Adino & Adino
[2021] FamCA 581
•6 August 2021
FAMILY COURT OF AUSTRALIA
Adino & Adino [2021] FamCA 581
File number(s): SYC 8553 of 2015 Judgment of: HENDERSON J Date of judgment: 6 August 2021 Catchwords: FAMILY LAW – PARENTING – Where the parties came to substantial agreement in relation to parenting – Where the Court was left to determine parental responsibility, the father’s time with the children in the Christmas school holidays, the holding of passports and engaging in therapeutic assistance – Where the father’s conduct towards the mother in the relationship has impacted upon the mother’s functioning – Where the father showed little insight into the impact of his behaviour towards the mother – Where the evidence does not support that the father poses a risk to the children – Orders made by consent – Orders made for the mother to hold sole parental responsibility, for the father to spend time with a children for a two week block in the Christmas school holidays from 2022, for the mother to hold the children’s passports and for both parents and the children to engage in therapeutic assistance. Legislation: Family Law Act 1975 (Cth) s 60CC Cases cited: Goode & Goode (2006) FLC 93-286 Number of paragraphs: 118 Date of hearing: 5-8 July 2021 Place: Sydney Counsel for the Applicant: Mr Schonell Solicitor for the Applicant: McGirr Lawyers Counsel for the Respondent: Mr Livingstone Solicitor for the Respondent: David H Cohen & Co Counsel for the Independent Children's Lawyer: Mr Cairns Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
SYC 8553 of 2015 BETWEEN: MR ADINO
Applicant
AND: MS ADINO
Respondent
ORDER MADE BY:
HENDERSON J
DATE OF ORDER:
6 AUGUST 2021
THE COURT ORDERS BY CONSENT AND ON A FINAL BASIS THAT:
1.The children X born … 2012 and Y born … 2015 ("the children") live with their mother.
2.The children spend time with the father as follows:
(a)During the school term:
(i)Each alternate Wednesday from close of school to 7:30pm being the Wednesday following the father's alternate weekend time with the children as per Order 19(a)(i) herein;
(ii)The mother may elect to enrol either or both children in an extra-curricular activity including one sporting activity on the weekend and the father is to ensure the children participate in that activity on the weekends when the children are spending time with the father as per Order 19(a)(i) herein.
(b)During school holidays:
(i)Following Terms 1, 2 and 3: for the first half of the school holidays from the conclusion of school on Friday to 4:00pm the following Friday subject to Order 2(a)(ii) herein.
(c)Special days:
(i)Father's Day from 9:00am to 5:00pm;
(ii)Children's birthdays:
A.in even numbered years: from after school 3:00pm to 6:00pm, in the event that the birthdays fall on a non-school day, from 9:00am to 5:00pm;
B.in odd numbered years: Saturday (same week of the birthday) from 9:00am to 5:00pm;
(iii)Father's birthday: if it falls on a weekend, from 9:00am to 4:00pm;
(iv)Easter: in odd numbered years from 3:00pm on Good Friday to 4:00pm Easter Sunday;
3.That the children spend time with the Mother when they are otherwise in the care of the Father as follows:
(a)Children's birthdays: in odd numbered years -
(i)during school days, from after school 3:00pm to the commencement of school the next day;
(ii)if the days fall on a Saturday, from 9:00am to 5:00pm;
(iii)if the days fall on a Sunday, from 9:00am to the commencement of school on Monday;
(b)Mother's birthday and Mother's Day, the children's time with the Father shall be suspended when the Father shall return the children to the Mother's care at 9:00am on the Mother's birthday and Mother's Day, and the Mother shall return the children to the Father at 9:00am the next day if such time falls on the day that the children spend with the Father;
(c)Easter: in even numbered years from 3:00pm on Good Friday to before school Monday.
4.For the purpose of calculating any school holiday period:
(a)The holidays shall be taken to commence on the afternoon of the last day that the children are required to attend school of any term;
(b)The holidays shall be taken to conclude on the evening two days prior to the first day of school the following term; and
(c)Pupil free days at the commencement or conclusion of the holidays shall NOT be included as part of the holidays.
Changeovers
5.That for the purposes of changeovers unless otherwise agreed in writing between the Mother and Father, all changeovers shall take place:
(a)During school terms, at the children's school;
(b)During holidays and on special occasions, at McDonalds Suburb B.
Telephone Communication
6.That the parties shall each have liberal and flexible telephone and or Skype and or Facetime communication with the children such that:
(a)The Father shall telephone the children on Monday and Thursday between 6:00pm and 7:00pm when the children are with the Mother on a number provided by the Mother;
(b)The Mother shall telephone the children on each alternate day between 6:00 pm and 7:00pm when the children are spending time with the Father;
(c)At such other times in accordance with the children's wishes;
7.The Mother and Father shall encourage and facilitate the children communicating with the other parent pursuant to the provisions of these Orders.
Schooling
8.That both parties shall authorise any school that the children may attend to provide to both parties: -
(a)Copies of all reports of the children;
(b)Copies of Newsletters and announcements of all school/day care activities or other material about the education of the children.
9.That the Father and Mother may attend events to which parents are invited to attend such as a special day, prize day, school sports carnivals and parent teacher interviews and all school extracurricular activities in which the children attend or participate.
10.Either party may contact the children's school on any occasion he deems appropriate.
Medical
11.That the Mother and the Father shall ensure the other parent is kept informed as soon as is reasonably practicable of any medical problems or illness suffered by any children while in the care of that parent.
12.That during any period during which the children are in the care of either parent in the event that the children are hospitalised, the parent who the children are with shall notify the other as soon as practicable (and in any event within two (2) hours) after the children's first contact with either the medical practitioner, medical centre or hospital, AND provide also provide that parent with details including the details of the illness, injury, treating doctor and the prognosis and treatment of the children.
Non-Denigration
13.That each of the Mother and Father are restrained from criticising or speaking badly of the other parent, or other parent's family, including any partner or their children, AND that this restraint includes in the presence of or within the hearing of the children and includes any written communication including electronic means of communication.
14.Both the Father and Mother shall use their best endeavours to ensure no third party denigrates, criticises, or speaks in a derogatory fashion about the other parent or the other parent's partner or family either to or in the presence of the children.
Overseas Travel
15.That if either the Father or Mother seek to take the children out of Australia, the parents agree as follows: -
(a)So far as practical the occasions on which either parent takes the children out of Australia is to coincide with the children's school holidays;
(b)The parent proposing to take the children out of Australia shall give the other party as much notification as possible of his or her intention to take the children out of Australia and in any event will give not less than one (1) calendar months prior to the commencement of the relevant school holiday period written notice of such intention;
(c)The parent proposing to take the children out of Australia shall furnish to the other parent as soon as practical (and not less than 21 days prior to the proposed departure),
(i)an accurate itinerary to include a copy of the parent's and children's airline tickets (if not electronic ticketing),
(ii)the departure date and return date,
(iii)the country or countries the parent and children will be travelling to,
(iv)the approximate date on which the parent and the children will arrive and depart each country; and
(v)a telephone number and address at which the parent and the children can be contacted in each country.
(d)On the occasions that the Father proposes to take the children out of Australia, the Mother shall release to the Father not later than 14 days prior to departure, the children's passports for the purpose of such travel, and upon their return to Australia the Father shall return passports to the Mother at the very next changeover of the children for the Mother to retain in her safe keeping.
(e)That each of the Mother and Father are restrained from taking the children to a non-Hague Convention country.
Section 106A Order
16.If the Mother or the Father shall refuse or neglect to execute any document necessary to give effect to the terms hereof within seven (7) days after the same shall have been tendered to him or her for that purpose THEN and in such case:-
(a)A Registrar of the Family Court of Australia upon proof by Affidavit of such refusal or neglect is hereby appointed to execute any such document on behalf of either party hereto and if in his or her opinion it shall be necessary so to do to settle the same and do all such other acts and things and execute all such other documents as shall be necessary to give full force and effect hereto and shall execute and do the same accordingly.
THE COURT FURTHER ORDERS ON A FINAL BASIS THAT:
17.The mother have sole parental responsibility in respect of the children X born … 2012 and Y born … 2015 ("the children").
18.In considering a decision about a major long-term issue in relation to the children for the purposes of Order 17 herein the mother shall inform the father seven (7) days prior to a decision she intends to make in relation to the children’s long-term care, welfare and development and inform him 24 hours after she has made her decision via SMS, email or in writing.
19.The children spend time with the father as follows:
(a)During the school term:
(i)On each alternate weekend during school terms from the conclusion of school on Friday to the commencement of school Monday or 5pm if Monday is a public holiday;
(ii)In the event one or either of the children become sick when in the father's care as per Order 19(a)(i) herein the father is to care for the child during school hours and return the child to the mother's care at the conclusion of the usual school day and provide the mother a medical certificate.
(b)During school holidays:
(i)In the Term 4 Christmas school holidays:
A.In 2021: from 5pm New Year's Eve for a period of seven (7) nights and then again from 5pm the third Friday in January to 5pm the Friday before the children return to school;
B.Commencing 2022 and each alternate year thereafter: from 9am the Saturday after school ceases to 5pm New Year's Eve and then again from the third Friday in January to 5pm the Friday before the children return to school.
C.Commencing 2023 and each alternate year thereafter: 14 consecutive nights from 5pm New Year's Eve to 5pm on day 15.
Passport and Overseas Travel
20.The mother must obtain the father's consent to issue or renew the children's passports with each parent to pay one half of those costs.
21.If the father does not return the completed passport renewal documents to the mother within 14 days of her sending the documents to him for signature as per Order 20 herein then pursuant to Section 11 of the Australian Passports Act 2005 (Cth), the mother is to have sole parental responsibility to renew an Australian passport for the children, X born … 2012 and Y born … 2015.
22.The mother is to retain possession of the children’s passports and release them to the father for the purposes of any international travel as provided for by these Orders and the father is to return the children’s passports to the mother within 24 hours of his return to Australia.
Courses therapy
23.That the mother attend upon a registered psychologist within four (4) months for the purposes of addressing her anxiety issues and she have leave to provide a copy of the family report and this judgment to that psychologist.
24.That within 28 days the father enrol in the following:
(a)Anger management programme;
(b)A programme for perpetrators of domestic violence with an aim being to assist him in taking responsibility for his past domestic violence to the wife.
25.For the purposes of Order 24 herein the father has leave to provide a copy of the family report and this judgment to those who assist him.
26.Both parents are to sign all documents necessary to have the children engage in therapeutic intervention with Relationships Australia or such other approved provider as the mother determines is appropriate with each to pay one half of the cost to assist the children in living with their separated parents who have an acrimonious relationship with each other.
27.The mother to provide to the father and the ICL written evidence that she complied with Order 23 herein.
28.The father to provide to the mother and the ICL written evidence that he has completed the course or programme required by Order 24 herein.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Adino & Adino has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
HENDERSON J:
In this matter the parties, to their credit, resolved almost all parenting issues and resolved all their property issues with the assistance of their legal team. Final orders were made for property settlement and it was left to the Court to determine the following parenting issues.
First, whether the mother Ms Adino (“the mother”) should have sole parental responsibility or, as the father Mr Adino (“the father”) seeks, the parties have equal shared parental responsibility in respect of the children, except in relation to education including extracurricular activities and medical issues in which case the mother have sole parental responsibility provided she notify the father as soon as practicable of any significant decision she is contemplating concerning either child and give consideration to any opinions or concerns raised by the father if those opinions or concerns are set out in writing.
Secondly, whether the father’s alternate weekend time from after school Friday to the commencement of school Monday actually conclude at the cessation of school on Monday so that he can, in the event one of the children or both are ill on a Monday, care for the children and return them to their mother at the regular conclusion of school time.
Thirdly, whether the father should have two weeks of time with the children in the long school holiday period at some point in time. The mother’s proposal was that he have two weeks broken up but in a regime of one week at a time only.
There were disputes concerning sharing of Christmas Day, sharing of New Year’s Day.
The mother seeks the parents have alternate Christmas Days and time with the children and alternate New Years. The father says the children should spend time with both their parents on each of those occasions.
I note each agree in relation to Easter.
The father sought that the mother authorise the school to provide reports and the like about the children to him.
The mother sought to hold the children’s passports.
The father’s position was ultimately that which had been posited by the Independent Children’s Lawyer that they hold one passport each and be responsible for payment of fees for renewal and the like.
The mother sought I make an order the father not associate with any person who was or is indicted or investigated along with him in the District Court in a criminal matter for which he stood trial. That there be no communication or association with any person he knows or has cause to believe may engage in criminal activities. I note ultimately, at the final trial, there was a no bill proffered and the father has no criminal convictions against him.
The father was averse to attending an anger management program and providing written evidence of completion of programs he agreed to attend to the mother.
Otherwise, the parties have come to an agreement in respect of the care arrangements of their children, X, born in 2012, and Y, born in 2015.
Mr Schonell of counsel appeared for the father. Mr Livingstone of counsel for the mother and Mr Cairns of counsel for the children.
The material I read for the parties was voluminous.
There were four Court exhibits:
(1)Court exhibit 1: The Family Report of family consultant Ms C;
(2)Court exhibit 2: Joint Balance Sheet;
(3)Court exhibit 3: Court Attendance Notice of the father in relation to the criminal proceedings; and
(4)Court exhibit 4: Affidavit of Single Expert Valuer Mr D filed 2 July 2021.
Ms C was cross-examined.
Court exhibit 3 was the notice of the charges against the husband of aid, abet, counsel or procure intending as an instrument of crime, money, property and upon which he was no-billed. The crime was in relation to the procurement and sale of goods upon which duty had not been paid.
For the applicant father:
(1)Amended Initiating Application of the father filed 11 April 2016;
(2)Affidavit of the father file 21 June 2021 with annexures; and
(3)Financial Statement of the father filed 10 June 2021.
For the respondent mother:
(1)Further Amended Response to Initiating Application of the mother filed 11 June 2021;
(2)Affidavit of the mother filed 11 June 2021 with annexures;
(3)Financial Statement of the mother filed 11 June 2021; and
(4)Notice to admit facts of the mother filed 10 June 2021.
The exhibits were as follows.
For the father:
(1)Father’s exhibit 1: Two letters between the parties’ solicitors dated 3 May 2018, which attached a photograph, and 22 May 2018;
(2)Father’s exhibit 2: A bundle of text messages beginning Sunday, 9 May at 8:02am;
(3)Father’s exhibit 3: Father’s case outline;
(4)Father’s exhibit 4: Father’s proposed minute of order; and
(5)Father’s exhibit 5: One page snapshot of text messages dated 12 January 2018 at 5:52am.
For the mother:
(1)Mother’s exhibit 1: Documents produced under subpoena from X’s school;
(2)Mother’s exhibit 2: Mother’s case outline;
(3)Mother’s exhibit 3: Mother’s proposed minute of order;
(4)Mother’s exhibit 4: Bundle of documents from the school counsellor regarding X dated 14 October 2018 – 12 April 2019; and
(5)Mother’s exhibit 5: Bank statement of the mother dated 1 January 2019 to 31 January 2019 showing her travel to Queensland.
The Independent Children’s Lawyer’s case outline was marked ICL exhibit 1.
The husband and wife only were cross-examined as was the family consultant.
The issues, although narrow, are important to the parties and particularly important for the children.
The short relevant chronology is as follows.
The father is 46 and the mother is 45.
In 2008, the parties met for the second time and commenced cohabitation in January 2009. X was born in 2012. She is currently nine.
Y was born in 2015 and he is five.
On 23 December 2015, the parties separated.
Orders were made in the Family Court on 18 January 2016 for the father to spend time with the children and on 12 December 2016, after a contested hearing, Justice Loughnan varied the original orders.
From 8 August 2017, the father did not see X and this is as a result of the criminal proceedings that were launched against him. The father did not inform the mother about these events.
From 11 August 2017, the father did not see either child.
In 2017, the mother read an article in a newspaper asserting the father was associated with Mr E who had been subject of police raids concerning alleged criminal activity. The article claimed that the father was observed at a meeting at Location F with Mr E and Mr G with a suitcase and toolbag containing cash which was transferred between Mr E and Mr G in relation to a payment for a shipment of goods.
The allegation in the paper was that the father had assisted in the supply, transport and distribution of smuggled goods to various purchasers throughout Australia. The father at this time ran a transport business and was in the business of transporting people to and fro and had transported Mr E and Mr G on occasions.
The father assured the mother that he was not involved, there was nothing to worry about. This did not allay the mother’s concerns about the children.
In 2018, unbeknownst to the mother, the father was charged by the Australia Federal Police under the Criminal Code for aid, abet, counsel or procure the dealing in an instrument of crime, money worth $100,000 or more by another person. The father’s time with the children had resumed by this stage.
As at 12 November 2018, the father was in arrears of child support of $7,104.48.
At no time until this trial did the father provide to the mother the details of the charges and most particularly, that he had been no-billed on 30 October 2020 in relation to these most concerning charges which had understandably alarmed the mother.
The mother asserts throughout her material, during cross-examination and to the family consultant in the report that the father was violent towards her, perpetrated domestic violence upon her, was coercive, threatening and controlling of her and that her emotional and psychological functioning has been impacted as a consequence thereof. She has no trust in the father and is most concerned about the father’s treatment of the children and his lifestyle in general.
The father, up until the trial, denied all allegations of domestic violence or coercion or control and told the family consultant that the mother’s allegation that he had tried to choke her by putting his hands around her throat was false.
This was a lie by him. At the hearing before the Court the father was taken to annexure “A” to the mother’s affidavit of 11 June 2021, an email dated 4 April 2013 from him to the mother at 11.15 am in answer to an email she had written to him on 4 April 2013 at 9.18 am. The mother’s email to the husband was as follows:
I know you probably don’t want to read this but I just had to write to you.
…
I tried calling you at home and on your mobile but obviously you don’t want to speak to me because you are so angry and have far more important things to do than speak with your wife. I have never not picked up the phone on purpose when you are calling because I am angry with you.
As I said last night I hate living like this, I know you don’t want to talk about it but that’s not right. How can we work on our marriage if we don’t talk about these things?...you can’t just keep arguing and have the shits all the time. Do you enjoy this? Do you like living like this? I hate it. We have spent most of our married life being angry with each other and not speaking to each other, I don’t know about you but I think that isn’t a healthy marriage. I don’t always agree with your opinions babes, you have to accept that and don’t get angry when I don’t.
You got extremely angry last night and I don’t know if you noticed, I didn’t. I am trying very hard to control my anger and emotions so that I don’t make this situation worse…how can we improve our marriage if we don’t talk about things calmly to work them out? You never want to talk about things and when I insist on it you just get extremely angry and go off at me and all we do is end up fighting.
…
My idea of a marriage: respect, listening to one another, not getting angry with each other so easily, helping each other, compromise, talking things out without fighting or intimidation (including you grabbing me by the throat), not playing games.
Is it just me that makes you so miserable and angry all the time? Cause that is what it feels like and I can’t take it anymore. I have told you this many times before and you’re not listening to me, I cannot live like this. I told you that you have to control your temper and start treating me with some respect, I have said this over and over again, but it’s not changing. I know I have a temper too and in this situation I am trying very hard to control it cause let me tell you inside I am boiling.
I may not be the best mother or wife but I try my damn hardest and will always try to improve myself. If that’s not good enough, then I don’t know what else I can do.
(As per the original)
At this stage, X was one. The father’s response to this rather thoughtful, insightful letter from the mother where she is accepting some blame for the poor state of their relationship and endeavouring to, as Mr Livingstone submitted to me, mediate with the father is as follows:
You need to stop putting the blame on me. There was nothing malice with my original text to you. Stop and think about what I have written you before you text back (a perfect example of this is at work when you went and dobbed the guy in. You should have stopped and thought a way around it.)
You are the master of talking things over and over again. EVERY MONTH IT’S THE SAME THING. Think about it. Go back a[nd] read the emails you keep sending me same topics. Look around at every body else and realise how lucky we have it.
Stop dreaming, it’s not like the movies. Have a look at your brothers, my brother and sisters relationships. Wake up, not everything is as it seems.
I got angry last night cause you don’t listen. I ended up telling you 3 times, I’m not discussing things now. And yet you keep at it. From now on I’m going to ignore you when you keep at it. Marriage is about listening and you don’t, you just keep going on like a battering ram. That’s why [I] grabbed you by the [throat]. You don’t listen, You don’t listen, you don’t listen.
You don’t back me up at all. Still doing your single parenting. If you start listening, then I won’t have a reason to be pissed.
You don’t appreciate what you have.
PS – You are the only one that thinks you’re an idiot, a bad mother and everything else. So stop fucking saying.
I’m not discussing this any further.
(As per the original)
That email is threatening, pejorative and laying blame upon the mother for the father having now admitted to putting both his hands around her throat. This conduct was an assault on the mother. It was a violent, coercive, threatening incident which has had significant and serious repercussions upon the mother’s functioning, particularly given the manner by which these parties’ relationship then continued.
Neither party has trust in the other. Both second guess each other’s positions and, as the family consultant Ms C said, neither of them think the best of each other and always believe the other parent is acting in an adverse way for the children and not in what they regard as the children’s best interests.
In light of this admission it was astonishing that the father instructed his lawyers to argue and submit at the end of the trial that the father was the one subjected to violent and aggressive behaviour by the wife and that she was the one with the anger management issues, that she needed to attend an anger management course and his position was he would not so attend.
There is ample evidence in their mother’s material of the father gaslighting her. The first instance was his lie to Ms C that he did not put his hands around the mother’s throat when he did. Ms C was clear: the father told her the mother was lying, that the incident did not happen when it did.
Secondly, he has told his parents that he is a wonderful father and that any problems in the family lie at the mother’s feet for his own father, Mr H Adino, told the family consultant at paragraph 60 of the report that the mother had difficulties with her “maternal instinct”. How he would know this I am not sure, unless that is what his son told him. Further, his son was a wonderful father. This was in circumstances where in 2018 the father was over $7,000 in arrears of child support. In relation to child support the father told the Court a half-truth. The father said he was currently paying some $183 in child support. When I questioned this, it became apparent $156 of the payment was for arrears of child support and his actual child support assessment is some $24.76 a month.
The father endeavouring to blame the mother’s behaviour in light of his serious and possibly lethal violence to her, for the issue he now faces with his children and his significant arrears of child support since 2018 are not the actions of a wonderful father, to use his father’s words. Nor are the following actions.
The mother had raised on many occasions that she thought X had a problem with her hearing and wanted her to have grommets. The father would not accept this. He did not accept two paediatric specialists advice on this issue and wanted a third opinion. Only then when, unsurprisingly, the mother was correct and X needed grommets and he had got his way did he agree to his daughter having grommets. The upshot of that was the mother was correct, the child needed grommets, had the grommets put in and her hearing and speech has improved since that time.
The father was critical of the mother enrolling the child in the school choir and said via a solicitor’s letter he would not support this activity. He was critical of the gymnastics club that the mother enrolled the child in as there had been, at another similar place up the road from the mother’s chosen venue, an incident involving a young child. He said he did not agree because he was concerned that he was unable to observe the children at this gymnastics school and he could not see on their website that all the people who worked there had a clearance with New South Wales Police for working with children.
He disagreed with Y’s surgery, a surgery Y needed to have, and the mother went ahead and had that done anyway.
In 2018 the father wanted X, who was then aged six, to attend a language class after a full week of school for three hours on a Friday. Understandably, the mother did not agree with this yet the father maintained that this was the mother not putting the child’s interests first. The mother was correct. Children of this age after a week of school are very tired and it was inappropriate that she had this intensive language lesson at that young age. The father could not see his way clear to make this concession in the witness box.
The reality is the mother has not put a foot wrong when it comes to addressing needs for her children, be they counselling, be they education, be they extracurricular activities or be they medical and the father could not make the concession that his first reaction is rejection of that which the mother puts forward when the evidence is clear that this is his instant and natural approach to the mother vis-à-vis the children.
The mother too has made decisions not necessarily based on what is best for the children but because she is highly suspicious of positions the father takes and does not trust him. Her difficulty is that she believes every single word her child says as being the absolute truth and any parent should know that, as a parent, you must filter what a child says, particularly in a situation where the parents are in high conflict and the children are aware of this as X is.
At paragraph 287 of her affidavit, the mother says that in March 2019 X and Y had been spending time with their father and X told her mother that she had been speaking on her father’s phone with her principal, Mr J.
The mother asked her how she knew this and she said “because he told me, he said it was Mr J speaking” and that “daddy is coming to the excursion on Friday as a parent helper, daddy has special permission from Mr J”. Rather than the mother contacting the father and saying “this is an excursion the parents can't go on, I don't know what's going on, X told me this, I don’t want her to be disappointed or you to miss time”, the mother took an extraordinary course. The mother sent an email to X’s teacher and the school counsellor asking for clarification. The mother received a phone call from Mr J saying he had no knowledge about the father attending an excursion. He never had a conversation with him and didn’t even know what the father looked like.
The mother then repeated what X had told her and that the father had been in the office a few times arranging the excursion. The principal said this was not true. Immediately, the mother should have thought, well, perhaps X got this wrong, I will leave it there. But, no, the mother continued. The principal said he would have to ring the father and make it clear to him he could not go on the excursion but the mother did not want that to happen, as she was worried about the repercussions upon her and her children if the father was told he could not do something that he wanted to do.
The school principal said, well, I will stand in front of the bus and if the father turns up, I will tell him he can't go. The father never turned up and never would have. This event was a completely furphy. This example of the mother accepting carte blanche, without any filter or thinking about it, what a then six year old child said which caused the school and her to be involved in a series of events that had nothing to do with the father. He never said any such thing. Not only did the mother involve the school and the principal in this, she also believed that the father had been speaking to someone on the phone and that he had led X to believe it was her schoolteacher, never once thinking “did X get this wrong?”
The mother tells the Court X cries when she has to go to her father. The family consultant said this would not be unusual for children who know that the other parent is anxious about them going with their father, and the mother is anxious. The mother believes the father hits the children over the back of the head when they do not complete their homework, yells at them, ignores them, the grandparents are nasty to them and although they used to have fun at their grandparents’ home, they no longer do. Why the mother believes these concerning events is due to what X has told her mother.
X has been caught up in the nasty, acrimonious relationship the parents have and they would each do well to keep her out of it into the future. X is a child who is entitled to be a child, she is not a messenger and does not need to keep her parents happy.
The mother criticised the father for not getting X a COVID-19 test. The child had been in the mother’s care for two weeks with some sort of a cold. Apparently the teacher told X she should get a COVID-19 test. The mother then believed that X was obligated to tell her father this when he had her for the weekend and believed X when she said she told her father she had to have a COVID-19 test but he wouldn’t take her. This is not a burden for the child to carry. This was for the mother and father to work out. Ultimately, as is apparent, the father had the same view as the mother that X did not need a COVID-19 test. The mother ultimately took X for a test and she did not have COVID-19.
The mother had not taken X for a test when she was in her care, why should she criticise the father for doing precisely that which she had done or not done? I am surprised a teacher would not have conveyed such a request to a parent directly rather than rely on a child to inform her parents. These warning bells should have been apparent to the mother.
The mother firmly believes the father has injured the children and may injure the children but they need to have a relationship with him and must have time with him.
Looking at these issues, the family consultant was clear it would benefit both parties to attend their own therapeutic intervention and I have formed the view that the father will attend an anger management course. His behaviour was unacceptable in 2013. He has lied about it since that time up until the hearing and I do not accept that, in those circumstances, he is fully cognisant of the impact of poor male behaviour upon females and children, and he will attend that course as he will attend the other courses he agreed to attend. The father is to attend an anger management program and a program for perpetrators of domestic violence and those orders will be made by the Court.
The mother needs a course with a psychologist to bolster her emotional wellbeing and maximise her functioning particularly around accepting carte blanch what her young children tell her given I accept, from her point of view, the treatment meted out to her by the father during the relationship has significantly impaired her emotional and psychological functioning. The mother has only seen a domestic violence counsellor who will not assist her in this regard at all, rather, perpetuate for her what she says she suffered during the relationship. The mother has agreed to attend upon a psychologist.
The children need assistance so that they can navigate and deal with their parents’ acrimonious relationship and particularly, as Ms C said, if the children are experiencing happy, fun, good times with their father, yet in their mother’s household they cannot speak positively of their father and cannot understand the positive experience they have with him combined with the negativity about their father in their mother’s home, re-enforced by the maternal grandparents, they will be caught up and this will cause them stress.
I will make an order that both parents do all acts and things to ensure that the children attend upon a suitably qualified therapist to assist them to deal with the fact that their parents are separated and have an acrimonious, unsupportive relationship for the children with the other parent. For the observations of X and Y with their father was entirely at odds with the mother’s description of how he treats them and what X says about her father hitting her.
Y, when asked how much time he would like to spend with his father, at paragraph 77 of the family report, said:
…he spends time with his father “lots of days on Monday” and he said, “X goes first and then I go after”. Y said that, when he and X are at Mr Adino’s house on alternate Sundays, they have a good time as they play and have lunch together as a family. Y said that he likes going to his father’s home, “but Mum doesn’t like me having sleep overs at Dad’s, but I want to”.
He said that he would like to spend more time with Mr Adino and when the Family Consultant asked how much more time, Y stretched out his arms as far as he could and indicated that he would like to spend a lot more time with his father.
I would have hoped that the mother would be pleased by Y’s clear attachment to his father and enjoying spending time with him however she did not appear to be.
X said her father “asked her to keep secrets” and would not help her with her homework and that is what she would like him to address. It would be good if her teachers could tell both her parents her homework needed to be completed and when it needed to be completed, and she would like to spend alternate weekends with her father if Y was there too. X said at paragraph 73:
…that there is nothing that either her mother or father does that makes her feel unsafe, worried or scared, except when Mr Adino allegedly made her sit in the front of the vehicle without a booster seat. X said that she loves both her mother and father.
Further, the family consultant observed the reaction of the children with their father at paragraph 78 when they first saw him:
The children ran up and greeted Mr Adino with a hug and kiss and they were observed to engage in conversation as they walked from the Child Dispute Services waiting area to the observation room. The general atmosphere of the observation was relaxed, friendly, cheerful and warm. The children were observed to play well together and were good at turn taking. Mr Adino was observed to be affectionate towards the children, for example, he affectionately touched the children’s faces, hair, shoulder and/or back. The children and Mr Adino frequently had eye contact with each other, smiled, and laughed as they talked and engaged in play. Mr Adino praised the children by giving them high fives or through such comments as “Keep it up”. Mr Adino responded consistently and appropriately to the children’s cues, for example, Mr Adino saw Y struggle to get the straw of the Up and Go drink out of the plastic so he did this for Y. Mr Adino was able to divide his attention between X and Y. Mr Adino was educational in his play with the children, for example, he talked about strategies for the game Jenga and talked about how snowfall can damage farmers’ crops.
There was nothing in the observation that caused the family consultant concern and the mother should be pleased about this.
The family consultant said that the parental conflict seems to profoundly burden X. This burden of the conflict was demonstrated through the comment she made about Mr Adino’s lies and secrets and the views of the parents and both the paternal and maternal grandparents. X finds it difficult being caught in the middle of the parental conflict and finds it difficult to hide alleged secrets from her mother. It seems X has aligned with her mother as she may feel she needs to side with her mother as an effort of self-preservation or is trying to make sense or attribute a reason why her parents are not able to be amicable with each other and this is detrimental to a child’s development.
Paragraph 88:
Concerning X and her stage of development, the Family Consultant considers that X is a vulnerable young person who appears to be have been caught in the middle of potentially psychologically damaging prolonged parental conflict. It is the Family Consultant’s impression that X is nonetheless generally developing well. X appears to feel comfortable and have good relationships with both her parents, which is evident by her engagement and play during the observations. The observations between X and Ms Adino and X and Mr Adino respectively demonstrated that X seemed to feel comfortable with both parents and that she enjoyed her time with them. It is unclear if X is trying to placate and please both parents in an effort to minimise the conflict between them...The Family Consultant considers that it is possible that both parents have directly and/or indirectly (perhaps unintentionally) influenced X’s views of the other parent.
Her recommendation at paragraph 94 was the children spend significant and substantial time with their father but that parental responsibility is fraught and difficult to share with the parties’ acrimonious relationship. The family consultant also said, at paragraph 80:
X’s behaviour and body language in her observation was not consistent with how you would expect it to be from the information gathered from Ms Adino, X and the maternal grandparent’s interviews. X laughed and was playful in the observation and was excited to show her father her new shoes. The Family Consultant did not consider that X was hesitant to engage in play with Mr Adino.
When this conundrum was put to the mother, that is, the child did not show any fear or even express a fear of the father, the mother said X was putting on a show. That X is compliant. I reject that evidence. I accept the father was, for the mother, an appalling husband. He did not support her and with the emotional vulnerabilities and frailties she clearly admits she has, this compounded her already apparent predilection to anxiety. However, he is not a poor or appalling father and he loves his children dearly and the children clearly love him and it was very sad to hear the mother’s inability to admit the children loved their father even after having read the family report. No one could be in any doubt that they do.
The Independent Children’s Lawyer submitted I should make the sole parental responsibility orders the father sought, that is, the mother have that responsibility for education, including extracurricular activities, and medical, but that in some way she must give consideration to opinions or concerns raised by the father.
THE LAW
The starting point is the decision of Goode & Goode (2006) FLC 93-286 (“Goode”) and I must apply the factors under section 60CC(2) and (3) of the Family Law Act 1975 (Cth) (“the Act”) to determine the order in the children’s best interests.
The starting point is the presumption of equal shared parental responsibility.
I have formed the view, inconsistent with the Independent Children’s Lawyer and the father, that the mother should have sole parental responsibility for the children for the following.
There has been family violence perpetrated upon the mother by the father and sole parental responsibility can be rebutted in those circumstances. The mother is to inform the father of the decisions she intends to make however I will not ask her to liaise with the father on issues concerning the children when I see her track record for making the best decisions for her children is virtually unblemished and that the father has put roadblocks in her way to obtaining important and necessary treatment for his children such as X’s grommets.
The father’s insistence on having three opinions was completely unnecessary and clearly indicates his need to control the mother which she finds coercive and demeaning and I will not ask the mother to be subjected to that behaviour into the future.
I will order the mother inform the father seven days prior to a decision she intends to make in relation to the children’s long-term care, welfare and development and inform him 24 hours after she has made her decision via SMS or email or in writing.
The children have not been directly subjected to abuse or violence in either parent’s household.
I accept that there was yelling, fighting and shouting by both parents at times whilst they lived together. However, the father’s behaviour in 2013 for which he did not make apology to the mother or, indeed, acknowledge until this hearing, leaves the Court with the view that his conduct has been abusive towards the mother.
Further, the father has been nothing but a roadblock to the mother getting both the necessary medical treatment her children needed, engaging in extracurricular activities and she has not put a foot wrong. To require the mother to correspond with the father is not beneficial to her functioning, does not assist her parenting and it particularly does not assist the children.
As I have rebutted the presumption of equal shared parental responsibility I need not consider an order for equal time or significant and substantial time, rather determine the order that is in the children’s best interests for time with their father.
The children benefit from a meaningful relationship with each of their parents, however the father’s conduct towards the mother has minimised her parenting capacity and, to her credit, she has agreed to attend a psychologist to maximise her functioning. The father was resistant to attending anger management which causes concern as to his insight into the impact of his violence and coercion and control of the mother during the relationship which is evident in his own material, the subpoenaed material and in the tender documents.
Both parents take their attitude and responsibilities of parenthood seriously. However, I have formed the view that the father’s need to be in charge and make the decision has at times clouded his capacity to make a decision in the child’s best interests and the mother’s evidence to the Court that she always has the children at the forefront of her mind when making a decision is accepted by me save that her blind acceptance of all X tells her is of concern.
Despite the mother’s concerns, the father does not harm the children and nor do his parents. They love their father and enjoy their time with him. The sadness for the children is that they cannot share these happy experiences with their mother or maternal grandparents and this is causing X, in particular, significant distress.
The children were exposed to poor behaviour when their parents lived together. This is no longer a concern.
The wishes of the children are a conundrum at one level. Y loves his father and wants to spend more time with him. X she loves her father, has a few complaints but tells her mother something quite different. X in particular is caught in this nasty dispute between the two people she loves and needs most in the world. I accept the children, particularly Y, want to spend time with their father and that they are not at risk of harm in his care.
I do not see that the children are at risk in the father’s care from his associates. I will not make a notation concerning the father not associating with persons who were indicted or investigated with him in the District Court criminal proceedings. I have formed the view the father went through a torturous time, that he was caught up in something he had little to do with and given he is no longer engaged in the transport business and has obtained new employment, that he has borrowed significant sums of money from his parents to fund his legal fees, he will not risk his relationship with his children or his liberty into the future. I am satisfied the father is committed to only doing what is best for his children and there is simply no necessity for that order to be made. However, given he was not forthcoming with the mother when these life changing events occurred, I can understand her concerns.
The children are primarily attached to their mother and have a strong relationship with their father.
The father has not supported his children to the best of his ability financially and his half-truth evidence concerning child support did him little credit.
Both parents take their role as parents seriously and have never missed any opportunity to spend time with the children.
The parents have a poor relationship, poor communication and do not think the best of each other despite them both being excellent parents and each having a sound capacity to parent their children.
Changes to the current orders will have little impact upon the children’s day to day lives.
Going now to the issue I am tasked to determine and orders to be made in the children’s best interests.
Firstly, whether the father’s time should extend to the conclusion of school Monday or cease at the commencement of school Monday. I have formed the view that time should cease at the commencement of school Monday in the normal course, save for this: I will make an order that in the event one or either of the children become sick in the father’s care and are unable to attend school the father is to care for the child during the school hours and return the child to the mother’s care at the conclusion of the usual school day and provide the mother a medical certificate. Otherwise, I will make the order that his time is to extend to 5pm on a Monday of a long weekend.
I will add to the mother’s orders on the consent position reached that each alternate Wednesday the father is to have time with the children from the cessation of school to 7.30pm that the Wednesday is to be the Wednesday evening following the father’s alternate weekend time with the children.
Mother's Day will commence at 9am and not 8am as was previously ordered. That has caused significant issues for the parties. 8am may be too early for the children and they are entitled to a sleep-in on Mother's Day.
Going now to the Christmas and New Year time. I have formed the view that the children will have time at Christmas and New Year each alternate year with one parent given the poor relationship between their parents. It would be a travesty if the children’s Christmas was negatively impacted upon by their parents’ behaviour. The parent who does not spend time with the children at Christmas will spend time with them for New Year.
Further, the children are well able to spend two weeks continuously in their father’s care and away from their mother in the future. It is important that they have this length of holiday time with their father if he wishes to travel overseas or interstate with them, for example. Y wants more time with his father now. It is appropriate that the father have a continuous two-week period of time in January with the children upon Y reaching age 7 and he will be seven in 2022.
In the 2021 Christmas school holidays the father shall have time with the children from 5 pm, New Year’s Eve for a period of seven nights and then again from 5pm, the third Friday in January, to 5pm, the Friday before the children return to school.
Commencing the Christmas school holidays in 2022, the father’s time with the children will commence from 9am Saturday after school ceases to 5pm New Year’s Eve and then again from the third Friday of January to 5pm the Friday before the children return to school and such time to continue each alternate year thereafter.
In 2023 and each alternate year thereafter the children are to spend two weeks with their father from 5pm New Year’s Eve for a period of 14 nights.
The parties have agreed in relation to Easter and in relation to the children’s birthdays and the parents’ birthdays.
I will make an order that the mother is, if required, to sign all documents that are necessary to ensure that the father is able to receive all the children’s school reports, copies of newsletters, announcements, school or day-care activities or other material about the education of the children, attend the children’s school on each occasion that parents are invited to attend the school, attend the school and contact the children’s school on any occasion he deems appropriate.
In relation to passports, I formed the view that the mother will hold the children’s passports. The father’s concerns as to why he should hold the passports were based upon error. He believed that in 2018 the mother prevented him from spending time with his son Y, telling him the child was unwell when she was, in reality, in Queensland on a holiday. It became apparent from the mother’s exhibit 5 that the mother was, as she said in her oral evidence, in Queensland in 2019, not 2018. Therefore, the basis upon which the father complained about the mother’s conduct was incorrect.
In circumstances where she has sole parental responsibility and has complied with orders of this Court even when she believes the children are at some form of risk in their father’s care and are somewhat frightened of him, to argue that the mother will not comply with orders into the future is not supported on the evidence.
The father’s concerns that she will not hand the passport over, given both parties have agreed to overseas travel, are without foundation. The mother must obtain the father’s consent to renew the children’s passports. Each is to pay one half of those costs and if the father does not return the completed passport renewal applications to her within 14 days of her sending the documents to him for signature then, by order, she will be entitled to apply for any renewed passport in the name of the children in the absence of the father’s consent.
The mother will attend upon a registered psychologist within four months for the purpose of addressing her anxiety issues and has leave to provide a copy of the family report and this judgment to that psychologist.
The father is to, within 28 days, enrol in an anger management program and complete that program as soon as he is able, and enrol in and complete a program for perpetrators of domestic violence. The father may also provide to those who assist him in those courses a copy of the family report and this judgment.
Both parents are to sign all documents necessary to have the children engage in therapeutic intervention with L Services or such other approved provider as the mother determines is appropriate with each to pay one half of the cost to assist the children in living with their separated parents who have an acrimonious relationship with each other.
I find these to be orders that are in the children’s best interests and I will so order.
I certify that the preceding one hundred and eighteen (118) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Henderson. Associate:
Dated: 6 August 2021
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Family Law
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