Bookhurst & Bookhurst
[2009] FamCA 6
•16 January 2009
FAMILY COURT OF AUSTRALIA
| BOOKHURST & BOOKHURST | [2009] FamCA 6 |
| FAMILY LAW – CHILDREN – Whether presumption of equal shared parental responsibility rebutted – family violence and its interpretation – interpretation of s.61DA(2) - consideration of best interests of children per s.60CA and s.60CC – whether periods of time to be spent by father with children be supervised – terms and conditions of supervision |
| Evidence Act 1995 (Cth) s140 Family Law Act 1975 (Cth) ss 4(1), 60B, 60CA, 60CC, 61DA, 65AA Family Law Rules 2004 (Cth) s 15.49(2) Crimes Act 1900 (NSW) s562AE(1) Civil Liability Act 2002 (NSW) s 5B(2) |
| Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42 Heaven v Pender (1883) 11 QBD 503 King v Phillips (1953) 1 All ER 617 B and B: Family Law Reform Act 1995 (1997) FLC 92-755 Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 Wyong Shire Council v Shirt (1980) 146 CLR 40 V v V (2002) FLC 93-112 |
| APPLICANT: | Ms Bookhurst |
| RESPONDENT: | Mr Bookhurst |
| FILE NUMBER: | SYC | 1832 | of | 2007 |
| DATE DELIVERED: | 16 January 2009 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | The Hon. Justice Rose |
| HEARING DATE: | 17-21 November 2008 and 5 December 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | D. Hausman |
| SOLICITOR FOR THE APPLICANT: | Karras Partners |
| COUNSEL FOR THE RESPONDENT: | S. Wheelhouse S.C. |
| SOLICITOR FOR THE RESPONDENT: | Slade Manwaring |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | A. Connor Legal Aid NSW |
Orders
That all current parenting orders in relation to the three children of the parties L born … November 1997, D born … June 1999 and S born … December 2000 (“the children”) are discharged.
That the parties have equal shared parental responsibility in relation to major long term issues concerning the children save and except that the mother shall have sole parental responsibility in relation to the health, religious and cultural upbringing of the children AND THAT pursuant to s 65DA(2) and s 62B Family Law Act 1975 (Cth) the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
That the children live with the mother.
That the children spend time and communicate with the father as follows:
During school term
(a)On an unsupervised basis from 9.00am until 6.00pm each alternate Saturday commencing on the first Saturday at the end of the first week in each school term.
(b)On an unsupervised basis from after school until 7.00pm each alternate Wednesday commencing in the second week in each school term.
(c)On a supervised basis in lieu of Order 4(a) from 9.00am Saturday until 6.00pm Sunday each alternate weekend provided that:
(i)The supervisor shall be Mr P Bookhurst, Ms Z or another person agreed upon between the parties in writing.
(ii)The father has given the mother 14 days written notice or such other period of written notice as the parties may agree upon.
(d)The father shall take such of the children to and from all pre-arranged sport and social activities for that child or children during the periods of time that the children are in his care pursuant to these orders.
(e)On Father’s Day each year from 9.00am until 6.00pm should it fall on a day or a weekend when the children are not otherwise in his care.
(f)On the father’s birthday from 9.00am to 6.00pm in the event that it falls on a weekend day, not the subject of the orders and from the conclusion of school until 8.30pm in the event that the birthday falls on a week day.
(g)On the birthdays of the children from the conclusion of school or 3.00pm whichever last occurs until 8.30pm in the event that the relevant birthday falls on a weekday or on a day on a weekend when the children are not otherwise in his care.
(h) Such alternative or other periods of time as the parties may agree upon.
During end of term school holiday periods
(i)For five consecutive days from 9.00am until 6.00pm each day or for such other period of time or days as may be agreed upon between the parties in writing upon the following conditions:
(i)Each period is supervised by one or more of the persons referred in Order 4(c)(i).
(ii)The father gives the mother no less than 21 days written notice of the relevant period sought by him.
(iii)The father takes the child or children to and from all pre-arranged sport and social activity for that child or children.
(iv)The final day concludes at 6.00pm no later than the last Saturday prior to the commencement of the following school term.
(v)The father shall give the mother seven (7) days written notice of the relevant period sought by him in the current school holidays
That Orders numbered 4(c) and 4(i)(i) are varied in that the period of time referred to shall be unsupervised and overnight as and from the expiration of seven (7) days from the date that the father furnishes the mother with a report from a psychiatrist or pyschologist which states:
(a)The name, place of practice, qualifications, and experience in providing adult therapy.
(b)The Reasons for Judgment given this day has been read by him/her.
(c) The nature and extent of therapeutic treatment provided to the father.
(d)The unqualified opinion that the father does not nor is it reasonably forseeable that he will pose a risk to the three children or any of them of him of engaging in abusive behaviour, physical or emotional to or in the presence or hearing of the children or any of them regardless of the period of time including overnight periods that may be spent by such children or child in the care of the father.
That the children shall communicate with the father by telephone on each Tuesday and Thursday between the hours of 6.00pm to 7.00pm or as otherwise agreed from time to time and for the purpose of such communications:
(a)The mother shall ensure that the children have access to her landline or mobile telephone number and that one or the other is available to the children at the specified time.
(b)The father shall telephone the children on either the mother’s landline or mobile telephone number at the time specified or in the absence of a child the mother will ensure that the child will return his call as soon as possible.
(c)The mother shall use her best endeavours to encourage the children to speak to the father.
That the Orders which provide for the children to spend periods of time and communicate with the father are suspended as follows:
(a)On the mother’s birthday for the whole of the day should it fall on a day during which the children are due to be in the care of the father pursuant to these Orders.
(b)The whole of the day on which the following Jewish religious services / holidays / celebrations take place:
(i)First and second days and nights of Pesach
(ii)First and second days and nights of Rosh Hashanah
(iii)The eve, day and night of Yom Kippur
(iv)The first night of Chanukah
(v)The first day and night of Succot
(vi)Purim
(vii)Simchat Torah
(viii)The Bar Mitzvah or Bat Mitzvah of the two eldest children and the youngest child respectively
That in the event of the father wanting to travel with the children in Australia during the school holiday period that they are due to spend in his care he shall provide 14 days written notice to the mother of the destination, description and place of accomodation and telephone number relevant to such travel.
That for the purpose of orders providing for time to be spent by the father with the three children, unless otherwise agreed, the mother or her nominee shall take the children to the front of the father’s premises and collect them from such place or any other place agreed upon between the parties.
That the father shall, in the event that the children ask, facilitate the children telephoning the mother during any period when they are in his care.
That the father is hereby restrained from:
(a)Discussing these proceedings with or in the presence or hearing of the children or any of them.
(b)Denigrating or making any critical or adverse comment about the mother or any members of her family or friends or any professional that the children or any of them are consulting in the presence or hearing of the children or any of them and he shall use his best endeavours to ensure that no other person conducts himself or herself in that fashion.
That the father and mother shall inform each other in writing of their current residential address, telephone number and email address and shall notify the other in writing of any change in these details at least seven (7) days prior to such change.
That all communications between the parties shall be via email in the first instance but if not practicable then by sms text or telephone call.
That in the event of the three children or any of them suffering a serious injury or illness whilst in the care of one of the parties then that party shall immediately notify the other party of the nature of such injury or illness and the name address and telephone number of the relevant hospital or medical practitioner.
That each of the parties may publish copies of the following documents to the health professional consulted by him or her or the three children or any of them:
(a)These orders.
(b)The Reasons for Judgment given this day.
(c)The reports of Associate Professor Q dated 12 December 2007 and 10 July 2008.
That all documents produced on subpoena may be returned to the person who produced the same.
That the proceedings be removed from the active pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Bookhurst & Bookhurst is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1832 of 2007
| MS BOOKHURST |
Applicant
And
| MR BOOKHURST |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings the parties seek parenting orders in relation to their three children:-
(1) L, eleven years of age having been born in November 1997 (“[L]”);
(2) D, nine years of age having been born in June 1999 (“[D]”);
(3) S, eight years of age having been born in December 2000 (“[S]”).
The applicant Ms Bookhurst (who for convenience I shall refer to as the “the mother”) sought orders pursuant to her application filed 14 March 2007. That application was subsequently amended unopposed by the minute of orders sought by her which became Exhibit 22. The substantive orders sought by the mother are that:-
(1)The mother have sole parental responsibility for the three children in relation to the major long term issues concerning them.
(2)The three children live with the mother.
(3)The mother have sole parental responsibility in relation to the daily care, welfare and development of the three children.
(4)The three children spend time with the father on a supervised basis once a week during school term; three consecutive days during each of the school holiday periods and on other specified occasions and that the periods of time with the father be suspended on certain nominated religious holidays.
(5)The father may communicate with the three children by telephone twice a week.
(6)Each of the parties be restrained from discussing these proceedings in the presence or hearing of the three children and from making any derogatory remarks about each other or any member of the other party’s family to or in the presence of hearing of the three children.
Ancillary orders were also sought by the mother. The mother also sought that there be a notation that the father had conceded that he had difficulty managing his anger and recognised the need to undertake consultations with his psychiatrist.
The respondent Mr Bookhurst (who for convenience I shall refer to as the “the father”) sought orders in accordance with his Response filed 23 March 2007. The Response was amended in accordance with the minute of orders sought by the father which became Exhibit 11. The substantive orders sought by the father are that:-
(1)The three children live with the mother.
(2)The three children spend time with the father overnight on alternate weekends from 9am Saturday until 6pm Sunday.
(3)Each Wednesday from after school until 7pm and the father to take the three children to any of their scheduled activities and the mother to collect them thereafter.
(4)For the period of five days over the Christmas school holiday period 2008/2009 to be spent in the company of either the father’s brother Mr P Bookhurst and/or the father’s friend Ms Z.
(5)Five days during each of the three mid-term school holiday periods.
(6)Upon the expiration of six months from the making of the orders so sought the alternate weekend period previously referred to be extended to before school on Monday morning.
In both the case summary document lodged on behalf of the father and in subsequent submissions it was made clear that the father opposed the rebuttal of the presumption of equal shared responsibility provided in section 61DA.
The father also sought that the court note his personal undertakings that he will participate with the mother and the three children in attending family therapy for a minimum of six months from the date of the orders and further that he will maintain his fortnightly consultations with his treating psychiatrist or his successor for a period of not less than six months subsequent to the making of those orders.
The principal issues for determination for the purpose of the making of parenting orders:-
(1)Whether the presumption of equal shared parental responsibility has been rebutted on either of the grounds contained in sub-sections 61DA(2) and (4) and if so, the terms of an order that should be made in accordance with section 60CA.
(2)The extent of the periods of time that the three children should spend with the father.
(3)Whether the periods of time that the three children spend with the father should be supervised.
The issues referred to in sub-paragraph (2) and (3) must be determined in accordance with the best interests of the three children.
There is no issue that the three children live with the mother with whom they have been continuously living since the parties separated on 23 August 2006.
Expert evidence was given by the appointed single expert Associate Professor Q. Associate Professor Q provided two reports dated 12 December 2007 and 10 July 2008 which were received as Exhibits 3 and 4 respectively. Associate Professor Q also gave oral evidence.
Limited expert evidence was adduced by way of correspondence only in relation to a diagnosis of the father provided by his treating psychiatrist Dr M which is different to that given by Associate Professor Q. That correspondence, which is contained in Exhibit 1 was admitted without objection. Leave was not sought to call Dr M to give evidence by way of affidavit and/or orally. In that regard senior counsel for the father submitted that the father was “precluded” from calling such evidence. As I pointed out to senior counsel that submission was incorrect. It was apparent to me that senior counsel may not have been accurately instructed. On 1 May 2008 I dismissed an application made on behalf of the father that he have leave to adduce evidence from another psychiatrist, Dr G. The sole ground relied upon was Rule 15.49(2)(c) in that there was a “special reason” for seeking to adduce such evidence. The case for the father on that occasion was that Associate Professor Q was biased against the father. However, no application was made on that occasion or since by the father for leave to adduce evidence from another expert witness relying on the different ground in Rule 15.49(2)(a).
The parties cohabited for a period of approximately ten years which commenced in June 1996 which largely continued until they finally separated on 23 August 2006. They have lived separate and apart from each other continuously since that time. There had been a previous period of separation of approximately six or eight weeks in July and August 2003.
The parties married in August 1996 and the marriage continues to subsist, absent evidence or information furnished to me by counsel to the contrary.
The mother is 48 years of age and is engaged on a part-time basis as an occupational therapist.
The father is 47 years of age. He practices a profession.
The mother lives with the three children in V.
The father lives in E.
Relevant Orders
The following are relevant orders made in these proceedings.
On 12 April 2007 the Independent Children’s Lawyer was appointed.
On 1 August 2007 Judicial Registrar Loughnan made interim parenting orders which provided for the three children to live with the mother and that they spend time with the father during school term overnight on Wednesday from 5.30pm; and each Sunday from 4.00pm until commencement of school on Monday and alternate weekends from Saturday 9.30am until commencement of school Monday, as well as from 9am Sunday to 9.00am Tuesday each week during school holidays, unless the parties otherwise agree. In addition each of the parties was restrained from denigrating the other in the presence of the three children and from discussing the proceedings with them or in their presence.
On 15 October 2007, the first day of the hearing was completed in accordance with the Less Adversarial Trial procedure. Orders were made by consent in relation to the appointment of Associate Professor Q as the single expert and for the preparation by her of a single expert’s report to deal with matters specified in the minute of order signed by the parties.
On 1 November 2007 orders for property settlement were made by consent.
On 20 December 2007 the husband’s application for interim parenting orders was withdrawn and he was ordered to pay the wife’s costs of $3,443.20.
On 22 February 2008 I made procedural orders following the release of the single expert’s report dated 12 December 2007. Following submissions made by the solicitors made by the parties, I noted the following issues for determination:-
(a)The views of [L] born […] November 1997, [D] born […] June 1999 and [S] born […] December 2000 the children the subject of these proceedings (“the three children”).
(b)The nature of the relationship between the three children and the parties as well as members of their extended families the father’s partner and her child.
(c)Family violence.
(d)The capacity of the parties to provide for the physical and emotional needs of the three children.
(e)The parental attitude of the parties.
(f)The likely effect upon the three children of living with or spending greater periods of time with the father.
Additional orders were made that day:-
(1)That no affidavit be filed by a party to the proceedings without leave of the Court.
(2)That any affidavit filed and served with the leave of the Court only address the “specific issues” permitted by the Court order granting such leave.
(3)That any affidavit filed pursuant to these Orders be in a format where each “specific issue” appears as a separate heading and the facts the witness wishes to rely upon in relation to that issue appear immediately thereunder.
(4)That no witness statement be served on a party without leave of the Court.
(5)That any witness statement served with the leave of the Court only address the “specific issues” permitted by the Court order granting leave to serve the witness statement.
(6)That any witness statement served pursuant to these orders be in a format where each “specific issue” about which the statement is permitted to provide information, appear as a separate heading and the facts the witness wishes to rely upon in relation to that issue appear immediately thereunder.
(7)That Order 1 dated 15 October 2007 is discharged.
On 1 May 2008 I made the following orders:-
(1)That Associate Professor [Q], the single expert in these proceedings, is requested to prepare and provide a supplementary report which addresses the impact of the diagnosis provided by her of the father’s mental state in relation to parenting issues AND that report be provided to the independent children’s lawyer as soon as possible for immediate distribution to the Court and the parties’ legal representatives.
(2)Orders as sought in paragraphs 1 and 2 inclusive of the Application in a Case filed 7 March 2008 on behalf of the wife and reproduced as follows:
“1. That the husband be restrained from:
1.1Doing any act or thing to interfere with such therapeutic consultations as may be arranged by the wife with Ms [F].
1.2Denigrating, criticising or in anyway undermining the children’s consultations with Ms [F], including the need for consultations and the purpose and objective of such intervention.
2.That in order to facilitate the children’s consultations with Ms [F]:
2.1The expert’s report prepared in these proceedings by Associate Professor [Q] on the 12th December, 2007 be released to Ms [F] upon her undertaking not to further release the report to any person or discuss the contents thereof with anyone other than the parties in these proceedings.
2.2The husband pay all fees payable to Ms [F] and it be noted that the husband’s payment of such fees can be taken into account by the Child Support Agency in calculating the husband’s child support obligations pursuant to a Child Support (Assessment) Act 1989, to such extent that the Agency thinks fit.
2.3Leave be granted for Ms [C] to uplift her file produced to this Court pursuant to Subpoena and to make that file available to Ms [F], provided Ms [C] causes a photocopy of her file to remain with the Exhibits Registry of the Court.”
(3) Costs reserved.
(4)That the application of the father for leave to adduce further expert evidence is dismissed
On 7 July 2008, the continuation of the hearing in accordance with the Less Adversarial Trial procedure was set down for five days commencing on 17 November 2008. Directions were made.
On 11 July 2008 I made the following orders:-
(1)That Orders 1(a), 1(b) and 2 made 1 August 2007 are set aside.
(2)That the three children of the marriage [L] born […] November 1997, [D] born […] June 1999 and [S] born […] December 2000 (“the three children”) spend time with the father for four (4) consecutive hours weekly commencing at noon each Saturday under the supervision of [Ms Z].
(3)That for the purpose of parental change-over in accordance with these Orders the mother shall deliver the three children to the outside of the father’s premises at the commencement of each relevant period on the basis that they are met by [Ms Z] AND at the conclusion of such periods the three children are returned to the care of the mother outside those premises by [Ms Z].
(4)That such further or alternative periods of time on a supervised basis by [Ms Z] may be spent by the three children or any of them with the father as the parties may agree upon from time to time in writing.
(5)That the first occasion of supervised periods of time with the father take place from 12 noon on 12 July 2008.
(6)That the father notify the mother as soon as possible in the event that the supervisor, [Ms Z] is unavailable to attend for any particular period of supervised occasions as referred to in these Orders.
(7)That an order is made in terms of Order 3 of Exhibit A being the Minute of Orders sought by the mother as follows:
“3. That the father be restrained from approaching or attempting to approach the children other than as provided in these Orders.”
On 6 November 2008 directions were made.
On 17 to 21 November 2008 and 5 December 2008 further evidence was given and submissions made. Judgment was reserved.
Relevant Legal Principles Pursuant To The Family Law Act 1975 As Amended (“The Act”)
Section 60CA of the Family Law Act 1975 as amended (“the Act”) makes it clear that in deciding whether or not to make a parenting order in relation to a child:
“A Court must regard the best interests of the child as the paramount consideration.”
That provision is re-emphasised in section 65AA.
For the purpose of determining what is in the child’s best interests I am required to consider the matters in sections 60CC(2) and 60CC(3). In the course of doing so, I should also consider the matters in section 60B, which set out the Objects of the provisions of Part VII of the Act in relation to the children and the principles that underlie those Objects. In substance, they include the benefit to children of their parents having:
“a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; protection of children from physical or psychological harm as a result of being subjected to, or exposed to, abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to assist in them achieving their full potential and ensuring parents fulfilling their duties and meeting their responsibilities concerning the care, welfare and development of their children”. {emphasis added}
The principles underlying those Objects, in summary, include:
(a)children having the right to know and be cared for by both parents;
(b)children having a right to spend time with and communicate with both parents and other significant persons on a regular basis;
(c)the joint sharing by parents of duties and responsibilities in relation to their children;
(d)the imperative for parties to agree about future parenting of children; and
(e)the children’s right to enjoy their culture including with others who share that culture.
It is important to note that section 60B(2) provides an important exception to the principles underlying the Objects to which I have referred. That exception is “when it is or would be contrary to a child’s best interests” {emphasis added}. To that extent, the recent legislative amendments to the Act in relation to children continue what has sometimes been described as “the over-arching principle”[1], namely that the best interests of a child is the paramount consideration. Findings of fact in that regard are required for the purpose of making a parenting order.
1)B and B, Family Law Reform Act 1995 (1997) FLC 92-755
I am then required to evaluate all relevant issues and the facts in relation to the same in order to reach a conclusion, which is in the best interests of the three children, the subject of these proceedings.[2]
2)B and B, ibid
In carrying out my task it is important to note that no presumption as to orders that should be made arises, nor does either party carry any particular onus for the purpose of the conduct of the proceedings.[3]
3)B and B, ibid
Relevant Matters Pursuant To Section 60CC
I make the following findings in relation to relevant additional considerations pursuant to the provisions of sections 60CC(3). I will refer to the “primary” considerations in the Conclusion having regard to those findings of fact.
Section 60CC(1) makes it clear that for the purpose of “determining what is in the child’s best interests” I am required to consider what are described as “primary considerations” as well as “additional considerations”.[4] The exception is found in section 60(5) where an order is sought by consent. For obvious reasons, that is not relevant in these proceedings.
4)Section 60CC(1)
The primary considerations are:
“(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.”[5]
5)Section 60CC(2)
For the purpose of the primary considerations, it is necessary to make findings of fact without which the conclusions which must be reached cannot be achieved. That will involve findings in relation to one or more of the discrete matters that are described as “additional considerations” in order to be the substratum of facts or factual platform for the purpose of “the primary considerations”. For example, findings in relation to the nature of the relationship that a child has with each parent and the parental capacity of each of the parties to provide for the needs of the child are surely in a given case necessary factual findings for the purpose of reaching a conclusion regarding the benefit to the child of having a meaningful relationship with both parents.
Similarly, the second primary consideration relating to the need to protect a child from physical or psychological harm will require findings on a historical basis of any family violence and consideration of family violence orders, each of which are discrete matters which are part and parcel of what are described as “additional considerations”.[6]
6)Section 60CC(3)
Consequently, I propose to make findings of fact in relation to matters that are signposted in section 60CC(3) to the extent to which they are relevant in these proceedings. Those findings of fact will then be referred to by me in my conclusions in respect of both “primary considerations” and “additional considerations” for the purpose of the ultimate determination of the best interests of the two children and the parenting orders that will be made.
Views expressed by the three children and relevant factors
Each of the parties gave direct and indirect evidence in relation to the views of the three children.
The evidence of the mother is that one or more of the children has from time to time resisted or objected to spending periods of time with the father due to his emotional outbursts on a number of matters. The father’s evidence is that the three children have welcomed and enjoyed periods of time spent with him. That evidence is corroborated by Ms Z so far as recent periods of time are concerned. Extensive evidence in relation to this matter was given by Associate Professor Q both in Exhibit 3 and in the course of her oral evidence. In Exhibit 3, Associate Professor Q observed that the three children “were very anxious about speaking of their feelings and feared repercussions from their father if they did.” As a result, Associate Professor Q stated that it was appropriate to report in relation to the comments collectively. Associate Professor Q summarised their views as follows:-
“It was evident that they have experienced him as angry, that they are fearful of his anger but they are also fearful of speaking of the problems. There was an emphasis that they do not like going backwards and forwards between two households, but it is likely that this is an issue that they can focus on and magnify without necessarily saying anything about their father without having to specify that they do not wish to reside with him.”
Associate Professor Q was cross-examined at length in relation to this and other matters. Associate Professor Q summarised the situation as she saw it in the sense of there being a dilemma for the three children, namely, “that they love him and have a strong attachment to him. If they did not they would simply be angry and refusing contact. But as it is they are very anxious and agitated because there is the dilemma of they want to be with him and yet they don’t feel safe.” Associate Professor Q gave evidence that the negative aspect of the views of the children in terms of safety would be ameliorated by there being present a friend or relative of the father with whom they are happy such as Ms Z.
I accept the evidence of the independent expert Associate Professor Q in preference to that of the parties. Her evidence which I have summarised was repeated and explained by her in different ways throughout her oral evidence. The background which implicitly informed the views of one or more of the three children is represented by the violent and abusive conduct of the father witnessed or heard at times by one or more of the three children and their anxiety being accentuated post separation due to the lack of presence of the mother in the household of the father during the course of periods of time that the children have spent with him.
The nature of the relationship of the three children with each of the parties and other persons
It is not a matter of controversy that the children have a loving relationship and primary attachment with the mother. It is also not disputed that the three children have a fond relationship with the maternal grandparents. They have a good relationship with Ms Z and her son.
Exhibit 3 contains a summary of Associate Professor Q’s conclusion in relation to the father, namely:- “Although the three children are strongly attached to their father they are also ambivalent and fearful of him.”
Lengthy evidence was given by Associate Professor Q during the course of cross-examination by senior counsel for the father. In the context of the relationship of the three children with the father by way of contrast of pre-separation with post-separation periods, Associate Professor Q expressed the opinion that a factor that has arisen subsequent to the separation of the parties is that the three children “are feeling fearful when they’re spending time with their father without their mother present and I think we can probably say that we know that the father is not functioning as well and there is reason for them to be fearful. And the symptoms are – if the children have been traumatised in some ways. The symptoms are much the same.” At the same time, Associate Professor Q reiterated that the children have a strong attachment to the father.
I accept the evidence of Associate Professor Q which was given in a detailed and impressive way. Accordingly, I find that the nature of the relationship between the three children and the father is as described in paragraph 49 hereof.
The willingness and ability of each of the three children’s parents to facilitate and encourage a close and continuing relationship between themselves and the other parent
It is apparent from my earlier findings that I accept that the mother has a willingness to facilitate a meaningful relationship as referred to in this particular matter, subject to the children being safe and protected from the alleged lack of capacity of the father to contain his impulsive and angry outbursts to them or in their presence.
I accept the conclusion in Exhibit 3 that the father has the appropriate willingness so far as the relationship between the three children and the mother is concerned, subject to the periods of time that he contends that the children should spend with him.
Family violence and any family violence orders
The recent amendments to section 4 of the Act define “family violence” as follows:
“Family violence means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal well-being or safety.
Note: a person reasonably fears for, or reasonably is apprehensive about, his or her personal well-being or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal well-being or safety.”
An issue of statutory interpretation arises for the purpose of the meaning of “a reasonable person” in the circumstances referred to in the notation to section 4 above. The Explanatory Memorandum seeks to provide guidance by referring to “fear or apprehension of violence must be reasonable” with reference to the Domestic Violence Act 1994 (SA).[7] The Reading Speeches do not provide further assistance.
7)The Explanatory Memorandum, ibid, paras 20-22
Unfortunately, the South Australian legislation does not advance the matter any further, although, consideration of it is relevant, especially as the standard of proof is the civil standard. I make a similar observation in relation to section 562AE(1) of the Crimes Act 1900 (NSW). The reported judgments in relation to the legislation in South Australia and New South Wales that I have read do not assist in the issue of statutory interpretation. Similarly, I have not been able to gain specific guidance from a review of the Anti-Discrimination Act 1997 (NSW) or the Sex Discrimination Act 1984 (Cth).
However, assistance is gained from section 5B(2) of the Civil Liability Act 2002 (NSW) which provides criteria for determining “whether a reasonable person would have taken precautions against a risk of harm” which includes “the probability that the harm would occur if care was not taken”.
In the tort of negligence the standard of the reasonable man is well known. In Cook v Cook, the High Court followed the earlier definition given in Commissioner of the Railways (NSW) v Anderson[8] namely, “the conduct that would be expected of a reasonably careful man in such circumstances”.[9] The well known earlier English decisions made reference to “the ordinary person” which seemed to be synonymous with the “reasonable man” as being a “hypothetical person of ordinary prudence, intelligence and skill under the circumstances”.[10]
8)Commissioner for Railways (NSW) v Anderson (1961) 105 CLR 42 at 56
9) (1986) 162 CLR 376 at 382
10)Heaven v Pender (1883) 11 QBD 503; King v Phillips (1953) 1 All ER 617
I have not researched this matter further as it would be important to have received considered and analytical submissions from counsel. Without being critical of them, that did not occur as understandably their submissions were focused on other issues which appeared to have more emphasis in the evidence that was adduced.
My conclusion in the circumstances is that “what is reasonable is clearly going to depend upon the position and perspective from which the question is viewed”.[11]
11)Pace “Concepts of reasonableness” and the academic material referred to therein (2003) QUT LJJ12
Applying as best I can the guidance in legislation and the cases to which I have referred, I have concluded that for the purpose of the definition of “family violence” the “reasonable person” is a person of ordinary prudence and intelligence who would have the fear or apprehension in the circumstances of the person who is alleged to have it in a particular case. In this case, it is the mother due to the subsequent findings made by me.
In that regard, section 140 of the Evidence Act 1995 (Cth) provides that I may take into account, on the balance of probabilities, the gravity of the matter alleged for the purpose of being so satisfied.
The following is a summary of the relevant evidence given by the parties and my findings of fact. The expert evidence of the single expert, Associate Professor Q, will be the subject of a separate section in this judgment. My reference to “abuse” or “abusive conduct or behaviour” is on the context of emotional abuse.
In 1996, when the father was driving the parties, he became angry at a slow driver in front of him. The father removed a metal club-lock from his car, stepped out while double parked and walked towards the other vehicle holding the lock in a threatening way. Upon the mother calling out to the father he stopped and returned the metal lock to the floor of the motor vehicle. Implicitly, they then continued.
Shortly after the mother learned that she was pregnant during October 1996 and upon the mother saying to the father that she wanted to tell her sister, the father suddenly became angry, picked up a kitchen chair by the leg as if to throw it but put it down upon the mother calling out to him. The father claimed that the mother’s sister had been rude to him and he vented his resentment and swore about her. The mother was upset. Subsequently the mother miscarried, although there is no evidence linking the father’s angry actions with that event.
Some months after the birth of the parties’ first child L, the father informed the mother of his anger at the maternal grandfather during the course of and immediately following a dinner that he had had with the maternal grandparents. He said to the mother “I should have smashed your fucking father through the glass window.” Upon the mother suggesting to the father that he should apologise to the maternal grandfather, the father became enraged and said to the mother “I want a divorce. The only reason I did not smash your father’s fucking face in was because I remembered he had the brain tumour surgery.” In subsequent years, when speaking to the mother, the father repeatedly referred to the maternal grandfather as “quite a reptile”, “your reptilian father”, “your fucking father”, “your ugly fucking father”. The father admitted the substance of this evidence but sought to correct it.
On 31 December 1997, whist the parties were walking in V to observe the New Year’s Eve fireworks, the father was holding L, then a baby in a carry-pouch on his chest. A teenager bumped into the father who thereupon ran after the teenager whilst still continuing to hold the baby in the pouch. Upon returning he said to the mother “I hit him – his teeth will be sore because my fist made contact with him.” The father admits that he assaulted that teenager as alleged. He stated that he did so as the teenager forcefully bumped into him, apparently intoxicated and the child could have been injured. The father does not deny that his violent reaction occurred whilst he was holding the baby. Implicitly he gave no thought to his conduct endangering the baby’s safety.
In about March 1998, whilst the parties were sharing a holiday house with friends, the father became angry following a discussion with one of their friends. The father insisted that the parties leave and they then rented another flat. Whilst the mother was feeding L and in the course of the father drinking wine, he became angry with the mother due to his perception of her inability to consider his wellbeing. The mother became upset. The father screamed at her and then disappeared for about four hours.
The next day the father became enraged while the parties were walking on the beach with L. In the course of so-doing, the father punched his sunglasses into the sand and then screamed out “I have to go to hospital.” He then said he needed to go to hospital as he hurt his knuckles punching the glasses.
In or about 1998, whilst the mother was sitting on the bed feeding L, the father admits that he punched the bedroom door repeatedly and put a hole in it. His evidence is that he acted this way out of a sense of frustration and to emphasise the point (whatever that may have been) to the mother. He left their home for several hours. The mother alleges that some months later she noticed another bedroom door had a punched hole in it. The mother contends that the father told her that he did it. The father’s evidence is that he does not recollect such an incident.
The mother alleges that in about March 1999 whilst she was pregnant with D, she asked the father if he could feed L. L was crying. The mother contends that the father assaulted her by grabbing her, pushing her and holding her by the arms and in the course of doing so pinned her against the refrigerator whilst at the same time shouting that he wanted a divorce. The mother at the time was about six months pregnant. The mother claims that some time after that incident she told the father that if he ever laid a hand on her again she would telephone the relevant authorities. The father denies he assaulted the mother in the manner described by her.
In about 1999, the father became angry with the mother’s brother in law. One evening some months later the father told the mother that he had woken up thinking about that incident and had been unable to sleep all night as “I was so enraged about [name].” The father spent some time pacing around the home agitated.
One morning in about September 2000, the mother alleges that the father stood naked in the kitchen, held a carving knife to his throat and then said to the mother in an agitated manner “Do you want the children to have a father – Yes or no?”. The two eldest children were playing close by in another room. The father admits the substance of the allegation of his conduct and claims that nothing happened following that incident.
In about May 2002 the father admits that he told the mother that he had thought of plunging a knife into his stomach. The mother then consulted the parties’ general practitioner to seek advice and assistance for her to be able to cope with the father. The general practitioner gave her a referral to a psychiatrist.
During the same year the father angrily smashed a wine glass on the floor whilst the children were in close vicinity.
During 2003, the mother claims that the father frequently made remarks to the children to the effect of “I will leave and have another house.” That happened following him losing his temper and disappearing from the home for the night or days at a time. The children were upset by the father’s statements. His moods fluctuated from charming and happy to frightening, thunderous rages within minutes.
The father admits that in about 2002 he threw a plastic soft-drink bottle with such force that it bounced from the floor and hit the ceiling. That occurred in front of the children. The ceiling was damaged. The father claims that he did that out of frustration.
The father admits that in a fit of temper, due to his frustration with the mother, he broke a hairbrush. That occurred in the presence of one or more of the children.
In about 2003, the mother complemented the father in relation to his painting of a front fence and asked him how he was going to paint the base as it appeared difficult. The father took her comments as being offensive, commenced to shout at her and the mother said to him that he was “paranoid”. The mother entered the family room. The father then grabbed the mother from behind, threw her backwards onto the lounge and knelt astride her whilst gripping her wrists. The children were present. They were upset. The father said to her “Don’t you ever call me paranoid again. They said my mother was paranoid and they killed her.” The mother claims that she suffered marks on her wrist and bruising. The father denied the physical violence or that the children were present.
The mother claims that during 2003 whist the father became enraged with L, then about six years of age, he forcibly picked him up by the arms and shouted at him. The child trembled. The father put the child down upon the mother shouting his name. The father states that in relation to those allegations what occurred was “something akin to it”. He denies shouting. He says his comments were heated. A distinction without a difference.
The mother alleges that at approximately 7.30am in about July 2003 while she was in the kitchen and made a comment to the father about him doing the dishes, he rushed up behind her and “grabbed me violently by my arms and forced me to my knees. I cried out in fear while the children stood in the kitchen watching.” The mother further alleges that whilst struggling to release herself from the father’s grip “his hand came across my face and stuck my left eye, which was and remains fragile following a trabeculectomy operation performed in 1995.” The mother further alleges that as a result of the father’s action, a cut was caused to her eyelid which bled and she could not see.
The mother also contends that the father continued to shout at her standing over her as she was on the floor crying and repeatedly berated her. The mother states that upon her saying that she would call an ambulance, the father replied “No, they will call the police.” The children who were in the kitchen were fearful and distressed.
The mother further states that the father said that he had called the maternal grandfather. He soon arrived and took the mother to the Sydney Eye Hospital where she underwent emergency treatment. The mother claims that she sustained bruising to each arm as a result of the father’s violence towards her.
The mother states that she did not seek an Apprehended Violence Order as she had wanted to preserve the marriage and was fearful of the father’s response. He had also told her that he “cannot [practice a profession] if I have any criminal convictions.” The father left the home for 3 weeks. The mother also states that the father mentioned to her subsequently that he had seen a psychiatrist and was on medication.
During the course of the father’s evidence, he stated that the mother claimed that she had cancer from overwork. He admits that he “grabbed her by the wrists violently.” He states that the mother was unaccustomed to physical violence and that she sank to her bottom and as she did so her finger poked her eye.
The father further admits that he had been in a heated argument and had been angry but never out of control. He stated that if he had lost control he would have hit the mother, but has never hit her. He denied that his hand had come into contact with the mother’s eye as his hands were curled around her wrists.
He denies that the children were in the room when the event occurred.
The father further admits that the mother did say that she would call an ambulance and that he replied that the police would then be called and he was concerned about the effect on his practice.
The father stated that he did call the maternal grandfather. The father’s evidence also was that so far as he was concerned he “was disgusted by her exaggerated behaviour” and that “her level of hysteria was chilling.” He admitted that his behaviour was “an instance of domestic violence.” He moved out of the home for some weeks. He acknowledged “some” responsibility. He concedes that the two boys were shocked and that they had heard the commotion. Upon the maternal grandfather arriving at the home, the father took the three children to his office and the mother came by later and collected them. The father did not ask the mother about her eye as he was “disgusted by her exaggerated behaviour.”
The mother alleges that on 23 March 2005, whilst she was putting S to bed, the father, who had been drinking in the lounge room, stood at the bedroom door near the mother and became angry without provocation. The mother claims that the father walked towards her “threateningly raising a full bottle of wine over my head as if to strike me.” The mother states that she was terrified and slowly moved out of S’s room, and while she stood in the lounge room, the father proceeded to shout at her. The mother remained silent with her eyes downcast. The mother states that then the father put the bottle down, grabbed both of her arms and pushed her against the wall and pinned her in that position. The mother claims that the father continued a tirade about her making statements such as “Your reptilian family”, “Why did you marry me” and “You’re a reptile.” He then left the home and stayed away for the night. L told the mother the next morning that he had heard everything. The mother developed bruising on both arms and consulted the general practitioner who allegedly told her that based on the history given by the mother which was consistent with a history given by the father to him, that the father in effect had Bipolar Disorder and lacked control over his anger. The general practitioner provided a script for medication for the father and a letter to him. The father admits that he launched a “white-hot tirade” to the mother. His evidence also is that he was worried about being very angry although did not have a loss of control. He states that he telephoned the maternal grandfather “to protect himself”.
The mother states that a few days following the father’s return from the home she was awoken by the father who demanded the script which the mother reminded him that she had given to him. He denied that he was depressed. He then insisted that the mother read a statement from the general practitioner which stated that the father did not have Bipolar Disorder (corroborated by Exhibit 7). The father moved towards the mother, extending his arms in a threatening way, he then pulled them back. The mother further states that shortly following this incident she sought advice from a psychologist and counsellor so as to have guidance in dealing with the father and try to stay married. The mother was given the Domestic Violence Helpline number and urged to call her and the helpline as well as her sister at any sign of emergency.
The mother called the Domestic Violence Hotline on 9 April 2005. The mother subsequently was informed that the person to whom she had spoken had issued an alert to the Department of Community Services (“DOCS”).
The mother was interviewed by an investigator from DOCS on 13 April 2005. The mother states that she was frightened at the thought of a DOCS intervention due to fear of an uncontrolled rage of the father being provoked. The mother provided a statement and in the course of which she alleges that she minimised the father’s violent behaviour and withheld information for fear of the father’s response.
During the course of the father’s evidence, he denied having threatened the mother with the full bottle of wine. He admits that he had been drinking red wine and engaged in a “one way tirade to her.” He says that he told the mother amongst other things “when executing your little scheme to acquire a sire for your children, did you think you would be ruining another person’s life.” The father says that he then told the mother that the marriage was “a dead duck”. He says he had a “modus vevendi” in that he was often pleasant on the surface as he wanted to give his daughter nine months of further attention as he had given to his two sons. He told the mother that he would leave in March 2006. The father’s further evidence is that when he consulted the general practitioner on 28 March 2005 he was both bewildered and terrified as a major psychotic drug had been prescribed for him. He considered that the general practitioner had engaged in professional misconduct. The general practitioner was his friend and the father’s evidence is that the general practitioner was very pleased that the father had not taken the medication. The father had apparently had a further consultation with the general practitioner on 1 August 2005 during the course of which he said he informed the general practitioner that he was concerned as his increasing consumption of Vallium and Nicorettes and considered that he had an addictive personality reflected in his consumption of wine and Normiston as well. The father’s evidence is that the general practitioner recommended a 36 year old psychologist for further consultations. However, the father wanted an older more mature person and raised the option of his admittance or treatment at the Northside Clinic. The father states that the general practitioner informed him that the Northside Clinic was not suitable.
The mother further alleges that in 2005 the she said to D implicitly in the father’s hearing “If you get married and have children you will be happy in your life.” Upon the mother entering the bedroom the father appeared and said to her angrily “That if you ever tell [D] that getting married and having children will make him happy I will kill you and all of your family.” The mother claims that she froze in fear.
The father denies the allegations by the mother referred to in the last paragraph. He states that he had said to the mother in the car “bitterly” that he hoped that their sons never had to go through what he had gone through.
The mother alleges that the father has caused the children to be fearful of him. The mother claims that in about 2005 that the father said to her that “I blew a head gasket with [L].” The father denies that he himself has referred to his own episodes of rage or anger as “going ballistic”. The father concedes the scale of his reaction at times particularly on an occasion when he was angry with L, although he says that he did not scream and shout at him when the child could not find his jumper, that upon provocation the father’s scale of reaction is his responsibility.
The father admits that in 2006 he said to the mother “At your mother’s funeral I will go and laugh at your father.” The maternal grandmother has been suffering from Parkinson’s Disease. The father stated that what he said was “awful”, that he felt a lot of hostility to the paternal grandfather and what he said was “hot air” in that he would never disrupt a funeral.
The father admits that on 11 October 2006 upon arriving with his brother, Mr P Bookhurst, to collect the three children he said to the mother “with heat and venom” that “You are a fucking monster. You are selfish. I wish I had never met you. You are a despicable shit.” The mother claims that this incident was heard by the three children and by the father’s brother. L and S were upset and D went to the car. The father claims that the children were out of view. He does not deny that they heard him in all likelihood. He admits that his brother was present as he said to him “Don’t be fooled by appearances. She has the blackest heart imaginable.”
The father also admits that on the last mentioned occasion he said to the mother “I hope you contract an incurable disease and die. I hope you burn. I wish I’d never met you. You are a monster.” The father claims that he was provoked as he was being deprived of contact with the three children and otherwise had contact with them at the mother’s whim.
The mother claims that she was fearful and called to the father’s brother to stay and not leave as she was in fear of being assaulted by the father. The father’s brother did remain after the father had left.
The mother states that later that evening she spoke to the father’s brother, Mr P Bookhurst, and upon asking him how the children were he replied “It is a complete turnaround from what you just saw. They are fine and [the father] is now calm.”
The mother contends that the father’s brother telephoned her the next night and he said to her “How are you? [The father] cared for the children well and they are fine. I advise you strongly to seek advice for your own safety. What I witnessed concerns me greatly. Get help immediately to get strategies in place for your protection. Drop everything you are doing and get the children cared for by someone else – Get help urgently. You cannot speak from the grave.” He suggested to the mother that handover of the children to the father should take place in a public place.
That evening the mother telephoned the Domestic Violence Helpline for advice and had the locks changed. Subsequent changeover for the children has occurred by her delivering them outside the father’s apartment or at an agreed public place.
The father’s brother swore an affidavit on 6 November 2008 and subsequently gave oral evidence. His affidavit evidence is that the father has a “loud temper” but he did not take it seriously. He further states that “over the years, I have seen [the father] stressed in the family setting – letting off copious steam.” That did not alarm him.
In relation to the incident on 6 October 2006, the father’s brother describes that as “an ugly incident”. He states that in his affidavit that the father said to the mother words to the effect of “that he hoped she would catch a disease and die.” He also states that during that telephone conversation with the mother a few days later he encouraged the mother “to allay her fears by telling [the father] to meet her in a park or outside a police station for the hand-over of the children during parental visits. I also encouraged her to allay her fears by getting a guard dog.”
During the course of his oral evidence the father’s brother stated that during the incident on 11 October 2006 the father “was enraged and shouting” at the mother, they were about two metres apart. He could not say if the children were physically present. He confirmed that the mother said that she feared for her personal safety, and it was in that context that she should act urgently by getting a guard dog and changing the locks.
The mother alleges that generally during the marriage, the father demonstrated a volatile and unstable temperament and that she developed submissive behaviour to avoid any situation which might provoke his anger and violence. The mother claims that “we” implicitly herself and one or more of the three children “lived our family life in constant fear that there was always the trigger of provocation” from unintended word, action or lack thereof, or facial expression, or mention of someone who the father disliked. On the other hand the mother states in her primary affidavit that there were many happy and enjoyable times for the family.
There is evidence of the father’s continued verbal and written abuse of the mother during last year notwithstanding the pending parenting proceedings between them. The evidence for the mother is that during May 2008 during the course of a telephone conversation between the parties relating to matters affecting the children, the father lost his temper and shouted to the mother “you filthy lying animal, you filthy vermin.” L who was next to the mother at the time overheard the father’s remarks.
On 15 May 2008 the mother emailed the father in relation to arrangements for L and Scouts referred to the father’s telephone abuse described in the last paragraph and the distress that it had caused to L. The mother’s email was met with a written response by the father the next day namely 16 May 2008 which contained further personal abuse of the mother. That written response concluded with the paragraph “I am grateful that I have an interest in Soviet and Nazi history; for there one finds that monsters like you are relatively common.” The written communications to which I have referred are Exhibit 6. During his oral evidence the father confirmed that the sentiments expressed by him about the mother in his email 16 May 2008 were his genuine sentiments both then and now. He stated that while he did regret calling her a monster, he does not regret thinking it and he meant the reference to Stalin and Hitler.
Evidence of Associate Professor Q
The single expert, Associate Professor Q, provided two reports dated 12 December 2007 and 10 July 2008 being Exhibits 3 and 4 respectively.
In Exhibit 3, Associate Professor Q referred to history given by the mother of the father being “volatile, angry and threatening”. Whilst recognising that she did not have independent information in that regard, Associate Professor Q expressed the view “that the presentation of the children tends to confirm that this has been the case.” Consequently Associate Professor Q considered “there is reason to be concerned about [the father’s] volatility.” Associate Professor Q gave her diagnosis of the mother as a person who “had some post-traumatic features which is often the case in a relationship in which there is violence.”
With regard to the father, Associate Professor Q provided diagnosis that she defended psychologically against his problematic childhood “by developing a narcissistic defence (meaning an attitude of grandiosity that serves to defend against feelings of rejection, of lack of worth)”. Associate Professor Q proceeded to then express the opinion that the father “has personality disturbance with marked narcissistic borderline traits and some paranoid thinking.”
In Exhibit 4, Associate Professor Q has set out in considerable detail the information which led her to the diagnosis to which I have referred otherwise set out in Exhibit 3.
Counsel cross-examined Associate Professor Q at some length. In confirming her written diagnosis of the father, Associate Professor Q explained that the broad category of personality disorder to which she referred was in a “Cluster B” category which includes borderline, narcissistic, and histrionic antisocial traits. People with borderline traits have difficulty with emotional regulation and are prone to impulsive behaviour, outbursts of anger and volatile relationships. Narcissistic trait is characterised by a rather self-centred focus. Associate Professor Q expressed the further opinion that the father had marked features of “Cluster B” personality disorder.
Associate Professor Q’s evidence was that the father understood the nature of the assessment that was to take place having regard to not only that his lawyer implicitly knew that the terms of reference included that matter.
Associate Professor Q stated that in relation to her diagnosis of the father suffering from a borderline personally disorder, if there was a dispute between the treating clinician and the forensic assessor in relation to the diagnosis, then there may be important reasons to consider that the clinician has a better view of the individual and a longer-term understanding of those reasons. In that regard, Associate Professor Q conceded that should the clinician have seen the person concerned over a long period of time, then the clinician may have the longer view of the person concerned rather than the forensic person who has only seen the individual once or twice. In regard to what is meant by “a long period of time” Associate Professor Q stated that it would represent a person observed regularly by the clinician over a period of a year or more.
Associate Professor Q also agreed that she was at a disadvantage compared to a physician who has worked with the family for a long period of time.
Associate Professor Q agreed that should the father have exhibited a sense of his relevant behavioural features then he is making progress.
There is no dispute that the father has been consulting Dr M, Psychiatrist during 2008. I accept the father’s evidence that he first consulted Dr M on 15 April 2008 and had consequently weekly consultations with him until 3 June 2008. The father recommenced weekly consultations with Dr M from 25 August 2008. Exhibit 21 contains copies of brief reports dated 21 October 2008 and 10 November 2008 from Dr M to the father’s general practitioner. In the first of those reports, Dr M provided a diagnosis of the father as suffering “from an adjustment disorder with anxiety and depressive features secondary to ongoing Family Law Court proceedings.” He prescribed Vallium and Normiston for the father. Weekly consultations were taking place “for supportive cognitive behavioural therapy.”
In Dr M’s second brief report was the opinion that the father did not require regular medication at that time. He also offered the opinion in relation to the father “I do not see that the adverse effects of stress preclude him from caring for his children; In fact, I believe it is in the best interest of his children and [the father] that they have regular contact.” There was an absence of evidence of the history that Dr M had taken from the father. Dr M’s clinical notes were not adduced in evidence. Leave was not sought to call Dr M to give evidence in relation to his diagnosis of the father’s mental state in comparison to that provided by Associate Professor Q. As referred to earlier in this Judgment, senior counsel for the father informed me that he considered that the father was “precluded” from taking that step. I explained to him that he was under a misapprehension in that regard. I have set out the relevant material in that respect in paragraph 11 hereof. A subsequent application for leave to be granted to call Dr M was not made.
I accept the evidence of Associate Professor Q in relation to her diagnosis of the father. It was provided in a detailed fashion and explained at some length in her oral evidence with appropriate acknowledgment of the progress that the father may be making or potentially can make in therapy. I do not accept the contrary diagnosis provided by Dr M as it was unable to be tested. In addition, Dr M had not been the father’s treating psychiatrist for the lengthy period which Associate Professor Q considered would have given him priority in his diagnosis compared to hers.
Credit
An issue of credit arises due to the clash of evidence given by each of the parties in relation to the mother’s allegations of violent and abusive behaviour by the father.
Reviewing the evidence of the parties and their demeanour in the witness box, I have concluded that I prefer the evidence of the mother to that of the father wherever that evidence is in conflict, save and except her allegation that the father injured her eye in the course of his violent behaviour in 2003. So far as that allegation in concerned, I am not satisfied on the balance of probabilities that he did injure her as alleged. It is conceivable that the mother’s injury was caused accidentally by the action of one or other of the parties. I am not satisfied that the onus of proof has been discharged by the mother bearing in mind the provisions of section 140 of the Evidence Act 1995 (Cth)[12].
12)Neat Holdings Pty Limited v Karajan Holdings Pty Limited (1992) 67 ALJR 170 at 170-171
I am satisfied that the mother is a witness of truth having regard to the consistency and the substance of her evidence and also relying on my observation of her answers and the manner in which she gave them during the course of strong cross-examination by senior counsel for the father. I accept her evidence of explanation for failing to give DOCS officers the full and accurate version of the father’s violent conduct. I also accept her evidence of striving to preserve the marriage and arranging an intimate anniversary celebration shortly prior to the separation despite such conduct.
So far as the evidence of the father is concerned in relation to disputed allegations of fact, I have taken into account the admission that he has made of violent behaviour, shouting and tirades directed to the mother and his longstanding difficulties over many years in controlling his outbursts of anger, his recognition of the need to have professional assistance to improve his control over his impulsive poor behaviour in that regard, his continuation of verbal and written abuse of the mother last year, notwithstanding that at the time he had been consulting with a psychiatrist. These proceedings were of course pending last year and obviously that did not result in the father being able to refrain from continuation of his abusive conduct to the mother.
I am satisfied that notwithstanding that I have preferred the evidence of the mother to that of the father, I considered their different evidence more a reflection on the father’s part of perception, or preferred reconstruction of events, rather than dishonesty. I find that the mother’s allegations of the father’s violent and/or abusive conduct towards her did occur as alleged by her, save and except for her allegation of him having injured her eye to which I have made previous reference.
In making those findings, I have relied upon the detailed and plausible evidence given by the mother and my resolution of the conflict of evidence as between the parties on the basis of their credibility as witnesses, as well as the father’s admissions with respect to certain of those allegations.
The likely effect of any changes in the three children’s circumstances, including the likely effect of any separation from either parent or other child or person with whom the three children have been living
In view of the earlier findings that I have made in paragraphs 51 hereof, I accept the evidence of Associate Professor Q, set forth in Exhibit 3, that the children exhibit anxiety and fearfulness so far as being in the care of the father is concerned in comparison to the care that they experience from the mother.
The practical difficulty and expense of the two children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the two children’s right to maintain personal relations and direct contact with both parents on a regular basis
This is not an issue that arises for consideration.
The capacity of the parties and any other person to provide for the needs of the three children including emotional and intellectual needs
There is no issue that the mother has the capacity to provide for the physical and intellectual needs of the three children. It is clear from the father’s case that he qualifies the mother’s capacity to provide for the emotional needs of the three children in that she has been allegedly obstructive in the post separation maintenance and continued development of the relationship between the three children and the father. I do not accept that contention. The mother’s anxiety in respect of the periods of time to be spent by the three children by the father rests upon her experience of his violent and abusive conduct towards her, at times displayed to one or more of the three children either in their presence or in their hearing. I have accepted her evidence in relation to the father’s propensity for impulsive and angry outbursts to the mother, as well at times to one or other of L or D. Subsequent to the separation of the parties, he has made abusive telephone calls to the mother, also at times within the hearing of one or more of the three children. I accept that the mother has been motivated at all times to ensure that the three children are protected from the effect of the father’s temperamental shortcomings.
So far as the father is concerned, I accept the evidence in Exhibit 3 that it was clear to Associate Professor Q that “the father obviously regards the children very positively and describes them in very positive terms.” There is no dispute that he provides for the daily physical needs of the three children. The real issue arises in relation to the father’s capacity to provide for the emotional needs of the three children.
The capacity of the father in that respect must be considered in the light of the emotional state of the three children. In Exhibit 3, Associate Professor Q expressed the opinion that the three children were affected by anxiety, fear and depression. Associate Professor Q further opined that:-
“Both boys [L and D] are quite depressed and anxious about these issues and [S] is clearly very anxious and her drawings have a depressive quality. [D’s] nightmares are of concern and suggest that he has been an anxious child since very young. It seems very likely that this is related to experiencing anger in the home.”
In Exhibit 4, Associate Professor Q concluded that she had concern “that [L] is so distressed and that he appeared to be clinically depressed. The impression was that [D] was equally depressed but he tends to express this in a very irritable and short tempered way and he feels that nobody can do anything about the situation anyway. [S] was clearly very reluctant to say anything.”
During the course of cross-examination by senior counsel for the father, the issues were raised regarding the absence from Exhibit 3 and 4 of a clinical diagnosis of the three children in accordance with DSM IV and in particular a diagnosis of the three children suffering from separation anxiety disorder brought about by their separation from the father post separation of the parties.
During the course of her oral evidence, Associate Professor Q stated that there is no doubt that the three children “are troubled and they’re troubled because of the current situation and I don’t think it’s possible to extract one element and say that is the cause because they have got to deal with the break-up of the family. They’re no longer living with their father. There is ongoing conflict between their parents. Their fears that they have expressed about their father’s anger, so I don’t think that you can take one of those facts and say that is the sole cause of their disturbance, but they have, like children going through a very difficult divorce, a lot of things to cope with.” Associate Professor Q emphasised that the three children like the father and have a wish to be with him and “yet they have some fearfulness as well.”
Associate Professor Q expressed the view that she has provided focus on the father’s borderline personality disorder “because that’s what has the most significance in terms of the welfare of the children.” Associate Professor Q further gave the opinion that the latter factor “has the most significance because it poses the most serious threat to their stability and wellbeing.”
Associate Professor Q stated that the three children were at risk because of their possible genetic predisposition to a disorder and environmental factors in addition.
It was implicit that the latter included a number of matters and that the separation of the parties was not the major issue for the three children. With regard to the contrast of the emotional state of the three children prior to separation and since, she concluded that the three children were “feeling fearful when they’re spending time with their father without their mother present and I think that we can probably say that we know that the father is not functioning as well and that there is reason for them to be fearful.” Associate Professor Q referred to symptoms of the three children suggesting traumatisation.
Associate Professor Q accepted that technically one could include the three children as suffering a separation anxiety disorder and that significant anxiety or trauma in childhood will predispose a child in that manner. The separation of the family unit, Associate Professor Q considered as having been major problem for the three children. Whilst restricted access to the father was considered by Associate Professor Q to being a contributing factor to the anxiety experienced by the three children, she was of the view that it was not “the major concern.”
With regard to the position of the three children by way of contrast prior to separation of the parties and since and taking into account the allegations of domestic violence in the former period, Associate Professor Q stated “it is possible that the children were buffered from their father’s anger by the presence of the mother and that may have been an important factor in them not being asymptomatic during that period. And the situation now is when they spend time with their father the mother is not there or not in the background as a kind of buffering mechanism, and I also think that the whole process of separation probably has exacerbated the father’s lack of control of his feeling as well.”
With regard to her expert opinion not being expressed in her reports with DSM particularity, Associate Professor Q stated that in her view “the court is not supported by DSM precision with children as much as it is assisted by understanding the nature of the relationship between the child and the parents and the capacity of the parents to provide for the children.” Associate Professor Q explained that she did not follow what had been put to her as “rigorous current psychiatric approaches to ascertainment of anxiety disorders in children” as in her view that was not what is required by the terms of reference for the Family Report. The report is concerned with the matters vastly outlined by her including a family relationship, attachment patterns, the nature of the relationship with the parents, the parents’ parenting capacity and their mental status.
I accept the evidence of Associate Professor Q in relation to the emotional state of the three children and the relevant factors in that regard. I was impressed that her evidence was given in a considered detailed fashion with appropriate expansion and explanation.
I find that the father has a significantly qualified capacity to provide for the emotional needs of the three children due to being affected by the psychiatric diagnosis of him provided by Associate Professor Q and the impact on his parenting referred to in Exhibit 4 as “the borderline features of impulsivity, affective instability, and anger impairs the ability to parent effectively and may predispose to violent outbursts to partner and/or children.” Those features also include what Associate Professor Q has described as “the narcissistic feature of lack of empathy is most damaging in terms of parenting young children with a capacity to respond empathetically and be attuned to the children’s needs and feelings is critical.”
The maturity, sex, lifestyle and background (including culture and traditions) of the three children and of the parties with other relevant characteristics
I find that the three children have the maturity commensurate with their ages affected by their emotional issues to which I have referred.
The parental attitude of the parties
I find that each of the parties has an appropriate parental attitude to the three children save and except that so far as the father is concerned, his attitude is significantly qualified due to his lack of insight and/or sensitivity to the effect upon one or more of the three children of his verbally abusive behaviour to the mother and his past violent conduct towards her, as well as his qualified capacity to provide for their emotional needs as found by me.
Conclusion
The mother proposes that she have sole parental responsibility in relation to the major long term issues concerning the three children as defined in section 4(1) of the Act. There is no issue that an order should be made that the three children live with the mother.
In addition, the mother proposes that the three children spend periods of time with the father from 10.00am until 6.00pm each Saturday; for three consecutive days during school holiday periods and on other specified occasions on the condition that all of such periods of time that the children spend time with the father shall be supervised by one or more specified persons as set forth in Exhibit 22. The mother seeks an order that there be a suspension of the orders for periods of time to be spent by the three children with the father on certain particular religious occasions. An order is sought that the father be able to communicate with the three children twice a week between 6.00pm and 7.00pm. Ancillary orders are also sought.
In substance, it is submitted on behalf of the mother that she has been the primary carer of the three children, particularly since the parties separated, communication between the parties is poor and the father has a history of violent and abusive conduct towards her in so far as verbal abuse is concerned, that has not abated since separation and indeed continued during last year whilst these proceedings were pending and the father was seeking psychiatric assistance.
The father proposes that there be a parenting order which provides for the parties to have equal shared parental responsibility in relation to the three children. In addition he seeks orders that the three children spend periods of time with him on an unsupervised basis during school term on each alternate weekend from 9.00am Saturday until 6.00pm Sunday and each Wednesday until after school until 7.00pm with a requirement that he take the three children to their scheduled activities.
In addition, the father seeks orders that the children spend periods of time with him represented by five days over the current Christmas school holiday period to be spent in the company of either his brother and/or Ms Z as well as the same period of time in each of the three mid-term school holiday periods. No doubt by way of inadvertence Exhibit 11 being the orders sought by the father does not refer to subsequent Christmas school holiday periods. However, I have assumed that he is seeking an order for the same period of time on those occasions. Exhibit 11 paragraph 4 is in the following terms:-
“That the Court note that the Father has taken advice from Dr [M] as to a suitable family therapist for the purposes of implementing Order 1.1 herein and that Dr [M] has put forward the name [Ms NJ], psychologist and family therapist of […] – telephone: […] and the Father accepts such recommendation.”
Paragraph 4 of Exhibit 11 is against a background that the father has consulted Dr M, psychiatrist, for different periods during 2008 commencing in June of that year so that he may be assisted in overcoming his serious mental health issues in relation to the underlying causes of anger and abuse in respect to which he has a long history.
The Independent Children’s Lawyer seeks orders in accordance with Exhibit 18. Amongst the orders so sought are that the mother has sole parental responsibility for the three children and that the father spend periods of time with them for three consecutive Saturdays from 1.00pm to 5.00pm supervised by one of specified persons and thereafter each Saturday during school term from 10.00am to 5.00pm and each Wednesday from after school until 7.30pm. In addition, there should be orders which provide for 5 days overnight during school holidays. An undertaking is sought by the father to the court that he “maintain weekly appointments with a treating psychiatrist for as long as it is requested by that psychiatrist.”
Section 61DA(1) makes it mandatory to “apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.” That presumption may be rebutted. The grounds relied upon for that purpose by the mother and the Independent Children’s Lawyer are the grounds set forth in sub-sections 2 and 4 of s61DA.
Section 61DA(2) is in the following terms:-
“The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence”
The findings of fact that must be made are based on belief implicitly by the Court arising out of the phrase “reasonable grounds to believe”. That is a curious and perhaps unhelpful legislative drafting which is encountered usually in the criminal jurisdiction as civil proceedings are almost without exception based upon findings of fact which ground ultimate conclusions and orders, whether in the exercise of discretion or not, and subject to the relevant principles that apply. “A belief” is a different matter from “suspicion”. In Hussien v Chong Fook Kan Devilin LJ held that “suspicion” “in its ordinary meaning is a state of conjecture or surmise where proof is lacking: I suspect that I cannot prove”.[13] That dicta was followed by in the High Court in George v Rockett in which the judgment of the Court held “the facts which can reasonably ground a suspicion may be quite insufficiently reasonable to ground a belief, yet some factual basis for the suspicion must be shown.”[14]
13)(1970) AC 942 at 948
14) (1990) 170 CLR 104 at 115
So far as “belief” is concerned, as distinct from “suspicion”, the High Court in the same case held “belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds that can reasonably induce that inclination of the mind made, depending on the circumstances, leave something to surmise or conjecture.”[15]
15)Ibid at 116
I have made findings of fact in relation to family violence perpetrated by the father quite apart from his emotional abuse of the mother which on occasions adversely affected one or more of the children. It follows that those findings are sufficient to give me the “reasonable grounds to believe” which must be established for the purpose of rebuttal of the presumption of equal shared parental responsibility. The terms of section 61DA(2) do not provide for the exercise of discretion so far as rebuttal of the presumption is concerned in contrast to the drafting of section 61DA(4). Accordingly, I have determined that the presumption is rebutted relying upon section 61DA(2). Consequently, there is no need for me to consider the ground contained in section 61DA(4).
Notwithstanding that I have determined that the presumption of equal shared parental responsibility has been rebutted, it is still open to me to make a parenting order which in its terms provides for equal shared parental responsibility. The reason is that a parenting order must be made in accordance with section 60CA in relation to which the best interests of the children are the paramount consideration. I have concluded that it is in the best interests of the children for there to be orders which provide for the mother to have the sole parental responsibility for the major long term issues in relation to health, religion and cultural upbringing[16] and that the parties have equal shared parental responsibility for the remainder of the major long term issues. My reasons are as follows. The High Court has held that I am not bound to make orders as sought by the parties.[17]
16)Section 4(1)
17)U v U (2002) FLC. 93-112 at 89,077; 89,082; 89,089; 89,102
The mother is the primary carer of the child and has fulfilled that role both prior and subsequent to the separation of the parties. The mother has carried out that role at times in difficult circumstances due to the father’s violent and abusive conduct towards her at times in the hearing of one or more of the children. The vitriol and abuse that the father has directed to the mother has continued since their separation. Not surprisingly, communication between the parties is poor.
Serious emotional heath issues have affected the three children and in particular the two boys. The father has resisted those children in particular receiving expert professional help subsequent to the parties’ separation. Ultimately, interim orders were made by me to ensure that those children have the opportunity to receive the benefit of professional assistance of a psychologist which they clearly needed in their best interests. Notwithstanding the father’s previous objection to one particular psychologist, there was no evidence before me of any constructive sensitive approach that he had put forward as an alternative by way of consultation with another psychologist. Indeed, the evidence of correspondence passing between the solicitors for the parties showed a lack of ability and will of the father to appreciate the seriousness of the situation and to use his best endeavours in a positive way to assist the child or children concerned.
In addition, the father has had his own serious emotional issues to contend with and which are ongoing. Fortunately, he has been receiving psychiatric assistance since June 2008 although not on a consistent basis. So far as the major long term issue of religious and cultural upbringing is concerned, the children have been brought up in a household in which the Jewish religion and culture has been celebrated at the behest of the mother, her extended family and with the positive support of the father. To that extent, it has been to his credit as otherwise discord would have been a further potentially troubling issue to be dealt with, not only by the parties, but also by the children. However, communication between the parties is poor and the father has a history of being prone to abusive outbursts to the mother which cannot be understood in the circumstances which then prevailed. Until such time as the father has the benefit of therapy, I do not have confidence that communication in relation to those matters between the parties is likely to be fruitful. Consequently, I have found that it is in the best interest of the children that the mother have sole responsibility for the major long term issues that I have designated. With regard to the remainder of the long term issues, the parties appear to be at one. Education both current and future does not appear to be the subject of controversy between them and despite poor communication that exists between the parties I have concluded that it is reasonable to anticipate that they will avoid disagreement in relation to that matter. Other of the major long term issues did not have significance in the evidence before me. It is in the children’s best interests for the parties to not only share, but equally share, parental responsibility in relation to the matter to which I have referred. The substance of such parental input should be for their benefit generally and in terms of continuing to strengthen the relationship that the children have with both parents.
With regard to periods of time that the three children should be able to spend with the father consistent with their best interests, I have determined that those periods will, to a significant degree, reflect part of the substance sought by the parties and the independent children’s lawyer. I have also determined that it is in the best interests of the three children that such periods of time which do not include overnight with the father will be unsupervised, but that so far as overnight periods are concerned, supervision will be required until such time as the father provides to the mother a report from a therapist which contains certain matters to which I will subsequently refer. My reasons are as follows.
I have made findings in relation to the father’s violent behaviour to the mother including assaults, the apprehension of violence and the emotional abuse that he has directed towards her both prior and subsequent to the separation of the parties. I accept the evidence of Associate Professor Q that unfortunately the father is “a troubled” man. He has a history of serious anger over many years and has demonstrated a lack of ability to avoid vitriolic abuse of the mother for much of their relationship, including during last year.
I accept the evidence of Associate Professor Q that so far as the relationship between the children and the father is concerned in the context of the father’s emotional health issues “the most important thing is how does the mental disorder impact on the children because some people can have quite serious mental disorder but it is not impacting necessarily on the child. That’s the important thing. In this case I think the risk to the children is uncontained emotional volatility and sometimes physical, of course, but most particularly angry emotional outbursts. That needs to be contained. But the children have fundamentally a very strong and significant attachment and that needs to be sustained.”
Associate Professor Q also emphasised and I accept that “safety is the first requirement. The safety and then quality, yes. Quality is much more important than quantity in terms of sustaining an attachment relationship.” Subsequently, Associate Professor Q also stated “if there is no possibility in the regimen of contact for the children to have some good experiences with their father then there isn’t much point to it, no.”
I have made findings as to the strong and positive aspects of the relationship that the three children have with the father. That needs to be sustained in circumstances in which they are likely to be safe. Consideration needs to be given as to how to deal with the stress of the father’s “emotional volatility” including his anger which he has demonstrated he cannot always control, whether directed to the children or not, including but not limited to derogatory comments to the mother which may arise in the course of a telephone conversation or, if they are physically present at the same place such as the “contact” changeover or, perhaps on public occasions. The difficulty on the evidence before me is being able to predict circumstances in which the father may be in a mood which gives rise to such negative behaviour by him.
I accept the evidence of Associate Professor Q that the longer the period of time that the three children spend with the father, the more likelihood there is of those unfortunate aspects of his behaviour being directed towards them should he have feelings of frustration or annoyance in coping with them.
To the father’s credit he has stated in his evidence that he recognises that he has had a longstanding “anger” problem. There is no doubt that is correct. It has existed for many years and cannot be sheeted home to the stressors of the pending litigation between the parties or indeed their relationship or aspects of the marriage relationship. His difficulties in that regard have been exacerbated by consumption of alcohol and other substances such as Nicorettes. The fact that the father has now acknowledged that he has had these difficulties and has sought and continued receiving psychiatric treatment since June 2008, provides some confidence that he is likely to be able to care for the children on an unsupervised basis during the day. An overnight period raises the potential problems alluded to by Associate Professor Q whose evidence I have accepted.
As is apparent from Exhibit 11, the father himself has requested that I note that he has received and accepted advice from his psychiatrist and that he undergo family therapy. The mother for her part does not consent to take part in such therapy nor does she consent to the children or any of them taking part. The children have been receiving professional assistance from a psychologist and I have every reason to believe that the mother will continue to devote herself to their wellbeing, including continuing to ensure that they have such further consultations as she may be advised. The most important adult who needs therapy is the father.
Whilst it is a positive step that the father has taken, it still leaves open certain practical issues. They include the mother being informed that such therapy has actually occurred and the progress that therapy for the father has achieved, as well as of course an improvement in the father’s emotional health as a result of therapy having reached the stage that there can no longer be a reasonable basis for concluding that he is, or will be, a risk to the children of abusive behaviour. I consider that it is only reasonable that the mother be placed in a position where she receives a written professional report from the therapist who the father proposes to consult which satisfactorily deals with all of those matters. I have accepted that the mother, being a parent who is dedicated to the best interests of the children, has at all times had to deal with the difficulties of assisting the children in maintaining a loving relationship with their father and yet have the worry of their safety based upon her own direct experiences of the father’s behaviour over a long period of time.
Consequently, I have determined that an order will be made which provides for the father to have unsupervised overnight periods of time with the children upon him providing to the mother a report from his therapist which outlines the nature and extent of the therapeutic treatment provided to the father and the therapist’s unqualified opinion that the father does not, nor is it reasonably foreseeable that he will, pose a risk to the three children or any of them of engaging in abusive behaviour. The concept of reasonable foreseeability is well known in the law and has been applied to professionals. That is made clear in the High Court’s judgment in Wyong Shire Council v Shirt[18].
18)(1980) 146 CLR 40 at 48 per Mason J with whom the majority agreed
I will make orders that each of the parties may publish copies of these reasons for judgment, orders to be made this day and the reports of Associate Professor Q to any health professional consulted by him or her or any of the three children. Such an order will enable such a health professional to be fully informed for the purpose of the expert assistance that such a professional can provide.
In setting out the orders I will make, I have given much weight to the primary considerations set forth in section 60CC(2). In this case, as in many other cases, there is an interlapping between those two primary considerations. The orders that I will make will provide benefit to the children of having a meaningful relationship with not only the father, but both of the parties and yet at the same time provide protection for them as is required, so far as it is possible to apply the purpose of those considerations. The strong relationship that the children have with the father will be able to be continued for some periods on an unsupervised basis. On other occasions, supervision will be required consistent with the expert evidence which I have accepted. In addition, supervision will come to an end on provision of the report from the therapist to which I have referred, bearing in mind that therapy is a matter which the father himself has assured me through Counsel that he will undertake. It is a matter for him to ensure that he does engage in such therapy and continues it to a successful outcome which can only be of benefit not only to him and indirectly the mother, but particularly the children.
I have also given weight to the genuine distress and anxiety that the mother has experienced in terms of her deep concern to protect the children from the father’s potential unpredictable anger and possible physical or emotional abuse.
I will make an order suspending the order for periods of time to be spent by the father with the children as sought by the mother. There was no controversy of substance, if at all, in that regard.
I certify that the preceding one hundred and seventy-six (176) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rose
Associate:
Date: 16 January 2009
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