Radley & Holder [2017] FCCA 2799 (29 November 2017)

Last Updated: 6 December 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

RADLEY & HOLDER

[2017] FCCA 2799

Catchwords: FAMILY LAW – Parenting – complex family violence matter – where the father subjected the mother to severe family violence during the parties relationship – where orders were made in May 2013 after a four day trial for the children to spend supervised time with the father at a specified contact centre for twelve months which was to be followed by unsupervised time of increasing length – where the contact centre declined to provide a service to the parties because of the mother’s level of distress at the intake interview – where the children spent no time with the father between the date of the orders and April 2016 - where in April 2016 the eldest child then aged 15 left the mother’s care and began residing with the father – where the two younger children have continued to live with the mother and spend no time with the father – where the parties agree that the eldest child should remain living with the father – where the father is seeking orders which will allow him to spend time with the younger children – where the mother proposes that the younger children spend no time with and have no communication with the father – relevance of the continuing impact on the mother of having been subjected to family violence.

Legislation: Family Law Act 1975, ss.60CC, 61DA

Cases cited: Hungerford & Tank [2007]FamCAFC 637 Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518 Radley & Radley [2013] FamCA 346 Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725 SPS & PLS (2008) FLC93-363

Applicant:

MR RADLEY

Respondent:

MS HOLDER

File Number:

NCC 3296 of 2011

Judgment of:

Judge Terry

Hearing dates:

12, 13 and 14 December 2016

Date of Last Submission:

14 December 2016

Delivered at:

Tamworth

Delivered on:

29 November 2017

REPRESENTATION

Counsel for the Applicant:

Mr Rugendyke

Solicitors for the Applicant:

Everingham Solomons Solicitors

Counsel for the Respondent:

Ms Saw

Solicitors for the Respondent:	Carter Ferguson Solicitors and Attorneys
Counsel for the Independent Children's Lawyer:	Mr Mooney
Solicitors for the Independent Children's Lawyer:	Legal Aid NSW Newcastle

ORDERS

(1) All previous parenting orders concerning Z (“Z”) born (omitted) 2001, X (“X”) born (omitted) 2004 and Y (“Y”) born (omitted) 2009 are discharged.
(2) Z shall live with the father.
(3) While Z is living with the father, the father shall have sole parental responsibility for Z.
(4) If Z returns to live with the mother, then while Z is living with the mother (which is to be distinguished from spending time with her), the mother shall have sole parental responsibility for Z.
(5) Z shall spend time with and communicate with the mother, X and Y as agreed between the mother and Z.
(6) X and Y shall live with the mother.
(7) The mother shall have sole parental responsibility for X and Y.
(8) The father shall spend no time with and have no communication with X and Y.
(9) The father is restrained and an injunction is granted restraining him from contacting or attempting to contact the mother, X and Y.
(10) The mother may obtain passports for the children and travel internationally with the children or permit the children to travel internationally notwithstanding that the consent of the father has not been obtained.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE

NCC 3296 of 2011

MR RADLEY

Applicant

And

MS HOLDER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is the second round of litigation concerning parenting arrangements for Z, 16, X who will be 13 in (omitted) and Y, 8.
2. The parents separated in August 2011 after the father assaulted and injured the mother. It was the last in a long line of assaults perpetrated by the father during the parties’ decade long relationship during which he also subjected the mother to other forms of controlling and coercive violence.
3. In 2013 a trial was conducted to determine the issues in dispute about parenting arrangements for the children. Those issues were whether and if so what extent the children should spend time with the father, the allocation of parental responsibility and whether the mother should be able to relocate from (omitted) to (omitted).
4. The father opposed the relocation and sought orders for equal shared parental responsibility and substantial and significant time. The mother, in addition to seeking to relocate, sought an order for sole parental responsibility and proposed that the children spend no time with the father.
5. The trial judge gave the mother sole parental responsibility and permitted her to relocate but he made orders for the children to spend time with the father. It was to be supervised at first at a named contact centre and after twelve months it was to become unsupervised, and was initially to be during the day only but eventually was to be for two weekends each month during school terms and for one week in each of the school holidays.^[1]
6. This scheme never got off the ground. Supervised time did not commence as ordered and nor did any other sort of time and in August 2015, the father filed an application seeking interim orders which would ensure that supervised time commenced and final orders that the children live with him. He also sought an order for equal shared parental responsibility.
7. The mother filed a response seeking a no time and no communication order and proposing that the existing order for sole parental responsibility remain.
8. In April 2016 while these proceedings were still unresolved Z left the mother’s home and was picked up by the father. He has lived with the father ever since and has spent no time and had little communication with the mother and no contact of any sort with his siblings.
9. The second trial commenced in December 2016.
10. At trial the father proposed that Z live with him and spend defined time with the mother and that X and Y continue to live with the mother and spend defined time with him. He proposed that X and Y’s time with him be supervised for the first 6 months and thereafter increase in duration and become unsupervised. He proposed that from the commencement of 2018, Z spend more extensive time with the mother and X and Y spend time with him on three occasions each school term from Friday until Monday and for half of the school holidays.
11. The father sought an order for sole parental responsibility for Z and equal shared parental responsibility for X and Y.
12. The father made minimal admissions about family violence during the 2013 hearing and at trial in 2016 he remained in denial about the nature and extent of the violence he had perpetrated on the mother. However, his counsel submitted that in determining whether a further effort should be made to ensure that time occurred between the father and X and Y, the court was obliged to look not at the past but at the person the father was now, namely a productive member of the community who had not been in any trouble due to aggression or misuse of alcohol since 2013 and who posed no risk of harm to the children.
13. The father’s counsel submitted that the court should not be influenced by the assertions by the mother and the family consultant that the mother’s parenting capacity would be affected if she was required to comply with an order for time. He submitted that it was not open to the court on the state of the evidence to find that an order for time would have that effect. The tenor of the father’s evidence was that the mother needed to get over the past and move on.
14. An alternative and even more forceful argument put by the father’s counsel was that this court was bound by the decision of the trial judge in 2013 that it was in the children’s best interests to spend time with the father and that the only role for this court in respect of X and Y was to determine what orders were necessary to ensure that this time commenced.
15. The mother has very clearly not gotten over what happened during and immediately after the end of the relationship. She exhibits varying degrees of distress whenever she is brought into contact with the father or is obliged to contemplate the idea of the children spending time with him or is reminded of the violence he perpetrated. It was also clear at trial, although the mother did not make this a feature of her case, that she feared losing the children to a father who has no remorse for his actions and no insight into his role in the destruction of his family.
16. The mother’s proposal at trial remained that X and Y spend no time with and have no communication with the father and that she have sole parental responsibility for them.
17. The mother proposed that Z live with the father and spend time with her in accordance with his wishes. She proposed that the father have at least some decision making responsibility for Z.
18. A further issue at trial was that the orders made in 2013 permitted the mother to relocate from (omitted) to the (omitted) area but restrained her from leaving that area. The mother sought to have that restraint removed; the father sought to have it remain in place.
19. The position of the Independent Children’s Lawyer at the end of the trial was that an order should be made for Z to live with the father and spend time with the mother as agreed between the mother and Z and that X and Y should spend no time with and have no communication with the father.
20. The Independent Children’s Lawyer supported the mother having sole parental responsibility for X and Y and the father have limited sole parental responsibility for Z and supported the removal of the restraint on where the mother could live.

The evidence

21. The father relied on his amended initiating application and affidavit filed on 1 December 2016 and the affidavit of his partner Ms A filed on 7 December 2016.
22. The mother relied on her amended response and affidavit filed on 15 November 2016 and the affidavit of her brother Mr M filed on 2 December 2016.
23. Two family reports have been prepared in this matter by Ms F, a Family Consultant. The first report was dated 31 October 2012 and the second was dated 15 February 2016.
24. Mr M was not required for cross-examination but all of the other witnesses were cross-examined.
25. At trial in 2013 the judge said as follows about the mother and father as witnesses:
    • The mother was demonstrably distressed by her recollection of past events, but still gave measured and exact evidence in response to the questions she was asked. She was emphatic the past violent events occurred as she described in her affidavit and was able to provide additional details when pressed. She gave a clear impression of describing actual memories rather than reciting a rehearsed or embellished story.
    • The demeanour of the father was less convincing and he was contradicted in some respects by independent contemporaneous records compiled by police and the NSW Probation and Parole Service, which often prompted him to respond by denying any specific memory of the events.^[2]
26. At trial before me, the mother presented in the same way and was a good witness and father was again a less than satisfactory witness. He gave avoidant and exculpatory evidence on the issue of family violence and seemed on occasions to say whatever suited his purpose at the time. He said variously for example that he had read the 2016 family report; that he had only read parts of it; and that he had not read it at all. He answered one question with a yes and shortly afterward denied saying yes and he seemed to have problems with his memory.
27. I cannot, as counsel for the Independent Children’s Lawyer urged me to do, therefore always prefer the mother’s evidence to the father’s whenever I have to decide an issue in dispute but the father’s lack of credit as a witness will have a bearing on findings I make about issues in dispute.

The delay in delivery of this decision

28. I heard this matter in December 2016. In February 2017 one of the three Federal Circuit Court judges appointed to Newcastle ceased to sit and took on other duties. A replacement judge did not commence until October 2017. The pressure on two judges trying to do the work of three in the intervening eight months was extreme and with the best will in the world I have found it impossible to do all of the work in my docket in a timely fashion and while some has been done speedily some has languished. I apologise to the parties for the delay in the delivery of this decision.

Background

29. The mother and father commenced a relationship in about 1993 or 1994 when they were 14 and separated when they were about 16 after the father physically and sexually assaulted the mother. They recommenced a relationship in 2000 when they were about 19, married on (omitted) 2001 and separated in August 2011.
30. The parties have three children: Z born on (omitted) 2001, X born on (omitted) 2004 and Y born on (omitted) 2009.

Events between separation and the 2013 trial

31. The parties separated in August 2011 after the father assaulted the mother. He was charged with criminal offences and an ADVO made for the mother’s protection and he spent very limited time with the children immediately after separation.
32. In December 2011 the father filed an application in the Family Court of Australia seeking orders that the children live with the mother and spend alternate weekends and half of the school holidays with him.
33. In February 2012 by agreement between the parties’ solicitors, the children commenced spending alternate weekends and time during the school holidays with the father and in July 2012, interim orders were made for the children to spend alternate weekends from Friday to Monday and half of the school holidays with their father.
34. Subsequently a Family Report was prepared. The report writer recommended a no time order and following the release of the report the interim orders were reconsidered and an order was made for the father to spend time with the children for 2 hours each fortnight at (omitted) Children's Contact Centre.

The 2013 trial

35. The issue on which everything turned in the 2013 hearing was the nature and extent of the family violence perpetrated by the father.
36. The father admitted that he had been violent to the mother on two occasions, namely in 2002 and 2011, on both of which occasions he was charged with and convicted of assault, although he professed not to remember the first assault and very much downplayed what he had done during the second assault and emphasised the mother’s alleged contribution to it. Otherwise he denied the allegations of family violence.
37. The mother alleged that she had been subjected to extensive “violence, intimidation and degradation” throughout the relationship and had been stalked, harassed and intimidated by the father after separation.
38. The trial judge’s findings about the family violence vindicated the mother and were as follows:
    • While the parties associated with one another as teenagers, the father struck the mother and sexually assaulted her. Their adolescent relationship then ended, but resumed some years later when the mother believed the father had reformed his behaviour. She fell pregnant and the parties married.
    • The father’s tendency to violent behaviour emerged again on their honeymoon when he threw a bowl at the mother.
    • Even from the outset of their married life the father often became intoxicated and then assaulted or abused the mother.
    • The father called the mother offensive and disrespectful names like “bitch”, “cunt” and “slut”, sometimes in the presence of the children.
    • He frequently assaulted her by throttling her and holding her body weight off the ground by the throat. He kicked and hit her, even at times when she was pregnant. He also locked her out of the house away from the children.
    • Shortly after the birth of the eldest child in (omitted) 2001 the father pushed the mother off a chair onto the ground and kicked her in the stomach where she was still sutured from the caesarean section.
    • On another occasion in 2001 he pushed her off a swing and kicked her while she lay prone on the ground.
    • In June 2002 the father assaulted the mother in their car. He punched her in the head and bashed her head against the side window whilst the eldest child was in the rear seat. Outside the car the father tried to hit the mother but missed and connected with the child who was being held by the mother. The following day the mother was taken by a family member to the hospital for treatment of her injuries. She had two black eyes and her left eye was swollen shut. The father was charged and convicted for the assault.
    • The father’s final assault of the mother occurred in August 2011 and was the catalyst for their final separation. The father pushed the mother to the ground in their yard, held her by the throat and the chest, and said to her “I’m going to bury you bitch”. It took the intervention of the eldest child, who was still then only 10 years of age, for the father to let the mother up. The father confiscated the mother’s car keys and mobile telephone in an attempt to prevent her escape but she still left the home and walked 10 kilometres to the hospital for treatment. The father was again charged and convicted for the assault and an apprehended violence order was simultaneously issued against him for the mother’s protection. ^[3]
39. The trial judge noted that there was also evidence that the father had been violent to strangers (which had led to him being banned from two hotels) and to police and that he had behaved in an intimidatory fashion to the children’s teachers and had been hostile and abusive in neighbourhood and business disputes.^[4]
40. The trial judge was also satisfied that since separation the father had persistently denigrated the mother to the children and engaged in aligning behaviour. He set out at length in his judgment examples of this from text messages, telephone calls, things said by the eldest child and things said by the school principal.^[5]
41. The trial judge noted that there had been some historical issues with the father using drugs and that even on his own admission he had a long history of problematic use of alcohol.
42. The trial judge noted that the father refused to acknowledge the extent of the violence he had committed but he accepted the father’s assertions that the family report had been a wake-up call for him and that he was making an effort to change some of his problematic behaviour.
43. The father informed the trial judge and the trial judge accepted that he had not used drugs since 2002, that he had ceased using alcohol altogether and was attending AA and doing drug and alcohol counselling and that he had done a ‘Keeping Kids in Mind’ course and an anger management course.
44. The trial judge referred to the opinion of the family consultant, a clinical psychologist, that the mother was suffering from post-traumatic stress disorder as a result of what she had experienced and that the idea of the children spending time with the father was difficult for her to tolerate. He was of the view however that the children’s right to have a relationship with their father was the most important consideration and that given that the father appeared to have experienced a profound attitudinal change and appeared to be genuinely committed to changing his behaviour, it was not appropriate to make an order that the children spend no time with him.
45. The trial judge ordered that the mother have sole parental responsibility for the children. He also sanctioned her relocation from (omitted) to the (omitted) area but the only order he made about the relocation was that:
    • The mother is restrained from relocating the children’s place of residence to a place outside a radius of 325 kilometres from the Sydney city post office.
46. The trial judge made the following orders about the children spending time with the father:
    1. Until 30 April 2014 the children spend supervised time with the father for 2 hours on the second Saturday of each alternate month at (omitted) Contact Centre in (omitted), Sydney. Orders were made for the parties to undergo the necessary intake procedures and they were ordered to share the cost of the supervised time equally.
    2. From 30 April 2014 until 31 January 2015 the children spend time with the father from 9.00am until 5.00pm on the fifth Saturday of each school term and for the first 3 days of each of the school holidays.
    100. From 1 February 2015 the children spend time with the father each alternate weekend from 9.00am on Saturday until 5.00pm on Sunday and for one week of each of the school holidays.
47. Orders were made permitting the father to send letters, cards and gifts to the children on their birthdays and at Christmas and requiring the mother to acknowledge and pass on anything the father sent. An order was also made for the father to have telephone communication with the children each Wednesday from 6.00pm until 6.30pm once unsupervised time commenced on 30 April 2014.
48. An order was made restraining the father from using alcohol when the children were with him and from approaching the mother’s home or the children’s school and an order was made restraining each party from physically disciplining the children.

Events after the 21 May 2013 orders

49. The mother relocated to the (omitted) area soon after the orders were made.
50. The father did not promptly undergo the intake procedure at (omitted) Contact Centre, he said because he initially felt depressed about the outcome of the trial, and when he finally did so there were problems with the mother undergoing the intake procedure.
51. On 12 July 2014 the father filed a contravention application in the Federal Circuit Court complaining that the mother had failed to comply with the orders by taking part in the intake procedure. I heard that application and on 10 October 2014 I found that the mother had contravened the orders and placed her on a bond, one condition of which was to comply with the orders as varied.
52. Given that time had not yet commenced at the contact centre, I varied the May 2013 orders to provide that the time at the contact centre commence as soon as the contact centre was able accommodate it and that the start date of the other orders be varied to fit in with the scheme of the original orders.
53. After these orders were made, the mother took part in the intake process. However she was significantly distressed during her interview and in April 2015 the Contact Centre sent a letter to both parties advising that due to the mother’s level of distress they would not be able to provide a service.
54. On 14 August 2015 the father filed an initiating application seeking interim orders which would facilitate his time with the children commencing and final orders that the children live with him.
55. The mother filed a response proposing no time and no communication. The Independent Children’s Lawyer was reappointed and an order was made for the preparation of a further Family Report.
56. Interviews for the family report took place in October 2015 and the family report was released in February 2016. As in the first report the family consultant recommended that the children spend no time with and have no communication with the father.
57. In April 2016 there was a fresh development in that Z commenced living with the father.
58. This happened suddenly. On 12 April 2016 the father and Z conversed on Facebook. The father gave Z the telephone number of his brother Mr N who lives in (omitted) about 70 kilometres from (omitted) and Z left the mother’s home and rang Mr N and told him he was at a park near his home. Mr N rang the father who asked him to go and collect Z and said that he would drive down to (omitted) to collect him from Mr N’s home.
59. The father drove seven hours to collect Z and took him back to his home in (omitted) near (omitted) and Z has lived with the father ever since. He has not seen or spoken to his siblings and has had very limited telephone communication with his mother.
60. Subsequently the parties competing applications were listed for trial in December 2016.
61. Another matter which should be mentioned is that in 2014 the mother alleged that Z had disclosed to her that the father had physically abused him on numerous occasions during the relationship including hitting him with implements. The mother took Z to a police station in June 2014 and he made a detailed statement. The police told the mother that they would investigate the matter but it does not appear that this ever occurred.

The parties’ current circumstances

62. The father is living in the former matrimonial home in (omitted) which he retained as a result of property proceedings which concluded in this court in December 2014. He is working in the (omitted) industry.
63. The father had two post-separation relationships which ended. In (omitted) 2016 he commenced a relationship with Ms A and she moved to (omitted) to live with him in (omitted) 2016.
64. Ms A is 27 and is employed as an (occupation omitted) with (employer omitted). She has no children.
65. The father enrolled Z at (omitted) High School in (omitted) 2016. He completed Year 10 toward the end of that year and the father then arranged for him to commence a (omitted) apprenticeship. The father said that Z would attend TAFE in (omitted) over the next few years as part of completing his apprenticeship.
66. The mother lives in the (omitted) area with X and Y who attend local schools. The mother has not repartnered.

The rule in Rice & Asplund

67. Final orders were made in this matter on 21 May 2013 after a hearing and it is necessary to consider the implications of that for the decision I am asked to make.
68. In the 1978 case of Rice & Asplund, the Full Court considered the issue of how a court should deal with an application to vary existing parenting orders and Justice Evatt said as follows:

The principles which, in my view, should apply in such cases are that the court should have regard to any earlier order and to the reasons for and the material on which that order was based. It should not lightly entertain an application to reverse an earlier custody order. To do so would be to invite endless litigation for change is an ever present factor in human affairs. Therefore, the court would need to be satisfied by the applicant that there is some changed circumstance which will justify such a serious step, some new factor arising or, at any rate, some factor which was not disclosed at the previous hearing which would have been material. These are not necessarily matters for a preliminary submission, but they are matters that the judge should consider in his reasons for decision. It is a question of finding that there are circumstances which require the court to consider afresh how the welfare of the child should best be served. These principles apply whether the original order is made by consent or after a contested hearing. The way they apply and the factors which will justify the court in reviewing a custody order will vary from case to case.^[6]

69. This pronouncement became known as the Rule in Rice & Asplund and as Warnick J observed in SPS & PLS^[7] the Rule is intended to protect against a number of evils. One is the detrimental effect on children of being repeatedly drawn into litigation between their parents; another is the need to ensure that public resources are not strained by endless litigation. However yet another evil is the evil of one judicial officer simply substituting their opinion for that of another and it is this aspect of the matter on which the father’s counsel focussed.^[8]
70. Nobody has ever suggested that this matter should not proceed to a full hearing and it was not in dispute that different orders now needed to be made about Z. However in respect of X and Y, the father’s counsel submitted that not only was this court obliged to have regard to the original orders and the reasons why they were made but that this manifestation of the Rule in Rice & Asplund meant that this court was not at liberty to depart from the baseline set by the 2013 orders namely that the children should spend some time rather than a no time with the father and that the time should move from supervised to unsupervised, in other words it was not permitted to make a no time order.
71. The father’s counsel pointed out that the mother had not appealed the 2013 orders and that the proceedings in this court were not an appeal from the Family Court of Australia to the Federal Circuit Court. He submitted that the only issue this court was permitted to determine was how the time between the father and X and Y should be implemented.
72. I do not accept this submission. In coming to my decision I must have regard to the 2013 orders and the reasons why they were made but there have been many developments since then including the contact centre refusing to facilitate time because of the mother’s level of distress at the intake interview and Z changing residence which has caused further dislocation in this family. I do not accept that I am prevented by the 2013 orders from considering the mother’s proposal that X and Y spend no time with and have no communication with the father.

The children’s best interests

73. Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and to determine the children’s best interests I must have regard to the matters in s.60CC(2) and (3) of the Family Law Act.
74. The primary considerations in s.60CC(2) are the benefit to the children of having a meaningful relationship with each 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.
75. S. 60CC(3) contains additional considerations which include the views of the children, the capacity of each parent to provide for the needs of the children, the likely effect of a change in the children’s circumstances and any family violence involving the children or a member of the children’s family.
76. I intend to start by making findings about the s.60CC (3) matters.
77. The first s.60CC (3) matter is any views expressed by the children and any factors (such as the children’s maturity and level of understanding) that the court thinks are relevant to the weight it should give to the children’s views.
78. The family report interviews were conducted in October 2015 when all three children were living with the mother.
79. In conversation with the family consultant Z was adamant that he wanted to see his father regardless of what had happened in the past. The family consultant said as follows:
    • Z was obviously distressed and somewhat reluctant to be interviewed. He seemed quite angry and upset and it didn’t take long before he was in tears. He told the Family Consultant that the whole interview process was, in his opinion, a total waste of time because his views had been ignored when the previous Family Report was prepared and he had ended up having to move and live with his mother when he had made it quite clear that he wanted to live with his father. He said that he didn’t hold out much hope that things would be different this time around.
    • Z said that he has already missed out on 3 years of seeing his father and that the Judge needed to consider that it was possible that people change and that his father was no longer the person he used to be. He said that his father didn’t drink anymore and was settled in a new relationship with someone he gets along well with and doesn’t fight with.
    • Z said that, even if things did go wrong and his father did behave badly, he felt that he was now big enough to handle himself and that he wasn’t going to get led astray by anyone because he was never going to drink or smoke, no matter who tried to make him.
    • He said that he knows who his dad is and what his dad has done, but that doesn’t change anything. He said that he still loves his father and misses him and wants to be with him.
    • The Family Consultant asked Z about the report that he had made to the police during 2014 and whether it was accurate. He said that he would never tell a lie and that it was all true, but that it didn’t change the way he feels about his father.^[9]
80. Those views resonate with the information the mother provided about Z. She said that since 2013 Z had alternated between being happy in her care and angry with his father and being angry with her for preventing him from seeing his father. She said that Z became very unsettled during the early part of 2016 and began telling her repeatedly that he wanted see his father. In April 2016 he acted on that wish and left the mother’s home.
81. The father said, and I accept, that Z was happy living with him but missed his siblings and wanted to see and speak to them. The Independent Children’s Lawyer did not seek to present any evidence which contradicted this.
82. The family consultant’s opinion when the report was released was that Z’s views should not be given weight and she set out the reasons for that at paragraph 76 of her report. However since then Z has changed residence and the mother is not seeking to have him return to live with her and his views as to where he lives will prevail.
83. X declined to be interviewed for the 2012 family report. He was reluctant to be interviewed in 2015 but he did take part in an interview and the family consultant said as follows:
    • [X] said ‘it is okay if things stay the way they are’ and indicated that he would like the cards and presents to keep coming. He said that he wanted to be able to see his father too, but didn’t believe that this was ever going to be allowed.^[10]
84. The mother’s evidence at trial was that since Z had changed residence, X had been more settled and that he had recently told her that he did not intend to make a choice to live with his father and that he believed that Z had made a bad decision.
85. I have only the mother’s word for this, but the mother was frank about the fact that over a considerable period of time Z and X had both expressed a wish to spend time with their father and she set out in some detail in her affidavit the difficulties she had had managing these children. There was no flavour in the mother’s affidavit of her suppressing evidence which did not support her case.
86. I therefore accept her evidence about what X said to her not long before the trial. However in this fraught and complex family situation there is always the possibility that X’s views may change or fluctuate.
87. It also does not follow from the mother’s evidence that X would be opposed to spending time with the father if an order was made for that to occur.
88. Everything Y said to the family consultant suggested that she was content living with the mother.
89. The family consultant said as follows about her conversation with Y concerning her father:
    • The Family Consultant asked Y whether she wanted to see her Dad and Y shook her head and said ‘I don’t want to see Dad, because Dad is a bad man’. The Family Consultant prompted her for more information saying ‘bad?’ and Y said, ‘he doesn’t believe in God’. She then changed tack and said, ‘I do want to see him because I haven’t seen him in years, but mum won’t like that’.
    • The Family Consultant asked Y if she would feel worried if she knew that she was going to see her father and she said, ‘Yes, I don’t know what would happen – he might try and take me to the farm – he wants to kill mum’.^[11]
90. Nothing Y said suggested that she would resist seeing her father if an order is made for that to occur.
91. The family consultant said as follows about the weight which should be accorded to the children’s views:
    • It is also very common for children to forgive even the most extreme outrages inflicted upon them by parents and to continue to love those parents and to want to see them – this is well documented in research dealing with Childhood Trauma. It doesn’t follow that the child’s wishes should be automatically adhered to, particularly when it is all too obvious what the outcome of those wishes will be. In cases such as these, severing the relationship between the child and the violent parent is usually the only way that will allow any possibility of enabling the child to repair the damage that has already been done and to prepare the child for life thereafter.^[12]
92. The family consultant was not challenged about the validity of this opinion as a general proposition.
93. I will have to consider the weight to be given to X and Y’s expressed and inferred views as part of an overall assessment of the evidence in order to determine the outcome which will be in their best interests.
94. I must consider the nature of the children’s relationship with each of their parents and any other person including a grandparent of the children.
95. Z has self-placed with the father and the father’s evidence was that he and Z had a good relationship. There was no independent evidence to cast doubt on this assertion.
96. In the months prior to Z leaving the mother’s care there was conflict in their relationship arising out of Z’s desire to see his father but there was nothing to suggest that their relationship was poor in a broad general sense.
97. The mother had no relationship with Z at the time of trial. Of her own choice she has spoken minimally to him since he left home and has not seen him.
98. Z has rung his mother since he has been in (omitted) but it is difficult to discern that he misses her as opposed to missing his siblings although it could well be that the relationship between the mother and Z is more complex and nuanced than the information available to me at trial might indicate.
99. The father said that Z had a good relationship with his partner Ms A and there was no independent evidence to contradict this. There was no independent evidence about the nature of the relationship between Z and any member of the paternal extended family whom the father sees although only infrequently.
100. X’s relationship with his mother has been troubled on occasions over the years but he did not express to the family consultant a pressing desire to leave the mother’s care and live with the father and I am satisfied that X and the mother have a good relationship.
101. Y has a close relationship with the mother. When asked who was in her family she named her mother and brothers and then included some other members of the maternal family. The family consultant recorded that she said that she was happy living with her mother and didn’t have any worries or concerns to report in her mother’s care.
102. The father has no relationship with X and Y.
103. I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the children, to spend time with the children and to communicate with the children.
104. Z has had almost no communication with the mother since he went to live with the father in April 2016. The communication may have been a little more frequent than the father believes; for example, the father believes that the mother did not speak to Z when he rang on Mother’s Day but the mother’s evidence was different. However the mother has rebuffed all attempts by Z to contact X and Y and to that extent the mother has effectively rebuffed Z and failed to take the opportunity to communicate with him.
105. In this complex matter however that does not necessarily suggest that the mother has no interest in Z.
106. The father has never ceased attempting to spend time with and communicate with the children.
107. I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to support maintain the children.
108. The mother obtained an exemption from applying for child support after the parties separated and this is not a relevant consideration.
109. I must consider the likely effect of any change in the children’s circumstances including the likely effect on the children of separation from either of his or her parents or any other child or person including any grandparent or other relative of the child with whom he or she has been living.
110. Z will continue to live with the father but a likely effect of that change for Z is the loss of his relationship with his mother.
111. The mother cannot tolerate the idea of communicating with Z and opening a channel for him to communicate with his siblings because she is deeply fearful that any communication between Z and his siblings will lead to communication between the father and X and Y which she believes will in turn destabilise them and destabilise their relationship with her.
112. It will be a significant and distressing loss for Z if he is unable to see his siblings in the future. There was no evidence at trial about Z’s mental health such as to suggest that he might self-harm if sufficiently distressed but when the parties first separated Z talked of self-harm to end his pain and the possibility that an outcome which results in Z not seeing his siblings will have a detrimental effect on his psychological state causes me concern.
113. The change the father proposed in respect of X and Y was that they immediately commence spending time with him. His case was that this would be beneficial for Z because he would be able to see his siblings. It would also be beneficial for Y and X because as their father he had much to offer them. He was employed, he was in a stable relationship and had moved on with his life and the children were at no risk of exposure to family violence or dysregulated anti-social behaviour in his care. It would not be contrary to X’s wishes if time commenced indeed X was keen to spend time with him and was resentful that he had been prevented to this point from doing so, and Y was curious about him.
114. I will consider those matters in the context of considering the benefit to X and Y of having a meaningful relationship with their father but something I want to consider in this section is the likely effect on the mother of such an order being made.
115. The mother said that she found the idea of the children spending time with the father intolerable and stressful.
116. In her trial affidavit she said as follows:
     • On or about October 2014 I attended an intake assessment at the contact centre. I was very distraught at the thought of the children spending time with their father. As a result of the Applicant’s treatment of me throughout our relationship, I now suffer from Post-Traumatic Stress Disorder and attend on my councillor (sic) regularly. Z has also made disclosures regarding abuse that the Applicant has perpetrated against him. The children had become more settled and the boy’s behaviour in particular had settled such that they were less prone to violent and aggressive outbursts. I was therefore extremely anxious that if the children commenced spending time with their father again, their behaviour would regress and they would suffer psychologically.^[13]
117. The mother provided detailed evidence in her affidavit about the difficulties she had experienced since separation with the boys anger and aggression and the difficulties the boys had experienced at school as a result of this anger and aggression. She said that in 2015 Z described an incident to her during which he “snapped” and grabbed another boy by the shirt and spun him around and threw him against the wall and lifted his fist up. She said that Z told her that he stopped and walked away and said:
     • I could have hit him but I didn’t want to be like Dad.^[14]
118. She said that X had difficulties at school because of his anger to the extent that she needed to be available to go to the school at short notice but that both he and Z had been more settled in 2015.
119. The mother also said as follows:
     • I am greatly concerned about X & Y’s vulnerability to manipulation. From the time of separation the Applicant and his family have behaved in a derogatory fashion towards myself and the children. The Applicant has grown up in a cycle of family violence that he has also perpetuated with myself and his own children. I am fearful that the cycle will keep repeating itself with my children if they are again exposed to the Applicant and his violent and aggressive behaviours.^[15]
120. The mother described her fears that Y was vulnerable to developing a mental illness and that X and Y might fall into drug and alcohol abuse or be exposed to pornography or unacceptable attitudes to appropriate sexual boundaries if they spent time with the father.
121. The first thing to observe is that I accept unreservedly that the mother finds the idea of the children spending time with the father distressing to the point where she cannot control her physical reaction to it.
122. The mother’s distress at being in close proximity to the father and at being obliged to relive the violence she had experienced was evident during the hearing.
123. The hearing commenced in one of the smaller courtrooms in the Newcastle Registry and it was immediately apparent that the mother found it very difficult to be in the courtroom, and particularly so when cross-examination of the father began, notwithstanding that the court had done its best to ensure that she was seated as far as possible from the father.
124. The mother at first demonstrated some restless body language and stared out the window and finally while cross-examination of the father was ongoing she got up and walked out of the courtroom.
125. After observing what was happening, I arranged to change courtrooms with another judge so that I was sitting in a courtroom in which I was sitting which had video equipment. This enabled the mother to be placed in a separate room in the court building which was linked to the courtroom by way of a portable video unit. People in the courtroom could see the mother and she could see people in the courtroom but the camera could be positioned so that the mother did not have to see the father.
126. Even with this arrangement in place there were still occasions when the mother got up and walked out of the safe room when the issue of family violence was raised.
127. There was absolutely nothing to suggest that this was a stunt by the mother.
128. Not only was that in no way apparent to me, some of the father’s evidence reinforces my view that the mother’s distress was absolutely genuine.
129. The father conceded in his affidavit that the mother was fearful of him and in a letter he sent to her dated 10 December 2015 in which he pleaded with her to let him see the children he said inter alia as follows:
     • I don’t know if this is a long shot but I thought I had to try. Every time I see you, you seem very distressed and I feel responsible for that I’m sorry for everything I put you through over the years at times I wasn’t a good husband far from it and I’m sorry!
     • ................
     • I’m happy to start off with supervised time with someone you trust, maybe (omitted) or even you. Seeing your distress when you see me I think this situation is holding you back from moving on.
130. The occasions to which the father referred were the occasions when the mother saw him when she was obliged to attend court for the contravention proceedings, the property proceedings and mentions of the parenting proceedings.
131. The mother’s distress at the intake interview at the (omitted) Contact Centre was such that the centre would not accept the family into their service. In a letter to the parties they said as follows:
     • The reasons for not accepting the matter is due to our concerns with the mother’s presentation at the intake assessment. The mother presented as distressed at the intake assessment, and the intake couldn’t be carried out. The mother’s level of distress has the potential to be harmful for the children if/when contact visits proceed. The service makes an assessment of a parent’s suitability for the service, partly based on our interactions with parents, and completion of the intake.^[16]
132. The mother was the victim of severe family violence. On occasion she believed that she was going to be killed. She was also the victim of intimidation and harassment by the father after separation which included instances of either the father or someone at his behest entering her home and removing property. The trial judge was satisfied in 2013 that after separation the father had tried to align the children and sway them to sympathise with him and be critical of the mother.
133. In the 2012 family report, the family consultant expressed the view that the mother was suffering from post-traumatic stress disorder and there is ample foundation for that view.
134. In the 2016 report the family consultant said as follows:
     • The Court will need to consider the impact of the family violence, both past and present, on the mother’s ability to function and to parent the children – particularly if Orders are going to be made for the children to spend time with the father or to have further communication with him. Orders that are going to result in elevated levels of stress and anxiety will have a considerable impact on the mother’s ability to manage her Post-Traumatic Stress Disorder and will exacerbate any difficulties she may be experiencing such as sleep difficulties, flashbacks and hypervigilance. If the mother has to worry about her own safety or the safety of the children as a result of complying with Orders, then this is going to impact negatively on her capacity to parent the children. It is in the children’s best interests for their primary carer to be able to function at a high level and it may be necessary to prioritise their safety and stability over and above their relationships with the other parent.^[17]
135. The family consultant said as follows about the possible impact on Y of the mother failing to cope with orders made by the court:
     • Y’s needs are very similar to those of her brothers, despite being at a very different stage of development. She needs consistency and routine and good boundaries; she also needs to feel safe and secure. The mother’s anxiety regarding the outcome of the current Family Law matter is quite significant and Y is able to pick up on that anxiety, which is having a negative impact on her ability to feel safe and secure. Orders are required that will not only reduce the likelihood of this matter returning to Court in the future, but will also reduce the pressure on the family. ^[18]
136. The father’s counsel was scathing about the evidence of the family consultant. He went so far as to call her dishonest. He suggested that she was aggrieved that the trial judge had not followed her recommendations in 2013 and that she had seen the 2016 family report as an opportunity to press again for the outcome she had previously advocated for and had refused to considered the matter with a fresh eye. It was strongly his case that the court should place no weight on any of the family consultant’s evidence.
137. I will have to consider later on the weight to be given to the family consultant’s recommendations about final orders but her recommendations are one thing and her opinion about the possible impact on the mother’s parenting capacity of an order for the children to spend time with the father are another. In my view there is a sound evidentiary basis for the opinion expressed in paragraph 34 of the family report about the potential impact on the mother of an order that the children spend time with the father.
138. The father’s counsel submitted that the court should disregard the mother’s assertion that her parenting capacity would be affected by an order that the children spend time with the father because she had not provided any expert evidence from a medical practitioner, counsellor, psychologist, psychiatrist or the like to back up her assertion.
139. I do not accept that submission. The family consultant is a clinical psychologist and she expressed a soundly based view, and the evidence referred to earlier amply demonstrates the level of distress the mother experiences as a result of what she had to endure during their relationship. It is open to me to find that the mother is likely to experience distress at the idea of facilitating time between the father and X and Y and that this distress is likely to impact on her functioning and parenting capacity.
140. Another approach taken by the father’s counsel was to refer to the fact that the trial judge in 2013 found that the mother had changed her position about whether the father should spend time with the children from a supervised time proposal to a no time proposal because of the recommendation in the family report, the implication being that it was not the mother’s true belief that the children should have no relationship with the father and that she had been unduly influenced by the family consultant.
141. When the mother was asked about this in cross-examination, she said that initially after separation she had not been aware of the impact of exposure to family violence on children and had only gradually come to see and understand that impact. Her answer in her words was:
     • I have seen the impact of the violence on the children. Before I didn’t see it.
142. The mother gave abundant evidence in her affidavit about the difficulties she had had managing Z and X’s behaviour after separation. This is referred to in the 2013 judgment and the difficulties continued after the judgment was handed down. I do not accept that the mother’s position about whether the children should spend time with the children is the result of her being unduly influenced by the family consultant.
143. There is also nothing to suggest that there is any validity in the view the father expressed in his letter dated 10 December 2015 that if time commenced, in other words if the boil was lanced (my words), that it would be a relief to the mother and would enable her to move on.
144. The father’s answer in cross-examination when asked about whether the mother might find it difficult to comply with the order about the children spending time with him was:
     • I don’t think she cannot comply. I think she can comply but she is choosing not to.
145. I can place absolutely no weight on this evidence. The father has never faced up to the extent of the violence, degradation and intimidation he visited on the mother and as a result he has never faced up to the impact on her of being required to come into contact with him and deal with him spending time with the children.
146. Based on the evidence as a whole, I am satisfied that the mother would find it very difficult to cope with an order that the children spend time with the father and that such an order is highly likely to have a detrimental effect on her parenting capacity.
147. Another aspect of this matter is that the father’s application in August 2015 was for all three children to live with him. Subsequently he collected Z and retained him in his care notwithstanding court orders and notwithstanding that there were court proceedings on foot. It would hardly be surprising if the mother feared that if X and Y began spending time with the father he might try to influence these children so that they also “ran away” from the mother.
148. There is a considerable risk that an order for X and Y to interact with the father will cause the mother stress and distress which may affect her parenting.
149. An issue raised by the father relevant to this topic was that he said that he was no longer the same person he had been during the relationship and that there was no basis for the mother to fear that if X and Y spent time with him they would be exposed to violence or pornography, might develop mental health issues or might be exposed to drug use and alcohol abuse and thus fall into the same problems which at one time beset the father. It was his case that if there was no basis for the mother’s fears because he had changed and/or because they were fanciful to begin with, the court could not let those fears determine the outcome of the case.
150. Some of the mother’s fears such as that the children might develop mental health issues are speculative and the issue of pornography was not raised during the hearing and it could therefore be argued that the mother should be required to master her fears about these matters.
151. Perhaps some of these fears should be mastered but in a situation where the father continues to minimise and seek to excuse his violence, where he took Z from the mother’s care and where he retailed in his affidavit complaints Z had allegedly made about the mother which were the same complaints he retailed about her during the 2013 hearing, how can I calm the mother’s fears about what might happen if the father spent time with the children or ask her to accept that he will not do and say things which will deeply unsettle the children and undermine the children’s relationship with her?
152. I must consider the practical difficulty and expense of children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
153. The parents live about 7 hours driving distance apart. This would not make it impractical for the father and Z to spend time with X and Y on some weekends during school terms and during the school holidays as the father proposed, nor would it make it impractical for him to spend supervised time with X and Y for six months as he proposed provided that he was prepared to travel.
154. I must consider the capacity of each parent or any other person to provide for the needs of the children including their intellectual and emotional needs.
155. The mother has parented the children well since separation.
156. There can be absolutely no doubt that the children were exposed to family violence during the relationship. Z tried to pull the father off the mother during the final assault. The period directly after separation was very difficult indeed for the mother, marked as it was by such things as the father denigrating the mother to the children, persuading Z and X to run away and wait down the road to be picked up and retaining the children for several days after the mother agreed to him spending time with them.
157. As the trial judge recognised in his 2013 judgment, the mother had to parent the children in circumstances where the father was engaging in aligning behaviour and teaching the children to disrespect her when they spent time with him.
158. The difficulties the mother experienced with Z and X and their displays of anger and aggression continued long after separation and long after the 2013 judgment. However notwithstanding the challenges, the mother unfailingly supported Z and X with their education and neither child in conversation with the family consultant in October 2015, made any complaint about the mother’s day to day care of them or about any lack of opportunity to attend school and take part in extra-curricular activities.
159. Only X and Y now remain in the mother’s care and she has the capacity to provide for their day to day needs in the future. She is not meeting their emotional needs insofar as they express a wish to see or a curiosity about seeing the father but this is due to a combination of her genuinely held belief that this would not be in their best interests and a sheer inability as a result of her own experiences to facilitate that time.
160. To all appearances the father is properly providing for Z’s day to day needs. The mother and her brother Mr M were highly critical of the father for allowing Z to leave school and commence a (omitted) apprenticeship but I do not have sufficient information about Z’s achievements at school or his interests to make a finding that this was a poor decision by the father.
161. During the 2013 trial, issues were raised about the father’s historic drug use and cultivation of cannabis but the trial judge found that he was not presently using drugs and there was nothing to suggest at the hearing before me that the father was currently using drugs.
162. Evidence was given during the 2013 trial about the father having historically been involved in violent or unpleasant disputes with the police, workmates, neighbours and strangers with excessive alcohol consumption often being a feature. However the trial judge found that he had made a decision to cease drinking.
163. The father ceased attending AA and resumed drinking as soon as the trial ended, indeed at the trial before me he said he did not remember telling the trial judge in 2013 that he intended to abstain from alcohol altogether. However his evidence and the evidence of his partner was that while he drank regularly, he did so in moderation and did not regularly becoming intoxicated.
164. There has been only one incident since 2013 which has brought the father to the attention of anyone in relation to his drinking and that was an incident at New Year’s Eve in 2014 when he was asked to leave a hotel because he was drunk. The father admitted that this happened although he denied that he made a nuisance of himself. His version of events was that he was simply refused service because he was intoxicated and that he and his partner then left the hotel. The father was not charged with any offences and I cannot find that anything of huge moment happened on that occasion.
165. The father denied that since the 2013 trial there had been any incidents where he had been argumentative or confrontational with police, strangers, workmates or neighbours and there is no evidence to contradict this. There was one occasion where a neighbour complained to police about the father but it was in respect of a dispute over the neighbour being able to collect sheep which were on the father’s land. There was no allegation that the father had been violent or had made threats and the matter quickly blew over.
166. The mother has heard gossip that the father may have been violent to one of his post-separation domestic parties and that one of his family members had needed police assistance because of his behaviour but the father denied that these things had occurred and mother did not call anyone to give evidence about those matters and I could not remotely safely find on the basis of the evidence at trial that any such incidents had occurred.
167. The family consultant did not accept that the father had changed. She said as follows:
     • The subpoenaed material from the NSW Police together with the father’s self-reports in his Affidavits and during the current interviews would appear to indicate that the father’s decision to change his life-style and behaviour was extremely short-lived. He currently drinks alcohol on a regular basis, including to excess, and he continues to experience conflict with others, including recent documented conflict with an elderly neighbour which required police intervention. His patterns of behaviour are well-established and appear unlikely to change.^[19]
168. However on the basis of the evidence before me, it would be unsafe for me to find that the father has continued with the same pattern of behaviour toward others since the 2013 orders.
169. The mother questioned the father’s capacity to provide for the children’s emotional needs. It was her view that the father had contributed to Z and X being unsettled in her care by his actions after May 2013.
170. The orders provided for the father to spend supervised time with the children for 12 months before time moved to limited periods of unsupervised time. Telephone communication was to commence when the children had spent one year of supervised time with him and there was provision in the orders for the father to send the children letters, cards and gifts.
171. There was no provision in the orders for the father to have Facebook communication with the children.
172. The mother was of the view that the father had commenced communicating with Z through Facebook using an account in the name of the paternal grandmother in 2014. The family consultant in the second family report suggested that the father had admitted that this had occurred.
173. The father denied it at trial but he was an unreliable witness who sometimes gave contradictory answers and it does seem odd that the father was immediately able to converse with Z on Facebook on 12 April 2016, the day Z ran away, not having done so previously, rather like someone whose car has been sitting unattended for a year after they lost their licence being able to jump into it in an emergency and miraculously find it working.
174. My unease about whether the father is telling the truth about the Facebook communication is heightened by the fact that there is no doubt that at Christmas 2015 the father sent Z an MP3 player with some songs which were unsuited to his age and which the mother felt were messages for her together with a message hidden in the instructions for operating the player which contained the father’s telephone number. Z noticed the oddity of the songs and the message in the instructions and drew them to the mother’s attention.
175. On 12 April 2016 the father responded to what he said were Z’s attempts to contact him on Facebook and he said things to the child which effectively encouraged him to run away from the mother’s care. He then arranged for his brother to collect the child and drove down from (omitted) where he lives and took Z back to (omitted) with him.
176. The father also inexplicably sent each of the children large cash gifts around the time of Y’s birthday in 2016.
177. The father has never given up on his pursuit of time and a relationship with the children and I am satisfied that he has pushed the boundaries on occasions in an attempt to influence the children.
178. The father and his counsel were highly critical of the mother for not having expeditiously taken part in an intake interview with (omitted) Contact Centre after the 2013 orders were made but seemed oblivious to the fact that in collecting and retaining Z the father had openly breached the court orders and had done so in circumstances where there was nothing to suggest that Z’s health or safety required the father to take the action that he did. If he genuinely feared for Z’s safety being in a local park, he could have called the local police.
179. The father went on to make a unilateral decision about where Z should attend school and when he should leave school and he retailed in his affidavit old complaints about the mother not feeding the children and exposing them to being in bed with a boyfriend.
180. It is easy to understand in the light of the father’s actions since the 2013 orders were made, why the mother fears what might happen if X and Y commenced spending time with him.
181. I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
182. I mentioned earlier that the court would have to be concerned about the impact on Z of an order which meant that he could not see X and Y but Z is 16 and is in the workforce and I have no accurate current information about his mental state. The Headspace notes do not refer to any threats of self-harm.
183. X has suffered difficulties throughout his life as a result of his exposure to family violence and the mother has struggled to deal with the fallout of this ever since separation. She has devoted herself to helping X however and her evidence, which was not contradicted by any other evidence in the case including evidence led by the Independent Children’s Lawyer, was that he was now more settled.
184. I must consider if the children are aboriginal children, their right to enjoy their culture with other people who share that culture and the likely impact of any proposed parenting orders on that right.
185. The mother is Aboriginal as are the children and during the 2013 trial the mother expressed concern that the father did not respect aboriginal people.
186. The family consultant in her first report referred to information which she felt gave this concern foundation and she noted in her second report that the father had not referred to the mother as Aboriginal when completing his initiating application in 2015. The application contains a box which can be crossed if someone identifies as aboriginal and the father did not cross that box for the mother.
187. However absent this, the evidence about this whole issue was almost non-existent in the trial before me and it is not open to me to find that the children’s identity as Aboriginal children would not be recognised if the children spent time with the father or in the case of Z, lived with him.
188. I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of their parents.
189. The father showed a very poor attitude to the responsibilities of parenthood and to all his children when he connived in Z leaving the mother’s home and commencing to live with him. The result of his action has been a severance of Z’s relationship with his mother and his siblings and Z grieves over the loss of his relationship with his siblings.
190. I must consider any family violence involving the children or a member of the children’s family.
191. The father subjected the mother to severe physical violence over the course of a lengthy relationship. He sexually assaulted her when the parties were teenagers and continued to assault her throughout their relationship. In his judgment the trial judge said among other things the following:
     • He frequently assaulted her by throttling her and holding her body weight off the ground by the throat. He kicked and hit her, even at times when she was pregnant. He also locked her out of the house away from the children.^[20]
192. The father was convicted of assault on two occasions, namely in 2002 after he assaulted the mother so severely that she had two black eyes and her left eye was swollen shut and in August 2011 when he pushed the mother to the ground, held her by the throat and chest and said “I’m going to bury you, you bitch.”
193. Z, aged 10, intervened in the 2011 assault and as a result, the father let the mother up. She walked 10km to the hospital for treatment.
194. The father continued to intimidate the mother after separation including by clandestinely entering or arranging for someone else to enter the former matrimonial home where she initially remained and removing property and continuing to contact her and the children. He was convicted of contravening the ADVO.
195. During the 2013 trial the father only admitted that he had assaulted the mother on the two occasions which led to him being charge and convicted. His words and actions after separation created a perception in the children’s minds that the mother was at least partially to blame for what she had endured and that when the father flung words such as “slut” at her it was excusable because of her behaviour. The depth of the impression this made on the children is illustrated by Z saying to the mother not long before he left home in 2016:
     • If people can’t change your still a slut.
196. The father still makes no admissions about violence other than in respect of the convictions and even then it is clear that he accepts minimal responsibility and continues to blame the mother.
197. Ms A was asked what the father had told her about his convictions. She said that he had told her that one (presumably referring to the 2011 incident) involved an occasion when the mother approached him with a rake and he defended himself. He told Ms A that he admitted to a charge of touching the mother without her permission.
198. Ms A said that he told her that there was another assault (presumably the 2002 incident) “where he connected with the mother via his fist.” He told Ms A that there was an argument and he lost control. ^[21]
199. The father made no mention of the mother’s injuries on either occasion and Ms A did not ask for any further details.
200. The father refuses to face up to what he has done. He avoids reading documents such as the family reports or the 2013 judgments which lay out in graphic detail the acts of violence he committed and as a result he has no empathy for the mother.
201. The father is also either unwilling or unable to accept that exposure to family violence might have harmed his children. His answers in cross-examination when asked about their exposure to family violence and its effect on them were generally along the lines of “I can’t remember that long ago” or “I can’t comment on that” although he did make one grudging concession that they may have been affected by exposure to violence.
202. The father’s failure to take responsibility for his actions and his casting blame on the mother has a number of implications for this case.
203. The fact that the father was extremely violent to the mother throughout their 11 year period of cohabitation in addition to assaulting her when they were teenagers gives rise to a considerable sense of unease that he may be violent in future domestic relationships. There is absolutely nothing in the evidence to suggest that this was ever couple violence or that the mother ever made a contribution to what happened and the fact that there is no evidence that the father has been violent to a domestic partner since separation does not entirely remove that unease, especially when he has not ceased using alcohol.
204. The father has never done a perpetrators course. An anger management course insofar as the father may have done, one does not address the issue of perpetration of coercive and controlling violence in a domestic relationship.
205. I cannot expect the mother to feel comfortable about the father spending time with the children when he continues to largely deny the violence and infers that the mother was partially responsible for the little he does admit to.
206. The father risks damaging his children psychologically by refusing to acknowledge what he has done to their mother and failing to face up to the effect his violence has had on her. If an order is made for X and Y to spend time with him, there is a real risk that he may either actively or passively seek to draw these children away from their mother and into his camp as a hard done by individual who has been denied contact with his children for six years without any valid reason.
207. The notes produced by Headspace reinforce this concern. Soon after Z came into the father’s care, the father arranged for him to attend Headspace, an adolescent mental health facility. He said that he did this because of a concern about Z’s anger toward the mother and Z attended on 9 occasions prior to the trial commencing in December 2016.
208. Unfortunately, Headspace was given inaccurate information about the history of the matter. It is unclear to what extent the information came from the father and to what extent it came from Z but there is no reference in the Headspace notes to the reasons for the 2013 orders and the reason given for the referral was that Z had been brainwashed by the mother and not permitted to have a relationship with the father.
209. I must consider if a family violence order applies, or has applied, to the children or a member of the children's family-any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter.
210. Family violence orders were made in 2002 and 2011 when the father was charged with assaulting the mother but they have long since expired and considering them as a separate issue will not assist me.
211. I must consider whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
212. There is no such order in this case. Given what has happened with the parties trying to put the 2013 order for supervised time into place and what has happened with Z, there is a considerable risk of further litigation between these parties.
213. I must consider any other fact or circumstance which the court thinks is relevant.
214. There are no other relevant facts or circumstances.
215. I must then return to the primary considerations and the first of those is the benefit to the children of having a meaningful relationship with each of their parents.
216. I cannot make an order which will ensure that Z has a meaningful relationship with his mother. It is clear that the mother wishes to keep him at a distance while he lives with the father.
217. X and Y will not have a meaningful relationship with their father, in other words, a relationship which is significant, important and valuable to them^[22] if they do not see him.
218. If they do see him and he really has put his past problems with alcohol and violence behind him and he manages to quarantine them completely from his views about the mother and the historical violence and sensitively answer any questions they have about why they have not seen him for so many years, then he and the children might forge a meaningful relationship.
219. However there is a considerable risk that he will not be able to quarantine the children from his view of the past and will not be able to sensitively answer any questions they have about the events of the last four years.
220. The father does not accept that he is to blame for not having seen much of the children since separation; that is clear enough from his letter to her dated 10 December 2015. That he has no respect for the mother is evidenced by his actions with Z in April 2016. There is a considerable risk if X and Y are reintroduced to him that either their relationship with their mother will be undermined or even lost or they will become anxious and confused by being drawn in two different directions by their parents.
221. X and Y may be able to keep a foot in both camps; but at worst one or both of them may be drawn completely into their father’s camp and either reject their mother or find that the mother is so distressed that she is unable to have a meaningful relationship with them.
222. I must consider the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
223. It is not open to me to find that there is an unacceptable risk of the children being exposed to family violence in the father’s care at present.
224. There is no evidence that he is a leopard who has changed his spots but there is also no evidence that in the six years since separation, he has been involved in violent incidents either with domestic partners or in the community.
225. I feel some unease about this because the father has never done a perpetrators course, accepts no responsibility for his violent actions and continues to drink, and family violence can take many forms some of which are not immediately apparent to outsiders. However, I cannot find on the state of the evidence that the risk of the children spending unsupervised time with him is unacceptable at present from the point of view of their physical safety or the likelihood of them being exposed to family violence.
226. There is no evidence that the children are likely to be exposed to neglect in the father’s separate care or to abuse in the form of physical assaults. In 2014 Z made detailed and graphic complaints about the father assaulting him but they were never investigated by the police. The father denied them at trial save for admitting that he had hit Z with a belt once and this situation also causes me unease given the established evidence about the father’s behaviour. However it would be unsafe for me to find on the state of the evidence, that these incidents occurred often as Z described or that there was a risk of the children being physically abused by the father if they spent unsupervised time with him.
227. The children will not be exposed to abuse, neglect or family violence in the mother’s care.

Parental Responsibility

228. In 2013 an order was made for the mother to have sole parental responsibility for the children.
229. At trial in 2016 the mother sought a continuation of that for the two younger children but given Z’s change of residence, she did not oppose an order that the father have at least some parental responsibility for him.
230. The father proposed that he have sole parental responsibility for Z and that the parents have equal shared parental responsibility for the younger children.
231. The fact that the father made that proposal about the younger children notwithstanding acknowledging that the mother was frightened of him and continually exhibited distress when she saw him and notwithstanding that he had removed Z from her care and unilaterally made decisions about him, suggests a very serious lack of insight by the father.
232. The presumption in s.61DA of the Family Law Act does not apply because of family violence and the evidence strongly suggests that these parties will not be able to communicate in the future let alone have a productive discussion about anything.
233. It was agreed that X and Y would continue to live with the mother and the only appropriate order is that the mother continue to have sole parental responsibility for them.
234. The Independent Children’s Lawyer proposed that the father only be given liberty to sign documents enabling Z to receive medical treatment and documents required in connection with his education, training or employment, but other issues could arise which are important to Z which I cannot foresee and given that he is living with the father and is estranged from the mother, it would be unfair to him if the father was not able to sign necessary documents.
235. I will make an order that the father have sole parental responsibility for Z while Z lives with him but that if Z returns to live with the mother then she shall have sole parental responsibility for Z.

The recommendations in the Family Report

236. The family consultant’s recommendations were clear and unequivocal.
237. In her 2012 report she said as follows:
     • It is recommended that the children spend no time with the father and that he is restricted from communicating with them either directly or through others. ^[23]
238. In 2016 she said as follows:
     • It is recommended that the children spend no time with the father and that he be restricted from communicating with the children by any means, either directly or through others. The Family Consultant does not support any information being sent to the father or any exchange of gifts or cards. In this case, the benefits to the children do not outweigh the costs of the emotional and psychological stress that this incurs.^[24]
239. The father’s counsel submitted that no weight should be placed on the recommendations in the 2016 report. He submitted that the family consultant was aggrieved that the court had not followed her recommendations in 2013 and that she had set out in her second report to prove that she had been right and the court wrong and had not been willing to consider alternative hypotheses, for example that perhaps the father had changed and that it might be appropriate for the children to spend time with him.
240. He submitted that the family consultant’s interpretation of the subpoena material about post-separation events concerning the father was clearly wrong and was evidence of a mindset that there had never been anything good to say about the father and never would be.
241. I share the view of the father’s counsel about the conclusions which can be drawn from the subpoena material but the recommendations of the family consultant do not stand or fall on whether her interpretation of that material was correct.
242. However the recommendations in a family report do not determine the outcome in any case.
243. Family reports are valuable pieces of evidence for many reasons. They provide information about children’s views and experiences, insight into the parents’ attitudes and information about research in relation to issues to do with children. The recommendations made in such reports by a dispassionate professional about the outcome they perceive to be in children’s best interests are often valuable but they are only one part of the report and the court must always come to its own decision after taking into account not only the content of the report including the recommendations but all of the other evidence before it and that is what I intend to do.

Conclusion

244. The father’s case is best understood by starting with a consideration of the reasoning behind the recommendations in the 2012 family report. The family consultant said as follows:
     • Given the father’s lack of insight into his own behaviour, the ongoing abuse of alcohol and his lack of remorse with regards to the family violence – it is felt that should the children continue to spend time with the father (especially block periods of holiday time) this will only present him with the opportunity to further align the children and they will continue to suffer emotional and psychological harm. This may be a case where no time with the father is the only way to protect the children and provide them with some respite from the conflict and the opportunity to repair the damage that has already been done to them to date. It will be necessary to weigh up the long term risks to the children’s well-being against the benefits of them maintaining a relationship with their father at this point in time.
     • It is the opinion of the Family Consultant that very little weight should be given to the children’s views at this time as their current affinity or preference for spending time with the father is as a result of their exposure to the family violence. One way of explaining this is that if you are in danger of being beaten up by a bully at school then the best way of preventing this from happening is to be friends with that person, even if it means helping him to beat up other people – that way, at least you aren’t being hurt.
     • The mother has always been the children’s primary carer – she was the one who looked after them and protected them from the father who had a pattern of going to the pub each night after work and coming home inebriated and aggressive. The mother has always been the one to take the children to their doctors’ appointments and to attend their school meetings – the recent interest shown in that regard by the father can be seen as an attempt to regain control of the situation rather than an attempt to involve himself in their lives. Unfortunately, the boys appear to have craved this attention from their father for a long time and are now responding to the attention being shown to them by seeking to earn his approval (even if this means engaging in dangerous or antisocial behaviours). The fact that this type of behaviour appears to be condoned or even encouraged by the father and the extended paternal family is of enormous concern to the Family Consultant.
     • It is therefore suggested that the Court give consideration to making an Order for the children to spend no time with the father. Should the father decide to make some significant changes to his life, which would include addressing his drug and alcohol issues (by becoming abstinent and attending an Alcohol Rehabilitation Program – preferably on an inpatient basis and for an extended period of time) as well as his role as the perpetrator of family violence by attending an accredited program and gaining some insight into his problematic behaviour – then it may be possible for him to make a further application to the Court to recommence spending time with the children (after an initial period of at least 12 months where he has been abstaining from alcohol whilst living in the community). Initially, this time would need to be supervised.^[25]
245. The trial judge in 2013 was satisfied that the father had made some changes in his life between the release of the report in October 2012 and the hearing in April 2013. The father told the trial judge that he had ceased using alcohol altogether and that he had done an anger management course as well as a parenting course.
246. The trial judge placed considerable emphasis on the importance of the children having the opportunity to have a relationship with both of their parents and was satisfied that the changes the father had made to his lifestyle and the courses he had done warranted making orders which would ensure that the children had a relationship with both their parents in the future and not just one of them.
247. The father resumed using alcohol fairly soon after the 2013 hearing but apart from an incident at a hotel in 2014, which did not involve threats of violence to anyone and a dispute with a neighbour about the possession of sheep which also did not involve any violence or threats of violence, on the evidence available to me the father has lived a blameless life since the 2013 court orders and the nub of the father’s case was that if the trial judge in 2013 did not see fit to end his relationship with his children, how could this court justify doing so now when he had not got into any further trouble? Surely the only course open to this court was to make orders which would put the scheme in the 2013 orders back on the rails and ensure that X and Y commenced spending time with their father.
248. The problem for the father is that the passage of time since the 2013 judgment has served to highlight the impact on the mother of having been subjected to serious physical violence, degrading verbal abuse and controlling behaviour for more than a decade.
249. The mother has not recovered from what she was subjected to. She remains fearful of the father. Being in his presence or being forced to relive the violence causes her considerable distress. It is abundantly clear that she cannot cope with the idea of the children spending time with a man who continues to deny his violence and continues to disrespect her and who she also not unreasonably believes is intent on removing the children from her care and getting them to share his views about her.
250. There can be no doubt that the father does not respect the mother. If he had any respect for her he would not have been instrumental in removing Z from her care in April 2016. A word from him would have made all the difference to whether Z remained in the mother’s care or ran away to the father. If he respected the mother he would not have recycled in his trial affidavit the old allegations about her not providing food and being seen with a new partner.
251. If an order is made that X and Y spend time with the father, there is an extremely high risk that the mother will be adversely affected by it and a high risk that these children, who have endured a great deal of instability, uncertainty and upheaval in their lives as a result of the father’s behaviour, will suffer deficient parenting from the mother and could, as has happened with Z, even lose her altogether.
252. It has taken the mother years to deal with the effect on X’s behaviour of being exposed to the family violence which occurred during the parties’ relationship. It would not be in X’s best interests for the mother to become destabilised now and the evidence about what happened at the intake interviews at the contact centre and what happened during the court hearing before me indicates how easily the mother can become destabilised.
253. The father has caused enormous damage to this family. He refuses to acknowledge what he has done or the extent to which he has caused the mother psychological harm. To make an order for X and Y to spend time with him would be emotionally and psychologically destructive for the mother and would allow the father to continue to wreak havoc on the family.
254. There is in my view an unacceptable risk that if the father commences spending time with the children he will not be able to resist informing them, just as he has informed his current young partner, that he was not guilty of one of the assaults he was convicted of, that his actions in respect of the violence he inflicted are explicable by the mother’s contributing conduct and that the mother is fabricating evidence about the remainder of the allegations she has made about verbal and physical abuse. This would be destabilising and confronting for the children and would be highly likely to either cause them psychological distress or undermine their relationship with their mother.
255. In addressing his issue of alcohol consumption, which he appears to have done, the father has only nibbled at the edges of his problems. He is a perpetrator of serious family violence and the mother is terrified of him. Unless and until he addresses that issue and faces up to his behaviour, there is in my view no prospect of him having a meaningful relationship with X and Y and I question whether Z will benefit from spending regular time with the father unless of course Z is able to compartmentalise his memories of the past and not be persuaded that his memories of the past are wrong and that the father is, as the father continues to wish the world to believe, a hard done by individual who was part of a relationship in which a couple fought and argued.
256. X would like to see his father and a no time order will be contrary to his views, and an order that he and Y spend no time with the father is in my view very likely to result in them spending no time with Z who is now aligned with the father. However, this is a case in which X’s views must give way and sadly, it is also a case where I cannot meet the needs of all three children and cannot meet Z’s need to spend time with his siblings.
257. The mother may face difficulties ahead if a no time order is made. X may as he gets older and enters adolescence, decide just as Z has done, that he wishes to see his father regardless of what the father has done. He also may leave the mother’s care. However it does not follow that it would be in his best interests for me to make an order now for him to spend time with his father
258. I intend to make an order that the father’s spend no time with and have no communication with X and Y.
259. I also intend to make an order that Z spend time with and communicate with the mother as agreed between the mother and Z and I make this order in the full knowledge that it may mean that no time occurs because the mother will not agree to it.
260. In those circumstances there is merit in the proposal that the mother should be allowed to relocate from (omitted) if she wishes and that orders concerning telephone communication and the sending of letters, cards and gifts should be discharged.
261. In her amended response the mother sought an order that she be able to obtain passports for X and Y without the father’s consent.
262. The mother’s affidavit did not contain any evidence about this issue but I intend to make the order to prevent the necessity of the parties returning to court.
263. Since December 2011 the parties have been involved in parenting proceedings, contravention proceedings, property proceedings and then a second round of parenting proceedings. There has not been a year since 2011 when they have not had one matter or another before the court and the sole parental responsibility order will not suffice to enable the mother to travel internationally with the children.
264. There was no suggestion that the mother had any overseas connections or that there was any risk that she intended to relocate overseas and many Australians like to go on overseas holidays for example on a cruise or to (country omitted). Children sometimes have the opportunity to travel internationally with their class or a sporting group.
265. I therefore intend to make an order permitting the mother to obtain passports for the children and travel internationally with the children.
266. The Independent Children’s Lawyer proposed that an order be made requesting the family consultant to explain the orders to X & Y and to invite Z to receive an explanation of the orders. I do not intend to make that order. It would be logistically difficult to implement, it is unlikely that Z would be willing to attend, X has always been reluctant to speak to the family consultant and I am unclear about what would be gained by making such an order.
267. The Independent Children’s Lawyer also proposed that the manager of the Newcastle Registry of this court provide a copy of the two family reports to the Department of Family and Children’s Services and to Headspace in (omitted).
268. I do not intend to make that order either. The Department has no involvement in this matter and it is not clear to me why such an order was sought regarding the Department, and while it is concerning that Headspace have been given information about the background to Z’s situation which is quite wrong, they could well consider it an invasion of Z’s privacy as their client to have lobbed on them reports they have not been asked to read either by Z or his father.
269. I will make an order as proposed that the mother have liberty to provide the family reports to any psychologist, family therapist or psychiatrist treating the mother, X, Y or if he ever returns to her care prior to becoming an adult, Z.
270. During closing submissions there was discussion about including a notation on the orders to the effect that the mother had expressed an ongoing willingness to speak to Z but on reflection I am disinclined to make such a notation. Z and the mother will either make their peace or they will not and a notation that the mother is willing to speak with Z may do more harm than good if the reality is that the mother is not willing to speak to him regularly, freely and openly while he continues to live with the father.
271. For all of the above reasons the orders will be as set out at the beginning of this judgment.

I certify that the preceding two hundred and seventy one (271) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 29 November 2017

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^[1] Radley & Radley (2013) FamCA 346
^[2] Radley & Radley (2013) FamCA346 paragraphs
^[3] Radley & Radley (supra) paragraphs 43-52.
^[4] This behaviour is referred to in detail in the first Family Report
^[5] Radley & Radley (supra) paragraphs 83 to 92
^[6] Rice & Asplund [1978] FamCA 84; (1979) FLC 90-725
^[7] SPS & PLS (2008) FLC 93-263 ;
^[8] Hungerford & Tank (2007) FamCAFC 637
^[9] Paragraphs 68 – 72 of the 2016 Family Report
^[10] Paragraph 80 of the 2016 Family Report
^[11] Family Report paragraphs 89 and 90.
^[12] 2016 Family Report paragraph 76
^[13] Mother’s affidavit paragraph 9
^[14] Mother’s affidavit paragraph 18
^[15] Mother’s affidavit paragraph 26
^[16] 2016 Family Report paragraph 21
^[17] 2016 Family Report paragraph 35
^[18] 2016 Family Report paragraph 92
^[19] Second family report paragraph 98
^[20] Radley & Radley (supra) paragraph 47.
^[21] Cf the father’s statement to the family consultant in 2012 that he could not remember this incident
^[22] Mazorski & Albright [2007] FamCA 520; (2007) 37 Fam LR 518
^[23] Page 44 of the 2012 Family Report
^[24] Page 27 of the 2016 Family Report
^[25] 2012 family report paragraphs 144 to 147.