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Garcia & Lindsay [2016] FCCA 1099 (7 April 2016)

Last Updated: 30 June 2016

FEDERAL CIRCUIT COURT OF AUSTRALIA

GARCIA & LINDSAY


Catchwords:
FAMILY LAW – Parenting – children aged 7 & 5 living with their mother – where the mother is the children’s primary attachment figure – where there is episodic family violence in the relationship between the mother and her current partner and the children have been exposed to it and are clearly troubled about it – where the father proposes that the children live with him – order made that the children live with the father.


Legislation:


Applicant:
MR GARCIA

Respondent:
MS LINDSAY

File Number:
NCC 509 of 2015

Judgment of:
Judge Terry

Hearing dates:
29, 30 & 31 March & 1 April 2016

Date of Last Submission:
1 April 2016

Delivered at:
Newcastle

Delivered on:
7 April 2016

REPRESENTATION

Counsel for the Applicant:
Ms Kearney

Solicitors for the Applicant:
Powe White Family Lawyers

Counsel for the Respondent:
Mr Graham

Solicitors for the Respondent:
Fielden & Associates

Solicitor Advocate for the Independent Children’s Lawyer:
Ms O’Rourke

Solicitors for the Independent Children’s Lawyer:
Legal Aid NSW

ORDERS

(1) All previous orders are discharged.
(2) The children X born (omitted) 2009 and Y born (omitted) 2010 shall live with the father.
(3) The parties have equal shared parental responsibility for the children.
(4) Until the first weekend in Term 4, 2016 the children spend time with the mother from after school on Friday until the commencement of school on Monday each week.
(5) From the first weekend in Term 4, 2016 the children spend time with the mother as agreed and in default of agreement as follows:
(6) In the event that Father’s Day falls on a weekend when the children would be with their mother, the children spend time with the father on the weekend of Father’s Day.
(7) Unless otherwise agreed between the parents in writing, when the children are in the care of the mother they will stay overnight at the residence of the maternal grandmother.
(8) The mother be prohibited by injunction from bringing the children into contact or allowing them to communicate with Mr A.
(9) Where the changeovers are not otherwise at the children’s school the mother or her nominee shall collect the children from the father’s residence at the commencement of her time and the father shall collect the children from the maternal grandmother’s house at the conclusion of time, if the mother’s time is occurring in accordance with order 4 and 5, otherwise at the mother’s residence.
(10) Each parent forthwith authorise the principal of the school that each child attends to provide the other copies of the school reports, school photographs, merits cars, school newsletters, notices of excursions and the like to each parent.
(11) Each parent be at liberty to attend all sporting events, extracurricular activities and school based activities such as assemblies and parent/teacher interviews that may from time to time involve the children or either of them.
(12) Each parent must advise the other of the their current address, landline telephone number and/or mobile telephone number and they each must advise the other parent of nay change to these particulars within 48 hours of such a change.
(13) Notwithstanding any other order the children shall commence living with the father in accordance with these orders at 4.00pm on 17 April 2016 being the second Sunday of the Term 1 school holidays in 2016.
(14) The Independent Children’s Lawyers application for costs against the father is dismissed.

IT IS NOTED that it is not the intention of the court that the children shall be restricted from spending time with the mother in the mother’s own home unless there are reasonable grounds to believe that there is a risk the children will be exposed to family violence in that home.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

NCC 509 of 2015

MR GARCIA

Applicant

And

MS LINDSAY

Respondent


REASONS FOR JUDGMENT

INTRODUCTION

  1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read
  2. In this matter I have a dispute over parenting arrangements for children X, who is seven and Y, who is five. The parents agree that they should have equal shared parental responsibility but are in a dispute about which parent the children should primarily live with.
  3. At present the children are living with the mother and spending time with the father on alternate weekends and during school holidays.
  4. The father’s proposal is that the children should live with him and spend time with the mother. He also seeks an order that the mother be restrained from bringing the children into contact with her partner Mr A. Mr A’s correct surname is Mr A but he is frequently called Mr A and I intend to call him Mr A in this judgment.
  5. The mother and Mr A have two children, A and B, who are 15 months and a few weeks old respectively. They do not currently live together but they propose to do so once the mother finds a suitable house to rent in the (omitted) and the mother proposes that X and Y live in that household and spend time with the father.
  6. At the end of the hearing the proposal of the Independent Children’s Lawyer was that the children should live with the father and spend time with the mother.
  7. The different perspectives in the case are these. The father shares the view of the maternal and paternal family that Mr A is an undesirable person to be around the children and that he has perpetrated family violence in the past to which the children have been exposed and is highly likely to do so again in the future.
  8. The father acknowledged that he had not been as good as he could have been in the past in terms of being involved with the children. He has not done things such as go to their school or prioritise his work over his children. However he said that he was willing to change and that he had started to make changes in Term 1 of this year by getting involved with the children’s school. It was his case that the best future option for the children was to live with him and spend time with the mother provided that Mr A was not there.
  9. The mother said that everyone agreed that she was a good mother and that it would be extremely difficult for the children to cope with separation from her and their young siblings. She does not accept that Mr A is a problem.
  10. In her affidavit the mother said this:
  11. However it is the mother’s view that Mr A is not the person that his criminal record might suggest and she alleged there has been no family violence in her relationship with Mr A for a number of years.
  12. The mother said that the last three incidents involving allegations about Mr A, which I will call the “black eye incident”, the “tyre incident” and the “wallet incident”, did not involve any violence or wrongdoing by Mr A and that everyone had misinterpreted what happened. She said that Mr A was hardly drinking at all now and there was no risk of him being violent in her home.
  13. One of the difficulties for the mother is that there is no obvious motive for the father, or indeed his family, to make trouble for the mother or to try to take the children away from her without reason. This is not a case in which the parents have been at loggerheads over child support or time with the children since separation. The father is not a violent person. He does not engage in denigration or abuse of the mother. He did not do so before separation and he has not done so since. He has only recently and perhaps even reluctantly, put himself forward as an alternative primary carer for the children.
  14. The paternal grandmother likes the mother and has a good relationship with her.
  15. I am satisfied that neither the father, his parents, or indeed the maternal family have a hidden agenda in this matter but are all motivated by what they believe to be best for the children.
  16. The issue for me is whether there is any merit in the mother’s claim that Mr A has been misjudged because of his past or whether the situation the mother offers the children is such that I must consider overriding their primary attachment to their mother and changing their residence.

The evidence

  1. The father relied on his affidavit filed on 26 February 2016 and the affidavits of his mother Ms V and his girlfriend Ms C also filed on 26 February 2016.
  2. The mother relied on her affidavit filed on 23 March 2016 and a proof of evidence from Mr A which was marked as an exhibit.[2]
  3. The Independent Children’s Lawyer called the maternal grandmother, Ms J, to give evidence[3] and a Family Report was prepared by Dr T, a family consultant.
  4. All of the witnesses were cross-examined.

An assessment of the witnesses

  1. The father was a good witness. He seems a quiet and reserved person. He was non-defensive in the witness box. He admitted that he had been at fault in the past relation to communication difficulties with the mother because he had not been willing to engage. He said that he realised that he needed to be more mature. He readily conceded that the mother was a good mother and that if it was not for the family violence issue he would not be pressing for a change of residence.
  2. The paternal grandmother was the same type of witness: frank and non-defensive.
  3. There were numerous problems in relation to the mother’s evidence.
  4. The mother’s affidavit is a problem; its goal appears to be to try to discredit the father at every turn rather than to be open and honest about the mother’s own issues. However as I indicated to the mother’s counsel during the trial I am not going to hold that against the mother. I do not know how that has come about and it may partly be a drafting issue.
  5. However leaving that aside, the mother was not a good witness and I do not accept the submission by her counsel that she was frank and open.
  6. I will refer later on to some of the mother’s evidence about the domestic violence incidents which is problematic but the evidence in paragraph 74 of her affidavit is just plain incorrect. She said as follows:
  7. And yet the mother admitted in the witness box that a violent incident occurred in January 2014 involving a lamp. The incident is also referred to in the DoFACS material and I will come back to it later.
  8. Mr A was also not a good witness. I do not accept, for reasons I will explain later, his evidence about the tyre incident.
  9. The family report writer made a comment about Mr A which struck a chord with me because this is how he was in the witness box as well. She said:
  10. Mr A was pretty much the same in the witness box. Whether he cannot remember because of alcohol or whether it is convenient for him not to remember I don’t know but he was not a satisfactory witness.
  11. The maternal grandmother appeared in answer to a subpoena by the Independent Children’s Lawyer.
  12. It is obvious that she dislikes Mr A. She said that this was because she had “seen him in action” and it would appear that she witnessed part of the assault on Melbourne Cup Day 2012.
  13. However to her credit the maternal grandmother did not just provide evidence which was all black against Mr A. She acknowledged positive things about him: for example, that he was good with A. She tried in that respect to be fair. I consider her evidence valuable and I am sure, despite what the mother may think, that it was not especially easy for her to come here and give evidence contrary to her own daughter.

Background

  1. The mother is 25. She grew up in (omitted). She had a short relationship with Mr A, who grew up in (omitted) when she was about 17. It ended in late 2007 and Mr A was later charged with stalk/intimidate over a threatening message he sent to the mother.
  2. In April 2008 the mother commenced a relationship with the father who was then in the (employer omitted). They went on to have two children: X, born on (omitted) 2009, and Y, born on (omitted) 2010.
  3. The parties lived in Sydney and (omitted) when they were together and were living in (omitted) when they separated. They separated in 2011 so the children were not very old at that time and from the date of separation the children lived with the mother although there may have been a period of time when the parents continued to live under one roof.
  4. In June 2012 the mother resumed her relationship with Mr A and in September 2012 she and Mr A commenced living together in (omitted). At around this time the children began spending time with the father each alternate weekend; from the documents it was from Thursday afternoon to Sunday afternoon. The father was then living with the paternal grandparents in (omitted) which is a suburb of (omitted) and the paternal grandparents formed a close relationship with the children.
  5. The mother and Mr A moved to (omitted) fairly soon after they commenced cohabitation and on Melbourne Cup Day 2012 Mr A came home heavily intoxicated and assaulted the mother.
  6. According to the mother’s affidavit it was not such a serious assault but the police records tell a very different story. Mr A was charged but when the matter went to court no evidence was offered and the charge was dismissed.
  7. There was no evidence before me that the father was aware of this incident at the time. He might have been but there was no evidence before me about that.
  8. The mother and Mr A separated after this incident but they resumed cohabitation fairly quickly. They stayed in (omitted) and X commenced school at (omitted) Primary School in January 2014.
  9. In due course the father left the (employer omitted) and in August 2014 he commenced working as a (occupation omitted) in (omitted) and began living in (omitted) which is about 25 minutes from (omitted). He continued to see the children each alternate weekend but spent this time with them at the paternal grandparents’ home in (omitted).
  10. In August 2014 there was another incident involving the mother which I will call the “black eye incident”. I will refer to it in more detail later but it resulted in the Department of Family & Community Services (DoFACS) asking Mr A to sign a safety plan stating that he would not attend the mother’s home after he had been drinking.
  11. In September 2014 Mr A obtained a job in (omitted) and moved there. The mother was about seven months pregnant with his child at that stage. She remained in (omitted) with X and Y and commuted to (omitted) to spend time with Mr A.
  12. A was born in (omitted) 2014 and in February 2015 the mother relocated to (omitted) to live with Mr A.
  13. There was dispute about whether the father tacitly consented to that move. I cannot make a finding about that but the mother’s relocation was rapidly followed by the father commencing proceedings in this Court. He sought an order that the mother be obliged to return to live in (omitted). In the alternative he sought an order that the children live with him but his primary intention originally was simply to have the mother come back to (omitted).
  14. I conducted an interim hearing on 7 April 2015 and I ordered that the children continue to live with the mother in (omitted) and spend time with the father each alternate weekend and I also ordered the preparation of a Family Report.
  15. In May 2015 there was an incident in (omitted) which I will call the “tyre incident”. It resulted in Mr A being charged with destroy or damage own property and I will refer to that again later as well.
  16. The Family Report was prepared and released but the matter did not settle and it was listed for hearing in March 2016.
  17. There were some changes in the family arrangements after the matter was listed for hearing.
  18. In late November 2015 the mother informed the paternal grandmother that Mr A had lost his job and/or that she and Mr A wanted to move back to the (omitted). She asked the paternal grandmother to help her care for X and Y pending her being able to move back and between about late November 2015 and late January 2016 X and Y lived with the father/paternal grandparents and spent some time with the maternal grandmother in (omitted) and also with the mother.
  19. In late January 2016 the mother moved back to (omitted) and began living with the maternal grandmother. X and Y joined her there and recommenced spending time with the father each alternate weekend at the paternal grandparents’ home. They commenced school at (omitted) Public School at the beginning of the school year. It is Y’s kindergarten year.
  20. The mother gave birth to her second child with Mr A, B, on (omitted) 2016.
  21. The mother is still living in (omitted) with her four children. Mr A is still living in (omitted) but he regularly travels down to this area and the mother and A and B and if they are with her X and Y, spend some time with Mr A. This involves the mother travelling somewhere away from (omitted) because the maternal grandmother will not have Mr A at her home.
  22. The mother cannot remain living with the maternal grandmother. There is only one room available for her use as there are other adult children in the home and moreover she cannot live in that home with Mr A.
  23. The mother is looking for a home somewhere in the (omitted). It would appear from the evidence that emerged in the hearing that there is little availability of accommodation in (omitted), which is a very small country town and the mother is looking in places like (omitted), (omitted) and (omitted).
  24. When the mother locates a home she proposes that Mr A will live with her and the children. It will also mean a change of school for the children.
  25. Mr A is 25 and he has a very concerning criminal record.
  26. His first convictions were in 2005 when he was a juvenile. He was convicted of two counts of assault involving an act of indecency for which he was placed on a 12-month bond.
  27. He was convicted of destroy and damage property times two in November 2006, destroy and damage property times two in December 2006 and assault occasioning actual bodily harm times two in November 2006 and for these offences in combination he was given what appears to be some form of suspended sentence or control order which did not expire till May 2009.
  28. In 2007 Mr A was convicted of drive with mid-range PCA and in November 2007 he was charged with stalk/intimidate over the threatening text message he sent to the mother.
  29. In 2008 he was convicted of assault police times two and common assault times two and was sentenced to a term of imprisonment with a non-parole period. In October 2008 he was charged with intimidating a police officer for which he was also sentenced to a term of imprisonment.
  30. In 2009 he was convicted of contravening an ADVO, driving unlicensed for which he was disqualified for 12 months, shoplifting and affray and he was also charged with common assault and again he got a period of imprisonment.
  31. In December 2011 he was convicted of stalk/intimidate, wilful or obscene exposure, custody of a knife in a public place, drive disqualified and also using an unregistered motor vehicle which pales into insignificance given the other charges. He was fined and received a suspended sentence on that occasion and he was ordered to do drug and alcohol counselling.
  32. Then in July 2012, around the time he recommenced his relationship with the mother, he was charged with excluded person re-enter or attempt to re-enter premises and I think from the evidence we heard in the trial that involved an incident at a pub.
  33. In January 2013 he was charged with common assault arising out of the Melbourne Cup Day incident involving the mother but when that matter came before the court no evidence was offered and the charge was withdrawn.
  34. In May 2015 he was charged with destroy or damage own property over the tyre incident. He was fined and put on a section 9 bond for 12 months.
  35. Mr A has an extremely concerning criminal record and to be frank I cannot imagine any separated father being too happy about a man with that sort of criminal record living in the same household as his children.
  36. The father has no criminal record that I know of. The family report writer mentioned some traffic incidents but nothing was put before me about that. He is still living in (omitted). He is working as a (occupation omitted). He wants to continue living in (omitted). He said that he had spoken to his employer about getting a change in his hours if he needed to because he had the care of the children.
  37. The father also said that if it was the only way he could provide care for the children he would be willing to give up his job. He intends to keep the children at (omitted) Public School if they live with him.
  38. The father has very recently formed a relationship with Ms C who lives in (omitted). She has met the children and has spent some time with the father in (omitted) but that relationship is in very early days. Who knows where it will go?
  39. Ms C gave evidence in the proceedings. I did not mention her in relation to the witnesses earlier but she was calm and pleasant. There was an issue raised about a former partner of hers perhaps being a bit of a threat to the father but nothing came of that during cross-examination.

The children’s best interests

  1. Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and to determine their best interests I must have regard to the matters in s.60CC(2) and (3) of the Family Law Act.
  2. The primary considerations in s.60CC(2) are the benefit to the children of having a meaningful relationship with both of their parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
  3. S.60CC (2A) says that I have to prioritise the need to protect the children over the meaningful relationship consideration but s.60CC(2A) does not really come into play in this case and I say that because the meaningful relationship consideration does not assist me to determine this case.
  4. If the children live primarily with the mother they will continue to see the father. He will continue to be significant, important and valuable to them and they will have a meaningful relationship with him. The mother is not hostile to the father. She has always encouraged time.
  5. If the children live with the father I am similarly satisfied that they will still have a meaningful relationship with the mother. The father in turn is not hostile to the mother. He readily conceded in the witness box that she was a good mother. The children’s relationship with her will be different if they do not live primarily with her but it will still be meaningful.
  6. The second primary consideration though – the need to protect the children from harm as a result of being subjected or exposed to abuse, neglect or family violence – is one of the central issues in the case.
  7. There is no risk of the children being exposed to or subjected to abuse, neglect or family violence in the father’s care. A concern was raised in the mother’s affidavit about whether the father’s girlfriend’s former partner posed a threat to the father which might lead to the children being exposed to family violence but nothing came of this in cross-examination and there was no reference to it in submissions.
  8. There is however a risk of the children being exposed to family violence in the mother’s care because of the mother’s relationship with Mr A and to explain why I am of that opinion I will have to go through the evidence in some detail.
  9. I must consider whether there is evidence that family violence has occurred in the relationship and if so the extent to which it has occurred (and the mother admits that some has occurred), the likelihood of it occurring in the future and the mother’s capacity to protect the children from it.
  10. In terms of whether family violence has occurred and if so to what extent, there was no dispute that two acts of family violence had occurred.
  11. One was in November 2007 when Mr A sent the mother some text messages, one of which said:
  12. The mother reported this to the police and Mr A was charged with stalk/intimidate but she told the family report writer that she only reported it because her mother made her. In cross-examination she tried to resile from this and say that the family report writer had got it wrong but the family report writer was cross-examined about this and checked her notes and I am satisfied this is what the mother told the family report writer.
  13. It is of concern to me that in her affidavit the mother did not address what happened on that occasion in detail. She just said Mr A had sent some threatening text messages. She also said that no conviction was recorded which is not correct.
  14. Mr A referred to the messages as “stupid, threatening text messages” and said that he was “young and silly”.
  15. The mother and Mr A got back together in July 2012 and on Melbourne Cup Day 2012 Mr A assaulted the mother.
  16. In her affidavit the mother said that there was an incident and her arm was bruised and that was all there was to it. The entry in the police records tells an entirely different story.
  17. The mother was asked to read the entry. She was given plenty of time to do so. No one rushed or hurried her. She was asked at the end of reading the entry if she disagreed with anything that was in it and she mentioned a couple of matters, including that contrary to the entry X was not there but she did not suggest that the description of what happened to her was wrong.
  18. The police entry states that on that day Mr A returned home from the pub and hit the mother in the head with an esky and after the mother told him to leave grabbed her by the hair and hit her in the middle of the back. He also punched the mother’s left cheek with a closed fist and the mother retaliated by grabbing and slapping him. He kicked open the front door and kicked the TV. The mother said “Don’t smash my shit. You’ve already cost me enough,” and Mr A threw the TV to the ground.
  19. The mother went to pack some things so that she could leave and Mr A tried to physically stop her. There was a tussle over what the mother called her valuables and the maternal grandmother referred to that as well.
  20. After the mother left the police were called. They observed a small amount of bruising on the mother’s arm and obtained an urgent apprehended domestic violence order.
  21. The maternal grandmother gave some evidence about what she remembered happened on that day.
  22. It was a very serious assault according to the police entry. The mother minimised it to the absolute extent she could in her affidavit. She was also adamant that the children did not witness the incident. She said that they were in their room which was bad enough because with that sort of dispute going on with people assaulting each other and a TV getting thrown to the ground, the children could hardly have been unaware of it and they would have been frightened. However the police entry says that X witnessed some of the incident.
  23. There is no doubt at all that this was an extremely serious incident of family violence which the children were either directly or indirectly exposed to.
  24. In her affidavit the mother said that she separated from Mr A after this incident and that he completed a drug and alcohol course. The evidence does not support a finding that he did such a course. There is evidence of him doing drug and alcohol counselling after his release from jail in 2010 but not of him doing it after the Melbourne Cup Day incident.
  25. Mr A had very little to say about this incident in his proof of evidence and he said during cross-examination that he did not remember much about it. He said that he remembered knocking the TV over and said that X was not present during what he described as “the actual argument.”
  26. Mr A either very much minimised the incident or said that he did not remember it. He said in his proof of evidence that he turned to his family after that to help him make changes but it was a bare assertion. He provided no detail and I have no means of knowing what to make of that. It could just be words.
  27. It was the mother’s case in her affidavit that there had been no family violence in the relationship since then but for a variety of reasons I do not accept that.
  28. I first want to come to an incident which I will call the black eye incident.
  29. In August 2014 the mother was seen with a black eye and DoFACS became involved. The mother blamed the maternal grandmother the fact that this occurred but I do not accept that it was the maternal grandmother’s doing because there was evidence that Y made a disclosure to his teacher and teachers are mandatory reporters, so if nothing else it would have come to the attention of the DoFACS that way.
  30. Y told his teacher that “B hit Mum with keys, and hit her in the face.” He also said that Mr A climbed in a window and broke his Mickey Mouse toy. On the same day the school observed the mother with a black eye and the mother said “It’s not what you think.”
  31. DoFACS workers went to the mother’s house. She told them that the black eye was the result of an accident; she had been holding Y, she had moved and Y had moved and her eye had been injured.
  32. That story might be true. What Y said and the black eye might be simply a congruence of events. Perhaps something happened with Mr A and around the same time Y did accidentally injure the mother’s eye.
  33. I cannot make a finding on the state of the evidence that Mr A caused the injury to the mother’s eye. However after DoFACS became involved they put Mr A on a safety plan; they required him to sign a document saying he would not go the mother’s house if he had been drinking.
  34. The question which then arises is why did they do that? Obviously DoFACS would have had a concern about Mr A because of knowledge of the earlier incidents and his criminal record and it further emerged that regardless of culpability for the black eye there had been problems in the mother’s home around that time with Mr A coming home intoxicated. The mother admitted in the witness box that not long before the black eye incident Mr A came home paralytic drunk.
  35. The mother also revealed during cross-examination that there had been an incident in January 2014 which fits within the definition of family violence. That is why I say that the mother’s assertion in her affidavit that there was no family violence after November 2012 is false.
  36. The mother admitted that in about January 2014 Mr A had an argument with her and he sideswiped a table - and that is how she described it with her hand in the witness box - a lamp hit the wall and the mother left with the children.
  37. Even if that is all that occurred it is family violence but there is reference to this incident in the DoFACS material.
  38. During an interview DoFACS had with X she mentioned an incident that had happened in the hallway where a lamp had been damaged. DoFACS asked the mother about this and according to DoFACS records the mother said:
  39. The fact that the mother makes no mention of this incident in her affidavit and that it only came to light as a result of cross-examination and what is in the DoFACS records is gravely concerning.
  40. We then move on to the 2015 tyre incident in (omitted).
  41. In May 2015 police were called to the home in (omitted) which the mother was sharing with Mr A after neighbours reported that Mr A had slashed the mother’s tyres and rammed her car. Police spoke to Mr A and reported him saying:
  42. Mr A was charged over this incident and in July 2015 he was convicted of destroy or damage own property (the car was registered to Mr A).
  43. When the mother and Mr A gave evidence about this incident in at the hearing in March 2016 the story they told was that just prior to the incident the police had stopped the mother near (omitted) on her way home to (omitted) and told her that she had bald tyres. They claimed that the police told the mother to take the car home to (omitted) and not drive it again until the tyres were replaced. They said that on the morning of the incident the mother drove the car again with bald tyres and when Mr A found out he became angry and as a way to stop the mother driving an unsafe car he stabbed the tyres.
  44. Not only is that not what Mr A told the police in 2015, it is not what is contained in the Facts Sheet handed up when he pleaded guilty in July 2015. It is also not consistent with what the mother and Mr A told the family consultant at the report interviews which took place not long after the incident occurred.
  45. I do not accept the story the mother and Mr A came up with for the hearing and it is gravely concerning that the story they came up with effectively required the mother to shoulder the blame for what happened. They are both being untruthful about it and I am satisfied that this incident involved family violence.
  46. I am also satisfied that X was present when the tyres were slashed. She told DoFACS that she was present and she described in detail the implement Mr A used to stab the tyres. The neighbours told the police she was present. The mother said that she was at school but the father’s solicitor went on the school website and found out that the school was closed for children on that day. I do not accept the mother’s evidence that X was not present
  47. Stabbing the tyres was an aggressive action by Mr A. It was violent. It was controlling. It was intimidating. It was family violence any way it is viewed.
  48. The other thing which concerns me is that the mother seems to be quite desensitised to the behaviour that is occurring and the dynamic between her and Mr A.
  49. In the mother’s trial affidavit she tried to deflect blame from Mr A for what happened that day but she also described an incident which involved an argument; which involved yelling and which involved Mr A taking an implement and stabbing car tyres. How the mother cannot see that even this is unacceptable behaviour is gravely concerning to me but I do not accept that this is all that happened. I consider there was family violence within the definition on that day.
  50. There are other reasons to believe that more than the November 2012 incident of family violence has occurred. Not only has X on more than one occasion disclosed to DoFACS when interviewed that family violence has occurred but both X & Y disclosed to the family report writer that violence had occurred.
  51. In respect of X the family report writer said as follows:
  52. The family report writer said as follows about Y:
  53. There is also the disclosure referred to in the DoFACS notes that Y made at school about Mr A climbing in the window and breaking his Mickey Mouse toy and the disclosures that X has made to the paternal grandmother that are contained in her affidavit. The father also gave evidence about X making disclosures to him.
  54. The children, X in particular have repeatedly disclosed that there has been family violence in the mother’s home involving Mr A.
  55. I am satisfied that there was family violence between the mother and Mr A in 2007, 2012, during the lamp incident in January 2014 and during the tyre incident in 2015 and as the family report writer said if that is the case and if the mother and Mr A are being untruthful about the violence and if the mother is covering up for Mr A (and the evidence strongly supports that she is), the likelihood is that more has occurred that we just do not know about.
  56. There can be no doubt that the children have been exposed to family violence. X was present during the Melbourne Cup Day incident and Y was in the home. I am satisfied X was present in May 2015 when the tyres were slashed and the children described a couple of other incidents to the family report writer. X described being scared.
  57. In her affidavit the mother said that the problem with Mr A was alcohol consumption and that alcohol consumption and violence went together. No doubt they probably do; if people have drunk a lot of alcohol the risk of violence is heightened. However there was no evidence that Mr A was drunk when he stabbed the mother’s tyres so it is not the case that Mr A is only violent when he is drunk. The police statements handed up when Mr A pleaded guilty to the charge arising out of the tyre incident refer to him having been very aggressive to the police when they were trying to investigate the incident.
  58. Mr A is a person of serious concern whether he is drinking or whether he isn’t.
  59. If he has been drinking he is probably a greater problem. He admitted in the witness box he had been drinking since he was 14 and many of his convictions arose from situations where he had been drinking. He did not provide any evidence that he had beaten his problem with excessive alcohol consumption so that remains a risk factor.
  60. The family report writer recommended nine months ago that the mother have some domestic violence counselling. She has very recently been to see someone for what she described as domestic violence counselling but it is apparent from the letter the counsellor provided that the mother has not been frank with the counsellor about what has occurred. Until she is the counselling will be of no value in addressing the issue of the mother exposing the children to family violence.
  61. There is a risk of the children being exposed to or subjected to family violence as a result of Mr A’s behaviour.
  62. There is no evidence that Mr A has deliberately hurt the children. A couple of comments the children made might suggest that but I cannot make a finding that he has deliberately hurt them. However if the children are in a home where family violence occurs they can be hurt. X told the family report writer (and I do not know whether this was bravado or true) about wanting to get between her mother and Mr A which if it occurs would be an absolute gold-plated recipe for a child to be hurt.
  63. The risk factors for these children if they remain with the mother and Mr A are high because there is a strong theme of the mother apologising for and covering up for Mr A. She minimised the violence that had occurred even when she admitted to incidents. She is also strongly invested in this relationship and will struggle to cope with parenting four children if the relationship ends as she admitted in the witness box.
  64. There is an unacceptable risk that the children will be exposed to family violence or even subjected to family violence if they are present in a home while the mother and Mr A are together. The fact that family violence does not always occur and the fact that Mr A can be charming and nice to the children sometimes does not remove that risk.
  65. I must then consider the additional consideration in s.60CC(3).
  66. The first of those is the views of the children.
  67. Y, who was almost five at the time of the interviews, told the family report writer that he wanted to live with his mother. That is not unexpected. He is strongly attached to her.
  68. X said that she wanted to be near the maternal grandmother and the father. She did not express a direct wish about living with the mother but the family report writer said in cross-examination that she thought that this would be X’s preference and I accept that.
  69. The children are young. I accept that their views are genuine and it is natural that they would want to live with their mother. She has always been their primary carer.
  70. I must consider the nature of the children’s relationship with each of their parents and any other person.
  71. It was conceded by everyone that the mother was the children’s primary attachment figure and the children have a fond relationship with their younger siblings, A and B.
  72. The mother said that the children had a good relationship with Mr A. I cannot find that. No issues were observed at the family report interviews but the report writer said that some perpetrators of family violence can be charming and children can relate well to them at different times in between episodes of family violence. I therefore cannot make any findings about the nature of that relationship.
  73. X has said to DoFACS workers at various times that Mr A does not like the children. I cannot necessarily place any weight on that. There is no context for it. I do not know what to do with it.
  74. I pause to add an interesting little snippet here. It is a bit of side issue but I cannot help mentioning it. The father told the family report writer that one advantage to X of living somewhere other than (omitted) was so that she could have access to accelerated learning through the school and from reading the DoFACS notes about the interviews with X she does seem to be a very bright little girl.
  75. The children have a good relationship with their father. The family report writer commented on that. It is not the same relationship as they have with their mother but it is a good relationship. They also have a good relationship with their paternal grandmother and paternal grandfather.
  76. I must consider the extent to which each of the children’s parents have taken or failed to take the opportunity to participate in making decisions about them or spending time and communicating with them.
  77. The father has always wanted to spend time with his children but until recently he has voluntarily taken a backseat in relation to quite a few decisions about the children. He has been interested in them but he has not wanted to have a big role in their lives. He said in the witness box that he realised this had to change and he has persisted with this litigation since it started 12 months ago.
  78. I must consider child support matters.
  79. In the mother’s affidavit she made some complaints about level of child support she was receiving. I cannot make any finding that the father has avoided paying child support. He is very likely a modest income-earner and the amount he is assessed to pay would not be very high.
  80. I must consider the likely effect of any change in the children’s circumstances.
  81. This is a significant issue in the case. I indicated during submissions that in my view the children might grieve if they were separated from their mother and their siblings even if they still saw them regularly and there can be little doubt that it would take time for them to adjust. However they are also likely to be adversely affected if they are exposed to family violence and threats to their mother’s safety and I will have to weigh all that into the mix.
  82. I must consider the practical difficulty and expense of the children spending time with a parent.
  83. The mother said that she intended to remain in the (omitted). She did not propose an order that she be restrained from returning to (omitted) and I would have to consider ordering that if I ordered the children live with her because if the children return to (omitted), the distance will make frequent time with the father just too draining and difficult for all concerned.
  84. If the mother is in the (omitted) and the father is in (omitted), there should not be any practical difficulty with the children spending time with each of their parents no matter which one they live with.
  85. I must consider the capacity of each of the children’s parents and any other person to provide for the needs of the children.
  86. The mother feeds and clothes the children well. She has no mental health issues and no drug and alcohol issues. She does not have a criminal history and absent the domestic violence issue she is, as everyone kept saying, a good mother.
  87. However the mother seems to be completely missing the fact that the children are troubled about the situation in her home. They have made unsolicited disclosures to the paternal grandmother. They have made disclosures to the father. They have spilled it all out when they have spoken to DoFACS. They made disclosures to the family report writer.
  88. X talked about being scared about the mother getting hurt. It is extremely burdensome for a child of X’s age to have that worry. Y told the teacher about B climbing in the window and breaking his Mickey Mouse toy and hurting his mum and also made disclosures to the family report writer.
  89. The children are troubled about what is happening and the mother is just not appropriately responding to that. Her case theory is that the maternal grandmother is making trouble for her. That is how she brushes it aside. But these children are troubled by what is happening in their lives and sadly the mother at the moment just is not picking up on that.
  90. In terms of Mr A’s capacity, I have already commented on his concerning criminal record, his concerning history of alcohol consumption, the fact there is no evidence that he has done any recent drug and alcohol counselling, the aggression he demonstrated in relation to the tyre incident and his aggressive response to the police on that occasion. He has not done a perpetrator’s course. He has not had any recent counselling. Mr A does not have the capacity to provide for the needs of young children.
  91. The maternal grandmother very fairly commented that Mr A was good with A and it might be at various times when he is calm and not threatened and not drinking he can be a good parent but he has all those problems he cannot control at the moment.
  92. The father has no criminal record although there might be some traffic offences. He has no drug and alcohol issues and no mental health issues. He has the capacity to provide for the children on a day-to-day basis.
  93. The father will have to make changes in his life if he takes on the time-consuming job of becoming these children’s primary carer. It might come as a bit of a shock to him how time-consuming that job turns out to be. However he has persisted in this litigation. He seemed in the witness box to have thought about the fact that he would need to make changes and he has certainly been making a greater effort this year.
  94. The father has the strong support of his parents and although the mother is a bit critical for him in that regard it is actually not a bad thing if the whole paternal family is willing to chip in and help look after the children. The children have a very good relationship with the paternal grandparents.
  95. An issue was raised in the mother’s material about the father’s dogs. The father was asked some questions about it in cross-examination. The evidence supports a finding that he acted appropriately when there was an incident between a dog and one of Ms C’s children and the mother’s counsel did not make any submissions in the end about the dog issue.
  96. I must consider the children’s maturity, sex and background.
  97. That is not going to help as a separate consideration.
  98. I must consider any family violence involving the children or a member of the children’s family.
  99. I have discussed the family violence incidents at length earlier.
  100. I should add that I did not go into what I might call the “wallet incident” earlier because I felt that I could not get to the bottom of what happened on that occasion.
  101. The mother has been the victim of family violence at Mr A’s hands. The children have been exposed to it and it is incredibly damaging for children to be exposed to family violence.
  102. They can get hurt themselves. They can be psychologically harmed because they worry about their parent. They can feel helpless and anxious and they can get depressed. Sometimes they copy the perpetrator. Sometimes they enter into violent relationships themselves when they grow up. They can turn against a parent they love. They can turn against the victim because they perceive that person to be powerless and all the power to be with the perpetrator and that is the person they start to copy. There is no good outcome flowing from children being exposed to family violence.
  103. I must consider whether there are family violence orders and any conclusion which can be drawn from that.
  104. The police applied for an ADVO for the mother’s protection at the time of the tyre incident and the mother needs to understand that what motivated the police to do so may well have been not just the tyre incident itself but Mr A behaviour to the police surrounding that incident. That would not have set their minds at rest that there was no risk to the mother. The ADVO taken out was not what they call a “no contact” ADVO; it was just a non-assault, non-stalk ADVO.
  105. After the wallet incident in February 2016 however the police applied to vary the ADVO so that it now restricts Mr A from remaining at any place where the mother is residing.
  106. We discussed this during the trial and the mother really needs to look into it or Mr A could find himself up on another charge of contravening an ADVO. It seemed to come as a bit of a shock to the mother that this ADVO was in existence but it is and the mother needs to have a look at it. I presume the ADVO will expire in May 2016 but I am not 100% sure about that.
  107. I must consider each parent’s attitude to the children and the responsibilities of parenthood.
  108. The father said that he was willing to make changes in his life so he could be there for his children. That is to his credit.
  109. I must consider whether it is preferable to make the order least likely to lead to further proceedings.
  110. An order that the children live with the father is that order. If I order that the children live with the mother the matter could easily come back to court if there are any further incidents with Mr A.
  111. I must consider any other relevant matter.
  112. The advantage to X of the father’s proposal is that X can stay at her present school and Y can stay there as well but particularly in relation to X that is important because she has had a number of changes of school. She has been at (omitted), (omitted), no school at all at the end of last year, then back at (omitted).
  113. If X lives with the mother the chances are she is will be at some other primary school in the (omitted) very soon. If she lives with the father she can stay at (omitted) Public School.

Parental Responsibility

  1. Pursuant to s. 61DA of the Family Law Act I must consider the issue of parental responsibility.
  2. The parents agreed that there should be an order for equal shared parental responsibility.
  3. The presumption in s.61DA does not apply because a person living with the mother has committed acts of family violence but the parents themselves are good parents. I am concerned about the mother’s judgment in relation to the family violence issue but that is not a reason to remove parental responsibility from her so that she cannot have a say about the children’s schooling or their medical issues.
  4. The parents do not communicate very well but to an extent the father has been at fault there. He agreed in the witness box that he needed to be more mature and the parents cooperated recently when there was an incident at the school concerning X. The mother contacted the father which is to her credit and the father responded which was to his credit and the parents went together to the school to talk about the incident in relation to X which was excellent for her.
  5. I intend to order that the parents have equal shared parental responsibility for the children.

The Family Report

  1. When the family report was prepared the mother was living in (omitted) with the children and the father was living in (omitted) and the father told the family report writer that he did not want residence of the children; he just wanted the mother to come back to (omitted).
  2. The proposals the family report writer had before her were very different to the proposals before me. The game has changed and because of that I cannot necessarily place weight on the recommendations in the family report.
  3. The family report writer recommended that the children live with the mother for two reasons: one, because of the children’s attachments and two, because the father was saying he was not seeking residence.
  4. The family report writer was concerned about Mr A’s criminal record, his convictions for violence and his alcohol consumption and she said as follows in her report about the family violence issue:
  5. However the family report writer was constrained by the parties’ proposals and recommended that the children live with the mother (although she also recommended the mother engage in domestic violence counselling) and that they spend time with the father.

Conclusion

  1. I have to make an extremely difficult decision about what should happen for these children and as I said during submissions I consider it quite heartbreaking. It is always heartbreaking when I have to consider removing children the age of these children from their primary attachment figure.
  2. I intend to make an order for equal shared parental responsibility but this is not a case where anybody wanted me to consider an order for equal time or even substantial and significant time. It would not be reasonably practical with the father living and working in (omitted) even if the mother remained in (omitted) but the likelihood is that she will not. Both parties saw this case as one where I would have to decide whether the children should live primarily with the mother or primarily with the father.
  3. The reasons which favour leaving the children with the mother are quite strong. They have a very close relationship with her and she is their primary attachment figure. They have a loving relationship with their two little siblings. They are just starting to form one with B but no doubt they think he is cute when he is awake and not crying. They will receive good day-to-day care from the mother in terms of being clothed and fed.
  4. I have a tiny little bit of concern because of a couple of the things the mother said in the witness box about her being overwhelmed by the care of four children if she leaves (omitted) and lives somewhere else in isolation. On the other hand people do manage to do that.
  5. However regrettably the mother has a blind spot about Mr A. He predominates in the mother’s life and I am satisfied that there has been family violence in that relationship. Mr A has a very bad criminal record. There is nothing to suggest that he has overcome his alcohol problem. The mother makes excuse after excuse for him and the story made up about the tyre incident made it look as if the whole thing was the mother’s fault for driving on bald tyres. It is deeply concerning that the mother went along with this and accepted the blame.
  6. It is very bad for the children to live in a household where there is episodic family violence. It is distressing for them to hear yelling and screaming. It is distressing for them to see property damaged. It is distressing for them to have to be worried about a parent. The outcomes of that are all negative and in a worst-case scenario the children can get hurt. There is no good outcome for the children if they remain in a household where there is episodic family violence.
  7. The suggestion that this will have an adverse impact on the children is not just theoretical. The evidence establishes that the children are worried. They talk about what is happening. They make disclosures to people and nobody to date is listening to them.
  8. The mother’s proposal for dealing with the issue of family violence was to ask the court to make the following order:
  9. This would provide absolutely zero protection for the children. I cannot leave the children with the mother and make that order and be satisfied they are not going to be exposed to family violence.
  10. It is clear from the mother’s affidavit that she does not recognise what family violence is. She is covering up for Mr A. She prioritises protecting him over protecting her children and lastly, if you have someone who was as violent as Mr A has been in the past, who has seriously physically assaulted the mother and who has been to jail for assaulting other people, how can the mother possibly believe that if Mr A decided to act out she would be able to do anything to help her children other than run for it, which is what she did in the Melbourne Cup day incident but the children have still by then suffered exposure to the violence.
  11. I regret separating these children from their mother. It will be difficult for them and they will need a lot of comfort and a lot of support. They will need to be allowed to cry and grieve but the only order I can make is that the children live with their father.
  12. The father is a non-violent person. The children will not be exposed to family violence in his care. I can be satisfied that the father will promote a relationship between the children and the mother because he respects her as a mother and it will also have the added advantage of course of X and Y being able to stay at (omitted) School for the time being and that may assist them to adapt to the change.
  13. If this outcome results in the mother having a good look at her life and what is happening in her life and considering what her loyalty to Mr A has cost her and reviewing her relationship with him, perhaps that will mean something different happens for the children in the future but the mother is in an extremely difficult position too. She has two children with Mr A and I do not know what the future will hold for her.
  14. The Independent Children’s Lawyer submitted a comprehensive set of orders which I consider were well thought out and provide for the children to see the mother every weekend at first and then ultimately each alternate weekend which as they get older and have their own sporting commitments and need to spend some weekend time with the parent they are living with is the better outcome.
  15. I have some misgivings about the proposal that unless otherwise agreed between the parties when the children are in the care of the mother they will stay overnight at the home of the maternal grandmother.
  16. There are some advantages to this because the children love the farm where the maternal grandmother lives but the accommodation there is fairly limited. I am also conscious of the fact that I am making an order which might be in place for a decade which is quite restrictive about where the mother can spend time with the children.
  17. However if I make an order that the children simply spend time with the mother without restricting where that takes place and make an order that the mother be restrained from bringing the children into contact with Mr A that is problematic as well.
  18. Mr A may not stay away. I have a lot of cases where I make that kind of an order and the matter swiftly comes back on a contravention application because one parent says, “The children came home and told me X was there on the weekend.” I then have to hear a contravention application. There is no evidence the mother thinks there is anything wrong with Mr A and she may not be motivated to keep him away.
  19. Even so I am uncomfortable about making the order proposed by the Independent Children’s Lawyer but I do not see any other option. I am however going to put a notation on the orders to this effect: that it is noted that it is not the intention of the court that the children should be restricted from spending time with the mother at the mother’s home unless there are reasonable grounds to believe that there is a risk of the children being exposed to family violence in that home.
  20. The intention of the notation is to make it clear if something happens in relation to the mother so that there can be confidence that Mr A or someone like him is not in the picture, then the father should readily agree to the children spending time with the mother in her own home.

I certify that the preceding two hundred and fifteen (215) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 12 May 2016

[1] Mother’s affidavit paragraph 42
[2] Exhibit D
[3] Proof of Evidence Exhibit R
[4] Family Report paragraphs 106 to 111
[5] Family Report paragraphs 116 to 119
[6] Family Report paragraph 160

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