Andersen and Andersen
[2011] FMCAfam 1069
•13 October 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| ANDERSEN & ANDERSEN | [2011] FMCAfam 1069 |
| FAMILY LAW – Parenting dispute – father asserting breaches by mother of agreement as to how to resolve disputes – mother denying agreement – complications arising out of intermittent resumption of relationship between parents – problems arising from father’s overbearing behaviour – father representing himself and withdrawing from trial – orders made as sought by mother. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA |
| Goode v Goode [2006] FamCA 1346 |
| Applicant: | MS ANDERSEN |
| Respondent: | MR ANDERSEN |
| File Number: | MLC 6498 of 2010 |
| Judgment of: | Burchardt FM |
| Hearing dates: | 23 & 24 August 2011 |
| Date of Last Submission: | 24 August 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 13 October 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Scriva |
| Solicitors for the Applicant: | Nancy V. Battiato |
| The Respondent: | In person |
ORDERS THAT:
All previous parenting orders in relation to the child of the relationship [X] (“[X]”) born [in] 1999 be and are hereby discharged.
The wife have sole parental responsibility for [X].
[X] live with her mother.
[X] spend time and communicate with her father by agreement.
The mother facilitate any reasonable request by [X] to spend time with her father.
IT IS NOTED that publication of this judgment under the pseudonym Andersen & Andersen is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 6498 of 2010
| MS ANDERSEN |
Applicant
And
| MR ANDERSEN |
Respondent
REASONS FOR JUDGMENT
This distressing parenting dispute illustrates, very regrettably, all too clearly the difficulties that can arise when a party elects to abandon legal representation and represents themselves.
The case is concerned with the best interests of [X] born [in] 1999, and more particularly the amount of time she should spend with each of her parents.
For the reasons that follow, which arise from the very unusual circumstances disclosed by the case, the Court will order that [X] live with her mother, who will have sole parental responsibility for her. She will spend time and communicate with the father by agreement, and the mother will be ordered to facilitate any reasonable request by [X] to spend time with him.
The procedural history of the case
For reasons which will become apparent, it is necessary to say a few words about the way in which the case has come to trial.
The trial was commenced by an application by the mother, filed on
17 June 2010, by which the mother sought, inter alia, to discharge orders made in the Victorian Magistrates’ Court on 12 September 2003, pursuant to which [X] was to live with the father.
On 25 August 2010, the Court made orders by consent adjourning the matter for final hearing on 3 March 2011 for two days, and put in place orders that the child live with the mother but spend time with the father.
The listing in March 2011 was subsequently changed to a listing on
23 and 24 August 2011. The notice of amended listing was sent to the parties at a time when they were both legally represented.
Relatively shortly before the trial (the Friday preceding the Monday of the trial, according to the father) the father decided to represent himself and removed his legal representation. His lawyer filed a Notice to Withdraw as his lawyer on 19 August 2011.
The parties filed no affidavit material from the date of the interim hearing on 25 August 2010 until the day of trial, when the mother filed her trial affidavit. That affidavit is in fact a repetition, as far as I can see virtually word-for-word, of her earlier affidavit material, save that at paragraphs 51 and following it gives a narrative of the events that have taken place after 25 August 2010.
The events at trial itself
Given that the father was self-represented, the Court took the usual steps to try to elicit his final position and to inform him of the way in which the trial would proceed, together with telling him about his right to take objections to evidence.
The father’s position, as articulated, appeared to change very significantly from moment to moment. At one stage, he said words to the effect that his daughter should see him when she wanted to. I enquired whether this meant he was prepared to accede to an order that [X] spend time with him in accordance with her wishes. Not without difficulty, the Court was able to ascertain that this was not at all what the father wanted. In the ultimate, his position was that [X] should spend time with him and the mother on an alternate week-about basis. It should be noted that this position is in marked contrast to anything he had articulated earlier in the proceeding when he was legally represented.
Given that the trial affidavit had been filed late, the Court offered Mr Andersen the opportunity to stand the matter down, or alternatively to adjourn to enable him to consider his position in relation to the material, and indeed he was asked if he wished to adjourn to obtain legal representation. Mr Andersen indicated in the clearest way that he did not wish to adjourn to get legal representation and had no intention of being legally represented. He also indicated that he did not require time to consider the trial affidavit because, as he put it, “it would be irrelevant to the case.”
The case accordingly commenced and, following a brief opening, the father cross-examined the mother. I will return to the manner of cross-examination in due course, but it should be noted that at one point the father’s cross-examining style, which was hectoring, aggressive and very inclined to cut the mother off before she had completed her answers and to misrepresent the terms of her answers, I found it necessary to inform the father that if he were a barrister, I would require him to behave otherwise. The father’s immediate response was words to the effect that he would therefore simply not continue with the trial and I had to persuade him to do so.
By approximately 12.40 pm, it was the father’s turn to be cross-examined and counsel for the mother very properly started to put to him matters in the trial affidavit. The father took issue with this and said that it was not fair that the affidavit was allowed to be filed even though, as I pointed out, the vast majority of its material was coextensive with the earlier affidavits filed. I stood the matter down till 2.15 pm to give the father a further opportunity to consider his position.
At 2.15 pm, the father reiterated his objection to the trial affidavit and I offered to strike it out and to proceed on the earlier material. The father essentially indicated that he did not propose to engage in what he described as a “he-said-she-said” process and, in the ultimate, indicated that he would withdraw from the Court and not continue his application. He did however coextensively, on occasion, indicate that he wanted his daughter to be ordered to see him.
The Court indicated that it would adjourn the matter till 10.00 am on the following day and urged Mr Andersen to reconsider his position.
At 10.00 am on 24 August 2008, Mr Andersen was not present, but a facsimile message was received from him in which, in large part, he reiterated the position I have earlier set out.
In the circumstances, the Court determined to proceed to hear the final submissions from counsel for the applicant and to reserve the decision.
Before turning to the evidence, I should repeat that the mother’s position is that [X] should live with her and, in effect, the father’s time be reserved pending agreement and/or expressed views by [X], and the father’s position is that the child should live week-about with each parent.
The Evidence
From the affidavits of the parties and the disclosures made to the family report writer (whom neither side desired to have called for cross-examination), it is plain that the parties were in a relationship for about 20 years and married in 1999.
The relationship was in some respects a strange one because even during periods of cohabitation, which appears to have commenced in April 1999, there appears to have been both estrangement and reconciliation.
It does appear that there was something of a separation in 2000, but the parties lived only a hundred yards apart from one another till 2005. The mother says that the parties were separated during this period but had intimate relations. The father’s position was that the relationship was effectively ongoing. However, between 2005 and 2010, the parties appear to have cohabitated.
The mother has asserted in all her affidavits that there was a lengthy history of domestic violence by the father against her, including a number of serious assaults.
The father says that such assertions are wildly exaggerated and taken out of context, although he appears to admit them in part. The family report writer said at paragraph 15 of his report that:
“He was sparse on the detail of his apparent violence towards Ms Andersen across the course of their relationship other than admitting that he wanted to change the way he had been. When enquired further about this he stated that he had initiated change to break the cycle of emotional violence that until relatively recently existed between himself and Ms Andersen that he stated had negatively affected [X].”
During the course of his participation in the trial, Mr Andersen presented as an exceptionally domineering and aggressive individual. It is regrettable to have to make findings of this character, but in the circumstances it is unavoidable. The transcript will not fully reveal the domineering and overpowering way in which he put his questions, often extremely accusative, to the mother.
In summary, the story put in cross-examination to Ms Andersen was to the effect that Ms Andersen was deliberately repeating, in [X]’s case, the estrangement she herself had suffered with own father. It was put that Ms Andersen had initiated a sexual relationship between about March and May of this year, that this had ceased because the father felt that things were not progressing as they should be to a more open acknowledgement of the relationship, and that the mother had withheld [X] from him out of spite because of a sense of rejection accordingly.
The father asserted in plain terms that he had been “sexually abused” by the mother and kicked out.
While there is no doubt that Mr Andersen really believes that this is the case, and there is equally no doubt from his materials and his evidence that he believes he “took all the debt in the relationship”, I do not accept that matters are entirely as he put them.
The mother readily conceded that there had been a sexual relationship between the two of them but denied that she had instigated it. She said that it came to an end because she decided that she would not put up any further with the domineering behaviour of the father.
There is no doubt in my mind that the relationship came to an effective end (apart from the sexual relationship in 2011) in May 2010 when the father hit the mother extremely hard and appears to have pulled her nose. [X] confirmed this incident independently to the family report writer and it is entirely consistent with the intervention orders thereafter made.
The mother’s evidence was given in a composed and dignified fashion, unlike the aggressive and over-assertive behaviour of the father.
The family report writer referred to the conversation with a Ms K, who had seen the parties and [X]. Ms K is a psychologist. The conversation with the family report writer is described in the following terms:
“27. Ms K described Mr Andersen as forthright with his opinions with a propensity to adopt rather extreme positions and in her opinion experienced as quite overwhelming for [X]. Ms K cited the example of Mr Andersen becoming very concerned about [X]’s weight and implementing a rather regimented diet in an insensitive manner that was experienced by his daughter as unpleasant and possibly punitive despite what Ms K stated was in her opinion Mr Andersen’s good intentions.
28. Ms K stated that in her clinical opinion Ms Andersen was a submissive woman who in the end left her husband due to becoming tired of his domination. She also described Ms Andersen as a sound parent who was in tune with [X]’s emotional needs and was not wanting to alienate [X] from Mr Andersen”.
The family report writer at paragraphs 31 to 32 of his report expressed similar conclusions.
I have quoted Ms K’s evaluation because it is entirely consistent with my own opinion. Having seen both Mr Andersen and Ms Andersen, I think that Ms K’s evaluation of their personalities is entirely correct.
It is common cause that the orders for [X] to spend time with her father were not adhered to for a period of time from late 2010 until the sexual relationship commenced between the mother and father. Until about March 2011 and again from May 23, 2011, the father withdrew from time with his daughter.
In the course of the proceeding, the father articulated his position as being the result of the failure by the mother to adhere to an agreement between them. This agreement was put by him as being constituted by an arrangement that the parties would proceed in the more cooperative and conciliatory style indicated by the documentation he tendered as exhibit R1. That documentation includes certificates of completion of a men’s behaviour change program and the like which the father claimed had substantially altered his approach towards dealing with difficulties between him and the mother.
It was put that the course recently undertaken by the mother (which was a course in coming to terms with family violence) was in fact fostered by him and that the mother had indicated by her conduct a failure properly to embrace the principles of cooperation which he was seeking to put in place.
The mother, correctly enough, pointed out that she had not been ordered to do any courses and that the course she did do was for her alone.
The father’s position is well-encapsulated in exhibit R2, which is a letter he hand-delivered to the mother the day before the trial, although she did not in fact receive it. Extracts from that document include:
·I have been left all the debt and blame while I feel you have all the credit for the good that has been achieved on behave [sic] of our daughter.
·I feel unfairly accused of abandonment of [X] and yourself.
·I have removed myself from access to my daughter because the agreement between us was broken.
·I feel humiliated that yourself and family members and friends are still spreading false, degrading and violent information about me around the community.
·I feel very sad and sorry that your mother and father’s behaviour and actions were so violent and damaging to you as a ten-year-old child growing up.
·We both have the knowledge and ability to stop this circle of violence, teach our daughter to have high self-esteem, to have confidence, to have respect for both her mother and father, to be free to love both parents unconditionally, to have respect for herself.
·I am not prepared to fight over [X] at all, especially through court.
·I am not prepared to play the he said, she said game.
·I am not prepared to resume access to my daughter until the violence between us ceases and the violence associated with our daughter ceases. [X] is able to contact me still by phone whenever she chooses.
In a sense, these extracts encapsulate the father’s case and the difficulties it presents to the Court.
The family report
The family report is dated 1 March 2011, and was compiled at a time when the parties were in the sexual relationship to which I have already referred. Matters have changed materially since then.
I have already referred to the findings made in relation to the parents. I refer to, without repeating, the record of child interview at paragraphs 20 to 23 of the report and the observations with the parents at paragraphs 24 to 25. At paragraph 33, the report writer evaluated [X] as follows:
“[X] presented as an engaging and friendly eleven year old girl who was relatively open in giving a verbal account of her parents. Her description of her parents was marked by the contrast of experiencing her father as sometimes intrusive and overbearing while feeling understood and nurtured by her mother. Her account of her father’s mistreatment of her mother and her reported anger of this together with her accompanied non verbal behaviour (distress) indicated the significant impact on her as a result of what she experienced as her father’s threatening and unpredictable behaviour. Her descriptions of her father were specific and impressed as genuine and of her own experience. Furthermore her position was not extreme as [X] was also able to recognise that her father had changed in recent weeks, that this had made her happy and that she was wanting to see her father yet remain living with her mother with whom she trusted. [X]’s individual account was congruent with her observed manner of relating to each parent. This was marked by a greater affection and appreciation of her mother despite her tolerance and willingness to engage with her father albeit with less spontaneity and more compliance. It is my opinion therefore that [X] has a strong, positive relationship with her mother who is [X]’s primary attachment and she had a far less secure relationship with her father who [X] has experienced as unpredictable and at times overly forceful despite what I believe as her ongoing wish to remain in contact with him and her hope that he will change.”
The reporter went on to recommend that [X] remain in her mother’s full-time care and spend single overnight time in her father’s care every second Saturday, plus one midweek afternoon.
It should be noted that, following the various recommendations made, the last paragraph of the report says:
“While I acknowledge that Mr Andersen has attended a therapeutic program and has talked of his substantial gains for this time limited experience of therapy, his own account of a longstanding tumultuous experience of abuse in his family of origin likely points to his need for a more extensive therapeutic intervention to assist him to further understand his limitation / vulnerabilities and the triggers for him and not just for
Ms Andersen in his relationship with Ms Andersen.”
Consideration of the Statutory Pathway
In Goode v Goode [2006] FamCA 1346, the Full Court of the Family Court set out a summary of the manner in which the Court should approach cases such as these at [65]. I shall follow the pathway therein indicated.
Parental responsibility
The presumption of equal shared parental responsibility set out in s.61DA of the Family Law Act 1975 (“the Act”) does not apply in circumstances where there are, relevantly, reasonable grounds to believe that a parent has engaged in family violence. There is no possible doubt that in this case, there has been significant family violence which has, as the family report writer noted, significantly affected [X].
Nonetheless, the Court is clearly required to consider whether shared parental responsibility would be in [X]’s best interests as part of the consideration of her best interests as a whole, this being the paramount consideration pursuant to s.60CA of the Act.
Counsel for the mother submitted that the practical difficulty is that an order for joint parental responsibility would be likely, in effect, to lead to sole parental responsibility being with the father. Counsel pointed to the unilateral decision by the father to impose home schooling on [X] and the dieting incident.
Having seen the parties in Court, I have no doubt whatever that this submission by counsel is correct.
In my view, it is clear that [X]’s primary attachment is to her mother and for the reasons that will follow, her time will be spent at least in the overwhelming majority, with the mother. It is plain that the person who has day-to-day care of [X] should have sole parental responsibility in the particular circumstances I have described. Although it is not necessary, given that there is family violence, I would in any event be satisfied that the presumption of equal shared parental responsibility would conflict with the best interests of the child and it would not be appropriate (s.61DA(4)).
Where the presumption of equal parental responsibility is not applied, the Court is at large to consider what arrangement will best promote the child’s best interests.
Equal time
The father’s application for equal time or substantial and significant time within the meaning of the Act (something that he did not ask for but which, in my opinion, the Court should consider in any event), must be considered in the light of the matters set out in s.60CC of the Act.
Section 60CC(2)
Although, as I find, [X] does not wish presently to spend time with her father, and I accept the mother’s evidence to this effect, and although the father has been violent to the mother in the child’s presence and I have no doubt has been violent throughout the relationship (although it is not possible for me to say whether this is to the extent asserted by the mother or to a lesser extent), it is clear that in a general way it would be to [X]’s benefit to have a meaningful relationship with both her parents.
This was the position [X] evidenced as recently as March 2011 and there is no doubt that for all his difficulties, her father loves her dearly.
Nonetheless, there is also clearly in this case a need to protect [X] from physical or, more particularly, psychological harm and from being subjected to or exposed to family violence.
I accept that the father has never been physically violent to [X], but there is no doubt that his behaviour in assaulting the mother in her presence has affected her greatly. That is what the family reporter recorded and there is no reason to doubt that report.
Subsection 60CC(3)(a): The views of the child
[X] is 11, going on 12, and from the materials as a whole, appears to be a mature child for her years. She expressed considerable reservations about her father to the report writer in March 2011. The mother’s evidence is that [X] has, since the father withdrew in May 2011, expressed the view that she does not want to see her father and I accept that evidence. The father’s withdrawal in late 2010 to 2011 must have hurt [X] and a further deliberate withdrawal by him from her in May of this year must be hurtful also. It is only consonant with commonsense (and in any event the mother was a good witness) that the position should be this. [X] does not presently wish to see her father.
Subsection 60CC(3)(b): The nature of the relationship with the child with her parents and other persons
[X] has a good and warm relationship with her primary carer, who is her mother. Her views about her father I have just recorded. She also has an excellent relationship with her half-brother, [Z]. She also appears to have a good, albeit more intermittent, relationship with [Y], Mr Andersen’s son by a previous relationship. It is noteworthy that the father was critical of both of these relationships, even though there is no objective material to justify the criticisms he made.
Subsection 60CC(3)(c): The willingness of the parents to facilitate a relationship with the other parent
In the context of the circumstances of this case, this sub-section operates primarily upon the mother’s willingness to foment a relationship with the father. Although she says she would actively promote such a relationship and wishes the child to spend time with the father, her insight may not be all that great. In summary, her position seems to be that if [X] does not want to see her father she would certainly not make her do so. This response, as I find, springs from a disillusionment occasioned by the father’s more recent withdrawal and his ongoing domineering behaviour. I have little confidence that the mother will, in truth, promote a relationship with [X].
Subsection 60CC(3)(d): The likely effect of any changes in the child’s circumstances
In the context of the facts of this case, this subsection operates primarily upon the effects of the father not spending time with [X]. It is difficult to be quite certain how this will operate. No follow-up family report has been sought by the parties. Accepting the mother’s evidence that [X] does not presently want to see her father, and noting all the inherent dangers and difficulties of such estrangement, it does not seem likely that [X] will be distressed by not spending time with her father but rather will be relieved that this is the case.
Subsection 60CC(3)(e): The practical difficulty and expense of child spending time with the parent
This is not relevant. The parties live near to one another and if they were only better-able to cooperate, the child would readily be able to spend time with both parents.
Subsection 60CC(3)(f): The capacity of the parents to provide for the needs of the child, including emotional and intellectual needs
I accept the family report writer’s observations that the mother is a perfectly capable mother, for all her various weaknesses. The father’s capacity to care for [X], is in my view, very open to question. His behaviour during the Court proceeding, which oscillated between a refusal to condescend to engage with the Court process and an adamantine assertion that he would not see his child until his problems with the child’s mother were resolved, leads to serious questions about his commitment to the child and his understanding of her needs. His unilateral cessation of spending time with her on not one but two occasions tends to suggest a complete lack of insight into any need that [X] would have for an ongoing and secure relationship with him. I accept the remarks at the conclusion of the family report. Mr Andersen regrettably has a long way to go before he is in a position properly to understand the difficulties that his domineering, bullying and aggressive manner and behaviour give rise to.
Subsection 60CC(3)(g): The maturity, sex, lifestyle of the child and of the parents
Both parents appear to have had difficult childhoods. The family report writer records the difficulties Mr Andersen has had. I am prepared to accept for these purposes that the mother was estranged from her own father and may well have suffered abuse as a child. Contrary to the position contended for by the father, however, there is no reason to suppose that Ms Andersen would wish to visit upon her own daughter such traumas she may have herself received as a result of her own longstanding estrangement from her father. To the contrary, it would only be reasonable to presuppose that she would not wish to damage her child in that way. The father’s obsession with the proposition that history was repeating itself, well-illustrated by his remarks in Court, shows an alarming lack of insight and demonstrates (as did a number of other instances) his strong accusatory and in the ultimate, in my view, immature attitude towards the mother and his lack of insight into her situation and that of his daughter.
Subsection 60CC(3)(h)
This is not relevant.
Subsection 60CC(3)(i): The attitude to the child and the responsibility to parenthood demonstrated by each of the child’s parents
The mother’s attitude towards being a parent is, in the main, unexceptional. Her decision to re-engage in a relationship with the father in the earlier part of this year suggests a certain immaturity and this error of judgment has clearly exposed [X] to yet further discomfort. Nonetheless, in the round she remains a good parent, with appropriate attitudes towards the child and the responsibilities of parenthood. The father’s decision unilaterally to withdraw from his relationship with the child speaks volumes and scarcely requires further elaboration. His attitude towards being a parent, which seems interwoven with his insistence that the mother proceed in a fashion agreed with him, likewise speaks volumes. I have no doubt that if the mother was to be, as the father put it, headed in the same direction with him, she would be required to head in the direction he requires and not otherwise.
Subsection 60CC(3)(j)
I have already dealt with the issue of family violence involving the child. There has plainly been family violence and there could have been family violence over a lengthy period of time committed by the father on the mother.
Subsection 60CC(3)(k): Any family violence order that is relevant
There have been family violence orders but, as part of the reconciliation, the mother allowed the orders to be varied to permit the father to see the child.
Subsection 60CC(3)(l): Whether it be preferable to make an order least likely to lead to further proceedings
The extraordinary circumstances of this case are such that one can have no confidence that this will be the last proceeding between the parties.
Subsection 60CC(3)(m): Any other relevant matter
In a sense, although it is a recapitulation, this is the heart of the matter. The father clearly loves his daughter but he has chosen to withdraw from her from May 2011. At one and the same time, he refuses to engage in the curial process and disdains what he describes as the “he said, she said” process, he walked out of the Court hearing and refuses by and large to further participate and yet also says that he wants equal time. It is desperately unfortunate that he lacks sufficient insight and self control to be able to articulate his position in a calmer and more clearly thought out way. I have given thought as to whether it would be appropriate of my own motion to order a further family report but have decided against it for two reasons. First, it is not the Court’s position in a general way to conduct a proceeding on behalf of the parties. Second, I doubt that a further family report would do more than confirm the findings I have already reached. It is only consistent with ordinary experience that [X] should presently not be wishing to see her father because of his behaviour towards her.
In the wholly extraordinary circumstances of this case, I think that a consideration of the matters I have set out leads inexorably to the conclusion that the best order to be made is that [X] live with her mother and spend time with her father as agreed between the mother and father, with the mother to be ordered to facilitate any reasonable request by [X] to spend time with her father.
To force [X] to spend time with her father in the circumstances presently obtaining would, in my view, not be in her best interests. For these reasons, there will be orders in the form sought by the mother.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of Burchardt FM
Date: 13 October 2011
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