Violent behaviour too great a risk

Violent behaviour too great a risk

Hewitt & Fenn & Anor [2015] FamCA 1051 (27 November 2015)

Last Updated: 7 December 2015

FAMILY COURT OF AUSTRALIA

HEWITT & FENN & ANOR

[2015] FamCA 1051

FAMILY LAW – CHILDREN – Where the paternal grandmother intervened as a party – Best Interests – Where the child has a meaningful relationship with the mother – Where the child has warm and loving relationships with both the father and paternal grandparents – Where the mother and her husband do not pose a risk of harm to the child, either through his subjection to abuse or his exposure to family violence – Where the father poses a potent risk of psychological harm to the child through his exposure of the child to his violent conduct – Where the paternal grandparents would not be able to satisfactorily supervise the child with the father – Where the child’s tension and anxiety will probably result in his resistance to spending any time with the mother if he remains resident with the paternal family – Child to live with the mother – Where the mother would most probably experience impairment to her parental capacity if she had to comply with orders requiring her to ensure the child’s visits with the father or paternal grandparents – Where the mother, as an incident of her exclusive parental responsibility for the child, will decide if and how the child will spend time with the father or paternal grandparents in the future – Where the father and paternal grandmother are permitted to send occasional written correspondence to the child, but are otherwise restrained from approaching the mother’s home or the child’s school FAMILY LAW – CHILDREN – Parental Responsibility – Where the presumption of equal shared parental responsibility does not apply because there are reasonable grounds to believe the father has engaged in family violence – Where the parents cannot communicate effectively – Where the allocation of parental responsibility is tied to the question of with whom the child should live – Mother to have sole parental responsibility

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA,65DAA, 65DAC, 65DAE, 65D, 68B

A & A (1998) 22 Fam LR 756 Aldridge & Keaton [2009] FamCAFC 229; (2009) FLC 93-421 H & K [2001] FamCA 687 H & R [2006] FamCA 878 M v M (1988) 166 CLR 69 Maldera v Orbel [2014] FamCAFC 135 Marriage of B & B (1993) FLC 92-357 Marriage of Bieganski (1993) 16 Fam LR Marriage of Sedgley (1995) 19 Fam LR 363 Moose v Moose [2008] FamCAFC 108; (2008) FLC 93-375 Re Andrew [1996] FamCA 43; (1996) 20 Fam LR 538 V & V [2001] FamCA 78 Valentine & Lacerra & Anor [2013] FamCAFC 53

APPLICANT:

Mr Hewitt

RESPONDENT:

Ms Fenn

INTERVENER:

Ms Hewitt

INDEPENDENT CHILDREN’S LAWYER:

Ms Garrick, Brennan Garrick Lawyers

FILE NUMBER:

PAC

4733

of

2011

DATE DELIVERED:

27 November 2015

PLACE DELIVERED:

Newcastle

PLACE HEARD:

Newcastle

JUDGMENT OF:

Austin J

HEARING DATE:

16, 17 & 18 November 2015

The following is annotated. For full case: http://www.austlii.edu.au/au/cases/cth/FamCA/2015/1051.html

Risk of harm allegedly posed by the father and paternal grandparents

49. The evidence adduced in these proceedings formed a grotesque history of the father’s commission of family violence against many domestic partners, even though his prosecution and conviction for such violent conduct was relatively rare. As was explained to the father, although an absence of conviction leaves his presumption of innocence intact in relation to the underlying allegation, the presumption of innocence is not an impediment to factual findings made according to the civil standard of proof in these proceedings about his past misconduct, nor to the formation of any conclusions about the risk of harm confronting the child (see M v M (1988) 166 CLR 69).
50. As the Family Consultant summarised,^[13] the relationship between the parents was characterised by the father’s violent conduct towards the mother, often in the presence of the child. The family were well known to the police and the Department for that reason, though little was seemingly done to avert the problem.
51. The father’s violent domination of his partners was a common component of his romantic relationships. There was a relatively clear pattern of his choking, sexual abuse, and threats to kill as the means of coercive control of his partners.^[14]
52. After analysis of the available evidence, the Family Consultant reached the following conclusions:^[15]

…the risk to the mother and child as posed by the father is extremely high and it is suggested that immediate steps should be taken to reduce that risk. There is a considerable risk that the child will be exposed to future family violence in the father’s care and that the level of violence may potentially be lethal.
…The fact that the father appears to have been extremely violent to partners during pregnancy and that he routinely chokes or attempts to strangle partners, especially during sex, should be ringing alarm bells. This is a “red flag” for future serious abuse and fatality.
…At the current time the Family Consultant has serious concerns about the risks facing the child in the father’s care.
…In summary, the risks to the child in the father’s household at this time are considered unacceptable and it is strongly suggested that consideration is given to an immediate change of residency.
(emphasis added)

53. I accept the validity of those bold and shocking opinions, which were borne out by the whole of the evidence in aggregation.
54. Police records note allegations by the father’s former girlfriends that he slapped one and locked her in a shed in 2001 and deliberately damaged another’s car with a key after an argument in 2002.^[16]
55. In 2005, when the mother was pregnant with the child, the mother alleged to police that the father beat her and dragged her down some stairs. Bruises and red marks on her skin, consistent with such assault, were observed by the police. The mother told police the father previously threatened to kill her and choked her to the point the blood vessels in her eyes ruptured.^[17]
56. Upon final separation, the mother sought out sexual assault and domestic violence counselling,^[18] which she would not likely have done unless she genuinely felt the need for such assistance.
57. In 2008, more than two years after the parties’ final separation, the father smashed down a door to gain access to a house in which the mother was taking refuge with a relative so he could talk to her. The police were called. They charged the father with “trespass” and “malicious damage” and took him to a hospital mental health unit on account of his suicidal ideation.^[19]
58. Two years later, in 2010, the father violently sexually assaulted the mother in a railway station carpark. The mother reported the attack to police, was medically examined, and forensic evidence of the assault obtained. The bruising injuries to the mother’s arms and legs, consistent with her forceful restraint by the father, were verified by police. The father’s denial of the allegation did not deter the police from proffering charges against him. Although charged with the assault, the prosecution against the father was discontinued when the mother elected not to proceed. Nevertheless, an apprehended violence order was made against the father for the mother’s protection for two years.^[20] The father’s alleged breaches of that order were not prosecuted.^[21]
59. At the time of that incident in 2010, there had been 21 previous reports of the father’s domestic abuse of the mother. The police were apparently willing to press charges, but the mother could not conjure the emotional fortitude to assist his prosecution.^[22]
60. Few of the women who have alleged their assault by the father have followed through on their complaints by giving evidence against him, seemingly because they considered him to be dangerous, were intimidated by him, and were fearful of his reprisals. They preferred to placate him.^[23]
61. In late 2010, another former partner of the father, Ms D, alleged to police she was assaulted by him. The police observed her injuries, which included bruising, grazes, and a cut. The father denied he inflicted those injuries upon her and contended she broke her nose when playing with his large dog. While Ms D was at the police station making her complaint the police witnessed her receipt of a telephone call from the father and heard his verbal aggression.^[24] I do not accept the father’s denial of making that telephone call, but the charges proffered against him were not pursued.^[25]
62. In 2013, the father was involved in an altercation with his then partner,
    Ms E. She sustained a punctured lung and fractured ribs in the altercation, for which she needed helicopter evacuation to a regional hospital for proper treatment. She alleged the father assaulted her, but he alleged she accidentally fell down some stairs. The incident caused them to separate, which eventuality is more consistent with Ms E’s allegation of her serious assault by the father than with her sustaining the injuries accidentally. The father was convicted of “assault occasioning actual bodily harm”, for which he received a suspended sentence.^[26] He maintained he was wrongly convicted in his absence and intended making an application to the court to revive his defence of the charges, but that did not eventuate. The conviction remains undisturbed.
63. Later in 2013, the father assaulted his former partner, Ms F,^[27] even though she was protected from him by an apprehended violence order made some months earlier for other assault allegations she made against him.^[28] Although the Family Consultant believed he was charged with, and later convicted of, her assault, no conviction was eventually recorded. Ms F did, however, make another allegation to police about the father’s attempted subornation of her evidence just prior to the conclusion of the prosecution in 2014.^[29]
64. Throughout 2013 the father consulted with his general practitioner. The doctor’s notes reveal the father complained of being “angry” and “irritable”. He was diagnosed with “major depression” and referred to a psychologist. The psychologist reported back to the doctor that the father had “constant thoughts of hurting people” and that he had “always been the aggressor”.^[30] The Family Consultant, who had not previously read the psychologist’s report, said in cross-examination she was greatly concerned by its contents.
65. The most recent incident of violence between the father and a domestic partner occurred in April 2014, not March 2014 as the Family Consultant mistakenly thought.^[31] The father engaged in a violent confrontation with Ms G, which was witnessed by the paternal grandfather, the child, the father’s youngest child, and Ms G’s child. The police and an ambulance were summoned to the scene at the father’s home.^[32] The father and paternal grandfather attributed blame for the incident exclusively to Ms G, alleging the father only acted in self-defence, but that version was not entirely consistent with the child’s guileless report of the incident to the Family Consultant. He described how the father tried to control Ms G, would not let her leave, pushed and pulled her, took a sledge hammer from her grasp, and restrained her on a chair. The child described the incident as “terrible”,^[33] as indeed it must have been. The father conceded the child was traumatised by the incident and was still upset about it when he was interviewed by the Family Consultant a year later in April 2015.
66. The Family Consultant gave evidence, both in the Family Report^[34] and during cross-examination, about how the child’s undisputed behavioural problems and his diagnosed condition of ADHD are probably causally related to his “trauma and stress” due to his exposure to “high level serious family violence” committed by the father.
67. The father’s tendency to violent solutions pervades his personal interaction with other people besides his romantic partners. He has engaged in vicious fights with neighbours and other unknown men in public places and the presence of young children has not been a deterrent.^[35]
68. The father’s denial of perpetration of any family violence on any partner at any time is plainly false,^[36] because he was convicted for his assault on Ms E. The conviction is a decision in rem which is conclusive proof of his commission of the offence. However, the father’s evidence was not reliable for another reason. He admitted in cross-examination he had “exaggerated” his professional martial arts ability when speaking to his general practitioner. If he is prepared to deliberately distort the truth when it suits him, even in such solemn circumstances as the provision of an accurate history to his own doctor from whom he seeks medical assistance, his self-serving evidence when under challenge about alleged misconduct is susceptible to inaccuracy.
69. The Family Consultant, who is a clinical psychologist, opined that the father met diagnostic criteria for Antisocial Personality Disorder, which causes “a pervasive pattern of disregard for and violation of the rights of others”, loss of empathy, arrogance, and lack of insight. Such qualities are inimical to competent parenting and, since the condition is very difficult to treat, the prospect of the father’s parenting capacity being measurably improved seems quite remote.^[37] Of course, it is really immaterial whether the father is afflicted by that disorder. His behavioural pattern is the important consideration, not the label affixed to it. However, the father’s apparent fulfilment of the criteria for diagnosis with the disorder reinforces the Family Consultant’s doubt he can be successfully rehabilitated.
70. The evidence comfortably establishes the father poses a potent risk of psychological harm to the child through his exposure of the child to his violent conduct, chiefly directed to domestic partners, though also more generally. He is an undesirable role model to the child. The only way that risk could be satisfactorily ameliorated would be to ensure the child only ever visits the father under the supervision of trustworthy adults. There are, however, substantial impediments to the imposition of such indefinite supervision.
71. The long-term or indefinite supervision of time spent by a child with a parent is generally regarded as prone to failure because it is bound to eventually impinge upon the quality of the relationship between the child and parent (seeMoose v Moose [2008] FamCAFC 108; (2008) FLC 93-375 at [119]; H & K [2001] FamCA 687 at [40]– [41]; Marriage of Bieganski (1993) 16 Fam LR 353 at 368). The strictures of supervision ultimately lead a maturing child to wonder about the need for it: whether the parent is dangerous or deficient. It also inevitably frustrates the parent, who feels untrusted and confined in the activities that can be enjoyed with the child. That is especially so when the supervision is professionally provided at a commercial contact centre.
72. The paternal grandmother said in final submissions she would be prepared to permanently supervise the child and father when together, but that is not a satisfactory solution because she does not genuinely accept the need for such supervision. Aligned family members are generally not ideal supervisors (see Marriage of B & B (1993) FLC 92-357 at 79,780-79,781).
73. The paternal grandmother and paternal grandfather proved to be little more than apologists for the father. They consider him to be a competent parent and they were complicit in consolidating the child’s residence with the paternal family following his retention by the father.
74. The paternal grandfather told the father’s probation officer he did not believe the father was guilty of the assault on Ms E in 2013, for which he was convicted.^[38] The paternal grandparents both informed the Family Consultant they were not concerned by the allegations of the father’s violent propensity and they highly regarded his parenting capacity.^[39] They preferred to criticise the mother and the father’s other former domestic partners and deflect blame from him to them.^[40] The paternal grandfather made similar remarks to the father’s probation officer.^[41] The paternal grandmother denied making some of those statements attributed to her, but the Family Consultant prepared the Family Report shortly after the interview in reliance upon her contemporaneous notes, so the Family Report was more likely correct. The paternal grandmother conceded such statements, if made by her and the paternal grandfather, would demonstrate a lack of insight by them and a willingness to unjustifiably excuse the father’s appalling behaviour.
75. Although the paternal grandmother made an impassioned plea during her oral evidence about her freshly acquired insight into the seriousness of the father’s violent history, there is some doubt about the integrity of her evidence on that issue. She alleged in oral evidence she was almost entirely unaware of the father’s violent history until she read the documents produced on subpoena shortly before commencement of the trial, but that was not so. She was forced to concede in cross-examination she was alerted to some of the father’s violent history in her consultation in October 2013 with another Family Consultant appointed to report on the younger child of the father and Ms F, and additionally, the father’s history was thoroughly canvassed between the paternal grandmother and the Family Consultant in these proceedings at their meeting in April 2015, over six months before the trial.
76. Even if her acquisition of such knowledge about the father was so belated and even if her expressed concerns about the father were entirely genuine, her newly acquired alarm was not reflected in her final submissions or her ultimate proposal. She still pressed for the child to spend unsupervised time with the father for not less than one weekend each month and for more than a week in each Summer school vacation. Her expressed willingness to supervise the child with the father was little more than balm to sooth the irritating prospect the mother may be perceived as a better residential alternative than members of the paternal family.
77. The paternal grandmother played a much larger and controlling part in the family’s affairs than the role of neutral intermediary, as she tried to portray.^[42] When the father originally detained the child he requested the paternal grandparents to live with him and help with the child’s care, since he works up to 60 hours per week. They answered his clarion call, immediately leaving their own home on the NSW mid-north coast to live with him in his home in Newcastle.^[43] The paternal grandmother said in final submissions “I’ve stepped up to the mark because [the father] was working full-time”.
78. The paternal grandmother arranged the child’s enrolment at a new school within a week of his detention by the father. The paternal grandparents have since been responsible for almost all family contact with his new school, his conveyance to and from school, supervision of his homework completion, his attendance at extra-curricular activities, his exchanges with the mother, and his consultations with doctors and other service providers.^[44] The paternal grandmother’s proposal, made with the father’s support, for her to assume the role as the child’s residential carer exemplifies the extent to which the father delegated parental responsibility for the child to her.
79. Some of the information furnished to the child’s school was false. The paternal grandparents falsely told school staff the father had the child in “protective custody” pursuant to Court order, pending assault charges being proffered against the mother and Mr C. There were no Court orders in existence other than the Federal Circuit Court orders which stipulated the child must live with the mother and an interim apprehended violence order that restricted the child’s interaction with only Mr C. They falsely told the school staff the child had been removed from the mother by the Department and/or police. They told school staff the mother had a personality disorder, which was false, even if they believed it to be true. They also instructed the school not to divulge information about the child to the mother, notwithstanding she still held parental responsibility for him.^[45]
80. The father and paternal grandparents omitted from their affidavits any mention of the violent incident between the father and Ms G in April 2014 and also the father’s new domestic relationship with Ms H, who now lives in the household and who the child mentioned in passing to the Family Consultant.^[46] It is possible those omissions were innocent oversights, but it is no less plausible the omissions were deliberately intended to avoid attention on another violent incident with a domestic partner and any concern about the father’s swift entry into yet another domestic relationship.
81. The Family Consultant said of the paternal grandparents:^[47]

[They] are not considered to be protective of the child; they would appear to be enabling and excusing the father’s behaviour.

82. It is unlikely the paternal grandparents really do have a comprehensive appreciation of the danger the father presents to the child’s psychological and cognitive health and, even if they did, it is unlikely they have the inclination to adequately control the father and properly supervise the child when in his care. Supervision of the child when visiting the father by either or both paternal grandparents is unlikely to be a sufficient bulwark against the risk of harm posed to the child by the father. They would not offer sufficient protection. As the Family Consultant said in cross-examination:

There is a big difference between loving a child and acting protectively and in the best interests of the child

83. The father is not used to compliance with court orders or submission to authority. He was disqualified from driving until 2032 because he repeatedly ignored driving disqualifications imposed upon him by courts for traffic offences and was eventually declared a habitual offender.^[48] In his dealings with the mother, he kept the child from her in October 2011^[49] and again in March 2014, the latter occasion in direct contravention of existing parenting orders made in December 2012. The father also admitted he once kept the younger child he has with Ms F away from her, together with Ms F’s own child. He does what he wants when he wants.
84. In all probability, an order for the child to live with the paternal grandmother would be tantamount to an order that permits the father’s untrammelled involvement in the child’s life