No parenting orders in these children’s best interests

No parenting orders in these children’s best interests

Niven & Ralph

SUMMARY – Mother and father engaged in lengthy litigation for a period of 13 years – Court makes no orders as to 15 year old child who has significant behavioural difficulties and has been exposed to violence and conflict throughout his childhood – father seeks court orders to be used in a punitive approach to his parenting – findings of significant acts of violence by father who has had six apprehended violence orders made against him by separate litigants including former partners and current wife – orders made for 14 year old to live with mother and spend time with the father only as expressed to do so by the child through the mother.

The Father

89. As is evidence from these reasons, there are various troubling matters regarding the father which go to his capacity to parent and his responsibility to parenting. Apart from the overwhelming issue of his violence, I accept the mother’s evidence that the father drinks heavily and becomes abusive. The father’s wife Ms E gave evidence about the father becoming drunk and abusive which I accept. There are many reports in the subpoenaed material, in the mother’s material, reports from the children, two drink driving offences, admissions of the father, and reports from previous partners that satisfy me that the father consumes alcohol to excess at times of his choosing.
90. I reject his assertions that he does not have a problem with alcohol. He admits to excessive drinking but attempts to diminish the significance of this by saying that this only occurs when he encounters relationship break ups. There is evidence from the children, through the mother, which I accept, that the father has been drinking to excess. I am satisfied he has engaged in binge drinking. He admits he has woken surrounded by 20 cans of beers but makes excuses trying to deflect the obvious conclusion that such a scene portrays the conduct of a heavy drinker.
91. As to his violent behaviour, the father uses threats as a means of intimidation and harassment to frighten others and to try and control them. There is compelling evidence and admissions on his part regarding threats and coercion. Apart from appalling threats to previous partners designed to cause fear, there is direct and recent evidence surrounding the incident on 17 March 2016 involving the father’s continued threats to others. Since the 17 March incident the father has threatened Ms E through text and face book.
92. Very troublingly he has issued threats to the ICL, Mr Samuel and also to Mr Berry of Counsel for the mother. The father was cross examined about these threats and admitted to sending them. These threats started on the day that I conducted a hearing for the mothers’ application for leave to re-open the matter given the assault on Ms E. The ICL supported the re-opening of the trial. The father then sent to the ICL an email on that very afternoon of 21 April 2016 stating, “It completely slipped my mind that you have supported orders that have placed your clients in the hands of a self-confessed drug dealer. Put that in your pipe and smoke it. Gross negligence.”^[9] That email was closely followed with another email at 3:02 pm advising the ICL that the father was going to contact the ACT Police and the NSW Police the following day to make full statements in regard to criminal assaults perpetrated both by the mother (dating back in 2003, some 13 years earlier) and by his estranged wife. This was the father’s vindictive response to this litigation being re-opened. The father explained that he made the report as he wished the mother to be seen for her violence. I am aware the mother has admitted to once hitting the father. Having regard to all of the evidence of the mother, I do not regard her as being a violent parent or a parent who presents a risk to X or Z of being harmed.
93. The father explained that his only fault was that “I am guilty of choosing poor and violent partners and nothing more.”^[10] This is fairly typical of the rhetoric which the father engages in along with his statements about his distorted views of justice. Despite there being now six domestic violence orders in place, the father is not able to accept his own violence. He still makes statements that he may have been verbally abusive but has never responded with physical violence. He admits to all of the threats including in the last email on 27 May 2016 that, “all will be held to account and I will show no quarter to anyone involved.” And “we are all held to account for our action or our inaction.”^[11]The father does not accept the overt violence he perpetrated upon Ms E. He tries to justify it and firmly believes it was “necessary”. His justifications are chilling and clinical.
94. The father also decided that he would send two emails to Mr Berry of Counsel who appears for the mother. On 6 April 2016, that email stated in part, “I am putting you on formal notice. When next in Court I will be attempting to ask the Judge to refer your perjury to the police for criminal investigation.”^[12] “You attempted to ruin my life, my marriage and my relationship with my beautiful children for your own self-interest. You have committed perjury under oath. I will hold you in account for your actions. I hope to have you jailed.” The father when questioned about these emails was evasive, non-responsive and gave entirely unacceptable justification such as, “I would have only thought that I would have directed such sentiment towards Ms Niven whom I have witnessed commit perjury.”^[13]
95. In another email that the father stated to Mr Berry amongst other things, “I will see you jailed and ruined.” The father’s explanation for this was that, “I felt that if I could do something to have justice done I would do it.” When asked whether he was then prepared to make threats of this kind to people acting in their professional capacity the father replied, “At the time I felt it was warranted yes.”
96. I note in the mother’s material^[14] that amongst an array of threatening emails to the mother, the father sent her an email in January 2016 threatening her lawyer saying, “You have ruined all of our Christmas plans. Arrange what you want with your meddling lawyer who is going to find herself before the New South Wales Bar Association. When you have both agreed for what’s best for my kids bend over so she can file them. You and your crap about working together for the best interests of the boys.” This threat is similar of the hollow and baseless threats made by the father against Mr Berry and Mr Samuels.
97. The father has now had six AVO’s made against him. The applicants have been Ms A, Ms H, his neighbour, the mother, his niece and now his estranged wife Ms E.^[15] The father says that the four women have been violent to him including the mother.
98. I am satisfied that the father has posted images on the father’s Facebook intended to threaten and intimidate Ms E including an image of a person wearing a mask with blood on it with the caption, “I am the kind of friend who will help you hide a dead body but if you betray me, just remember.”^[16]

Incident of 16 March 2016

99. The father was evasive and dishonest in his account of the incident that occurred outside of the court on the last day of the trial. He gave the court a false description of what had occurred. The transcript of the hearing on 17 March 2016 shows the father explaining that his wife was not at Court this morning as she had collapsed and fallen into the bushes. He said that this caused him to be late. He explained that when his wife collapsed, the security men from across the road outside of the other court “came running.”
100. Under cross examination from Mr Berry, the father said that his wife and he had driven in from Canberra and that his wife abused him for the whole journey. On arrival in Parramatta, when walking to Court, his wife tried to grab his phone. The father said he used the “required force” to ensure that she did not take it. His description was minimised and clinical. He said that he did not notice that she looked physically sick and that he took no responsibility for the appearance of his wife that day. When asked was Ms E distressed the father said, “I wouldn’t say that.” He then said he would say “emotional but not distressed.” When asked what was it that was emotional, he said, “she had the shakes.”
101. He could give no answer as to why it was that he wanted to physically fight off his wife’s efforts to get his phone. His explanations were implausible and I reject them.
102. The father denied that he had ever said he would send photos of her nude to her father in retaliation to his wife saying that she would retract her support for him and the children. When asked if he had photographs on his phone of the mother nude he falsely said he couldn’t remember.
103. When I directed that the father’s phone be given to him to check in the witness box if he had photos, he suddenly remembered that he had such photos.
104. The father would not make admissions against his own interest unless faced with irrefutable evidence, but even then he attempted to deflect his own conduct by casting doubts and changing his position. This happened when his wife gave evidence about an argument with the father where he had become so angry that she stepped out of the house, and sent him messages saying to calm down. The father denied this and said “she can’t even produce the messages.” She did produce the messages. The father’s position then moved to, “so you say you sent those messages.” The messages were clearly contemporaneous and in direct response to what was happening. The father was inside the house being abusive and threatening and the wife said he had been “drinking again.” She said “it’s the third beer that turns him nasty,” and she tried to stop this happening when they were together, by drinking the third beer. She said that after they had their first big argument, she said she would stay with him but only on the condition that he got help for his depression and drinking. She said she took him to her doctor. Those records were produced.
105. As to the incident on the way to Court, I am satisfied that Ms E gave a truthful account of the assault by the father and the events that occurred before and after. The father has tried to minimise and justify his behaviour. He has attempted to turn the whole incident around so that he is the victim and his estranged wife was the perpetrator, which I reject entirely. Ms E was most anxious and distressed in the witness box giving her evidence, shaking the whole time. Noting the gravity of her assault, the Court offered her the opportunity to give her evidence via video remotely, however, Ms E preferred to be in the Court room with a support person by her side. Ms E has had various operations with more planned to try and rectify her injuries to her arm and finger (as per the medical evidence) and she has visible injuries with her hand in a sling.
106. The father has engaged in rhetoric that is entirely at odds with the evidence. The father’s evidence was that he was assaulted physically and verbally, that his actions played no part in the mother’s injuries, that he was quite justified in applying the necessary degree of force to prevent his wife from taking his phone, that he was quite justified in not helping his wife out of the bushes which she fell into or was propelled backwards about 2 metres as she said, and that he was absolutely justified in leaving Ms E by the side of the road without money and on her on own. The father says that the wife’s behaviour in the car on the way to Court that day was “absolutely atrocious” and called for strong sanctions. The father has demonstrated a superb ability to remove himself from causing/ playing any part in the whole assault or sequence of events.
107. The father has given false and inconsistent evidence. He said that the wife was not distressed when this incident took place, he said the security guards did not come running, they just walked up casually to ask if things were alright. However the transcript on 17 March 2016 shows the father telling the Court on the morning that his wife had “collapsed” and that the security guards had come running across the road to help, and he said she was “downstairs” and that the trial had been very stressful inferring she was suffering from stress relating to the trial. This was untrue. I am satisfied that the father and Ms E had an argument in the car on the way to Court following on from the events the previous night wherein the wife had heard the father talking to his own mother on the phone and heard him calling her obscenities including “a cunt”(which he admits). The wife said that she realised that night that if this is how he spoke to his own mother, that she had no hope as his wife and that the father wasn’t going to change. She told the father the marriage was over, that she was going to Court the next morning and retract what she had said about the proposed future life together living in a blended family with herself and her children. Ms E wanted the Court to know she would not be around and that she feared for the safety of the children.
108. The wife explained that on the morning of 17 March 2016, the father woke up early and said he was going to leave for Court without her. She was in the shower when she heard him backing the car out. He eventually waited impatiently for her to dress and come out to the car.
109. The father said that during the drive, the wife called him obscene names. That is true. He said he recorded her but did not tell her he was recording her. Ms E explained in her evidence other significant events including that she had been minding the father’s phone whilst the trial was in progress for the days before she gave her evidence whilst waiting outside and that she had started looking at things on his phone. She and the father each had the same code to unlock their phone. Ms E explained said she found to her horror evidence on the father’s phone that the father had been in ongoing relationships with transvestites and homosexual men, as seen in messages his phone was receiving. She realized that this had been happening during the course of her short marriage with the father. Some of these things had been told to her by the mother when Ms E first met the mother, as Ms E stated earlier in the trial, however Ms E did not believe them.
110. Ms E raised these and other issues with the father in the car whilst the father taped her. When they arrived at Court, Ms E said she tried to take the father’s phone and he resisted and in the process, he grabbed her hand and crushed it violently. She described a physical tussle, where they were both hanging on to the phone and they both turned around bent over. Ms E said that the next thing she knew she was propelled thru the air and into the bushes. She could hear someone calling out “he is trying to get your bag.” Ms E said that in the process of the struggle the father had ripped off her false finger nails which are attached to the quick of her nail, and this caused intense pain and her fingers to bleed. She said that she fell very heavily and this caused much pain. She has had to have surgery twice so far and there is much more to come. Her injuries were severe. The father twisted the small finger on her right hand until it hung completely misshapen.
111. Apart from the security guards, the Police were called. The father went off to Court. Ms E told police when asked that she would not lodge a complaint against her husband and she retreated to the car and waited for the father to conclude his Court appearance of what was then the final day of the trial.
112. Overall, I have listened to both versions of events and prefer the evidence of Ms E wherever the evidence of Ms E and the father is inconsistent and in the absence of any independent evidence.