BAXTER & BARBER

FEDERAL CIRCUIT COURT OF AUSTRALIA

BAXTER & BARBER

[2015] FCCA 2628

Catchwords:

FAMILY LAW – Children – strength of relationship of siblings – children could only have a relationship with each parent if they live with the mother.

MRR v GR [2010] HCA 4

Applicant:

MS BAXTER

Respondent:

MR BARBER

File Number:

WOC 769 of 2010

Judgment of:

Judge Henderson

Hearing dates:

17, 18 & 19 August 2015

Date of Last Submission:

19 August 2015

Delivered at:

Wollongong

Delivered on:

24 September 2015

REPRESENTATION

Counsel for the Applicant:

Ms Humphries

Solicitors for the Applicant:

Bailey Mullard Lawyers

Counsel for the Respondent:

Mr Weaver

Solicitors for the Respondent:

Reimer Winter Williamson

Counsel for the Independent Children’s Lawyer:

Mr Anderson

Solicitors for the Independent Children’s Lawyer:

Helen Volk Lawyers

ORDERS

The Mother have sole parental responsibility for decisions pertaining to the long term care, welfare and development of the children of the relationship namely X (“X”) born (omitted) 2006 and Y (“Y”) born (omitted) 2007.
The children live with the Mother forthwith.
That, the child Y, spend time with the father as determined by the Mother.
That the child X spend time with the father commencing 3 months after the making of these Orders, and subject to the father’s compliance with the provisions of Orders 11, 12, and 16-19:
(a)During New South Wales public school terms, each third weekend, from the 5pm Friday until 5pm Sunday;
(b)During the New South Wales Term 1, 2 and 3 public school holiday periods, for one half of each holiday period, and in lieu of agreement, the second half of each of the term 1, 2 and 3 New South Wales Public School holiday periods commencing 5pm Friday and concluding at 5pm Sunday;
(c)Subject to the provisions of Order 5, during the New South Wales Public School Christmas holiday periods:
(i)For the first half in years where such period commences in odd numbered years, commencing at 5pm on the Friday closest to the conclusion of the school term and concluding at 5pm on the Sunday closest to the middle of the holiday period; and
(ii)For the second half of each New South Wales Public School Christmas holiday period in years where the holiday period commences in an even numbered year, commencing at 5pm on the Friday closest to the middle of the holiday period and concluding at 5pm on the Sunday prior to the resumption of the school term.
(d)On the following special occasions:
(i)From 9am until 5pm on the Sunday closest to each of the children’s birthdays including the birthdays of the children’s siblings in the Father’s home;
(ii)From 9am until 5pm on the Sunday closest to the Father’s birthday;
(iii)From 9am-5pm on Father’s day;
(iv)On 17 October 2015 9am until 5pm;
(v)From 10am Boxing day until 5pm 27 December in even numbered years;
That the time the children spend with the Father be suspended:
(a)For not less than 4 hours on each of the children’s birthdays and the birthdays of the children’s siblings in the mother’s home, and in lieu of agreement, from 4pm-8pm;
(b)For not less than 2 hours on the mother’s birthday and in lieu of agreement, from 4pm-6pm;
(c)From 9am-5pm on Mother’s day;
(d)From 3pm Christmas day until 6pm Boxing day in odd numbered years.
That the children are to communicate with the father by telephone at such times that are mutually agreed and in lieu of agreement, each Monday, Wednesday and Friday when the children are not otherwise spending time with the Father between 4.30pm and 6.30pm, with the father to telephone the mother’s mobile telephone number.
That the children communicate with the mother by telephone on two occasions during any time that the children are spending time with the father and in lieu of agreement, at 4pm on the 2^nd and 4^th day with the mother to telephone the father’s mobile telephone number.
The parents will be courteous and civil towards each other and all other persons significant to the child at all times but especially in the presence or within the hearing of the children.
That the parents are each to ensure that the other parent is kept informed of:-
(a)Any serious medical problems or illnesses suffered by the children and/or any invasive medical procedure performed on the children, with the other parent to be notified as soon as is reasonably practicable;
(b)Any medical emergencies involving the children, with the other parent to be notified immediately;
(c)Any medication that has been prescribed for the child that needs to be taken during the time the children are with the other parent, with the other parent to be notified at the time of changeover;
(d)Any appointments with any specialist medical doctor, psychiatrist, psychologist, counsellor or therapist regarding the children, with the other parent to be notified no later than fourteen (14) days prior to any such appointment (except in the case of an emergency, with the other parent to be notified immediately);
(e)Any social or religious functions which the child is to attend, with the other parent to be notified within 48 hours of such event coming to the attention of the parent who receives the information;
(f)The telephone contact number of the parent, with any changes to be advised within twenty-four (24) hours;
(g)The email address for the parent, with any changes to be advised within twenty-four (24) hours;
(h)Any other matter relevant to the welfare of the children, with the other parent to be notified as soon as is reasonably practicable.
That the father use his best endeavours to facilitate the children spending time with their brother Z, during time the children spend with him pursuant to these orders.
That if the father is spending day time only with the children he shall remain in the area local to where the children live during the time he spends with the children.
That the father take steps to engage in therapeutic intervention specifically to deal with the following and these orders operate as the authority of the father for the mother to obtain any information she may seek from the father’s counsellor to ascertain his compliance with these orders, and the appropriateness of any further time by agreement.
(a)Grief as a result of the death of his mother;
(b)To assist him to adjust to the change in the children’s living and spending time arrangements;
(c)Reparation of his relationship with Y;
(d)Improving his empathic response and parenting of the children;
(e)Improving his communication with the mother.
That leave be granted to the parties to release a copy of the following documents to any person providing therapeutic assistance to them or the children:
(a)Family Report dated 26.2.2011 and 2.4.2015;
(b)These orders;
(c)Reasons for judgment.
That the mother facilitate the children attending upon the Independent Children’s Lawyer for the purpose of explaining the effect of the Orders made, and any part of the judgment, specifically identified by the court, to the children and in this respect, leave is granted to the Independent Children’s Lawyer to explain or read those parts of the orders or judgment as are relevant to the children or identified by the court.
To facilitate the time the children spend with the father pursuant to these Orders, the mother shall deliver the children to the father and collect the children from the father at McDonalds Family Restaurant in (omitted).

That the father be restrained from permitting his partner Ms B from being present during the time he spends with the children for a period of 9 months after the making of these Orders.
That the Father be restrained from allowing the children to be left in the sole care of his brother, Mr T born (omitted) 1966.
That each parent be restrained from physically disciplining the children and shall immediately remove the children from the presence of any other person who does so.
That the father be restrained from discussing with either of the children any issues pertaining to the alleged loss, theft or retention of any jewellery or other item belonging to the father’s partner, Ms B.
Each parent is restrained from making critical or derogatory remarks about each other or members of each other’s family:
(a)By any means, including but not limited to forms of social media, whether or not the parent or any member of that parent’s family is directly identified therein; or
(b)In the presence or within the hearing of the children and forthwith remove the children from the presence of any other person who does so.
Each parent is restrained from using language that is inflammatory or hostile and will limit their communication to those matters which are specifically relevant to the children’s care, welfare and development.
Each parent is restrained from making any proposal to alter the time the children lives with or spend time with each of them pursuant to these Orders in the presence or hearing of the children.
Each parent is restrained from discussing matters pertaining to parental responsibility in the presence or hearing of the children and will use their best endeavours to ensure that no other person does so.
Each parent is restrained from involving the children in their parental communication (including but not limited to asking the child to pass messages to the other parent).
That each parent be restrained from publishing any remarks in respect of these proceedings, including in any form or social media, and shall immediately delete any comments made by any other person from any social media site in their control.

IT IS NOTED that publication of this judgment under the pseudonym Baxter & Barber is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT WOLLONGONG

WOC 769 of 2010

MS BAXTER

Applicant

And

MR BARBER

Respondent

REASONS FOR JUDGMENT

This is a parenting application concerning the parenting arrangements for the children X, born (omitted) 2006 and Y born (omitted) 2007.
The matter was heard in Wollongong over three days. Ms Humphries of Counsel acted for the mother, Mr Weaver of Counsel acted for the father and Mr Anderson of Counsel acted for the ICL.
The parents agree that Y will continue living with her mother. The father, by his final minute of orders filed in submissions and marked Father’s Exhibit 1, also agreed that X should live with his mother, but that such an event not take place until 19 December 2015.
The father’s reasons for this delay in a change of residence are to allow him to prepare X to transfer to his mother’s primary care and to allow him to complete the school year.
The father sought equal shared parental responsibility, holiday time and the like.
The mother agreed with the orders put forward by the ICL that she have sole parental responsibility, that the child transfer to her care immediately, that neither child spend time with their father for 3 months to allow the father to undergo course of intensive therapy to address his attitude to the mother, inter alia, and the children not spend time with the father’s partner, Ms B for nine months.
The report writer, Dr H agreed X transfer to his mother’s care as soon as is practicably possible.
This is a matter of travesty and injustice to the mother, the children and in particular to X.
The travesty is that, by consent, orders were made in 2011 that X live with his paternal grandmother. Dr H had prepared a report at that time now marked Court Exhibit 1 and had concluded X’s attachment to and relationship with his mother was poor and that he was strongly attached to his grandmother and should remain in her care.
Dr H also opined the child may have characteristics of high-end Autism Spectrum Disorder, that he was somewhat fragile emotionally, his speech was delayed and it was imperative he remain living with the adult she determined he was most closely attached to, at least until he had made the transition to school.
Dr H was clear neither child should be living with their father.
By the time this hearing came about, X’s grandmother had tragically died, had been unwell and unavailable to him for some time from about April 2014, and he was now living in the primary care of his father. The father hid the seriousness of his mother’s health from the mother.
Dr H’s assessment of X’s functioning was in error as was her opinion of his attenuated relationship with his mother. I accept he was closely attached to his grandmother. X is a very bright child who excels at school. I do not criticise Dr H as the evidence she relied upon was not tested as orders by consent were made.
However it is clear in each of in Dr H’s reports, Court Exhibit 1 dated 26 February 2011 and Court Exhibit 2 dated 7 April 2015, the father was not the parent best placed to assume primary care of either child, including X.
At this hearing Dr H was at pains to point out in her cross-examination that she never recommended, nor would she recommend, that the child live with the father because of what she regarded as his self-absorbed and non-empathic or non-reflective parenting style.
Thus, X had lost his beloved grandmother, was separated from his mother, who had been his primary carer from his birth no matter what story the father peddled to Dr H in 2011 of the mother abandoning the child, but also his sister and was now living by default with a parent ill-suited to parent a child.
A further tragedy has occurred. Since 14 June 2015, Y has not been attending her father’s home. X has been seeing his sister at best once a fortnight at his mother’s home. The children have spent time with each other every weekend at one parent’s home since the consent orders were entered into.
The concern for X of this travesty imposed upon him is highlighted in the latest family report at paragraph 33 X said:
X talked about Nanny being sick for two years and said it was better with Dad when Nanny became very sick. Although X thought Pop was very sad, he thought he would be sadder longer than Dad or Pop. What helped him bear this sadness? X said, “Bright star thing works.” What about in the daylight hours when the stars are not out? X said praying helps him. X spoke as though he construes praying as a telephone to heaven with a direct line to Nanny rather than God, but I did not probe further. X said he missed his grandmother, then added, “I miss Y the most.”

The Evidence

The evidence I read was as follows.
For the applicant mother.
Trial affidavit, filed 6 August 2015.
Affidavit of her husband, Mr I.
Case outline prepared by her counsel.
Minute of orders sought at the conclusion of the trial, being Mother’s Exhibit 1.
For the respondent father.
Trial affidavit filed 7 August 2015.
Affidavit of his partner, Ms B, filed 7 August 2015.
Affidavit of the paternal grandfather, Mr A.
Dr H came to court to be cross-examined and both her reports formed part of the evidence.
The parties including Mr I and Ms B were all cross-examined.
The exhibits tendered were as follows.
Independent Children’s Lawyer exhibits.
ICL Exhibit 1, a report and notes from Ms K, a paediatric dentist the father took X to on 13 May 2012.
ICL Exhibit 2, Department of Community Services file tagged.
ICL Exhibit 3, COPS entries (omitted) Police Station.
ICL Exhibit 4, criminal histories of all relevant parties.
ICL Exhibit 5, enrolment application of X. The mother is not noted on this form by the father.
ICL Exhibit 6, minute of orders sought.
Mother’s Exhibit 1, child support assessment dated 11 August 2015.
Mother’s Exhibit 2 was her minute of orders sought.
Father’s Exhibit 1 was the minute of order sought.
Court Exhibit 1, Dr H’s 2015 report.
Court Exhibit 2, Dr H’s 2011 report.

Short Chronology

(omitted) 1980, date of birth of the father now aged 35 years.
(omitted) 1982, date of birth of the husband of the applicant mother, Mr I, now aged 33 years.
(omitted)1984, date of birth of the mother now aged 31 years.
(omitted) 1989, date of birth of Ms B the partner of father, now aged 26.
2002, the mother and father commence a relationship.
(omitted) 2006, birth of X now aged nine. He attends (omitted) Public School and is in year 3.
(omitted) 2007, birth of Y now aged eight. She is in year 2 at (omitted) Public School.
November 2007, the mother alleges that the father physically hurt her. She managed to wrestle out of his grasp and ran to the neighbour’s house seeking help. The neighbour drove her to the paternal grandparents’ home. The father followed. The father had an axe in his hand and grabbed the mother around the throat with the other hand. The father pushed her onto the bonnet of the car and held the axe next to her head. The mother placed the children in her car and drove away, after he let her go. The mother went to stay with the paternal grandparents with the children for a few weeks.
November 2007, the relationship between the mother and father ceases.
January 2008, the mother moves to a rented house in (omitted) with the children.
The father visits the new home. The father allegedly grabs the mother by the throat and pins her against a wall while she was holding X in one arm.
April 2008, the mother moves to (omitted) Park with the children. The father visits this residence approximately three times. The father and mother argued.
21 September 2008, commencement of the relationship between the mother and her current husband.
October 2008, the mother moves to (omitted) with the children to be closer to her extended family.
January 2009 , the mother observes X sitting on top of Y with his hands around her throat. The mother was concerned and asked the father to look after X for a couple of weeks.
February 2009, the father gives X to his parents to look after and he moves in with his girlfriend Ms C. The mother said she requested that the father return X to her care and he refused. The mother says she was scared of the father and complied with his requests.
7 August 2010, the mother travels to (omitted) with Y to spend time with X. At the maternal grandmother’s home Y says to her mother that X wanted to return home. The mother speaks with the father who she alleges threatens and abuses her. The mother returns X to the paternal grandparents’ home. The father allegedly approached the mother with a large metal pole and swung it at her. The father tapped the pole on front windscreen. The mother is pulled over for a random breath test and tells the police what happened. The father was subsequently arrested and charged with common assault. Those charges were later dismissed as was the application for the ADVO.
24 August 2010, the mother texts the paternal grandmother.
25 August 2010 , the paternal grandmother texts the mother.
26 August 2010 , the mother texts the paternal grandmother.
October 2010, the mother commences proceedings in the Wollongong Federal Magistrates Court (as it then was). The matter was resolved with X remaining in the care of the paternal grandmother, and Y remaining with the mother.
29 November 2010, date upon which the father says the charge of common assault and the AVO were dismissed at court.
(omitted) 2011, date of marriage of the applicant mother and her current husband.
(omitted) 2011, date of birth of W now aged three, the daughter of the applicant mother and her current husband.
8 December 2011, the father and Ms B commence a relationship.
(omitted) 2013, date of birth of A now aged two, the son of the applicant mother and her current husband.
19 January 2014, date upon which the father says his mother was diagnosed, presumably with brain and lung cancer.
23 March 2014, the father informs the mother upon her questioning him that his mother had lung cancer which turned out to be benign, was going in for more tests in June to find out more.

April and June 2014, the children inform the mother that the paternal grandmother no longer had any hair and returned from an extended stay in hospital, spent her days sleeping, and did not interact with the children anymore.
15 June 2014, the mother offers to drive X to the paternal grandparents’ home. The father says that the parents were going to be out and he could meet her at (omitted). The father then arranges to collect X from Mr I’s sister’s house. The mother believes that the grandparents were not out and that the father was covering for his mother’s state of ill health.
(omitted) 2014, birth of Z the child of Ms B and the father.
January 2015, the mother states that X ceased residing with the paternal grandparents at this time.
12 February 2015, orders made at the Wollongong Federal Circuit Court. The orders provide for amongst other things, random supervised urinalysis testing for the father.
15 February 2015, the mother becomes aware of messages posted to the father’s Facebook page which relate to her and the current court proceedings. The father agrees that he made inappropriate comments.
(omitted) 2015, the paternal grandmother dies.
6 March 2015, the mother delivers Y to the father to spend time with him. The father does not inform the mother that the paternal grandmother died.
7 March 2015, the mother tries to telephone and sends a text message to the father when she discovers that the paternal grandmother died.
8 March 2015, the father responds but does not inform the mother when the funeral is scheduled.
10 March 2015, the mother discovers from Facebook that the funeral is scheduled for (omitted) 2015.
11 March 2015, the father contacts the mother by text to arrange a pickup for Y on 12 March 2015.
12 March 2015, the mother makes Y available for father.
13 March 2015, the father texts the mother informing her that X did not want to see her that weekend due to being upset. The mother agrees that both children can remain with the father that weekend.
15 March 2015, Y is returned by the father.
2 April 2015, release by the Court of the Family Report by Dr H.
The following weekend Y returns from contact with the father and informs the mother that the father is upset and he is reported by her to have said to Y “Your fucking mother has won X back, I bet she’s really happy about that, isn’t she?”
Y also informs the mother that her father told her that her name would be changed to Baxter when X lives with the mother and that she (Y) will never see him again. The mother says X also told her similar comments were made by the father.
4 May 2015, the mother attends (omitted) School and arranges with the school counsellor. Y now attends counselling every Monday.
8 May 2015, at changeover the father informs X that he will see him Sunday morning, which was Mother’s Day.
Mother’s Day, X tells his mother that he made presents for her at school, but the father said it would be a good idea if he gave them to Ms B instead of his mother. The mother receives a text from the father asking to pick up X early so he could spend time with Ms B for Mother’s Day. The mother agreed.
18 May 2015, the mother and her husband attend Y’s school and speak with Ms Y the school counsellor. Y informs the counsellor that when she is at her father’s house the father swears at both her and X, and he locks them in the cupboard. Ms Y recommends both children receive some counselling as soon as possible.
14 June 2015, the mother receives a text message from the father advising he would deliver Y to her home rather than the usual changeover location. This is the time of the ring incident.
25 June 2015 , the mother’s solicitors write to the father’s solicitors for confirmation that the father intended to spend time with Y during the school holiday period.
26 June 2015, the father’s solicitors respond that it would be best for Y to spend the entire school holidays with the mother.
24 July 2015, the mother’s solicitor writes to the father’s solicitor asking whether he intended to spend time with Y the following weekend. The father’s solicitor responds that he would not be spending that time.
The mother and Mr I were most impressive witnesses.
Mr I was calm, considered gentle and polite. The mother was calm, quiet and child-focused. Their home would have little tension or anger and would be a nurturing environment for children.
Dr H had changed her view of the mother since the 2011 report and described her at paragraph 44:
Nothing emerged from this assessment to suggest X is not fond of his mother or she cannot take adequate care of him. She is deemed to be a more sensitive, child-focused parent than the father.
The mother was not X’s primary attachment while his paternal grandmother was alive. The argument for preserving X’s attachment security to his grandmother as a vulnerable pre-school child has been eroded by the passage of time and life events, notably Ms Barber’s death and X’s successful school transition.
Dr H’s assessments in 2011 that X may be on the autism spectrum were wrong. He is a keen student and excels at school. He just took time to develop capacities that other children had at 4, such as his speech.
I take umbrage with any comment in the father’s evidence that the mother abandoned X to the care of the grandmother. That mistaken and wrong view peddled by the father to Dr H repeated in his trial affidavit and in cross-examination is a significant injustice perpetrated on the mother by the father.
When these parties separated, the mother went to live at the home of the paternal grandparents and X naturally formed an attachment to his grandmother. The mother had a young baby, Y, to care for at this time. The mother went through a very difficult time after separation and was struggling to care for two young children on her own with a father who was of little assistance to her in parenting the children.
The mother asked the father to care for X for a short time to give her a break in January 2009 and he immediately gave the child to his mother.
The father failed to return X to his mother despite her repeated requests he honour their agreement.
Even in the witness box he told me the mother abandoned the child.
His words in open court:
…when she abandoned him at the number one loading dock at (omitted) Plaza.
He has told this version of events to his son. It is incorrect. It is a fallacy. It is what the father believes, but it is not the truth. The father is still firmly of the view that the mother abandoned the child. It is clear in emails which I will refer to later.
The mother did not abandon her son. The mother asked for help from his father. His father’s response was to take advantage of that child focused action and retain the child in his non-child-focused and very adult-focused way. He overbore and bullied the mother post separation as he had during the relationship.
The 2011 report further cemented this injustice on the mother and the child. When the mother was faced with this overwhelming and very clear evidence that she had abandoned the child, her relationship with her son was not secure and he was now primarily attached to his grandmother, that he may be on the autism spectrum and he had to remain where he was until he transitioned to school she capitulated as believing this was best for her son when it was not.
The consent orders created a nightmare of travel and fraught weekends for the children and their parents. The parents live 4 or so hours apart yet the families were required to travel every weekend for an 8 hour round trip. No one family ever had a stress free and travel free weekend.
Dr H described the mother at paragraph 51 in her 2011 report:
As noted, I consider these parents to have only marginal or, at best, unmarked normal capacities for parental reflectiveness mentalisation. I therefore consider it unlikely either parent will be able to consistently respond with accurate empathy to a child grieving a severed attachment – being severed from his grandmother – particularly if the lost tie was to an adult whom that parent considers unworthy rival for the child’s affection.
For the time being, Y relies on Mum and X relies on Nanny to provide the stability and attachment security needed to smoothly navigate the next critical phase of their life: transition to school.
At paragraph 48:
X’s attachment to his mother is more controversial and appears to have been attenuated by separation –
This was a separation the father perpetuated due to his power over the mother. Nowhere in the material in 2011 do I see that fact having been raised.
Dr H noted a closeness with these young children at paragraph 52:
The siblings are fond of each other but are too numerologically immature to provide a safe haven for each other.
That closeness has grown. It is now at the forefront of Dr H’s recommendations in her 2015 report that X move immediately to his mother’s care namely, the strength of the attachment that Y and X have for each other. This strength of attachment and closeness was her primary focus in her recommendation that X live with his mother.
It is remarkable that these children have such a strong bond and attachment given they have lived separately for 4 years.
Dr H was critical of the father at paragraph 38 of her report:
Mr Barber’s complete disavowal of normal parenting difficulties suggests a glib, incurious approach to parenting in general: Mr Barber asking the mother to explain to X at a handover why he could not go to big school, then asking her not to lie to the child when he found her answer unsatisfactory. He appeared not to realise the ill effect on X of putting him in the middle of the parental conflict.
This behaviour by the father continues. Had X been returned to his mother’s care and spent time with his beloved grandmother and father X and Y would not have suffered a separation from each other and their father’s non child-focused behaviours as described above and later in this judgment.
Dr H is now clear:
It would be in the best interest of X and Y to be raised together in the same household. Y and X should live with their mother and visit their father alternate weekends and half holidays.
The mother should exercise sole parental responsibility since there is no prospect these parents could ever communicate well enough to share decision making. Sibling relationship was deemed important enough by the parents to merit weekly contact. It seems no room for controversy that the issue now is to best foster the sibling bond.
At paragraph 43:
The practiced wisdom in the care jurisdiction is not to separate siblings without a compelling reason.
Dr H said the compelling reason in 2011 was X’s attachment to his grandmother and his fragility and possible autism spectrum issues. She noted:
Research indicates sibling relations are particularly important resources for children who have suffered family separations. Siblings who are batted about like ping pong balls tend to do better if they are batted about together. They provide each other with a comforting sense of constancy mid-flux, but are often the only family relationships with which children would behave with integrity and express themselves freely. A child does not have to falsify himself to please a sibling in the way he or see may feel obliged to do with adults.
That is a concern for X. Dr H found him to be a compliant child, very attuned to the needs of adults around him, and that he may act to appease adults.
The father told Dr H that he had the child assessed by a paediatrician – I reject that evidence. I saw no such evidence and he certainly never showed the mother any report nor informed her of any such assessment, nor could he bring the report to court. He did not have the child assessed.
My concern is that the child as he presented in the 2011 report of rigid patterning may perhaps have been due to his separation from his mother by his father’s conduct in not returning the child to the mother when she requested him so to be returned. However as the evidence was not tested one will never know
The father referred in his oral evidence and said to Dr H, in the second report that he had to rebuild X’s trust in his mother. I reject that evidence. If this be the case it is because the father has told the child she abandoned him “at the number one loading dock at (omitted) Plaza”.
He opined to Dr H that he knew “what was best for his son”, at paragraph 20 and that X:
would be disadvantaged if he had to share his mother’s attention with Y and her two other children, W and A, with Mr I. Her family has limited financial resources with three other children.
He also said his partner, Ms B, is going to be a stay-at-home mother and can care for the children along with their child Z. That “the mother will push her feelings onto X, complain and cause problems”.
I fear the father was talking about himself and not the mother. He is the parent who pushes his feelings onto X. He is the parent who complains and causes problems.
Dr H stated:
It is clear that X and Y form a tight bond. It is clear that X is a much-loved member of his mother’s household, and W and A – W in particular – cry when he leaves. The father would be well-served by accepting that his son is a much-loved member of his mother’s household, rather than, as he told me, “going to live down there with people he does not know”.
The mother referred to the father as self-centred and insensitive, and she was correct.
Dr H criticised the mother in the 2015 report at paragraph 15, saying she had underestimated the challenge to X in changing schools mid-year. Her opinion changed in the witness box when she heard of the ring incident and recommended he change his residence to his mother’s home as soon as is possible. Ultimately she agreed with the mother’s position.
Another reason for her change of opinion was that when her recommendations were made known:
…his father will be hostile and rigid, and all flexibility was lost, and he will harangue X.

The Parties Evidence

The father agreed that X is a softly-spoken, gentle boy. He is polite and doing extremely well at school and has very good handwriting. His mother said he does brilliantly at school, and that is a credit to his father and his grandmother. The mother described Y as a different child: more energetic and more impulsive than X.
The mother conceded in cross-examination that X living with her would be a significant change for her child but that it should happen now. That there should be no delay. He had a friend at (omitted) where the mother lives called C. X knows (omitted) well, and that the school is appropriate. The mother said X is a pretty resilient kid, and he will cope with the change. Dr H described him similarly.
The mother understood that X would miss his father, and she said she would facilitate him speaking to his dad any time he wanted, and hopefully seeing him. The mother agreed the parents do not communicate. No matter what they try, it does not work. She hoped it would improve and that if she had X living with her and had sole parental responsibility, the father may accept what she says and listen to her. Dr H said this was a possibility.
The mother was concerned about X’s weight and his teeth. It is clear from the ICL Exhibit 3 that the paediatric dentist observed his teeth had cavities because of poor brushing and drinking sugary drinks. That has happened in his father’s care.
The mother asserts the father did not tell her how unwell his mother was. He did not tell Y about the grandmother’s death. He behaved in this fashion I find because he did not want the mother to know given the consequences for X’s living arrangements.
The mother said Y went for a weekend with her father and was then told her grandmother had died. That Y was extremely upset upon her return as she had not been prepared in any way for her Nanna’s death.
I accept that evidence from the mother. This father did not tell the mother how unwell his mother was or even that she had died. He took no responsibility for the consequences for his children of this decision. He did not prepare his daughter for the eventuality of the death or let the mother know so she could prepare the child. I find he took this non child-focused course of conduct as he knew X continuing to live with him after his mother death meant he was on borrowed time.
He had read Dr H’s report, which, although glowing of his mother, was not glowing of him.
He had read her updated report, which was particularly negative of him as a parent and had recommended X live with his mother.
He said in his oral evidence three or four times and at times in a heated way, “I don’t understand it. Just because his grandmother has died, why does the kid have to change and his whole lives turns upside down?”
The father has not a clue about parenting and what is best for children. It was a cruel thing not to tell the mother how seriously unwell the grandmother was, and this was particularly cruel for Y.
Of real concern are the father’s disgraceful posts on his Facebook page about the mother. These are set out at paragraph 125 of the mother’s affidavit. I will read them out and they are disgusting. 15 February 2015:
This dumb fucking stupid cum-dump scum bucket piece of shit will pay. I promise you I will never forget what you have done to your firstborn child, you flea-infested mutt. Try and brainwash a child – his brain is stronger and more powerful than yours.
On the same day, Ms B his partner commented:
It’s a real shame she’s a mother, considering so many others who can’t would have been amazing parents. We will win this battle. Our big boy deserves the best.
Ms H, on the same day – a friend of the father’s:
He has everything he needs with you guys. She needs to crawl back in the hole she came from.
The same day, a person called Ms L commented:
No point putting it on Facebook. You should tell her that in person. I’m sure she will get the picture.
Same day, Ms B posted:
Ms L, you have no idea what kind of person she is.
A person called Ms J posted:
X is such clever, curious, generous little guy, full of wonder, emotion, devotion and care. The boy is such a gentle giant, little giant, that wouldn’t step on an ant. He’s one of a kind. He’s so lucky he has a dad that works so bloody hard, maybe not physically, but in time, going to different places, fixing minor to major issues, dealing with morons, junkies, thieves and generally bad people, travelling, which takes a mental and emotional toll. He deserves the best. Unfortunately, he doesn’t have that with his mother. I used to think she was a good person, but anything who’s done what she has to Mr Barber, what she’s done to Y and how she’s trying to corrupt one of the purest souls on earth doesn’t deserve to be a parent, doesn’t deserve to know children, especially amazing ones.
Ms B the father’s partner, posted on the same day:
Well said, Ms J.
This is consistent with the children’s complaints to their mother that their father calls their mother horrible names. The father denied this or that he calls the mother bad names in their presence. His explanation for this disgusting and disgraceful behaviour was he was letting off steam. Facebook is his way of venting.
This venting came about because the father was asked to do a drug test by the Independent Children’s Lawyer, not the mother, to prove a negative, that he was clean. Yet the father blames the mother.
On Tuesday, 17 February 2015 he posts:
Sitting back waiting to be drug tested. Well, fuck. Apparently, I’m some sort of massive junky. Full chain of custody required. This will just prove you’re a shit-talking mud again. LOL.
Ms B commented on the same day:
This will prove her wrong yet again. She’s trying absolutely any card to take X.
Ms B replied on the same day:
We have guns blazing. She’s saying and doing anything to gain X and make Mr Barber look like a really bad person. She’s only undoing herself. And most definitely some women aren’t meant to have such a blessing.
At paragraph 23 of the father’s affidavit he gives his reasons for these disgusting posts:
The Court order to take drug tests came in at a time when I was increasingly upset about Mum’s decline, tried to carry on as normal. Whilst I saw the Court ordered drug test as a good chance to prove myself, it still upset me as being unfair.
I was just letting off steam to my friends with those posts on Facebook. Ms Baxter’s blocked from my account. They cannot be characterised as a threat to her.

The father is wrong. These messages were published by him and are clearly a threat.
Naturally, my friends are aware Ms Baxter’s main application for X to live with her. It does make me wonder what lengths Ms Baxter will go in an effort to have X live with her.
It is sad that the father so misreads facts and reality.
When Ms B was cross-examined on the Facebook page comments her evidence was disturbing.
When questioned about her words “blessing” she was very honest in her evidence. She said, “She doesn’t deserve to be a mother. Children are a gift. Because she gave up her son and abandoned him”. I asked her how she knew this. She said because she read the text messages from the mother to the father. From those messages she formed a view that the mother abandoned X.
This is a wrong view. The mother was prevented from having X restored to her care by the father’s actions and no one else’s actions.
Ms B’s words on Facebook “She will have a bitter taste in her mouth when it comes back negative. She’s undoing herself” were prophetic. However it was she and the father who were undone not the mother.
The paternal grandmother passed away on 5 March 2015, a very sad event for everyone. The father did not ring or tell the mother of this significant event for their children, even though he knew Y was coming up that very weekend to see him and the grandmother.
In his defence the father has handled dealing with his grief and the children’s grief well. He has told the children Nanna is a bright star in the sky and to pray to her if they are sad. This technique has worked well for the children.
Both children said what their daddy told them has helped them. This was put to Ms H as a capacity the father had to be empathic with his children. Dr H disagreed. She said although this is an example of empathy, he was only able to implement such a strategy because he felt the same way. If he felt the same as the child, he could be empathic, but he had no capacity to know how a child was feeling or see matters from another person’s point of view and thus had little or no empathic capacity unless he also felt the same. This deficit became clear again and again in his evidence.
Y is seeing a private counsellor, about her Nanny’s death, as well as the treatment she received from Ms B and the father in June 2015, to which I will later refer. The mother said Y said she had some things she wanted to talk to the school counsellor about. She did not want to tell her mum, because she did not want her mum to cry. The mother was crying when giving this evidence. The mother proactively took these steps.
The father made significant complaint about the second interview process with Dr H. It took place a couple of weeks after his mum died and he believed it should have been delayed in the circumstances.
Ms B her dad and I were placed in a secure room with a locked door, which we couldn’t leave without pressing a buzzer. She spent about five minutes in the room with us and the kids and tried to convince me we weren’t in the room for any other reason and that it was a new room. I got the impression we were put there because Dad had been excused but attended, and Ms Baxter probably made out like she was scared to be around me. We all felt intimidated in these surroundings. Dad and I spoke with Dr H in her office for approximately 45 minutes. Ms B saw her for 30 minutes. I was surprised Dr H didn’t spend any time with us and the kids together, given I’d had a report before. I know Ms Baxter, Mr I, their kids together and X and Y spent a lot longer with Dr H in an open location with toys and other things for the children to do.
The father is convinced he was unfairly treated. His naturally defensive behaviour rises to the fore, as it does on each occasion he is challenged and does not agree with what another has been put to him. This is part of his personality style.
The father complained in paragraph 29 about Ms Volk, the ICL. He asserted she had met Y three times and X not once. That view is just wrong. Ms Volk has as always acted impeccably and in a professional manner. Ms Volk has met each child once when their parents each brought them to meet with her.
The father complained the mother was sitting in Ms Volk’s office with her head against the glass in an attempt, I assume, to hear what X was saying to Ms Volk. When X returned to his father after seeing Ms Volk his father said to him “Did you get to tell her what you wanted” and the child said “No, Mum was there”.
The father believes that the presence of the mother in the waiting room was sufficient for the child to be inhibited in his discussions with his lawyer. I reject the father’s complaints entirely. They are a consequence of his defensive personality style for he could never accept his son may want to live with his mother and sister unless there was something improper going on.
At paragraph 30 he complains:
As outlined above, Ms Baxter has consistently acted to undermine my relationship with Y.
I could find no specific examples of this alleged undermining in the material, just this incorrect statement.
The ring incident.
Y had told her mother that she had been playing with some jewellery including a ring on Ms B’s bed and that she had lost a ring. The mother said she had no idea that this was a valuable ring or the event was so meaningful. The father had not raised this matter with her and she did not really make much of it, because the father had not contacted her.
What had occurred on the father’s evidence and Ms B’s evidence is set out at paragraph 28 and continuing of the father’s affidavit.
This is what the father says:
On 18 May 2015 Ms B noticed some jewellery was missing from her jewellery box. After a complete search of the house we managed to locate some of the missing jewellery in Y’s bedroom behind a bookshelf. However, we were still missing three items, being 55-centimetre gold necklace, a gold (omitted) coin in a spindle and an 18-carat-gold ring. This ring was an heirloom given to Ms B by her grandmother, who’d recently passed away, and was very meaningful to her. On 19 May I checked the house and asked X if Ms B had any hiding spots. He said either behind the bookshelf or under the bed. X and Y share a bedroom.
The father asked X if he had seen the missing items of jewellery. The father said X said “I saw Y playing with the ring and thought she took it home.”
For inexplicable reasons the father did not contact the mother on this important issue. At paragraph 34 he says:
I decided to wait for Y’s next visit and ask her about the missing items. 29 May 2015 she came for her next visit. I asked her on the drive home if she knew anything about them. She said “I was playing with them, took some home”. I said “That’s naughty. You should ask before taking something. You need to bring them back”. “Okay, Daddy. I know where they are. They are in my jewellery box. I have three jewellery boxes.”
The father then makes what I regard as an extraordinary comment.
As Y was worried she’d get into trouble, I then said “You don’t need to tell Mum”.
The father encouraged his daughter to keep a secret from her mother on an important issue. When pressed on the poor outcome of such behaviour for his daughter, the father saw nothing wrong with his approach and likely to this day does not see anything wrong with it. This behaviour is contra indicated to sharing parental responsibility.
Still the father did not contact the mother. He stated:
On her next visit on 12 June I said “Y, did you remember to bring the jewellery back?” “No, Daddy. I forgot.” I said “Don’t worry. I will sort something out”. She looked upset. I said she wasn’t in trouble as long as you tell the truth.
The father maintained this fiction that Y was worried and upset, looking troubled, because she thought she would get into trouble from her mother. Why would she get into trouble from her mother for something the father had not bothered to tell the mother about and an incident that happened in his home not the mother’s home?
I accept Y was troubled and upset, because she was worried about getting into trouble from her father and Ms B and as events unfolded her fears were justified.
The father said:
Ms B and I decided the easiest way to resolve this was to travel to (omitted) and collect the items. I informed Ms Baxter by text I’d bring her all the way home.
The father had not once advised the mother why he was taking this unusual step of returning the child home.
The mother said “I thought this was unusual, but I was happy”.
The father’s version of events continues. He says he politely, speaks to the mother about the missing jewellery and the ring in particular.
He asserts the mother yells at him and that the child is upset. Y is crying because she can see her mother is getting angry. Mr I comes out. He is angry. The mother tells the father to fuck off and “She lost the fucking thing at your place”.
The father says he tells the mother to settle down and relax.
The father and Ms B’s version of this appalling incident is a fiction and I prefer the mother and Mr I’s description of what occurred.
The mother says she is in the front yard. The father’s car drives up. Y leaps out of the car and is crying and upset. The mother is in the front yard, not knowing what is happening. She follows Y up the stairs to check on her. The father and Ms B follow her and as she reaches the top of the stairs they both attack her verbally as set out in paragraph 154:
At approximately 4.30 on this day, Mr Barber’s car pulled up outside my house across my driveway. Both he and Ms B got out of the car with Y. As Ms B rarely attends changeover and Mr Barber is usually on time or late rather than early, I found it unusual. Both Mr Barber and Ms B came to my front door with Y, who was crying. I opened the front door.
The mother recanted that she was at the door and recalled she was on the lawn however nothing turns on that minor error.
Before I even had a chance to ask Y what was wrong, Mr Barber screamed at me, “Where's Ms B’s ring that Y has stolen? I know it’s here.” He was angry. He screamed and Ms B looked angry. Y started crying hysterically as Mr Barber was yelling at me. I had been made aware that Mr Barber and Ms B had previously accused Y of stealing Ms B’s ring and that that accusation went back as far as December 2014
The mother had only known of these accusations a few weeks before this incident. The mother said:
Look, please, can everyone calm down? It’s not good for anyone, especially Y. You’re welcome to come inside and search her room, if you like.
The mother said they refused her invitation:
We don’t need to come to the house. We know she has got the ring. Just fucking give it back.
The father said no such offer was made. I accept that offer was made. The mother would have wanted to deal with this situation when she found out how meaningful it was to Ms B and the father.
Y managed to say, “I promise I didn’t take Ms B’s ring. I don’t have it.” Mr I came to the door and said, “This isn’t helping. Calm down. We’ve told you she doesn’t have it and since you won’t come inside, I think it’s best you leave.”
I accept that the father put his fists up to Mr I. Fortunately, since Mr I was at home, the father backed away.
I accept what the mother says, that the father and Ms B parked the mother in so she could not get out of her drive to go to work, that she was late for work.
It is a fact that the father and Ms B drove to (omitted) Police Station to report the theft of the ring in particular by Y.
The father’s story is a fiction. He and Ms B attended the mother’s home without warning as to why they were so doing, behaved in this angry, furious, scary manner in front of Y and the mother’s children and when they did not achieve their end reported the matter to police namely the theft of a ring by the father’s 8 year old daughter.
This action in reporting the matter to Police is the action of furiously angry adults, not calm polite child-focused adults. Only the events as described by the mother and Mr I make any sense.
The father and Ms B created an unnecessary scene of family violence in front of a child. They came upon the mother without warning and she had no idea the importance of this issue as the father had not had the common decency to inform her of the seriousness to Ms B of this missing ring as I accept it is most important to her. The father has no one but himself to blame for the consequences of his actions on that day.
A cold wind blew when Ms B gave her evidence.
Ms B agreed with her posts on the father’s Facebook page and I have formed the view that she calls the mother “a bitch”. That is exactly what she thinks of her and she agreed that is what she thinks of her. Although Ms B agreed that X was an empathic child and was attuned to his father’s emotional state and his father’s views, when asked “do you think it would bother X if he overheard you calling his mother a bitch”, she said “I do not think so. I do not think it bothers X that I have this view of his mother”.
This shows a startling lack of insight.
Ms B formed the view that Y had lost a ring or taken a ring because she was playing with it. Ms B never viewed her playing with it. Her view was formed by what the father told her and his view by what X told him.
No adult observed this child playing with Ms B’s ring or any of her other jewellery. It has all come about by what the father says the child said.
I find Ms B has treated Y most cruelly and with not one ounce of child-focused parenting or compassion.
Ms B made a most sinister comment. When pressed on why she believed this little girl had taken her jewellery, she said:
The mother has been filling her head with rubbish when she comes to us. This is just more of it.
I take from that Ms B believes the mother put the child up to this behaviour in some way. This is a most warped view of a mother who I find is competent, capable, caring and very child-focused. A mother who lives in a loving, stable, supportive relationship with her husband and who has much to offer her children. A woman who has moved on from her traumatic past - something the father is yet to do. At paragraph 17, Ms B wrote:
On 29 May 2015 Y came for her weekend with us. When Mr Barber and Y arrived, I asked Mr Barber if he had spoken to Y about the jewellery. Mr Barber said Y was playing with them and has them in her jewellery in (omitted). Do not worry, we will get them back.
Ms B agreed she was upset. She was angry. So angry she reported the theft to the police of something she had not observed or seen. She denied screaming at the mother. Ms B wanted the police to talk to this eight-year old child about this incident.
Ms B said it was a good idea to send the police around to the mother’s home to speak to the eight year old child as this teaches Y punishments do not go unnoticed.
Ms B’s cold, calculating demeanour and words were confronting.
She says, “we decided Y was not welcome. Well, it is better she did not come as a punishment.”
Ms B was asked if Y’s punishment has gone on long enough. She was not sure. In time she might be able to forgive her. If she came to her home how would she treat her? She would say hello to her, otherwise she would ignore her.
She said, “I am unable to tell the Court if I can return to the same relationship with Y, I had prior to this incident.”
When it was put to the witness that because the ring was found in the bedroom that X and Y share, that X could have taken it she said:
He never touches things that are not his. He would not do that.
X can do no wrong for those people because he is compliant and appeases them. Y is the scapegoat for any behaviour that they do not like.
Ms B would not admit that saying that Y stole her ring was unfair on the evidence as it was presented and confirmed again and again X would not do it. Ms B said it was wrong to say she did not like Y but it was clear to me she is unforgiving of the child .
During this evidence the father was shaking his head and I saw him mouth the words “for fucks sake” and failing at any time to see this matter from the children’s point of view.
During submissions by the Independent Children’s Lawyer, the father clicked and guffawed, again in an immature boyish way.
Mr Anderson asked this question:
Do you think Y will ever recover from being excluded from your home because she was a thief in your eyes?
Ms B could not answer that question and there was no solution to resolve it, or a show of forgiveness.
What has been the father’s reaction to this incident? He has sided with his partner over his daughter. The father has blamed the current difficulties he and the mother have in their relationship upon this little girl. Y is the scapegoat for the father and Ms B’s significant deficits as adults and parents.
Ms B sees Y as the same as the mother and Ms B has a most negative view of the mother. Ms B has no understanding, no empathy and no affection for the child. It is an intolerable position the child has been placed in. It is no wonder she has not seen the father and it is no wonder she feels happier not seeing her father.
Dr H opined that Y may well be happier as the mother reports in not seeing her father as she will be out of the conflict.
The reality is the father created a scene and a significant rift is his all-important relationship with his only daughter. A concern is that he and his daughter’s relationship has been seriously compromised, and it may never be retrieved.
Dr H was horrified how this was handled by the father and Ms B. Ms B’s chilling evidence, that to deny a child a relationship with her much loved father is an appropriate form of punishment for a crime that you are not even sure they have committed was confronting.
Although pushed to recant or soften her stance she did not resile from her position. She showed no remorse. She showed no understanding of the position from the child’s point of view and believes the mother had been putting Y up to behave in this fashion.
The police came to the mother’s home the next day due to the report made by the father and Ms B. It was put to both the father and Ms B, “Did you want the child arrested?” Each said no. They were each asked, what was the purpose of reporting the matter to police? Ms B said:
So she knew there were consequences for doing the wrong thing.
However, the father and Ms B had given reasons why they were not seeing Y in their affidavits. They said it was because each time they had seen Y, the mother blew up an event and it turned into a mega event. On the evidence only the father and Ms B have created mega events and they would each do well to reflect upon their sole culpability in this poor outcome for Y.
This written evidence is not consistent with the oral evidence. Y is not seeing her father as a form of punishment. As Dr H asked, “how you can compare the loss of a ring to the loss of a daughter”. However the father has.
The mother says:
I believe I am able to provide for both X and Y’s emotional and psychological needs. Unfortunately, I do not believe Mr Barber is sensitive enough to the children’s emotional and psychological needs, particularly with his and Ms B’s recent behaviour towards Y.
I could not have phrased this concerning issue in a better fashion. The mother is totally in tune with the emotional needs of her children and the consequences for them of poor adult behaviours.
The ICL submitted that Y is the discarded child or the scapegoat. The only way these children can have a relationship with both their parents is if they live with their mother, and the father, to his credit, has conceded that.
The question for me is timing. I prefer Dr H and the mother’s position to the father’s. It will happen forthwith for the following reasons.
X is living in a poisonous household insofar as it relates to his mother. There is not one positive thing the father can say about the mother. He has no capacity to listen to any matter the mother raises in a child focused way and instantly defends his position. For example, the mother was concerned about the child’s weight. The father put in place a very good plan of action. He structured meals, limited sugary drinks and lollies, put the eating plan for the week on the fridge and followed it. I told him this was impressive.

However, he used his impressive actions as an example of the mother imposing her beliefs on him, telling him what to do and he as he always does, acquiescing. This event is an example of good co-parenting. The father had not seen this other way of looking at the facts and when I told him that was how I saw the matter he said:
I never thought about it like that.
The father has no capacity to co-parent with the mother. If the mother suggests anything, he thinks she is getting at him, trying to get the child back or, in some way, demeaning him when she is not.
The father’s lack of financial support for his children is confronting. He sat in the witness box and told me how well his business was doing and to use his words “very, very well”. He is looking at purchasing some investment properties in the future. That he inherited his mother’s share of the business and it is now his. That he could pay for a private school boarding education for his son at somewhere like Kings at a cost of a minimum of $30,000 per annum. He was justifiably proud of his business success.
Mother’s Exhibit 1, relevant child support documents show she pays the father $14 a week on her limited income. That his income is only $47,000 a year, and for 2015/2016, $7,000 per year. That evidence is inconsistent with the father’s successful business and capacity to provide for a private school education for his son. I prefer his oral evidence to documents lodged with the Child Support Agency.
The father has failed to support Y to the best of his ability in her mother’s home and only X has received the benefit of the father’s income earning capacity.
One of the mother’s concerns is that X does not have a great social life outside of school and that he has only been to one party. Ms B and the father scoffed at this and said, “He has been to at least four.” He is now in third grade. That is a very limited number of parties to have attended.
The father blamed the week about contact for this lack of attending birthday parties, which may be fair. However he said “I couldn’t do it because the mother wouldn’t let me”. He has never asked the mother if the child could attend a birthday party not once. Why has X missed out? Due to his father’s inability to communicate with the mother and put his child’s needs before his own.
Both Ms B and the father repeated that they would not be seeing Y until this was all over. They will not be seeing Y until the mother believes it is appropriate.
Happily there is an agreement for Y and X to attend their brother Z’s name day in the company of a trusted cousin and I will so order.
The mother asserts the father was violent towards her during the relationship. The father denies any such behaviour citing repeatedly the assault charge that was thrown out of court when the mother asserted he attacked her with an iron bar. The father repeated that the magistrate said the mother had fabricated the story and she was not to be believed.
The father is a large man, he has a temper, he cannot control himself and I observed this in the witness box. He has an extremely negative view of the children’s mother and I accept he treated the mother poorly during the relationship and that she was fearful of him. He treats her in this fashion now, ably assisted by Ms B.
The mother is paying on her limited income $20 towards counselling for her daughter, while the father brags about how well his business is doing and receives $14 child support a week from the mother. The mother said she suggested to the father that X see a counsellor, as she knew he was struggling with his grandmother’s death. The father would not agree to that.
The mother and Mr I share the care of the children. The mother works part-time, at night, in the afternoon, sometimes in the day. Mr I cares for the children on those occasions. I formed the view, and the father agreed, Mr I is a kind gentleman who treats the children well.
The father was asked:
Why didn’t you text the mother about the lost ring?
The father answered this:
Because Y did not want to get into trouble with her mother…
Because when she came back I would hear something about it. I’d get a letter or something by her solicitor.
I reject that answer completely. The father’s focus was on his needs not the best way to approach this difficult situation.
When he was asked why he went to the police, he said he wanted to get to the truth. He wanted to know what happened. That is not the way to approach an eight-year-old child.
When it was put to him that the mother has searched her home and Y’s room and has not found the jewellery he said that even if the mother found the jewellery, she would not give it back.
The father’s reason for his Facebook posts were that his mother was dying, he was stressed, he felt terrible. I do not accept that is the whole truth other than the distress he was going through with his mother’s dying. This was an opportunity for him to run the mother down, and he said what he thinks of her. He believes she abandoned X, puts Y up to activities such as stealing Ms B’s jewellery and turns any event into a mega event. The father regards the mother as worthless and this view is shared by Ms B.
The father said:
I have rebuilt X’s relationship with his mother since 2011. It was a damaged relationship in 2011, and my relationship with Y is being systematically destroyed.
That is simply incorrect. The damage to his and Y’s relationship is solely his making.
The father said that the mother happily told him he has no relationship with Y. That is incorrect. The mother is heartbroken that the child is not seeing the father. The mother has tried every avenue to have the father come to his senses and look at the matter from Y’s point of view. The mother is desirous of the father and Y spending time together. It is the father who will not come to the party.
When asked how would he approach Y if they spent time together he said he would just forget about it and have fun and not talk about it. Dr H said that is one of the worst ways in which a parent could deal with this serious issue.
In her opinion when such an issue has arisen, when you have been accused of such a serious event as Y has been, where your father’s partner has treated you as a non-existent person and effectively ignored you as a punishment, a child would want acknowledgement that things have happened, it has been understood and it has now been put into the background and forgotten. It must be talked about. The father has little insight into how to deal with these sensitive matters.
The father denied that his son would pick up his negative behaviours and attitudes towards his mother. Of course, he would. X is highly attuned to his father’s emotional state. He is a child who is highly attuned to the needs of adults in his life as Dr H reported. He said, paragraph 27:
He said he can read Dad’s mind, when his father is thinking about Nanny, even when he’s talking on the phone.
It would be impossible for this man to protect anyone from his feelings, because if he feels it, it comes out. He has very poor impulse control.
The father did not think his children had such a close relationship because they have lived apart for years. X has only told his dad once or twice that he missed his sister.
The difficulty for me in giving this evidence any weight is that X would not tell his father what he really thought unless he knew his father agreed with his thoughts because only then is his father interested in hearing it. His father only accepts what X says if he and X are in agreement on an issue. The evidence to support this finding came from the father’s oral evidence for example.
The father was asked countless times in cross-examination “Didn’t you read what X said about missing Y?” His answer was “the mother put him up to it”. However, the father is quite happy to put in his affidavit the comment he asserts X made after seeing the ICL that he could not tell her what he wanted to say because his mother was there.
He chooses sometimes to accept the child’s statement and at other times reject it. I make a finding if he accepts what X says, that is because it accords with his view. If he rejects what X says it is because it does not accord with his view. This is a most unhealthy environment for an intelligent child to live in.
The father’s evidence was that the only benefit he could see for the children being together was they would live in the same house. X was not ready to move. He still had trust issues with his mother. Y still thinks she will get into trouble from her mother about the ring. He did not think them being apart is doing them damage. The father’s lack of insight and understanding of his children’s needs is profound.
When he was asked about paragraph 33 of the family report where X said he misses Y the most the father answered:
I felt the family report process was unfair. Less time with the kids, more for us and the mother. She didn’t see me and Ms B as a unit. X would never say he missed Y the most.
I accept X would never say this to his dad. He would know that such a feeling would upset his father terribly, as it obviously did.
The father was asked “Well, if X did say this, what do you think he meant?” The father had no idea. “Is it possible Y is very important to him?” His answer, “Possibly. She is his sister.”
It was apparent to me that the father and in particular Ms B were of the view that as X is such a well behaved, compliant child doing so well at school and this was a reflection of their superb parenting. Y is a different child and that the difference in Y they put down to poor parenting by the mother.
The reality is far different. X is a well-behaved child performing very well at school and in no doubt in great measure due to parenting by the grandmother and his initial attachment to his mother which parenting has been continued by the father to his credit.
However, what the father must realise is X is compliant and quiet and wishes to please adults and thus he may not feel he is able to express himself to his father when he knows the position he may take is contrary to his father’s position. It is as clear as night follows day that the father only accepts comments from his children, or anyone else for that matter, which accord with his view. If they do not accord with his world view, then he disputes the veracity of the statement.
The father said he did a parenting course after the first report and the consent orders were made and he was asked what he learnt. He responded to concede his ground, see that the other party may be upset as well and they may not see things as you do. This is all great insight. The difficulty I saw was the limited capacity the father demonstrated to put it into practice what he had learned. Even when he did, for example, changing X’s diet, he saw that as the mother overbearing on him rather than he and the mother co-parenting for the benefit of their child.
When asked what he had been able to put that into practice he said:
I think what I think is of no relevance to her and I just give way and that way we all get on.
This is a completely inaccurate assessment of the parental relationship. It is the father who overbears on the mother. That is why X is in his care. He overbore on her and would not return the child to her care.
The father was very glib when it was put to him that he used physical force on the mother during the relationship. He answered:
Yes, she has but she has not proven that once.
That is not the issue for this court. I do not have to find, as the criminal courts do, beyond reasonable doubt that one person has been physically violent to another. I find that the father has been physical and physically rough with the mother in the presence of or hearing of the children. I accept the mother’s statement that she never feared that he would do so to the children. It was only to her.
To this day the mere sight of the mother or a view she holds, enrages the father which enragement I observed in the witness box on several occasions. I could not see this man ever saying to this lady, “Yes, I think you are right on that one. Yes, I am glad you told me that.” Instantly the mother raises anything with him his defences come up, he believes he is being in some way maligned as a father or a man and he comes out, from his corner, fighting.
The father denies the mother asked for the child to return. That is a fiction he made up or perhaps he believes it now after the time that has gone. The very proceedings that resulted in the family report, which put forward the proposition X was better living with his grandmother than his mother and his sister, was because the mother wanted the child returned. The father’s arguments are simply not accepted by me.
I accept that the mother was too scared to argue with the father and she is still scared of the father and that he would have used words such as, “I have got him now. You play by my rules or you do not see him.” That is the type of behaviour the father would engage in.
I accept that in 2010, when there was a dispute about the child returning to the grandmother that the father called her a “dirty slut”. They are the words used in his disgusting posts on Facebook:
Oh, these dumb fucking stupid com dump scum bucket piece of shit will pay. I promise you I will never forget what you have done to your first born child. You flea-infested mutt.
The father’s behaviour at the police with Constable (omitted) in 2011 was a disgrace. He would do well to take heed of the correct version of events rather than the picture he has painted. These events are the aftermath of the failed assault charges when she alleged the father came at her with an iron bar in the presence of Y.
After the charges were dismissed the father made a complaint about his treatment at the hands of the police during the incident in 2011. On 15 December 2011, he entered the (omitted) Police Station to make his complaint. He says he was told, by the young desk sergeant, he would get someone and the very person who came to speak to him was Senior Constable (omitted), the very Officer the father was making a complaint of. The father says Senior Constable (omitted) told him he could not make a complaint and to leave. The father said he and the Senior Constable exchanged words and he ultimately left.
The father may think that is how he behaved but he did not. He came to the Police station in much the same manner and mood as he stormed into the mother’s home in June 2015 as an avenging angel ready to address what he regarded as a significant wrong against him. He was angry. He was aggressive and I accept the version set out in the COPS entry that he was yelling, out of control and capsicum spray was used to calm him down and that he was ejected from the Police station.
Either the father does not realise the impact of his aggressive, overbearing behaviour on people at times or he is lying. Whatever the reality is, he would do well to read the police entry and realise that this is how he came across at that time to the police and that this event supports the mother’s version of his behaviour towards her during their relationship, post their relationship and continuing. He can be frightening, aggressive and over bearing at times.
The father admitted when he gets frustrated he says things he regrets. However there was always a “but”. I said at one point “there it is, the ‘but’ again”. Never once did the father wholly accept responsibility for the consequences upon others of his behaviour.
I have no doubt the death of this mother was very stressful and it was a long illness. I have no doubt these court proceedings are stressful. However, they are also stressful for the mother yet she does not behave in this fashion.
He was angry about Dr H’s report. He said:
I have read the report. They cannot be about the same family. It is a total change just because my mum died.
What the father had not read in the report was that he was the least able adult in that family dynamic to care for the children. That Dr H was dismayed that since the death of the grandmother, the father and not the mother was the primary carer of the child.
This is again an example of the father only taking in the parts of the report that suited him, that accorded with his world view and that supported him. This is a significant deficit the father has as a functioning adult and this will engender poor parenting.
The father maintained that his son was not ready to live with his mother. That he does not trust her. He is 80 per cent ready. He will be soon but he is not ready. That is not the boy described in the family report. The boy described in the family report is well and truly ready to live with his mother if for no other reason than his sister is there as well as are his other brothers and sisters. He misses his sister Y the most, more than his grandmother who Dr H he had a strong attachment to.
The father made an extraordinary comment to the Independent Children’s Lawyer. He said he generally handles stress and pressure well. That was not my observation of this man in the witness box. He does not handle those matters well, particularly when challenged he rises to the defence. This is in stark contrast to the mother’s calm, reflective and insightful demeanour.
One sadness for the father, which I accept, was that he is sincere in his desire to have personal counselling as he knows he does not function as well as he should. He had not done this because he was concerned that those counselling notes would be subpoenaed used in the Court and would go against him. This is a sadness that many people in litigation suffer from and is reflection of at least two things.
First, the father needs to protect himself at all costs, including over his children’s best interest and secondly, is a reflection of a lack of understanding of how court proceedings concerning children work.
The parent who acknowledges deficits and faults in their functioning as an adult and then seeks to redress those deficits is the parent who exhibits behaviours that could form the basis by the Court of a finding that they are the parent best able to care for children because they have insight, they are reflective or to use Dr H’s words, “they are empathic”. Unfortunately, the father totally missed the boat and has denied himself, for no good reason, therapeutic intervention which he will benefit from as I accept he is seriously desirous of undertaking therapeutic intervention.
Had the father handled the missing jewellery differently, the fracturing of the child-parent relationship may not have occurred. Had the father contacted the mother in a courteous polite fashion to say, “Look, we have some jewellery missing? Y has told me she was playing with it and lost it. Have you any suggestion about how we can deal with situation?” Had he made the mother aware of the importance of this jewellery to Ms B, matters may have taken a different course.
Neither he nor Ms B would admit reporting the matter to police was a serious error of judgment and to be regretted. The father said when asked if this had affected Y:
Well, from what I hear it has not affected her. From what I hear she is happier.
The father justified his attitude to the mother with:
I got pushed into a corner. Accused of locking the kids in a cupboard. Hitting them with a stick.
The father said the mother said to him in June 2015:
Ms Baxter said, “Get off my fucking property”
And:
Mr I responded by shouting from the top of the stairs, “Get off my property. Ms Baxter replied, “I am a great parent” to which I replied, “Yeah, yeah, sure. Keep filling Y’s head with lies and bullshit.” Ms Baxter said, “Like what?” I said, “The school counsellor for one.” Ms Baxter laughed and said, “I tell her what to say to the school counsellor.”
I do not accept this version of events. There is nothing in the father’s affidavit where he says that Ms Baxter told Y to tell the school counsellor that her father locks her in a cupboard. As I pointed out to the father, “Even on your affidavit, sir, that is a lie.”

The father said “X is scared of his mother”. There is not one skerrick of evidence to support this, it is in the father’s mind.
When questioned on why the child would be scared he responded:
She dumped him. She left him at loading dock 1 at (omitted) Plaza because she could not give him the love and affection he needed.
Mr Anderson asked the father if the relationship was going well now with X. The father said that the mother undermines his relationship with Y.
She said my father did naughty things to little girls.
The mother never said those words. There was a report by a school teacher on a mandatory reporting basis of concern that a gentleman was grooming a child as they were walking home from school. The man named was Mr A who is the grandfather. However, X’s grandfather has never walked the child to and from school. The men that have walked X to and from school are his father or his uncle who is the father’s stepbrother, Mr T.
The mother had said, in her evidence and in the witness box that she had no concerns about the grandfather and she believed that the mandatory reporter got the name wrong and that it was Mr T, the stepbrother that was subject of this mandatory reporting and not the grandfather. The father did not hear that only what he wanted to hear.
I will be making the orders sought by the Independent Children’s Lawyer and the mother, that the father is restrained from leaving the children in the sole care of their paternal uncle, Mr T for the protection of all.
The father said the most important thing for X at this time is stability. That is true for any child but Dr H was clear; he is well able to cope with the change to his mother’s care. He is doing well at school. Any concern she had about him as a small child are no longer in existence and the one parent he should not be living with primarily is his father. On balance, Dr H said:
Whatever order the Court makes, there will be deficits and on balance the deficit if he stays with his father is his relationship with his mother will suffer because of his father’s implacable adverse reaction to anything the mother suggests or the mother at all. His relationship with Y will suffer because the child cannot come into the father’s home, having regard to the attitude, in particular, of Ms B supported by the father to Y and he will be left having to choose loyalties, his mother or his father and this is harmful for a child. Moving to his mother’s care will be a significant change. He will go to a much smaller school. Living with a parent he has not lived full time for many, many years, some six or seven years and that would be an adjustment and he will grieve the loss of his father, there is no doubt but on balance that is the least worst option.
The worst option is him remaining in his father’s care because of the negativity he receives from his father and from Ms B about his mother and now his sister Y, the person he misses the most.
The father’s response to this was:
He is happy and settled. He is doing fine. He is coping. He does not need a massive change and sending him to a family he barely knows.
The father barely knows the mother’s family as he chooses to barely know them. X knows them extremely well. He spoke about this family to Dr H about his little brother and sister, W. They know him well. W pines for him. Cries when he leaves. For the father to suggest that X does not know this family is the father projecting onto his son his position.
The father rejected, absolutely, that Y said, at paragraph 29 of the report:
X misses us a lot. W misses him. She cries and asks and asks for him. Y said she wanted X to come live with her and X had said he wanted to stay for three to four nights, not just two nights.
The reason he rejected that Y spoke these words is that at his home they were ready to kill each other at the end of the holidays. Clearly this is not how it is in the mother’s household.
Again he could not accept Y’s words as they did not accord with his world view.
At paragraph 33, X’s comment:
I miss Y the most.
The father said, “I read right over the comment”. This is not unexpected as it does not suit his world view.
That:
My mother was the only mother figure he has known.
That is incorrect. X has his own mother and he knows her as his mother.
The father accepted every single thing X said in paragraph 33 being:
Nanny had been sick for two years. It was better with dad when nanny was sick. Daddy helped him with his sadness, the bright start thing. He missed his grandmother.
He agreed with everything in that paragraph except for, “I missed Y the most”. A further example of the father cherry picking what suits him.
The father made a comment which ties in with Dr H’s evidence. He said X was doing better since this report was completed. Paragraph 34 of Dr H report:
In the context of a general decision about upcoming weekends X said, “This way is good. I just want things to be the same.” He looked nervous before he began speaking then seemed relieved as though he had been bursting to say his piece.
Dr H said she meant by that comment that the child could well have been coached. She said this comment had an air of coaching about it and it was as if he wanted to get it off his chest and get it out.
If that be true it would tie in with X doing better since the report is done because he has got it off his chest. It could also be that he does want things to stay the same.
X had a huge amount of pressure on him at that family report interview. Who would have put the pressure on him? Only his father. I prefer Dr H’s opinion on this issue.
Mr Anderson asked:
Well, if X wants to live with his sister the most and misses her the most, why should not he be able to?
Answer:
I can give him more attention than they can. I only work four hours a day. We are only here because my mother died. It is all lies. I am not guilty of any of it.
Nothing in the answer about his son or his needs.
If X requested a change at a suitable time I would listen to him.
The father says that time is December 2015. The father does not accept he is resilient enough to deal with the change mid-term.
At paragraph 41:
At interview X was observed to behave pro-socially, engaged with others. In terms of reading this for changed criteria the Court determined it was suitable for X to return to his mother’s care. It seems he has reached the developmental milestones which indicates sufficient resilience to cope.
Dr H, in her oral evidence, said he must return to his mother’s care forthwith. Not should; must:
His greatest vulnerability was the upheaval of schools and change is always disruptive. On the other hand, if the Court were to determine that X should not return to live with his mother until the end of the 2015 school year, the intervening period could be excruciating for X if he were exposed to his father’s displeasure about court orders on a daily basis. X is an amiable child who tries to appease others. He would suffer terrible loyalty conflicts.
I formed the view that the father has no capacity to protect his child from his displeasure at the entirety of these court proceedings for no matter what orders were put forward by his able legal team, the father’s view is clear, he is only here because his mother died and there is no reason to change this boy’s care arrangements because of that fact.
The father sees it purely and simply as that. He cannot see anything from the child’s point of view. He does not accept he misses Y the most. He does not accept he has a good, strong, committed, trusting relationship with his mother. The father cannot see any of this and so from his point of view, his son is going to suffer if he leaves his care.
The father has agreed for the child for the child to transition to the mother’s care. It is a question of timing.
The issue for me first to determine is whether I rebut the presumption of equal shared parental responsibility.
I must rebut it if I am to make an order in these children’s best interests.
The father has a dismissive and pejorative view of the mother which is expressed in his disgusting posts as late as February this year. Nothing she says he accepts. She is of no value as a parent, as a woman or a mother. She puts rubbish into her daughter’s head. Abandoned her son.
The father cannot communicate with the mother. He chooses not to communicate with the mother and even on the odd occasion when there is cooperation he believes this is the mother overbearing on him and getting her way.
I will not ask this mother to have to deal with the father and be subjected to his angry outbursts and juvenile behaviours on important issues for the children.
Looking at the principles in MRR v GR[1] it is not practical, realistic nor in the children’s best interests that this important duty be shared.
[1] [2010] HCA 4.
I find that the father has perpetrated family violence on the mother by his coercive, threatening, controlling behaviour and his complete dismissal of her as an important person in these children’s lives which is further reason to rebut the presumption as set out in paragraphs 51, 54, 60, 145, 152, 194, 249, 283, 284 and 288.
Having so rebutted the presumption I need not determine whether there be an order for equal time or significant and substantial time.
X does benefit from a meaningful relationship with each of his parents. However, his father’s functioning is impaired and Ms B, his partner, does not assist in that functioning. They have a view that their way is the only way, their way is the right way and neither of them are capable of seeing matters from anyone else’s perspective, including the children.
X is an excellent boy doing well but he is compliant. Y may be a different child. The only way X can maintain a relationship with each of his parents and benefit from that relationship is to live with his mother. His mother has the capacity to promote and protect his relationship with his father. His father has no such capacity to do so with his relationship with his mother.
The child has not been exposed to violence as such but he has been exposed to his mother and his mother’s family being run down and treated very poorly by the father and his partner, Ms B.
X’s wishes are clear. He wants to live with his sister. He misses her the most. There is absolutely no reason why those wishes should not be granted and there are many benefits in this. The mother provides a stable, secure home. It is a different home to the father’s. It will be nurturing. It will be just as educationally orientated and he is living with people, mainly his sister who he misses the most in his world.
The mother has the greater insight to provide for the emotional and psychological needs of the children. The father is a significantly impaired parent. He lacks insight and empathy.
The father has the capacity to provide for his children’s educational needs as has the mother.
There is a significant practical difficulty and expense in the children spending time with their father. The parents live 4 hours apart. Alternate weekend time is too onerous for the families and the children with that lengthy travel and I find the time should be each third weekend.
The father has failed to support his children financially to the best of his ability. His prideful evidence that his business is doing “very, very well”, in circumstances where the mother and her husband, on a very modest wage, pay him $14 a week child support was confronting.
I do not know how the mother will ever get any child support from him given he runs a business but that is a matter for her and the agency to determine. I find he has failed significantly in this parental obligation.
The father continues to perpetrate falsehoods that the mother abandoned the child and has told the child this very thing when nothing could be further from the truth. The mother did not abandon the child. The mother sought a break because she was struggling and the father failed to return the child. He was the one who caused this problem, not the mother.
The father’s attitude to parenting is only as he sees it. He cannot see anything from the child’s point of view and, I am concerned that the father’s needs and Ms B’s needs would overwhelm the child’s needs, as they have done in the ring incident with Y.
The only way these children can have a relationship with both their parents is if they live with their mother. The only way X can have a relationship with his sister is if he lives with his mother where his sister lives. If he continues to live with his father these relationships will be much diminished.
Impact of change. I accept Dr H’s opinion that X must go to his mother as soon as is possible. The break in the school year will be of consequence to him however it is the least bad option and the mother and Dr H are confident he will deal with the change. Remaining with his father in a household that is poisoned against his mother and now poisoned against his sister Y, the person he misses the most, is the worst outcome for this boy.
In relation to the orders proposed of no time with the father and Ms B, Dr H wagered it was an imperative that there be a break in time for the children and the father to enable the father to undergo some much needed counselling which he wants to do. Hopefully, he will understand the error of his ways and the damage he has done to his children.
Dr H was clear, to have these children spend time with their father when he still has this attitude towards their mother may further damage their relationships and break the very thing that we are trying to achieve, that is these children being able to have a relationship with each of their parents without feeling a need to choose or to take sides. A break of three months was put forward by the ICL and I will so order.
Ms B will not see these children for nine months. That is a significant period of time but Ms B’s attitude and treatment of Y was particularly of concern and it could easily flow to X when he is no longer parented by her. Ms B believes the mother is an appalling mother, does not deserve these children and if X does not behave in the way Ms B expects him to, she may blame this on the mother and then use X as a scapegoat as she has done with Y and that must not occur.
I see no evidence to support an order that the mother be compelled to undergo therapeutic intervention. I am satisfied if the mother believes that is necessary she will obtain such intervention.
I will make the orders contended for by the Independent Children’s Lawyer and supported by the mother as orders in the children’s best interests for all of the above reasons save that Y will resume time with her father when and in a regime that her mother determines is appropriate.

I certify that the preceding three hundred and sixty (360) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Associate:

Date: 24 September 2015

[2015] FCCA 2628

24 September 2015

Key Legal Topics

Areas of Law

Family Law