Wickham and Arnett

FEDERAL CIRCUIT COURT OF AUSTRALIA

WICKHAM & ARNETT

[2018] FCCA 80

Catchwords:
FAMILY LAW – Parenting – Twins aged 7 – one twin currently spending three hours per fortnight with the father; the other refusing to do so – father seeking orders for the children to spend time with him each alternate weekend and for half of the school holidays – mother seeking a no time order – where the mother alleges that the father perpetrated severe coercive and controlling family violence during and after the parties relationship which included hitting and pushing her, grabbing her by the throat, spitting on her, verbally abusing and threatening to kill her, damaging property, and taking or threatening to take the children in order to coerce her into agreeing to his demands including a demand to drop an ADVO application – where the mother agreed to the father spending time with the children for three years after the final separation but ended time soon after the children told her that the father had assaulted his current partner – where the father denies assaulting his current partner – where the father made some limited admissions about being violent to the mother but otherwise denied the mother’s allegations – where the father blamed his behaviour on the mother allegedly having mental health issues – where the court accepts the mother’s evidence and considers that there is an unacceptable risk of the children being exposed to family violence in the father’s unsupervised care - Independent Children’s Lawyer agreeing but proposing an order for long term supervised time – no benefit to the children in such an order – order made that the children spend no time with and have no communication with the father.

Legislation:

Family Law Act 1975, s.60CC

Cases cited:

Betros & Betros [2017]FamCAFC 90
Mazorski & Albright ( 2007) 37FamLR 518
Weekes & Pilcher (No.2) [2016] FCCA 2486

Applicant:

MR WICKHAM

Respondent:

MS ARNETT

File Number:

NCC 1258 of 2012

Judgment of:

Judge Terry

Hearing dates:

5, 6, 11 & 18 December 2017

Date of Last Submission:

18 December 2017

Delivered at:

Newcastle

Delivered on:

19 January 2018

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr Graham

Solicitors for the Respondent:	Nash Allen Williams & Wotton
Counsel for the Independent Children's Lawyer:	Ms McMahon
Solicitors for the Independent Children's Lawyer:	Legal Aid Gosford Family Law

ORDERS

All previous parenting orders concerning X born (omitted) 2010 and Y born (omitted) 2010.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The father shall spend no time with and have no communication with the children.
That except as otherwise provided for in these orders, the father shall be and hereby is restrained by injunction for the personal protection of the mother, Ms Arnett, and the children, X and Y, pursuant to section 68B of the Family Law Act, from:
a)Entering or approaching within 100m any premises where the mother may from time to time to reside or work;
b)Entering or approaching within 100m any premises where the children may from time to time attend school;
c)Approaching or contacting the mother and/or the children by any means whatsoever, including through a third party, except:
i.Through a lawyer; or
ii.To attend accredited or court-approved counselling, mediation and/or counselling; or
iii.As ordered by this or another court.
d)Removing the children from school.
e)Permitting, directing or allowing any third person to do any of the above on his behalf.
All outstanding applications are otherwise dismissed.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 1258 of 2012

MR WICKHAM

Applicant

And

MS ARNETT

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Wickham and Ms Arnett are in dispute about whether and if so to what extent their twins Y and X aged 7 should spend time with their father.
From the mother’s perspective the issue in the case is family violence. From the father’s it is a stubborn refusal by the mother to promote and foster a relationship between him and the children.
The twins were two years old when their parents separated in May 2012. They spent regular time with their father (although not without some disagreements between the parties) until July 2015 when the mother ceased to make them available after they told her about an incident in the father’s home where he had allegedly been violent to his new partner.
It was the mother’s case that the father had also been violent to her. In cross-examination she said that she regretted agreeing to the children spending time with him after separation and felt that she hadn’t done the right thing. She went on to say as follows:
I used to think it was just me and he would never do anything around them, I thought it was always just me and it was my fault and that’s why he did everything and then when this happened [the 2015 disclosures] I realised that it actually isn’t me and it’s going to happen regardless with anyone.
The father commenced court proceedings in October 2015 and in or about May 2016 the children began spending two hours per fortnight with him supervised by an accredited service.
In April 2017 an order was made for the children to spend two hours per fortnight unsupervised with the father and this later extended to three hours. Y has spent this time with the father but X has refused to do so.
In his trial affidavit the father vehemently denied being violent to the mother. He said that he and the mother argued but insofar as he became physical it was in the course of restraining her when she attacked him. He was adamant that the problem was that the mother had mental health issues of some description and that he was too young and naïve to know how to handle it.
During the trial the father made admissions which rendered his denial that he was a perpetrator of family violence untenable but in closing submissions he said he was good man who should not be judged by the past. He denied that there was any violence in his current relationship and said that the mother had always been difficult about him spending time with the children and the court should be alive to the possibility that she was just being vengeful in trying to deny him time with them.
The father sought orders that the children spend time with him for two full days each alternate weekend to begin with and then each alternate weekend from 7.00pm on Friday until 7.00pm on Sunday, half of the school holidays and on Father’s Day and at Christmas.
It was the mother’s case was that the father subjected her to severe coercive and controlling family violence during and after their relationship which took the form of verbal abuse, threats to kill, hitting, pushing, kicking, spitting, punching and kicking doors and walls, throwing away or withholding her phone and car keys, entering her home and removing property and taking or threatening to take the children to coerce her into doing what he wanted.
The mother said that she had good reason to believe that the father had been violent to his current partner and was firmly of the belief that the children would be subjected to or exposed to family violence if they spent time with him. She was also concerned that the father and paternal grandmother were likely to denigrate her to the children.
The mother said that there was no way that X should be forced to spend time with the father if he did not want to.
The mother sought orders that the children spend no time with the father and have no communication with him save that he be permitted to send them cards and gifts on their birthday and at Christmas.
Counsel for the Independent Children’s Lawyer submitted that there was an unacceptable risk of the children being exposed to family violence in the father’s unsupervised care but did not support a “no time” order. She proposed that the children spend time with the father for three hours each alternate Saturday supervised by an accredited supervised contact service nominated by the father but at a location nominated by the mother.
Counsel for the Independent Children’s Lawyer acknowledged the difficulty with an order for long term supervised time but submitted that Y’s relationship with the father should not be abruptly terminated and noted that X had repeatedly said that he would attend if someone was supervising.
Parental responsibility was not in dispute; the father agreed that the mother should have sole parental responsibility for the children.

The evidence

The father relied on his affidavit and the affidavits of his partner Ms N, his partner’s mother Ms K, the paternal grandmother Ms K and the paternal grandfather’s partner Ms C all filed on 23 August 2017.
During close submissions the father made numerous comments which were in the nature of fresh evidence. I cannot place weight on these comments which nobody was able to test in cross-examination.
The mother relied on her affidavit filed on 24 August 2017 and the affidavits of the maternal grandmother Ms A and the maternal step-grandfather Mr B filed on 25 August 2017.
A family report was prepared by Mr N a Regulation 7 Family Consultant.
Ms C and Ms K were not required for cross-examination. In closing submissions the father referred to their evidence and the fact that it was not challenged, but the fact that evidence is not challenged does not mean that I have to accept it unquestioningly or that it is necessarily of any great value to me.
Ms C, the paternal grandfather’s partner, spoke in glowing terms of the father’s interaction with Y and X but she did not say how often she had seen the father and children together and the happy picture she paints sits uncomfortably for me with the evidence from other sources about the paternal grandfather backing the father up in engaging in invasive and abusive behaviour toward the mother.
Ms K’s affidavit was very short. She said that she had always found the father pleasant, respectful and helpful and that A spoke fondly of him. Even if those things are true, they do not rule out the possibility that Ms K is only seeing one side of the father, and she did not mention how often she saw him.
The remaining witnesses were cross-examined.

Background

The parties commenced a relationship in (omitted) 2007 and finally separated on 15 May 2012. They have two children, Y and X born on (omitted) 2010.
The parties’ relationship after the twins were born was very much on and off. The information they each gave about the periods during which they lived together and the periods during which they lived under one roof but separated or did not live together did not exactly coincide but two things are very clear from the evidence.
One is that the mother was at all times the twins’ primary carer and that the father was sometimes absent from the home for quite lengthy periods of time.
The other is that the parties had a highly dysfunctional relationship. The mother called the police on a number of occasions, the police applied for Apprehended Domestic Violence Orders (ADVO’s) for the mother’s protection on several occasions and father was charged with although never convicted of assault.
It was the mother’s case that throughout the relationship and particularly after the birth of the twins the father subjected her to severe family violence including physical abuse, verbal abuse, threats to kill her, damaging her property and coercion in the form of threatening to take or not return the children unless she did what he wanted.
The father said that the relationship was dysfunctional because the mother suffered from anxiety and had a personality disorder and in his affidavit said that insofar as he may have touched the mother it was because he was attempting to restrain her or deflect her from assaulting him.
There was no dispute that the parties’ relationship finally ended in 15 May 2012. On that day after an argument between the parties the father went to the children’s day care centre and removed them. Later that day the paternal grandmother, who owned the home in which the parties were living, rang the mother and told her that her name was not on the lease and she had four days to leave the home.
The mother obtained temporary accommodation and applied to the Federal Circuit Court for a recovery order which was made on 17 May 2012.
Thereafter, the parties lived separately and apart but the mother facilitated the father spending time with the children at least each alternate weekend and this continued until July 2015.[1]
The mother alleged, and I will need to make some findings about this later on, that between May 2012 and July 2015 she and the father had numerous disputes over issues such as changeover times and locations and that the father continued to subject her to verbal abuse and threats.
In June 2015, X and Y came home after a visit with the father and informed the mother that the father had assaulted Ms N with whom he had recently formed a relationship. The mother contacted the father and asked him what had happened. The father told her that he and Ms N had a fight but did not admit that anything violent had occurred.
The mother continued to make the children available until 26 July 2015 when she ceased time. She said that due to her experiences with the father she did not believe that nothing had happened in June 2015 as he claimed and that after a prolonged dispute between them on 26 July 2015 when the father shouted abuse at her she decided to stop time.
The mother said that she:
…[believed that she had] a strong obligation as a parent to make sure that X and Y were not exposed to anymore family violence.[2]
[2] Mother’s affidavit paragraph 267
On 20 October 2015 the father filed an application seeking orders for the children to spend time with him each alternate weekend and for half of the school holidays.
The mother filed a response seeking an order that the children spend time with the father as determined by the court.
The father’s application was given a first return date of 28 January 2016. On that day the parties attended a child dispute conference and subsequently signed consent orders which provided for the father to spend time with the children for 2 hours each fortnight supervised at (omitted) Contact Centre.
There is a lengthy waiting list for the use of such contact centres and it the father’s time had not started by the next mention date of 15 April 2016. On that day an order was made for the father to spend time with the children for 2 hours at (omitted) Contact Centre but also for 2 hours each Wednesday supervised by Big Brown House, a private and much more expensive accredited supervision service.
In May 2016 the father commenced spending time with the children supervised by Big Brown House for two hours each Wednesday afternoon and he continued to do so until January 2017. Both children attended the supervised visits.
On 5 December 2016 an order was made for the children to spend three hours unsupervised with the father at the paternal aunt’s wedding on (omitted) 2017. Y took part in this visit but X refused to go with the father.
A Family Report was prepared in January 2017. The report writer, who did not have the extensive evidence about family violence which came out at the trial, recommended that the children commence spending unsupervised weekend time with the father and after that had bedded down commence spending holiday time with him.
Following the release of the report the father filed an application in a case seeking orders that the children spend unsupervised time with him.
On 2 April 2017 I made an order by consent that the children spend two hours unsupervised with the father each alternate Sunday. That time commenced on 30 April 2017 and increased to three hours each alternate Sunday as of 23 July 2017.
Both children were always taken to the changeover location but X consistently refused to go with the father.
The matter was originally listed for trial in September 2017 but it had to be moved because of conflicting priorities for the court. It was heard in December 2017 and judgment was reserved.
Following final submissions on 18 December 2017 I suspended the order for unsupervised time insofar as it applied to X.

The parties’ current circumstances

The father lives in (omitted) on the (omitted) in a home which the paternal grandmother has a right to occupy due to her employment.
The father commenced cohabitation with Ms N in (omitted) 2015 and he lives in the (omitted) property with Ms N, their son B born on (omitted) 2016 and Ms N’s daughter A born on (omitted) 2008.
The paternal grandmother lives there as well for about three days each week. The rest of the time she lives in (omitted).
The father is a (occupation omitted) who works for a company in Sydney, which means that he is absent from home for about twelve hours each weekday. Ms N is a (occupation omitted) who is employed at (employer omitted).
The mother lives on the (omitted) with Y and X. She has not re-partnered and has no other children. The mother is working three days a week as a (occupation omitted). She hopes to work more in the future.

The mother’s family violence allegations

The mother made serious allegations of family violence and it is essential that I make findings about them if I can.

The mother’s evidence

The mother and father were both about 25 when they commenced their relationship.
The mother alleged that before she became pregnant, the father was very short tempered and would often shout and call her names such as fucking cunt. There was no dispute that at that time the father used cannabis every day and the mother said that she believed that this affected his behaviour.
The mother alleged that about half way through her pregnancy in 2009 the father’s behaviour escalated and he began punching holes in walls, shouting abuse at her and picking things up and throwing them. She gave as an example an occasion when he threw the remote control so hard that it went through a plasterboard wall making a hole in the wall.
The mother said that the first incident of physical violence occurred in (omitted) 2010 when she was lying on the bed about a month prior to the birth of the twins. The father grabbed the mattress and flipped it up and she fell through the slats onto the floor.
The mother said that shortly after the children were born, the physical abuse escalated and the father began grabbing her by the throat and pushing her against the walls. She said that he would shout in her face for lengthy periods of time and hurl obscenities at her.
She said that the pushing became worse over time and the father also began to use the heel of his hand to hit her and that she sometimes fell over or tripped and fell backwards onto the furniture.
The mother alleged that when the twins were a few months old the father kicked her for the first time. She said that she was lying on the lounge and the father kicked her in the hip with his bare foot. She said that after this the father kicked her often and would kick her in the kidney area.
The mother said that the father would often spit in her face while holding her by the throat against the wall. She said that sometimes when this occurred she was holding one of the twins. She said that the father would shout obscenities at her if she complained about him smoking cannabis.
Both parents said that from about either March or May 2010 when the twins were very small they were separated on occasions.
It was the mother’s case that the abuse continued whenever the father came into contact with her and that it took the form of the father shouting things at her such as “fucking listen to me”, “you are a fucking cunt” and similar abusive language, that he would throw objects such as the television remote, plates and cup and that he threw crockery at the television set.

The mother said that the father would place his palm on her upper chest and push her against the wall and that he did that at least 20 times. She said that he would access her computer and mobile and shout at her and when she would not answer his questions about people she had been in contact with that he said that he would slit her throat.
The mother described an occasion on 31 October 2010 when the parties were briefly together at her parents' home and the father screamed at her that she was a cunt and a bitch and that he loved her and she didn’t love him. She said that X and Y woke up and the father yelled that he was going to kill the mother and that she was a stupid bitch. She said that he pulled the spark plugs from her car and threw them on the lawn and that he pulled the leads out of her computer and grabbed her mobile phone and threw it down the road and then stormed off in his car yelling ‘If you need a root and a slut go to number 16”.
The mother made a report to the police and an application was made for an interim ADVO.
The application was listed on 25 October 2010 but mother said that the father promised that he wouldn’t behave like this again and she asked the police not to proceed with the ADVO. From COPS records it would appear however that the application was not finalised at this time and was adjourned to 1 March 2011 for hearing.
The mother said that whenever the parties were separated the father would continually ask her to reconcile and when she didn’t fall in with his suggestion would become extremely angry and would spit in her face and grab her throat and shout in her face.
In late 2010 the mother again approached the police about applying for an ADVO after she was informed by a friend that the father had threatened her life in relation to the whereabouts of a bicycle but again she withdrew her application after telling the police that she wasn’t prepared to go to court.
The mother alleged that between October 2010 and January 2011, whenever the parties were together in the property in (omitted) which was owned by her parents, the father would frequently become angry and punch holes in walls. She said this included punching several holes in a garage door and a hole in the party’s bedroom door and the children’s bedroom door.
On 10 December 2010, the parties were separated and the mother agreed to a request by the father for the children to spend the weekend with him. However, once the children were with him, the father informed the mother that he was not going to return the children to her unless she signed a parenting agreement and a document agreeing to withdraw the ADVO application which was then on foot.
The father said that the paternal grandmother drew up two documents for the mother to sign. During cross-examination at trial, the paternal grandmother said that she drew up the parenting agreement but did not recall drawing up the document in which the mother was to agree to withdraw the ADVO. I am satisfied however that she drew up both documents.
The mother gave the following evidence about the paternal grandmother’s involvement in the matter:
Eventually on 11 December 2010 I received a text message from Mr Wickham’s mother Ms K as follows: “You have to sign the papers and if you don’t you can wait till court. Otherwise you don’t get them back. You need to stop this irrational behaviour. It is against the law you not letting him see the kids”.
I sent a text message reply to Ms K saying: “I am only messaging and called because Mr Wickham threatened to keep the kids”.
There were a number of text messages between myself and Mr Wickham’s mother Ms K during one of which I said “Need to be assured that I am getting them back on Sunday:” To which Ms K replied by text: “You are playing irrational games. As long as you sign the paperwork you will get them back Sunday”. I telephoned Mr Wickham at 4.30pm on Sunday 12 December 2010 and Mr Wickham answered the phone. We had a conversation and Mr Wickham screamed at me: “What’s going on? Am I still dropping them off? You know it is every weekend not every second weekend”.
The mother contacted the police and said that they suggested to her that she sign the documents in order to get the children back and informed her that the documents would not be valid because they were signed under duress.
On 11 October 2010 the mother signed both documents and she attached them to her affidavit. The document concerning the ADVO said as follows:
I, Ms Arnett, have told Mr Wickham that I do not want to proceed with the Apprehended Domestic Violence Order Ref No (omitted).
I agree that the incident was an argument between us and I was an active participant in the argument.
The document in relation to the children said as follows:
That they live with Ms Arnett in the first instance with provision to review should there be a change of circumstances of either parent.
That they spend time with Mr Wickham each weekend from 6.00pm Friday until 7.00pm Sunday. Mr Wickham agrees to liaise with Ms Arnett regarding times convenient to him that her family can visit with the twins of a weekend. I acknowledge that this will reduce the time he will have the twins in his care, time that is important for the continued development of positive relations with their father.
Mr Wickham has offered for Ms Arnett to have the twins in her care on Christmas Day 2010 and Mr Wickham to have the twins in his care from 9.00am Boxing Day 2010 until 5.00pm, December 28^th 2010.
I acknowledge that Mr Wickham wants to be actively involved with the care of the twins, therefore wants them to continue to reside in the (omitted) or (omitted) regions.
Transportation of the twins is to be shared between both parties. Mr Wickham will arrange for his parents to be available when transportation is required.
I acknowledge that Mr Wickham agrees to contact me if there are any problems with the twins while in his care, he is under no obligation to report to me other than when there is a problem. I agree to advise Mr Wickham whenever there is a problem when the twins are in my care.
I will refer later in the judgment to the evidence given by the father about the family violence allegations generally but a striking feature of his evidence was that he could see absolutely nothing wrong when cross-examined with his behaviour in forcing the mother to sign these documents by threatening to retain the twins until she did so. The paternal grandmother could also see absolutely nothing wrong with her behaviour in that regard and did not recognise it for what it was (her behaviour as well as the father’s) namely coercive and controlling family violence.
I glean from the mother’s affidavit that the agreement about the father’s time with the twins was not adhered to and the parties continued to have endless disputes after December 2010.
In mid-December 2010 the mother said that the father threatened to have her and her lawyer charged and make her life a living hell and if she had a named person around the children he would be killed and would be dead. She said that in a telephone conversation on 22 December the father swore and yelled at her and told her was coming to see the children regardless of what she said.
The mother said that in early 2011 the father telephoned her many times threatening her including saying:
I’m going to smash you. I’m going to burn the house and I’m bringing the boys over.
The mother said that the father telephoned her repeatedly calling her a dumb cunt and a slut and shouting abuse and other obscenities at her.
She said that on 11 January 2011, the father and the paternal grandfather turned up at her home and began shouting and swearing and calling a man who was having dinner with her with his children that evening a fucking paedophile.
Neighbours called the police who arrived and asked the father to leave which he did.
The mother said that when she was with the father she would often receive phone calls from neighbours asking if she was alright after occasions when the father had shouted at her and punched holes in walls.
On 26 January 2011 the mother agreed to the father seeing the children. The father was disqualified from driving at the time and she agreed to his request that she drive the children to him. She then agreed to drive the father and the children to a swimming pool.
The mother said that when they were in the car the father began verbally abusing her and questioning her about a man in Queensland. She said that the abuse was so bad that she told the father she was going to have to drop him off because she couldn’t put up with it. She said that as she slowed to make a turn the father grabbed her head and smashed her head against the car window.
The mother said that the father then took hold of her throat and jaw with his right hand and leaned over and took the keys from the ignition. She said that the car was still moving and she managed to slam the brakes on even though the father still had hold of her throat and jaw. She said that the father then jumped from the car and threw her car keys down the street.
The children were screaming but the father managed to pull X from the car and ran off with him leaving the mother and Y at the car. The mother said that over the next hour the father telephoned her asking her “how she liked it cunt”, telling her that she would never see X again and repeatedly screaming “fuck you, fuck you, fuck you.”.
The mother went to the police who were able to track the father down and X was returned to her later that day. The mother said that she never found her car keys. She said that after this incident she was extremely frightened for her safety and had difficulty sleeping for months. She said that the father found means to get into her house and on one occasion entered the home and grabbed her computer and ran off with it and when he gave it back to her about a week later it had a smashed screen.
She said that the father continued to make abusive telephone calls and send her abusive messages saying that she was a cunt and a shit and the children hadn’t developed.
The mother gave the following evidence about the behaviour the father subjected her to in February 2011:
At 5.00pm on 12 February 2011 Mr Wickham telephoned me and said: “I am going to fuck you up. You two-bit dog cunt. You’re gone. I’m going to kill you, you dog cunt. You’re fucking stuffed. I am also going to call my mate and your cars going to be smashed. I’ve just organised someone to look after you. The bikies have already been organised. Dad has organised someone in (omitted), so don’t think I am joking. You’re gone.”
The mother made a complaint to police and in the COPS entry which was tendered, there is reference the father sending the mother text messages on 9 February saying “I’m going to punch you the fuck out, you two bit dog cunt, fuck you” and “If you don’t get back to me within 24 hours I am going to release all civil action and let my dad go ahead, we will be over tomorrow afternoon and no matter what we will be taking the kids.” [3]
[3] Exhibit K
The father and paternal grandfather came to the mother’s home on 12 February 2011 and father screamed “paedophile” over and over again in reference to a man the mother had had minding the children.
There is a good deal more abuse detailed in the COPS Entry and the mother was told that the police would organise an interim ADVO for her.
It would appear that the mother subsequently did not attend court in relation to any ADVO applications and no final ADVO was made.
The mother said that between April and July 2011, the father repeatedly apologised for his behaviour and said it would never happen again and that he wanted the parties to get back together as a family and that in or about July 2011 she agreed to reconcile with him.
The parties moved into a house at (omitted) which was owned by the paternal grandmother. The mother said that it only took a couple of weeks before the abuse resumed.
She said that the father again began physically assaulting her and throwing and breaking things including the children’s toys and that this continued until November 2011 when the parties separated although they subsequently lived again under one roof on occasion.
She said that other behaviour the father engaged in at this time was taking her car keys in order to stop her leaving, taking the fuses out of the power box, pulling the leads out of the TV and taking her mobile telephone.
She said that in between perpetrating the abuse the father kept apologising and saying it wouldn’t happen again.
The mother said that on 13 November 2011, she was holding Y when the father shouted obscenities at her and pushed her with his hand and she fell over. She said that he grabbed her singlet or tank top and ripped it while she had Y in her arms. She said that she rang a women’s refuge which was something she had done in the past on a number of occasions but didn’t follow up on the phone call although she did take the children and stay in a motel for the night.
She said that once again the father telephoned her and said he was sorry and it wouldn’t happen again and she returned to the (omitted) property the following day and stayed there for the night but the next morning when she woke up she found that the children were gone and the father had left a note on the bedroom door saying ‘you have postnatal depression and you need medical help’.
The mother alleged that the following then occurred:
I telephoned Mr Wickham and in part of that telephone conversation Mr Wickham said to me: “It’s too distracting having the children around. They have gone to my mother’s and neither of us will see them until we work things out”. In that same conversation Mr Wickham said to me: “We need to be back together again as a family. We need to see someone like a psychologist”.
The mother applied to Gosford Local Court for a recovery order but the next day the father returned the children to her and agreed that she and the children could continue living at the (omitted) property and she withdrew the proceedings in Gosford Local Court.
The mother said that the father made it a condition of returning the children to her that she agree to see a psychologist with him and they did attend on the psychologist and she alleged that she told the psychologist about the father’s violence.
The mother said that after the father returned the children to her and agreed that she could remain in the (omitted) property, he also continued to live in the property. She said that she considered that the parties were separated under one roof. She said, however, that from the end of November 2011 the father began forcing her to have sex with him.
She said as follows:
Mr Wickham was polite to me during the daytime but at about the end of November 2011 Mr Wickham insisted we have sex. I kept refusing until one night at about the end of November to start of December 2011 Mr Wickham came to my bed and said: “Unless we do it now I’m taking the kids.” I was terrified that he would take the children again and so I agreed, but I was very frightened and did not want to.
On a number of occasions after that Mr Wickham insisted that we have sex saying: “If you don’t, I’m taking the kids”.
I have not spoken about Mr Wickham threatening to take the children if I did not have sex with him before in any affidavit because I have been too embarrassed and disgusted to tell my lawyers.
The mother said that she did not want to stay in the same house as the father but was frightened that he would follow her and get the children if she left.
The mother said that on 22 February 2012, the father yelled obscenities at her and pushed her so hard while she was holding Y that she fell back on the lounge. She said that he then left but came back and took X and Y and put them in his car.
The mother tried to retrieve the children and took Y out of her car seat and sat in the driver’s seat trying to comfort her. The mother said that the father pushed her hard across to the passenger seat of the car causing Y to hit her head on the handbrake. X was still sitting in his car seat but the car seat was not buckled up.
The mother said that she tried to get out of the car with Y but the father was pushing her so hard she couldn’t stand up and the father then started the car and drove off even though neither X and Y were secured in their car seats, yelling at her that she was a fucking bitch and he was going to take her to the bush to get rid of her.
He also screamed at her that she would never see the children again.
The mother said that the father drove very fast down different side streets. At one point he stopped and the mother saw two men outside a house and yelled out asking them to help her and call the police but the father told them she was crazy and a stupid bitch and drove off.
The mother said that she pleaded with the father saying that she was sorry and would do anything for him and asked him to take her home.
She said that she was distraught and shaking.
The father eventually took the mother and children home and allowed the mother to get the children out of the car. Once she was inside she telephoned the police and they said that they would apply for an apprehended domestic violence order.
The order the police took out restrained the father from approaching the mother or being at the (omitted) property.
The father was also charged with assault and the mother made an application to the Gosford Local Court on 27 March 2012 for parenting orders. Orders were made by consent for the children to live with her and spend time with the father.
The mother said that shortly after these orders were made, the father handed her a copy of a letter written by his solicitors Daniel Lewis & Associates dated 5 April 2012. She attached a copy of that letter to her affidavit. It informs the father that a plea of not guilty has been entered on his behalf to the assault charge and also says as follows:
As discussed, the matter will only proceed if Ms Arnett turns up at court to give evidence against you. If she does not, I expect the charge will be dismissed. If she does, I will cross examine her, on your instructions, and submit her version as a lie and she was in fact the aggressor.
I further confirm this is a very serious charge and may attract a term of imprisonment if you are found guilty. For that reason, I will ensure I am ready to fully defend the charge on that day.
The mother went on to say as follows:
When he handed me this letter Mr Wickham said: “This is what’s gunna happen if you don’t withdraw. I’m going to go to gaol. The children’s father will be gaol. The children won’t have a father and you will be the cause of this. It won’t ever happen again.” Mr Wickham said some other things which I can’t remember however I do remember being very upset and frightened that he would do something to harm me or the children and I also didn’t want to be the cause of the children’s father going to gaol. I have never even known anyone who went to gaol and I thought it would be a very bad thing for the children to have their father go to gaol. I told the police I didn’t want to go ahead with the AVO nor any criminal charges that they had brought against Mr Wickham. There was another court date for the charges against Mr Wickham and the AVO but I did not attend the court and I understand that the criminal proceedings were dismissed and the AVO application was dismissed.
In early April 2012 the father returned to live in the (omitted) property, again on the basis that the parties were living separately under one roof.
The mother said as follows:
I can recall one occasion when I was still living with the children in the (omitted) home after we had finally separated when Mr Wickham said to me “I’m going to slit your throat you cunt slut. You’ll never get a dick up your quoiter you fucking fat hoe slut”. He often shouted these obscenities at me in the presence of the children.
On 15 May 2012 the mother had an appointment to see a counsellor in (omitted). She told the father she was going out but did not want to tell him where she was going and he became verbally abusive when she would not tell him where she intended to go. She said that he began to swear at her calling her a cunt and a slut and that both X and Y were present as she was getting them ready for day care. She said that the father then said that he was going to take the children to day care and left the house with the children.

The mother said that the father yelled at her that she was a slut and a whore and that he intended to slit her throat if she didn’t get out.
She said that he also walked into the bedroom and punched two holes in the bedroom door and began picking up her belongings and throwing them out on the lawn.
The mother left the house and went to the children’s day care centre but found that the father had returned to the centre before her and collected the children.
The mother contacted the police but they said they were unable to help her recover the children and that she would need to seek a recovery order.
The mother went to Cessnock Local Court and was given the details of the Family Court in Newcastle and filed an application electronically for a recovery order.
At 3.30pm the mother received a text message from the paternal grandmother telling her that she did not have permission to remain in the (omitted) property and would have to vacate it by 19 May 2012.
As previously mentioned on 17 May 2012, the Federal Magistrates Court in Newcastle granted a recovery order and the children were returned to the mother.
The mother said that the abuse did not end when the relationship ended. She said that between May 2012 and November 2013, the father often verbally abused her and sent her abusive text messages. She said that he would shout at her that she was a slut, a fucking cunt and a whore.
The mother said that in early 2013, that there was an incident at changeover where she was leaning in the passenger side door of the car looking at the children and talking when the father suddenly started the car threw it into reverse with the door still open and the door hit her. She said she staggered back a few paces but didn’t fall over and that father drove off fast and the passenger door shut by itself.
The mother said that the father frequently threatened that the children wouldn’t be returned “unless” and he would then make some demand.
The mother said that there was an occasion when she told the father that she was not happy to hand the children over to him if she didn’t know where he was living and that the following occurred.
Mr Wickham replied: “I dare you, just try it and see what happens. There is nothing more dangerous than a cunt that has lost everything. I will be having them no matter what. I will come to your home and take them. And don’t worry I know where everyone lives, so just don’t push me. I will be walking into day care next Wednesday and taking them and there is nothing you can do to stop me you slut. You are such a cunt, bitch toe-rag.” Mr Wickham also shouted at me a lot of other obscenities and abuse.
The mother said that until July 2015 when time stopped, the father continued to often call her abusive names in the hearing of the children such as “you are a fucking cunt” “you’re a cunt” “you’re a slut” and “you’re a stupid bitch.”
The final straw for the mother was what occurred in July 2015, about a month after the children made the disclosures, when she and the father had a disagreement about the arrangements for the children to be returned to her. She said that the father rang her and started shouting at her and she was so frightened she hung up. She said that the father rang back and was shouting so loudly that his voice was distorted but she clearly heard him shout “You fucking slut”, “you cunt” and “You’re not going to boss me around.” She said that there were further phone calls with more shouting and more obscenities.
The mother said that for a long time she accepted this behaviour as the norm from the father even though she was afraid and was often trembling when he said those things. However, she said that after this she decided that she had to take a stand for the children’s sake and she ceased making the children available to spend time with the father.
The mother also said as follows:
I am still anxious, frightened and upset, to the point where I often begin to tremble when Mr Wickham is speaking to me and particularly when he is shouting obscenities at me….

The maternal grandparent’s evidence

The maternal step-grandfather said that he had many conversations with the father in which the father was abusive and that he usually used the word “fucking” several times in a conversation.
The maternal step-grandfather said that when the mother and father moved out premises owned by the maternal grandparents in (omitted), he observed that there were holes in the walls, in the bedroom doors and in the internal door between the garage and the house. He said that he had to replace three doors completely because they were damaged beyond repair.
The maternal grandmother said that on several occasions when she visited the mother prior to the birth of X and Y, she observed bruises on her arms and when she asked the mother how she got them the mother said that she had bumped herself.
The maternal grandmother said that she observed holes in the walls, the garage door and two bedroom doors at the (omitted) property. She attached a photograph of two of the bedroom doors to her affidavit and they show a significant amount of damage to the two doors, not just one hole in each door.
The maternal grandmother recounted an occasion when the mother called her in distress saying that the father had taken her money and her car and asked her mother to come and help her.
The maternal grandmother said that after the twins were born she had a telephone conversation with the father in which he tried to convince her that the mother had postnatal depression and a personality disorder. She said that when she told the father that she thought the mother was looking after the children well and she didn’t think that there was anything wrong with her the father suddenly raised his voice and swore at her and called her a fucking cunt. She said that he also shouted other obscenities. She said that she was in a state of shock as nobody had ever used those words to her before.
The maternal grandmother said that after this she was frightened of the father and became worried about the mother. She said that she was so frightened and shaken by the father’s sudden explosion of rage that for some considerable time she refused to answer the phone if she knew that it was the father calling.
The maternal grandmother said that she only started to speak to the father again after the parties separated and that was because she wanted to help the mother in relation to caring for the children.
The maternal grandmother said that the father also sent her some abusive text messages.

The father’s evidence

The allegations the mother made about family violence in her trial affidavit filed in August 2017 were more extensive than the allegations in the affidavit she filed earlier in the proceedings but she did make serious allegations of family violence in her earlier affidavit and the father was well aware before he filed his trial affidavit of the nature of the mother’s case. The existence of family violence allegations is also referred to in the family report. The family report writer said as follows:
If the mother’s account is to be believed, the father was verbally and physically aggressive during the parents’ relationship, denigrated her on a regular basis and intimidated her constantly.
The father told the family report writer that the parents had heated verbal arguments and that on one occasion he spat in the mother’s face and he also told the family report writer that the parents had slapped each other.
In his trial affidavit however the father’s only reference to the violence allegations were these:
As Ms Arnett and my relationship progressed, it became more and more dysfunctional; both parties raised their voices and used language that was inappropriate and both parties damaged each other’s property. However, I have never intentionally hit Ms Arnett but I have tried to restrain her or push her away as she attempted to hit or kicked at me. [4]
[4] Father’s affidavit paragraph 36
……………………
[Ms Arnett] constantly picked fights late at night, and made “repeated” derogatory taunts: about my inadequacies to second guess what she wanted me to do.[5]
[5] Father’s affidavit paragraph 39
The father did not challenge the mother’s evidence about violence during cross-examination and did not to put to her a single specific instance in which she had used obscenities to him, threatened him or physically attacked him. He was warned of the significance of this and after warning him, I went off the bench for a short period so that he could consider his position, as he was a self-represented litigant and I wanted to give him every opportunity to put his case.
When I came back after some time off the bench to enable the father to reflect on what he wanted to do, he put a few questions to the mother in which he asked whether she had called him a useless father and thrown his stuff on the lawn and he asked her about a couple of other things. He did not suggest to her that she had ever physically attacked him or subjected him to the threats to kill, obscenities and spitting to which he admitted subjecting her.
In closing submissions, the father claimed that he made a forensic decision not to challenge the mother’s allegations because it might have led to him being painted in a poor light. I do not accept this. In my view the only explanation for the father failing to challenge the mother’s evidence and put to her examples of her behaving violently was that she was telling the truth and he had no examples to give.

Findings about family violence

The mother’s narrative of what happened to her during the relationship was compelling. She was not shaken in cross-examination on any of the evidence she gave, indeed she was not challenged about any of it, by the father, and her demeanour throughout the trial was entirely consistent with her being frightened of the father and severely impacted on by having been subjected to the kind of violence she described.
The mother was visibly uncomfortable sitting in the court room while the father was being cross-examined and I made arrangements for her to appear by video link from a different courtroom while being cross-examined by the father. Even then she looked down and would not look at the father and she spoke quietly.
This was in marked contrast to the mother’s demeanour when she was cross-examined by Counsel for the Independent Children’s Lawyer. She perked up and almost became a different person, making eye contact, speaking in a more animated tone of voice and not displaying any fear.
The mother became particularly animated and engaging when she was asked questions about the children.
The father made a number of admissions during cross-examination which seriously undermined his case that he had not perpetrated family violence in his relationship with the mother. He admitted kicking and punching doors. He admitted spitting in the mother’s face although he denied holding her by the shoulders while he did so. He admitted sending a text message and uttering threats and abuse in February 2011 which included calling the mother a “dog cunt” remarking that “It’s probable those things were said.” He admitted threatening to kill the mother.
He admitted throwing the keys away and leaving her the mother on the side of the road with Y and running off with X in January 2011. He admitted forcing the mother to sign the document withdrawing the ADVO in 2010 and he admitted giving the mother the letter from his solicitor which caused her withdraw the assault charge and ADVO in 2012.
It is chilling that the father in cross-examination and indeed the paternal grandmother in cross-examination could see nothing wrong with the way the father had behaved in relation to forcing the mother to sign those two documents, on the first occasion by informing her that he would not return the children to her unless she did and on the second occasion by intimidating her and making her feel guilty at the prospect of him going to gaol.
When he was asked by Counsel for the Independent Children’s Lawyer if he had threatened to slit the mother’s throat, the father’s response was “I don’t recall”.
When he was asked about the allegation that he had flipped the mother out of bed his response was:
I remember that incident. I owned the bed. She tried to jump on the bed to stop me taking it.
The father admitted that when the parties lived in (omitted), an incident occurred where he drove the mother around in the car but he denied threatening or assaulting her on that occasion.
There is other evidence consistent with the mother’s narrative namely the evidence of the maternal grandmother and step-grandfather about observing the damage to doors in the (omitted) home and of the maternal grandmother about seeing bruises on the mother’s arms. They were not shaken in cross-examination and I accept their evidence.
Scattered through the mother’s evidence about the family violence were numerous statements that are all too common in situations where people are enmeshed in a violent relationship. She described feeling embarrassed and frightened and not asking for help when she should have. She said that she thought it was her fault. She referred to occasions when the father promised to be nice and promised that he would not behave that way again and occasions when he bought her flowers. She said that he often said that he was sorry.
Compelling evidence which supports the mother’s case and not the father’s was given by the paternal grandmother.
The paternal grandmother told the family report writer that the father had a short fuse and didn’t suffer fools.
During cross-examination by Counsel for the Independent Children’s Lawyer she said that the father was “six foot four with a big voice and it can be intimidating.” She went on to say:
When he gets angry he will yell and it doesn’t take much for him to yell. If he’s angry he’s quite forceful in his speech and rants and raves and I’ve seen him throw his mobile phone.
Another thing which inclines me to accept the mother’s version of events rather than the father’s, is that the mother and the COPS records refer to the paternal grandfather being present on 12 February 2011 when the father verbally abused the mother, and he was present on another occasion filming something. The paternal grandfather sat in the back of the court for much of the trial. He drew attention to himself by laughing inappropriately when the father was being cross-examined, as a result of which he was asked to identify himself. He was clearly available to give evidence if the father thought it would help his case but the father failed to call him.
The father has a criminal history which includes convictions for assault, at least one of which involved spitting and he has a conviction for possessing a knife and conviction for negligent driving occasioning death for which he received 250 hours community service.
The relevance of the father’s convictions for assault (including at least one involving spitting) is that the behaviour described by the mother is not out of character.
The relevance of the latter two matters is in relation to the father’s credit as a witness. The family report writer noted that the father did not tell him about his conviction for negligent driving causing death, and he informed the family report writer that the charge involving a knife was in respect of him being in possession of a butter knife.
Anyone hearing that would assume that the father was convicted of possessing a small knife with a rounded tip
The COPS record which was tendered stated that the knife was a steak knife with a 20 cm blade which police found down the side of the driver’s seat in the father’s car. They alleged that the father gave two different versions for why it was in his car.
The father admitted in cross examination that the knife he was charged with possessing was not a butter knife but a much larger sharp knife. He did not explain why he misled the family report writer.
The father told police that he was sleeping in his car because he had smoked five cones of cannabis and they warned him not to attempt to drive his car.
I am satisfied on the balance of probabilities that the mother was subjected to the coercive and controlling violence which she described in considerable detail. I do not accept the father’s denials nor do I accept that the mother verbally abused him (of which he could not give one concrete example) or physically assaulted or threatened to assault him of which he could give not one concrete example either.
How these findings play into the orders I make about the children is of course something I will have to consider after making findings about all of the s. 60CC(2) & (3) matters

The allegations about family violence between the father and Ms N

The mother alleged that in June 2015 the children told her that the father had been violent to Ms N.
She said that X told her that Ms N got hurt and when she asked what happened, he said that daddy had punched her. She said that the children both raised their right fist and pushed it forward in a punch. She said that X told her that daddy hit Ms N on the nose and Ms N went to the bathroom to fix it. He said that there was blood and this was in the morning and he heard them fighting so he woke up Y and A and said they’re fighting again.
Y told the mother that the father broke Ms N’s phone. X also talked about the father grabbing Ms N’s fingers and Ms N saying “ouch how can you do that”.
Y also told the mother that the father walked into the room where the children were playing and smashed their toys everywhere. She said that he said he was sorry and would fix it but he never did. It is unclear whether Y was referring to the same occasion on which the father hurt Ms N.
X told the mother that the father threw his cup of water at the TV and water went over the TV and that he picked up Ms N’s phone and smashed it on the ground.
Y told the mother that A was worried that daddy would come into the bedroom and start yelling so they built a cubbyhouse out of sheets in their bed to keep safe.
The mother said that Y told her that Ms N was crying in the bathroom so she and A went to sit with her.
X also said that the father said to Ms N “I’m going to kill you”.
The mother said that after hearing all this she was very concerned and sent the father a text message asking what had happened and telling him that it sounded like old times and that the father responded that he and Ms N had a fight but that there was nothing more to it.
The mother does not believe him nor does she believe Ms N’s denials. In her trial affidavit she said as follows:
I know from my own personal experience that I would often untruthfully deny that Mr Wickham had committed violence because I was afraid of Mr Wickham and embarrassed.[6]
[6] Mother’s affidavit paragraph 268
X was interviewed by the family report writer in January 2017, eighteen months after this alleged series of incidents. The family report writer said as follows in his report:
Despite the above comment, X did say to the Family Consultant that he feels “unsafe” when his father gets angry. When I asked X to provide the Family Consultant with an example, he stated that he saw his father “smash Ms N’s (Ms N) phone”, whilst commenting that he also saw his father hit Ms N on one occasion. At the same time X commented that he never observed any violence between his parents, but he did indicate that his mother had allegedly told him about a particular incident. After X told the Family Consultant about this, it appears that it rekindled another incident which X recalled with regards to his father, stating that he saw Mr Wickham “throw a bottle at the TV”. Overall X was positive about Ms N and her daughter A.[7]
[7] Family Report
The family report writer also said as follows about his conversation with Y:
However Y recalled with the Family Consultant that she saw “dad hurting Ms N (Ms N)”, but could not elaborate. She also remembered that her father threw a cup at the television and that he “broke her Lego”. Y, as she discussed these incidents, also had some recollection that her father “maybe threw something at Ms N (Ms N) and punched her on the nose”, with Y remembering that Ms N had been crying.

The father vehemently denied during the trial that there had been any violent incident between him and Ms N. He said that he and Ms N had a loud argument which went on for five or ten minutes but he denied that he had been physically violent or had thrown Ms N’s phone.
He agreed that there had been liquid on the TV which Ms N had wiped up but that was the result of him opening a carbonated drink which had spurted everywhere.
He denied that Y’s reference to a cubbyhouse was significant and said that the children had been building cubbyhouses all day, and despite making some other admissions which confirmed the veracity of some of the things the children told the mother, he disputed that they could have heard much as he said they had been put to bed before the argument occurred.
The father said that this was the only argument he and Ms N had had.
Ms N denied that there had been anything more than an argument between her and the father in June 2015. She confirmed the father’s evidence about how liquid got onto the TV and denied her phone was thrown. However she admitted that the children had seen her crying in the bathroom the next morning.
Ms N said that this was not the only argument she and the father had had; she said that they had had other arguments where the father had yelled and raised his voice. However she denied that he had been violent to her.
I cannot make a definitive finding about exactly what happened between the father and Ms N in June 2015 but I am satisfied of three things.
One is that something happened which was sufficient to make Ms N cry; the second is that something happened which frightened the children; and the third is that I cannot exclude the possibility that the father was violent to Ms N.
The father and Ms N both admitted some parts of the information the children gave to the mother were true namely that there was liquid on the TV and raised voices and that Ms N was crying in the bathroom the next morning.
The father was not a witness of credit. He was conspicuously untruthful about his violence to the mother and he has a history of suborning the mother into withdrawing complaints so I cannot place weight on Ms N’s denials that anything untoward happened.
Sadly Ms N’s history with her extremely violent partner Mr M, A’s father, suggests that she is not always protective of children when faced with family violence.
Finally, the father showed an extremely strong tendency throughout the trial to minimise what had occurred during incidents between him and the mother and there is in my view a very strong possibility that he is doing the same thing in relation to the argument with Ms N.

The children’s best interests

Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s. 60CC (2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine their best interests.
The primary considerations in s. 60CC (2) are:
a)the benefit to the child of having a meaningful relationship with both of the children's parents; and
b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
S. 60CC (2A) provides that in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2) (b).
The additional considerations in s. 60CC (3) include matters such as the children’s views, the nature of their relationship with each of their parent’s, the capacity of each parent to provide for the needs of the children and whether there has been family violence. Sometimes it is necessary to make findings about the s. 60CC (3) matters to inform considerations of the s. 60CC (2) matters. This is such a case and I intend to start by considering the matters in s. 60CC (3).
The first of the s. 60CC(3) matters is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.
X has made clear his view about spending unsupervised time with the father by his refusal to do so.
When the family report writer conducted the report interviews in January 2017, X had been spending supervised time with the father for about seven months after not having seen him for nearly a year. He told the family report writer that it was good seeing the father again. However, he also told the family report writer that he felt unsafe when his father got angry and when he was asked if there was anything that would make his life better he said “for dad not to be angry”.
X refused to go with the father for an unsupervised visit in January 2017 and he refused to go with the father after an order was made in April 2017 for short unsupervised visits to take place each alternate weekend.
X and Y attended counselling with (omitted) Psychology between March and July 2017 and the counsellor’s notes indicate that she made some effort to explore with X the issue of his reluctance to spend time with his father.
X’s comments to the counsellor about his father, despite having safely spent supervised time with him for about seven months, were negative. He said that he had memories of his father throwing things at the TV (7/3/2017), that he didn’t want to see him and that he wanted someone to be there when he saw his father (17/5/2017).
X said that he was worried that Dad would hurt someone again and would hurt him. He said that he didn’t think Y was worried but he was worried. When asked if he was scared of Dad or just worried he said “Both”
On 26 July 2017, X was asked by the counsellor whether he would see the father if someone was there and he said that he would. He was asked whether Dad could make a promise and he said “No, he did wrong; threw water at the TV, smashed a phone.” He was asked what emotion that was and he said “angry” and it made him scared. He was asked if Y seeing Dad helped and he said no.
X said that he felt safe talking to his father on the phone.
I am conscious of the limitations of this evidence. The counsellor was not called and I had no opportunity to assess her. Nobody was able to cross-examine her about her qualifications or experience. I am also reliant on the notes she chose to make; nobody had an opportunity to ask her additional questions about her sessions with the children.
However X’s comments to the counsellor are consistent with his behaviour in refusing to attend unsupervised time both for the wedding in (omitted) 2017 and after the orders were made in April 2017 and his statements about what happened at the father’s home are consistent with things he said to the mother in June 2015 and things he said to the family report writer in January 2017.
There is no sign in this case of the mother actively trying to prevent the children having a relationship with their father or reminding them about past events to pre-dispose them to reject their father and be in her camp. Nothing the children have said to anyone suggests that and if it were so, you would expect Y to be also refusing to spend time with the father.
It is open to me to find that X has a clear view that he would not be safe if he spent unsupervised time with the father.
Y told the family report writer that she enjoyed spending time with her father and that he was funny. She also said she wasn’t scared of him. However, when the family report writer asked her if there was anything that could make her life better she replied by saying “Put a shield around me” but could not elaborate further.
The notes from (omitted) Psychology indicate that Y is content to spend time with her father pursuant to the current orders but she made comments indicating that on occasions she did not feel safe.
On 7 March 2017 while talking about her father she said:
Its ok we can hide in cubby house if not safe (or cupboard)
On 14 March 2017 when asked if she felt safe with her father she apparently responded “Not much” and when asked why said “He might hit and punch me.” The notes then continue cryptically “Accidently --- not on purpose.”
There is sufficient in the family report and the counsellor’s notes for me to be concerned that Y also does not feel safe with her father. She however is content to go on the short unsupervised visits.
The children are only 7 but given the family violence to which they were exposed during and after the relationship between the parents (because they were present on the mother’s evidence which I accept during some telephone calls and changeovers after separation when the father shouted abuse at her) I will have to take their views about the father into account in deciding what to do with this matter.
I must consider the nature of the relationship of the children with:
i)each of the children's parents; and
ii)other persons (including any grandparent or other relative of the children);
The children have a good relationship with their mother. There has never been the smallest suggestion that they should not live with her and no evidence was called by the Independent Children’s Lawyer, tasked to ensure that all evidence relevant to the children was put before the court, to suggest that the mother had any difficulty parenting the children.
The family report writer observed the children to be happy with the mother at the family report interviews.
The family report writer observed that both X and Y hugged the father during the observation session at the family report interviews and were relaxed when they spent time with him.
However, X does not have a strong relationship with the father. He told the counsellor from (omitted) Psychology, and the mother confirmed to the counsellor, that X would be happy to talk to the father on the phone, and he attended the supervised visits, but he has consistently refused to attend unsupervised visits with the father.
Y is attending the supervised visits but her comments to (omitted) Psychology and to the family report writer suggest some fear of the father.
The father asked me to place weight on the evidence of Ms C who described the relationship between the father and the children in glowing terms but I have referred earlier to the limitations of this evidence.
There is limited information about the children’s relationship with Ms N. Their unsupervised time with their father ceased very soon after her relationship with the father commenced. X has not spent time with her since the supervised visits ceased and Y spends limited time with her.
The family report writer observed the children to interact positively with Ms N and A at the family report interviews but it is impossible to be sure of the nature of the children’s relationship with Ms N.
Y and A appear to have a fond relationship which is not surprising given that they are relatively close in age. The counsellor’s notes and the Big Brown House notes suggest that Y is interested in her baby brother B but X is not. Nothing turns on this.
I must consider the extent to which each of the children's parents has taken, or failed to take, the opportunity:
i)to participate in making decisions about major long-term issues in relation to the children; and
ii)to spend time with the children; and
iii)to communicate with the children.
Each parent has always taken the opportunity to spend time with the children, to communicate with them and to make decisions about them and consideration does not assist me.
I must consider the extent to which each of the children's parents has fulfilled, or failed to fulfil, the parent's obligations to maintain the children.
The mother has been the primary financial supporter of the children since separation.
There were some issues between the parents between 2012 and 2015 when the mother had difficulty being at changeovers at particular times because of the need to work. Her evidence was that the father was abusive rather than helpful when she told him about her needs. I accept this evidence as it fits with the evidence about the father’s behaviour and attitude to the mother.
I must consider the likely effect of any changes in the children's circumstances, including the likely effect on the children of any separation from:
i)either of their parents; or
ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
The father would say that the children spending regular unsupervised time with him would be hugely beneficial to them as it would ensure that they had a meaningful relationship with him and were able to spend time with the paternal family and their sibling B.
The mother would say that there is an unacceptable risk of the children of being exposed to family violence if they spend unsupervised time with the father and an unacceptable risk of psychological harm to X if he is forced to do something he does not wish to do.
Determining the likely effect of the orders proposed in this case on the children is something I will have to return to after making findings about the remaining s. 60CC (3) matters and I will incorporate it into my findings about the primary considerations.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis.
The parents live less than half an hours’ driving distance apart at present and they have both historically lived either on the (omitted) or in the (omitted) and this is not a relevant consideration in this matter.
I must consider the capacity of each of the children's parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the children, including their emotional and intellectual needs.
The mother is doing a very good job parenting the children. There was not the smallest suggestion in any of the evidence, in any questions asked of the mother in cross-examination, in the subpoena material or in the family report, that the children were other than happy, healthy, well-cared for children who are attending school regularly and who did not have any major behavioural problems.
The father’s case at the hearing was that the mother failed to cope in the first couple of months after the birth of the twins. It is a very important issue for him, indeed as Counsel for the Independent Children’s Lawyer mentioned in closing submissions the only documents he tendered were the hospital notes following the twins birth and he referred to the issue in closing submissions as if it was a matter which supported his case.
The father’s insensitivity on this topic and his inability to see that he is being unreasonable is of grave concern to me.
The twins were born by emergency caesarean. The mother was in pain and was given morphine after their birth and she remained in hospital for two weeks. I do not accept, because there is nothing in the hospital records to support it, that the mother failed to cope with caring for the children or to bond with the children. The fact that she is recorded as being tired or anxious is not evidence of that. The maternal grandmother gave convincing evidence that the mother coped very well after the birth of the twins. How the father could think that the notes helped his case is a mystery to me.
It was a central plank of the father’s case, echoed by the paternal grandmother, that the mother not only suffered from post-natal depression after the birth of the twins but that she had a personality disorder or was bipolar. There was not the slightest piece of evidence to support these contentions. There were no medical records which supported them, the mother has never had any treatment for any significant mental health issues, and she is not living a chaotic life marked by substance abuse, criminality and re-partnering with abusive partners which suggests that she has any such issues.
Insofar as anxiety is characterised as a mental health issue then the mother does have a mental health issue but there was nothing at all to suggest that this was impacting on her capacity to care for the children. There was nothing to suggest that she was so anxious that she was over protective of the children, did not take them to outside activities or took them to the doctor too frequently. The father’s evidence about the mother’s social interactions and her engagement in (hobby omitted) suggests that the mother has healthy interests outside the home and does not suggest that she is a person who suffers from debilitating anxiety.
A deeply troubling aspect of the father’s case, and one which neither he nor the paternal grandmother ever seem to have stopped to reflect on, is how even if the mother did have disabling anxiety or some other severe mental health issue, it could remotely justify the kind of abuse and violence the father meted out to her, and if the father is right and the mother struggled to parent the twins after their birth, how do they imagine that the father shouting obscenities, throwing things, punching doors and walls and spitting on the mother and threatening to kill her helped the situation?
The father is employed and functions in the community insofar as he in has housing and a job and he has the capacity to feed and clothe the children and to provide for their day to day physical needs.
The father was a heavy cannabis user in the past but he said that he had ceased using cannabis in January 2016 and it was not suggested at trial that he continued to use cannabis.
The father’s parenting capacity is seriously impaired by his propensity to be verbally and physically aggressive not to say violent but I will deal with that when discussing the issue of family violence.
The father has a very limited capacity to provide for the children’s emotional needs. He refuses to accept responsibility for his violence and there was no sign that he recognised that his children feared him.
The father’s proposal for dealing with X’s refusal to spend time with him was that the Independent Children’s Lawyer (and specifically Mr Kennard and not someone else) be required to explain to X that court orders had to be complied with. The father is simply unable or unwilling to acknowledge that there may be valid reasons why X is refusing to spend time with him and he lacks the capacity to provide for X’s emotional needs.
Ms N is caring well for her daughter A and absent comments that I will make about the family violence issue in relation to her, she has the capacity to provide for the needs of the children.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant.
This is not relevant as a separate consideration.
I must consider the attitude to the children, and to the responsibilities of parenthood, demonstrated by each of the children's parents.
Viewed from one perspective, the mother did not show a good attitude to the children or the responsibilities of parenthood in remaining in and repeatedly returning to a violent relationship nor in agreeing to the children spending time with the father after separation without pausing to consider how this might impact on children who had witnessed so much family violence.
However, the court repeatedly sees situations where people have been drawn into and remain in and have difficulty extricating themselves from violent relationships; these situations are complex, and the mother gave convincing evidence of being afraid of the father and of being embarrassed and ashamed and of not wanting to accept help.
Even after the relationship ended the mother was slow to engage with counselling. She said that she was:
…embarrassed and disgusted just thinking about all the things Mr Wickham had done and…found it very hard to speak to a counsellor.[8]
[8] Mother’s affidavit paragraph 272

If they spend only a few hours with him supervised each alternate week, they will also not have a meaningful relationship with him. He may ask them about how they are going at school and notice them growing and changing but he will not have a nurturing and guiding role in their life.
If the children spend alternate weekends and half school holidays with the father, there is scope for him to have a meaningful relationship with them. He will have an opportunity to provide care for them as well as to have fun with them and will have more opportunity to tune in to their interests and find out how they are going at school.
There is no guarantee however that time will lead to a meaningful relationship, in other words a relationship which is significant important and valuable to the children. [10] If the children are afraid of the father or are exposed to family violence in his care, then he will not form a relationship with them which is meaningful.
[10] Mazorski & Albright ( 2007) 37FamLR 518
A mere order by me will not result in the father having a meaningful relationship with X. The father has a lot of bridge building to do if he is to form a meaningful relationship with X, and there is nothing to suggest that he is capable of building that bridge. After an unsuccessful attempt to get X to go with him on the first occasion after the order for unsupervised time was made, he has let things with X slide and only spent time with Y, and his proposal during closing submissions was that X should be told by the Independent Children’s Lawyer that the court had made orders.
Even if the father was willing to put himself out and make an effort, and he did also say that he would try to speak to X’s counsellor, the foundation for him to mend his relationship with X is simply not there. He denies that he is a perpetrator of family violence and at the trial he still prided himself on being someone who did not suffer fools (gladly).
The father is simply not in a place where he is likely to be able to empathise with X and mend his relationship with him.
Y has also expressed some fear and reservations about the father or being in the father’s household and again a mere order that she spend time with the father will not lead to a meaningful relationship.
There is a risk of the children being turned against the mother if they spend time with the father because of the attitude he and the paternal grandparents have to the mother but an alternative possibility, and in this case I consider it the more probable outcome if the father and paternal grandparents denigrate and disrespect the mother, is that the children may be turned against the father and paternal grandparents.
This leads into the second primary consideration, the consideration which much be given greater weight than the first, which is the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse neglect or family violence.
There is an unacceptable risk of the children being exposed to family violence in the father’s unsupervised care. He makes very limited admissions, and then grudgingly, about the violence he committed in respect of the mother and he does not accept responsibility for his actions. Backed up by his family he cleaves to the view that whatever happened in his relationship with the mother was a result of the mother having mental health issues.
The father has not done a meaningful anger management course (which would not necessarily be sufficient but would be something) and he can see no problem with his behaviour. He continually minimised it during cross-examination and showed no recognition that his action in forcing the mother to sign documents in 2010 was family violence. He engaged in bullying behaviour with Big Brown House in September 2016 and did not back down, leaving it to his partner to deal with the situation. I cannot rule out the very real possibility that the father was violent to Ms N in some form in June 2015, and there is in my view an unacceptable risk of the father committing acts of family violence in the future either toward Ms N, another domestic partner or the mother.
The presence of children has never caused the father to curb his behaviour, indeed he has used his children as weapons against the mother, and there is an unacceptable risk that the children will be exposed to family violence in the father’s care in the future, which will inevitably cause them psychological harm and could cause them physical harm. The mother described Y being in her arms when she was assaulted, Y’s head being banged against the handbrake in 2012 when the father was pushing the mother out of the driver’s seat and the father driving off in a fit of anger with X unrestrained in his car seat.
Supervision would provide protection for the children from physical harm. I am somewhat concerned that the father did not let the presence of children restrain him from arguing with the Big Brown House supervisor in September 2016 but that is not necessarily a reason not to order supervised time, as long as the supervisor was aware that they had a right to terminate time if they were concerned about the father’s behaviour.

Parental Responsibility

Pursuant to s. 61DA of the Family Law Act, I am required to apply a presumption that it is in the children’s best interests that the parents have equal shared parental responsibility for them absent a finding that one of the parents has perpetrated family violence or abused the children.
The presumption does not apply because the father has committed many acts of family violence. The father conceded that an order should be made that the mother have sole parental responsibility for the children and I intend to make that order.

The family report writer’s recommendation

The family report writer was concerned about the allegations of violence in this matter. He said as follows in his report:
There appears little doubt that the father has historically struggled with verbal aggression and what his mother clearly describes as Mr Wickham having a “short fuse”. Mr Wickham’s inability to deal with his anger in a constructive and non-harming manner, is something that remains central to these proceedings, and it is thus imperative that Mr Wickham recognises the extent of his issues in this area of his life, otherwise his relationship with the subject children will deteriorate over a period of time. The father must note this.[11]
[11] Family Report paragraph 70
He also said as follows:
It is realistic to suggest that Mr Wickham does have some parenting skills, but he must ensure that he doesn’t undermine his own approach to his parenting responsibilities by demonstrating his anger in a destructive manner in any context. It is the view of the Family Consultant that Mr Wickham needs to seek some therapeutic input with regards to this issue. [12]
[12] Family Report paragraph 72
However he went on to say:
The evidence from the children would suggest that Mr Wickham has not been physically abusive of the children, and despite Y and X observing some aggression from the father towards Ms N, they would both seem to genuinely enjoy their interactions with Mr Wickham which were clearly of a regular nature prior to the father’s commencement of supervised time. [13]
[13] Family Report paragraph 70
The family report writer recommended that the children commence spending every fortnight weekend with the father on a daytime basis initially but after a period of 3 months spend time with him every fortnight weekend from Saturday morning until Sunday afternoon to be extended to every fortnight Friday until Sunday afternoon in 6 months’ time.
He recommended that after the children turned 8 the time be every fortnight weekend from Friday after school until Monday morning.
Family reports are always of assistance to the court and the report in this case is no exception because it contains valuable information about things the children have said and about the interaction which was observed between the children and the parents.
I cannot however place weight on the recommendations in the report.
The information the report writer was given about the family violence was incomplete. The mother gave much more extensive evidence about it her trial affidavit, the father made many more admissions at trial than he made to the family report writer and I have made findings that the violence in the parents’ relationship was far more extensive than anything the family report writer was asked to consider.
The family consultant noted at paragraph 38 of his report that there had never been any police charges against the father in connection with his relationship with the mother or the implementation of an ADVO during the parents’ relationship. This is not correct. The father was charged with assault and an ADVO was sought and the charges were withdrawn because of the father standing over the mother and causing her to not attend court to give evidence against him. This alone renders the recommendations in the report something on which I cannot rely.
I also have additional information available to me about the children, including the (omitted) Counselling notes and fact that X has consistently refused to spend unsupervised time with the father.
When the family report writer was informed about the more extensive allegations of family violence and the admissions made by the father about other evidence which had emerged during the trial he said that he did not adhere to his recommendations and would only recommend that the children spend supervised time with the father. I will take that into account but as in all parenting matters, I must in the end form my own view about an appropriate outcome based on all of the evidence available to me at trial.

Conclusion

The father’s case in closing submissions was that even if the court was gravely concerned about his behaviour to the mother (although he did not concede that it should be), the court should look at the person he was now, not the person he was then. He submitted that the court should place considerable weight on the fact that the mother had agreed to him spending time with the children between May 2012 and July 2015 and on the fact that there was no evidence that the children had come to any harm during this time.
The father also asked me to have regard to my decision in Weekes & Pilcher[14], a case which involved a 4 year old child.
[14] Weekes & Pilcher [2016] FCCA 2486
In that case I found that the father had committed several serious acts of family violence at or about the time of separation causing injury to the mother. I nevertheless made an order for the child to spend time with the father each alternate weekend from 9.00am Saturday until 5.00pm Sunday and each alternate Wednesday afternoon during school terms, and once she commenced school for half of the school holidays.
As I have emphasised in many judgments however, every case turns on its own facts and cases involving family violence are no exception.
The child in Weekes & Pilcher had been spending substantial time with her father every week since interim orders had been made 18 months previously, and although I expressed the view that if all the facts had been known at the time those interim orders might not have been made, I went on to say as follows:
Since those orders were made the father has provided satisfactory day to day care for [V] and the family report writer was satisfied that she had a strong bond with him. The father has not stalked harassed or intimidated the mother since the orders were made. He makes minimal admissions about the violence he perpetrated and he has not done a perpetrators course but he has been respectful of the mother’s unwillingness to have him around her when she has made an issue of it; he did not argue when she said that she did not want him to attend [V’s] first day at pre-school.
I was concerned that the father could commit acts of family violence in future relationships but he was not in a new relationship, and the mother was not seeking a “no time” order.
It is necessary to read the judgment to understand all the complexities of that case but it was a different case to one I now have to decide.
A major problem for the father in respect of the orders he seeks is that X would not voluntarily spend unsupervised time with him.
Given what X has experienced for much of his life, there are no circumstances under which I would be prepared to make an order forcing him to spend time with his father if he did not want to, and given what the mother has experienced at the father’s hands, I could not ask her to use her best endeavours, on pain of being the subject of contravention proceedings, to ensure that X attended, especially when I do not consider that the father has the capacity to deal sensitively with X and mend his relationship with him.
Y might attend if I made the orders the father seeks, but as the family report writer observed it is undesirable for there to different arrangements for the two children, and I say “might attend” because given what Y has also experienced I could not rule out the possibility that difficulties could arise if Y was ordered to spend entire weekends and weeks during the school holidays with the father. Y has made some concerning statements to the family report writer and to her counsellor.
However, most importantly, there is an unacceptable risk of the children being exposed to family violence if they spend unsupervised time with the father. The father was seriously violent to the mother during their relationship and his verbal abuse of her continued after separation. It has only stopped since the mother ceased time and the father commenced court proceedings.
The father makes minimal admissions about his violence and blames his behaviour on the mother. He is still prone to behaving in a bullying way and I cannot rule out the possibility that he could be violent to the mother again in the future.
I also cannot rule out the possibility that some violence has occurred in the relationship between the father and Ms N, and there is no person in the father’s orbit who is willing and able to prioritise protection of the children over covering up for the father.
There is also a very serious risk that if the children spend unsupervised time with the father they will be exposed to the father’s views about the mother, especially when the paternal grandmother who shares a home with him for the part of each week also strongly shares his views. The father’s views about the mother are false and being exposed to them could cause great psychological confusion for the children.
Counsel for the Independent Children’s Lawyer did not support an order for unsupervised time but submitted that an order should be made for supervised time. She said that X had indicated that he would attend supervised visits and that it would not be in Y’s best interests to abruptly terminate her time with her father when she had been attending short unsupervised visits willingly for more than six months.
Supervised time would allow the children to maintain a connexion albeit a tenuous one with their young brother B.
Supervised time would provide protection for the children against exposure to family violence. There was an instance of bullying behaviour by the father in September 2016 while the children were present but he subsequently spent regular supervised time with them and I was not informed that there had been any other incidents of that nature.
Counsel for the Independent Children’s Lawyer acknowledged that there were problems with an order for long term supervised time but said that the Full Court recognised in Betros & Betros[15] and many earlier cases that provided sufficient reasons were given it was permissible for the court to make an order for long term supervised time.
[15] Betros & Betros [2017] FamCAFC 90
Implicit in the submissions by Counsel for the Independent Children’s Lawyer was the proposition that supervised time would keep the relationship between the father and children alive so that if circumstances changed in the future and the father applied for and obtained an order for unsupervised time they would not have such a big gap to bridge.
I am not persuaded however that it would be in the children’s best interests for me to make an order for supervised time.
The benefits of such an order for the children are limited because there is only so much that can be done in a few hours under close observation even with a service like Big Brown House and there is a considerable risk of a parent or of children becoming dissatisfied with the arrangement and of the arrangement breaking down possibly leading to further court proceedings.
I also query whether it is worth making an order for supervised time when there is no sign that the father is likely to make changes which would mean that he could apply for unsupervised time. The father, ably supported by his partner and his parents, does not admit fault in regard to family violence and maintains his stance that the mother is either the problem or part of the problem.
Despite all the admissions he made during cross-examination, the father had not changed his stance one iota by the end of the trial and continued during closing submissions to run the line that the mother failed to cope after the birth of the twins and that somehow this justified his behaviour.
The mother was involved in a violent relationship with the father for five years. She was then kept on edge for another three years because the father often shouted at and verbally abused her while time continued between him and the twins and she has been involved in these court proceedings for two and a half years, confronting a case in which the father has denied that he is a perpetrator of family violence and has continued to assert that she is the problem because she suffered from post-natal depression or had bipolar disorder, borderline personality disorder or an anxiety disorder.
The mother said that she still remembered the violence vividly and still found it hard to talk about it and that it still made her upset. She said that she still got very frightened and apprehensive whenever she saw the father or thought about the incidents of violence. This evidence is entirely believable and the fact that she has willingly been present at some changeovers with the father does not undermine it.
The mother needs respite in order to be a good mother to the children and the children need respite, and the preferable course is my view is for me to make a no time order rather than an order for time which will require the mother to deal indefinitely with a situation where the father maintains to all who will listen that he is the victim.
The father might one day change his attitude and come to accept responsibility for his actions and if he does that will be wonderful for the children, but an order for supervised time will provide little incentive for him to have a good hard look at himself and accept that he has behaved in an appallingly violent way to the mother and that the only way in which he is likely to be able to have a role in his children’s life in the future is if he confronts and acknowledges that aspect of himself and does something to lessen the likelihood of him behaving in that way in the future.
An order for no time might force him to confront the reality of the situation.
The children need a father in their lives; it is a loss for them not to have one. However they need a father who is respectful of their mother and who does not model to them dysregulated, bullying and violent behaviour, and there is no sign of the father in this case turning into that kind of man.
I intend to make an order that the father spend no time with and have no communication with the children.
The mother’s counsel proposed that the father be able to send the children a card and gift at Christmas and on their birthday. He did not explain how this order would benefit the children and I do not intend to make it.

Counsel for the Independent Children’s Lawyer proposed that an order be made preventing the father from coming within 100 metres of the children’s home or school. She said that the purpose of it was to give the mother peace of mind and that ensuring that the mother had peace of mind would benefit the children.
I accept this submission and intend to make an s. 68B order as proposed.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.

I certify that the preceding three hundred and ninety one (391) are a true copy of the reasons for judgment of Judge Terry

Date: 19 January 2018

[2018] FCCA 80

19 January 2018

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Injunction

Natural Justice

Procedural Fairness

Remedies