervised time because B spoke about being singled out.  I accept that the children are not excited about going to see their father as seems to be the perception of the husband even if they are curious.  It is perhaps unsurprising bearing in mind the disruption to the relationship caused in part by the husband’s imprisonment.  I accept the wife’s evidence that during that period of time, the children were not told the full story.

8. According to the wife, the break between June 2017 and now has meant that some “normalcy” has returned because she is more available for the children emotionally.  I accept that evidence and it is corroborated by Mr M.

9. Counsel for the Independent Children’s Lawyer probed the wife as to what it would take for her to be satisfied that there was no problem any longer.  The wife acknowledged that she did not know the answer however added that time might solve the problem.  She volunteered that the husband had never abided by orders except the most recent one.

10. When asked whether she could have a relationship with Ms J to encourage her that the husband had changed, the wife did not think she could.  She gave an example where Ms J came to her and “patted” her on the stomach and said “good luck with yours”.  She said she did not know what that meant.  She described Ms J as coming into her home and screaming that she was a terrible mother all of which she described as causing her anxiety.  None of this evidence was disputed. 

The wife’s clinical psychologist

1. Mr N is a clinical psychologist who specialises in the assessment and treatment of anxiety and depressive disorders.  He found no reason to question the wife’s ability to raise the children but at the same time, made appointments to ensure that she had a degree of external monitoring of her functioning rather than allowing her to choose when to attend.  In respect of the anxiety associated with the problems of the children, Mr N who was not required for cross-examination, said:

   Based on (the mother’s) report…I find that the relationship between her and (the husband) is untenable, hence her ability to voice concerns to him regarding any issues with care, education, health of the children etc whilst in his care, is highly compromised.  This in itself has a direct affect (sic) on (the wife’s) stress levels…

2. Mr N said that the wife’s progress had fluctuated but generally her progress had been positive.  He described a deterioration in mood and elevated anxiety following the husband’s release from imprisonment and when scheduled visits were nearing.

3. The wife’s evidence about her capacity to manage the household of four children was also enlightening.  She described days where she was only task-oriented.  She gave an example where she played a card game with the children endlessly and did not attend to various household chores.  This was her way of compensating for the problems that she felt the children had.  She acknowledged that she covered up her own inadequacies for the sake of the children. 

4. I accept the wife’s evidence that all of these problems exacerbate her own anxiety and her mental health would be at risk if the husband spent time with the children at present even under supervision.

How then are the children managing?  Two psychologists.

1. The wife relied upon the evidence of Ms O who is a senior child and adolescent psychologist and on that of Ms P who described herself as a senior psychologist.  Neither of these witnesses was required for cross-examination notwithstanding there was some suggestion by the husband that subsequent to June 2017, these professionals had influenced the children. 

2. The resume and curriculum vitae of these two witnesses was attached to the affidavits and absent some suggestion of inability to express an opinion, there is no reason for me to doubt their views.

3. Ms O said that she spoke to D first on 13 June 2017.  The arrangement under which this occurred was through therapy funded by the State Victims of Crime Tribunal.  The mother reported to Ms O that D had persistent anxiety and in particular, separation anxiety and difficulties engaging in verbal communication.  There were sleep difficulties including night terrors.  Ms O noted that D had attended psychological therapy previously for management of anxiety and night terrors.  D was diagnosed with post-traumatic stress disorder. 

4. Despite being 10 years of age, D experiences difficulty at school.  To the extent that the period since June 2017 may be thought to have assisted, it would appear limited.  D also suffers from a form of separation anxiety.  She has always been a child with troubles, a matter that the husband was quick to point out.  In her early years, the wife took her to a speech therapist when she did not want to talk.  She now regularly attends a paediatrician and is medicated with antidepressants.  This is not something that has just arisen since mid-2017.  The separation anxiety manifests herself with difficulty in getting D into class at school and that is something that adds to the anxiety of the wife.  During 2017, D also ran away from class on a regular basis and teachers had to restrain her so that the wife could leave the school.  A special program followed and that met with some success but as school began in 2018, there have been mixed results.  At night until recently, D was coming into the wife’s bedroom with her pillow and blanket to sleep on the floor beside the bed.

5. Ms O described D as quiet and, as her engagement in therapy continued, she regularly improved.  There were times where her verbal communication was reduced but that usually occurred when increased family relationship or school related stressors were present. The evidence of Ms O is consistent with the evidence of the wife.  It is also frightening that D was described as having suicidal thoughts.  The wife described a recent occasion when D stepped in front of a car.  Whilst that could happen to anyone, it was D’s comment that she could have ended her life and effectively solved the problems that was very disconcerting. 

6. Ms O described D as having difficulty externalising her emotions but that improved as therapy proceeded.  According to the psychologist, the mental health problems have stabilised. 

7. Ms O thought the prognosis for continued improvement was good but she noted that D had a low distress tolerance and her wellbeing and mental health continued to be affected by events including peer and sibling conflict and changes in her school or family routines.  That evidence is powerful and forms the basis of my decision that accepting the husband’s proposals would not be appropriate.

8. Ms O opined that changes to D’s relationship with the husband were likely to have a negative impact on her overall wellbeing and mental health but that was in the context of previous experiences of family violence.  As Ms O said, the symptoms were likely to be exacerbated with a resumed contact.  I accept that evidence.

9. Psychologist Ms P saw both C and B.  In respect of B, little needs to be said because the husband no longer pursues orders.  However, B is said to have recognised that her anxiety symptoms originated from her fear and trauma from the family violence that she had experienced.  Ms P said:

   [B] reported that she continues to worry about the safety of those around her father, because of the violence she witnessed.  [B] reported that she does not want to see her father.

10. Ms P also saw C who had been referred with a mental health care plan prepared by a doctor.  Whilst it was the wife who reported the behavioural and emotional problems in C, there was no dispute in this case about what the wife had been observing. Her partner Mr M confirmed C’s aggression relating to objects and that was the same report that was given to Ms P. 

11. C was described as having slow but improved behavioural and emotional regulation.  He was able to manage his frustration and anger and there had been a significant decline in sibling rivalry and conflict.  Negative self-concept and low self-esteem however was still a problem.

12. C told Ms P that he did not want to see his father again and mentioned that his father had yelled at he and B.  Like the other children, the psychologist opined that if contact did take place, it was likely to exacerbate C’s behavioural and emotional problems.

13. The consistent theme in each of the psychologists’ reports is that of concern for change that might destabilise improvements that have been made.  Thus, to the extent that the husband maintains that this counselling somehow altered the progress that he was embarking upon, and in contrary to the observations of the supervisors who described children as having fun, I consider there is a much wider implication for their emotional stability.  They must have an opportunity to develop normal relationships with their peers and siblings. 

Mr M

1. The wife’s partner Mr M was also required for cross-examination.  Relevant to the position of how the wife coped, he confirmed that in respect of D, a lot had been done about the child’s anxiety and she was now much more “bubbly” than she had been before.  He was complimentary of B noting that she was emotionally mature and had always been strong willed and headstrong.  He did not see the same problems as those described by the wife and her psychologist except that he said that at least on one occasion, the wife was exhausted that the problems with the husband were still happening.  Since he first came on the scene, he noticed a “massive difference” but he attributed that to the fact that the wife had good support.  He described D still having separation anxiety, C getting frustrated and angry and B having anxiety about school and her achievements.  E did not seem to be a problem.  Mr M attributed the change from six months ago to the counselling that everyone had had.  He too confirmed C told him said about his father’s behaviour.

2. Mr M was an impressive and calm witness.  I found him thoughtful and responsive.  He corroborated a number of incidents which highlights what the wife and B went through.  Those incidents should not have happened and cannot simple be brushed away.

Mr G’s view of the wife

1. Part of the wife’s dilemma is the uncertainty for her about how the husband will behave.  As Mr G said:

   [68]Ultimately, any decisions pertaining to the children and time with their father should embrace the likelihood that what (the husband) says and what (the husband) does may be completely different and that a more realistic way forward is for decisions to be made with the expectation that the same cluster of problems will exist into the future, and that they may only be contained by the most stringent and rigid of court orders; even then it might reasonably be argued that the presence of such orders, and even periods of incarceration have not be (sic) sufficient to curtail his behaviour in a manner that would otherwise be expected.

2. To Mr G, the wife described not being able to see an end to the problems that she had experienced.  She predicted that the husband’s behaviour would never change.  She acknowledged that the supervised time between the children and the husband predominantly went well although there continued to be some difficulties of the nature described earlier.  I accept the wife suffers anxiety directly related to the conduct of the husband.  I reject the husband’s view that the wife should just move on. 

3. The court ought be cautious about dismissing the prospect of problems in the future.  Those problems are not just for the wife but include the children and as such, as the levelling of anxiety in the wife is connected to all of those issues, I find there is every probability that it will continue. 

4. The overwhelming evidence here is that the wife has persevered in the face of adversity and even if the husband has now constrained himself, nothing in the evidence would suggest that the wife’s anxiety has abated or is likely to do so.  I accept the expert opinion of Mr N as being consistent with the view of Mr G to which I turn below from his second report:

   Any degree of ongoing relationship with (the husband) will likely have an adverse affect (sic) on (the mother).  It must follow that as the primary person responsible for the care of the children, she ought not have to endure that as [Mr G] observed:

   [63]It is important to emphasise that [D] is completely dependent and reliant on her mother, she loves her mother, and whatever conflicted feelings she struggles with these are not necessarily immediately available to her consciousness but this formulation does explain her presentation, and clearly so.

   [64]…If only from a perspective of the impact on (the mother) that the protracted litigation and ongoing problems and the effect on her and her parenting could be reason in and of itself to go down (the path to significantly limited the children’s contact with their father).  There is ample evidence to suggest support for a much more conservative attitude, including that the children possibly should not see their father whatsoever.

5. I accept that any continuation of the association between the husband and the wife and/or the children at this stage is not beneficial to her anxiety resolution.

Risk to the children?

1. I have already set out the descriptions by the wife and Mr M of each of the children.  Each child has problems.  The husband points to the fact that the children love him and want to spend time with him although he concedes that no orders now should be made in relation to B.  Even in respect of B, he was equivocal.

2. The objective evidence about the nature of the relationship between the husband and the children comes from the variety of supervisors who were involved as a result of court orders. 

Contact time under orders in 2014

1. On 27 July 2014, the parties consented to orders for some specific time between the husband and the children but it was all to be supervised “at all times” by the paternal grandparents or either of them.  What then followed was the first G report.  It seems that the opinion of Mr G formed the foundation for later orders.  Mr G described the husband’s interactions with the children as largely unremarkable with the children actively demanding attention.  He said the husband managed the situation well and was calm and attentive.  He described the children as affectionate giving the husband a hug.  He said they clearly loved their father and wanted more time with him but each spoke of apprehension about the father’s volatility and anger, the uncertainty they felt and what would cause him to be anxious.  His explanation for that apprehension, but desire to see their father, was that it was not uncommon in cases of family violence for children to become “seduced into believing that things will be better” only to live with the uncertainty that at any point there could be an “eruption” or that something could occur that would cause their parent to become angry at them.  Obviously, almost immediately after that statement that the husband was again imprisoned.

2. Upon the husband’s release, further time occurred with the wife’s consent.  There was little restriction on the husband’s time.  That changed in November 2015 when orders were again made with the wife’s consent for specific periods of time but this time, the paternal grandparents were to “remain in substantial attendance”.  That came to an end with an order on 29 March 2016 which was just after the husband was released from prison where he had been for six weeks on remand.  What then occurred was that the supervised time with professional began.  I turn to the evidence of those supervisors.

Mr Q

1. Mr Q was an employee of the contact service in Suburb R.  He supervised time until the middle of 2016 and what he described was positive and unthreatening interaction between the husband and the children.  His description was very much the description given by Mr G.

Ms S

1. Ms S is a children’s contact service coordinator.  The Independent Children’s Lawyer relied upon her evidence.  The relevant service undertook three supervised visits and the husband joined in appropriate activities and conversations with the children, giving them a lot of physical affection and the children appeared to be comfortable with him.  He disciplined the children appropriately and provided food and drinks for them.  B was the only one who appeared different becoming distressed as the visit continued. 

1. The supervisor noted B’s comments about her father’s “inappropriate conversations” and said B did not feel comfortable attending, wanted to leave and was upset.  She said she did not trust her father and that he was lying to her and she walked away from the rest of the family in the supervised setting.  This inappropriate conversation was observed by Ms S as a consequence of which the service organised a review meeting with the husband who was agreeable.  However in subsequent meetings the husband was described as disagreeable, argumentative and directive including questioning staff credibility.  Despite that, the husband said that he wished the visits to continue and would abide by the rules. 

2. By 18 December 2016, whatever the agreement was, it was further breached and the husband became “disagreeable”, “argumentative and disrespectful”.  The service withdrew.

3. When the contact service withdrew, the parties returned to court in February 2017 where further interim parenting orders were made to which the wife consented.  This time, B was excluded from the contact arrangement but the parties agreed that an organisation called family contact service should be the appointed supervisor at the husband’s expense.  B could attend if she wished.  No guidelines appeared from the court as to how this arrangement was to be undertaken nor what the service was examining or how much they were to be told.

4. The supervision by this private organisation was undertaken by two people.

Ms T and Ms U

1. Both Ms T and Ms U gave evidence about their supervision between March 2017 and May 2017.  Like the evidence of Mr Q, they saw nothing of concern and the children were happy to see, and be with, their father.  It is not controversial that there was much exchanging of hugs and goodbyes and the husband advised the children that he loved them and they reciprocated.  None of the problems to which Ms S referred were mentioned.

The second G report

1. On 6 June 2017, Mr G wrote his second report knowing that since his earlier report, the husband had been found to have breached intervention orders and had acted inconsistently with what he had previously said.

2. Mr G found B ambivalent and cautious but noted that she was the most aware of the experiences of her mother and identified strongly with her. He described her as lacking confidence, was acutely self-conscious, had problems with self-esteem and was “anxious in the extreme”.  He wondered whether it was attributable to the family experience to which she had been exposed.  He then said:

   She clearly does not trust her father, and even though she says she wants no relationship with him, my observations of them together conveyed a very different feel.  In the context of it being contained and managed, [B] clearly enjoyed the time with her father and his physical affection.

3. C and D were described by Mr G as clearly wanting to see their father and more of him.  He acknowledged however that both had a cluster of difficulties.  C has problems with behaviour regulation and aggressive impulses whilst D’s anxiety was obvious.  That anxiety was manifested in separation.  All of what Mr G found was borne out by the evidence of the wife and Mr M.  Of D, Mr G said the impact of the husband’s behaviour on the wife might be the cause of the child’s anxiety.  He said that there was a conflict in her presentation with her non-verbal communication conveying a wish to see her father whilst there was an acknowledgement about negative feelings towards her mother.  Those negative feelings were based on her understanding that the wife remained ambivalent about D having any relationship with the husband.  However, Mr G emphasised the dependence and reliance of D on her mother.

4. In relation to the history, Mr G acknowledged that it was extremely difficult to ignore and contradict what had occurred.  He then opined that rigid orders of the court might protect the children and promote their relationship with their father but that was not an arrangement that either the children or the husband wanted. 

The orders of 30 June 2017

1. When the parties returned to this court on 30 June 2017 and with all represented by their respective lawyers, the husband consented to an arrangement that his time with the children be suspended.  He said that the children needed a break because the wife was insistent that any time into the foreseeable future should be supervised.  He pointed out that Mr G was indicating that supervision was not an option.  What Mr G actually said was:

   [68]Paradoxically, notwithstanding that such an arrangement (with strict controlled orders) might protect the children and promote their relationship with their father, it is exactly this arrangement that neither the children nor their father wants.

   [69]In my view, enduring supervision into the long-term is not an option.  The choices are stark as they are simple;  either (the husband) has not contact with the children until they are old enough to make their own decisions, and that notwithstanding the sense of injustice felt by (the husband) about such a decision, that the practical reality for the children is that having their mother emotionally available, unburdened and uncompromised is more likely to contribute to their long-term health and welfare.  The alternative is for the children to see their father at either fortnightly or monthly intervals, initially for one day…so that they can maintain connection with him…but such a decision would need to be made with the explicit understanding that unless there are the most stringent of court orders that it is likely that there will be problems, and that there may be problems anyway…

2. The husband’s proposed orders are that for a period of six months from now, the children’s time be supervised for three hours on each alternate Sunday increasing over time to alternate weekends but with the first six months of this arrangement being supervised by Ms J.  I do not accept that Ms J is the appropriate supervisor.  No evidence was given by her about her ability to understand the role and she has two young children.  She does not have a relationship with the wife.  The wife does not trust her.  The nature of the relationship between Ms J and the children is not a proper foundation for an objective supervision of children who have disparate needs. 

3. I find in the circumstances that there must be a risk to the children having regard to the nature of the proposal put by the husband.

The various proposals

1. The Independent Children’s Lawyer proposed that the father spend no time and have no communication with the children other than by cards, letters and presents six times per calendar year together with communication for the children’s birthdays and Christmas.  It was proposed that otherwise the husband be at liberty to obtain various reports from the school.

2. The husband’s position was as I have earlier described it.  Leaving aside uncontentious issues, he sought that for a period of six months each alternate Sunday be spent with the children under supervision by Ms J and then a build-up over a period of time so that he have alternate weekends and periods of various school holidays.  He also sought an order that the children be at liberty to communicate with him by telephone at all reasonable times and to then afford the children privacy.  He also sought that he be at liberty to attend all sporting and extra-curricular activities of the children providing he did not come within 20 metres of the wife.  He would also seek a mutual restraining order in relation to abuse and non-denigration.

3. The wife’s position in final address was also that she have orders under s 68B and s 114 of the Family Law Act 1975 (Cth) (“the Act”) for her personal protection and the protection of the children which included restraint on the husband attending within 200 metres not only of the wife and the children but also their places of school or work or home. She also sought non-harassment type orders and a curious one that he be restrained from causing her or the children bodily harm which would obviously be a breach of the criminal law in itself. I return to these issues below in relation to whether it is appropriate to make such orders bearing in mind the existence of intervention orders.

4. The wife suggested that the husband be permitted to send a letter, card or photograph to each of the children at Christmas and on their birthdays and that the wife be able to vet these communications.

5. The existing intervention order, which is indefinite, names not only the wife but all four children. To the extent that any of the proposals of any of the parties would conflict with that order, the Magistrates’ Court at Suburb V provided that the husband could do anything that was permitted by a Family Law Act order provided he did not commit family violence whilst so doing.

Family Violence and how does it impact here?

1. Section 4AB(1) of the Act provides a definition of family violence. It defines behaviour which is violent, threatening or otherwise that coerces or controls a family member or causes that family member to be fearful.

2. It is not necessary for me to deal with this in any detail because the husband concedes abuse of the wife.  Section 4AB(2) sets out some examples of family violence but the definition is not confined.

3. One of the examples given is “stalking” whilst another is repeated “derogatory taunts”.  Stalking does not necessarily mean the definition under the criminal law.  In my view, it means unnecessary behaviour such as surveillance and/or attendance at a former partner’s property without justification.  The examples in s 4AB also use the words “repeated derogatory taunts”.  None of the examples given refer to verbal abuse but taunting can be defined as sarcasm or scornful reproaches. 

4. The word “abuse” is defined in s 4 only by reference to a child.  In relation to an adult, abuse can mean conduct designed to revile or injure that person.  Threats of the kind endured by the wife typify verbal abuse.  Their subjective intent is irrelevant because it is the recipient who endures and has no control over them. 

5. In this case, there is the conduct of the husband which ultimately led to his arrest after the wife telephoned the police when she saw him appear at her window.  He should not have been there.  All of these incidents extend the husband’s conduct from just verbal abuse over the telephone.  His conduct included stalking as well as taunts.   

6. I find the wife has endured many instances of this conduct and to the extent that his state was one of intoxication, it might explain why he said what he did but it does not excuse it.  Equally, his reference to being in a “dark place” does not justify his behaviour because the recipient is the one who is terrified and remains so.  There is no better example here than Mr M’s description of his own fear from being in the husband’s presence.  The same fear was apparent when the wife observed the husband staring at her on the day of the bubble wand incident.

7. Mr M described a telephone conversation with the husband at Beechworth which was filled with invective described by Mr M as being called “the F word and the C bomb”.  B was exposed to that conduct even if she was not able to clearly identify the words that were used because Mr M had the telephone.  On that same occasion, Mr M described the aftermath as feeling “flat”, “gutted” and that the incident had ruined the parties’ night.  It is that sort of conduct which must be seen as equally important in assessing not just whether the fear was reasonable but whether the consequences should have been endured.  Mr G was pessimistic about whether or not there was likely to be a repetition but I am not prepared to take that risk.

8. In my view, the fear of the wife is genuine and I accept her view that she cannot see an end to it.  As she observed, time might change that but a lot more would have to be done before that occurs.

The parties’ submissions

The Independent Children’s Lawyer

1. The Independent Children’s Lawyer described the case as difficult and sad and albeit hard, the best interests of a child had to prevail over the desires of a parent.  Her submission was that there should be no time or communication except by the limited cards and letters concept earlier mentioned.  It was submitted that this would enable the husband to still remain in the lives of the children such that when they were older, they may seek him out.  The Independent Children’s Lawyer’s submission was based on an urging of a finding of unacceptable risk of harm to the children. 

2. The risk here asserted is that with a long history of violence and aggression, and with the husband in his 40s, he is still having difficulty managing that aggression.  Insofar as there was any conflict in the evidence at all, it was urged that the wife’s view should be accepted.  I accept that submission.

3. It was submitted that the husband had no insight nor was there any profound change.  He had made statements of change before but there was nothing to support his evidence objectively.

4. Counsel for the Independent Children’s Lawyer highlighted the husband’s stilted and defensive affidavit as troubling because it blamed others and showed a lack of understanding of the distress he was causing.  The examples of those problems have been outlined above.  To the extent that the husband made concessions, it was submitted that both he and his mother had to have them “dragged out”.  I accept that submission too.

5. In assessing the children, it was submitted that the court should be careful because they were not robust and there was always going to be consequences if something went wrong.  Mr G indicated that there could be problems and that supervision was not good because the children did not want it.

6. It was submitted that this was a case where one balanced all of the evidence and on balance, there should be no time for the husband with the children because the benefits outweighed the risk.

The husband

1. Counsel for the husband submitted that the husband had acknowledged the seriousness of the problem and of his comprehension of it.  It was suggested that the June 2017 order in which he decided to agree to suspend his time with the children had “come back to bite him”.  I do not accept that entirely.  It was the husband’s evidence that the children needed a break but he also anticipated that the hearing would be on relatively quickly.  He did not give an indication as to the source of that knowledge but bearing in mind he was represented at the time, it seems implausible that a trial in this court and of this magnitude, could be listed within only months.  As it was, it was given priority. 

2. I do not accept the husband’s perception of the opinion of Mr G.  It is the husband’s view that Mr G was saying that supervision could not go on forever and therefore his time should be unsupervised.  I am satisfied that that is not what he was talking about. 

3. It was submitted by the husband that there was a danger in a no contact order because the children would have no chance to mature their relationship with their father and they would come to dislike him.  I accept that risk is there but in the fullness of time, whether in late teenage years or in adulthood, they can objectively assess whether or not their interests were badly prejudiced.  My concern is only to deal with the matter on the evidence before me and to assess the question of risk now.

4. Counsel for the husband submitted that his client had insight into the problems that he had created notwithstanding the state of his own evidence.  This was a recognition of the unusual stilted affidavit as being unhelpful but no attempt was made to rectify it other than to make the admissions as the oral evidence began.  The state of that evidence has never been adequately explained.  I also reject the suggestion that he could come along and tell the court the full story.

5. It was also submitted for the husband that a no-contact order would not dissipate the wife’s anxiety anyway.  In my view, that is not a basis to make a contact order.  To do so would look at the interests of the adults rather than those of the children.  As to the wife’s emotional state, counsel pointed to the thoughtful evidence of Mr M and his forthright answers.  It was submitted that Mr M saw things differently about how the wife is managing.  That concession was appropriate.

6. Finally, counsel urged the court to find that the husband could be trusted because there had been no difficulties similar to his past behaviour and there was no evidence to suggest otherwise.   As he said, the husband had kept away.  Whilst I accept that the husband has not been arrested nor has he being seen attending the wife’s home or telephoning her, but none of that gives me much confidence.  The husband’s affidavit, his late concession as to his conduct and the absence of any evidence as to what his mental health all leave open doubts about change.

The wife

1. Counsel for the wife handed up a written submission apparently causing some concern for the husband but in reality, it simply converted an oral presentation into writing.  The written submission covered the matters above and canvassed the evidence.

2. Ultimately, it is to the authorities and Part VII of the Act that the court must look to decide what is best for these children.

The legal issues

1. The power of the court to make a parenting order is found in s 65D of the Act. It enables the court to make such parenting order as it considers proper.

2. The types of orders that can be made are set out in s 64B(2) which provides relevantly here, both the allocation of parental responsibility and also the time a child is to spend with another person. The provision is discretionary and very wide but the parameters of that discretion should be read with other provisions such as s 60B.

3. Section 60B sets out the objects of the Act which inter alia include ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives but at the same time, protecting them from physical or psychological harm.  It is the right of these children to have that relationship with both parents but exercising that right must be consistent with their best interests.

4. What is best and what is proper must be considered in light of the position of both parents. The husband urges that he has changed and that he is a good father but the evidence about the children’s individual problems remains unchallenged. Whilst it is asserted by the husband that subsequent to his agreement to suspend contact in June 2017, the wife has taken the children to professionals who have damaged his relationship, that is too simplistic. Apart from anything else, D has been seeing a paediatrician and has been medicated to assist her sleep; that is not new. Her separation anxiety has been reduced but has not completely abated.

5. The nature of the relationship between each child and the husband is at best, problematic even though objectively they want to be with him.  I find that desire arises out of an idealized view of their father.

6. The children are also entitled to a relationship with their mother and the evidence of Mr G, combined with the wife’s evidence, indicates that that relationship could be prejudiced by orders. The children do not deserve that when the wife has been the only stable influence in their lives under the most trying of conditions.

7. Section 60CA makes clear that in deciding whether to make a particular parenting order, the court must consider the best interests of the child as the paramount consideration. Section 60CC is a mandatory consideration by which the court must consider the matters in s 60CC (2) and (3) to determine what is in a child’s best interests.

8. It is unnecessary for me to deal with s 61DA relating to the relevant presumption because of the husband’s concessions. The presumption created by the Parliament was that parents should share the decision-making responsibility and that it was in the best interests of children for their parents to have equal shared parental responsibility. In cases of abuse, the presumption does not apply and here, it could not.

1. In s 60CC, parliament distinguished between primary and additional considerations. The primary considerations are the immediate focus here. They are:

   (a)the benefit to the child of having a meaningful relationship with both of the child's parents; and

   (b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

2. The focus of the husband was mostly on (a), but my concern is that the evidence overwhelmingly supports findings that make (b) more important. That gives rise to whether there is a risk and whether it is unacceptable.

Unacceptable risk?

1. Counsel did not address how this should be approached. In In The Marriage of N and S [1996] FLC 92-655, Fogarty J said (at 82,713-4) that the question to be asked was whether the facts could be said to raise an unacceptable risk of harm to the child. That required a consideration of “where the facts of a particular case” fell and why those facts justified the orders. It was otherwise a discretionary matter.

2. As Warnick J in Napier & Hepburn [2006] FamCA 1316 observed:

   Once a finding of unacceptable risk is made, imperfect though the process that leads to that result may be, the finding can come down between parent and child like an iron gate, that no subsequent efforts can raise. At least a close examination of the steps leading to a finding of “unacceptable risk” can eliminate paths by which a family (or court making decisions for a family) might subsequently explore options for change.

3. That platform here is the one that the wife was asked about. What will repair the damage? Her answer was “time”.  The husband’s case is that he has waited long enough and wants to be involved in his children’s lives.  On the evidence I heard, I find his proposal would not be good for the children because of the stability achieved for the children since June 2017. 

4. The oft-stated observations of the Honourable John Fogarty after his retirement are what should be considered here. That is, in assessing risk:

   What harmful outcome is potentially present in this situation?

   What is the probability of this outcome coming about?

   What risks are probable in this situation in the short, medium and long term?

   What are the factors that could increase or decrease the risk that is probable?

   What measures are available whose deployment could mitigate the risks that are probable?

   (see John Fogarty, “Unacceptable risk – A return to basics” (2006) 20 Australian Journal of Family Law 249)

5. Mr Fogarty went on to say that:

   ...Risk involves two components; the degree of “likelihood” of the happening of an event, and the possible consequences (good or bad) if it does.

6. I find there is a risk here. Based on findings that:

   (a)On balance, the husband has not changed;

   (b)The children may suffer emotionally as well as physically if the husband’s proposal is adopted; and

   (c)The wife’s anxiety has not abated and is affected by a consideration of parenting orders in favour of the husband.

7. If the Court took a more restrictive and conservative line about orders as suggested by Mr G, I accept that there is a risk that the husband could not contain himself. In any event, as Mr G said, neither the husband nor the children want that type of arrangement. Taking that risk by using the most restrictive contact centre supervision orders (on the premise of excluding family members as not appropriate) would have the potential to exacerbate and heighten the problems in (b) and (c) above.  That conclusion is supported by the evidence of the children’s counsellors. If a problem occurred, and on the evidence of the husband’s 20 year history, I could not exclude it, the aftermath would put the already fragile health of at least two of the children at serious risk of harm and set back what is presently evident as a consequence of their counselling. A return to D’s separation anxiety, and her anger at her mother, could not be seen to be in her best interests. C is already exhibiting anger and frustration but also fear of a repetition of what he believes previously happened to him.

8. In respect of the primary considerations, to the extent that there is evidence of a meaningful relationship between the husband and the three younger children, the question must still be asked what benefit there is for these children. Any benefit must be balanced against detriments. The detriments here include exposure to abuse. If that conflict in the considerations arises, the Court is obliged (s 60CC(2A)) to give greater weight to the protection of the children over their rights to a meaningful relationship with the husband.

9. The risk of repetition of past conduct and its consequences is high.  Accordingly, I am satisfied that the risk here is unacceptable.

10. The additional considerations found in s 60CC(3) can be dealt with succinctly as there is little evidence. No one particular fact or factor (apart from the delineation of primary and additional considerations) carries more weight than another. The Court must consider the views (not the wishes) of the children. B has made her position clear and the husband no longer presses for orders. The other children but particularly D want to see the husband but that is not a persuasive point balanced against all other factors.

11. In respect of the relationships between the children and the parents, I have already covered those.  I understand that the husband does pay child support according to an assessment but it is not a matter pressed as significant by the wife.

12. The most profound additional consideration is the impact on the children of an exclusion from their father’s life. The evidence of what has occurred since June 2017 shows few problems; indeed, it has been beneficial. When the children ask about seeing their father, they are not distressed by being told it cannot occur.  There is no evidence that the absence of their father is detrimental nor could it be, because of his own disruptions to his relationship with them.

13. There is no issue of the wife’s capacity as a parent nor could there be. Albeit that the husband at various times raised questions of whether she was manipulating things and endeavouring to destroy his relationship with the children, the evidence does not support such assertions. I found the wife an impressive witness. The husband otherwise accepts that the wife is a good parent.

14. It is unnecessary that I say anything further about parental responsibility and family violence.

15. As to making interim or final orders, I raised the question with counsel for the wife as to whether, if there was an indication that the children, through counselling, no longer had the problems identified above, and she learned to see the husband as not a threat, whether that would be an appropriate time to reconsider the approach of the husband if it was accepted that his present application was premature. That was rejected by the wife and not supported by the Independent Children’s Lawyer. It was also not an issue within the husband’s contemplation either.  I find therefore, it is also important for the wife and the children to end to years of conflict as well as litigation.

Injunctions

1. The wife sought extensive injunctions as I have earlier described. There is a comprehensive and wide-ranging intervention order in place which covers exactly the same matters. Section 114AB of the Act provides that sections 68B and 114 are not intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections. Then, this appears:

   (2)Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless:

   (a)where the person instituted a proceeding:

   (i)the proceeding has lapsed, been discontinued, or been dismissed; or

   (ii)the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and

   (b)where the person took other action--neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act.

2. Counsel for the wife submitted that despite the language of his client’s application which seemed to be couched in parenting order terms, it was really intended as the pursuit of injunctive relief. That could be accepted but it does not answer the provision just mentioned. Counsel had no further submission to make and I consider that to avoid issues such as double jeopardy and conflict of laws, there should be no orders of that nature made here.

3. I propose to make orders consistent with these reasons.

I certify that the preceding one hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 9 April 2018.

Associate: 

Date:  9 April 2018