Family violence in presence of child

Parenting – child aged 4 – where the father committed serious acts of family violence in the presence of the child at or about the time of separation – where the child has been spending two nights a week with the father for almost two years and has a good relationship with him and where the father is able to provide satisfactory day to day care for the child – where there has been no further family violence – where the mother now seeks a reduction in the father’s time with the child including removal of overnight time – where the father asserts that this cannot be justified as the court cannot find that the child is at unacceptable risk of harm in his care – implications for the father’s time of the fact that he makes very limited admissions about the violence, has not done a perpetrators course and denies to the child that he hurt the mother – whether the child’s surname should be changed to a hyphenated surname incorporating the name of both parents.

The family violence allegations

42. The mother alleged that during the parties’ relationship the father often became angry and called her a slut and a cunt and the family report writer said as follows:
    The mother said the father’s intolerance of noise and activity resulted in her telling the children, especially Y, to be quiet a lot of the time just to keep him happy. The mother said that initially the father would express his displeasure by yelling at everybody in the house. After some time the father began to swear at she and the children. The mother said the father referred to the child Y as a “little c*nt” on a number of occasions. ^[2]
43. The father did not deny these allegations at least to the extent of the mother alleging that the father had verbally abused her.
44. The mother alleged that there was a serious incident of family violence on 29 July 2016.
45. She said that about 8.00 or 8.30pm that night she told the father that she wanted to go to the gym. The father objected and a violent argument erupted.
46. When the argument commenced Y was in bed and X was in the lounge playing with toys. The mother picked X up and took her car keys and went out to the car. She began to place X in the car seat in her car but while she was doing it she could hear the father in the house yelling at Y “wake up, wake up, you’re mum is going to leave you”.
47. The mother took X out of the car and went inside where Y was crying. She said that the father grabbed her car keys and tried to bend them against the door frame. She was able to retrieve her keys and she picked X up and was trying to walk out with X and also shuffle Y out the front door. The mother went to her car and attempted to put the key in the ignition but the father had bent the key and it proved impossible to do so.
48. The mother had X on her lap while she tried to insert the key into the ignition and the father reached in through the window put his hands around her throat and started to strangle her. The mother said that she screamed for help and then started coughing and the father released his grip. The father began demanding that the mother give him X and then choked her again. She said that this happened four or five times.
49. The father then picked Y up and yelled in her face to stop crying. The mother said that the father also yelled to her “pick which kid you’re having because you’re not taking both of them tonight”.
50. The father put Y down and managed to take the mother’s keys and he also took X’s car seat out of the car. The mother said that the father again gripped her by the throat and tried to grab X from her and that X was screaming.
51. The father managed to get X from the mother and he then threw the mother’s keys and her phone down the side of the house and put X in his car and drove off.
52. The mother called the maternal grandmother who came and picked up Y. The maternal grandmother wanted the mother to call the police but she refused to do so.
53. The mother also called Mr S who was a friend of hers at the time and he picked the mother up and they drove around trying to find the father. They went to Mrs Weekes’ house but the father was not there. They eventually found his car at the house of a friend, Ms U. When the mother saw that the father’s car was at Ms U’s house she decided to leave the matter for the night as she thought that X would be safe at that home.
54. The mother said that the day after this incident she returned to the parties home but commenced sleeping on the lounge.
55. The mother suffered bruising to her chest and neck as a result of the incident on 29 July 2014.
56. The mother said that on about 8 August 2014 the father started arguing with her late at night and began throwing things at her, kicking her, and pestering her to come to bed. She said that he sat on her on the lounge and put his hands awkwardly near her neck causing her pain and that she bit his hand to get him off her. She said that the father began yelling “get out, get out” and that she took Y and left.
57. The mother said that she was afraid to try and take X.
58. On the mother’s case this was the date of separation and she did not sleep at the house again. However she went around to the house after work to see X and on 16 August 2014 she went to the house on two separate occasions.
59. On the first occasion the mother was doing some cleaning and had her phone on the bench. The father saw a message come up on her phone from Mr S and demanded the passcode for the mother’s phone but she would not give it to him and he took her phone and held it out of reach.
60. The mother sat on the lounge and the father sat next to her. The father handed the mother’s phone back and she said that she was leaving and the father said “No your not.”
61. The mother said that the father took her phone and car keys and walked off. The mother followed him and as she got to the doorway of the lounge room the father used two open palms to push her in the chest area and she fell back against the door.
62. The father called the mother a slut and used his hand to grab her throat and said “I am going to put you in your fucking grave.”
63. The mother said that she pushed the father who began to cry and that she hugged him and he gave her phone and keys back. She put the phone down the front of her shirt and her keys in her pocket and went to leave. When the father realised that she was leaving he grabbed her shoulders and threw her to the ground and sat on her and used both hands to push on her chest to try and find the phone.
64. The mother said that the father pulled her shirt and jacket causing the zipper on her jacket to break. She used her fingernails to try to force the father off her. She said that the incident went on for about 10 minutes and she kept asking the father to stop as X was in the house.
65. After about 10 minutes the father let the mother go and she noticed that her nose ring was missing and she was bleeding from the nose piercing. She went to the bathroom to clean up her face and when she came out the father called her a cunt. In response the mother slapped him and he used his left hand to punch her in the right hand side of the lower jaw with a closed fist. She said “Did you really just punch me?” and the father replied “You’re lucky it was only just a punch, the next time I’ll knock you the fuck out. Just fucking leave.”
66. The mother went to Mr S’s house and told him what had happened and also went to the maternal grandmother’s house and told her what had happened. She said that as a result of this incident she had bruising and red marks on her chest and throat and the lower right side of her jaw. The maternal grandmother took photos of the mother’s injuries on her iPhone and at the trial photographs of the mother showing bruising on her chest, neck and under her jaw were tendered.
67. The mother said that she thought about reporting the matter to the police but was scared about what might happen if she did.
68. Notwithstanding this incident the mother went back to the home that evening. The father was drinking. The mother went to get some food for X who had not eaten and when she returned the father asked her to take X so that he could continue drinking.
69. The mother said that while she was on her hands and knees near the lounge looking for X’s clothes the father sexually assaulted her. She said as follows in her affidavit:
    That night Mr Weekes forced himself on me and had sex with me without my consent. It happened on the lounge in the lounge-room. I repeatedly told Mr Weekes no, that I didn’t want to, that he must stop, but he did not stop. I started crying during the assault but I tried to keep it quiet because X was awake and she was sitting on the lounge at the time. X stared crying when she was just able to climb out from where she had been sitting and squashed into the corner of the lounge by the motion of mine and Mr Weekes’s bodies during the assault. She looked me in the face. She was crying and saying repeatedly, “Mummy, Mummy”.^[3]
70. The father let the mother take X from the home after this assault but she returned X to him the next day.
71. The father’s counsel asked the mother in cross-examination why she did this and she said:
    I just remember feeling I had to do it. I cannot even give you an explanation for why I did it. That day I actually crashed the car because I was thinking what he did to me.
72. The mother told Mr S and the maternal grandmother about the alleged sexual assault. They both urged her to report the matter to the police and indeed Mr S drove her to the police station and they sat outside in the car for a while but the mother did not want to do so.
73. Notwithstanding what had happened the mother continued to make efforts in the days which followed to spend time with X by going to the parties home.
74. On 31 August 2014 the father allowed the mother to take X away with her for a period of time but the mother said that the father rang her while she was at her parents’ home and said that if she did not let him have X back that night he would burn all of Y’s photos that were still at his house and stab her (omitted) brother D.
75. The mother said that she only had hard copies of the photos because her computer tablet was broken and she was frightened that the father would carry out his threats and took X back to him that night.
76. On 1 September 2014 the mother went to the police station with her parents to seek assistance to recover her things from the home. The maternal grandmother told the police about the assaults on 16 September 2014 and the police asked the mother to tell them what had happened and she did.
77. The following day the police applied for an ADVO for the protection of the mother, X and Y although X was later removed as a protected person. The police also conducted a record of interview with the father. He denied sexually assaulting the mother and although he made some admissions of violence the police decided not to charge him with anything.
78. In his trial affidavit the father gave his version of events about the incidents which occurred on 29 July 2014 and 16 August 2014. He made no mention of any incident on 8 August 2014.
79. The father gave a very brief account of what happened on 29 July 2014. He admitted forcibly taking X from the mother when she was sitting on her lap in the car and said that he used his arm to restrain the mother so that she could not prevent him taking X. He said that he forcibly took the child because he was concerned that the mother might drive off with her on her lap which was unsafe. He said that he regretted having used force on the mother on that occasion.
80. The father also gave a very brief account of what happened on the morning of 16 August 2014. He admitted withholding the mother’s phone from her and said that he had palmed the mother in the face but said that he did it because she slapped his face.
81. The father denied that he raped the mother and said that they had consensual sex.
82. The father said that he regretted his behaviour on 29 July 2014 and on the morning of 16 August 2014.
83. The father said that on 31 August 2014 he threatened to burn some of the mother’s things if she did not come to the house to collect them (although he denied that it was the baby photos) but said that it was done in the heat of the moment and he regretted making the threat. He did not admit threatening to stab her brother.
84. The father made no admissions about any other violence to the mother and did not admit that he had ever choked her or placed his hand around her throat.
85. Unfortunately for the father his interview with the police on 2 September 2014 was played in full during the hearing and during that interview the father said and did things which seriously call into question whether the court should accept the sanitised version of events in his affidavit.
86. When the police asked the father if he had grabbed the mother around the throat during the incident on 29 July 2014 he said:
    There’ve been a few times when I’ve grabbed her by the throat but not then.
87. Later in the interview he said that “I whacked her and held her back while I leaned in and got X.”
88. He also said:
    I ripped the keys out and threw them

and
We got into an argument and I was choking her.

89. When he was questioned about the incident on the morning of 16 August in which the mother said she sustained bruising to her chest the father said:
    I agree that I might have been pushing her in the chest before I handed her the phone.
90. When he was asked whether he had walked toward the mother and grabbed her by the throat he answered:
    Not then.
91. Later in the interview the father also said:
    X was in the toy room playing. I was trying to get to her. I pushed her [the mother] against a chair and she kicked me and I grabbed her and threw her to the ground. I picked X up and….she [the mother] punched me several times in the back of the head.
92. In his affidavit the father said that during the argument on the morning of 16 August 2014 he palmed the mother across the bottom of the jaw. During the police interview he demonstrated a forceful upward push with his hands and said:
    I palmed her on the side of the jaw, crack.
93. He added:
    She was holding her jaw but there was no blood.
94. The father agreed that the mother slapped him during this incident after he called her a “slut” or a “fucking slut.”
95. The police questioned the father at length about the mother’s allegation that he had raped her. The father maintained that he and the mother had consensual sex. He blamed the allegation partly on the mother “going off her meds”.

Conclusion about the family violence allegations

96. Even on the father’s own evidence he committed numerous acts of family violence during and after the relationship.
97. He did not deny that he called the mother a slut and a cunt during arguments and although the mother’s evidence could have been more detailed I am satisfied that this behaviour comes within the definition of repeated derogatory taunts which is one example of family violence in s. 4AB of the Family Law Act.
98. The father admitted that he physically restraining the mother on 29 July 2014 and forcibly took X from her. He admitted to police that he whacked and choked her. I do not accept that the father’s assertion that he admitted choking the mother because he felt under pressure during the interview but did not actually do it.
99. The father admitted in his affidavit to taking the mother’s phone and withholding it on the morning of 16 August 2014 and he made an admission about palming her to the face. During the police record of interview he described a more serious blow to the mother’s face and he admitted pushing her over and throwing her to the ground which he did not mention in his affidavit.
100. He admitted engaging in coercive and controlling behaviour by threatening to damage property on 31 August 2014.
101. Therefore even on the father’s own admissions he committed numerous acts of family violence including acts of physical violence which injured the mother and making threats which were intended to coerce and control her.
102. However the mother said that the father was not telling the full truth about what occurred. She asked the court to accept her evidence about the events of 29 July 2014, 8 August 2014 or thereabouts, 16 August 2014 and 31 August 2014.
103. In assessing the mother’s account of what happened on these occasions I need to be conscious of the fact that the events of 29 July, 8 August and 16 August erupted quickly, sometimes went on for some time, included different elements and were very distressing and frightening for the mother and the mother did not report the incidents for up to a month after they occurred. It is possible that she has made some mistakes about exactly what occurred or the order in which events occurred on any particular occasion or even innocently got things which happened on one occasion mixed up with things which happened on another.
104. However the information the mother has given on different occasions about what occurred on each of these dates has been broadly consistent and coherent and the maternal grandmother who was a credible witness gave similar (although not identical) evidence to the mother about the threats made on 31 August 2014 which she heard because the mother put the phone on speaker.
105. The father was not a witness of credit about the violence allegations. He did not mention family violence at all in the affidavit he filed in December 2014. He did not mention family violence to the family report writer at all until she questioned him about it and when asked questions he gave a very sanitised version of what had occurred and suggested the violence was mutual. He also made minimal admissions about his conduct in his trial affidavit filed in July 2016. However the father made concerning admissions to the police close to the date when the events occurred. He confirmed that he had choked the mother, whacked her and palmed her hard enough to the jaw to cause him to follow his physical demonstration of what he did with the word “crack.”
106. I prefer the mother’s evidence about what happened on 29 July 2014, 8 August 2014, the morning of 16 August 2014 and 31 August 2014 to the father’s evidence.
107. I am also satisfied on the balance of probabilities that the parties did not have consensual sex on the evening of 16 August 2014.
108. The fact that the police declined to charge the father does not mean that the mother’s version of events should not be accepted. The police are required to prove a charge beyond a reasonable doubt and may well have formed the view that there was insufficient evidence to proceed with a prosecution when there was no independent evidence to corroborate the mother’s claims. In this court however it is only necessary for the court to be satisfied on the balance of probabilities that certain things have occurred.
109. The mother became very upset when questioned about the sexual assault during cross-examination and said that she did not like talking about it which is consistent with her version of events that the parties did not engage in consensual sex.
110. The mother told Mr S and her own mother immediately after the incident that the father had raped her and Mr S observed her to be very upset. It is also most improbable that the mother would have agreed to have sex with the father on the evening of 16 August given what had occurred on 29 July and 8 August and on the morning of 16 August.
111. The father made allegations that the mother was violent to him on occasions. He alleged that she bit him on the hand when he was trying to remove X on 29 July 2014, slapped his face on 8 August after he called her a slut and a fucking slut and punched him in the back of the head several times during the incident where he pushed her to the ground.
112. The mother admitted biting the father’s hand but said that it was not on 29 July 2014 but on another occasion when she was trying to get him off her. She admitted slapping him but said that it was in response to him verbally abusing her. She denied punching him in the back of the head.
113. I am satisfied that any physical actions by the mother were in the context of her either defending herself or responding instinctively to verbal abuse. I am not satisfied that the father was frightened by the mother’s actions or that they were done with any intention to coerce or control. I do not accept that the mother was violent to the father as family violence is defined in s. 4AB of the Family Law Act.
114. The father also tried to suggest that somehow he and the mother were equally responsible for the conflict on 29 July 2014 and 16 August 2014 but it is noteworthy that on each occasion the father was the instigator of the confrontation and it was the mother alone who suffered injuries. I do not accept that the parties were equally responsible for the violence.