Boden and Boden
[2018] FCCA 82
•25 January 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BODEN & BODEN | [2018] FCCA 82 |
| Catchwords: FAMILY LAW – Contested parenting application – three children – two eldest daughters exposed to family violence perpetrated by the father upon the mother – and direct violence from the father – mother has over involved children in separation issues – father does not genuinely accept the youngest child’s diagnosis of Autism – regards the diagnosis as him being “attacked through child support” given the CSA review which concluded that the child had special needs and costs associated with managing Autism and seeing specialists – strong views of older children – eldest child rejecting the father, then the mother and then further rejected the father – capacity of the mother and father – child live with the mother. |
| Legislation: Family Law Act 1975, ss.60CC (2) and (3) – Family Violence |
| Cases cited: Mazorski & Albright [2007] FamCA 520 MRR v GR [2010] HCA 4 |
| Applicant: | MS BODEN |
| Respondent: | MR BODEN |
| File Number: | DNC 188 of 2016 |
| Judgment of: | Judge Willis |
| Hearing dates: | 20 and 21 September 2017 and 27 November 2017 |
| Date of Last Submission: | 27 November 2017 |
| Delivered at: | Cairns |
| Delivered on: | 25 January 2018 |
REPRESENTATION
| Counsel for the Applicant: | Mr Selfridge and the mother self-represented at the re-opening of the trial. |
| Solicitors for the Applicant: | Pippa Colman & Associates Law and the mother self-represented at the re-opening of the trial. |
| Solicitors for the Respondent: | Self-Represented |
| Counsel for the Independent Children's Lawyer: | Mr Andrew |
| Solicitors for the Independent Children's Lawyer: | Samantha Lee Bolton Butler McDermott Lawyers |
ORDERS
That all previous parenting Orders be discharged
Parental Responsibility
That the Mother have sole parental responsibility for making decisions in relation to the long term care, welfare and development in relation to the child, X, born (omitted) 2010 (“the child”).
Living Arrangements
That the child will live with the Mother at all times other than when the child spends time with the Father pursuant to these Orders.
The child will spend time and communicate with the Father as follows:
(a)From afterschool Friday to 5:00 pm Sunday each alternate weekend (extending to Monday in the event that Monday is a non-school day) commencing Friday, 2 February 2018;
(b)The weekend time referred to in Order 4(a) herein will continue to run through the school holidays. There will be no other block time between the father and child unless specifically provided for in these Orders or with the prior written agreement of the mother.
(c)On Wednesday, from afterschool until 6:30 pm on the condition that the time occurs within the child’s locale commencing 7 February 2018.
Special Days
Mother’s Day/Father’s Day
(d)The Mother and Father will swap regular weekends so that the child spends Father’s Day weekend with the Father and the Mother’s Day weekend with the Mother.
Christmas Days/Easter
(e)The child will spend time with the Father on Christmas Day on each even numbered year commencing 2018, from 4:00 pm on Christmas until 10:00 am on Boxing Day;
(f)The child will spend time with the Father at Easter on each even numbered year commencing 2018, from 4:00 pm on Easter Saturday until 10:00 am on Easter Monday.
Child’s birthday
(g)The child’s birthday shall be spent with whichever parent he is to ordinarily be spending time with in accordance with these Orders, unless the parents agree in writing otherwise.
Changeovers
Changeovers specified in these Orders will occur as follows:
(a)By the father collecting X from school on school days.
(b)All other changeovers will occur at the (omitted) Contact Centre. In the event the contact centre is unable to facilitate the changeover for some operational reason, changeover will occur at McDonalds in (omitted) on that occasion only.
(c)The mother is at liberty to nominate another Contact Centre in the event she relocates or the Contact Centre no longer has capacity or cannot accommodate the changeover.
Telephone/Skype/Facetime
That the Father will communicate by telephone/facetime with the child twice each week. The Mother is from time to time, depending on the child’s extracurricular activities, to nominate two set days and times each week for the Father to contact the child.
Whilst the child is with the Father, the child will have telephone/facetime and contact through his ipad with the Mother at any time requested by the child. The father is to do all acts and things to ensure that this contact occurs. In addition the Mother will have telephone communication with the child each day that the child spends time with the father.
Medication and treatment
The Mother shall ensure that all prescribed and recommended medication for the child is provided to the Father at changeover, along with any instructions as to the administration of such medications. The father shall acknowledge receipt of such medication in writing within 2 hours of each changeover.
The Father shall administer all medication to the child at the times and dosages advised by the Mother whilst the child is in his care. The Father is to confirm in writing at the conclusion of each contact period provided for in these Orders, the type and dosage of medication administered whilst the child was in his care.
That the Father comply with all treatment plans and recommendations relating to the child as conveyed by the Mother to the Father, from time to time.
General Medical
Each party will advise the other without delay of any medical emergency involving the child.
The Father is to inform the Mother of any serious medical condition, significant health issue or illness suffered by the child whilst spending time with him immediately, NOTING that the Mother has sole parental responsibility for all medical decisions.
Schooling/Education
Each parent shall be at liberty to attend at the child’s school or extracurricular activities, subject always to the discretion of the school or governing body.
Each parent is hereby authorised to obtain from the child’s school, notices and school reports at the expense of the requesting parent. Each parent is authorised to attend parent/teacher interviews or other activities to which parents are normally invited, subject always to the discretion of the school NOTING that the Mother has sole parental responsibility for making decisions about the child’s education.
Courses
That the Father forthwith enrol (no later than 30 days from the date of this Order) in a Parenting Orders Program. Upon his successful completion of that course, the Father is to provide the Mother and Independent Children’s Lawyer with a certificate of completion by no later than 30 June 2018.
That within 30 days of the date of these Orders, the Father:
(a)shall do all acts and things to enrol in an Anger Management Program conducted by a recognised agency (not a one day course); and
(b)shall provide a certificate of completion to the Mother and the Independent Children’s Lawyer, no later than 30 June 2018.
Within 30 days from the date of this Order, the Mother:
(a)shall enrol in a Domestic Violence course enabling her to understand the cycle of violence offered by a recognised Australian agency; and
(b)shall serve a certificate of completion upon the Independent Children’s Lawyer and the Father no later than 30 June 2018.
Other Orders
That each party keep the other advised of their current residential address, landline and mobile telephone numbers and email address. Each party is to advise the other party of any change within 24 hours of such change occurring.
That during the time the child is with either parent, that parent shall be restrained from:
(a)Denigrating the other parent or their partners or family directly to, in the presence or hearing of the child and will remove the child from any person doing so.
(b)Discussing the child’s future living arrangements, these Court proceedings, or any of the evidence filed by a party to these proceedings or given at trial either directly with the children or in their presence or hearing. Each party will remove the child from any other person doing so.
The Independent Children’s Lawyer is charged 28 days of today’s date.
The Father’s time pursuant to these Orders is to commence on Friday, 2 February 2018 and in the meantime, the child will remain living with the Mother.
The Independent Children’s Lawyer will forthwith email each of the parents (NOTING the Father has failed to appear today) confirming that the child’s alternate weekend (and any other time) will not commence until Friday, 2 February 2018 and that the child will remain living with the Mother until that time.
All outstanding applications are removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Boden & Boden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
DNC 188 of 2016
| MS BODEN |
Applicant
And
| MR BODEN |
Respondent
REASONS FOR JUDGMENT
This matter involves a contested parenting case in which the applicant is Ms Boden (“the mother”) and the respondent is Mr Boden (“the father”). The mother seeks orders in relation to their youngest child, X, born (omitted) 2010. At the commencement of the hearing the parties agreed upon final Orders in relation to their two elder daughters, Y, born on (omitted) 2002 (Y is 15) and Z who was born on (omitted) 2005 (Z is 12, turning 13 in four months’ time).
Each of Y and Z have suffered catastrophically from the fallout of the separation of their mother and father and each child has been exposed to family violence. Both Y and Z have required psychological intervention following the separation of their parents first in late 2014 and then in February 2015. Y has been self-harming, cutting herself, and likewise Z has been self-harming and cutting herself. Z has also tried to drown herself in the bath and taken an overdose of medication. In addition to being exposed to family violence, these children have also been subject to severe physical parenting techniques inflicted upon them by their father. Elsewhere in this judgment I will particularise the incidents of violence upon these children; however, it is sufficient to note that Y’s relationship with the father came to an end following separation and up to February 2017. Y then had a falling out with her mother when the mother was enforcing her parental authority and moved to live with her father until October 2017. Thereafter, Y had a significant conflict with the father about his parenting techniques and refused to remain with him. Following an incident involving an ambulance and a hospital admission, Y chose to return to live with the mother, her sister, Z and younger brother, X.
Y has told her own psychologist that on one occasion the father choked her until she answered his questions. Evidence was given by the mother that this event occurred, and she says she was powerless to do anything as she was also frightened of the father. Both children report, and the father admits, that he has regularly kicked the children or, as he describes it, “given them a kick up the arse”. This violent and demeaning behaviour was the father’s primitive attempts at disciplining his children. The father admits that he also slapped the children with an open hand and on one occasion used such force upon Z that she wet herself in fear.
Unsurprisingly, Z has significant issues of anxiety and depression, and, as I have said, she has not only self-harmed but has attempted to take her own life. Added to the violent environment in which these children were raised, upon the parties’ separation, the mother decided that she would include the children in all her own personal grief and anger towards the father. The children were led to believe by the mother that the father had “left them”, not her and that he had cheated on them, not her. The mother now admits that her response to the breakdown has contributed to (but is not the sole course of) the children’s inability to have a relationship with their father.
Understandably in a household where the mother says she was demeaned and physically hurt by the father, each of Y and Z have taken on the role of protecting the mother. The mother admits that she has allowed herself to be parented, to some extent, by the children as she needed support. The results of the violence and the mother having discussions with the children was part of the dynamic that affected the possibility of them maintaining an ongoing relationship with the father. The father’s violence towards the children was also a significant factor at play in this complicated set of circumstances which existed for these children post separation.
The Consent Orders that each of the parties agreed to at the commencement of the trial in relation to Y and Z provided for Y to live with the father and Z to live with the mother and each parent to have sole parental responsibility. This reflected the living arrangements of Z and Y at that time. There are orders about reunification counselling between Z and the father and Y and the mother. Y resided with the father at the time of trial, which was a complete about-face given her decision not to have anything to do with the father post separation. The mother said that she attempted to have Y spend time with the father. Whilst this trial concluded in September 2017, the trial was re-opened in November 2017 and at that stage Y rejected her father again. The father contacted the mother for help and Y returned to live with her mother. That meant Y, Z and X were all living together again.
The mother admitted in the September 2017 hearing that she failed miserably in re-uniting Y with her father and that she was ambivalent in this regard. The mother’s parenting style saw her leaving decisions to the children as to whether or not they could see their father. In this context the children, feeling sorry for their mother and being told that the father has left them and cheated on them and taken up with a new girlfriend, chose not to see their father. All of this changed dramatically however when Y had a falling out with her mother, stormed out of the mother’s house, rang up the father and said she would now like to come and live with him in February 2017.
After the trial concluded on 21 September 2017, the change in Y’s living arrangement came to light. The Court was contacted by the Independent Children’s Lawyer who requested that the matter be re-listed to take further evidence. The evidence was that Y had now left the father’s care and home, been admitted to hospital for mental health issues and that she was discharged to her mother’s care and was living with her mother. Y had been experiencing days of conflict with her father. So all three children are living with the mother.
The trial was re-opened on 27 November 2017. The Court received further evidence of the drama and distress for Y surrounding Y leaving her father’s home on 4 October 2017 and refusing to live with him any further. Y had, it seems, been unhappy for some time. In a build-up of tension at her father’s, Y reached for a knife/razor blade. The father says he then rang the police and ambulance. Y had not been talking with her father for days by 4 October 2017 when matters came to a head. The Court has also heard evidence of events that were occurring in the father’s home, which the Court had not previously been advised of and about which the father had failed to tell the mother (or the Court) until Y left home on 4 October 2017. The mother said that after Y left the father’s home, the father told her for the first time that Y had sexual relations with a boy in the father’s home whilst the father was out. The mother said in her evidence that Y also told her about this incident and that the father had contacted her then boyfriend’s father afterwards, and banned Y from further seeing her boyfriend. The father has denied that he knew or said that Y had sex whilst living with him. He says that when he told the mother to ask Y about her sexual activity which happened under his roof, that he was not talking about sex, but rather, Y engaging on the internet in discussions in chat rooms and with her boyfriend, and sending sexually revealing photos of herself involving revealing her buttocks and provocatively showing herself in her bra.
In the re-opening of the trial, the mother says that the medical records show that in March 2017, the father had taken Y to a general practitioner and Y and the father saw the doctor. The doctor records he discussed issues of her sexual activity, contraception, pregnancy and sexually transmitted diseases. The doctor requested urine samples be taken and that a review occur and inquired about her menstrual cycle. Neither the father or his partner followed up with this collection of a specimen or reviews. The father denies that Y told him that she had sex with her boyfriend on the couch in his home whilst the father was at work and that this was the reason he took Y to the doctor. He admits, however, that he contacted the boyfriend’s father, and took Y to the doctor. The father says he took Y to the doctor regarding sexual matters because of “emails he had received from the mother”, not because he had any concerns that Y was pregnant or had engaged in sex with her boyfriend. He says that having taken her to the doctor (Y then aged 14) he did not stay long in the room with the doctor and left it to the doctor to talk with Y as he does not feel comfortable talking about “those sorts of things”. The father went home and told his partner about the outcome of the doctor’s visit. They did not tell the mother.
Consequently, the additional evidence taken in the November hearing showed that the father and his partner had been dealing with these significant issues relating to Y’s sexualised behaviour whilst living with them which neither he nor his partner told the court about in their earlier evidence. The father says he did not raise these issues at the trial initially as “he had dealt with them”. Under cross-examination, when pressed about not being honest with the Court and the mother about what was really happening in his household with Y, he agreed that he said nothing to the mother at the time these events were unfolding or whilst Y was living with him and his partner for some 8 months. The father agrees that he did not mention these significant events in his affidavits filed for the trial or in his oral evidence in September 2017. I will have more to say about this elsewhere in this judgment.
There was also additional evidence by the mother in the November hearing about the difficulties young X[1] is having in transitioning to the care of the father, and the steps taken by the mother to try and deal with the anxiety and physically demonstrative behaviour exhibited by X at these times. This has made the Friday handovers from the mother to the father very distressing for X.
[1] Who has a diagnosis of Autism which the father challenged up until the trial started in September.
The Independent Children’s Lawyer also filed an affidavit on 24 October 2017 annexing a letter from the paediatrician treating X written on 11 September 2017 sent to her by the mother. Regrettably for X, Dr A has decided that given that there is not a good doctor/parent relationship between himself and the parents, he is not able to offer X the holistic care he is entitled to receive. Dr A has taken this step reluctantly after the situation which occurred when he first met the parents and intimidation that Dr A felt from the father. This will be referred to elsewhere in this judgment and the events which have unfolded since.
At the re-opening of evidence on 27 November 2017, the mother and father gave further evidence and had the opportunity to cross-examine each other. At the re-opening of the trial on 27 November 2017, the father’s partner was further cross-examined. The Independent Children’s Lawyer’s Counsel, Mr Andrew, helpfully cross-examined all of the parties. At the re-opening of the trial, the mother was no longer legally represented. The father remained self-represented.
The issue for the Court remaining at the trial both on 21 September 2017 and at the end of the further hearing on 27 November 2017 was the living arrangements for young X, who was seven (7) years old at the time of trial. The mother is seeking orders that X live with her and spend each alternate weekend with the father. The mother strongly requested at the trial in September 2017 that the handovers on Friday at the commencement of the alternate weekend occur through the father collecting X from school. At the re-opening of the trial, evidence was placed before the Court about the ongoing difficulties in managing the behaviour of X who is diagnosed with Autism Spectrum Disorder accompanied by anxiety and receptive speech delay along with co-morbid ADHD (Hyperactive/Impulsive Subtype) requiring trial of stimulants. The mother again pressed that the alternate weekend time commence with a changeover between X and the father directly at the end of the school day. This is in order to save X having the emotional response to seeing and then leaving his mother to go to the father, rather than going directly from the classroom to his father, thus avoiding the distress and volatile behaviour of X in making this transition. The father was not agreeable to collecting X on Friday from school as he wanted the mother to meet him half way between their homes. The issue of distance of the 1 ½ to 2 hour journey is a major issue for the father who has expressed his desire not to have the mother make him drive the whole distance. The father is seen routinely expressing his frustration or refusing to drive the whole distance.
The mother also sought Orders that X not spend one half of the holiday period with the father. The mother says that she is most concerned that X will not cope being away from her and his two sisters for this long, particularly in light of his ongoing challenging behaviour and because of the evidence of what X has said about missing the mother, not being permitted to phone her, and being made to sleep alone and without his teddy. The mother also says she received two voice recordings sent to her by X whilst at the father’s home stating “dad’s hurting me” and “help me daddy’s hurting me”. The mother said the messages were deleted from X’s iPad when he returned from his father’s. The mother seeks an Order that the father have weekend contact during the school holidays instead of half the holiday time. Alternatively, the mother says the block time for X should be a lot less than seven days away from her. She also seeks an Order that she be permitted to speak with X by telephone or FaceTime whilst he is spending the alternate weekend with his father.
The father is seeking orders that X live with him and spend each alternate weekend with the mother. He seeks half the holidays. He is opposed to collecting X from school and says the mother can drive for an hour to meet him half way instead. The father says he will agree to X talking on the telephone to the mother and his siblings when living with him “but not for four (4) hours”.
By the end of the trial in September 2017 the mother, for the first time, was willing to offer holiday contact between the father and X as part of her overall proposal. Upon resumption of the trial, the mother however, no longer considers X can handle this.
Each party agrees that the parent with whom X lives should have sole parental responsibility as they each agree their ability to communicate is utterly diminished, and they have great difficulty being civil to each other. Their sarcastic emails to each other are evidence of this, and they have each shown an inability to talk to the other. Resorting constantly to emails is not a way forward in this matter, and, as I said at the outset of the trial, these two parents have spent much time point scoring with the other parent to the detriment of their children.
Turning to young X. The issues ventilated at trial involve the domestic violence by the father against the mother, the father’s maltreatment of the children and the mother’s inability to control and exert parental authority upon Y and Z. This, however, changed somewhat upon the re-opening of the trial in November 2017 as, by that stage, Y had a major falling out with her father and she no longer wished to live with him and his partner. The father was not able to handle or resolve Y’s behaviour. The father does not appear to have developed effective parenting skills much beyond physically harming the children or being overbearing.
Y leaving the father’s home involved much drama and resulted in Y feeling frightened and the father calling the mother to come and take over the parenting by collecting her. Then later in the evening at around 9:00 pm the father told the mother that Y had hold of a razor blade and a pair of scissors. Y, like her sister, has a troubling history of mental health concerns including self-harming. The father then decided that he would ring the police and the ambulance to attend to Y. The evidence shows that the father first contacted the mother to tell her what was happening around 7:00 pm. In his overbearing style of communication, he tried to insist that the mother (who lives 2 hours away and had 2 other children in her care) start driving to his home to collect Y that evening and then drive back home to her home with all of the children for the 2 hour return journey.
The mother explained that this was not possible and that the father had been the primary carer for 8 months and he could not just hand over the whole problem and dump it on the mother when the going got tough. I am satisfied that this is what the father wanted to do. Later around 9:00pm, the father contacted the mother and told her that things had escalated and that now the police and ambulance had been called by him and that Y was taken to the (omitted) Hospital. The mother said she was not going to be rushed into taking Y home after what had happened over the last 8 months and again explained in any event that she was in no position to drive to the hospital at 9:00 pm (a 2 hour drive) and then a return drive to return home.
The mother arrived at the (omitted) Hospital early the following morning and collected Y who stated strongly she wished to live with her mother and not stay any longer with her father. Her relationship with him was and is in tatters. The mother, in company with her own mother, called by the father’s home with Z and Y to collect Y’s belongings after leaving the hospital. The atmosphere was tense. The mother described the father standing at the end of the driveway with his arms crossed and all Y’s belongings on the front porch. Everyone was hesitant to go near the father. Y was stressed and anxious and not sure what would happen and did not want to speak to her father. She was worried he would be angry, worried he might hurt her. He appeared quite agitated.
On the way home Y has explained to her mother that she had been sexually active back in February 2017 and that her father knew this. The father took her to the doctor because of this and asked for STD tests as he was worried she might be pregnant after having had sex a couple of weeks earlier with her then boyfriend. Y said she was very unhappy living with her father and had been for months. She did not feel comfortable talking to her mother about what had been happening at her father’s as her father was in her room listening to what she was saying to her mother. Y said she did not want to be with her father anymore and that she did not feel safe with him. Y said she was fearful that her father would become physically violent with her.
The additional evidence at the November 2017 hearing revealed that Y had been at logger heads with her father for months over her desires to engage in activity on the internet and chat rooms. As well, there has been a simmering dispute about her sexual conduct resulting in her phone being removed and retained by the father almost as soon as she moved in with him in early February 2017. Under cross-examination it was revealed that the father had removed Y’s mobile phone as punishment for her poor behaviour in February 2017. The father did not return it the whole time that Y lived with him. He agreed that Y’s most prized possession was her mobile phone. He also agreed during his previous testimony in September 2017 he did not inform the Court of this sanction or the behaviour which lead to him removing the phone. Similarly the father’s partner Ms M, despite having written thousands of words in her voluminous affidavit material and given copious oral explanations of her style of parenting of Y and X and how positive and successful it was, failed to mention these critical incidents in her September 2017 evidence.
Prior to Y finally leaving the father’s home on 4 October 2017 and being taken to hospital, Y had stopped talking to her father for a few days. She became extremely distressed. There seemed to be a standoff between the father and Y. The father said at one stage, he sat in Y’s doorway to prevent her from going anywhere. The father and his partner Ms M had by then removed the computer from Y because of her misbehaving when she had a friend over to stay. The father said he told the friend she had to leave immediately after he found that she and Y had been putting notes with provocative statements on them in the letter boxes of the other owners in the gated community in which he lives.
At the trial, prior to all the incidents in October 2017, the mother made candid admissions as to her own conduct in including the children in her personal grief and anger she felt post separation. This included her disappointment at the father leaving her and the children and her laissez-faire attitude as to whether or not the children had an ongoing relationship with the father.
The mother’s admissions were that ultimately she knew that her over-exposure and involvement of the children in her own emotional issues and empowering them to some extent to make their own decisions as regards to seeing the father would ultimately lead to there being no relationship with the father.
One of the issues for the Court is whether or not if X remains with the mother, she will facilitate that relationship. X was much younger when the parties separated and has not had quite the exposure of Y and Z to the violence perpetrated by the father or to the mother undermining the father’s role within their separated family.
The mother has been represented by Mr Selfridge of Counsel. Upon the re-opening, the mother was self-represented. Her material was read into the record. The father was legally represented prior to the trial; however, since early 2017 he has been representing himself and did so at the trial.
The Independent Children’s Lawyer was represented by Mr Andrew of Counsel who has assisted the Court through his thorough and organised cross-examination of all of the parties. In this matter, the Independent Children’s Lawyer, Ms Bolton, has played an active and courageous role in this matter. At the outset I wish to commend Ms Bolton for the steps she has taken in the lead-up to this trial, for her being proactive in terms of her requests for drug testing of the parties and trying to keep the parties on track and lastly, for her attention to detail in her comprehensive case outline, which includes a chronology of around 45 pages.
Clearly, Ms Bolton takes her role as the Independent Children’s Lawyer seriously, and she is prepared to do whatever is required to assist the Court and place evidence before the Court. Ms Bolton is a fine example of what the Court would hope most Independent Children’s Lawyers would aspire to. Even after the trial was concluded, Ms Bolton has continued to act in the best interests of these children by contacting the Court and having the matter re-listed and ensuring the appropriate evidence was again placed before the Court.
I have had regard to all of the evidence, the exhibits and the submissions including those relevant to the re-opening. Wherever a statement of fact is made, that represents a finding unless otherwise indicated.
Brief History
This mother and father commenced their relationship when they were very young. When their first child, Y, was born, the mother was aged 19, and the father was aged 18. Three years later, their second child was born. The mother was aged 22 and the father aged 21. At that stage, they had a newborn and a two and a half year old. In 2010, X was born. They then had a seven year old, a nine year old and a newborn.
It is not difficult to conclude that these parties were under a severe amount of stress as relatively young parents and the responsibilities and obligations (including financial) in raising three children.
The parties commenced living together in around 2001 and married in 2007. As I have said, the mother says they separated in around May 2015, and the father says they separated in around February 2014.
The mother has made allegations that the father has been physically violent and abusive towards her and the children during the course of this relationship.
The father denies being violent towards the mother though accepts that there are two Domestic Violence Orders against him with the mother as the aggrieved. The first was an order taken out by the police, and the second was an order taken out by the mother post-separation.
Additionally, the parents initially had a dispute about a paediatrician’s assessment of X with autism. The father conceded at the commencement of the trial that he would not proceed with his insistence, up to that point, that the paediatrician made an incorrect diagnosis and that the child ought to be relieved of the obligation to take the prescribed Ritalin.
The father says that he has complied with the directions for the administration of the Ritalin, though he made it clear in his orders sought that he did not consider the child should be given Ritalin. The father had obtained an opinion from a psychologist Ms K casting doubt on the diagnosis of the three psychiatrists. The weight given to the father’s evidence in light of the diagnosis by those with the qualifications to do so was explained to the father at the commencement of the trial. As I said, at the commencement of the trial, the father conceded that he would follow directions of a paediatrician, as did the mother.
In 2014, this family moved from the Brisbane area to the (omitted). The mother says she wanted to start a new life; the father says he was under pressure to move. In (omitted) 2015, Mr Boden moved to Darwin to take up a job with his employer. The mother says the parties had separated in about February 2015.
Whilst the parties were still together, the father was working in Darwin. He came home and spent time with the children on a number of occasions. He also travelled to Brisbane from time to time, and at that stage, the father also stayed at the family home during periods when he returned from Darwin.
The father returned from Darwin permanently in June 2016; however, before coming home, he informed the mother that he had a new relationship, and he intended to leave and live with his new partner. It seems the father’s new relationship had been on foot, unbeknown to the mother, for some time. The mother says this conversation occurred when the family moved from (omitted) up to the (omitted) when the father was still living with herself and the children.
The mother admits that sporadically, when the father was working in Darwin, he came back about three times, and he stayed for periods between a week or up to a month. They also spoke on the phone from time to time, used FaceTime and iMessaging.
Y commenced cutting herself around (omitted) 2015. The parties seemed to be still talking at that stage. The mother says she was living by herself and looking after the children with the father working away. She does not recall raising the issue of Y (or Y, as she is often known) with the father but she did organise help for Y. The mother said she could have had a conversation with the father about this, but she does not really recall. He was away in the Northern Territory working and the Mother says she managed all aspects of the children’s lives and needs.
X’s behaviour started deteriorating in July 2015, with him acting out at school, harming other children. So concerned were the teachers about his obstructive and at times violent behaviour towards other children that they were suggesting he should get his ears and eyes tested.
By November 2015, the mother had organised for Y to see a psychologist. Y had been starting to express negative views towards her father. The mother accepts now that in hindsight that she imagines that what she would have said to Y about her father would have had some resonance with Y, and she takes some responsibility for the views that Y then held about her father leaving all the family.
The mother also admits candidly that she let out her emotions mistakenly in front of the children and that she had phone calls with other people when the children were present. She says she was very emotional and that they would have heard her talking to her friends and family either directly or on the phone and that the children would have heard her expressing her emotional vent (as she put it). The mother admits that she said things that would have led Z to say, as she did, that when the father left, it was “like he cheated on us as a family”.
The mother accepts that because of what the mother exposed them to, Z, Y and X perceive they were abandoned by the father.
It seems that by the time of the trial, the mother had reflected on some of her behaviour exposing the children to adult issues which had been to the detriment of the children.
The mother said that she has looked up information on the internet about high-conflict resolutions and that she had been trying to skill herself with some strategies to cope with her situation. This included making a decision to not give commentary to the children or involving them so closely in her own emotional response to the father leaving her. The mother said she knew that she needed to change and fix what had happened and this was how she started to develop some insight.
The mother accepts some involvement and responsibility for both of Z and Y cutting themselves and says that she now regrets her part in exposing the children to her own emotional breakdown. She accepts that it has impacted on the children and added to their emotional pressure after separation. She said that the separation and parental dynamics have been “devastating for the children”. The mother also regrets, significantly and genuinely in my view, that the children were exposed to the father’s aggressive, demeaning and violent behaviour for years.
Each of the parents seem to agree that X at age 7 has not been as affected as the two older girls, though, unfortunately, X has his own problems, as is seen in the diagnosis of his paediatrician. Dr S (Paediatrics & Child Health) has diagnosed X with (1) Autism Spectrum Disorder accompanied by anxiety and receptive speech delay along with (2) co-morbid ADHD (Hyperactive Subtype) requiring trial of stimulants. This diagnosis is supported by other medical specialists including a consultant paediatrician Dr A who has overseen X’s condition for a period of time (and who has found himself on the end of the father’s aggressive behaviour such that he will no longer stay involved). Other paediatricians have made similar diagnosis. Like Dr A, Dr S found the father too difficult to deal with and declined to remain as the paediatrician for X.
Whilst the mother has been attempting to address her negative feelings towards the father, the mother has sought help in getting resolution for the breakdown of her relationship. Her evidence that she has been listening to a person on YouTube who has “been through the same things I have been through” was a step in the right direction but professional help is required in my view. The mother was somewhat naïve to think that this method of self-help would by itself, be effective to help her recover from her own exposure to domestic violence, the children’s exposure to domestic violence or her own emotional collapse when the father left.
The mother admitted that even though the father had committed acts upon the children which were quite alarming, including kicking them, grabbing them by the throat, screaming at them and regularly slapping them hard, causing slap marks, she did not ever leave the father.
The mother has given evidence of a litany of insults and abuse that the father directed to the children and herself whilst they were together and said she was powerless to do anything about it. I consider that the mother needs professional assistance to address the effects of family violence upon herself and the children and the dynamic and cycle of family violence. The father has admitted to inflicting many acts of violence upon the children.
Whilst the father has disagreed with the experts in relation to the diagnosis of X, it is reported by his teachers that X has made a remarkable change. According to the teachers X is “like a new child”. The teachers no longer require him to even have a behavioural plan. Upon the re-opening of the trial the mother gave evidence that X’s behaviour at school remains much improved and that X has even received classroom awards. The mother also has noticed significant positive changes in X.
Post-separation, there has unfortunately been much drama between the parties. I have to say at the outset that each of the mother and father have been involved in so much drama and conflict, that I have the strong impression that both Y and Z think it is normal to have screaming matches and much melodrama in their relationships with either or both parents.
The parents’ relationship breakdown and years of disharmony between the mother and father has resulted in the children suffering from that exposure. Y has demonstrated to the Family Report Writer that she can be tempestuous and impulsive, as referred to by Mr S in his second report.[2] Both parents say that Y is headstrong and a very strong personality. Mr S says generally teenagers have features of being tempestuous and impulsive. These features are augmented by the fact that Y is a strong personality with a confused and vulnerable emotional state.
[2] Paragraph 109.
At the time of the trial in September 2017, it was an unfortunate situation to have Y and Z separated from each other, living with separated parents. Mr S, the Family Report Writer, is to be commended for facilitating a reunion between Y and Z. Up to the point that Mr S did his second report, they had been estranged. I told the parties in September 2017 that one of the biggest tragedies in this case is that Y and Z do not spend enough time together, and that Y, Z and X, have, in one way or another, all been separated out from each other. It seemed at that time that it was not going to be possible for X to grow up in the same household as both his sisters. That situation however, altered in October 2017 when Y left her father’s home and moved back in with her mother, Z and X. The mother’s evidence at the re-opening of the trial in October 2017 was that X was very much enjoying having his two big sisters back at home with him.
The mother still lives on the (omitted) where the parties previously lived together at (omitted), with Z, X and now Y.[3] The father lives with his partner, Ms M in (omitted). At the time of the trial in September, Y lived with them. The distance between (omitted) and (omitted) is approximately 147 kilometres. I am told this is roughly a 2 hour journey one way. That time can be a little shorter or longer depending on the traffic. On a good day, it equates to around three and a half hours travel return from one place to another. The time can be longer depending on the time of travel. The father moved away this reasonable distance to move in with his now de facto partner, Ms M. Ms M is aged 24 and does not have any children of her own.
[3] From February 2017 to October 2017 Y lived with her father.
The changeovers at the time of the September 2017 trial were occurring at the (omitted) Police Station on Friday evenings and the (omitted) Police Station on Sunday evenings. When the decision was reserved in September, the parties agreed that handovers would occur to and from school where possible. The Court suggested and each party agreed to use the contact centre at (omitted), for their non-school handovers.
When I reserved my decision on 21 September 2017, I made Orders for the father to spend half the holidays with X. I note that the mother’s orders sought did not include half the holidays. The mother expressed her reservation as to holiday time as she did not think X would cope. The mother however agreed at the conclusion of the trial that X could start to spend one half of the holidays with his father.
At the resumption of the trial in November 2017, the mother explained the anxiety being felt by X at changeovers and his discomfort and distress staying with the father for the whole week. It was also agreed in September 2017, in relation to the forthcoming Christmas holidays in 2017, that X would spend the one half of the holidays with the father in a week on, week off arrangement.
Upon the re-opening, given all of the events which had occurred involving X’s increased anxiety and fears, the mother altered her position in relation to the time that X is to spend away from her during the holidays. The mother gave evidence of X saying he could not contact his father during the night as the father’s bedroom door was locked. X also said in messages to the mother sent via his iPad that his father “was hurting him”. The parents had agreed in September 2017, that in December 2017, and all Christmas holidays thereafter, he would spend one half in one single block period with each parent. Again, that lengthy period is now of great concern to the mother who has given additional evidence into X’s current behaviour, his anxiety and his fears. The parents had also agreed that it is more convenient for X to spend Christmas with one parent in one year and the other parent in the next year rather than splitting the day, given the significant distances that would be involved in travelling on Christmas Day and the disruption it would cause the other children and family. To do otherwise could see X in the car most of the day on Christmas Day.
The father, as I said, has re-partnered before, on or around separation with Ms M. At the time of trial, Ms M had not filed any material. I gave her leave to file an affidavit at the trial, as I considered it was imperative that some evidence be obtained from the father’s partner, as she is an integral part of his household and would be playing a significant role in the event that X lived with the father. Ms M’s affidavit was marked as exhibit F2.
Both of the parties were cross-examined, along with Ms M the father’s new partner and the Family Report Writer Mr S.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).” The Family Law Legislation Amendment (Family Violence and Other Measures) Act2011 made significant changes applying to matters filed on or after 7 June 2012, which this application is. As a result of those legislative changes, when applying the primary considerations under s 60CC (2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.
When I determine the best interests of X, I will consider also the several additional considerations set out in s.60CC(3) when evaluating each of the parties proposals for X’s future living arrangements. Reference will be made to the allocation of parental responsibility. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked.
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.
Witnesses
The Mother
At the trial in September 2017, the mother was cross-examined very thoroughly by the Independent Children’s Lawyer’s Counsel, Mr Andrew, so much so that, at the conclusion of Mr Andrew’s cross-examination, the father did not have any further questions for the mother. The mother’s own affidavit has individualised all of the children. She identified that each of them have had different needs and are in entirely different situations. In relation to Y (Y or Y), the mother gave evidence that Y spent no regular time with her and had stated to the mother that she hates her. The mother accepted this was the current position and hoped it would soon change. When Y was not speaking with her father (by her own election, as the mother puts it) Y and the father underwent some unsuccessful reconciliation counselling in 2016. Y lived in (omitted) with the father. The father took no steps to initiate any reconciliation between Y and the mother during the 7 months Y lived with him. The mother explained that Y had changed schools twice and now attends the (omitted) High School, in year 9,[4] having moved in with her father.
[4] This situation changed when Y demanded to be returned to her mother’s on 4 October 2017. She was taken to hospital by ambulance from the father’s home when she produced a knife and a razor blade. The following day her mother collected her and she now lives with the mother and is hostile to the father.
The mother had organised for Y to attend upon Ms S, a psychologist, to deal with Y’s cutting issues and her overall emotional disturbance since the separation. The mother also explained to the Court that Z and Y have a fractured relationship, though she knew that there was a reconciliation between the two girls at the Family Report interviews in July 2017, initiated by the Family Report Writer, Mr S.
The mother set out a long history of Z attempting to self-harm in excess of 20 times. The most recent attempt had been when she cut her arm multiple times in August 2017. She also made reference to Z’s overdose on prescription medication, and that Z was attending upon two psychologists, Dr B who has been Z’s psychologist since October 2016, and Ms N, from Child Youth and Mental Health Services (CYMS), who Z was referred to upon her discharge from hospital following her attempted overdose. It seems to be agreed between the parties that Z has occasional instances of incontinence, and that has occurred since she was young, and is likely due to stress, according to Dr B. Z had also seen a psychologist, Dr I, who prescribed her fluvoxamine for her anxiety. Her doctor was pleased with her progress at the last visit in August, and also prescribed her Seroquel to help her sleep.
Z attended upon Ms N twice a week. Z has also changed high schools since living with the mother. She used to go to the (omitted) High School, where the mother says bullying and a culture of self-harm was in existence amongst her peers. Because of Z’s fantastic and false stories told to her peers seemingly as attention seeking behaviour, and because of the bullying, and self-harming amongst her school friends, the mother says Z commenced at (omitted) High School on 18 July 2017. Whilst the mother is critical of the father for changing Y’s high school, in fact, she too has changed Z’s high school.
At the time of trial and at the re-opening in November 2017, X lived with the mother and spent each alternate weekend with the father and each Wednesday night X had dinner with his father. The mother complained that the Wednesday night was difficult, as it concluded at about 8:00 pm, which was too late for young X, still only 7. In March 2017, the mother explained that X was diagnosed by Dr S, a paediatrician, as fulfilling the criteria for:
a)autism spectrum disorder accompanied by anxiety and receptive speech delay; and
b)co-morbid attention deficit hyperactivity disorder (ADHD), hyperactive/impulsive subtype.
This diagnosis was confirmed by a second paediatrician, Dr A, in July 2017. Each of Dr S and Dr A have separately recommended that X be given Ritalin to assist with his diagnosis and to help with the behaviour and focus at school. X attends the (omitted) primary school and is in year 2.
The mother, in my view, has been proactive in seeking help for each of her daughters in terms of their distress and the psychological assistance required. The mother has, as one would expect from any competent parent, organised to follow-up referrals for X from the paediatrician, speech pathologists and social workers in order to have him assessed. The mother has been sensibly following all of the recommendations of two paediatricians including the treatment by a triage of experts and medication.
I accept her evidence as to the events that took place at the offices of Dr A. The father admits to standing up and telling the mother to “shut the fuck up” whilst they were in the presence of Dr A at that appointment. The father justifies this by saying that the mother was talking over the top of him, and, when the father raised issues challenging the diagnosis, the mother referred to the father as “Dr Google”. Whatever the mother said to the father, it is not acceptable for the father to speak so crudely and in such an intimidating and demeaning manner to the mother at all, let alone in the presence of a professional. As seen, Dr A was so alarmed at the father’s overall aggression and presentation, that he has declined to stay on as the paediatrician as he does not have the type of doctor/parent relationship with these parents (meaning the father) that is necessary for the medical well-being of X.[5]
[5] See affidavit of ICL Samantha Bolton efiled 24 October 2017.
The mother’s evidence outlined a history of the father speaking to her in that manner while she and the father were together. She described many acts of family violence in an unemotional and flat tone. She said that the father was often pushing her, hitting her, yelling, screaming at her, calling her names and telling her she was worthless. This occurred so often, the mother says that it was happening multiple times over multiple years, and generally once a week. She described incidents where the father was physically violent to the children. She said that he would get very “mad” at the children while they were living in (omitted).
He would yell at the kids. He would call them names. He would make them stand by a wall – discipline them if they were naughty, or simply if he didn’t like what they were doing. Sometimes he would smack them until they were crying.
The mother said this occurred from when the children were about aged five onwards. She said she would tell him to stop and say “leave them”. She admits with regret that she could have done “so much more”. She said:
I was scared he would turn on me as well. I would try and protect them by telling him to stop and leave them alone, and told them to keep away from him.
She said she would sometimes get in the middle of the children and the father when he was being violent to the children and she would get pushed aside. The mother said it was difficult to name any particular trigger that got the father angry. She said:
Sometimes it was that the children didn’t do what he wanted them to do. Sometimes they were being noisy. Sometimes they said something he didn’t like.
Most of this accords with the evidence given by the father. He described himself as, in his younger years, being very angry and taking on anyone “who looked twice at him”. The father admitted many acts of violence upon the children. He admitted to violence towards at least four other adults (including a taxi driver and his father-in-law). The father flatly denied though hurting the mother. He said he did hurt other people, but not the mother, “as he was taught never to hit a woman”. If the father was taught that, it certainly didn’t apply to his wife and his female children, given the father’s descriptions of what he has done to each of his daughters and my findings about his violence perpetrated upon the mother. He has admitted to slapping a daughter so hard that he was leaving imprints, and causing so much fear and pain by hitting Z extremely hard, that Z wet herself. He also casually admits, as he puts it, to “kicking them up the arse” as a regular form of discipline. The father says he realised that he had gone too far with Z and that he changed his practices after that. That is not in accordance with the mother’s evidence, which I prefer.
I have heard the mother’s evidence, and, overall I consider that she was a truthful witness. She made many admissions against her own interest and without excuse. This was particularly so when describing how she allowed the children to experience her grief and distress at being left by the father and how he had betrayed them all by developing a relationship with a co-worker with whom he now lives, Ms M. The mother, in the witness box, made many admissions as to her over-involvement of the children and the breakdown in the children’s relationship with the father. There is, however, behaviour of the father causing grief, distress and fear to the mother and children which eclipses the mother’s over-involvement of the children in the adult issues. The mother has developed insight since separation. She is mature in her parenting and her parenting skills are far more developed than those of the father.
I accept the mother’s evidence as to the domestic violence that has been perpetrated upon her and the children by the father. She has related those events with particularity and in a truthful matter of fact manner. The father admits his treatment of the children, but denies choking Y. He denies ever harming the mother.
Y and Z have had a very conflicted relationship with the father. This has been not only because they were exposed to their parents’ arguments and the father’s violence upon their mother, but moreover, they have been badly manhandled to the point of violence by their father. It is in this overall context that the mother’s less than enthusiastic attitude towards the children spending time with the father post separation had its genesis. The mother admits that post separation she was feeling sorry for herself. She says she is stronger now and she realises that X should have a relationship with the father. The mother accepts that sharing with the children some of details of the father’s alleged infidelity and portraying him as abandoning the family, has in part influenced Y and Z’s attitude towards their father. I accept that this is so, however, I also consider that the evidence of the father’s treatment of Z and Y and the mother is a most significant issue in shaping the views Y and Z hold about the father.
There is a suggestion by the Family Report Writer that, occasionally, the children are parenting the mother, given her treatment by the father. Having said that, my impression was that the mother feels deeply about the current state of her relationship with each of her daughters. She is quite pragmatic regarding her relationship with Y. At the end of the trial in September 2017 when Y had been with her father for seven months the mother was hoping for something to change in the future despite her knowing practically nothing about Y from when she left in February 2017 to live with the father. The mother did not have to wait too long because by 4 October 2017, Y was refusing to stay living with the father.
Y, having returned to live with the mother, is now more protective than ever about her family and her mother, as seen in messages sent by Y to the father. For instance on 25 November 2017 Y texted her father:
“I suggest you leave us the hell fucking alone, because I’m sick of you thinking you can destroy everything just because you hate mum. She’s better than you any day, she actually involves me and not leave me at home all the time to get hurt or scared by people who break in. She care, you only care about self fucking image. Oh and btw you know I had sex. Under your roof. So don’t think you can deny it because I have witnesses and people that were involved in the situation. You made Z cut, you made X mad, you cheated on mum & then you kicked me out. Great parenting dickhead”.
Y left living with her mother at a time when the mother was enforcing parental discipline and authority and restricting Y, aged 14, from engaging in social media chat rooms and sexual discussion with strangers in chat rooms. When the mother enforced her rules, Y decided she would not put up with the mother’s rules and left to move in with the father. The father, at that time, did not acknowledge that this might happen to him as well if he was the primary parent. Overall, the father was just critical of the mother’s parenting. Once Y, aged 14, moved in with her father and his 24 year old partner, it now transpires that worse behaviour occurred in Y’s refusal to follow the father’s or his partner’s directions and became sexually active.
X loves his sisters and up until Y left, had always lived with his mother and his two sisters. As I have said elsewhere the mother’s evidence is that X is very happy to have both sisters back at home.
I consider that the mother has had a very difficult role to fulfil. She has had years of demeaning insulting comments from the father mixed with significant physical domestic violence. She was very young when she began her relationship with the father. The mother had their first child, Y, at age 19. The second child, Z, followed shortly after, and then, in five years, another child, X. Finances were tight. I accept the mother’s evidence that the father was overbearing and used to demand money to take to the races which she had set aside for the rent.
The mother denied ever “putting a knife to her daughter’s throat”, as was alleged by the father. I accept that her evidence is truthful. She said she had never done that, and did not have a knife. She agreed that there was an argument and that the father wanted to go to the (omitted), and wanted to use the rent money to take with him. She said that she didn’t want to give him the money, and he got aggressive and agitated and said to her:
If you don’t give me the money, I’m going to call the police and say you held a knife to my daughter’s throat.
I do not accept that the mother ever threatened her baby daughter with a knife. I regard the allegation of the father as false. Clearly nothing occurred which troubled the father, as he has been content to leave the primary parenting to the mother for years and years after Y was a baby.
As to the suggestion that the mother has been violent to Y, the mother has described some pushing and shoving with Y, wherein Y pushed her and the mother used her elbow to elbow away Y. The mother is not otherwise a violent person, and this altercation was indicative of a situation the mother found herself in with Y. It is telling as to the level which her relationship with Y had reached.
I found the mother to be a very child focused parent who well understood her children and each of their individual needs and wants and challenges. The mother has been competent and diligent in attending to the specialists (and there are multiple including speech therapist weekly, occupational therapist fortnightly, psychologist fortnightly, paediatrician intermittently) in having X diagnosed and then treated by the triage of specialists required with his autism. The father has been obstructive, insulting to specialists and spent money seeking an opinion from a psychologist on X’s diagnosis. The Court explained to the father that a psychologist would not be as qualified as the two paediatricians. The father informed the Court at the commencement of the trial that he accepted the diagnosis and medication prescribed. This was the first time he had done so. It was not, therefore, necessary for the Court to call the two paediatricians to be cross-examined by the father. Such a step would have been a waste of time, given the relevant qualifications of the respective experts. The whole argument on the father’s behalf appears to have been taken up by the father when the mother pursued a child support review application. That review application was based on the special needs of X given the diagnosis and treatment required.
The reports of paediatrician Dr S were placed before the Child Support Officer. Dr S diagnosed X as per DSM-V criteria fulfilling criteria for Autism Spectrum Disorder accompanied anxiety and receptive speech delays as referred to earlier in this decision. The significant cost of attendance for the mother upon a physician, consultant paediatrician, psychological assessment subsequent consultation have been set out in the Child Support Agency decision regarding change of assessment.[6] It is therefore troubling to see that the father told the child support review officer that X is not autistic. The costs incurred by the mother are significant. The mother said, in her November 2017 evidence, that she has been under enormous financial strain and that she is in such deep financial pressure that she has now become bankrupt. It is clear that the father’s denial that X had a diagnosis requiring medication was raised in the child support arena.
[6] Mother’s affidavit of 22 November 2017, annexure 8, page 24.
I listened to the mother explain the comprehensive steps she has taken to engage a counsellor to attend with her at a park and observe the distressing and physical behaviour of X when he has a “melt down” and is severely emotional and physical. The mother sought and obtained professional help in order to assist X transition from her care to the father on a Friday afternoon. The mother impressed me with her knowledge and experience of a mother who has raised an autistic child and worked with and learnt from the treating professionals. The mother has learnt much over the time she has engaged with the treating professionals. The report of Mr M from Disabilities Support Queensland engaged by the mother following consultations with X’s therapists and support workers about X’s increasing anxiety particularly on transitioning from the mother, was most informative as to X’s challenging behaviour.
Mr M recommended a calmer way of managing X so transitions such as handovers to the father could occur with less anxiety for X. Mr M’s report shows that his observations were very helpful in understanding the anxieties specific to X as a result of his diagnosis of autism. The mother says that X does not suffer the same levels of anxiety when he goes straight from school to the father as occurs on a Wednesday afternoon. The mother requested that the father collect X from school on Friday’s to alleviate X’s distress. However, the father has refused to do so. At the November 2017 hearing I questioned the father as to what was stopping him collecting X from school and saving X from having separation anxiety upon leaving his mother. If the father collected X, it saves the anxiety X experiences when collected by his mother from school and then driven by the mother to the halfway point to meet the father to then hand X over to the father with X having to separate from his mother. The father replied begrudgingly “nothing”.
Counsel for the Independent Children’s Lawyer submitted that the only issue stopping the father from collecting X directly from school, was the father’s own pride. I accept that this is so given the father’s repeated statements to the mother and his insistence that he should not have to do all the driving and that the mother should be doing half. I am not sure how the father developed the mistaken impression that however far away he moves, the mother who has other children in her care, is obliged to travel at least half way between her home and wherever the father moves to do changeovers. While refusing to change the collection from school and thus reduce or avoid X becoming distressed in transition from school to the mother, then the mother to him, the father is seen simultaneously protesting through a child support review,[7] that he should not bear any of the costs for the use of a psychologist or other professional to assist in working out a plan to deal with the resultant anxiety that X is suffering. The father has been steadfast in refusing to acquiesce to the mother’s child focused requests to assist X. The father does not demonstrate a capacity to understand the emotional and intellectual needs of X on this and other issues. The father appears to skim along the surface of issues with little regard. He uses impersonal generic language when discussing the children. He shows no real connection with or understanding of the issues associated with the diagnosis for X. Predominately in giving his evidence, he has displayed umbrage at having to drive the distance once he moved to live with his new partner.[8] I consider that he has just seen this autism issue as another topic for argument with the mother and one that is resulting in him having to pay more child support. Neither the affidavits sworn by him and his partner nor their oral evidence give any confidence that either of them understands or even genuinely accept the diagnosis of autism. Ms M explained how she remains to be convinced of the diagnosis.
[7] Mother’s affidavit of 22 November 2017, annexure 8.
[8] (Who gave evidence she wants to remain living close to her parents).
The father expressly described the mother as using the diagnosis of X as “attacking him through child support” in his submissions. The reality is that as the primary parent of X, the mother did what she is entitled to do and that is seek a review of the administrative assessment for X based on his special needs. The decision released on 2 November 2017 by the Child Support Agency was that the costs of maintaining the child (X) are significantly affected by the child’s special needs. The father expressed anger at the mother seeking this review. He said that she can claim from the public system and “I have always paid for private health insurance”. The mother advised the child support review officer that she has private health insurance but that it does not provide rebates for X’s treatment. At the trial, the father’s heightened manner and reference to this review as an attack and the intensity with which he viewed the child support review was quite alarming. The father’s child support was increased by an annual amount of $1,792.00. The father’s child support increases from $7,253.00 to $9,045.00 per annum. The special needs relate to a psychologist and speech therapy.
I heard evidence about how the anxiety of X is playing out in the transitions from the mother to the father. I accept the mother’s account of this. I accept that when X was hiding under a table in McDonald’s and did not want to go with the father, that the mother identified to him what feeling he was experiencing (anxiety) as a way of assisting him, not as alleged by the father who was and remains critical of most of the mother’s parenting.
I accept that X was genuinely overwhelmed that day and did not have the ability to separate from the mother. The father has now filed an application for a Domestic Violence Order against the mother using this refusal of the child to go with him at handover as “emotional abuse by the mother”. I accept that the mother was trying to help X deal with his anxiety by articulating for him what he was feeling, and thus being able to assist him deal with his feelings. This is the approach encouraged by the child’s experts.
The father has been disingenuous in his Domestic Violence Application in failing to inform that Court of the diagnosis of autism and anxiety which lead to the scene in McDonald’s. The father’s naivety and inability to recognise or understand his son’s diagnosis has reached alarming and epic levels. If the father wishes to regard his son’s autistic responses and behaviour as “emotional abuse by the mother”, the Court is deeply concerned at the father’s lack of education and understanding of X’s condition. This behaviour of the father’s shows a complete inability to approach the behaviour with maturity and understanding. It also demonstrates the father being strategic in attempting to secure a Domestic Violence Application based on his child’s autistic behavioural response to a handover to the father. This conduct by the father causes the Court to have serious reservations about the father’s ability to provide for the child’s intellectual and emotional needs. The father gave no evidence of needing to be protected from either the behaviour of the child or the mother in this Court when the evidence of that day was given. In my deliberations, I do not regard this incident in anyway constituting “emotional abuse” by the mother of any person or child. The father was frustrated, impatient and showed an inability to demonstrate the requisite parental capacity to appropriately manage his son’s behaviour.
Overall the mother gave her evidence openly and honestly. She was prepared to make admissions against her own interests. The mother has been through an extremely difficult time both during the relationship and afterwards given the conduct of the father toward her and the children. She has genuine remorse about not being able to protect the children from the violence of their father despite her efforts to do so. The mother shows maturity and experience in her parenting and has well informed herself about X’s autism.
Wherever the mother’s evidence is contradicted by the father’s, in the absence of any independent evidence, I prefer the evidence of the mother. She was a much more truthful witness.
The Father
The father gave evidence and was cross-examined. The father seemed to know his children quite well, though admits that, whilst the parties were together, he was working and generally had a somewhat strained relationship with his children. He said that, when he got home, the mother would ask him to discipline the children, and would say to the children during the course of the day “Wait till your father gets home”.
The father has admitted to “slapping” the children with an open hand “on the bum”, “booting them up the arse”, “grabbing them by the arm” and “kicking them up the bum”. He admitted hitting Z so hard that she wet herself. He says, on that day, he realised that his slapping of the children had come to a point that it was too much. He said he walked away.
The father denied having grabbed Y by the throat whilst sitting behind her in the lounge. I accept that Y was grabbed by the throat as described by the mother. Y repeated the details of that distressing incident to her own counsellor. She explained her fear surrounding that incident. The other children were present as was the mother. I accept the mother’s evidence as to the circumstances of this event.
My impression of the father was that, like the mother, he found himself at aged 18 years of age with a baby and thereafter, another child in a couple of years with finances being tight. The stresses and strains of then having a third child in five years has, it seems to me, been evident upon both the mother and father.
Although, the father had two Domestic Violence Orders against him, he attempted to de-value the standing of the second Domestic Violence Order by describing it as a “PPO”, which was his shorthand for “Private Protection Order”, as opposed to an order taken out by a Police Officer. The father chose to consent to the second Order without admissions. The father seemed to shrug off this Order as having less standing because the mother sought the Order. When giving evidence, the father’s language was often impersonal and showed little interests or understanding of children’s emotions or the emotions of others. He has shown no genuine empathy towards his children at any stage including when admitting to his violent and demeaning parenting techniques. Nor did he show signs of regret in his attitude to the children. I could not detect him showing signs of being child focused. He was assertive and remains very angry at the mother and forcefully pushes his issues of not wanting to drive any more than half way between their houses, and expresses his doubts about the diagnosis of X and the mother seeking child support in strong terms. His exasperation with these issues was still very noticeable in his final submission in November 2017 to the point that I requested him to cease addressing the Bench in his irritated tone. Despite the father saying he had dealt with his anger issues, there was no suggestion to me that this was true.
The father’s bristling anger is apparent in his communications with others. It is seen in his intimidating conduct with Dr R and Dr A, coupled with his violence to his own children, the mother, and at least four other people. This is a powerful and negative factor for the Court to consider in all aspects of the father’s parenting: his capacity to parent, his attitude towards parenting and his responsibility as a parent.
I accept the mother’s evidence about the acts of violence perpetrated by the father against her. It seems to me the father’s way of communicating his anger and frustration was to resort to violence. The father has committed acts of violence upon the mother, these children and other members of the extended family.
The father tells me that he did an anger management course back when he was younger. That may be so. It has had no obvious effect. I remain troubled by the evidence of Dr A and Dr S as to their encounters with the father and his hostility and aggression towards these two professionals. It seems to me that if the father is not able to contain himself even in the office of a professional, there is little hope of him doing it in a domestic situation behind closed doors.
One rarely reads of a paediatrician writing to a father to say that he is not welcome in their surgery anymore and that he is aggressive and overbearing. Dr A said that each of the mother and father have engaged in an ongoing parental dispute that will be having an impact on X. Dr A said, “I did implore the parents to both improve for the benefit of X”. The father took exception to Dr A and Dr S and has now retaliated and reported each of them to the medical board. There is no evidence before me of any professional misconduct of either doctor. It is however clear that the father did not welcome the diagnosis, as it lead to an increase in his child support.
The father’s own behaviour has led to his being excluded from consultations. He shows a complete lack of insight into his own behaviour. The father is not able to tolerate an opinion about which he disagrees. I note also that despite being told, in no uncertain terms, that he was not welcome at the rooms of Dr A, that the father wrote back saying that he would be attending.
S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting Order under this Part will have on that right
I have nothing to add.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The issues which I have dealt with regarding the father’s family violence, violence to the children, and his lack of capacity are all equally relevant under this consideration.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family
S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;(ii) the circumstances in which the order was made;(iii) any evidence admitted in proceedings for the order;(iv) any findings made by the Court in, or in proceedings for, the order;
any other relevant matter.
There are two Domestic Violence Orders in favour of the mother. One sought by Police after Y was born. In this episode the father physically attacked the maternal grandparents’ home in a frightening incident involving the father trying to force entry to a locked front door and security screen. The father damaged the screen and the door in a rage, threatening to kill the mother, her parents and others. The father had retrieved a crow bar from his car for use in this attack. The mother was granted a Domestic Violence Order again after separation.
As indicated in this judgment, I accept the mother’s evidence regarding the domestic violence perpetrated upon her and the children. The mother has relayed her experiences of being kicked, punched, denigrated and being punched “black and blue” since she met the father when she was 18. She was often bashed when the father became jealous or accused her of infidelity.
I accept the mother’s account of the violence toward her by the father. The father denied ever harming the mother. I found the mother’s testimony about the father’s violence towards herself, and the children as truthful. The mother throughout the proceedings gave truthful evidence and she was prepared to give evidence against her own interests. The mother has admitted mistakes she has made in parenting. The violence she described the father directed to her and the children has been sustained and at times horrifying. The mother gave her evidence factually, sincerely without embellishment.
The father has admitted to being involved as a perpetrator in a road rage incident when he was younger. The father admitted that on one occasion when the mother left him in 2002 and took Y with her retreating to her parents’ home, that the father “saw red”.
He told the Family Report Writer he went to the maternal grandparents’ home and kicked the security screen and destroyed the screen. He denied kicking the door down. Under cross-examination he said “from memory I was screaming a lot of foul language…Yes I broke the front door – with my foot and my hands”. He denied having a crow bar. He told the Family Report Writer he was “crash tackled and taken to the watch house with a Domestic Violence Order”. The father agreed under cross-examination that the police pepper sprayed him. The mother gave evidence that the father went to his car, pulled out a crow bar and yelled that he was going to kill them all. Her parents and sister in law and Y were all named persons in the Application.
In 2008 the father was involved in an incident with a taxi driver. The father argued with the taxi driver and assaulted him by punching him in the face.
As for denigration and name calling, the mother’s evidence covers insults by the father to herself (fuckwit, fuck head, pathetic, stupid, bitch); the children (stupid, bitch, waste of space, you will amount to nothing) and relevantly X (retard, idiot and princess). The insults directed to Z and Y are particularised in the mother’s affidavit.[18]
[18] Affidavit of 23 August 2017, paragraph 86 onwards.
The father admits that he has sent a range of threatening insulting text messages to the mother. They include “if you want a fucking fight, then ill [sic] give you one”; “you want to turn this into a war then just say the word, I won’t back down and will throw everything into it”; “fuck off then clown” and “bring on this fucking war”. Under cross-examination, the father brushed off these text messages as simply “forming part of part of the DV hearing”.
The father’s violence has a profound and negative effect on his capacity to parent and his attitude towards parenting.
When this hearing was re-opened in November 2017 evidence was given that the father had recently filed for a protection order against the mother. This was filed in the Beenleigh Magistrates Court by the father on 16 October 2017.[19] The description of violence involves a changeover on 13 October 2017 which ultimately did not happen as X was extremely agitated and anxious.
[19] Exhibit M1 – 27 November 2017.
The father’s application for a Domestic Violence Order notes that the changeover did not happen as “Ms Boden had started [sic] that X (Son) didn’t want to come to me for the weekend and was upset to see me. Ms Boden had stood there and told X (7rs Old) in front of me that he needed to tell me that he was anxious and has anxiety because good wasn’t enough. Instead Ms Boden exposed our children to emotional game and roll coaster of moving the car away from me as she claimed I was recording her after she accepted my help. This went on for 1 ½ hours Ms Boden told me that I didn’t care about my sons needs and only think about myself because she had to drive down to the court order change over point”.
The effect on the father is described as “emotionally distressed, worthless, embarrassed, confused, upset, concerned, scared”. There is no mention that X has autism and anxiety or that his behaviour is immensely challenging at times particularly at handovers. This application was filed after the trial concluded in September 2017 and prior to it re-opening in November. I do not consider that the mother has engaged in an act of family violence in trying to assist X to deal with his anxiety.
The father’s history of family violence and violence is a most significant issue in my determination.
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Given the fallout from the separation of these parties and the effect it has had upon Z and Y and that it continues to have on X, I consider it is imperative that final orders are made.
This will enable X to continue throughout the remainder of his childhood without the pressure and anxiety regarding uncertainty in his living arrangements. It also means that he will have the benefit of Court Orders accommodating his specific needs.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant
Whilst the mother has admitted to failing to prevent the father from dispensing violence upon the children, I am satisfied that as an ongoing victim of the father’s violence herself, she was not empowered to do so. I consider that it is in the best interests of X, that the mother engage in a course offered by the Domestic Violence Service as to the cycle of violence. I intend to Order that she does so.
The father, who in my view is very much in need of addressing his inability to regulate his emotions, needs to engage in a comprehensive anger management course as recommend by the Independent Children’s Lawyer.
The relationship between the mother and father is exceedingly poor. They have each not answered the phone to the other. The mother has simply said of the father that he does not answer the phone and the father said of the mother that she does not answer the phone. It seems to me that, up to the point of trial, they had been deadlocked in a non-existent verbal relationship with much hostility.
Neither has attended a Parenting Orders Program, which I have made Orders about and other Orders for attendance at courses in an endeavour to assist these parties to have at least some degree of communication and an ability to have a business-type relationship.
The mother has been managing X’s autism, certainly since separation, and has been the primary parent for X all of his life. The mother has followed the advice of experts and has organised for a psychologist to assess X as directed by Dr A. I note the addendum to the report of Dr A that the consultation was over one hour and 20 minutes, that he contacted the psychologist, Ms C, to receive a copy of all questionnaires. The teachers’ questionnaires were also obtained and he noted the emotional distress score of “90 - very elevated”, defiant aggressive behaviour scores “88 - very elevated” and hyperactivity impulsivity score “90 - very elevated”.
There is no evidence that the mother has interfered with the teachers’ questionnaire and I do not accept as alleged by the father that she would have ever done so. She is well aware of his defiant behaviour, as are the teachers. The subpoenaed records show that the school had an extremely difficult time with the classrooms and teaching areas being directly affected by X’s acting out and violence. Other children have been hurt. For the father to consider that there is a “misdiagnosis” or that the diagnosis for Ritalin by the two doctors ought not to happen and that X did not need some type of serious intervention is wilfully ignorant in light of all the evidence.
Parental Responsibility
Each of the parties are agreed that an Order for equal shared parental responsibility would be unworkable. Given the father’s admissions, and my findings, as to family violence, the presumption of equal shared parental responsibility does not apply.
The presumption is also rebutted as not being in the best interests of X given the father’s violence, lack of parental capacity and inability to provide for the children’s emotional and psychological needs.
I am satisfied that the mother has the appropriate parental attitude, capacity and shown significant parental responsibility in her parenting of these children. I am satisfied that it is in their best interests to have their long term decisions made solely by the mother.
I will make an Order that the mother have sole parental responsibility for the long term decisions regarding X.
Discussion
I have considered all of the issues relevant in this matter.
Y and Z have a good memory of the years of parenting and they remember some very troubling and distressing times with the father. That is not through anything that the mother has done, but their own experience.
The independent professional evidence from Mr S when he was cross-examined was that at the time of interviewing, X has a good and close relationship with both parents. He gave evidence that X ought to live with the parent that will promote the relationship. When he gave evidence in September 2017, Mr S did not have any faith that the recent resolution between Y and Z will be lasting so long as Y remains with her father as the emotional gulf is too wide. He did not think there was any genuine attempt by the father to rectify the situation between Y and the mother. I accept this view as it accords with my own. Certainly the father, on the evidence I have seen, has little tolerance or respect for the mother.
I am satisfied that in the circumstances the mother endured during the relationship and the violence she saw the father inflicting on the children, she had a valid reason to be concerned about their ongoing relationship with the father. I am satisfied that despite the father’s conduct towards the mother, she will promote a relationship between X and the father to the extent that it fits with X’s best interests. The mother has continued to ensure that X has his alternate weekend with the father, save for one occasion. The father has been complaining of insufficient time with X, however, he minimises his past conduct and makes no allowance for the sensitivities of young X.
I have also heard further evidence in November 2017 that X is experiencing difficulties and some distress in his relationship with the father that the Family Report Writer was not aware of. I have read both reports of Mr S and find them very sensitive and thoughtful. I agree with most, if not all, of Mr S’s opinions. He, as I noted, said in his oral evidence that X should live with a parent who will encourage the relationship. I have no confidence that the father will promote a relationship between X and his mother. He did not make any attempt to repair the damaged relationship that Y had with the mother during the seven months Y resided with the father.
I have the impression that the mother has significant insight into her own behaviour and that of all of the children. She is acutely aware and has the skills to deal with Z and Y cutting themselves, of them suffering depression and anxiety and having self-esteem issues. Some of these issues will, no doubt, be directly related to their exposure to family violence. Day in day out, experts in this Court talk about the effect of family violence in children and their inability to sustain relationships, become depressed and blame themselves for breakdowns. All of these things have happened for Y and Z.
The father has a history of an inability in the past to contain himself in his parenting. He has mistreated these children with violence. His conduct is profoundly disturbing. The father’s past violent behaviour and his continued denigration of the mother and his volatility, even in professional settings, causes me deep concerns in terms of his ability to take on the role of the sole decision-maker for X or to be the primary parent. I do not accept the father’s assurances that he now has his temper and anger under control.
The father has spent some time and money objecting to the diagnosis of X or his need for mediation. His aggressive rejection of the diagnosis and consequences of the diagnosis is to the point where two psychiatrists are refusing to see him and have been intimidated by him. This has caused an unnecessary interruption in the triage of medical treatment X should be receiving I am left with the impression that the father’s refusal to accept the diagnosis is linked to his annoyance at the increase in child support because of the extra costs involved in the diagnosis. The mother has dealt honestly and in a child focused way with the professionals assessing and treating X. Her perseverance is showing results.
I am satisfied that the mother has made all of the appropriate arrangements for X and that she has good engagement with the school. The mother also showed her ability to do this in accepting and dealing with complicated psychiatric conditions of both Y and Z. I am satisfied that the mother will organise professional help to deal with the breakdown of her relationship. I am satisfied the mother will comply with her undertaking in this regard.
The father’s violence has a profound effect on his capacity and ability to parent and his attitude towards parenting. The violence to the children has occurred at a time when Z was aged nine and Y was aged around 11 and X was aged around four or five. It continued for some years and the violence against the mother has occurred up to separation and beyond with the continual abuse.
I have had regard to the evidence of Mr S and to both of his Family Reports and to the evidence regarding X’s anxiety and functioning.
Overall, I am satisfied that the mother’s proposal for X to live with her is in his best interest. It means also that he can remain in the primary care of his mother with whom he has a close and caring relationship. It means he can remain in his current school with his teachers and the support offered by the school and that he can remain with the professionals who form the triage looking after him.
There is significant work ahead for the proper care of X and that is ongoing, as set out in Dr A’s advice contained in the mother’s material. Managing a child with autism is a very challenging role as a parent. I am not satisfied that the father has the demeanour, emotional regulations, parenting capacity or skill to take on this significant role. It also means X will be maintaining his sibling relationship by primarily living with his two sisters.
The Family Report Writer observed that the emotional attachment of the children to each other and to their mother remains strong. I also accept that living with the mother means he can remain living with Z and now Y albeit she will probably go her own way in the not too distant future. Overall, I am satisfied that it is in X’s best interests to live with his mother and be primarily parented by her. Her parenting has never been administered with violence.
X has had a good relationship with the father, subject to the most recent concerns expressed by X. I am satisfied that if X spends each alternate weekend, that he will have a meaningful relationship with his father. I will also make Orders for special occasions.
As to the Wednesday night, whilst X is enjoying that time, I consider that it is a good opportunity for the father to spend time with him but not at the expense of X having to travel to the father’s locale. Wednesday after school will occur only in the locale in which X lives.
It may be necessary to change the mid-week night that X spends with the father. It will remain as Wednesday unless X has extracurricular activities that night or other commitments, at which time it will occur on another night. Which night that is will be at the sole discretion of the mother to fit in with X’s arrangement. I do not consider that the two hours spent on Wednesday is pivotal to X keeping up a meaningful relationship with the father.
I am satisfied that X is not able to be away from his mother for long periods of a week or more. It is not in his best interests to spend one half of the holidays with the father. I accept the mother’s evidence that X is struggling being away from her, and also that he is at times lonely at the father’s. I am concerned about the welfare of X whilst staying with the father in light of all of the evidence. I am satisfied that it is in his best interests to spend no longer than weekend time during the holidays with the father. I am most alarmed at the evidence that X has been refused contact with the mother and spends nights being frightened at times.
I will Order that the Father’s alternate weekend continue during the school holiday periods. If the mother wishes to offer the father a longer block of time in the future, if and when the anxiety issues settle down and the reports from X about his time with the father improve, that is a matter for the mother. Other than the alternate weekend time, the father is to have no other block time other than as agreed to in writing by the mother.
I intend to make Orders that the X be permitted to contact his mother by iPad or phone, at times of his requesting to do so. The mother will also be permitted to ring X each day he resides with the father. This is a measure to ensure that he continues to enjoy his time with the father and not feel lonely and isolated, or in fear.
Given what I have referred to in these Orders about the anxiety suffered at handovers by X, I intend to make Orders for the handovers to the father to happen from school. The Sunday handovers and other non-school day collections or returns will occur at the contact centre. I will make the contact centre as nominated by the mother, in the event that change in the future is necessary.
I will make Orders that the father is to comply with providing X’s medication as directed by the mother. I will make other standard orders.
I intend to make orders largely in terms as drafted by the Independent Children’s Lawyer.
I certify that the preceding two hundred and sixty-four (264) paragraphs are a true copy of the reasons for judgment of Judge Willis
Date: 25 January 2018
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Family Law
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Jurisdiction
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