West & West  FamCA 839 (8 October 2015)
Last Updated: 20 October 2015
FAMILY COURT OF AUSTRALIA
Banks & Banks  FamCAFC 36
Mauldera & Orbel (2014) FLC 93-602
Wacando v The Commonwealth  HCA 60; (1981) 148 CLR 1
S v Australian Crime Commission  FCA 1310; (2005) 144 FCR 431
Malcolm & Munro  FamCAFC 16; (2011) FLC 93-460
Morgan& Miles  FamCA 1230; (2007) FLC 93-343
Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd  HCA 66; (1992) 67 ALJR 170
N & S & The Separate Representative (1996) FLC 92-655
M v M (1988) 166 CLR 69
Harridge & Harridge  FamCA 445
K v R (1997) 22 FamLR 592
Re W (sex abuse – standard of proof)  FamCA 768
Re Andrew  FamCA 43; (1996) FLC 92-692
Blinko & Blinko  FamCAFC 146
T v N [2001 FMCAfam 222
- Ms West born … 1979 (“the mother”) have sole parental responsibility for the children B born … 2000; C born … 2002 and D born … 2010 (“the children”).
With whom the children will live
- The children live with the mother.
Restraints, injunctions and personal protection
- Mr West born … 1957 (“the father”) is restrained from spending any time or communicating with the children.
- For the personal protection of the mother and the children and pursuant to s 68B and s 114 of the Family Law Act 1975 (Cth) the father is prohibited and restrained from:
- <li “=””>(a) harassing, molesting or stalking the mother and/or the children;
- Pursuant to s 68C and 122AA of the Act, where a police officer (Federal or State) believes, on reasonable grounds that the father has since the injunction was granted, breached the injunction by:
- <li “=””>(a) causing or threatening to cause bodily harm to the person or persons referred to in order 5; or
<li “=””>(b) causing or threatening to cause bodily harm to the mother and/or the children;<li “=””>(c) approaching the mother and/or the children at their place of residence from time to time, their employment from time to time or coming within 50 metres of those places other than as provided for in these orders;<li “=””>(d) spending time with or attempting to contact or approach the children;<li “=””>(e) communicating or attempting to communicate with the children’s school;<li “=””>(f) attending the children’s school or at any school event or school functions organised by the school;<li “=””>(g) removing or attempting to remove or procuring another person to remove the children from any school, institution or other place at which the children attend or are placed by the mother.
<li “=””>(b) harassed, molested or stalked any one or other of those person,
the police may arrest the father without warrant and may use such reasonable force as is necessary to make the arrest or to prevent his escape after arrest.
- The Independent Children’s Lawyer is forthwith discharged with the thanks of the court upon the later of the expiration of the appeal period in respect of these orders, or the determination of any appeal.
- Otherwise all extant Applications be dismissed and the matter is removed from the list of active pending cases.
FAMILY COURT OF AUSTRALIA AT CAIRNS
REASONS FOR JUDGMENT
- Mr West (“the father”) believes that he is a prophet personally called by God to be a spokesperson against government generally, and the Family Court in particular, for the genocide which he believes they perpetrate against children. He believes that the government has placed him on a hit list to eliminate him from the world. He believes that the police force is designed to effect social engineering and to destroy families. He believes that the whole purpose of these Family Court proceedings was to kill him and to destroy his children’s lives.
- It appears as though virtually all of the father’s life, at least in recent years, has been devoted to his prophetic calling. He has been in almost constant battle with many authorities, mostly governmental. In those disputes he is prone to making outrageous, menacing accusations, coupled with highly personalised attacks.
- His conduct in these Family Court proceedings were a telling illustration. It may fairly be said that the six days over which the trial of this matter spanned were as torrid and hostile as litigation in this court gets. There were highly personalised attacks by the father on virtually all of the witnesses (including his own mother) and the lawyers involved in these proceedings. I was no exception. Amongst a steady stream of personal abuse, the father referred to me as a “criminal”, “terrorist” and colourfully told me that “there is not a bone in your body worth burying.” Later in the proceedings he told me that “there will be a large crowd on the day when you hang” or something similar.
- The father was virtually uncontrollable in the courtroom. He refused to take his cap off, stand when speaking to me or cross-examining witnesses, or stop speaking over me. Ultimately his behaviour became so intolerable that I directed that he continue his involvement in the proceedings from a second courtroom, linked to the main courtroom via video link. That was necessary to ensure that his otherwise incessant interruptions could be overcome by muting the microphone at his end when the need arose. However that did not stop him from a virtually non-stop – although from the main courtroom, silent – tirade against whoever was then speaking. On the final day of trial, presumably as some sort of visual protest, he commenced to tear up material that he had brought with him and which he had placed on the bar table. Even accepting that self-represented litigants in this court often are under enormous personal strain, and hence can behave poorly, it has to be said that the father was a truly remarkable litigant.
- Unsurprisingly, he was diagnosed by Dr E, a psychiatrist who assessed him for the purposes of these proceedings, as suffering a paranoid psychotic disorder that has been long lasting and is untreatable. In his cross-examination of Dr E, the father did not directly challenge that diagnosis, but appeared to suggest that Dr E was part of a conspiracy to persecute alleged Christians such as himself, perhaps as part of the father’s broader view that feminism is the “State religion” of Australia.
- By his Initiating Application filed 19 September 2014, the father seeks orders for equal shared parental responsibility in relation to the parties’ children, being B (born in 2000 and hence presently 14 years of age), C (born in 2002 and hence presently 13 years of age) and D (born in 2010 and hence presently five years of age) (collectively “the children”). He also seeks orders that the children live week about and spend one half of all school holidays with each party.
- On the other hand, Ms West (“the mother”) seeks orders that she have sole parental responsibility for the children, who would live with her and neither spend time nor communicate with the father. She also seeks a suite of injunctions restraining the father from, in effect, having any involvement in the children’s lives whatsoever. She justifies those orders on the basis that the father is an unacceptable risk of emotional or psychological harm to the children. Although at the commencement of the proceedings the Independent Children’s Lawyer indicated that he would seek orders which would permit the father to send cards and gifts to the children, but otherwise have no contact with them, by the conclusion of the trial, he altered his position to wholly support the orders sought by the mother.
- In a nutshell, this case is really about balancing two things: on the one hand the risk which the father poses to the children; on the other hand, such benefit as the children may derive from a relationship with the father.
- The father was born in 1957 and hence is presently 58 years of age. He was born in F Town, however his father’s position as a bank manager saw the family relocate numerous times. After some years the family settled in the Sydney region. Whilst still attending high school in Sydney, the father commenced to smoke marijuana. It appears to have been a constant aspect of his life thereafter. He left school early and initially worked in some mines. Apparently he later returned to school and completed his Higher School Certificate. He told Dr E he was raised to have a strong belief in the Bible.
- Presumably after completing his High School Certificate, he obtained work with the Australian Taxation Office and later a government Public Works department. However at some stage he undertook an apprenticeship and told Dr E that he “has mainly worked as a [tradesman] in England, Norway, Germany and Australia.” Further, apparently he has owned two businesses, one of which was in the United Kingdom.
- He was first married at the age of 23, which marriage lasted 5 years. There were two children of that relationship, however it appears as though the litigation which ensued from the breakdown of that marriage saw him have no time or communication with the children.
- His second marriage was at the age of 35 years to a Scandinavian woman. It again lasted for five years. There were three children to that relationship. At the time of separation, the parties were living in Australia, however as a result of the ensuing Family Court litigation, from some time after separation the wife and children have lived in Scandinavia, and the father has lived in Australia.
- At some stage the father commenced living in G Town and it was there when he was 30 years of age in 1987 that it appears as though he first was convicted of a violent offence, comprising resisting and assaulting police (together with stealing). In the following year, when he was aged 31 years of age, he was arrested for a similar offence in New South Wales. The material in evidence does not permit me to conclude whether he was convicted of that offence.
- The New South Wales Police records also demonstrate that in May 1992, when he was aged 35 years, the father was again arrested on four charges of resisting, hindering or assaulting a police officer, together with three charges of common assault. Then three further charges of assault were laid against him in October 1992 whilst in New South Wales and a further charge of resist/hinder/assault a police officer in January of 1993. There was then a further charge of assault in March 1993, together with a further charge of resist/hinder/assaulting a police officer in conjunction, it would appear, with a charge of stealing.
- There is then a break in his criminal record until 1999, in which year in May and December he was charged and convicted with obstructing a police officer. He was by then 42 years of age. Both of those offences were committed in G Town.
- He was living in G Town in January 2000 when he met the mother. He was then 43 years of age.
- The mother was born in Country H in 1979, and therefore is presently 36 years of age. Her birth family lived on an island off the north coast of that country. It appears as though they lived a typical subsistence life in a village. However shortly after her birth, the mother was subject to a traditional adoption which saw her placed with a cousin and her husband. They raised the mother in I Town. Apparently she commenced her schooling late, and only completed year 10 when she was 21 years of age. It is said she had a rather protected childhood, and she told Dr E that she was not allowed to socialise because in I Town it was very dangerous to move outside of a small local area.
- In about December 1999 the mother’s step father relocated to Australia. He worked for a company that paid for his relocation. He rented a unit in G Town. On 24 December 1999, the mother who had just completed grade 10, travelled to G Town on a three month holiday visa to spend time with her father. Whilst she was there, and aged 20, she met the father in January 2000.
- The parties initially met by chance outside a G Town supermarket. It appears they had a short conversation. A few days later, the father saw the mother looking in through the window of a backpacker’s hostel that he was then staying at. He invited the mother inside and they spoke for some time. The father then walked the mother back to her step father’s apartment. On the way they had sex in some bushes. The mother says that it was her first sexual encounter and the father forced himself upon her; the father denies this and says that the mother suggested that they have sex in the bushes. This is the first of numerous conflicts between the parties’ versions and recollections. Indeed it may fairly be said there are few points of agreement in the parties’ respective narratives. For instance, the mother’s recollection is that at that time, her step father had in fact left Australia to undertake a job interview in Country J, whereas the father’s recollection is that when he arrived back at the unit where the mother was staying, her step father was there and was blind drunk.
- It would be an impossible – and largely unnecessary – task to resolve all of the conflicts between the parties’ respective evidence. However some aspects of the conflict do need to be resolved, particularly the parties’ mutual allegations of severe domestic violence. For the purposes of this factual background however, I will attempt to provide sufficient information to give some context to the litigation.
- The parties’ relationship progressed at a truly remarkable pace. They were married in G Town in 2000, perhaps even less than a month after they first met. The mother says the father badgered her into marriage; the father says it was done to try and improve the mother’s prospects of obtaining a visa which would enable her to stay longer in Australia.
- In fact, it appears as though by the time of the parties’ marriage, the mother was pregnant with what was to prove to be their first child, B.
- None of the mother’s family attended the wedding. The mother says that she was too ashamed to tell her parents of her relationship with the father, and was particularly ashamed that she was having sexual relations. Further, she says that cultural expectations would have required the father to pay a “bride price” for her, which he was unable to do. Had that been known to her parents, it would have been a source of shame and embarrassment.
- The mother says that from the outset the father was financially controlling of her and denied her any financial autonomy. The father denies this. There is also conflict between their respective versions as to the parties’ dealing with furniture that had been left behind by the mother’s step father (who appears to have thereafter lived overseas).
- Shortly after the parties married they moved for some time to K Town. There the father worked and the mother got a job with the same employer. It was the first job that the mother had ever had. It appears as though the parties were motivated to work hard to raise the funds that were needed to make a relevant application for the mother’s visa, some $3,500.00.
- After K Town the parties went to live at L Town. The father got a job at a backpacker’s resort, and the mother worked there as well. Whilst they were staying there, they had to travel to G Town for the mother to undertake an immigration interview. The night before that interview they stayed at accommodation in G Town. The mother says that about 2:00am in the morning she woke to find the father trying to have sex with her. She told him that he was hurting her. Her evidence is that once she had said that, the father stopped and was completely silent for about five seconds. He then punched her repeatedly (about five times with each fist) in the face. She says that he then grabbed her by her neck and threw her off the bed across the room. She believes that at this point she became unconscious and sometime later woke up to find the father kicking her. She says that the father was spitting on her and yelling at her words to the effect of “you are a fucking slut” and “a little black dog whore piece of shit.” She says that she then ran into the bathroom and locked herself in. There was blood coming from her face and she had a split and swollen lip.
- The father’s version is a little different. Critically however, he does admit the assault. He says that the hostel at which they were staying was run by a mutual friend. During the course of the evening when the parties were affected by alcohol, he says that the friend asserted that the mother’s child (the mother then being pregnant) was in fact his. The father says the mother refused to deny this. In paragraph 63 of the father’s affidavit filed 11 December 2014 he said “I agree that I hit the mother a couple of times.” He then went on to say “I agree that the mother had a black eye and a split lip.” However he said that he only punched her “about twice” and denied that he threw the mother on the bed, or across the room, or that she lost consciousness. He conceded that she ran to the bathroom and locked the door.
- The mother believes that at the interview the next day she was viewed suspiciously by the immigration officials in consequence of the signs of domestic violence, however she made no complaint. It seems she obtained the relevant visa.
- After about three months of living at L Town the parties returned to G Town. The mother says that there, when she was about eight month’s pregnant, the father seriously assaulted her. She says that he grabbed her by the throat, lifted her off the ground and threw her against the kitchen wall. She says that he started kicking her with his boots to her legs, back and back of her head. She exhibited photographs of her injuries to her affidavit. They show swelling to her face consistent with her evidence. The father denies that he assaulted her. He says that other than the previous conceded occasion, he has never punched or kicked or hit the mother at all, but says that she has frequently threatened him with a piece of wood and violently attacked him, or has used a knife or an iron bar or other weapons for that purpose. He inferentially appears to say that the photographs the mother exhibited were related to the first conceded assault on the night before the immigration interview, and not the occasion of which the mother speaks. As shall be seen in due course, I generally reject the father’s evidence. On this occasion, I am quite satisfied that the father did indeed assault the mother when she was eight months pregnant.
- Sometime after B’s birth, the mother asserts that the father again assaulted her. At the time they were managing a backpacker’s accommodation. She says that she went to bed and was woken by the father abusing her for having socialised with other young people. He started punching her in the face, grabbed her by the throat and again threw her against the wall. She says two men came in and pulled the father off her. The father commenced to fight them as well. She says police came and they took her and B to a shelter where they stayed for a couple of days.
- The father’s version is different. He says that it was the mother who assaulted him with a fan that was located next to the bed. He said that noise brought the backpackers to the door, and when the father opened the door, a backpacker tried to punch him. The father says that he pushed the backpacker over who then left. He then says that some time later police attended the house and “frog-marched me out onto a busy road completely naked.” He then says he was driven to a police station where he was processed whilst still naked, and then taken to a cell and given a blanket.
- It appears as though the mother then obtained a protection order against the father. Interestingly, the mother does not appear to remember that order, or at least did not give evidence about it. At all events it appears as though the parties reconciled. C was then born in 2002 while the parties were still conducting the backpacker operation in G Town.
- When C was a couple of months old the parties travelled to Sydney. Whilst staying there, the father and mother and children drove all night to Melbourne to the home of the parents of the father’s first wife. The mother says that when they arrived at the home, they saw an older couple out the front of the house. The father told her to get out of the car and go to them and say who she was and that the father had not forgotten about them taking his children. She says initially she refused but the father punched her in the face and spat on her, in consequence of which she opened the door and got out to avoid being hit again. She says she took B with her to the other couple who, after she had explained who she was, looked over to the car and saw the father. The mother says that the woman said “is that [Mr West]?” before telling the mother to get off her property. She says that the father then drove as fast as he could back to Sydney and mentioned something about a “warrant for his arrest in Victoria.” She says they ran out of fuel on the highway and the father forced her to travel with a stranger to a service station to get some petrol.
- The father has a different version, albeit he concedes that they did indeed have a rushed trip to Melbourne. He say he was keen to see if he could find out the whereabouts of the children from his first marriage, given that he had last seen them when they were about four years and one year old respectively. He says that when he arrived he heard his former father-in-law say “call the police.” He says that the mother approached his former in-laws of her own free will and denies that he hit her, spat on her, or pushed her face against the car window. He says the mother volunteered to go with a stranger to get petrol on the way back to Sydney.
- It is unnecessary to resolve the parties’ disputes in this respect. However on any view, the father’s spontaneous decision to visit his former in-laws to try and track down his children, whilst taking the mother and his two young children with him, is very odd.
- After they returned to Sydney the parties lived in a rental home. Then in late 2002, the parties purchased a home at M Town, a small town about four and a half hours west of Newcastle.
- The parties have wildly differing versions as to events which occurred there. The mother says that she again fell pregnant and became seriously ill, yet the father refused to take her for medical attention. She says that it got to the point that she could not walk properly, but the father spat on her, kicked her and yelled “get your fucking lazy fat arse off the floor and feed your children.” She then telephoned a domestic violence hotline, in consequence of which workers and police attended and ultimately took her to Sydney Suburb N where there was a termination of the pregnancy.
- The father says that this all occurred when he collected a friend’s girlfriend from a bus station, which for some reason or other precipitated the mother confronting him with a large block of wood threatening to kill someone. He says that the girl was scared, in consequence of which he drove her to Sydney to his mother’s house. From there he rang a neighbour in M Town who said that the mother had been screaming and making horrific noises for hours. He then returned to M Town, having first rung an ambulance. When he arrived there he said that the yard was full of feathers, and the mother had got his chef’s knife and stabbed all the doonahs and mattresses, and shredded all the bedding, pillows and clothing and scattered it around the yard. Police arrived, then the ambulance came, as well as some other people. They took the mother and C away, and left B with the father. He says that he didn’t hear from the mother for another two months when he said she telephoned him and asked him to come and pick her up. He said that there was no violence associated with the event. He says that he was unaware that the mother was pregnant or that she had an abortion until after they reconciled.
- Ultimately it is not necessary to resolve the parties’ conflict in relation to the episode in question, although that said, I generally prefer the mother’s evidence.
- After the parties’ subsequent reconciliation the mother learned that her-step father had died. The father was anxious to secure any inheritance that the mother may have had. She says the father harassed her about it for days. The father denies this.
- In about 2005 the father’s second wife and their three children came to Australia from Scandinavia for a holiday. The second wife permitted the father to take the three boys back to M Town for two weeks. Whilst he may have done so, he did not stay there. It is uncontroversial that the father in fact took the three boys, together with the mother and the parties’ two children, initially to G Town before ultimately leaving to drive to “the tip of Australia”. The father says that he advised the boys’ mother of that and “she had no problem” with it. The mother disagrees. She says that she heard him say to his second wife when he telephoned her from L Town that “I’ll do what you did to me when you kidnapped the children.” In oral evidence she said that the father said that they needed to travel to an area where there were no law enforcement officials. She says that is why they determined to drive up to O Town. The father’s explanation is curious. He says (paragraph 193) “I say that because the weather was so good, I decided to drive up to the tip of Australia…”
- On the way up to O Town the car the father was driving left the road and broke a front wheel. The RACQ took the party and car to P Town. They stayed there for about six weeks. The father says that during this time he was ringing his ex-wife in Sydney, telling her that despite his best efforts, he could not get the car fixed. It appears that she did not believe him, even if he did so telephone her, because she commenced Hague Convention proceedings and ultimately an order was made for the boys’ return to the mother. The father unsuccessfully opposed the order.
- The parties and their two children then returned to M Town. Then in about 2006 they travelled to Q Town where the father worked for about two to three months. They then again returned to M Town and put their house on the market. It was ultimately sold in 2008. They then returned to G Town.
- The parties are again in enormous disagreement as to the circumstances of their living after they returned to G Town. The father says that the mother was constantly violent towards him, often drunk, spending a lot of time in hotels and otherwise behaving poorly. For her part the mother says that during the time after they returned to G Town the father was unemployed, and spent a lot of his time at the Casino. She says that he was often drunk and did not take proper care of the children when she was at work. She says that the father was financially controlling of her, and regularly abusive of her.
- Again it is unnecessary to resolve this dispute for the purposes of these proceedings.
- In 2010 the parties purchased a home (in fact it appears as though there were two houses) at R Town. It is a little town about 400 kilometres west of G Town. Whilst there the mother again fell pregnant. It is not in dispute that the pregnancy was difficult and she was required to be in G Town for about three months leading up to D’s birth, and that B and C stayed with the father in R Town so that they could continue at school.
- It seems as though after D’s birth the mother returned to R Town. Not long after, Mr S, one of the father’s children from his second marriage, came to stay with them from Scandinavia. He was about 20 years old. In early 2011 Mr S moved to G Town.
- At about this time the father became embroiled in a dispute in relation to the children’s schooling in R Town. He was concerned that the principal of the school was allowing a helicopter to land on the school grounds. The helicopter belonged to her boyfriend, who used it for mustering cattle. The father seemed to think it his role to make complaint in relation to this, and a bitter dispute ensued. For some reason or other, a collateral dispute in relation to an alleged fraud on the school’s Parents’ and Citizens Committee developed at about that time. The father also became convinced that there was some form of racial discrimination against his children at the school. For instance his evidence is that the school principal would accuse C of certain misbehaviour when white students who were with her were also behaving similarly, but without criticism. Ultimately the father says that “the principal called the police from another town to stop me coming to school. The police told me that we could not go to the school or in the street where the school was. That included me and the mother. I therefore could not take the children to school.”
- All of this caused the father to remove both children from the R Town School in October 2011 and move back to G Town. By then, Mr S had purchased a house in G Town (albeit it appears as though the father contributed some money towards that purchase) and the parties moved into that house. To get some additional income, the father organised to house foreign exchange students. In late 2012 a 13 year old Country T girl was staying with the parties. Whilst she was there, the events leading to final separation occurred on New Year’s Eve of 2012.
- Inevitably the parties have wildly differing versions of the events of that evening. The mother says she went to bed and left the father drinking downstairs with one of Mr S’s friends. She says she later woke up with the sound of the midnight fireworks and noticed the father was extremely drunk. He could not even sit on chair and was struggling to speak. She tried to get the father to come to bed. Mr S’s friend and the father then had an argument, and the mother says “the father then went into a fit of rage threatening to kill the young man if he didn’t leave.” She tried to call the police but the father wrestled the phone off her. The father then started screaming at her (and D, since he was in her arms at the time). The mother hid behind the couch with D. Eventually the father fell asleep. The mother waited until sunrise and went into the bedroom. The father then awoke and again grabbed her and started abusing her. The mother says she was terrified and ultimately arranged to leave the house with the three children and the Country T exchange student.
- The father’s version is markedly different. Whilst it appears he agrees that there was one of Mr S’s friends there who was very drunk, he says that that person started rampaging through the house trying to find money with which to buy alcohol and cigarettes. He says that the mother then became angry with him (ie the father) and picked up a knife and stabbed at a door with it until it came off the hinges. He tried to hide from the mother, apparently successfully, and from his position saw the mother leave the home.
- The mother then went into a women’s shelter. The father believes that it was at this time that the mother started to become indoctrinated and brainwashed by feminists.
- It appears as though post-separation the father returned to live at R Town. He did not know the mother’s whereabouts for some period of time. He attempted to organise mediation with Relationships Australia, although the mother says it was disingenuous and he was only attempting to find her address. Whatever be the truth, in fact some short time after the mother had made contact with Relationships Australia, the father arrived at her home, and begged to stay for one night before returning to R Town. She permitted that to occur and he left the following day.
- About a week later the father returned and accused the mother of kidnapping the children and said that he wanted to stay in G Town. After four days the father again left, but he then retuned about two weeks later and stayed for another week. He was constantly asking the mother for money during this period.
- The father says that in fact during this time the relationship continued. He said that the mother would come to R Town for blocks of three or four weeks and he would then come and stay at G Town for some weeks. He said they celebrated birthdays and Christmas together, and he took the children to school, the beach and attended to household duties. Certainly the mother concedes that she and the children went back to R Town for school holidays during 2013, during which time she noticed that the father had sold most of the furniture and the house was a mess. She also concedes that at least after one of those holiday periods, the father travelled with her and the children to G Town and stayed at her home. She said that she refused to take the children to R Town during the 2013 Christmas school holidays, as “the children begged me not to go.”
- She says that until April 2014, the father would come and go from her home as he pleased. She says that she didn’t make too much fuss about it as he only stayed for a few days.
- At the end of April 2014 she moved into a new unit. She says that the father did not know that address; the father says that the mother told him the address not long after she had moved in. He says that they resumed the pattern of him spending about half the time in R Town, and half the time in G Town with the mother. However the following events persuade me that the father is either mistaken or untruthful in that.
- The particular events relate to the father absconding with D. On 8 May 2014 the father telephoned the mother and asked her to bring D to a playground so that he could see him before he returned to R Town. (This is of course quite inconsistent with paragraph 267 of the father’s trial affidavit which is to the effect that he was then coming and going as he pleased between R Town and the mother’s home in G Town).
- The mother complied with the father’s request and brought D to the playground. She saw the father, but did not approach him. D commenced playing. Because the father had not approached her, she assumed that he didn’t want to be near her, so she turned away to go and buy D a drink. She observed that the father was watching them, and assumed that he would come and play with D once she had walked away.
- After about 30 seconds she turned around and saw that D was gone. As it transpired, the father had abducted him and commenced to drive back to R Town.
- The father’s version is different. He says that he in fact spoke to the mother at the park who told him “you can see him for 5 minutes and then I am leaving.”
- Paragraph 286 of the father’s affidavit continues:
I had driven a thousand kilometres. The mother walked to the shop and I held onto D’s hand and put him in the car and took him to R Town. As soon as I left, the police were calling me.
- Indeed the police were called and their attempts to have the father turn around and return D to the mother were ignored. D was still being breast fed by the mother at this time.
- The mother became incredibly distressed. She made many phone calls to the father’s mobile phone but he refused to answer. About six hours after he had left, he eventually answered the phone and told her that he was “giving [me] a taste of [my] own medicine.” The father does not deny this, and I accept that is indeed what he said to her.
- Ultimately in order to have the child returned to her, the mother deposited $100.00 into the father’s bank account for petrol. That was because the father said that the reason he could not return the child was because he could not afford to drive back. Eventually the father did indeed return D. On doing so, he demanded more money from the mother to pay for food and fuel on the drive back. She gave him a further $50.00. The father then, on the mother’s evidence, started criticising her for spending money as she did, and then elbowed her in the face. She said this caused her to go outside and call the police and at that point she decided to not put up with any more abuse from the father. The police arrived and asked the father to leave. Whilst she was outside waiting for the police, the father purloined the children’s birth certificates and passports and the mother’s passport.
- Ultimately those were able to be returned to the mother in exchange for the father’s mail which had been sent, without the mother’s consent, to her post office box, or in the case of D’s birth certificate, in exchange for $50.00.
- These proceedings were commenced on 19 September 2014 by the father, although he did not serve the mother until 13 October.
- Then on 12 November 2014, the mother awoke at about 10:00pm to hear her front door screen rattling. When she went outside she saw that the father’s dog was tied to the screen door, together with a note addressed to C asking her not to “kill the dog.” The note said that the father would be back on 25 November 2014 to collect the animal. In fact the mother’s lease did not permit the dog to be kept on the premises, although it appears as though in fact the mother did keep the dog there until 7 December 2014, which is to say, of course, that the father had not returned on 25 November to collect it. On 7 December the mother took the dog to the RSPCA in G Town.
- Ultimately the father returned to the home on 9 January 2015. He became distressed that the dog was not there. He then telephoned the mother and left voice messages, a transcript of which were exhibit MW8 to the mother’s trial affidavit. They are ranting in nature. He describes the mother as evil, perverse and destroying the children. He says that she should be in jail. He says that she has committed crimes beyond comprehension. He seems to assert that the mother’s stepmother is behind all of this “with her witchcraft, she should be sent to jail as well.”
- In those messages he then began to demand the return of some property to him.
- On 10 January he again attended the house and demanded the return of property. The mother returned some but the father was not happy that a computer monitor she gave him was in fact the right one. In due course the police arrived although they denied that the father had called them.
- On 13 January 2015 the mother was advised by the children’s school that D could not be enrolled without the father’s consent. On the following day her solicitor wrote to the father seeking that consent. That was not forthcoming, although on 20 January 2015 it appears as though the father told the mother’s solicitor that he would sign the form.
- On 24 January 2015 the father confronted the mother at a service station. He verbally abused her. He then proceeded to leave a string of abusive messages on her phone over the next few days. A transcript of those messages was in the mother’s trial affidavit. They are rambling and alternate between normal conversation and animated accusations. For instance on 24 January at 8:26pm the message includes the following:
What’s your excuse, not to your fucking lying conniving lawyers and dog fucking, fucking feminist whores, what’s your fucking excuse to me you idiot?
- He threatened to remove the children from school if she sent them there. There is reference back to the dog. There is also reference to the principal of the R Town School.
- On 25 January there was an even longer rambling message, which introduced threats such as “what if I start playing like you, can you imagine, can you imagine the destruction to everyone’s life if I behave the same as you behave. You better start talking, I am a nice person, I want to work things out to everyone’s advantage but not with solicitors, not for the feminists, not for the terrorists, not for the murderers, not for the thieves and kidnappers and the criminals in society.” Later in that day there is an interesting aspect to one of the messages in which the father says “no one is trying to take the children off you, I only took [D] to show you just how completely and utterly devastating and evil it is to do that.”
- A little later in that message the father says “This country has turned into a terrorist state. You should be cooperating with me to save your children’s lives, not selling them out to these evil murdering criminals.”
- Then on Monday 26 January the father for the first time introduced into his messages a threat to cancel the children’s school enrolment. On that day the school’s principal, Mr U, telephoned the mother. He told her that although the father had consented to D’s enrolment, he had then contacted him to tell them that he intended to withdraw all the children from the school.
- Mr U gave evidence before me. He did so pursuant to a subpoena issued by the father. He gave evidence that when the father had attended the school he had been abusive and highly argumentative.
- An interim protection order was made by the G Town Magistrates Court against the father in favour of the mother on 29 January 2015. Later that day the school principal again telephoned the mother asking her to come and collect all three children from the school. He told the mother that the father had been making abusive telephone calls to the school and was again threatening to remove the children. Mr U’s oral evidence was to like effect. He said that he had become so concerned about the father’s behaviour that he regarded it as a threat to the school itself and all of the children there. His evidence was that in his 34 years of involvement in education, he had never before had to ask a parent to remove a child from school.
- In fact the children returned home on the usual school bus, but did not thereafter attend school for a little over three weeks. The school refused to have them back without a court order restraining the father from removing the children from school.
- On 20 February 2015 I made an interim order restraining the father from attending the school (and removing the children from the school). The children have thereafter continued their education at that school.
- During the course of the trial I circulated a draft list of issues which then appeared to me to be likely to be substantially determinative of the outcome of the proceedings. The parties were invited to make any submissions as to the adequacy of that list. No party made any submissions, and both the counsel for the mother and the Independent Children’s Lawyer appeared to accept that they were indeed the predominant issues in this case. They were as follows:
1. What is the nature of the father’s relationship with the children.
2. What, if any, risk of harm does the father pose to the children.
- What, if any, risk of harm does the mother pose to the children, and particularly, has she alienated the children from the father.
- Would the children benefit from a meaningful relationship with the father, and if so, how may that best be facilitated.
- Does the father have the capacity to provide residential care for the children.
6. What would be the effect upon the children of a change to shared care.
- Would the parents ever be able to communicate and negotiate effectively in relation to matters involving the children.
- What would be the effect upon the children of the effective termination of their relationship with the father.
- After I have considered relevant statutory provisions and legal principles and dealt with questions of credit as they arise in the case, I will consider those issues in advance of a general traverse of any further relevant s 60CC factors and then consider the specific parenting orders which in the exercise of my discretion are in the best interests of the children in this case.
LEGAL STATUTORY PROVISIONS AND LEGAL PRINCIPLES
The statutory regime
- Part VII of the Family Law Act contains the relevant statutory provisions dealing with children. Section 60B specifies the objects of Part VII, and the principles underlying those objects in the following terms:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
- Section 61DA(1) of the Family Law Act provides that the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. In the event that, either because that presumption applies, or because it is otherwise in the child’s best interests that there be an order providing for equal shared parental responsibility, the court is obliged pursuant to s 65DAA(1) to then consider certain matters, including whether the child should spend equal time with each of the parents, or substantial and significant time.
- However s 61DA(2) provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in either abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family) or family violence. Further, subsection 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for its parents to have equal shared parental responsibility.
- In this context it is convenient to also advert to s 65DAC, which sets out the effect of a parenting order that provides for shared parental responsibility. By subsection (3) such an order is taken to require each of the persons subject to it to consult with the other person in relation to the decision to be made about any major long-term issue in relation to the child, and make a genuine effort to come to a joint decision about that issue. It can therefore be seen that the obligations which an order effecting equal shared parental responsibility imposes are potentially onerous.
- Finally s 60CA provides that in deciding whether to make a particular parenting order, the court must regard the best interests of the child as the paramount consideration. The matters which a court must have regard to in determining the best interests of a child are set out in s 60CC. Consideration does not mean discussion: Banks & Banks  FamCAFC 36 at . In Mauldera & Orbel (2014) FLC 93-602 the Full Court had occasion to consider the interrelationship between s 60B and ss 60CC. At  the Court applied the principles enunciated in Wacando v The Commonwealth  HCA 60; (1981) 148 CLR 1 in concluding that objects clauses, such as those contained within s 60B(1) can be used as an aid to the construction of words of legislation, but cannot be used to cut down the plain and unambiguous meaning of a provision if that meaning in its textual and contextual surroundings is clear (quoting from S v Australian Crime Commission  FCA 1310; (2005) 144 FCR 431 at  per Mansfield J). At  the Court concluded that the primary Judge could not attach greater weight to the factors referred to in s 60B than to the outcome of her s 60CC deliberations, and in doing so, her Honour had erred.
Abuse, neglect and family violence
Abuse, in relation to a child, means:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.
- Neither the term “neglect” nor indeed “serious neglect” appears to be defined in the Act; absent any indication in the Act to the contrary they should therefore have their usual dictionary meanings. I can discern no contrary indication in the Act. The relevant definition of the word “neglect” in the Macquarie Dictionary is “to be remiss in care for or treatment of.”
- “Family violence” is defined in s 4AB(1) of the Family Law Act in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the persons family .. or causes the family member to be fearful.
- Section 4AB(3) provides that for the purposes of the Act, a child is exposed to family violence if the child sees or hears family violence, or otherwise experiences the effects of family violence. Section 4AB(2) and (4) respectively give examples of behaviour that may constitute family violence, and examples of situations that may constitute a child being exposed to family violence.
The standard of satisfaction required
- S 140 of the Evidence Act 1999 (Cth) provides as follows:
140(1) In a civil proceeding, the Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence;
(b) the nature of the subject-matter of the proceedings;
(c) the gravity of the matters alleged.
- In Neat Holdings Pty Ltd v Karajan & Holdings Pty Ltd  HCA 66; (1992) 67 ALJR 170 at 170-171 the majority of the High Court stated:
The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand the strength of the evidence necessary to establish a fact or fact on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a Court should not likely make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
- Therefore consistent with s 140(2), in taking into account the gravity of the parties’ allegations against each other, I propose to carefully evaluate the evidence relied upon in support of such a contended finding and be particularly vigilant to identify and place reduced weight upon “inexact proofs, indefinite testimony or indirect inferences.”
The notion of unacceptable risk
- It is useful to consider the authorities which give some guidance as to what is an unacceptable risk, and particularly the relationship of any such risk with the orders that the Court is contemplating. A useful starting point is the decision of the Full Court in N & S & The Separate Representative (1996) FLC 92-655, where in the well-known passage at 82,713-4, Fogarty J said:
Thus, the essential importance of the unacceptable risk question as I see it is in its direction to Judges to give real and substantial consideration to the facts of the case, and to decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm to the child. Thus, the value of the expression is not in a magical provision of an appropriate standard, but in its direction to Judges to consider deeply where the facts of a particular case fall, and explain adequately their findings in this regard.
- In M v M (1988) 166 CLR 69, the High Court had occasion to consider the approach in Family Court proceedings where there are allegations of sexual abuse of a child. At - the Court said as follows:
20. But it is a mistake to think that the Family Court is under the same duty to resolve in a definitive way the disputed allegation of sexual abuse as a court exercising criminal jurisdiction would be if it were trying the party for a criminal offence. Proceedings for custody or access are not disputes inter parties in the ordinary sense of that expression: Reynolds v Reynolds (1973) 47 ALJR 499; 1 ALR 318; McKee v McKee (1951) AC 352, at pp 364-365. In proceedings of that kind the court is not enforcing a parental right of custody or right to access. The court is concerned to make such an order for custody or access which will in the opinion of the court best promote and protect the interests of the child. In deciding what order it should make the court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child’s interests to maintain the filial relationship with both parents: cf. J. v Lieschke  HCA 4; (1987) 162 CLR 447, at pp 450, 458, 462, 463-464.
21. Viewed in this setting, the resolution of an allegation of sexual abuse against a parent is subservient and ancillary to the court’s determination of what is in the best interests of the child. The Family Court’s consideration of the paramount issue which it is enjoined to decide cannot be diverted by the supposed need to arrive at a definitive conclusion on the allegation of sexual abuse. The Family Court’s wide-ranging discretion to decide what is in the child’s best interests cannot be qualified by requiring the court to try the case as if it were no more than a contest between the parents to be decided solely by reference to the acceptance or rejection of the allegation of sexual abuse on the balance of probabilities.
22. In considering an allegation of sexual abuse, the court should not make a positive finding that the allegation is true unless the court is so satisfied according to the civil standard of proof, with due regard to the factors mentioned in Briginshaw v Briginshaw  HCA 34; (1938) 60 CLR 336, at p 362. There Dixon J. said:
The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
His Honour’s remarks have a direct application to an allegation that a parent has sexually abused a child, an allegation which is often easy to make, but difficult to refute. It does not follow that if an allegation of sexual abuse has not been made out, according to the civil onus as stated in Briginshaw, that conclusion determines the wider issue which confronts the court when it is called upon to decide what is in the best interests of the child.
23. No doubt there will be some cases in which the court is able to come to a positive finding that the allegation is well-founded. In all but the most extraordinary cases, that finding will have a decisive impact on the order to be made respecting custody and access. There will be cases also in which the court has no hesitation in rejecting the allegation as groundless. Again, in the nature of things there will be very many cases, such as the present case, in which the court cannot confidently make a finding that sexual abuse has taken place. And there are strong practical family reasons why the court should refrain from making a positive finding that sexual abuse has actually taken place unless it is impelled by the particular circumstances of the case to do so.
24. In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access. In access cases, the magnitude of the risk may be less if the order in contemplation is supervised access. Even in such a case, however, there may be a risk of disturbance to a child who is compulsorily brought into contact with a parent who has sexually abused her or whom the child believes to have sexually abused her. But that is not the issue in this case.
25. Efforts to define with greater precision the magnitude of the risk which will justify a court in denying a parent access to a child have resulted in a variety of formulations. The degree of risk has been described as a “risk of serious harm” (A v A  VicRp 24; (1976) VR 298, at p 300), “an element of risk” or “an appreciable risk” (Marriage of M (1987) 11 Fam LR 765, at p 770 and p 771 respectively), “a real possibility” (B. v. B. (Access) (1986) FLC 91-758, at p 75,545), a “real risk” (Leveque v Leveque (1983) 54 B CLR 164, at p 167), and an “unacceptable risk” (In re G. (a minor) (1987) 1 WLR 1461, at p 1469). This imposing array indicates that the courts are striving for a greater degree of definition than the subject is capable of yielding. In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
- In Harridge & Harridge  FamCA 445 Murphy J, having referred to N & S & The Separate Representative (supra), proceeded to adopt the following list of inquiries in relation to risk assessment:
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?
- I gratefully adopt that passage as helpful in cases such as these in analysing the asserted risk.
“No contact” orders
- Plainly it is a serious matter to order that a child neither spend time with nor communicate with a parent. Such orders properly ought be restricted to cases where that outcome is plainly mandated in the best interests of the child, and no other regime of orders is appropriate or workable. Such orders are commonly employed where the Court is satisfied that a parent poses an unacceptable risk of harm to a child, which cannot be ameliorated by supervision of time and communication between that parent and the child. The authorities germane to that situation were reviewed by the Full Court in Re Andrew  FamCA 43; (1996) FLC 92-692.
- Moreover, it is incumbent upon the court to clearly explain its reasons for any conclusion that safeguarding conditions cannot sufficiently ameliorate the risk posed by the parent: see Blinko & Blinko  FamCAFC 146 at .
- The material prepared by the parties appeared to contemplate that the issue of physical violence would be a major issue determinative of the outcome of these proceedings. As I have already indicated, the parties have wildly differing accounts of who was the perpetrator of domestic violence in the relationship. However upon analysis, this is not a case in which, irrespective of who the perpetrator of the domestic violence was, the determination of which parties’ account is accurate is critical. That is because both parties are agreed that there was indeed domestic violence. However as I have already observed, it is not physical violence to the children which the father is said to pose a risk of, but rather emotional abuse. That emotional abuse is not said to derive from his physical violence, but rather his paranoid psychosis.
- However it is appropriate that I should nonetheless make some conclusions about domestic violence. That in turn requires discussion in relation to the parties’ credibility. The first point to make is that the father experiences the world and the events that occur to him through the prism of his paranoia. His experience and interpretation of events is therefore determined by that perspective.
- A good illustration of how he misconstrues events in a more sinister way than they deserve occurred during the course of his Family Report interviews. A police car went past where he and the writer, Ms V, were speaking, and simultaneously her phone beeped signalling the receipt of a text message. According to Ms V, Mr West indicated that she was therefore colluding with the police and remarked “More evil. They can arrest me now.”
- Moreover the father appears to regard himself in something of a constant state of warfare with all forms of authority and government. He appears to view himself as the permanent and ongoing victim of a conspiracy involving many agencies and individuals. He therefore necessarily construes events as fitting within that conspiracy. Well high up in the list of perpetrators are women’s organisations, or perhaps more generally, feminist philosophy. He believes that feminism is now the Australian state religion.
- Given the disability which the father therefore labours under when dealing with reality, one would necessarily have to be very circumspect in wholeheartedly accepting his interpretation and recollection of events. Further, it is plain that for a substantial period of the relationship, the father was drinking considerably, and smoking marijuana heavily.
- His evidence as to marijuana use was unsatisfactory. Although he conceded that he had been regularly smoking marijuana since about 14, he appeared to want to downplay both the amount that he may have smoked, and the period over which he did so. In cross-examination he said that he could not recall when he had last used cannabis, but ultimately conceded that it was “quite possibly” 2014. He was equivocal in answer to the question of whether he was still smoking marijuana. As to his cannabis use since 2011 he said it was “well below the national average.” He said that he experienced a calming effect from it and that in stressful situations it was better to “smoke a cone” rather than to drink alcohol. That said, he was not prepared to agree that he had extensively used cannabis in the past.
- Curiously though, he had persistently declined to undergo any drug testing. In the witness box, although he was adamant that any such testing, if it were undertaken on him on that day, would not detect any cannabis, he refused to undertake the test nonetheless. He did so on the basis that it was not the Independent Children’s Lawyer’s right to ask him to submit to a test.
- In her evidence the mother said that during the course of the relationship the father would spend up to $300.00 a week on marijuana.
- The mother is not the only person to give evidence as to the father’s marijuana use. The children were interviewed by Ms W, a Family Court Consultant, in the course of a Child Inclusive Conference in December 2014. The memorandum to the court resulting from that conference was in evidence. It records “[B] gave a number of examples of his father’s behaviour that he found frightening, including his father drinking alcohol to excess and using cannabis.”
- I am satisfied that the father has been a regular and heavy user of cannabis, although I accept that at present his use may have abated. He has also plainly been a heavy user of alcohol. Whether individually or in combination, the effects of both of those drugs are likely to have impaired his experience of the world, and perhaps his memory of those experiences.
- On the other hand the mother does not present as having such constitutional concerns in relation to the reliability of her memory and accuracy of her evidence. That said, there are some points which do weigh against her evidence being accepted unquestioningly. The first is that she never made complaint to relevant authorities during the course of the relationship of the father’s violence against her. She explains that on the basis that the father had warned her if she were to tell authorities about him, she would be deported to Africa (not Country H). He told her that that is what Australia did.
- Further, there is no contemporaneous record made by the mother, other than the photographs referred to earlier, of the violence being perpetrated upon her. It is unclear on the evidence why the mother only took photographs of her injuries on one occasion but not others.
- Further, I note that in the father’s otherwise vitriolic voice messages to the mother, transcripts of which are in evidence, there is a persistent theme of challenging the mother’s truthfulness.
- Finally, there is the mother’s somewhat unsatisfactory evidence that on one occasion she herself did take up a weapon against the father, perhaps a piece of PVC downpipe.
- All of these do incline me to approach the wholesale acceptance of the mother’s evidence with some caution.
- From the perspective of the parties’ performances in the witness box, the mother was plainly the more reasonable and credible witness. The father could scarcely have made a worse impression had he deliberately set out so to do.
- However in my view the telling evidence which does weigh in favour in accepting the mother’s evidence as to the father’s domestic violence comes from the children. True it is that it was not tested by cross-examination (although at one stage the father did foreshadow that he was going to make an application to have the children produced for cross-examination) but nonetheless it has now been told to two independent inquirers. The first was Ms W in December 2014. In the course of speaking with her, B is reported as having said as follows:
[B] reported his current living arrangements (with his mother and sibling) as “peaceful, relaxing and no arguments.” When asked if he wanted to spend time with his father, [B] stated an emphatic “no.” [B] described family life with his father as “everyday arguing.” “[H]e ([Mr West]) attacked my mother, he was very violent. We (the children) would run away and hide. My father choked my mother, he picked her up.” ([B] demonstrated with his hand on his own throat in a lifting motion).
- C was also interviewed. Although she did not disclose any violence, Ms W did note as follows:
When asked if she wanted to spend time with her father, [C] said: “no”. [C] explained “he would shout at us. We could never relax. He was always arguing with our mother. I couldn’t do my homework. He was not really like our dad but someone who comes to our house, like a family member. I don’t really like him.”
- The second person was the Family Report writer, Ms V. She interviewed the children in February 2015. At paragraphs 113 and 114 of her report Ms V said as follows:
113. Mention was made of the children hearing the parents argue. A child said ‘dad could be violent; that was mainly when I was younger. He would shove my mother around. When living in [X Street] I would see him grab and twist her arm.’ When describing the parental arguments as ‘really annoying’, the child explained ‘I could not get a word in. Arguments are loud, mainly dad’s voice. Sometimes mum is loud when trying to get dad to be quiet.’ A child spoke of [the father and the mother] arguing about the computer and gold coins.
114. When given the scenario of the writer being their neighbour before mum and dad separated what would I hear, a child identified ‘arguments; not happy noise. Yelling and screaming. If not smoking, dad is crazy. Dad got very violent and carried on to our brother’s friend. Dad got mad that night. Our brother’s laptop was broken, the door was broken. He blames mum but I believe dad broke the laptop and the door. He does not admit to his behaviour.’
- The father sought to explain such disclosures on the basis that the children had been coached to make them. He said that they had been brainwashed by the mother. Neither Ms W nor Ms V accepted that contention. They said that they believed the children’s disclosures to be spontaneous and un-coached.
- The other matter which necessarily plays in the balance here is the father’s conduct in the court. Mr Victoire, who appeared as counsel for the Independent Children’s Lawyer, correctly identified that in fact the father, and particularly his conduct in the court, could properly be regarded as the Independent Children’s Lawyer’s principal exhibit. His demeanour and the tone of his voice was regularly menacing. His language was wholly intemperate. He exhibited no capacity for self-regulation or control. He appeared to have no insight as to the absurdity of his behaviour and presentation, and would say whatever came into his mind without any apparent review or editing. Moreover, at times he became physically animated. On occasions he petulantly swung around in his chair so that his back was facing me. Sometimes he left the bar table to wander around the rear of the courtroom. On one occasion he abruptly left the courtroom and had to be cajoled to return, refusing to return if there was a security guard in the room with him. He regularly angrily and aggressively gesticulated, even when he was in the separate courtroom. I have already mentioned his childish tearing up of pieces of paper in an effort to make some physical protest to overcome the fact that his audible intervention had been stopped by virtue of the microphone in the second courtroom being muted.
- If that is how the father is prepared to behave in court, one can only wonder how he would behave at home with a domestic partner with whom he is in conflict. When one considers that he has many charges – and perhaps convictions – for assault, particularly of police, one realises that it seems likely that he has no internal resistance to expressing his agitation physically. Moreover he himself confesses to having to hit the mother “about two times” early in the relationship. The conceded assault of the mother was serious. Even if be that the mother is mistaken as to the occasion that the photographs in evidence were of, the results are horrifying.
- I am therefore satisfied that the father has certainly been more violent towards the mother than he is prepared to concede, and that it is likely that he was violent substantially to the extent alleged by the mother.
- However I am not convinced that the mother was as infrequently violent as she alleges. If I were to believe her, there was only one occasion when she took to the father with a weapon. The way in which she gave her oral evidence in relation to that left me with some real doubt as to the prospect of there being more, and perhaps many more, such occasions.
- However as I have already indicated, this is not a case which turns upon physical violence, however counterintuitive that may seem. This is a case which turns upon the balancing of any risk of emotional harm which the father poses to the children, with any benefit to the children which would flow from having a meaningful relationship with him.
WHAT IS THE NATURE OF THE FATHER’S RELATIONSHIP WITH THE CHILDREN
- The father would have me believe that he has a good relationship with his children, save that it has been recently poisoned by the mother’s alienation of them from him. On the other hand the mother says that the father has always had a superficial relationship with the children, and to the extent that he has involved himself in their lives, it has been more about demonstrating himself as being involved, rather than in fact substantially being involved.
- I have already recited some of the children’s evidence as to their experience of the father, or at least their present perception of that experience. However there is more. Relevant extracts of the Family Report are as follows:
102. Not attending school was a low point for both [B] and [C]. [B] spoke of [the father] ‘coming to the school and arguing with the Principal; I refused to see dad at school.’ [C] point out ‘dad will carry on for a while; he will attend the swimming carnival to see if I’m there. I don’t want dad at the carnival; he yells and screams. He says I should try harder then he goes off at the teacher. It is really embarrassing.’
109. [Mr West] was described as ‘aggressive’. Another said ‘he is usually grumpy. He smokes and drinks a lot. He used to blame mum for drinking [alcohol] and leaving us at home. She didn’t. Dad would go to the Casino to gamble; he would come drunk. Life with dad was quite stressful. He likes arguing. He argues over little things, it could be something of the floor or the dishes not washed. He would not wash the dishes.’
110. When speaking about [Mr West’s] public displays of aggression, the child said ‘dad does not learn. He carries on; he may not be aware of his behaviour. He appears not to be aware of others present [in the vicinity]. He does not care if anyone else is paying attention. He just has to say what he wants to say.’
111. Mention was made of [Mr West’s] minimal involvement with the children; ‘he would sleep’. [C] spoke of [Mr West] taking her to the lagoon; ‘[D] was too young and [B] was not interested’. When they lived in [R Town], [Mr West] was involved with the children’s sport.
112. When canvassed would they magically change any aspect of [Mr West], a child said ‘his behaviour.’ After a pause the child questioned if [Mr West] could change; ‘it would be pretty hard.’ When advocating the removal of [Mr West’s] aggression, a child suggested ‘make him the opposite to what he is now.’
117. When canvassed as to whether they have witnessed either parent argue with others, a child replied ‘dad, all the time. He argued at the bank. He would argue anywhere if he was not happy with the service. Dad would make false accusations when he was not happy.’ Mention was made of [Mr West] having no friends; ‘he argues with every single person he talks to.’
- It bears repeating that C also told Ms V that the father’s presence in the home was more like a family member rather than a parent.
- Having witnessed six days of the father’s outlandish behaviour, the children’s statements resonate with me; they align perfectly with my observations of him.
- There is then the evidence of the children’s school principal, Mr U. He gave evidence under subpoenae issued by the father. Perhaps the father thought that he was going to obtain favourable evidence from Mr U, but that seems unlikely. Rather it appears as though the father was intent on using the coercive powers of the court process to enable him to confront Mr U. Mr U’s evidence wholly dammed the father. Particularly he said that the father’s behaviour in January of this year was so concerning that he considered him a risk to both the staff and students at the school. He said – and was not challenged – that staff felt threatened by him. He said it was most unfortunate that other students had witnessed his carryings on. As I have indicated, for the first time in his 34 years in education, he required students to be taken home and not thereafter allow them to be at school.
- Plainly the children were at least disappointed, and probably furious, with the father for what he did and the effects of it on them.
- I am satisfied that the children have nothing like a normal father/child relationship with the father, and experience him as an aggressive, conflictual and highly embarrassing man. I am satisfied that the father, far from assisting them in a perception of safety and security, effects exactly the opposite upon them.
- The father says that this is all because of the mother’s alienation. I wholly reject that. True it is that the mother has not in recent times promoted any relationship between the father and the children, however no doubt she has been pushed beyond the end of her tether. There is no evidence of coaching or other untoward involvement of the mother of the children.
- Dr E dealt with this in a pithy observation at paragraph 67 of his report in relation to the father. There he said:
67. I note that he claims that his estranged wife has alienated the children. I am quite sure he has alienated them very nicely himself.
- I accept that evidence and it conforms with my view of the evidence generally.
RISK OF HARM POSED BY FATHER
- I have already expansively detailed the father’s unique presentation, which is one of belligerence, hostility and menace. It is plain that this is a permanent, ingrained and persistent feature of his day to day life. It is, simply, who he is.
- Likewise I have already traversed the evidence in which the children have detailed that their experience when with the father is one of conflict; conversely, their experience now that they are not having contact with the father is one of peace.
- As if the direct impact upon the children of experience of such a father is not enough, there is also the risk that they will be caught up in the father’s retributive schemes. These are not at all child focussed. There are two glaring illustrations of this. The first is the father’s abduction of the three sons from his second marriage by taking them for an extended period to O Town. I have little doubt that the father in doing so was acting with a view to punishing their mother for having taken the children from him to Norway. The second is the father’s taking of D – still being breastfed – from the mother, plainly, as he himself said during one of his voice mails to the mother, to punish her. Less child focussed decisions could scarcely be envisaged, other than direct physical harm or neglect.
- Ms V summarised it perfectly in her oral evidence-in-chief. She said that the father operates from a position of self-entitlement, is prepared to carve up the children like property, and does not understand the impact of domestic violence on children.
- Critical to this consideration is the degree to which the father has insight. Dr E was of the view that he has a “total lack of insight.”
- The father does indeed totally lack insight. He demonstrated that many, many times during the course of the trial. He says and does whatever he feels he should in any circumstances. This is the experience of the children of him. He is quite prepared to use children as pawns in games of retribution and conflict. His cavalier taking of D – opportunistically, and just on a whim – is a stark illustration that he is prepared to risk the children’s emotional health and wellbeing to achieve his vindictive aims. I unhesitatingly accept Ms W’s evidence that there is a serious risk of emotional harm to D should he spend time with the father, because of the risk that the father will withhold him as he has previously done.
- I am satisfied that the father presents a real and substantial risk of emotional harm to the children, whether from being exposed to his violent conduct from time to time, or his aggressive, hostile and menacing behaviour, or because he would involve them in his vindictive actions.
RISK OF HARM POSED BY MOTHER
- I reject that the mother has alienated these children from the father. I completely accept Dr E’s evidence that the father has managed to alienate them “very nicely himself.”
- There appears to be some suggestion that the mother physically disciplines the children, although their experience of it is that the red marks from her smacking quickly abate. In any event the father did not run his case on the basis of any physical risk posed to the children by the mother. Such risks as the mother might pose to the children are not unacceptable.
BENEFIT OF MEANINGFUL RELATIONSHIP WITH FATHER
- The children do not perceive that they derive any benefit from their relationship with the father. The expert evidence speaks strongly in support of their views. Particularly I specifically inquired of Ms V whether she thought that there would be any benefit of B spending time with the father. Although she said that he would likely comply with it because he has a compliant character, she was emphatic that there was in fact no benefit at all to B spending time with the father. She again said that there was no benefit whatsoever in C having a relationship with the father. Moreover, she was worried that in the event that one of the children were required to spend time with the father, the others would likely attend only to protect that other child. Particularly in the case of D, that is because both B and C would be concerned that he may not be returned, as occurred in 2014.
- In the past the father has been involved in arranging and facilitating the children attending extra-curricular sporting activities. The most recent instance of that was a disaster. The children were attending a swimming carnival, and the father went to observe. He became concerned that C had wrongly come second in a race. He made a scene. He asserts that he was acting in her best interests, but it is clear that his behaviour mortified the children. Having seen the behaviour of the father for myself in court, I can well imagine the fuss which he created. It would have been an intolerable and excruciatingly shameful thing for the children to have perpetrated upon them in the presence of their peers.
- The two older children identified that they would obtain no benefit from a relationship with their father and do not want it. The evidence wholly supports them. I am satisfied they would obtain no tangible benefit from a relationship with their father.
- D fits into a somewhat different category to the older children, in that they have already formed their view of the father, and have had the benefit of at least knowing him, so that they have an appreciation of both their parents when forming their adolescent identities. However I am not persuaded that in D’s case, knowing his biological father – without more – is going to be of any real benefit to him. The father will likely only continue to expose him to conflict and hostility, and is likely to again use him as a weapon in his retributive ambitions.
DOES THE FATHER HAVE CAPACITY TO PROVIDE CARE
- For three months whilst the mother was in G Town in preparation for the birth of D, the father did indeed care for B and C at R Town. That is sufficient to satisfy me that the father can, at least to an acceptable degree, house, feed and clothe the children. However I am far from satisfied that the father has the capacity to provide for the emotional and intellectual needs of the children. I do not wish to labour the deficiencies in the father’s behaviour. However it has to be said that even if the father displayed a fraction of the outrageous behaviour which he demonstrated in court in a relationship with the children, it would be disastrous. The fact that he is apparently prepared to potentially expose his children to his anger was soundly underlined by his apparent desire to require them to be produced for cross-examination by him as to their credit. A less child focussed view could scarcely be imagined.
- I am not satisfied that the father has the capacity to provide for the emotional needs of the children were he to have them in his care for any period of time.
EFFECT OF SHARED CARE
- The father proposes equal shared care. There is a threshold difficulty in considering the effect of that proposal, because the father remains living at R Town, whereas the mother lives in G Town. The father said in his evidence that that if the order were made he would move to G Town. It was completely unclear where he would live, or indeed how he would afford to live. Therefore on a practical day to day level, the father’s proposal is so devoid of detail that the mechanics of the proposed shared care arrangement cannot even begin to be formulated.
- However more fundamental is the wholly different regimes in which the children would likely be living. The father appears to think that the children have become virtual hermits, rarely venturing outside the house except to go to school, and involved in no extra-curricular activities. He would no doubt seek to have the children involved in active outdoor activities on a regular basis. The mother on the other hand does not appear to place the priority on such activities as does the father. She appears to be compliant with the children’s desire to play electronic games, or spend their time in libraries. There is no consensus between the parents as to how the children should be raised. The likely effect of that in reality is that the children would be moving between two wholly different worlds, presided over by parents with wholly different personalities.
- In T v N  FMCAfam 222 Ryan FM (as her Honour then was) at  said in relation to the conditions attaching to equal shared care as follows:
The factors that the court should particularly examine in cases where a party seeks orders that share a child’s time equally between its parents (or others) include the following:
- The parties’ capacity to communicate on matters relevant to the child’s welfare.
- The physical proximity of the two households.
- Are the homes sufficiently proximate that the child can maintain their friendships in both homes?
- The prior history of caring for the child. Have the parties demonstrated that they can implement a 50/50 living arrangement without undermining the child’s adjustment?
- Whether the parties agree or disagree on matters relevant to the child’s day to day life. For example, methods of discipline, attitudes to homework, health and dental care, diet and sleeping pattern.
- Where they disagree on these matters the likelihood that they would be able to reach a reasonable compromise.
- Do they share similar ambitions for the child? For example, religious adherence, cultural identity and extra-curricular activities.
- Can they address on a continuing basis the practical considerations that arise when a child lives in two homes? If the child leaves necessary school work or equipment at the other home will the parents readily rectify the problem?
- Whether or not the parties respect the other party as a parent.
- The child’s wishes and the factors that influence those wishes.
- Where siblings live.
- Accepting that the legislative framework has changed since that decision, there is nonetheless no reason to think that as a practical matter those considerations do not remain live in determining whether or not equal shared care is likely to work.
- None of those criteria – not a single one – are met in this case. That predicts that shared care in this situation would be a wholesale disaster. I am satisfied that it would indeed be unworkable.
PARENTS ABILITY TO COMMUNICATE AND NEGOTIATE
- There was an unusual feature to the father having been physically removed from the court and his outbursts controlled by muting him, by the time he got to cross-examine the mother. That was that the mother was able to, probably for the first time in her life, without interruption converse – albeit in the highly artificial situation of cross-examination – with the father. Even from the silent – at least from the courtroom in which I was sitting – perspective, the father’s rage and fury was palpable. But for the fact that the father was on mute, I have little doubt that he would have been unable to control himself from interjecting during the course of her answers, as he had done with many witnesses prior to that.
- Whilst the mother was not necessarily directly responsive to all of the questions posed of her, I had the distinct impression that she was luxuriating in the fact that for once she was able to speak without interruption.
- I have no hesitation in concluding that these parties have never been able to, in recent years, conduct a civil conversation. The father’s belligerence and overbearing attempts to intimidate would have been on full display in the course of their conflict. I am buttressed in this conclusion by the children’s experience of their home life.
- The father cannot communicate in the sense that he cannot even listen to contrary views. His concept of dialogue is in fact monologue; his notion of negotiation is to wholly win. He becomes extremely aggressive, petulant and outspoken if he does not get his way. Notwithstanding my several warnings to the father that his own conduct in court could be taken into account by me in relation to the resolution of matter, he still persisted in such behaviour.
- I am satisfied that these parents could never communicate, much less negotiate effectively, in relation to matters involving the children.
EFFECT ON TERMINATION OF RELATIONSHIP WITH FATHER ON CHILDREN
- Sadly, counsel for the Independent Children’s Lawyer, correctly summarised that the effect of the termination of the relationship between the father and the children will be one of freedom for them. It gives me no pleasure to make such an observation.
- In reality, the children’s relationship with the father has already terminated. He has not spent any time with them since 2014. Far from having adversely affected them, it appears as though both B and C are doing well at school, and report no emotional disturbance. D appears to experience separation anxiety from his mother which is conjectured as being part of the outcome of the father having taken him away in May 2014.
- I am satisfied that if the children know that their relationship with the father is terminated unless and until they choose to reinstitute it, that will indeed be liberating for them.
SECTION 60CC CONSIDERATIONS
- I will be appreciated that much of what I have already discussed traverses many of the s 60CC considerations. However relevant to them, I make the further observations.
- As I have previously explained, unfortunately there is no tangible benefit in any of the children having a meaningful relationship with the father. They would benefit from having a meaningful relationship with their mother.
- Somewhat oddly, this is not a case in which s 60CC(2A) has any work to do: that is because I give no weight, because there is no benefit, to the children having a meaningful relationship with both parents.
- Both of the elder children have expressed emphatic views that they wish to have nothing more to do with their father. I give those views considerable weight, given the age of the children and the maturity with which they expressed them.
- Whilst I am satisfied that the father has sought, at least in recent years, to participate in issues involving the children and to spend time with them, I am not satisfied that he has been child focussed in so doing. No better illustration of this could be had than his intimation that he no longer consented to the children attending their high school. True it is that he was seeking to be involved in decision making about them, but he did so without consultation with the mother and obviously as part of a general campaign against the mother in the context of these family law proceedings.
- The father has never paid child support to the children since separation, and did not express any desire to ever do so in his evidence. I do not overlook that from time to time the paternal grandmother has apparently sent money to the children for special events – for instance it is said that she paid for fares for a holiday to the Solomon Islands, and contributed $300.00 towards an airfare to Country T for B, but plainly that was the paternal grandmother and not the father.
- The father lives in R Town which is about four and a half hours drive from where the mother lives. There is therefore practical difficulty in the children maintaining personal relations and direct contact with both parents on a regular basis if the father continues to live in R Town. However that is not an issue in this case given the looming nature of the other factors.
- Although not aboriginal, the children do have Country H heritage, which is outside the scope of the consideration in s 60CC(3)(h). I am satisfied however that the children would best benefit their experience of their Country H heritage via the mother.
- A Family Violence Order has applied in which the father was the respondent and the mother the aggrieved. The inference I draw from that is that the father is a violent man.
- No party suggests any interim orders. However this consideration is relevant as to whether or not there should be some slight window left open for the father to continue to engage with the children perhaps by card or gift or email. The Independent Children’s Lawyer submitted, and I accept, that whatever slight opportunity were left for the father, he would seek to use it as a wedge to reignite his fight with the mother. To that extent, such orders would risk leading to the institution of further proceedings.
- The presumption established by s 61DA does not apply because there are reasonable grounds to believe that there has been family violence. In any event, the father and mother could not negotiate or communicate effectively in relation to the children. There is no prospect of the parties meeting their obligations under s 65DAC in the event that there was an order for equal shared parental responsibility. It is plainly not in the children’s best interests for there to be an unworkable arrangement in relation to decision making pertaining to them. The primary residence parent must therefore have sole parental responsibility.
WITH WHOM SHOULD THE CHILDREN LIVE
- The father is a real and substantial risk of emotional harm to the children. There is no benefit whatsoever to the children having any relationship with him. Whilst he may be able to provide for their physical needs, he cannot provide for their emotional and intellectual needs. The children do not wish to live with the father, or at least the eldest two articulate emphatic views to that effect.
- Equal shared care would be impossible and would inflict untold damage upon these children.
- It is plainly in the children’s best interests that they live with the mother.
TIME AND COMMUNICATION WITH FATHER
- Unfortunately this is one of those unfortunate cases in which there is no benefit whatsoever to the children spending time or communicating with their father. It would expose them to risk of emotional harm with no benefit, whether commensurate or otherwise, in return. The children neither wish to spend time nor communicate with the father. Having seen the father in action over six days, I fully appreciate and understand their strongly held concerns. I give them weight given their age and the maturity of the way in which they express them to Ms V.
- As I have earlier noted, in Blinko v Blinko  FamCAFC 146 at  the Full Court emphasised the need for a court to explain why it is that no regime of orders can sufficiently ameliorate the risk which a parent is said to pose to the child, and why it is therefore that the total termination of the parent/child relationship is in the child’s best interest. Here there is one central theme to all of the rebuttals to any form of orders that would see the father maintain any form of connection with the children, and that is the father himself. He could not be trusted with any continued contact with the children or communication. He is amongst the angriest, most hostile, belligerent and menacing of people. I am satisfied that his out-of-court behaviour is likely even more extreme than the behaviour that I observed in court. That accords with all of the evidence; indeed there is no single piece of evidence which paints the father in any other light.
- There is simply no regime of supervised time which would work. Assuming that a private supervisor could be had, the father would undoubtedly become belligerent and hostile around him or her. There is little doubt that should the father spend supervised time with the children at a Contact Centre he would rapidly be expelled in consequence of his inability to control his emotions and hostility. That would just become another battleground for the father. Virtually every agency which the father appears to have had any contact with has been the subject of that sort of disputation, and there is no reason to think that a Contact Centre would be any different. Moreover, there is no benefit to the children in having a relationship with their father. Therefore not only is there no workable regime of orders, but there would be no point to them.
- There will be no order in relation to time and communication between the children and the father, and there will be orders restraining the father from attempting to spend time or communicate with the children.
- I have considered whether a regime of gifts and cards may nonetheless be appropriate, given the relative lack of opportunity for conflict between the parties, or for the children to be exposed to the father’s behaviour and the attendant risks. However such is likely to be unsettling for the two elder children, and of little benefit to the youngest child. Moreover it would require the mother to keep the father advised of her current postal (and hence in her case, no doubt residential) address.
- I am conscious that such a regime may well enable the children to maintain some concept of their father. In the case of the older two children they already have that concept firmly implanted in their brain. They have strongly expressed a desire to have nothing more to do with their father. In the case of the younger child, whilst he has not so strongly expressed that view, it has to be said that there is the real prospect that the father would not be able to remain child focussed in any communication.
- I am not satisfied that a regime of cards and gifts would be in the best interests of any these three children and decline to make any such order (which was not sought by the father in any event).
- The mother seeks orders that, amongst other things, a recovery order should lie in chambers. Although supported by the Independent Children’s Lawyer, I am not persuaded that the court should prophylactically issue recovery orders in circumstances presently beyond contemplation. Whilst I appreciate the intention behind the order, in that given that I am of the view that there is no benefit for the children in seeing their father again, that they should be immediately returned in the event that he seizes them, I not persuaded that the issue of a recovery order pending any breach of these orders should be made at this point. Particularly in this respect I note that the father has – at least thus far – respected the injunction which I made in February restraining him from attending the children’s school.
- That then brings me to the injunctions which the mother seeks. They include injunctions from seeking to approach the children whether at school or elsewhere and the like. I am satisfied that such orders are indeed in the best interests of these children and will make them.
- Save for the recovery order, there will therefore be orders in terms sought by the mother and supported by the Independent Children’s Lawyer.
- I am therefore satisfied that the orders set out at the commencement of these reasons are in the best interests of the children and will pronounce them.