WINSHIP & WRAYS
[2018] FCCA 2632
•21 September 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WINSHIP & WRAYS | [2018] FCCA 2632 |
| Catchwords: FAMILY LAW – Parenting – dispute as to live with arrangements for 5½ year old child – where mother deceased – where child living with maternal aunt – where father seeking child live with father – held in child’s best interest to live with maternal aunt, for maternal aunt to have sole parental responsibility and for child to spend time with father on weekends, holidays and special occasions. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CA, 60CC, 61B, 61D, 61DA, 64B, 65C(c), Pt VII |
| Cases cited: Kam & MJR and Anor (1998) 24 FamLR 656 Re C and D (1998) 23 FamLR 375 Valentine & Lacerra and Anor [2013] FamCAFC 53 Hardie & Capris [2010] FamCA 1046 Moose & Moose [2008] FamCAFC 108 Mulvany & Lane (2009) FLC 93-404 Aldridge & Keaton [2009] FamCAFC 229 |
| Applicant: | MR WINSHIP |
| Respondent: | MS WRAYS |
| File Number: | BRC 7700 of 2017 |
| Judgment of: | Judge L. Turner |
| Hearing dates: | 20 April 2018 and 23 April 2018 |
| Date of Last Submission: | 8 May 2018 |
| Delivered at: | Brisbane |
| Delivered on: | 21 September 2018 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Senior of Senior Legal |
| Counsel for the Respondent: | Mr Selfridge |
| Solicitors for the Respondent: | Merthyr Law |
FINAL PARENTING ORDERS
That all previous parenting orders are hereby dismissed.
That the child [X] born 2012 (the child) live with the maternal aunt, Ms Wrays (maternal aunt).
That the child live within a 200 kilometre radius of the Brisbane CBD Post Office.
That the maternal aunt have sole parental responsibility for the child save that the maternal aunt prior to making the sole decision about any such issue for the child:
(a)Advise the father in writing of the decision intended to be made.
(b)Seek the father’s written response in relation thereto.
(c)Consider by reference to the child’s best interests any such written response of the father prior to making any such decision.
(d)Advise the father in writing as soon as reasonably practicable of the decision.
That the maternal aunt and the father are responsible for the child’s day to day care, welfare and development during such times as the child is in their respective care.
That the father and maternal aunt communicate about all child and parenting issues through a Communication Book (to be supplied by the maternal aunt at her expense).
That the Communication Book travel with the child between the father and the maternal aunt and that any communication in the Communication Book must relate to the child only and at all times be polite and respectful.
That neither the father nor maternal aunt shall:-
(a)Speak badly or denigrate the other person to the child or within the hearing of the child, nor allow any other person to do so and shall not post on any social media outlets, including Facebook and Instagram, any information that would denigrate the other person.
(b)Discuss any issues in dispute between the father and maternal aunt to the child or where the child can hear nor allow any other person to do so.
That the father spend time with the child at such times as can be agreed upon in writing between the parties but failing agreement as follows:-
(a)If the father lives 100 kilometres or less from the child’s residence:-
(i)During school terms each alternate weekend from after school Friday (or after school Thursday if Friday is a public holiday) to before school Monday (or before school Tuesday if Monday is a public holiday) with the father to collect and return the child to school or if school is closed at a changeover point as nominated in writing by the maternal aunt.
(ii)If the child is not with the father then from after school Friday to before school Monday for the Father’s Day weekend with the father to collect and return the child to school.
(b)If the father lives more than 100 kilometres from the child’s residence:-
(i)During school terms each alternate weekend from 6.30pm Friday (or 6.30pm Thursday if Friday is a public holiday) to 7.30am Monday (or 7.30am Tuesday if Monday is a public holiday) with the maternal aunt to deliver the child to the father’s residence at the commencement of time and the parties to meet at a midway point (between the maternal aunt’s residence and the father’s residence) as nominated in writing by the maternal aunt at the conclusion of time.
(ii)If the child is not with the father then from 6.30pm Friday to before school Monday for the Father’s Day weekend with the maternal aunt to deliver the child to the father’s residence at the commencement of time and the parties to meet at a midway point (between the maternal aunt’s residence and the father’s residence) as nominated in writing by the maternal aunt at the conclusion of time.
(c)If the child is not with the father for the child’s birthday then for five hours on the child’s birthday with times and changeovers to be agreed upon between the parties.
(d)If the child is not with the father on Anzac Day then from after school the day before Anzac Day (or 3.00pm is a non-school day) to before school on the day after Anzac Day (or 9.00am if a non-school day) with the father to collect and return the child to the school or at a place as nominated by the maternal aunt.
(e)In odd numbered years for the first half of the school gazetted first term Easter school holidays with the father to collect the child from school at the commencement of the holiday and the maternal aunt to collect the child from the father’s residence at the conclusion of the holiday.
(f)In even numbered years for the second half of the school gazetted first term Easter school holidays with the maternal aunt to deliver the child to the father’s residence at the commencement of the holiday and for the father to return the child to school at the conclusion of the holiday.
(g)In even numbered years the whole of second term mid-year gazetted school holidays with the father to collect and return the child to school.
(h)In odd numbered years the whole of the third term gazetted school holidays with the father to collect and return the child to school.
(i)In odd numbered years from the last day of the school year to 12 noon Christmas Day with the father to collect the child from school at the commencement of the holiday and return the child to a changeover point as nominated in writing by the maternal aunt at the conclusion of the holiday.
(j)In even numbered years from 12 noon Christmas Day to 5.00pm on the Friday before the new school term recommences with the maternal aunt to deliver the child to the father’s residence at the commencement of the holiday and the father to return the child to a changeover point as nominated in writing by the maternal aunt at the conclusion of the holiday.
That the parties, when the child is not in their care, be at liberty to telephone or Skype the child at all reasonable times but not less than on Monday, Thursday and Saturday of each week between the hours of 4:30pm and 5:00pm (local time for the child).
That the maternal aunt spend time with the child as follows:-
(a)If the child is not with the maternal aunt for the child’s birthday then for five hours on the child’s birthday with times and changeovers to be agreed upon between the parties.
(b)In odd numbered years for the second half of the school gazetted first term Easter school holidays.
(c)In even numbered years for the first half of the school gazetted first term Easter school holiday.
(d)In odd numbered years the whole of second term mid-year gazetted school holidays.
(e)In even numbered years the whole of the third term gazetted school holidays.
(f)In odd numbered years from 12 noon Christmas Day until the end of the school gazetted Christmas school holidays.
(g)In even numbered years from the last day of the school year until 12 noon Christmas Day.
That within fourteen (14) days from the date hereof the maternal aunt attend upon the child’s General Practitioner to obtain a referral to a child psychologist or child psychiatrist to address the issue of the child’s exposure to family violence and that the child psychologist or child psychiatrist have access to the orders and the reasons for judgment.
That the father complete his sessions with his psychiatrist Mr P and follow Mr P’s directions as to any future treatments for the father’s mental health.
That the father complete the anger management course at Centacare and provide proof of completion to the aunt by the end of 2018.
That the father not consume alcohol in excess of the legal limit when the child is in the father’s care.
That the parties keep each other informed in writing as to their current residential address, telephone numbers and email addresses and notify each other in writing within 24 hours of any changes in such information.
That the parties notify each other immediately in the event that the child suffers from any medical emergency that results in the child being hospitalised whilst the child is in their respective care.
That the maternal aunt keep the father fully informed as to:-
(a)The child’s health care professionals.
(b)Where the child is attending school.
That these orders authorise the child’s health care professionals and educational institutions to provide to the father, at his request and at his expense, any information or documentation required by the father, including school reports and school photos.
IT IS NOTED that publication of this judgment under the pseudonym Winship & Wrays is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 7700 of 2017
| MR WINSHIP |
Applicant
And
| MS WRAYS |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties are in dispute as to the future arrangements for [X] aged 5½.
The applicant is the biological father (father).
The respondent is the maternal aunt (aunt).
The mother is deceased having succumbed to cancer in 2016.
The father and the aunt are in dispute as to the future parenting arrangements for [X].
Issues
The issues requiring determination are:-
a)With whom should [X] live?
b)What time should [X] spend with the other party?
c)Who should have parental responsibility for [X]?
Evidence
In considering these issues regard has been had to:-
a)The material as marked on the court file.
b)Notices of Risk.
c)The exhibits.
d)The family report released by Ms D in September 2017.
e)The psychiatric report of Dr V released in November 2017.
f)The oral evidence of the parties.
g)The written submissions.
h)Part VII Family Law Act 1975.
i)Relevant authorities.
The parties are legally represented.
For the father the following witness was called and cross-examined:-
a)The father.
The father submits “he answered questions directly and respectfully”.
Respectfully – yes.
Directly – no.
I had difficulty with the father’s evidence.
The father was at times evasive and struggled in providing accurate and clear responses and there were inconsistencies in his evidence.
Particular concerns as to the father’s evidence are addressed throughout the judgment.
I do not always find the father to be a credible witness.
For the aunt the following witnesses were called and cross-examined:-
a)The aunt.
b)Mr T (the aunt’s partner).
I find the aunt and her partner to be credible witnesses.
In addition to the parties and the witnesses, the family report writer and the expert psychiatrist were cross-examined.
I find both experts to be credible witnesses and give significant weight to their oral and written evidence.
Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.
Agreed orders
There are no agreed orders.
Proposals
Father
The father’s preferred position is that:-
a)The child live with the father.
b)The father have sole parental responsibility for the child.
c)By way of transition:-
i)For two months the child live with the aunt and spend time with the father from Friday afternoon to Tuesday morning.
ii)That for a further two months the child live with the aunt and spend time with the father from Friday afternoon to Friday afternoon each fortnight.
iii)Thereafter the child live with the father.
d)That the aunt spend time with the child:-
i)For six consecutive nights over Christmas school holidays with the aunt to give notice as to when the time is to occur (not to include Christmas Eve, Christmas Day or the child’s birthday).
ii)For six consecutive nights over either the second or third term school holidays (not to include the father’s birthday) with the aunt to give notice as to when the time is to occur.
e)That there be skype/telephone time each Wednesday and Sunday night.
The father’s alternate position is that if the child is ordered to live with the maternal aunt then:-
a)The parties have equal shared parental responsibility.
b)The father spend time with the child:-
i)Each weekend from after school Friday to before school Monday.
ii)All school holidays.
iii)For the child’s birthday and the father’s birthday.
iv)Anzac Day.
Aunt
The aunt’s preferred position is that:-
a)The child live with the aunt.
b)The parties have shared parental responsibility but failing agreement the aunt be able to make the final decision.
c)That the father spend time with the child during school terms on each alternate weekend from Friday afternoon to Monday morning and shared time over the school holidays.
The aunt’s alternate position is that if the child is living with the father then:-
a)The parties have shared parental responsibility with the father to make the final decision.
b)The aunt spend time with the child:-
i)During school terms on each alternate weekend from Friday afternoon to Monday morning.
ii)One half of the school holidays.
Relevant history
The relevant history is as follows:-
a)The father is aged 45 and is a (occupation omitted).
b)The mother was aged 40 at the time of her death and was a (occupation omitted).
c)The aunt is aged 33 and is an (occupation omitted).
d)In 2012 the mother and father met at which time the mother was working as a (occupation omitted) and the father was in the (employer omitted).
e)In 2012 the parties commenced cohabitation in rented accommodation.
f)At that time of cohabitation the mother owned a property at Property A (the Property A property) and the father owned a property at Property B (the Property B property).
g)Later in 2012 the mother and father moved into the Property A property.
h)In 2012 [X] was born.
i)In 2013 the father resigned from the (employer omitted) and resumed his trade as a (occupation omitted).
j)In mid-2013 the mother returned to work after maternity leave and the father became the “stay at home” father.
k)In mid-2015 the mother was diagnosed with breast cancer and ceased working.
l)In late 2015 the mother underwent a double mastectomy.
m)In mid-2016 the mother was diagnosed with terminal cancer.
n)In mid-2016 the aunt moved into the Property A property with the mother and the father to help care for the mother and assist with the family.
o)In mid-2016 the paternal grandmother and the paternal step-grandfather moved from Victoria to the Region 1 to provide assistance to the father, the mother and the child.
p)In mid-2016 the father returned to work.
q)In January 2017 the parties separated with the father leaving the Property A property.
r)After separation the father spent daytime periods and limited overnights with the child.
s)On 2017 the mother died.
t)On 2017 the mother’s funeral took place with the father being unaware as to the funeral arrangements.
u)On 27 July 2017 the father filed parenting proceedings seeking orders for the child to live with the father and for the father to have sole parental responsibility for the child.
v)In the accompanying Notice of Risk the father accused the aunt of causing abuse to the child by “withholding” the child from father and therefore causing the child “emotional and psychological harm”.
w)In August 2017 the aunt filed her a response seeking until further order that the child live with the aunt, the aunt have sole parental responsibility for the child and the father spend supervised time with the child at a contact centre.
x)In the accompanying Notice of Risk, the aunt accused the father of causing abuse to the child by exposing the child to domestic violence and placing the child in fear.
y)In September 2017, the family report was released which recommended that the outcome of the psychiatric assessment for the father would determine the arrangements for the child and if the father was found to be of sound mental health, then the child live with the father and the aunt spend holiday time 3 to 6 times a year with the child.
z)In November 2017 the psychiatric report was released.
aa)In April 2018 the matter proceeded to a final hearing.
As at the date of the final hearing:-
a)The aunt is in a long-term relationship with her partner Mr T.
b)Mr T runs a business at Town H, in the Region 2 of New South Wales (a 7 hour drive from Region 1) and travels regularly to the see the aunt.
c)The aunt does not have any children of her own.
d)The aunt is living in the Property A property with the child.
e)The aunt works four days a week: three week days between 9.00am and 2.00pm and Saturdays between 10.30 and 4.00pm.
f)The paternal grandmother and paternal step-grandfather have returned to Victoria but visit the aunt and child once a month.
g)The father is living at several addresses.
h)The father has repartnered.
i)The father is working for (employer omitted) at Town I from Monday to Friday commencing at 6.00am and finishing anytime between 1.30pm and 4.00pm.
j)The father spends time with the child during the day on Wednesday and from Saturday morning to Sunday morning every weekend.
k)The aunt has a domestic violence order (DVO) against the father that expires in 2022.
The law
I now turn to the law.
Can the aunt seek parenting orders for child?
The father in legal correspondence has noted that the aunt is not “the parent of [X]” and that there is “no basis for withholding [X] from his father” (letters dated 1 August 2017 and 4 August 2017).
The law however, allows a person other than parents to bring applications for parenting proceedings pursuant to section 65C(c) Family Law Act 1975 if that person is “concerned with the care, welfare or development of the child”.
Burr J in Kam & MJR and Anor (1998) 24 FamLR 656 at [5.1.1 to 5.1.5] explained that “any person may file an application for a parenting order. A parenting order may be made in favour of a person other than a parent (section 64C). In order to proceed beyond the mere making of the application the applicant for a parenting order must demonstrate that they are a ‘person concerned with the care, welfare or development of the child.’ In my view this imposes a threshold test. It being a test to be determined on the individual facts and circumstances of each case. That the degree or strength of the nexus or concern with the care, welfare or development of the child is again an issue for determination in each case, depending upon the facts and circumstances of each case…… There may well be circumstances in this court where a mere ‘interest in’ or ‘concern about’ the child in question is sufficient to satisfy the threshold test. Once the threshold stage has been passed the individual facts and circumstances of the matter again must be viewed in order to determine whether or not a parenting order is appropriate and in the best interests of the child as would be the nature and form of any such order. The specific wording of section 65C(c) appears to require demonstration of a concern with only one of the issues of care, welfare or development”.
The court has long recognised that persons other than biological parents of a child can play an important role in a child’s life.
The Full Court in Re C and D (1998) 23 FamLR 375 [4.3] stated “persons significant to the life of a child are not confined to those who are biologically related to the child, in the same way that the existence of a family is not determined by biological considerations”.
Conclusion
I find that the aunt, who has been actively involved in the care of [X] since 2016 and has been the primary carer of [X] since 2017, is a person who is responsible for the “care welfare or development of the child” and therefore able to seek parenting orders for [X].
What considerations are to be taken into account in determining best interest?
The principles governing the determination of competing parenting applications are set out in Part VII Family Law Act 1975.
The Full Court in Valentine & Lacerra and Anor [2013] FamCACF 53 stated there is no presumption or preferential position as between parent and non-parent and that an application by a non-parent for a parenting order must be determined in the same way as an application by a parent; i.e. in accordance with its own facts and having regard to the best interests of the child as the paramount consideration.
“Best interest” as explained by Murphy J in Hardie & Capris [2010] FamCA 1046 at [48] “is not the application of a theoretical construct but rather, the practical application of a number of considerations relevant to the individual needs, desires, health and aspirations of the particular child… of this parenting relationship”.
As discussed by the Full Court in Moose & Moose [2008] FamCAFC 108 at [66] the role of the judicial officer in making orders which are in the best interests of the child is to determine the best interests having regard to “the matters set out in section 60CC(2) and (3), guided in …consideration of the provisions by the objects set out in section 60B(1) and the principles underpinning it contained in section 60B(2).”
However, where it is a dispute between a parent and a non-parent not all parts of section 60CC are applicable.
As considered by Finn J in Mulvany & Lane [2009] FLC 93-404 at [15] and [16] “It is indeed unfortunate that given the now very detailed provisions of Part VII and the acknowledgement in that part of the important roles that persons who are not natural parents of a child can have in a child’s life (see, for example, section 60B(2)(b)) that the legislation does not give some clearer indication of the weight to be attached to the child’s relationship with a person other than his or her parents compared with the child’s relationship with the natural parent in the determination of proceedings between a parent and a person other than a parent. As the legislation currently stands and assuming that it is correct that parent means only a natural or adoptive parent it would seem that in a case such as this the court could only reach its determination of parenting proceedings on an application of section 60CC(2)(b) (protection from harm) and of the additional matters in section 60CC(3) so far as they expressly or impliedly refer to a person other than a parent”.
This position was supported by the Full Court in Aldridge & Keaton [2009] FamCAFC 229 at [74] and [112] where “the flexibility afforded by section 60CC(3)(m) and the ability to deal with aspects of the application under section 60CC(3)(f) involving a party who is not a parent was explained by Moore J in Potts & Bims and Ors [2007] FamCA 394 at [8].....we think it accurately encapsulates the relevant legal principles to be applied when determining a parenting application which involve non-parents. It is as follows ‘the provisions about children’s arrangements are to be found in Part VII of the Family Law Act 1975. The concept of best interests of the child is at the heart of it and that is designated to be the paramount consideration in making any parenting order. Some Part VII provisions refer to parents which, given the words ordinary meaning and in the absence of any expanded definition or some other descriptor such as party, means a number of sections do not apply when assessing best interests in proceedings that are not between parents but between a parent and non-parent (example relative). Section 60B(1) and (2) set out the objects of Part VII and the principles underlying them. However a number are expressed to apply to parents and are so excluded in proceedings of the latter kind. For example paragraph 60B(1)(a), (c) and (d) fall away and what remains is paragraph (b), namely the object of protecting children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Similarly, paragraph 60B(2)(a), (c) and (d) fall away as underlying principles and there remains paragraph (b) namely, except when it would be contrary to a child’s best interest. Children have a right to spend time on a regular basis with and communicate on a regular basis with both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives). With objects and underlying principles as a guide the determination of what is in a child’s best interests requires the court to consider both primary considerations and additional considerations set out in section 60CC. But again the use of the legislator of the word “parents” in a number of those considerations operates to exclude those factors in proceedings between a parent and non-parent. Falling within that group is the primary consideration in paragraph 60CC(2)(a) and the additional considerations at paragraphs (c), (e) and (i). However that does not mean those considerations are to be ignored if the facts of the case raise them as issues because they can be addressed under other considerations such as paragraph (f) capacity to provide for needs or if nowhere else under paragraph (m) any other fact or circumstance relevant”.
Therefore the only applicable primary consideration in this matter is:-
a)The need to protect the child (section 60CC(2)(b)).
The applicable additional considerations in this matter are:-
a)Views expressed by the child (section 60CC(3)(a)).
b)Nature of relationships (section 60CC(3)(b)).
c)Capacity of parent and other person (section 60CC(3)(f)).
d)Maturity, sex, lifestyle and background of child and parent (section 60CC(3)(g)).
e)Family violence and family violence orders (section 60CC(3)(j) and (k)).
f)Whether preferable to make the order (section 60CC(3)(l)).
g)Any other fact and circumstance (section 60CC(3)(m).
I will now apply the applicable considerations.
Applicable primary considerations
Need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence
The aunt in concerned about the father’s “continuing anger-management issues (and inability to acknowledge same)” ([17] aunt’s March 2018 affidavit) and if the father “gets frustrated in his parenting he may express anger and violence towards [X]” ([129] family report).
The family report writer notes that the concerns of the aunt as to the ability of the father “to control his temper in the future are founded as she did witness the incident that occurred in February and did observe” the father “acting in an impulsive and aggressive manner”. The aunt “is acting protectively for her nephew and has been following recommendations from authorities such as the Police” ([175] family report).
The father is aware of the aunt’s concerns, informing the expert psychiatrist that “there are allegations that I will physically and emotionally harmed him, but not that I have” and “I have never harmed my child and I pose no risk to him” ([68] father’s July 2017 affidavit).
It is therefore necessary to explore in detail the family violence concerns regarding the father.
Family violence with other partners
The father did not disclose in affidavits any history of domestic violence with other partners.
However, in the family report interviews in September 2017, the father spoke of one earlier relationship which resulted in a DVO ([30] family report).
During cross-examination, the family report writer expressed the view that the father’s history of domestic violence did not raise any concerns as the father’s ability to care for the child into the future stating that the father’s previous issues with a former partner seemed to “relationship conflict”.
During his psychiatric interviews in October 2017, the father disclosed that:-
a)His first relationship when he was 18 was “volatile…we argued. It wasn’t healthy” and “I got attacked at one point but there was never any police involvement”.
b)That in his second relationship in his mid 20’s “there was never any violence”.
c)That in his last relationship before the mother that “we argued a lot towards the end. There was police involvement right at the end. I went to walk out and she grabbed my arm and I shrugged it off and knocked over a screen. She brought out a DVO at that point …there was never any breaches of this Domestic Violence Order”
The expert psychiatrist notes that “there appears to be difficulties within intimate relationships and that he was subject to Domestic Violence Orders in the relationship…. (in) his previous relationship, but …the violence was the in response to a violent act of his ex-partner”
In an email forwarded to the mother and Mr J on 13 March 2017, Ms A, (an acquaintance of the father which the father denies being in a relationship with) wrote: “Ms J this came after an incident on Saturday in which I gave Mr Winship the opportunity to show me his phone and explain which he didn’t….consequently we spoke for an hour and a half. The situation got extremely out of hand for about an hour. The police were called too. I lay no charges.”
The father was evasive during cross-examination responding “no” to the question “do you accept that domestic violence has been an issue for you in your life with other partners prior to Ms N?”
However, the father did, after many questions and after delays occurred in revisiting the transcript, admitted to the existence of a DVO by a previous partner Ms K in 2012 regarding incidents; one of which occurred in front of Ms K’s children.
The police notes of the 3 February 2012 incident record “the respondent started yelling at her about the text message. The aggrieved asked the respondent to stop yelling and to talk calmly but he continued to yell…the respondent kept poking the aggrieved in the arm and told her that he would annoy her by arguing with her all night unless she got out of bed and went upstairs. The respondent also grabbed the aggrieved phone from her and removed the sim card, refusing to give it back. The respondent and aggrieved then began to talk and the respondent threw the TV remote which hit the wall causing a dint in the plaster….the respondent continued to yell at the aggrieved and she became frightened and intimidated by the respondent because he was so angry and would not stop yelling. During the argument the respondent called the aggrieved names like ‘whore’. The respondent then got out of bed and pushed a wooden room divider causing part of it to break. The aggrieved became more frightened and went upstairs. One of the aggrieved daughters has 000 dialled into her mobile phone and told her to call the police….the respondent admitted causing the damage to the wooden room divider and damage to the wall however stated that the damage to the wall was accidental…there are previous DV incidents….infrequent…the child…was in another room”.
The DVO expired in February 2014.
Conclusion as to family violence with other partners
I find that family violence has been a feature in at least one previous relationship for the father and that family violence has occurred in the presence of children.
Family violence towards mother
In order to understand the family violence incident of 13 February 2017 (which the father refers to in submissions as the “one off” incident) it is necessary to look at what led to and occurred after that event.
19 January 2017
In late 2016 the mother received a large payout of over $570,000 for her terminal illness with the monies being deposited into the joint account held by the mother and the father.
This resulted in the mother and father arguing as to who would get the monies after the mother died.
In a post to the Facebook page of “(name omitted)” dated the 19 January 2017, the mother wrote “looks like I just officially joined the club. I finally had enough of his shit and called him on it. Mainly cruel emotional neglectful stuff. Seems minor in comparison to many on here. I don’t know what the fuck to do now. He isn’t interested in trying to sort things out. We have a 4 yr old. Situation complicated by the fact I’ve got stage 4 breast cancer. I’m going to die and my sons father is an arsehole. WTF!!!....Holy fuck what am I going to do now??”
20 January 2017
In a post to the Facebook page of “(name omitted)” on the 20 January 2017 the mother wrote “so he’s just woken up to demand 50% of everything including our son who he barely cares for by himself. Tried to get me to agree to everything in the dark with standover tactics. This is going to get ugly”.
The father said that on 20 January 2017 there was an argument with the mother that resulted in the father staying with a friend “to allow matters to calm down” ([30] father’s July 2017 affidavit).
On the morning of 20 January 2017, the mother (without the father’s knowledge) removed the sum of $565,000 from the joint account into an account in her own name.
When asked in cross-examination whether this annoyed the father, he responded “yes it did…my pay was going into the account. I needed somewhere to reside and I didn’t have any money to be able to do anything”.
Later that morning the mother deposited $30,000 back into the joint account.
The father then moved out of the Property A property.
The father explained to the family report writer that “this separation occurred as Ms N was planning and preparing for her death” and that “she was getting prepared so [X] would be the beneficiary of her estate” ([45] family report).
The mother and the aunt subsequently changed the locks on the Property A property with the mother providing a new set of keys to the father for the sole purpose of his accessing the Property A property to retrieve his belongings with the keys then to be returned.
In cross-examination, the father denied that the mother asked for the return of the keys.
10 February 2017
Disputes continued between the father and the mother and various text messages were exchanged which the father stated in cross-examination involved “lots of issues….plenty of issues”.
The mother informed the police (as noted in the police records) that since separation the father “has been constantly texting and calling” the mother and that “these texts have been regarding the custody of their child, if they are getting back together and about money”.
The mother informed the police that she had “received a payout for having a terminal illness and when they split up she took this payout away from the joint account and into one of her own name. She said this angered the” father “who believed he is entitled to it” and “that the phone calls from the” father “typically ended with him verbally abusing the” mother.
In a post to the Facebook page of “(name omitted)” on 10 February 2017 the mother wrote “he just walked into my bedroom at 6am. He told me he lost the spare keys. He disclosed halfway through he is recording the conversation. He wants full custody of our son as I can’t look after him though I have for the last 18/12 without his help. And wants to move to Brisbane ASAP. He is meant to take him tonight for the weekend. Help what do I do now. I asked him not to come into the home without notice and he refused”.
The police records note “approximately 4 weeks ago the Agg and Resp have separated. The Agg has told the Resp to move out of the home where the Resp has resided for the past 4 years. The Agg owned the home in full prior to when the Agg and Resp commenced their relationship 5 years ago. The Resp moved out and Agg has changed the door locks. Whilst the Resp has moved out the Agg has received insurance health payout for the ongoing treatment and care for the Agg. The Resp has become angry that the Agg has not shared this payout and wants a share. The Resp had become verbally aggressive toward the Agg and begun to threaten to take their son away and move to Brisbane. The Agg has allowed the Resp to return to the property on a few occasions to collect property. The Agg left a set of new keys for the Resp to gain entry when she was not home and then to return the keys to the Agg. 10/2/17 05.45hrs the Resp has entered the front door of the home and gone into the Agg room where she was sleeping. The Resp has then begun to verbally abuse the Agg stating ‘I will not be returning the keys I can come and go at the house as I please’. The Resp has further sworn at the Agg and called her names. Police have attended the address and TWU the Agg who has informed the police of the incident….the Agg stated that she was not fearful of the Resp”.
The father said that on that day there was a “further disagreement” with the mother “about what was to happen following her death and finances” that the mother “told me she was leaving everything to our son and I tried to explain that in my view our finances were joint and I would need access to them into the future” and that “I felt powerless in the circumstances, frustrated that” the mother “was dying and confused as to how to deal with future financial matters while” the mother “was living” ([33] father’s July 2017 affidavit).
The father’s recollection of this incident during cross-examination was somewhat vague with the father at first not recalling the incident or the locks being changed.
The father however, after reading the police report, regained some memory of the incident and agreed that “they were having arguments all the time” but “I don’t believe that I was aggressive” and that on that day the father said that the mother did not know “that I was turning up at that stage”.
As to the events on 10 February 2017, the following exchange occurred during cross-examination:-
Judge: “You tell me in your own words, please, what happened on 10 February?”
Father: “On 10 February, I did enter the house early in the morning. I do recall coming into the house”
Judge: “So you went into the house using the keys that had been provided to you?”
Father: “Yes”
Judge: “Not telling Ms N that you were going there?”
Father: “No – no, your Honour”
Judge: “Why?”
Father: “I was coming and going regularly”
Judge: “Why?”
Father: “Picking things up; dropping things off”
Judge: “So how early are we talking about?”
Father: “I know it was early. Ms N was in bed”
Judge: “Tell me how early is early. What’s your best recollection of how early?”
Father: “My best recollection would have been between 6 and 7 in the morning”
Judge: “So you went there between 6 to 7 am. You would have known that Ms N was asleep in the house?”
Father: “No, your Honour”
Judge: “Where did you think she was?”
Father: “Well, [X] usually gets up earlier than that, so……she would have been in the bedroom”
Judge: “Did you know before going into the house that chances were that she was going to be in the house?”
Father: “Yes, your Honour”
Judge: “So you arrive unannounced, let yourself in, not letting her know you’re doing that?”
Father: “Yes, your Honour”
Judge: “A woman who is very ill at this point?”
Father: “Yes”
Judge: “Terminally ill?”
Father: “Yes”
Judge: “And you had no regard that that might frighten her, that you just turn up early hours of the morning unannounced?”
Father: “I would hope my presence didn’t scare her, your Honour”
Judge: “It did, though, didn’t it?”
Father: “I don’t believe it scared her at the time, your Honour”
Judge: “Right. So you arrive in the house and what happens? So you let yourself in?”
Father: “Yes”
Judge: “Who else is in the house?”
Father: “The house was quiet. There was ….I don’t know who else was in the house. Ms Wrays may have been in the house”
Judge: “What did you do when you got in the house?”
Father: “Went in to get my clothes”
Judge: “From where?”
Father: “From the bedroom”
Judge: “And what happened?”
Father: “She woke up and……I started getting my clothes and we started talking about anything and everything….I was there for probably ten minutes….We spoke about multiple issues”
Judge: “What did you speak about? Tell me specifically what you can recollect about this incident that has only been jogged in your memory on 10 February about what discussion you had when you went to the house unannounced and walked into the bedroom where she was sleeping?”
Father: “We talked about [X] significantly. We talked about ….”
Judge: “Tell me specifics. You’re just telling me generalities. I don’t know what you mean – when you spoke about [X] significantly, I don’t know what that means. Tell me what – what do you actually recollect as to the conversation on that day?”
Father: “We spoke about time with [X]; future events in the way of what we were going to do with time with [X]. We spoke about money, I believe”
Judge: “What did you speak about in regard to money?”
Father: “About how we were going to proceed on any sort of settlement, if that was going to proceed”
Judge: “Because this is the day you withdrew the $30,000, wasn’t it?”
Father: “This is – if that was the case. If – I don’t – it must have been after that, I guess”
Judge: “Did you talk about that?”
Father: “I don’t specifically remember talking about that, but we did talk about money. So I’m presuming that we did talk about the money at that stage”
Judge: “So in this talk, were there raised voices? Was there disagreement?”
Father: “There were disagreements”
Judge: “Right. And what were the disagreements about?”
Father: “I’m struggling to remember what the disagreements were. We were probably generalising about a lot of things and not being very specific”
Judge: “No. Well, I want you to test your memory and you say there were disagreements. I would have thought that – if I was having a conversation with someone and part of it was pleasant and part of it was unpleasant that more than likely what I would recall would be the unpleasant aspect of it. So what were the disagreements about?”
Father: “They were mostly about money. We didn’t really ….”
Judge: “So what was the disagreement about money?”
Father: “It was how we were going to arrange assets and moving forward with [X] and I was asking her, ‘How are we going to do that?’ and things of that nature”
Judge: “Right. So why was there a disagreement about that?”
Father: “Ms N didn’t want me to have a lot of things, and I don’t recall what those things were. She wanted to have a lot of the items herself”
Judge: “Raised voices?”
Father: “We were – I was talking in a stern – stern manner”
Judge: “What does that mean?”
Father: “Not raised voices, but stern. Firm – we were both talking firmly to each other”
Judge: “And all this happened over a period of 10 minutes?”
Father: “Yes”
Judge: “Right. And how did the 10-minute conversation end?”
Father: “I just walked out. I don’t really remember the last thing we said to each other”
On 10 February 2017, the father withdrew $31,000 from the joint account and transferred it into an account in his name leaving the account in the negative.
The father in cross-examination stated that the mother “told me to withdraw it”.
The mother subsequently informed Dr G on 14 February 2017 that the father had raided the bank account without her permission with it noted that “HB (husband) has now emptied all the $$ out of her bank account”.
The father said in cross-examination that the mother had lied to the doctor.
The bank account was subsequently closed on 24 February 2017.
After the 10 February 2017 incident, the aunt and mother “had the locks changed again and additional bolts were added to some of the windows” ([53] aunt’s August 2017 affidavit).
13 February 2017
The aunt informed the family report writer that prior to the 13 February 2017 incident, that “she had not observed any aggression or violence” in the father’s behaviour towards the mother, and that the mother said that the father had “not been violent in the past” but the aunt had observed the father “to be moody but not aggressive” ([108] and [109] family report).
The father told the expert psychiatrist that he “denied that there was ever any violence in the relationship” and that “we were very very placid. We talked everything out. She was a strong hard sound woman”.
However, that was to change on 13 February 2017.
The mother informed Dr G (the day after the incident on 14 February 2017) that the “father broke in last night to house – parents separated, assaulted mother and aunt and [X]’s step-grandfather (paternal side), used a set of keys that he had ‘lost’ ranting & raving regarding him having custody, police advice was this was DV but mum did not pursue it. Pt saw dad 2/7 ago, yesterday escalated (dad) regarding access issues, mum rang dad so that son could say goodnight, father kept threatening to come then arrives, punched a window, prised open a window with a screwdriver & broke in , mum was holding son, son was screaming, father tried to push SIL away, whilst grabbing mum, [X] terrified, SILF and father then fighting in front of everyone, then police turned up and father taken to watchhouse and now DVO against him, son was articulating that he did not want daddy to grab him and that daddy needed to leave”.
The father sets out the 13 February 2017 incident from [37] to [62] in his July 2017 affidavit explaining that on that day the father “misplaced” his “house keys” and “climbed onto the ledge of the window” in order to get entry into the Property A property with the child present and an incident unfolded resulting in injuries to the aunt, the mother, to the father and to the step-father.
The father informed the expert psychiatrist that he needed to retrieve clothing from the property.
The aunt detailed the physical violence in her March 2018 affidavit attaching photographs of bruising, red marks and dirty boot prints on the aunt’s feet stating:-
a)“Mr Winship….proceeded to pull both my arms to try and get [X] from me” [62(gg)]
b)“Since Mr Winship couldn’t loosen my grip of [X] he forcibly placed his forearm on my collar bone and his boot on my feet to push me backwards, it was very sore” [62(hh)]
c)“Mr Winship pushed me away” [62(jj)]
d)“Mr Winship then started to attack Ms N by attempting to pull her arms away from [X] and pinning them behind her back” [62(kk)]
e)“I then saw Mr Winship placing his knee on Ms N’s back to give him some leverage to pull [X] from her” [62(ll)]
The father maintains that the injuries to the aunt were unintentional and were caused when he fell on her.
The police records note “at about 18.40 hours on 13 of February 2017 the aggrieved has phoned the respondent so that he can speak with their son before he goes to be….he told her he was going to be coming to the house….she said that their son had gone to bed and there was no need for him to come. The respondent said that he was coming anyway. The aggrieved has then text the respondent saying “do not come to….tonight, you’re angry and its late. The respondent has replied ‘I’m coming’. The aggrieved has replied that she would call the police and the respondent has replied ‘OK, call them’. The aggrieved has text to say that she would get a DVO on him and he has replied ‘I don’t care, get it’. At about 19.10 hours the respondent has arrived at the house. The aggrieved has locked all the windows and doors to the house prior to his arrival. The aggrieved has opened the window and told him to leave. The respondent has replied ‘I’m not leaving’. The aggrieved has then closed the window and the respondent has punched it. The aggrieved then called 000. The respondent has then gone around the house trying all the windows and doors. He then got a large screwdriver and used force it to force the front window of the house open. The aggrieved has tried to push him back through the window using the blinds but he has been able to get into the house. The aggrieved has continually told the respondent not to come into the house. The son of the aggrieved and respondent was being held by the sister…..in the lounge of the house. The respondent has tried to grab his son from her arms and has caused bruising to her in the process. The aggrieved stated that at this stage she was terrified as she did not know what the respondent was going to do to their son and she thought he was going to take him from the house. The aggrieved has then taken their son and shielded him with her body. The respondent has ripped at her arms and legs trying to get to their son. The aggrieved has continually told him to just leave. The respondent has then stepped away from the aggrieved and has asked if he could have a cuddle with his son. The aggrieved has refused to allow this. The mother and stepfather of the respondent has then arrived and asked the respondent what the hell he was playing at. The respondent has then said to them ‘go away or this will end badly for you’. The respondent has then stepped up to his stepfather and they got into a scuffle causing furniture to be knocked over. This occurred in the presence of the couple’s son. The aggrieved has then taken their son and gone into his bedroom to keep him away from the respondent. The police arrived shortly thereafter”.
A USB stick containing three snippets of the 13 February 2017 incident was tendered which showed the following:-
a)The first recording titled “Mr Winship entering through window” (31 seconds long) where a child can be heard talking to the mother then a noise is at the window and the mother yelling “Mr Winship do not break into the property, you are not welcome here. Mr Winship the police are coming do not break into the property. Mr Winship you are not welcome here” with the father responding “don’t push me out the window” and the mother continuing to beg that he not break in.
b)The second recording titled “Mr I being assaulted by Mr Winship” (21 seconds long) shows the father in the kitchen restraining the paternal step-grandfather on the floor with his hand holding the neck of the paternal step-grandfather’s jumper and his legs straddling paternal step-grandfather’s waist. It starts with the paternal grandmother in the doorway yelling at the father to “stop it” and directing someone to take “him” (referring to the child) “into the bedroom”. The paternal step-grandfather is heard saying “don’t threaten your mother and don’t threaten other women. Now get off” with the father responding “all I said was don’t come home standing over me” and repeated several times to the paternal step-grandfather’s pleads of “get up” with “have you had enough”. The paternal grandmother says “don’t be a smart alec Mr Winship” then asks the father “what is wrong with you”. The paternal step-grandfather is heard telling the paternal grandmother that the police can deal with the father when they arrive.
c)The third recording titled “[X] and Ms N, terrified” (6 seconds long) shows Ms N, visibly upset, eyes closed lying on the chaise part of the lounge cradling [X] in her arms with the father standing at the end of the chaise, hands on hips, pacing and saying “all I want is a cuddle off him and to say goodnight”.
After the incident, the father was charged with two counts of burglary and two counts of assault.
The matter went back before the court after the mother’s death where charges were reduced to one charge of common assault in respect to the mother, to which the father pleaded guilty with no conviction recorded and placed on a 12 month good behaviour bond.
The incident resulted in a DVO being taken out on behalf of the mother against the father.
21 – 27 February 2017
On the 21 and 22 February 2017 the father contravened the DVO on two occasions.
On 27 February 2017 the father contravened the release conditions of the DVO on two occasions.
In cross-examination, the father admitted to asking the mother to withdraw the breaches.
March 2017
When the four breaches went before the court in March 2017, the father entered no plea and the matter was adjourned until September 2017.
20 July 2017
The DVO by the mother against the father was revoked due to the mother’s death.
The aunt took out a temporary DVO against the father which named the child as a party.
The father said that he was going to defend the application as it was a ploy by the aunt to keep [X] away from the father ([67] father’s July 2017 affidavit).
15 August 2017
The father was unsuccessful in seeking a variation of the temporary DVO in favour of the aunt.
25 September 2017
Police withdrew the four breaches against the father in respect to the mother’s DVO as the mother was deceased and there was no evidence to offer.
28 November 2017
The father consented without admission to a five year DVO naming the aunt and child as the aggrieved, with such DVO due to expire in 2022.
The father provided an undertaking to the court and consented to an intervention Order for the father to attend anger management.
Conclusion as to family violence towards mother
Family violence is defined in section 4AB(1) Family Law Act 1975 as “violent threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful”.
Examples of family violence are contained in section 4AB(2) and include (but not limited to) “assault” (section 4AB(2)(a)), “repeated derogatory taunts” (section 4AB(2)(d)) and “depriving the family member…of…liberty” (section 4AB(2)(j)).
I find that the evidence supports that the father has perpetrated family violence towards the mother.
Whilst as first it was arguments and intimidating behaviour, by 13 February 2017 it had escalated to the father breaking into the mother’s residence and being involved in verbal and physical altercations with the mother, the aunt and the paternal step-grandfather.
Whilst the mother may not have been scared of the father prior to the 13 February 2017 incident, the mother was clearly frightened of the father during the 13 February 2017 incident as evidenced by her recounts of the incident and her reactions in the recordings.
What makes the incident even more heinous is that the mother was terminally ill, receiving chemotherapy at the time and was physically frail and emotionally distressed.
Further, the incident played out in front of [X].
A child is “exposed” to family violence if, according to section 4AB(3) “the child sees or hears family violence or otherwise experiences the effects of family violence”.
Section 4AB(4) sets out examples of exposure such as “seeing or hearing an assault” (section 4AB(4)(b)), “comforting…a member of the child’s family who has been assaulted” (section 4AB(4)(b)) or “being present when police…..attend an incident involving the assault of a member of the child’s family” (section 4AB(4)(b)).
[X] saw things that night and certainly heard what he could not see.
It is sad that [X] witnessed such appalling behaviour by the father towards the other adults who are so important in the child’s life: especially the mother and the aunt.
I find that [X] has been exposed to family violence perpetrated by the father.
The aunt explains that after 13 February incident:-
a)“[X] was traumatised and extremely scared by his father’s actions” ([33.2] aunt’s August 2017 affidavit).
b)“The incident caused stress for [X]” ([110] family report).
c)[X] was “unsettled and fearful” ([110] family report).
The father’s affidavits are silent on any impact the 13 February 2017 incident may have had on [X].
The family report writer during cross-examination when asked how witnessing family violence and possibly family violence into the future witnessing could impact on [X] in his later life and his development responded, “well, if a child, a child of domestic violence, of witnessing it, then it can just be anything. So it can be in terms of just their social relationships, with other relationship histories, work history, anything there might be an authority figure or a need for, like, a partnership. They just might dispute those roles and get in a lot of conflict…”
The evidence supports that since the incident [X] has displayed some concerning behaviour:-
a)The notes from the Child Development Services (CSD) meeting with the aunt and the paternal grandmother in October 2017 (which the father did not attend) indicate that [X] has behavioural issues including anger management with other children.
b)The aunt states that “[X] has frequently lashed out at other pupils and teachers….as a result I have been asked to collect [X] twice from school for disruptive behaviour” ([41] and [42] aunt’s March 2018 affidavit).
c)The father said, “I have been made aware of [X] being sent home from school for hitting, kicking and biting the teacher and other students and behaviour to that effect. On 28 March 2018, I was told by [X]’s teacher…that she ‘does not believe a day has gone by where there hasn’t been an incident of kicking, hitting or punching’”, that “[X] is now separated at recess and lunch breaks from the other children” and that he “was surprised to hear of [X]’s behaviour as he had not acted like this in the past” ([73] and [74] father’s March 2018 affidavit).
The child’s paediatrician Dr D believes that the family violence is a contributing factor informing in an email to CSD) dated 10 October 2017 that “I think he ([X]) is suffering from a lot of trauma and grief which is ongoing – there are significant custody issues in play, anger issues in dad, and he is living in mums home with maternal aunt and paternal grandmother”.
The family report writer in cross-examination acknowledged that the exposure to domestic violence might be contributing to [X]’s behavioural issues.
Initially, the father in cross-examination was not prepared to accept that there were any lasting impacts on [X] as captured in the following exchanges:-
Counsel: “So why go then to the lounge room window with a screwdriver and start forcing entry into the house?”
Father: “It was a dumb thing to do sir”
Counsel: “And you know she was screaming. She was terrified, wasn’t she?”
Father: “When I came in the window, yes sir”
Counsel: “Right. [X] was present…….Ms Wrays was present?”
Father: “Yes, sir”
Counsel: “And they were all in the lounge room area, weren’t they?”
Father: “Yes, sir”
Counsel: “You forced your way in past Ms N and ..... irrespective of whatever your determination is or your rendition in your affidavit, you physically abused your former de facto partner, didn’t you? You were charged with a common assault?”
Father: “Yes, sir”
Counsel: “And you pled guilty to it?”
Father: “Yes, sir”
Counsel: “So don’t try and whitewash it, please, Mr Winship. You know full well you assaulted her on that occasion?”
Father: “Yes, sir”
Counsel: “And your child witnessed that event. How would you think that may impact upon him, having witnessed that?”
Father: “It would upset him”
Counsel: “So when Ms Wrays gives evidence in her affidavit and evidence-in-chief to the effect that she says once that ‘he was traumatised’, or words to that effect, that’s true, isn’t it? You would accept that, wouldn’t you?”
Father: “I don’t believe he has been traumatised by that, sir”
Counsel: “Seriously?”
Father: “Yes”
Counsel: “You don’t think that has had an impact on your child?”
Father: “It was – it would have been upsetting for him at the time, sir”
Counsel: “So you had an argument with your mum, and Mr I, your stepfather, intervened, telling you not to talk to her like that, didn’t he?”
Father “Yes, sir”
Counsel: “And, as a result of which, Mr I ended up lying on the floor – I won’t go into specifics of it, but you were on top of him, weren’t you?”
Father: “Yes, sir”
Counsel: “[X] saw this as well, didn’t he?”
Father: “He……I don’t think he was in the room at that point sir”
Later in cross-examination, the father made some concessions as to the possible impact of the exposure of family violence on [X]:-
Judge: “And you don’t think that what happened that night where [X] saw you acting inappropriately to a number of very important adults in his life, that that’s had any long-term impact on [X], do you?”
Father: “I hope it hasn’t”
Judge: “What do you think?”
Father: “It’s possible”
Judge: “So you’re conceding that now, because that certainly wasn’t a concession you made to Mr Selfridge?”
Father: “No, its not”
Judge: “Because this little boy has got lots of special needs, hasn’t he?”
Father: “He has, your Honour”
Judge: “And his reaction, response and coping with something like that, given he has already lost his mother, may take a lot longer?”
Father: “Yes, your Honour”
By the time of the written submissions, the father reverted to his previously held position that “is no evidence that the child has suffered or continues to suffer any psychological harm”.
[X] attends counselling at (counsellor omitted) to deal with the death of his mother.
The father has not enquired from the aunt as to how the counselling is progressing ([134(n)] aunt’s March 2018 affidavit).
There is no evidence before the court as to whether such counselling has addressed the child’s exposure to the violence during the 13 February 2017 incident.
The aunt in cross-examination admitted to not getting the child specific counselling for family violence.
As [X] is now acting out violently in his behaviours I find, given the experts opinions, that that there is a real possibility that his exposure to family violence at the hands of the father has had an impact on the child and may be contributing to his behavioural issues.
The expert psychiatrist during cross-examination suggested that “if there were concerns that the child was exhibiting symptoms or signs of psychological/psychiatric distress…the most appropriate to assess that would be a child psychiatrist or child psychologist”.
I therefore order that the child attend a child psychiatrist or child psychologist to address these issues.
As the father does not accept that there have been any possible impacts on the child due to the family violence perpetrated by the father in the presence of the child, then I find that this consideration supports an order for the aunt to be the appropriate adult to take the child to a child psychiatrist or child psychologist.
Possibility of father perpetrating family violence again
In order to ascertain the likelihood of any future acts of family violence by the father, several issues must be explored.
Firstly, the evidence supports a lack of remorse or acknowledgment by the father as to his behaviour on the 13 February 2017 and the impact it may have had on the mother, the aunt and the child.
On the night of the 13 February 2017 incident, the mother informed the police that she was “extremely fearful” of the father and wanted “no further contact” with him.
The aunt in recounting the incident in her March 2018 affidavit said:-
a)“I was scared” [62(l)]
b)The mother “appeared very stressed and upset” [62(z)]
c)“I was extremely frightened for both my safety, Ms N’s safety and for [X]’s safety” [62(dd)]
d)“[X] appeared very frightened” [62(tt)]
e)“I was extremely frightened and at the same time angry that Mr Winship was acting in such an aggressive manner in the presence of [X] and knowing as well that Ms N was extremely ill due to the debilitating effects of her suffering from terminal cancer, including her having attached a portacath to her chest ….which was dispensing chemotherapy medication into her body” [62(qq)]
f)“Following this incident and for a long period of time thereafter I did not sleep properly because I was scared that Mr Winship might return” ([62(jjjj)]
g)“We did not feel safe in the house after this incident and as such moved for a few days to a unit, rented” ([62(lll)]
h)“I’m still not sure that Mr Winship even understands the enormity of his aggressive actions that night, the impact it had on Ms N and [X], not to mention the rest of us who were so shocked by his behaviours” [65]
i)“I do not feel safe to be alone with him” [70]
The psychiatric report noted “clearly the maternal and paternal family were deeply disturbed by the father’s actions and behaviours prior to the mother’s passing”.
The mother told Dr G (as recorded in her notes dated 22 February 2017) “he still has not admitted responsibility for what he has done”.
The mother in her text message to the father dated 27 February 2017 said “regarding the DVO. We were genuinely terrified and traumatized. I never thought you would do that. And when you came back on the Friday we were terrified again. We left the house and arranged for people to stay over. Can you imagine how we felt? You need to take ownership of that. An apology is in order I feel”.
The father in subsequent text messages on 2 March 2017 did not apologise to the mother but asked that the mother “put something on email for me to use in court” for the criminal charges and asked her to stop the DVO and “getting the breach of the DVO dropped please”.
A letter written by the father’s legal practitioners to the aunt’s legal practitioners on 1 August 2017 stated “Ms Wrays is now alleging the child was exposed to domestic violence on 13 February 201 and that she is in fear of Mr Winship which he instructs is a fiction intended for no reason that to exact improper and immoral control over the child through the Domestic Violence Court”.
When interviewed by the expert psychiatrist in October 2017, the father denied that his behaviour made the aunt scared.
The father justified the February 2017 incident by stating, “in hindsight I regret my actions but like” the mother “I was emotional at the time. I was trying to reconcile the fact that Ms N was dying, we were arguing about silly things and I was displaced from our home and from seeing our son” ([49] father’s July 2017 affidavit).
The father informed the expert psychiatrist that he “did experience feelings of guilt ‘about the incident and actions when the mother was alive’”.
In his March 2018 affidavit, the father wrote “I regret my past actions when Ms N was alive but there were many reasons, but they are not relevant in respect to my capacity to care of my son” [53(c)].
At the final hearing the father when pressed said during cross-examination that “I’m regretful of the incident on 13 February 2017”, that “it is a regrettable incident” and “it’s unfortunate that everything happened the way it did”.
The issue was further pressed with the father in the following exchanges during cross-examination:-
Judge: “I had the opportunity over the lunch break to look at exhibit A, which was the USB stick. I found your behaviour frightening, disturbing, disrespectful. The way that you spoke to your stepfather, the way that you spoke to the mother, the way that you spoke to your mother illustrated to me a person who had menace, temper, anger. Just tell me how you can justify my observations of you from those three very small snippets of what occurred during that event, considering that you hadn’t consumed alcohol?”
Father: “I say that I was attacked by my stepfather at that stage”
Judge: “Well, what I saw was you lying on top of your stepfather, holding him down and taunting and teasing him at a time where [X] had to be removed from the room. So he would have seen the beginning of it. I didn’t see where you were taunted or aggravated. I could see where you were doing the aggravation. So you’re saying that what it was – what, self-defence?”
Father: “I was trying to stop a physical altercation”
Judge: “How old is your stepfather?”
Father: “He would be nearing 60”
Judge: “And during that footage he wasn’t doing anything but laying there with your mother – your mother crying, asking you, begging you to stop, and you didn’t. So just justify to me why that type of behaviour is acceptable in front of a young child and his dying mother?”
Father: “It’s not acceptable”
Judge: “Tell me why you did it then. You’re a well-educated man. You’ve been in the (employment omitted). You understand discipline. You understand – you know what’s right from wrong?”
Father: “Yes, I do, your Honour”
Judge: “So why did you do it?”
Father: “I was struck, and I was worried about continually getting struck”
Judge: “Struck by whom?”
Father: “By Mr I”
Judge: “You weren’t struck when you were demanding a cuddle from a child who was obviously distressed and a mother who was even more distressed. You weren’t struck when you were holding Mr I down?”
Father: “Not at that point, no, your Honour”
Judge: “No. So just because you were struck once during that whole incident, that justified your appalling behaviour throughout?”
Father: “Nothing justifies”
Judge: “Right. So what did you do about it? So this horrible incident occurs. I take it the incident stopped because the police were called? That brought about the end of the incident?”
Father: “No, it stopped because Mr I – I felt that Mr I wasn’t going to retaliate”
Judge: “How could he? You had him pinned on the floor?”
Father: “Yes. So it was – it had stopped”
Judge: “So it stopped and then what did you think about it afterwards?”
Father: “It’s a horrible situation that I wish had….”
Judge: “What did you think about it afterwards?”
Father: “Ashamed”
Judge: “Right. So what did you do about that – about that ‘ashamed’?”
Father: “Removed – gave everyone space, I guess”
Judge: “Right. And what did you do about addressing your part of that whole incident, if anything?”
Father: “Probably not enough, your Honour”
Judge: “What did you do about it? I don’t know what “not enough” means, because I don’t know what you did. So what did you do, after that incident, to address your part in that incident?”
Father: “I didn’t do anything your Honour”
In a final press (which resulted in an unsuccessful application by the father for me to recuse myself) the following exchange occurred:-
Judge: “What do you – why do you think that any issues leading up to anything gives you a right to act like an absolute pig? What gives you that right?”
Father: “There’s no right”
Judge: “What gives you that right over anyone else in this room?”
Father: “There’s no right”
So why did I press so hard?
The answer is simple; you cannot change what you do not acknowledge and I needed to know whether the father acknowledged anything about himself from the 13 February 2017 incident.
I find that the father acknowledges very little.
I find that the father’s insight into his behaviours and consequences is limited and that the statements of “regret” expressed during the final hearing may have been lip service only.
I make this finding based on the following:-
a)The father at every opportunity has blamed others or the circumstances for his behaviour on that night.
b)The father was given every opportunity by the mother to apologise to the mother but the father chose not to, being more concerned about his self-preservation and saving of face over the DVO and subsequent breaches.
c)The father felt guilt when the mother was alive but that guilt has abated now that the mother has passed.
d)The father has never felt any guilt regarding the aunt or the paternal step-grandfather.
e)The father has been so bold as to accuse the aunt of using the issue of domestic violence as a tactical ploy by the aunt to have [X] in her care.
If the father does not recognise the seriousness of his behaviours and the impact that has had on the mother, the aunt and the paternal grandparents, then this raises real concerns as to whether the father will actively desist from these behaviours in future relationships and will protect those around him (including [X]) from the possible fallouts of such behaviour.
I find that this raises a future concern of risk for [X] in the father’s care.
Secondly, the evidence supports that the father has not been proactive in obtaining any effective or lasting therapeutic assistance to address his behaviours and has not been forthright as to the extent of his involvement in the violence.
The expert psychiatrist recommended that the father engage “in some form of therapy around addressing how he manages his emotions, so that he’s able to, let’s say, more appropriately deal with his anger or frustration in a way that doesn’t resort to violent or angry acts. And, secondly, doesn’t expose children to those angry or violent acts”.
The father does not recognise that he has an issue with anger or his temper as evidences in the following exchange during cross-examination:-
Judge: “And you still don’t think you’ve got a temper, do you?”
Father: “No, your Honour”
Judge: “And you don’t think you’ve got an anger issue, do you?”
Father: “No, your Honour”
The victims of the family violence incident on 13 February 2017 felt differently.
The aunt holds ongoing concerns that if the father is unable to manage his anger then [X] may be at risk of physical harm (([10] family report).
It was put to the father in cross-examination that after the incident “the maternal family and/or your own mother and stepfather tried to get you help in terms of your anger management” to which the father responded, “yes they have”.
In a text message to the father dated 27 February 2017, the mother wrote “I know you don’t want to hear this but I truly believe you need to get some help. …..This is not me trying to control you but I think I have insights into you that you might have”.
The father’s evidence as to what assistance he has obtained for his anger management is confusing.
The father gave evidence that his attendance with his psychologist Mr P since mid-2017 has addressed the issue of anger management.
However, the intake notes by Mr P make no mention as to domestic violence or anger management.
During cross-examination, the father said that he did talk to Mr P “about the proceedings” and that “there has been claims of anger management” but admitted that he did not specifically raise the issues of his direct involvement in the domestic violence with Mr P.
When asked in cross-examination from the bench “but you haven’t spoken extensively, have you, to Mr P about your behaviours and especially your behaviours in February?” the father responded “I have spoken to Mr P about the incident in February….We’ve done anger exercises.”
The notes from Mr P do not support this.
During cross-examination the expert psychiatrist in response to the question “if the court was to find that – I would ask that you accept this – that the father has historically engaged in domestic violence by his own admission or by same or similar nature with a previous partner and has been less than candid with the court and/or any treating practitioners who have seen him in relation to the same, how would that impact then on the evidence you’ve just given, Dr V?” replied “So it obviously be a concern to the court if there was a more pervasive pattern of behaviour present in the father in which anger or violence was a factor, and that would suggest that those kind of behavioural difficulties that manifest in the father are more common than was otherwise apparent and not solely circumscribed to a unique set of circumstances. So one would be concerned that in the future that, for instance, if the father was engaged in a future intimate relationship, are there risks that the child would be exposed to any inappropriate displays of emotion or domestic violence within that context. Having said that, that’s not an absolute risk. It doesn’t predict the future, but it would be of concern, and I think there would be an issue that the father would need to address. Now, the second issue about the father being less than candid, in my view, is a concern more generally, in the sense that one would hope in these kind of proceedings that the best interests of the child are of paramount concern to everyone. And that would include, let’s say, deficits or difficulties that anyone may have faced in the past that would be a concern to the court around the issue of risk to the child. And it would be of concern to me that if the father were found to be, let’s say, less than open about past difficulties, that perhaps he is struggling to prioritise what’s important, which is the best interests of the child over his own interests and needs. Now, again, having said that, that’s not an absolute, in that people – and I’ve been a psychiatrist long enough to know that people don’t always tell me the truth, and that there’s often minimising of past difficulties, but as I made the statement earlier, it’s difficult to address or change what is not acknowledged. And if these were findings by the court around such issues, if the father was unable to acknowledge them, he’s unlikely to be able to address them or change his behaviour in the future”.
The father has not completed his sessions with Mr P, having ceased the sessions in October 2017.
To meet his commitments pursuant to his undertaking (for the DVO by the aunt) to attend an anger management course, the father around November 2017 booked into a 16 week anger management course at Centacare.
At the time of the final hearing the father had completed 10 weeks of the course with 5 to 6 sessions remaining.
I find that the father had ample time leading up to the final hearing to complete his sessions with Mr P and to complete the anger management course with CentaCare
At the final hearing, the father was adamant that anger and temper were not an issue.
In answer to the question posed by the aunts’ counsel of “given everything that we’ve exposed today, Mr Winship, in terms of the history of domestic violence and those ongoing issues about how you’ve not been attending fully with Mr P, etcetera, do you think there’s some legitimacy to Ms Wrays saying about how your temper can scare and intimidate people?” the father responded “I don’t believe I have a temper”.
The father indicated that he would engage in future counselling although it is unclear as to what that counselling would be about as illustrated in the following exchange:-
Judge: “You’re not being proactive in doing anything about the issues, even though it’s been identified that you should do something, and even though you’ve conceded to it, way after the November – sorry – the February incident?”
Father: “Because I have – I have intention of seeing psychologists for many years to come, like I have done for a long period of time”
Judge: “But you haven’t told them the full story yet, have you? Let’s be honest?.... They don’t know all the different aspects?”
Father: “No, they don’t”
I question whether the father in his denial as to anger and temper will complete an anger management counselling or courses and take anything away from such counselling or courses.
I find that this raises concerns as to whether the father can protect the child from his anger into the future, whether that anger is directed by the father at the child, the partner or other family members.
Thirdly, the father holds a set view that family violence will not occur in the future as demonstrated by the following exchange during cross-examination:-
Judge: “But you’ve not done anything proactive so that you’ve put yourself in a position where you won’t – or you ensure that that sort of behaviour by you isn’t going to happen again with someone else in front of him?”
Father: “I don’t believe it will ever happen again, your Honour”
Judge: “Why? It’s happened in 2012. It happened in – and that was before – with other children, or child, present. It happened in 2017?”
Father: “I can identify the issues leading up to things – incidents of that nature now”
As to what those “issues” are is unclear.
During cross examination the expert psychiatrist when asked about acts of violence occurring in front of children, namely children of a former partner and [X] and whether the “the theme that past behaviours are often a good predicator of future behaviour” responded “children, but certainly in adults that I see, children that are – that in their childhood are exposed to these kind of incidents, it can, not universally, but can have an impact on their mental health in the long time. So what I would say is that, yes, it would be of concern to the court, and does it mean that there’s increased concern about risk in the future? I would say yes”
I find that the father has not adequately displayed to the court sufficient insight as to the possibility of family violence occurring into the future and the possibility of further him exposing the child to such violence.
Overall conclusion as to family violence
So where does this leave us?
The aunt holds a genuine concern as to the father’s anger, his failure to address such anger and that in time this anger may be used in the presence of or against [X]; therefore placing the child at risk.
It is not disputed that to date that anger has never been directed by the father towards [X].
[X] when asked by the family report writer whether “daddy ever made him feel scared” replied “no” and when asked whether “anybody ever made him feel angry or scared or sad” again said “no” ([90] and [91] family report).
The paternal grandmother and paternal step-grandfather do “not have any concerns about [X]’s safety in his father’s care” ([157] family report) and have never observed the father “to get angry with [X]” ([162] family report).
The mother did not have any concerns as to [X] being in the care of the father.
It is noted by the family report writer that whilst the father “has acted inappropriately at a time where he has been very emotional and frustrated. An example of this being the incident that occurred in February” ([184] family report) “there are no further incidents reported prior to or after this event that indicate that Mr Winship is a risk to his son” ([185] family report) with the family report writer observing that the mother who was “a very capable parent and a very intelligent woman” would not have allowed “[X] to spend time with Mr Winship especially overnight and unsupervised if she had any concerns of [X]’s safety” ([185] family report).
But the father has got angry and has been involved in varying degrees of family violence in at least three if not four relationships namely:-
a)The volatile relationship he had with his girlfriend when he was 18.
b)His relationship with Ms K in 2012.
c)His relationship with the mother in 2017.
d)His relationship (acquaintance) with Ms A in 2017.
In two of these instances, the family violence occurred in the presence of children (including [X]).
The father struggles to accept any responsibility for his part in the family violence and is quick to blame others or the circumstances surrounding the incident.
The father shows little by way of remorse or guilt for his actions.
The father has participated in some assistance for anger management but has been not honest or forthcoming in information to Mr P.
The father has failed to complete the counselling or the course.
Whilst orders can be made for the father to complete counselling and the course, it is unknown as to whether the father will take anything positive or productive from such interventions, as the father does not hold himself accountable.
I do however, order for the father to complete the course in the hope that the father develops some insight as to his behaviours.
If the father in time comes to the realisation that he requires help, then the father can obtain such help.
Further, the father does not recognise how his behaviours may have affected his partners, his family and most importantly his child.
The father is 100% confident that history will not repeat although there is no foundation for holding this view.
The expert psychiatrist opined that if the father “was not exposing the child to domestic violence in any future relationships, I would have no concerns the child would be at risk of significant harm in the care of the father on either a supervised or unsupervised basis”.
I do not know whether the father will expose the child to family violence in the future.
But the indicators are that is it a possibility and that possibility amounts to a risk.
The aunt said that “between July 2016 and January 2017…Mr Winship was rarely home….and left it to other’s to deal with …Ms N’s medical appointments” ([20] aunt’s March 2018 affidavit).
The father states that he “attended about one third of the appointments” ([33] father’s March 2018 affidavit).
At some point prior to 15 February 2017, the father sent a series of text messages to Ms J regarding the mother that read “I left her years ago emotionally. I don’t want her to die. But she is. Am I’m going to be fine”.
On 14 February 2017 (the day after the major domestic violence incident), the mother informed Dr G (as captured in her notes) “Hb (husband) lost work phone and now pt (patient referring to wife) has found this – ex HB (husband) has girlfriend, with child can’t wait to marry him as ‘he’ll be rich’”.
In her text message to the father dated 27 February 2017 the mother wrote, “I know what you’ve been doing with the hook ups and especially the last few months. Don’t jump out of our family straight into someone else’s bed”.
The father informed the family report writer that during the relationship he was seeing other woman and he had moved into the house of “one of these women” after the separation from the mother ([38] and [39] family report).
The aunt said, “at the time of separation, I was advised by Ms N and verily believe that Mr Winship was in a relationship with Ms A”.
In an email forwarded to the mother and Ms J on 13 March 2017 by Ms A, the following comments were made:-
a)“Ms J - interested to know lots from you if you are ok with that. When did you two start seeing each other? How intense was it? When did it end? And why? I’m really sorry about the intrusion but I want to see if after everything whether he was being honest with me yesterday”
b)“You should both know that I have been seeing Mr Winship for 15 months….Mr Winship has been living with me for a month now and all his things that Ms N has given him at my family home to which Ms N knows the address”
c)“With talking to Ms N yesterday I was going to convict him but to my kids horror I didn’t as he kept telling me that he just feels safe with me and he believes it is not healthy for him to move as he is suicidal”
d)“I AM SOOOOOOOOOOOO SOOOOOOOOOOO SORRY TO YOU MS N FOR EVERYTHING YOU HAVE BEEN THROUGH WITH THIS SITUATION – IT MUST BE REALLY DIFFICULT AS IT IS FOR AND I DON’T EVEN HAVE A CHILD OR PROPERTY WITH HIM…..”
This relationship was denied by the father “I know Ms A and she sought a relationship from me but I refused to have one with her while Ms N was alive” ([(1)(j)] father’s November 2017 affidavit).
By September 2017 the father’s new relationship (whoever that was with) had ended with the father informing the family report writer that he “is not in a relationship at the moment and is not interested in pursuing any relationships” as “his priority is [X] and getting settled with [X]” ([65] family report).
However, by the final hearing the father’s position had changed with the father informing the court that he has been in a new relationship for three to four months with Ms W and that [X] has met Ms W and her child ([83] and [84] father’s March 2018 affidavit).
Details as to Ms W and [X]’s relationship with Ms W are unknown as an affidavit by Ms W was not filed.
Conclusion
The father does not believe that his choice of relationships have anything to do with the parenting matter informing the family report writer that he “feels” the aunt “is making him pay for the pain he put her sister through by having the affair with other women when she was unwell” ([163] family report) and later writing “I regret my past actions when Ms N was alive but there were many reasons, but they are not relevant in respect of my capacity to care of my son [X]” ([(2)(c)] father’s November 2017 affidavit).
I beg to differ.
The father has not been straightforward to the court as to his relationships leading up to and since separation from the mother and more importantly, has not explained the extent of the child’s exposure to or involvement in these relationships.
There is insufficient evidence before the court as to Ms W and what role Ms W will play in the care of [X].
I find that the uncertainty of the father’s relationships is of concern, as an assessment cannot be made as to who has been in [X]’s life, who is now in [X]’s life, who will be in [X]’s life going into the immediate future and whether this will be a positive or negative influence on [X].
Coupled with the father’s lack of maturity, there is also no certainty as to whether the father will engage in relationships which are healthy for [X] and provide the child with the boundary and routines which will best meet the child’s needs.
I, therefore, find that this aspect of this consideration supports an order for the child to remain living with the aunt.
Alcohol use
The aunt is concerned about the father’s alcohol intake around [X] stating “on days he visits the house he would drink several beers and/or spirits and proceed to drive after the visit” ([96] aunt’s March 2018 affidavit).
In cross-examination, the father denied telling Mr P that alcohol was a problem for him.
But in the “Alcohol Use Disorders Identification Test: Interview Version” completed by the father in July 2017 prior to his sessions with Mr P, the father provided the following responses:-
a)In answer to “how often do you have a drink containing alcohol” the father chose “4 or more times a week”.
b)In answer to “how many drinks containing alcohol do you have on a typical day when you are drinking” the father chose “3 or 4”.
c)In answer to “how often during the last year have you needed a first drink in the morning to get yourself going after a heavy drinking session” the father chose “less than monthly”.
d)In answer to “has a relative or friend or doctor or another health worker been concerned about your drinking or suggested you cut down” the father chose “yes, during the last year”.
Mr P during the July/August 2017 sessions noted that the father rated high for “risky/hazardous drinking”.
The father, some three months later, told the expert psychiatrist “I drink one or two stubbies every two to three nights” and that he “denied any previous problems with alcohol”.
The expert psychiatrist noted, “the father denies previous problems with drugs or alcohol, although two previous convictions for driving under the influence belie this, although he denies it is an ongoing concern” (in 2008 and 2015 the father was disqualified for drink driving).
Conclusion
The father’s extent of alcohol use is uncertain.
The effect of alcohol on the father’s anger and mental health is unknown.
The expert psychiatrist recommends, “given the allegations and concerns about the father’s alcohol use, it may be prudent that the father make an undertaking not to indulge in the excessive use of alcohol whilst caring for the child”.
I agree and find that it is in the child’s best interest for an order that the father not consume alcohol in excess of the legal limit when [X] is in his care.
Family violence involving the child or a member of the child’s family
A finding has been made that there has been family violence in the presence of the child and a DVO exists in favour of the aunt against the father.
Whether it would be preferable to make the orders that would be least likely to lead to the institution of further proceedings
It is not disputed that final orders are required for the future parenting arrangements for [X].
Any other facts and circumstances
There are several other issues that have been raised during the course of the final hearing, which I will now deal with individually.
Financial arrangements for [X]
An underlying issue for the father is how the mother arranged her finances before and after her death.
This issue has contributed (prior to the mother’s death) to the relationship breakdown, the ongoing fights, the loss of trust by the mother and (subsequent to the death) the loss of trust of the aunt, the inability of the father to return to the Property A property and the unsuccessful attempts by the father to make a claim on the estate.
To understand this issue one has to look at the history of the financial arrangements:-
a)The parties each owned property at the time of cohabitation; the father had the Property B property and the mother had the Property A property.
b)The parties set up a joint account after cohabitation.
c)After the mother was informed that her illness was terminal, the mother received a large payout for total and permanent disability from her superannuation fund, which was deposited into the joint account.
d)The mother withdrew most of the payout of over $530,000 to her own account (without the father’s knowledge or approval) and the father on the date of separation withdrew the balance funds of just over $30,000 (allegedly without the mother’s approval or knowledge).
e)Prior to her death the mother prepared a will “for everything to pass to [X] and for the monies to be held in trust for [X] until the age of 25” ([134(c)] aunt’s March 2018 affidavit).
f)The father in re-examination was aware of the will and its contents.
g)Prior to her death, the mother “set up a Trust in order that [X] would be cared for thereafter. The Trust is there to pay for all of [X]’s schooling, holidays, clothing and generally to support his day to day expenses” ([51] and [52] aunt’s March 2018 affidavit) with the aunt and her siblings (Mr R and Ms I) as trustees for the estate ([134(d)] aunt’s March 2018 affidavit).
h)The father knew of the Trust in that “all of the assets which were in Ms N’s name, and bank accounts which were in joint names when she was alive have been transferred into a testamentary trust in the name of our son, [X]” ([34] father’s July 2017 affidavit).
i)On 2017 (the day of the mother’s death), the father unsuccessfully attempted to eFile in the Family Court an initiating application naming the mother as the respondent and seeking orders to freeze the assets of the mother pending a property division.
j)After the mother’s death, the aunt remained living at the Property A property caring for [X].
k)On the 28 June 2017 the father texted the maternal family:-
i)“I just need to understand what’s happening with the girls living in the house and build our bond and be there full time…..I just want to be in the house with my son.”
ii)“However, I don’t agree it’s [X]’s house. I secured the loan on that house with my home and contributed to funds. I started separation action some time ago to settle finances. I expect that this will happen sometime soon.”
iii)“Do any of you know what is happening with the car and the boat? Has Ms N left any instruction with that?”
iv)“I know there is still legal/settlement stuff to sort out…..to arrange settlement asap.”
l)On the 19 July 2017, the father’s legal practitioners unsuccessfully attempted to file a property application (naming the mother and the aunt as respondents) in the Federal Circuit Court, which was rejected as property proceedings cannot be brought against an estate.
m)On 1 August 2017, the father’s lawyer wrote to the aunt’s legal representatives stating:-
i)“Ms Wrays…. lives in the former relationship home rent free and has the use of the former relationship household goods and cars at no extra cost”
ii)“I am instructed to remind your client that the address was my client’s home prior to 13 February 2017 and he holds an equitable interest in it”
iii)“Your client’s (and others) continuing occupation and control over the property is being achieved in a mischievous way through the Domestic and Violence Court”
n)During the September 2017 family report interviews the father stated that there is “a dispute regarding Ms N’s Last Will and Testament, as he was on the mortgage for the house that had been left for [X]” ([46] family report).
o)The aunt says, “our previous estate lawyers indicated that Mr Winship wished to challenge Ms N’s will and benefits from her estate” ([134(c)] aunt’s March 2018 affidavit).
p)On 16 October 2017, probate was granted for the mother’s estate ([139] aunt’s March 20187 affidavit).
q)As at the date of the final hearing, there was nothing before the court as to any proceedings on foot by the father disputing the mother’s estate.
r)As at the date of the final hearing, there is an ongoing dispute with the mother’s superannuation fund as to whether:-
i)The Public Trustee will hold the superannuation funds for [X].
ii)The superannuation funds will be released to the aunt to be placed in the Trust.
iii)Any superannuation funds will be released to the father in response to the father’s claim made on financial and interdependency grounds.
The father maintains that part of the aunt’s motivation for seeking orders for [X] to live with her is financial.
The father informed the family report writer that the aunt was “withholding [X] for her own financial gains” ([11] family report).
This was re-iterated in the following exchange in cross-examination:-
Judge: “Now, you mentioned before that Ms Wrays has an ulterior motive?”
Father: “Yes”
Judge: “What is her ulterior motive? Tell me what you say is the ulterior motive…?”
Father: “I feel she’s angry and that it’s for money. It’s for a better financial position”
Judge: “And how is that going to – how does that come about that her doing all this is going to result in money for her?”
Father: “Purchasing of vehicles out of the fund and things of that nature”
Judge: “So you believe that Ms Wrays will go to the extent of devoting herself totally into this child so she can acquire some vehicles down the track?”
Father: “No, I don’t – I don’t agree with that”
Judge: “Well, tell me. I’m trying to understand why you say….that she’s motivated by money?”
Father: “That’s not the only thing she’s motivated by……she loves [X] very much. She is doing it, I think, on a sense – also in a sense of commitment to her sister, Ms N. I think she’s doing it because she feels that I treated Ms N very badly”
The aunt notes that the father “has maintained that I am driven by greed and seek to benefit from Ms N’s estate” and that “this is somewhat ironic given that I have expended my own monies caring for [X] and have sacrificed a lot, emotionally, financially and otherwise just to ensure that [X] is provided for into the future” ([138] aunt’s march 2018 affidavit).
Conclusion
I find that the evidence does not support that the aunt is financially motivated in any way in seeking orders for [X] to live with the aunt and, therefore, this is not a consideration that need be taken into account in determining the future parenting arrangements for the child.
If anything, the evidence suggests that it is the father who is financially motivated but this is not a consideration that will be taken into account when determining where [X] is to live.
Ability to co-parent
During cross-examination when asked whether the father and aunt could jointly parent, the family report writer replied “I would be concerned at the – I guess the anger and the tension between the parties of parenting together in the future”.
During the September 2017 family report interviews, the topic of family therapy between the father, the aunt and the paternal grandparents was canvassed ([69] family report).
This was also discussed in October 2017 during the psychiatric interview with it being noted that:
“as an aside, the death of a loved one, especially one so young and in the circumstances of having a young child, it is likely that strong emotions would be aroused in all those around, and emotions, in particular around conflicts, may well be heightened. If the court were to form the view that the child’s best interests is to have an ongoing meaningful relationship with the father, it may well be of benefit that the parties and perhaps the extended families of both parties, be involved in some form of family therapy, in the best interests of the child, as it is clear that all those involved have been driven in their actions by their obvious cherishing of this child and what it represents. Especially in circumstances of losing a mother so young this is a child in my view that deserves and would benefit from as much love as can be garnered in his ongoing life, as long as that love is safe and consistent. Any such therapy should only be undertaken if there is good will amongst all parties and their respective families”.
During cross-examination the family report writer explained “I think in both reports, myself and also the psychiatric report, we both talked about the need for probably quite intense family therapy for these parties to be able to get past some of these hurts, angers and mistrusts that they have on each other now so, without that occurring, I would be concerned about them being able to co-parent in the future”.
The father is agreeable to attending therapy with the paternal grandparents even though “he was still very upset at the role his mother has had in this process and the documents she has written” but that “he was able to understand that we may need a person involved to help transition [X] into his care, someone who could tell him [X]’s routine and assist with any transitional issues and his mother may be the best person to help with this” ([70] family report).
The paternal grandmother and the paternal step-grandfather are “both open to the idea of attending family therapy” with the father “to try and mend their relationship” ([166] family report).
The father, however, did not agree to attend any family therapy with the aunt.
The aunt indicated to the family report writer “she has lost trust in” the father ([131] family report).
Conclusion
Whilst I find that it would be in everyone’s best interests (especially for the child) to attend family therapy, there is no use ordering a process that neither party is prepared to commit to and where further tensions may arise due to parties feeling forced into such a process.
However, what this consideration highlights is that the parties do not have the capacity to co-parent and, therefore, the party who has the primary care of the child will be the one with almost all of the responsibility in parenting the child.
Based on the findings already made, I find that the more suitable party to be responsible for the parenting of [X] is the aunt.
This consideration, therefore, supports an order for the child to remain living with the aunt.
Expressed views for child’s future parenting
Mother
The father states, “before her death, Ms N was very clear that she wanted me to continue to care for [X]. Ms N was very clear in her recognition of my love for our son. I had no intention of ever removing [X] from Ms N while she was ill and dying” ([79] father’s July 2017 affidavit).
In the mother’s will dated 7 March 2017, the mother left guardianship of [X] to the father ([186] family report) with Clause 13 reading “if Mr Winship fails to survive me I appoint Ms Wrays and Ms I as guardian of [X]”.
However, the mother had her doubts.
In text messages to the father after the 13 February 2017 incident the mother wrote:-
a)27 February 2017 “What has happened cannot be undone. We need to figure out how the future looks”
b)2 March 2017 “What will ruin [X]’s life is having a dead mother and a father who is absent. In the way that having an alcoholic self centred, selfish, psychologically unwell piece of shit for a father fucked you up. Don’t do that to our son. Get well and be present in his life and raise him. But put his needs first”.
In cross-examination when asked whether the mother was “worried in the future about you being the primary carer for [X], isn’t she” and was “worried because she thinks you won’t be able to manage your temperament when you’re caring for [X]” the father responded “yes”.
Aunt and other family members
In the days following the mother’s death, the father was involved in several text exchanges with the maternal family as to future arrangements for [X]:-
a)24 June 2017: “Really like to arrange a permanent lifestyle ASAP” to which Ms I (mother’s sister) responded “Let’s sit down towards the end of next week and discuss how we go forward”.
b)27 June 2017: “Could we come to an agreement where my son can come and live with me starting today or tomorrow please.”
c)27 June 2017: “As soon as I can have full care to protect him from these things the better. I will go and see a lawyer today to see if he can be separated from me still.”
d)28 June 2017: “I really need my son back today in my care….It’s not acceptable to have him living away from me at this point and for people who are not his parents to be controlling this situation and the damage it could be doing to him. Please tell me where my son is. I am heading down to the police station now to try and get him back” to which Mr R (mother’s brother) responded “We’ll try and help you be [X]’s full time parents as best as we can, as quickly as we can…We will make [X]’s House available to you as soon as possible, so you can decide if you wish it to be his family home and live there with him…..Please remember that we are all here for [X], AND FOR YOU, to help out with the immediate transition, and for the rest of their lives. We are all family mate”.
e)28 June 2017: “My priority at this point is to be with my son, and keep his routine as close to normal as I possibly can. I honestly feel that moving him for the house into a new environment is not in his best interests…..I just want to be in the house with my son….My priority is to be the primary caregiver. Then to have his living arrangements…thanks if you can let me know asap, I’d be really grateful about housing arrangements”
On 28 June 2017 the maternal family notified the father by text that until he amended the DVO, that they did “not have the authority written or verbal to release [X]” into the father’s care.
The father then commenced parenting proceedings on 27 July 2017.
The father informed the expert psychiatrist in October 2017 that “when the mother passed away we had a good discussion….and then it felt like the lawyers got involved and everything went to shit”.
Conclusion
Whilst the views of the mother, aunt and family provide an historical context of what they may have been considered appropriate for [X]’s future parenting arrangements at the time, it is necessary for the court in determining the parenting arrangements to consider what is now in the best interests of the child.
I, therefore, give no weight to the views expressed by the mother, the aunt or other family members in determining the future parenting arrangements for the child.
Family report recommendations
In essence, the family report supports the proposition that the child live with his father; a position reiterated by the family report writer in cross-examination.
This recommendation is against a backdrop that the father has dealt with his anger issues and mental health issues; which is clearly not the case.
In looking behind the recommendation, it appears that it otherwise does not have much to support it.
The child has major attachments to both the father and the aunt, with the primary attachment being with the aunt as the child has been in her care for the past 18 months.
According to the family report writer, because of [X]’s ASD:-
a)Any transition to care can occur without too much impact “it sounds horrible and there’s no nice way to probably say this…. I feel that the ASD can sometimes, with children of this age – almost protect them….from major transitions. So they can – it’s almost – how do I – it’s hard to sort of word it. Basically, I feel that they can – it’s a traumatic experience for them, but I feel that they adjust to it almost better, because they do just get into that new pattern, that new routine…… so I kind of feel, in this case, that the ASD can protect him a little bit with those transitions, if that make sense…”
b)“I think he will just kind of attach to that closest person, or the person that’s in his life the most, just to get that stability and that regular routine”
Conclusion
I find that I can only give limited weight to the recommendation by the family report writer as to with whom the child is to live and that it is to be considered in light of the other findings.
I find that the family report writer provides an insight into the ability of [X] to adjust, no matter what orders are made, provided routine is maintained.
Overall conclusion as to considerations as to live with arrangements for child
In written submissions, the father states, “to make the orders” the aunt “seeks the court would need to come to the conclusion that there is an unacceptable risk of harm if the child lives with the father”.
I disagree.
What the court is required to do “to make the orders” is to take into account the applicable primary and additional considerations contained in section 60CC, to have regard to the objects of Part VII and the principles underlying it in section 60B, then make parenting orders which in accordance with section 60CA have regard to the best interests of the child as being of paramount consideration.
I find that overall, the findings made in the applicable primary and additional considerations support an order that it is in the child’s best interests for [X] to remain living with the aunt.
In essence the findings support that:-
a)The father poses a risk as the child may be exposed to family violence in the future.
b)The child may lose his relationship with extended family members if living with the father.
c)The aunt is better equipped to meet the child’s counselling, medical and educational needs.
d)The aunt is better able to provide the child with stability, structure and routine to meet the child’s needs; especially given [X]’s medical issues.
e)The aunt’s lifestyle is more suited to care for the child and the aunt has the financial resources necessary to support the child.
f)The aunt shows the level of maturity and commitment needed to provide for a child with high needs.
g)The father has not adequately addressed his anger and mental health issues.
I, therefore, find that it is in the child’s best interest to live with the aunt.
Time with father
It is the aunt’s intention to sell the Property A property after [X] completes his first year of schooling and for the aunt and child to move to the Region 3 region in New South Wales or the Region 1 of Queensland in order for the aunt to live with her partner Mr T ([140], [146], [147] and [148] aunt’s March 2018 affidavit).
As to whether [X] could adjust to a change in location the family report writer during cross-examination said, “usually, we will find that children will adjust to change and transitions of things like property or houses. We just want to try and have a – kind of an attachment figure or a person stable in their life at this age, especially with his diagnosis. So look, ideally, children stay in an environment that they know, but it is very possible for them to transition in property quite successfully”.
The aunt says that such a move will not interfere with her proposal of the father spending alternate weekends and half school holidays with the child as “Mr T and I are fully prepared to drive [X] to a half way meeting point at the commencement and conclusion of time spent with” the father and “we are prepared to collect [X] from” the father’s residence ([149] aunt’s March 2018 affidavit).
The family report writer in cross-examination supported the spend time with arrangement proposed by the aunt for the father in the event that the child remained in the aunt’s care.
The father’s proposal is that he spend time with the child every weekend and all school holidays with the aunt to care for the child from Monday to Friday during school terms.
Conclusion
I find that the father’s proposal of spend time with arrangements is reflective of his lack of insight as to what is best for [X].
The proposal provides for the aunt do all the hard work during the school week (attending to medical appointments and school issues) which, leaves the father as the “fun” parent to care for [X] on weekends and school holidays.
This is not parenting and supports the father’s lack of commitment to the child.
I find that the aunt’s proposal is child focussed and that provided the aunt does not move more than 200 kilometres from the Brisbane CBD, then the fortnightly weekend time and half holiday time can take place between the father and the child.
Such an arrangement will allow the meaningful relationship between father and son to grow and will provide the father with an opportunity to be involved in every aspect of the child’s life.
Orders have been made which reflect the changeover arrangements depending on where the father chooses to live.
Parental responsibility
Where the parenting dispute in not between parents then the presumption of equal shared parental responsibility as set out in section 61DA does not apply.
The father’s lawyer in legal correspondence to the aunt dated 4 August 2017 expressed the view that the father has in essence all parental responsibility for [X], as “Ms Wrays is not the parent of the child. Although there is no provision specifically on point, it appears from the commentary of the CCH Family Law and Practice, that where both parents of a child have parental responsibility for a child, the death of one of the parents results in the other have the entire parental responsibility for the child”.
This is not accurate.
Where there is another person involved in the care of a child, parental responsibility orders (including shared parental responsibility orders) can be made in favour of a person who is not a parent of the child.
Section 64B(2) provides that a parenting order may deal with:-
(c) the allocation of parental responsibility for a child;
(d) if 2 or more persons are to share parental responsibility for a child – the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility;
Parental responsibility is defined in section 61B as:-
“in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.”
The effect of a parenting order which allocates parental responsibility is outlined in section 61D:-
(1) A parenting order confers parental responsibility for a child on a person, but only to the extent to which the order confers on the person duties, powers, responsibilities or authority in relation to the child.
(2) A parenting order in relation to a child does not take away or diminish any aspect of the parental responsibility of any person for the child except to the extent (if any):
(a) expressly provided for in the order; or
(b) necessary to give effect to the order.
The aunt is, therefore, able to have parental responsibility, whether sole or shared, with the father.
The question then is what parental responsibility should the aunt have for [X]?
Conclusion
I find that it is in the child’s best interest for the aunt to have sole parental responsibility, but that in exercising this responsibility the aunt is to consult with the father before making the final decision.
I base this finding on the following:-
a)The aunt and father are estranged.
b)The aunt is afraid of the father and does not trust him.
c)Family therapy is unlikely to occur.
d)The parties do not communicate effectively.
e)The aunt has, since the mother’s death, been responsible (despite requests by the aunt of involvement by the father) for major long-term decisions for [X] regarding schooling and health.
f)The aunt has kept the father informed as to the decisions.
g)The decisions made by the aunt have been appropriate and child focussed.
I, therefore, order sole parental responsibility to the aunt.
I certify that the preceding five hundred and twenty-one (521) paragraphs are a true copy of the reasons for judgment of Judge L. Turner
Date: 21 September 2018
Key Legal Topics
Areas of Law
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Family Law
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