Sole Parental Responsibility to Mother with no Time and no Communication for Father

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The Father had threatened to kill the Mother and the child and had also assaulted the Child.

The Mother was frightened of the Father.  

The Judge found that the Father posed a risk of harm to child, had no empathy with the child, frightened his child and so for those reasons, there was no benefit to the Child in having a relationship with him.

An Order was made for the:

  • Mother to have Sole Parental Responsibility for the Child;
  • Child to have no communication, nor any time at all with his Father.




NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  

Dallas & Matthews [2017] FCCA 1430 (1 June 2017)

Last Updated: 14 July 2017

FEDERAL CIRCUIT COURT OF AUSTRALIA

DALLAS & MATTHEWS
Catchwords:
FAMILY LAW – Parenting – Whether a child aged 7 should spend time with his father – where the father has perpetrated significant controlling and coercive family violence – where the father enrolled in a Men’s Behavioural Change Program after separation but was exited after four sessions because he continually referred to the child as “it”, said that he could understand why the father threw his child off the bridge and said that he had thoughts of going around and killing the mother and child – where the child would be at unacceptable risk of harm in the father’s care and where the mother would find it impossible to comply with an order that the child spend time with the father – order made for no time and no communication.
Applicant:
MS DALLAS
Respondent:
MR MATTHEWS
File Number:
TVC 163 of 2015
Judgment of:
Judge Terry
Hearing dates:
25 & 26 May 2017
Date of Last Submission:
26 May 2017
Delivered at:
Newcastle
Delivered on:
1 June 2017


REPRESENTATION

Counsel for the Applicant:
Ms Mayes
Solicitors for the Applicant:
McDonald Leong Lawyers
The Respondent:
In person
Counsel for the Independent Children’s Lawyer:
Mr Collins
Solicitor for the Independent Children’s Lawyer:
Spina Kyle Waldon

ORDERS

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(1) All existing parenting orders concerning the child X born (omitted) 2009 are discharged.
(2) The child shall live with the mother.
(3) The mother shall have sole parental responsibility for the child.
(4) The child shall spend no time with and have no communication with the father.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

TVC 163 of 2015

MS DALLAS

Applicant

And

MR MATTHEWS

Respondent

REASONS FOR JUDGMENT

Introduction

  1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
  2. This matter involves an application for parenting orders in respect of X aged 7 and the issue in the case is the father’s time with the child.
  3. The mother sought an order for no time and no communication. It was her case that the father perpetrated serious family violence during the relationship and that since separation he had threatened to kill her and the child. She said that she took the threats seriously and that the child would be at unacceptable risk of harm if he spent time with the father and further that because of the threats the idea of sending the child to spend time with the father was intolerable to her.
  4. It was somewhat unclear at trial exactly what the father was seeking. In his response filed on 20 March 2015 he said that he was seeking an order that the child spend time with him each alternate week from Thursday to Tuesday but he did not clearly articulate what he wanted at trial.
  5. The best I could gather was that he struggled with the idea that he should be denied a relationship with his son. He did not admit to any intention to kill the child and it appeared to be his case that because his relationship with the mother was over there should be no concerns about how he might react to her.
  6. During final submissions Counsel for the Independent Children’s Lawyer supported a no time and no communication order.

The evidence relied on

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  1. The mother gave evidence in her case and the father and the paternal grandmother Ms G gave evidence in the father’s case.
  2. Ms G’s affidavit did not greatly assist me. She was not present at any of the alleged domestic violence incidents.
  3. A family report was prepared in October 2015 by Ms M, a family consultant, and an expert’s report was prepared in July 2016 by Dr R, a psychiatrist.
  4. All of the witnesses were cross-examined.

The father’s evidence

  1. At trial the father relied only on the affidavit he filed on 20 March 2015 soon after the proceedings commenced.
  2. There have been many developments since then, including the father spending some short-lived time with the child at a contact centre, the father being exited from a Men’s Behavioural Change Program, the father making comments to a Child Support officer which so alarmed her that she contacted the mother and recommended that she go to a police station and the father pleading guilty to assaulting the mother.
  3. The father agreed that he had been told by the presiding Judge when the matter was listed for hearing that he should file an updating affidavit. He did not do so and he therefore did not address in an affidavit any of the matters which had occurred or were alleged to have occurred since 20 March 2015. He was not able to explain why he had not filed a further affidavit.
  4. The fact that the father failed to deal with the post-separation allegations and developments feeds into a concern raised by both the family consultant and Dr R about the father’s responses when he was asked questions about various matters. Dr R said that the father was angry during his interview with him and that he could not get a straight answer from him when he asked him about certain matters. Ms M also referred to the father reacting to questions with anger and deflecting when asked to deal with specific issues.
  5. I will need to make findings about the serious allegations of family violence made by the mother and in those circumstances the credit of witnesses is relevant. The fact that the father declined to provide evidence about certain things is relevant to his credit and in addition some serious credit issues emerged during cross-examination of the father.
  6. The mother alleged that on 2 November 2014, about three weeks before separation, the father slapped X hard on the chest with an open palm and that X screamed with pain and had a full handprint mark on his chest as a result of the slap. She said that the father justified what he had done by saying that at least he did not use his fist.
  7. In his affidavit filed on 20 March 2015 the father said this about what happened:
    I turned around and smacked both children –

because he said that A was involved in the incident as well; A is the mother’s grandchild –

I turned around and smacked both children but not in the manner suggested. It was not a hard smack and it was to quieten them down and move them along.

  1. The father told Dr R that he hit X with an open hand on the chest saying: “I slapped him.” He said that he was angry with A and X and “I smacked them both to leave the room.
  2. When the father was asked about this incident in cross-examination however his response was:
    I slapped both children that day. It was excessive, even to the point where I reported it to the school teacher the next day. I told her I may have over-smacked X and Ms Dallas was making a big deal about it.
  3. This was a significant change of position and eventually an admission, to an extent, about what he did to X on 2 November 2014.
  4. The second striking instance of the father changing his story concerned the occasion in 2010 when the father pulled on the handbrake while the mother was driving.
  5. The mother said that a heated argument erupted and that without warning the father pulled on the handbrake causing the car to slide sideways and come to a stop in the gutter. B, X, A and I think C were in the car.
  6. In his 2015 affidavit the father said as follows about this incident:
    The handbrake was not pulled on in anger and the idea was to slow the car down. It did not cause the car to slide sideways. Ms Dallas drove the vehicle to a stop, ie, it did not slide to a stop and it was controlled.
  7. During cross-examination I asked the father if his action in pulling on the handbrake had been dangerous and could have caused a serious accident. His response was, “I guess you could say so,” and he added, “It wasn’t my finest hour.”
  8. The father was then asked about his evidence that the car had not slid sideways and his response was:
    I suspect it did. It went from one lane to the next.
  9. He also agreed that after the car stopped the mother and children were hysterical.
  10. Another concern was the evidence the father gave about what happened on 23 November 2014. His evidence about that in his affidavit was economical in the extreme but he alleged that the mother became hysterical and was trying to push him out of the car and that he was unfairly targeted as being to blame.
  11. In cross-examination however he commented that:
    Unfortunately I was on top of her and thereafter it became an assault.
  12. Some of the father’s other responses in cross-examination were very unsatisfactory. For example when he was asked about whether he had made threats to kill the mother and child at the men’s group he did not deny it. His response was: “have you got evidence?” He then went to make certain admissions about the things that he had said and I will come back to that in a moment.
  13. The father was not a witness of credit and that will have a bearing on my assessment of the mother’s allegations about family violence.

Background

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  1. The parties met when the mother was 40 or 41 and the father 38. They formed a relationship in (omitted) 2009. The mother fell pregnant soon afterwards and the parties’ child X was born on (omitted) 2009.
  2. The mother has two older children, C, who would have been about 17 when the relationship commenced and B, who would have been about 11. They have always lived with the mother.
  3. The father has a daughter D who would have been about 11 when the relationship commenced. She spent time with the parties early on. The father has not spent any time with her since she was about 14. It is unclear why there has been a breach between the father and D.
  4. The parties’ relationship was onandoff. They had some separations and they did not always live under one roof. The relationship finally ended on 23 November 2014 after an incident which led to the father being charged with assault.
  5. It was the mother’s evidence that her concerns about the father began when she was pregnant. She alleged that he made comments about what he might do if the mother did not have a girl. She said that she was frightened when he told her he had his heart set on a girl and that if the child was not a girl he should drive his truck into a school bus because if he could not have the child he wanted other people should lose their children.
  6. The mother said that she had concerns about the father’s treatment of X after his birth. She alleged that he was frequently insensitive and did potentially dangerous things such as pushing the baby’s head into the lounge when he cried, gagging him with his fingers when he cried, letting him slide down his leg when he was six weeks old, dripping milk into his mouth from a bottle, letting him touch hot things and sitting him on the kitchen bench next to the stove when he was cooking.
  7. The mother alleged that there were incidents of family violence directed at her from fairly early on in the relationship. She alleged for example that the father would control her behaviour by driving dangerously or by taking or threatening to take the child.
  8. The mother gave evidence of an incident in July 2010 when she had arranged to see her former partner Mr W about the sale of something. The father was driving her there. She said that he was unhappy that she was going to meet Mr W and began driving very dangerously and when she eventually persuaded him to stop the car she was so frightened that she cancelled the appointment with Mr W.
  9. The mother described the incident in August 2010, the handbrake incident that I have already referred to, where the father was in the passenger seat. The family had been out shopping and a huge argument erupted on the way home. The father pulled the handbrake on causing the car to slide sideways into the gutter. The mother said that she got out and the father pulled the keys out of the ignition and broke something and threw the keys into the garden. The mother called the police but in the end nothing came of that.
  10. The mother described an occasion in June 2011 when after an argument the father went outside and turned off the electricity to the home. She described another incident in mid-2012 when the parties were driving B to a concert and had an argument in the car and the father let go of the wheel after threatening to do so while driving at 100 kilometres an hour. She said that B was so upset by what happened that she could not take part in the concert.
  11. The mother described an incident in October 2012 where the father parked her in and only moved his car after she called the police. She alleged that around this time the father said to her that he would rather kill X than share him with her and that he again made the comment about driving into a school bus.
  12. The mother said that the father also made a comment that he could understand why the man had dropped his child off the bridge, clearly a reference to the Darcey Freeman incident.
  13. When the father was asked about this in cross-examination he admitted saying it but said that what he meant was that he empathised with fathers who did what they did.
  14. The mother said that on 23 November 2014 she and the father were driving in a car with X and the mother’s grandsons E and A. She said that they had a furious argument and she asked the father to stop and get out. He refused to do so. Eventually he did stop the car and he tried to take X. The mother said that she was terrified about what might happen if he took X and she tried to lie across the child to stop the father taking him. She said that the father kept pulling her head back and at one point during this dispute she feared she was going to die.
  15. The mother said that the children were screaming hysterically and that in what she called a miracle the police happened to drive by and see that something was happening in the car. They stopped and intervened and the incident came to an end.
  16. In their report the police refer to the children being grossly upset and inconsolable.
  17. The father was removed from the car and arrested and a provisional protection order was taken out for the mother’s protection. That was the day on which the parties finally separated. They never resumed their relationship after that incident.
  18. The mother commenced Court proceedings in February 2015 and on 24 March 2015 interim orders were made for X to live with the mother and have some telephone communication with the father and also to spend some supervised time with him at a contact centre.
  19. On 22 May 2015 the parties attended a child dispute conference and a memorandum to the court was prepared. The father had been encouraged by his solicitor in January 2015 to enrol in the Men’s Behavioural Change Program and reference was made in the memorandum to the fact that he was due to be exited from the program.
  20. A social worker attached to the organisation running the program was so concerned about comments the father had made during the group sessions that she wrote a letter to the Court which included the following:
    During a recent session Mr Matthews disclosed that he would harm both X and Ms Dallas and said that he strongly identifies and understands why the father threw his child off the bridge, refers to his child as “it” on a regular basis, has a good devil and a bad devil sitting on his shoulder and that he constantly thinks of going around to her place and killing them both. The MenTER facilitators have made a decision to exit Mr Matthews as they have observed a reluctance and resistance to accepting information to facilitate change.[1]
  21. During cross-examination the father admitted that he had made comments about the bridge incident at the men’s group and admitted that he had said that he had a good devil and a bad devil sitting on his shoulder. He denied however that he had made threats to go around and kill the mother and X.
  22. The father was asked in cross-examination if he thought that the comments he had made had caused concern for others and his response was:For the staffing member, yes.
  23. Another incident of concern which happened after separation was that on 31 August 2015 a Child Support officer rang the father to chase up payment of child support. She was so concerned about the comments he made that she rang the mother and suggested that she go to a police station because she was fearful for her safety.
  24. There are a number of different versions in different places about what the father said to the Child Support officer. However in the tendered documents there is reference to the recording of the telephone conversation and that provides the best evidence of what was said.
  25. The father was asked about making child support payments and said that to make payments he would need a child. He was asked if he believed he didn’t have a child. He said that he did but that he did not have access to him. He was then asked about paying his arrears and when no satisfactory answer was obtained he was told that enforcement proceedings might be taken.
  26. The father then started to talk about the fact that he already had matters before the Court and said, “Well, you can’t collect child support if I’m in jail and that’s where I’m going to end up. You know domestic violence. Do you know when you kill people?” He was asked whether he was threatening to kill someone. He responded, “Am I threatening? No. That’s what has been alleged.” He was then challenged with, “You made a threat today,” to which he responded “Have I? Ta-ta,” and terminated the call.
  27. The mother went to the police station as suggested by the Child Support officer. The police were concerned about what it all might mean but they investigated and decided that they could not determine that it constituted a breach of the Protection order. However it extremely alarmed the mother and added to her concern that she and X were at risk of being killed by the father.
  28. The mother also came to believe in early 2015 that the father might be driving past her house and a concern for me is that on 28 March 2015 the father was stopped by police at a different location and was found to have numberplates on his car that belonged to another vehicle. The father was charged with driving offences and said it was an innocent mistake.
  29. As I previously mentioned, in early 2015 an order was made for X to spend some supervised time with the father at a contact centre. An effort was made for that to happen and X did see the father on two occasions and did play with him during the visits. However the mother became increasingly frightened for X’s safety and ultimately she made an application to the Court for the order for supervised time and the order for telephone communication be suspended. Some telephone communication had occurred but it had not been satisfactory as often X would refuse to take part.
  30. On 10 August 2015 an order was made suspending those orders and the father has spent no time with and has had no communication with X since then save for at the family report interviews in October 2015.

Findings about family violence

  1. The mother’s allegations which I have outlined above have substance.
  2. The father made no admissions in his affidavit about having committed acts of family violence. He made some admissions during cross-examination about his actions although I consider it unlikely that he understands that things like pulling on the handbrake causing the car to slide and over-smacking the child are family violence.
  3. In my view it is open to me to find and I do find that the mother’s allegations about what she experienced during the relationship with the father are true.
  4. I accept the mother’s evidence about the father’s treatment of X and about the various incidents of family violence and intimidating behaviour that she described and that I have outlined above and I accept her evidence about what happened in the motor vehicle on 23 November 2014.
  5. The father pleaded guilty to assault in February 2016 arising out of the 23 November 2014 incident.
  6. The implication of all of that is that I am satisfied that during the relationship the father committed some extremely serious acts of family violence and engaged on numerous occasions in intimidating and coercive and controlling behaviour and that X was exposed to that behaviour on many, many occasions and that it was behaviour that would have frightened and upset anybody.
  7. I am also satisfied that the father made the comments the mother alleged about the school bus and about understanding why the father threw his child off the bridge, indeed the father did not deny making the comments but alleged that the Court should not take them seriously. However they frightened the mother as they would frighten anyone. They are in the nature of coercive and controlling comments and I am satisfied they were part of a pattern of coercive and controlling family violence.
  8. I finally note that the father alleged, particularly in an application for a protection order which he made in early 2015 but also to a small extent elsewhere, that the mother was on occasions violent to him in that she pushed him, punched him, and did some other violent things. I do not accept the father’s evidence and I am satisfied that if there were any physical actions by the mother it would have been in the nature of self-defence or a defensive action.

The parties current circumstances

  1. The mother is still living at the same address as she was in November 2014. She is in a relationship with a man called Mr A who did not give evidence in the proceedings.
  2. The mother has the care of her grandchildren A, 6, E, 4 and F, 12 months. They are the children of her daughter C who sadly has had a problem with ice use and has had her children removed from her by the Department of Child Safety and placed with their grandmother.
  3. X is attending a local (omitted) primary school.
  4. I do not know much about the father’s circumstances. He did not tell Ms M where he was living. He told her he had a job but he would not say with whom. During his interview with Dr R he said that he was unemployed.

X’s best interests

    1. Any orders I make about X must be orders determined by treating his best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act contain the matters to which I must have regard in order to determine X’s best interests.
    2. The primary considerations in s. 60CC(2) are the benefit to the child of having a meaningful relationship with both of his parents and the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
    3. The additional considerations in s. 60CC (3) include things such as the child’s views, the likely effect of a change in his circumstances and whether there has been family violence.
    4. Sometimes it is necessary to deal with the additional considerations first and this is such a case.
    5. The first of the additional considerations is any views of the child and the weight the Court should give to those views.
    6. X did not express a view to the family consultant about what he wanted in terms of general arrangements for the future. However he has said on a number of occasions to different people, namely the school counsellor, Relationships Australia workers at the contact centre and the family consultant, that he is scared of his father.
    7. The family consultant said as follows:X stated that the supervised visits with his father were not good, volunteering, “I’m scared of daddy. He hit mum, bent mum’s neck.” X described the November 2014 incident adding “Me and E were present in the car. Me and E cried. No, but the cops were behind us, knocked on the door, here to help.” In regard to the telephone calls he said he would just hang up: “I just hang up because I’m scared of daddy. Daddy told me he would put me in a truck and run me into a bus. ‘If I can’t have him, you can’t have him.’ Tell daddy I don’t want to speak to him.”
    8. X spent time with the father on two occasions at the contact centre and he also spent time with him at the family report interviews. He did not display any overt fear of the father on those occasions and it was the father’s case that X was not in fact really scared of him and that the mother was putting ideas into the child’s head.
    9. I do not accept that. The fact that the child related well to the father on those supervised occasions is not necessarily inconsistent with the child’s generalised statements that he is scared of the father and the child has said other concerning things which suggest that he does have a fear of the father.
    10. X told the school counsellor that he had a dream about the father cutting a hole in the roof and putting a rope down and taking him out of his bedroom and taking him away where the mother could not find him.
    11. X may well have heard the mother talking about the events which occurred during the relationship. Children sometimes overhear things when people are not aware that they are just around the corner or just in the next room. Nevertheless X has been physically present at some of the extremely frightening incidents and it is entirely credible that he is personally frightened of what the father might do. The fact that he is able to sit in a room with him in a supervised setting does not necessarily undermine the reality of that.
    12. In addition there have been occasions when X has resisted seeing the father. There were occasions when time did not take place at the contact centre because he has refused to take part.
    13. I must consider the nature of the child’s relationship with each of his parents and any other relevant persons.
    14. All of the evidence suggests that X has a very good relationship with his mother. Dr R made positive comments about the mother, although he did not see her with X, and the family consultant noted a very positive relationship between the mother and X at the family report interviews, indeed during the case father did not challenge that X had a good relationship with his mother.
    15. X has not seen the father for something like two years so at present he does not have a relationship with him. Whether the relationship is capable of being revived or whether there should be an attempt to revive it is something I will have to consider a little later on.
    16. It is very difficult for me to be certain about what the father’s relationship with the child was like in the past and what sort of a relationship the father might be capable of forming with him in the future. There is not much information in the affidavits about the things the father did with the child prior to separation. There was the concerning incident only three weeks before separation where he smacked the child and left a mark on him and the mother said that around that time he threw a tent bag at the child.
    17. The facilitator of the Men’s Behavioural Change Program was concerned that the father called the child “it” and the family consultant noted that the father did not refer to the child by his name but just referred to “the child.” It is difficult to be sure what would become of the relationship between the father and the child if I made orders for time to occur.
    18. I must consider the issue of payment of child support.
    19. When the Child Support Agency contacted the father in 2015 he was in arrears and he expressed opposition during the course of these proceedings to paying child support for a child he did not see. However it is unclear to me if there is actually a child support assessment currently in place. In circumstances where there has been serious family violence, people sometimes seek an exemption from pursuing child support and the child support issue was not touched on in the proceedings before me.
    20. I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the child, communicate with the child or make decisions about the child.
    21. On the face of it the father wishes to be involved in the child’s life. He went to Relationships Australia to see the child when supervised time was organised and he has taken part in the Court proceedings and he attended the hearing, so I cannot say that he is displaying no interest in the child.
    22. I must consider the likely effect of any change in the child’s circumstances.
    23. This is a really important issue in the case and there are two aspects to it.
    24. The father seeks a change for the child in that he seeks an order that the child commence spending unsupervised time with him. I will have to consider the likely effect of that change on the child in terms of whether that would place him at risk of harm but I also have to consider the effect on the mother of such a change.
    25. I am satisfied that the mother genuinely believes that the father may carry out his threat to kill the child or take him where the mother cannot find him.
    26. I cannot blame the mother for that. The father’s comments about running into a school bus and about understanding why a father would drop his child off a bridge would concern and frighten anyone. The report from the men’s group, which the mother is quite entitled to accept as valid, that the father had thoughts of going around and killing her and the child would frighten anyone.
    27. The comments the father made to the Child Support officer which included the use of the word “kill” – and he admitted that he used the word “kill” during that conversation – would frighten anyone, and there are other things the father has said which would frighten anyone.
    28. On 9 May 2015 the following conversation occurred between the father and X at the contact centre:
      X said “Dad, remember in the car you said that you will take me somewhere mum can’t find me.”

Mr Matthews took a minute before answering and then said, “Once again you’ve misinterpreted that conversation. I said I would take you to a bush house because mum said she doesn’t love the bush.[2]

  1. The father has made other comments from time to time which are quite capable of instilling fear in people. For example he refused to disclose information about himself to the family consultant during the report interviews but said to her:
    I know where the mother lives, I know where she works, I know intimate details about her.
  2. I accept that the mother is genuinely frightened that the father may harm the child and that is evident from the following passage in the Relationship Australia notes:
    Ms Dallas stated that Mr Matthews had been kicked out of the men’s group because he had made threats to kill both her and X. Ms Dallas stated, “You know, it wouldn’t take much for Mr Matthews to break X’s neck. Can you please watch when Mr Matthews goes to cuddle.” Ms Dallas was visibly frightened and concerned when discussing this and added that DVRS had stated Mr Matthews frequently thinks about driving over to her house to kill them both. Ms Dallas stated the police had been informed and she attended the station at their request, where they suggested she doesn’t stay at home as the risk to her and X’s safety is high. As Ms Dallas was relaying this information, she became visibly upset and anxious, her hands were shaking and her voice slightly trembled.
  3. Dr R was of the view that the mother genuinely feared that the father might kill her and X. He said as follows:
    There appears to be no doubt, however, that Ms Dallas perceives Mr Matthews as being a very live and real threat to her and X.
  4. Dr R felt that he could not come to a concluded view about whether the father really did really pose a threat and commented:
    The father seemed to believe that others think that his threats to kill them or his child should not be regarded as serious.[3]
  5. I do not think that sentence entirely makes sense but Dr R was noting that the father thought that his threats, whatever they might have been, shouldn’t be taken seriously.
  6. The evidence suggests however that the mother does take those threats seriously. When the family consultant asked her on a scale of one to 10 whether she thought the father would carry out his threats she put it at a 10.
  7. The mother is frightened of the father. She is frightened that he is going to kill X as well as kill her and in my view there is compelling evidence that the mother would find it extremely difficult to comply with an order that the child spend time with the father and that it may well affect her parenting capacity and her functioning if she was required to comply with such an order.
  8. I must have regard to the practical difficulty and expense of a child spending time with a parent.
  9. That is not a relevant consideration in the context of this case.
  10. I must have to regard to the capacity of each parent and any other relevant person to provide for the needs of the child including his emotional and educational needs.
  11. The mother has the capacity to provide for X’s needs. He is attending school and the mother is looking after him well on a day-to-day basis.
  12. There are some issues in relation to the mother’s parenting but they are not issues of the mother’s own making. The mother is caring for her three young grandchildren and her daughter C, who has been using ice, has been extremely violent around the mother’s home on occasion and X has been exposed to that.
  13. It is regrettable that on top of everything else that has happened to X he has been exposed to violence perpetrated by his older sister, but it is difficult to see what the mother can do in relation to that other than what she is doing, caring for her grandchildren to the best of her ability and trying to protect herself by making sure that the police are called in the event of C posing any risk to the safety of the mother’s household.
  14. The only other criticism that could be made of the mother is that she remained in a relationship with the father for the first 5 years of the child’s life and as a result X, his siblings and the mother’s grandchildren were exposed to family violence and threatening and intimidating behaviour.
  15. That is regrettable but the situation in all of these cases is very complex.
  16. The mother said that she stayed in the relationship because she was fearful that if she ended it the father might try to take X or that something might happen to X. I am not sure that is the whole answer or explanation for why the mother stayed in a violent relationship for so long but the mother has been having family violence counselling. There was no family violence in her relationship with her previous partner, C and B’s father, and there is no evidence that there is any in her current relationship. So although what has happened to X and the mother’s decision to remain in that relationship is highly regrettable from X’s point of view, and from the mother’s, I cannot find that it means that the mother is going to be a poor parent to X in the future.
  17. The father has never cared for X by himself. He has engaged in violent and intimating behaviour. He has assaulted the child and I have to give the mother’s allegations about his neglectful and possibly dangerous treatment of the child as a baby weight due to the fact that I am satisfied that her allegations about the violence are true.
  18. The father showed no compunction about committing a serious act of family violence against the mother on 23 November 2014 in the presence of young children and since separation he has shown a complete lack of empathy for the child in not understanding or accepting the impact of his behaviour on the child.
  19. I have grave concerns about the father’s parenting capacity in a general sense.
  20. I have to consider the child’s maturity, sex and background and any other matters particular to the child.
  21. The mother obtained a report in early 2015 about the effect on X of being exposed to trauma during the 23 November 2014 incident. I cannot place much weight on it in these proceedings however because the author of the report was not made available for cross-examination and a complication in this case is that X has also been exposed to frightening and aggressive behaviour by his sister C.
  22. Immediately after the 23 November 2014 incident, X was observed to have some difficulties at school in terms of aggressive acting out and he was allegedly wetting himself because he was too frightened to go to the toilet in case his father took him.
  23. I have no up-to-date evidence about what is happening with X at school. I do not have any school reports. I do not have any up-to-date evidence from a paediatrician or a psychologist. It may well be that X has been adversely affected by exposure to violence both by the father and by C but I cannot make any findings about what affect this has had on him in the absence of expert evidence or indeed any evidence at all.
  24. I must consider the issue of family violence.
  25. The father engaged in coercive and controlling violence throughout his relationship with the mother. Acts such as fast driving, letting go of the steering wheel, pulling on the handbrake and turning off the power are all acts of coercive and controlling family violence. They are frightening, they are intimidating and they are intended to make people behave in the way the perpetrator wants them to behave.
  26. Taking a child or threatening to take a child, which I am satisfied the father has done, is also controlling and coercive family violence. Threats to kill, which I am satisfied the father has made, are family violence as Dr R pointed out. Whether people intend to carry out the threats or not does not matter. They make the threats, the other party is extremely frightened by them and it has the potential to control or coerce their behaviour.
  27. The father is guilty of committing many acts of family violence and there is no evidence that he acknowledges this or is remorseful for it and no evidence that he has any understanding of the impact of his behaviour on the mother or on X.
  28. Dr R focused very heavily in his report on whether the father might actually carry out the threats he had made but in my view that really does not matter. I cannot be certain about whether he will or he won’t but the fact that he has made the threats, the fact that the mother takes them seriously, the fact that they cause her extreme fear and the fact that the father lacks any understanding of the impact of making those threats or the impact of his violence on others and lacks remorse for his actions, all make him a very unsatisfactory person to be in a child’s life.
  29. The father is modelling totally unacceptable behaviour to the child. He is modelling taking no responsibility for his behaviour. Nothing good can come for a child of being exposed to that.
  30. Sometimes people behave violently but they are able to change and programs such as MenTER are about assisting people to change. However there does not seem to be any realistic likelihood that the father is going to change the behaviour which frightens and intimidates people. Since separation he has frightened and intimidated a Child Support officer, he has frightened the mother and he was exited from the MenTER program because they did not consider there was any prospect of him being willing to make changes.
  31. The family consultant referred in her report to the father circumventing addressing his alleged behaviour when challenged about it, talking about “the child” rather than referring to the child by name, downplaying the impact of his behaviour on the child and the mother, accepting no responsibility for his behaviour and minimising and deflecting and these things also suggest that there is little prospect of the father changing his behaviour.
  32. Leaving aside the issue of whether the father actually poses a risk to the child or the mother, which I will come back to in a moment, it makes him a completely unsatisfactory role model and an unsatisfactory person to be in the child’s life.
  33. I must consider any family violence orders.
  34. A protection order was made after the incident on 23 November 2014. It was made without admissions for 12 months and it no longer applies.
  35. There have also been protection orders made in relation to C as a result of her behaviour at the mother’s home.
  36. I must consider the attitude to the child and responsibilities of parenthood demonstrated by each of the child’s parents.
  37. That is not relevant as a separate consideration.
  38. I must consider whether it is preferable to make the order least likely to lead to further proceedings.
  39. An order that time occur is the order most likely to lead to further proceedings because I highly doubt that the mother could, and I use that word could advisedly, could rather than would, I highly doubt that the mother could comply with an order for X to spend time with the father.
  40. I do not consider there is any other relevant matter.
  41. I then come back to the primary considerations and the first of those is the benefit to the child of having a meaningful relationship with both of his parents.
  42. Most children benefit from having a relationship with both of their parents. However there are occasions when children do not benefit from having a relationship with a parent. If a parent poses a risk of harm to a child, if they have no empathy with the child, if they frighten the child, then there is no benefit to the child in having a relationship with that parent.
  43. If a parent models intimidating and controlling ways of dealing with others to the child and refuses to accept responsibility for their actions, then the child is not going to benefit from having a relationship with that parent either. Having that behaviour modelled to them might cause a world of problems for the child as they grow older and try to negotiate their way through the school community and later the workforce.
  44. The second primary consideration and s.60CC(2A) says that I must prioritise this over the benefit to the child of having a meaningful relationship with each of his parents, is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
  45. Dr R concentrated on trying to assess whether the father might actually carry out the threats to kill. He said as follows in his report:
    With regard to domestic violence and whether Mr Matthews presents an unacceptable risk, I find it difficult to form a clear view. Clearly threatening violence or threatening to kill is a form of domestic violence and intimidation. However Mr Matthews, to my knowledge does not have a clear history of having acted upon such threats or having been involved in habitual acts of violence or conflict with others apart from a number of incidents with Ms Dallas.
  46. He went on to say:
    Mr Matthews’s presentation and anger did concern me. I find that I am not in a position to make a firm prediction about whether he is an unacceptable risk of harm or not. Unfortunately he was not able to complete his domestic violence course satisfactorily. He has not been able to accept responsibility for his behaviour in making threats and yet there are no clear incidents that I elicit where he has previously, or would, or has, acted on his threats.
  47. Dr R noted that the family consultant considered that there was an unacceptable risk of harm and recommended only email contact but said:
    However, in the absence of a clear-cut personality disorder, or clear-cut criminal history with significant habitual violence, I find I am not in the position of being able to make a firm assessment of his potential risk, although I remain concerned.
  48. I do not agree with Dr R that a finding cannot be made about this issue. In my view there is an unacceptable risk that X might be exposed to or subjected to abuse and family violence in the care of the father.
  49. The father abused or assaulted X – the words are interchangeable given the definition in the Family Law Act – when he left a handprint on him on 2 November 2014. He made every effort throughout these proceedings until he was in the witness box being cross-examined to cover that up. Then he made a very belated admission about it. He has assaulted his own child and he has also been extremely violent and threatening to the mother and exposed the child, without flinching, to serious incidents of family violence during the relationship.
  50. The fact that the father did not restrain his behaviour toward the mother in any way during the relationship and that toward the end of the relationship he assaulted the child leads me to be satisfied that the child would be at unacceptable risk of harm if he spent time with the father.
  51. However it goes further than that. Since separation the father has made threats to kill the mother and the child and he has said other things, such as the comments to the Child Support officer and the comment he made about at the men’s group about understanding why the father threw the child off the bridge, which would cause any person who has been subjected to what the mother has to fear that he might harm the child.
  52. The fact that the father has made a number of either direct threats or veiled threats to kill (which are family violence) and has expressed no remorse for that and does not understand the impact of that behaviour on others means that there is an unacceptable risk of family violence in this form at least continuing in the future.
  53. That is not the end of it. The father has physically harmed X. He engaged in a course of coercive and controlling family violence during his relationship with the mother and that violence only ended when the father was arrested on 23 November 2014.
  54. This is not the case where there has been occasional family violence during a relationship and somebody is bringing it up after separation and asking the court to have regard to it. This is a case where there was violence throughout the relationship and the relationship ended because of an act of violence.
  55. During the relationship the father made threats about killing children which gravely alarmed the mother and he has continued to make such threats. He continued to use the word “kill” even on his own admission, after the relationship ended. The mother is terrified that the father might act on his threats and as she rightly points out it would only take a moment for something to happen to X.
  56. I cannot make a definitive finding about whether the father would carry out his threats but he has been seriously violent to the mother. He has done things such as letting go of the steering wheel and pulling on the handbrake and pushing back the mother’s neck which could have killed or seriously injured her. I cannot possible say that in making actual threats to kill since separation the father was just mouthing off and is not likely to ever carry those threats in to effect.
  57. The mother’s fears are in my view well-founded and I am satisfied that there is an unacceptable risk that the child might be harmed if he spent unsupervised time with the father and even if he spent supervised time with him, because these things, as the mother rightly points out, can happen in an instant.
  58. The fact that the father lacks empathy for the child, referred to the child in the men’s group as “it”, and confirmed during the conversation with X at one of the contact visits that he had threatened to take the child away although he put an innocent enough spin on it, increases my concern.

Parental Responsibility

  1. There has been family violence. The presumption in s. 61DA of Family Law Act does not apply. I could not ask the mother to consult with the father about major long term issues in relation to the child and the only appropriate order in this case is an order for sole parental responsibility.

Conclusion

  1. In the family report the family consultant recommended that a no time order be made and in my view this is an extremely clear-cut no-time case.
  2. The nature of the father’s relationship with the child is questionable. He lacks empathy for the child. He assaulted the child in November 2014 and very belated admitted it. He has been seriously violent to the mother. He expresses no remorse and he has behaved in those violent, threatening and intimidating ways to her in the presence of children, including his own child, to the point where the children were hysterical and inconsolable.
  3. The mother is convinced, not unreasonably, that the father may kill her or kill her or the child or take the child away from her to somewhere where she cannot find him.
  4. I do not share Dr R’s view that it is not possible to determine whether the father poses an unacceptable risk to this child. In my view he certainly does. He has been violent, he has lied about it and there is nothing to suggest that he could not behave in that way again.
  5. The other aspect of the matter is that it would be simply impossible for the mother to comply with an order that the child spend time with the father. Given the threats to kill and the threats to take the child and the fact that the father was exited from the men’s group, I cannot envisage a circumstance in which the mother could physically comply with such an order.
  6. It is very sad for a child to have no relationship with a parent. It is sad because children often turn out to have the same interests as their parents; an interest in cars or football or whatever interests the father has X may share. Children often look like parents. They have the same eye colour or the same hair colour. They have the same appreciation of jokes or stories. It is sad for a child not to have a relationship with one of their parents but I could not possibly find that it was in X’s best interests for me to make orders that he spend time with his father.
  7. I intend to make an order that the mother have sole parental responsibility for the child.
  8. I struggle to understand why the Independent Children’s Lawyer proposed in her Minute of Order that the mother be required to inform the father about the decisions she intended to make in the exercise of sole parental responsibility and that she be required to inform him of the names of the child’s doctors, healthcare and treatment providers, and educational facility and about the extracurricular activities he attends.
  9. The mother is genuinely and reasonably extremely frightened of the father. To require her to keep the father advised about intimate details of the child’s life, where he is going to school, where he is playing football, who his doctor is, would simply keep the mother in a state of fear and nervous tension and if the father is not to have a relationship with the child then it is not appropriate to make such orders.
  10. The family consultant recommended that there be electronic communication or communication by email between the father and the child. I am not going to make that order. If the appropriate order is for no time because the father poses an unacceptable risk of harm to the child on many levels, then it is not appropriate to make an order for electronic or email communication. What would be the point?
  11. I am also not going to make an order that the parents not use illicit drugs or alcohol. I cannot see why that was proposed. It was also proposed that there be an order that neither parent physically discipline the child but it was not alleged that the mother excessively disciplined the child and the father is not going to have the opportunity to do so.
  12. I am also not going to make an order for the parents to undergo post-separation counselling through Relationships Australia. I do not understand why that was proposed.
  13. This is a deeply troubling case and I share the mother’s concern about what could happen to her or to the child but it might be that there is some prospect of the father understanding as a result of the hearing how seriously people view his behaviour and how seriously people view his threats and having a good hard look at his behaviour and engaging in a program which will result in him changing the way he behaves, changing his attitude and changing the way he treats people.
  14. If the father does this of his volition and not because he is ordered to do it by the Court, if the father does make some changes in his life, it is always possible for him to make another application to the Court seeking orders but at present the only order I can make on the evidence before me is an order for no time and no communication.

I certify that the preceding one hundred and seventy three (173) paragraphs are a true copy of the reasons for judgment of Judge Terry

Date: 28 June 2017


[1] Paragraph 159 of the Family Report.
[2] See Exhibit “C”.
[3] Paragraph 768-769 of Dr R’s report.

NOTE:  This case has been published by the Court under a PSEUDONYM, rather than using the real names of the parties.  Section 121 of the Family Law Act 1975 makes it an offence, except in very limited circumstances, to publish or distribute a report of a case or part of a case, including information contained in a Judgment, which identifies parties, related or associated persons, witnesses or others involved in the case.  A breach of the section is a criminal offence.  The section also sets out certain limited defences to criminal liability. An example is where the Court has expressly authorised the publication.  

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