Footprints in the Boat — And Withholding To Protect

by Amanda Gearing

Family Court judges hear obscenities without the asterisks.

Even when a father speaks about his own children and admits grabbing his young child around the throat for leaving footprints in his newly-cleaned boat:

The father shouted his message down the phone to the ex as he shouted to her about their children, “They don’t give a fuck. They don’t listen. They don’t care. I’ve fucking – I’ve literally grabbed X around the throat. I was that pissed at him, and I’ve fucking had enough.”

The father also admitted to threatening to drown the children and break their noses.

The judge — steady man that he is -– observed in his judgement that children make footprints. Children make mess. Children are… well, children.

The case of the violent father, heard last year in the Family Court is a rare judgement that validates a protective parent for withholding her children to protect them from the risk of violence by her husband.

Alarmingly, there is no case precedent mentioned in the judgement.

One wonders how many times a protective parent has withheld children from a violent partner and their decision to protect the children has not been backed up by the Family Court?

In this case however, Judge Willis dismissed the contravention order filed by the father and excused the mother’s contravention of court orders. What is surprising about this case is that the judge does not rely on any legal precedent for his decision.

He just decides that when a parent threatens to kill their children, the other parent is legally entitled to withhold them from contact with the violent parent.

It might be worth remembering Osman and Bellis 2017.

Mr Osman and Ms Bellis – pseudonyms assigned by the Court – had been slugging it out in Family Court for five years. Yet last year, the judge observed that he was “satisfied particularly in light of his admissions as to the threats he has made for years, that he has engaged in abusive, intimidating behaviour towards the children and the mother, and that his threats constitute family violence as defined under the Family Law Act. The father’s threats are designed to cause fear.”

Even so, the court had ordered the mother to facilitate a relationship between the children and their father. The mother obeyed the orders.

After the boat incident, the mother withheld the children.

The father filed a contravention forcing Ms Bellis back to court for withholding the children.

The father denied he had made any threats or committed any violence. Until Ms Bellis produced a recording of the phone call.

Even then Osman did not back down. From the witness box he told the court “She’s supposed to know I didn’t mean it.” He laughed and said it was all a joke.

The judge didn’t see the funny side of the joke, observing that, “In this court, where infanticide is a reality, where parents kill children and each other, I see nothing funny or fanciful about a parent admitting to making threats to drown his own children when he has those children in his sole care on a boat.”

The judge continued that the father was untruthful, swearing in an affidavit that he ‘emphatically denied saying such statements in jest or otherwise’.

Osman added that, “It is absurd to suggest that I would make such threats to the children’s mother, and I did not do so. I have explained the events as they occurred.”

Despite having time to consider his behaviour and apologise for it, he did not do so.

The judge notes that, “It was only after the mother filed her evidence of the tape recording she had made of the father’s phone call that the father made the admission he ought to have made right at the outset rather than taking the course of being untruthful.”

The judge explained clearly that the father’s anger was inappropriate, saying that,

“The children’s conduct on that day has sent the father into a stratosphere of anger and intolerance rarely seen over such a puerile incident involving the behaviour of children; behaviour which I consider to be normal for children of this age. Children make messes.

“The children are 9 and 7 years of age.  It is not unusual for children this age to have dirty feet. Children do all sorts of things that will cause children’s footprints to be left in array of places that parents wish they weren’t.  Children jump in to the garden in the red dirt and walk inside on clean carpet. Children do that. Children make a mess wherever they go.

“Regretfully, I have seen a father who has left me with a very strong impression he has no understanding of the age and stage and development of his own children. Nor does he show he has the capacity to respond appropriately in such circumstances.

“Rather disturbingly, even today when asked today whether he stands by his conduct, he says, ‘Yes, I’d do it again’ with a smile.

“The father has some very troubling parental attitudes towards these children and he shows a distinct lack of understanding their developmental stage. I find his capacity to parent and his attitude towards parenting and his parental responsibility deficient, troubling and dangerous.”

The judge then accepts that the father has made threats for years against the mother and children.

“It is not in contention that he has made these threats. They are admitted. They are appalling and disgusting. The first armoury that the father reaches for when he wants to get his way is to threaten.

“He has threatened to embarrass the mother. He has threatened to ruin her relationships. He expressly stated when he found out she was pregnant to someone else that he hoped “the germ inside her would die”. His threats are vile. They are menacing. They are expressly stated for a purpose.

“I am satisfied particularly in light of his admissions as to the threats he has made for years, that he has engaged in abusive, intimidating behaviour towards the children and the mother, and that his threats constitute family violence as defined under the Family Law Act. The father’s threats are designed to cause fear.

“I am satisfied that the father, who was overtly angry and making threats to drown his children, demeaning and insulting them and who has a history of making menacing threats to the mother in the past, that in this context it was entirely reasonable for the mother to withhold the children at the first opportunity.” [Emphasis added]

Having heard the evidence, the judge changed the access orders from 50/50 time with each parent and restricted the father to supervised daytime access to the children.