Brandon and Brandon (No. 2)
[2012] FamCA 374
•10 May 2012
FAMILY COURT OF AUSTRALIA
| BRANDON & BRANDON (NO. 2) | [2012] FamCA 374 |
| FAMILY LAW - CHILDREN - With whom a child lives - Where there are allegations of family violence - Where the Father admits to having substantially contributed to the alienation of the parties' three children from their mother - Where the Mother requests that the youngest child live with her and have no contact for a moratorium period of several months with the Father, his siblings or the paternal family |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) |
| Jurss & Jurss (1976) FLC 90-041 |
| APPLICANT: | Ms Brandon |
| RESPONDENT: | Mr Brandon |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Kingston |
| FILE NUMBER: | BRC | 10849 | of | 2009 |
| DATE DELIVERED: | 10 May 2012 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Kent J |
| HEARING DATE: | 10-13 and 18-19 April 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Hogan |
| SOLICITOR FOR THE APPLICANT: | Legal Aid Queensland |
| COUNSEL FOR THE RESPONDENT: | Ms McDiarmid |
| SOLICITOR FOR THE RESPONDENT: | Springwood Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Anderson |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Norman & Kingston |
Orders
Parental responsibility
The Father have sole parental responsibility for A Brandon, born … November 1996 (“the child A”).
The Mother have sole parental responsibility for the child, Y Brandon, born … May 2001, (“the child Y”).
Where the children shall live
The child, A, live with the Father.
The child, Y, live with the Mother.
The Mother be permitted not to disclose to the Father the address at which Y is living with her from time to time, and Y shall live with the Mother provided that the Mother:
(a) not relocate Y to live outside the radius of 200km from South East Queensland town S, absent the written consent of the Father or further Order of the Court; and
(b) keep the Independent Children’s Lawyer informed of a contact telephone number and address for the Mother and inform the Independent Children’s Lawyer in writing of any change within seven (7) working days of such change.
Should Mr Brandon (“the Father”), fail to deliver the child Y to Child Dispute Services on the date this judgment is delivered pursuant to the Order of this Court of 26 April 2012, then pursuant to s 67Q of the Family Law Act 1975 (Cth) (“the Act”), a recovery Order issue and be directed to the Registrar and the Marshal of the Family Court of Australia at Brisbane and to all officers or agents of the Australian Federal Police and to all officers of the police services or police forces of the States and Territories of Australia, authorising and directing them at any time and with such assistance as they require and if necessary, by force, to stop and search any vehicle, vessel or aircraft and to enter and search any premises or place where there may be reasonable cause to believe that the Father may be found and to take possession of Y and deliver Y to Ms Brandon (“the Mother”).
All police officers and agents referred to in these Orders be at liberty to proceed on a facsimile copy of these Orders.
Upon recovery of the child Y pursuant to Order 6, and pursuant to s 67Q of the Act, the relevant officers and/or agents of the Australian Federal Police and/or officers of the police services or police forces of the States and Territories of Australia are directed to deliver Y to the Mother.
Pursuant to s 67Q(f) of the Act, the Father be prohibited from again removing or taking possession of the child Y except pursuant to a further Order of this Court.
If the child Y does not remain with the Mother pursuant to these Orders and is in the care or under the direction of the Father, then:
(a) the Father shall immediately notify the Mother to advise her that Y is with him or under his direction; and
(b) the Father must agree with the Mother upon a time, not more than two (2) hours later, for the child to be delivered to a Police Station nominated by the Mother; and
(c) the Father shall deliver or arrange for another person to deliver Y to the foyer of the Police Station so nominated at the time agreed pursuant to Order 10(b), and upon the arrival of the Mother the Father must immediately depart, or must instruct his agent to immediately depart, the area without Y.
Communication and Information
The Mother shall forthwith notify the Father and the Independent Children’s Lawyer as to an e-mail address at which she may be contacted and shall maintain an e-mail address at which she may be contacted and the Mother shall keep the Father and the Independent Children’s Lawyer informed of such e-mail address from time to time.
The Father shall keep the Mother informed by e-mail of all details pertaining to A’s doctors and health practitioners and must notify the Mother by e-mail of any medical emergency affecting A as soon as practicable.
This Order serve as authority to A’s doctors and medical specialists to release information to the Mother as may be requested from time to time concerning any relevant matters concerning A.
This Order serve as authority to A’s school and extra-curricular activity providers to provide the Mother with all school reports and to permit the Mother to discuss with A’s teacher or activity provider his performance.
The Father is to keep the Mother informed of a contact telephone number and address for the Father and will inform her in writing by e-mail of any change to that contact telephone number or address within seven (7) days of such change.
The Mother shall keep the Father informed of all important health issues, other than minor and usual ailments, affecting Y.
The Mother shall keep the Father informed as to Y’s school and academic results and extra-curricular activities, provided that the Mother shall not be obliged to provide information which may identify her place of residence or the locality where she or Y are living.
Both the Father and the Mother are hereby restrained from:
(a) speaking or permitting any other person to speak to or about the other parent or their family and friends in a negative, offensive or unpleasant fashion to or in the presence or hearing of any of Y, A or B Brandon; and
(b) discussing any adult issues, including any proceedings between the Mother and the Father, to or in the presence or hearing of Y, A or B Brandon or permitting any other person to do so, except for the purposes of counselling in accordance with these Orders.
Both the Mother and the Father will encourage the children to call the other parent “Mum” or “Dad” as the case may be.
A’s Therapy
The Father do all acts and things necessary to have A attend upon an appropriately qualified counsellor for as long as therapeutically indicated to assist him with addressing the issues raised by the experts in relation to this matter.
The Father bear the costs of A’s therapy.
Y’s Therapy
The Mother do all acts and things necessary to have Y attend upon an appropriately qualified counsellor for as long as therapeutically indicated to assist him with his transition to the Mother’s full-time care.
The Mother bear the costs of Y’s therapy.
Mother’s Counselling
As a condition of the parenting Orders made in favour of the Mother, the Mother do all acts and things necessary to arrange for her attendance upon a psychologist or other suitably qualified counsellor for as long as therapeutically recommended by such psychologist or counsellor to address the matters referred to in the report of Dr G dated 23 February 2011.
Father’s Counselling
As a condition of the parenting Orders made in favour of the Father:
(a) the Father is to forthwith make arrangements to attend upon Mr P, psychologist, or, in the event of Mr P’s unavailability for any reason, then another psychologist nominated by the Independent Children’s Lawyer, to undertake therapy of the Father to address the personal and parenting issues raised in the documents identified in Order 26 in respect of such functioning;
(b) the Father must, no earlier than 30 September 2012, obtain a report from Mr P (or the psychologist nominated by the Independent Children’s Lawyer as referred to in Order 25(a) above, if applicable), setting out the particulars of the therapeutic counselling the Father has undertaken and the assessment of that provider as to the Father’s progress and response to such therapy; and
(c) The Father is to provide a copy of that report to the Independent Children’s Lawyer and the Mother.
Publication
Each of the Father, the Mother and the Independent Children’s Lawyer be granted leave pursuant to s 121 of the Act to publish the following reports to A and Y’s counsellors and to the Mother and the Father’s own counsellors:
(a) the Family Report of Mr N dated 23 April 2010;
(b) the report of Dr G, psychiatrist, dated 27 January 2011;
(c) the Children and Parent Issues Assessment by Ms D, dated 3 February 2011;
(d) the Family Report of Mr N dated 23 February 2011;
(e) the counselling report of Mr C dated 20 April 2011;
(f) the counselling report of Mr C dated 2 March 2012; and
(g) these Orders and these reasons for judgment.
Time
The Father spend no time with the child Y and be restrained from attempting to contact him, directly or indirectly, except in accordance with an Order of the Court.
The Father use his best endeavours to ensure that B Brandon, A Brandon, other members of the paternal family and Ms U do not attempt to contact Y.
Save and except for a circumstance of demonstrable urgency arising of a kind not presently within reasonable contemplation as reflected in these reasons in terms of Y’s best interests, the Father is restrained from filing any applications seeking Orders to spend time with or communicate with Y prior to 30 September 2012.
The Father is directed, with respect to any such application as referred to in Order 29 filed subsequent to 30 September 2012:
(a) to demonstrate that the requirements of s 60I of the Act and the Family Law Rules 2004 (Cth) with respect to Family Dispute Resolution have been met prior to the filing of such application; and
(b) to provide particulars in the application and in the affidavit in support of the application, of the therapy of A and the counselling of the Father that has been undertaken as required by these Orders; and
(c) to file a report by Mr P (or the psychologist nominated by the Independent Children’s Lawyer, if applicable) demonstrating the manners or respects in which counselling of the Father has addressed the issues of personal or parenting function of the Father identified in the documents referred to in Order 26.
Pursuant to s 65L of the Act, the Manager of Child Dispute Services shall arrange for a Family Consultant (Ms D, if she is available) to explain these Orders to the child Y and to assist Y and the Mother with the transition of Y into the care of the Mother pursuant to these Orders.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Brandon & Brandon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT BRISBANE |
FILE NUMBER: BRC 10849 of 2009
| Ms Brandon |
Applicant
And
| Mr Brandon |
Respondent
REASONS FOR JUDGMENT
For reasons which follow, I find that the question as to why the current relationships between the children, B Brandon, born in 1994; A Brandon, born in November 1996; and Y Brandon, born in May 2001, on the one hand, and their mother, Ms Brandon (“the Mother”), on the other, are currently difficult and constrained has its answer in the conduct of the children’s father, Mr Brandon (“the Father”), soon after the separation of the parents in early 2009, which conduct was designed to achieve that outcome.
It follows that with respect to the submission on behalf of the Father at the conclusion of the trial that he had made, “…significant contribution to the alienation [of the children from the Mother],” I reject the contention implicit in that submission that the Father’s conduct has significantly contributed to, rather than caused, the alienation to which that submission refers.
I accept the submission on behalf of the Father that he has made, “…serious mistakes…” relevant to this but, as will be discussed, I do not accept that the particulars of those serious mistakes are limited to those which were advanced on his behalf in the course of final submissions.
Aside from the issue of alienation, there is a body of evidence, including allegations of violence perpetrated by the Father against not only the Mother, but also another subsequent and now former intimate partner of the Father, Ms Ms K, which, if accepted, raises serious concerns as to the Father’s role modelling to his sons of appropriate behaviour and attitudes to women in general and as to the boys having the capacity in adulthood of developing and maintaining personal relationships.
The issues of alienation and of family violence resonate with many of the statutory considerations expressed in s 60CC of the Family Law Act 1975 (Cth) (“the Act”) which govern how this Court determines what is in a child’s best interests, that being the Court’s paramount consideration in making parenting Orders.
On the evidence of the Mother, which I accept, prior to the parties’ separation in 2009, the Mother was, historically, the primary carer of the children. That resulted, in part, from the Father’s work commitments from time to time. I note that although I find that the Mother was the primary carer, I also find that as each of B and A entered and approached adolescence, respectively, they increasingly identified with the Father as the central male figure in their lives. That feature was likely a significant factor in their susceptibility to the Father enlisting the boys to the cause, as the Father saw it, of support of him and rejection of the Mother subsequent to the parties’ separation.
Whilst it can be accepted that, as with all parents, the Mother had some deficiencies, and likewise that as a person, as with all people, the Mother may have had some personal deficiencies, there is no evidence before me which I can accept that prior to the parties’ separation in early 2009, and thereafter, the Mother was otherwise than a capable and caring parent who provided adequately for the physical, intellectual and emotional needs of her children.
There are variations in the Father’s accounts from time to time (and for reasons which will follow I have no confidence in relying upon the Father as a witness of credit), but I note, for example, that Dr G records in her report with reference to the Father, “He said he enjoyed her as a partner for 20 years and thought that she was a good mother.” Further, at paragraph 36 of her report, Dr G records, “He stated that [the mother] had been a great Mum, but then commented that she had never allowed the children to have a relationship with him; that she excluded him from the parenting. He was doing two or three jobs. He said he thought they were a great team…” I record in passing that I do not accept that the Mother excluded the Father from parenting of the boys, and indeed, in his oral evidence, the Father sought to confine this to the periods when each of the boys were babies. The point is that in this context, the Father acknowledged that the Mother was a, “…good…” or “…great…” mother.
I find that there is nothing in the conduct of the Mother either prior to the parties’ separation or subsequent to it as would explain the progressive deterioration in the relationship between the children and the Mother from soon after the separation other than the role the Father has played in this, as will be further discussed.
Brief History
The Mother was born in 1971, and is thus 41 years of age. The Father was born in 1970, and is thus also currently 41 years of age.
The parties met and formed a relationship while attending TAFE in 1988, when both were in their mid- to late teens. The Father lived locally with his parents and the Mother was an out of town student in shared accommodation. The parties commenced living together from 1989 or 1990 in Brisbane, and married in 1992.
As already noted, B was born in 1994; A was born in November 1996; and Y was born in May 2001. The parties’ relationship deteriorated in the years following Y’s birth to the point where they separated under the same roof in about late 2008, before final separation in January 2009, when the Mother left the family home, having taken up a three month lease of alternative premises. At that time, there is evidence that both parties harboured hopes of reconciling the relationship during that three month period.
Initially following the parties’ separation in January 2009, the children moved between the parties’ respective residences on a week-about basis.
On 23 March 2009, an altercation occurred between the parties that has loomed large in these proceedings and will be specifically addressed below. Suffice to note here that following the events of that day, the Mother applied for a Protection Order under the Domestic and Family Violence Protection Act 1989 (Qld), and a Temporary Protection Order was made on 25 March 2009. A final Protection Order was made on 28 April 2009.
Thereafter, significant issues arose concerning the Mother’s time with the children, such that by late April/early May 2009, the children ceased to visit and live with the Mother on a week-about basis and the amount and quality of time and communication between the children and the Mother progressively and quickly deteriorated.
Annexed to the Mother’s affidavit filed 19 September 2011 is a document marked “MB7”, which is a table setting out the time the Mother has spent with the children post-separation as well as some of the communication between the parties and between one or more of the children and the Mother since separation (“MB7”).
I find that MB7 is an accurate and truthful recording of the matters there recorded and I find as facts what that document records about those communications and what occurred on the occasions detailed in that document.
These Proceedings and the Parties’ Ultimate Proposals
The Mother sought Legal Aid in June 2009. The parties attended a Legal Aid conference on 30 October 2009, but were unable to reach a concluded or complete agreement on that day. There was an agreement that the children should attend counselling. The Parenting Plan which the parties entered into on that day appears as Annexure “MB6” to the Mother’s affidavit filed 19 September 2011.
Notwithstanding the terms of that Parenting Plan, the Mother only saw all three of the boys together on two occasions in accordance with that Plan – 15 and 22 October 2009. Thereafter, either B or A, or both of them, under the influence of their Father’s views as will be further discussed, actively sabotaged time with the Mother, or likewise influenced their younger brother adversely with respect to spending time and communicating with the Mother.
By her Initiating Application filed in the Federal Magistrates Court of Australia at Brisbane on 27 November 2009, the Mother sought parenting Orders as well as Orders for property settlement.
During the course of the trial of the proceedings, I made an Order to enable the parenting proceedings to be heard and determined discretely from the property proceedings. In the event, with respect to the property proceedings, the parties were able to reach agreement reflected in consent Orders made on 19 April 2012, and those Orders are Exhibit 12 in the parenting proceedings.
With respect to the parenting proceedings, it is to be noted that when the parties separated in early 2009, B was aged 14 years, A was 12 years old and Y was 7 years old. By the time of instituting proceedings, each of the boys had experienced another birthday, and thereafter the Mother’s approach to the parenting Orders she sought from time to time during these proceedings was necessarily in the context of the increasing ages and stages of development of B and A in particular. That culminated in the Mother ultimately seeking the Orders set out in the document which is admitted and marked as Exhibit 1 in the proceedings before me, which Orders focus upon Y.
Whilst the Orders proposed by the Mother as set out in Exhibit 1 will be further discussed, suffice to note here that, in summary, in circumstances where B is now aged 17 years and will soon turn 18, neither party nor the Independent Children’s Lawyer sought Orders with respect to B; and with respect to A, who is now 15 years of age and will turn 16 years later this year, beyond each party agreeing for Orders providing for the Father to have sole parental responsibility for A and for A to live with the Father, no further specific Orders for the Mother to spend time with A were ultimately sought by any party.
In short, one of the unfortunate consequences of the delay in this matter between the Mother instituting the proceedings in late 2009 and a trial of the proceedings in April 2012, is that parenting Orders with respect to Y alone became the only practicable and primary focus of the trial of the parenting proceedings.
The Orders sought by the Mother, as outlined in Exhibit 1, would see an Order for Y to live with the Mother and for the Father to have no time with Y, or be able to contact Y, except in accordance with a further Order of the Court. The Mother’s proposal also obliges the Father to use his best endeavours to ensure that B and A and other members of the paternal family do not attempt to contact Y. On the Mother’s proposal, the Father is to be restrained from filing any applications for time with Y or for Orders for Y to live with him until such time as he is able to produce evidence from a psychologist or other suitably qualified counsellor to confirm that the Father has participated in individual counselling to address matters raised in paragraph 73 of the report of Mr N, Family Consultant, dated 23 February 2011. Relevantly, that is a reference by Mr N to:
The Father to attend robust individual counselling to scrutinise his personal, relationship and parenting functioning and consider the impost of his passive and/or active attitudes and behaviour on informing and shaping his sons’ post-separation alliances and participation in conflict dynamics.
In summary, the Mother’s proposal reflects a conclusion that the only means by which the primary consideration of Y having the benefit of a meaningful relationship with his mother and to address the Father’s alienation of Y from the Mother, is for Y to be immersed in her care and away from the influence of the Father and his older brothers; and that the only means by which Y might be protected from the potential for psychological harm to him of both the Father’s negative influences concerning the Mother as well as being exposed to the Father’s attitudes to women and providers of care, and what the Father models to his sons in those respects, is for the Father to receive professional counselling to address those issues.
Put another way, the Mother’s ultimate proposal reflects that whilst it may be too late for parenting Orders in respect of B or A to address these issues, this is not so for Y, and the gravity of such a fundamental change for Y is justified having regard to the gravity of the consequences of not putting Orders of the kind proposed by the Mother into effect.
The Orders proposed by the Independent Children’s Lawyer, ultimately, appear in the form of the document which is admitted and marked Exhibit 11. In important respects, the proposed Orders sought by the Independent Children’s Lawyer mirror the Orders proposed by the Mother and are founded on the same grounds as contended for on behalf of the Mother. The important difference in the Orders sought by the Independent Children’s Lawyer to those sought by the Mother is that those Orders contemplate Orders being made now which would see the re-introduction of the Father into Y’s life being therapeutically managed by the therapist engaged to undertake counselling for Y. The Independent Children’s Lawyer’s Orders contemplate a six month period or moratorium upon Y having contact with the Father as a minimum.
For his part, the Father proposes Orders in the form as appearing in Exhibit 10. The Father proposes an Order for Y to continue living with the Father and to spend time with the Mother as set out in paragraph 4 of those Orders. The Father’s proposal also contemplates counselling for both A and Y and proposes an Order for the Father to himself attend counselling for the matters referred to in Mr N’s report as already referred to.
Credit Issues and Findings on Significant Disputed Issues
The central task of determining parenting Orders in a child’s best interests is not an exercise in searching for disqualifying factors in either parent. Recognising that each person is unique, inevitably with strengths and weaknesses, both as a person and as a parent, the inquiry is essentially to determine parenting Orders that will positively promote the child’s best interests in the context of that child’s actual circumstances, including any perceived parenting weakness of either or both of the child’s parents.
Parental conduct is relevant only to the extent that it informs the assessment of parenting capacity or otherwise has weight in the determination of the parenting Orders in the child’s best interests, having regard to the considerations expressed in s 60CC of the Act, which the Court must consider in determining parenting Orders in the best interests of the child.
In this context, it is worth noting that in Jurss & Jurss (1976) FLC 90-041, a case decided not long after the Act, in its original form, came into effect, Demack J noted in respect of a then “custody” dispute that the Court’s inquiry is essentially a positive one designed to promote the interests of the child, not to demote the claims of either parent.
Given that the overriding consideration for this Court is best interests, the Court must consider the conduct of parents not with a view to punishing such conduct or to reward one parent and punish the other, but to ascertain from such conduct, to the extent to which it is relevant, where the best interests of the subject child or children will be served from now or into the future.
As a general proposition, civil courts usually refrain from specific adverse credit findings against litigants if the disposition of the case can legitimately be achieved otherwise. There are good reasons for that approach. For example, a specific finding that a litigant has misled the court might be tantamount to a finding of perjury. Further, it can be accepted as a given that human beings have the capacity to reconstruct or rationalise or even misconstrue past events or conduct, or to engage in self-justification, particularly in recounting events in highly emotive settings or in respect of highly emotive issues. This may make the distinction between an honest, although wrong, account on the one hand, and a deliberate and calculated obfuscation on the other, difficult to draw.
To deny significant limitations in the capacity to use assessment of the demeanour of a witness as an entirely reliable guide to his or her truthfulness would be to deny the existence of plausible liars; or those who may be timid, uncertain or unconvincing, but nevertheless truthful, in relating events.
Moderation in this respect is also called for when it is recognised that adverse credit findings in arriving at a decision at first instance may present a significant hurdle to legitimate rights of review of that decision on appeal.
These observations apply with at least equal, if not greater, force in parenting proceedings such as these in this Court where the decision does not bring an end to the litigants’ relationship. These parties are, and will remain, the parents of B, A and Y.
Moreover, the resolution of parenting proceedings in this Court usually requires consideration of not only the credibility of the parties as witnesses or litigants but appreciation of the characters and personalities of them as people whose future relationship, or the context of that relationship with their child, the Court has the responsibility to decide.
With these matters in mind, it is not without hesitation that I express findings on credit in the course of these reasons.
However, it is plain, having regard to the central issues in this case, that findings on credit are essential to reaching conclusions on both of the primary considerations expressed in s 60CC of the Act as well as many of the additional considerations to which the Court must have regard in determining best interests and formulating parenting Orders which meet them.
The Parties
I find the Mother to be an honest and credible witness upon whose evidence the Court can have confidence in placing reliance. The Mother impressed me as having the capacity for balance and making concessions when they could fairly be made. Examples are those instances where the Mother was challenged in cross-examination about perceived failures on her part in taking every opportunity to maximise her relationship with her sons. Instead of offering or inventing excuses, the Mother acknowledged, with the benefit of hindsight, that she may have been able to handle the particular situation presented in a better way than she in fact did.
One specific example of this was the Mother not telephoning or texting A in January 2010 when A had an injury resulting in his hospitalisation.
Other examples lie in the evidence that there were times when the Mother apparently had opportunities to spend time with the boys but did not avail herself of all of those opportunities. With respect to at least one of those instances on 27 July 2011 (as recorded in MB7), the Mother’s oral evidence at trial was to the effect that she could not remember why it was that she did not take up the opportunity. The Mother did not attempt to excuse herself or invent some reason when her honest answer was that she could not remember why and this was the answer she gave. Of course, balanced against the evidence of the Mother not taking every such opportunity is the body of evidence, in terms of the Father’s alienation of the boys (which will be discussed below) which the Mother had to deal with; and that at least some of these opportunities were not genuine or realistic in the sense that they would actually come to fruition. It will also be seen, on my findings below, that on and from April or May 2009, the Father actively and passively shaped his sons’ allegiance to the Father’s cause and involved them in the parental conflict. The die was cast early.
I found the Mother’s evidence as to the traumatic events which transpired on 23 March 2009, discussed further below, to be compelling and convincing. The Mother’s distress in recounting those events, and her consequent fear of the Father, was palpable and notwithstanding the significant challenge to her version made in cross-examination, her account did not deviate in any material respect and was entirely plausible. I accept the Mother’s version and her evidence generally.
In contrast to the Mother, I find that the Father’s approach to giving evidence before me was not burdened with the usual attributes of a reliable witness, such as being forthright and frank, ready to make appropriate or obvious concessions, or displaying the capacity for balance. As was the experience of each of the experts who had interviewed the Father, Mr N, Mr C, Family Consultant Ms D and Dr G, psychiatrist, I found that questions of verity arose as to statements made by the Father from time to time by reason of their internal inconsistency in many respects.
I do not propose to list, seriatum, every instance in which it could be said that the Father’s evidence was unreliable or unacceptable. Suffice to note the following examples as reasons for my conclusion that the Father’s evidence is generally unreliable:
a)In August 2010, the Father pleaded guilty to a crime of dishonesty, namely stealing, under s 398(1) of the Criminal Code 1899 (Qld), referable to the Father’s theft of a trailer owned by his then-employer, O Company, “…on or about 17 November 2009,” (see Exhibit 9). Cross-examination of the Father elicited the information that the Father resigned from O Company effective 18 August 2010 and that his resignation (only 5 days before his guilty plea) was related to this criminal offence. That put paid to previous versions by the Father to the effect that his resignation from O Company was voluntary to take up better paid work elsewhere. In fact, having ceased work with O Company in August 2010, the Father did not take up employment in Western Australia until October 2010;
b)Related to the above, paragraph 5 of Mr N’s Family Report dated 23 April 2010 paraphrases what the Father told Mr N, including:
…his criminal record is limited to stealing and a firearms charge, in his late-teens, he has had no dealings with DOCS [a reference to the Queensland Department of Communities, Child Safety and Disability Services] and his involvement in DVO’s [a reference to Domestic Violence Orders] is limited to orders [the mother] sought against him.
Exhibit 9, being the Father’s criminal history, confirms that the Father was dealt with for stealing and firearms offences in his late teens, but notably, Exhibit 9 confirms that the Father was dealt with for the stealing offence with respect to O Company on 23 August 2010, and the subject stealing is recorded as occurring, “…on or about 17 November 2009.”
Whilst it is theoretically possible that the Father was not aware of the charge at the time of his first interview with Mr N for the first Family Report on 21 April 2010, the following is contained in Mr N’s further report of 23 February 2011, relating to the Father’s interviews in February 2011, at paragraph 7:
[The father] previously acknowledged a criminal record limited to stealing and a firearms charge while the QPS [a reference to the Queensland Police Service] material indicates a 2007 matter. Others suggest that there may be QPS and/or criminal pending matters relating to [the father’s] departure from his previous employer, [O Company]. He absolutely refutes these assertions and states that he left his previous employment of his own accord and to secure a higher paid position.
Plainly, the Father sought to mislead Mr N as to the true nature of relevant events surrounding his departure from O Company. In circumstances where his previous employer obviously reported the Father’s theft to the police, resulting in the subject charge, it is nonsense for the Father to suggest that he left O Company, “…of his own accord…” I have already noted the time gap between the Father’s departure from O Company and taking up employment later in Western Australia.
This is but one example of an obvious untruth by the Father when interviewed by experts and in his affidavit and oral evidence. Moreover, each of the experts have noted examples of stark inconsistencies in the Father’s accounts of various events sufficient to conclude, I find, that the verity of statements made by the Father when interviewed, as is the position with regard to his evidence in Court, is attended by serious doubt.
c)The evidence establishes that on 19 April 2009, the Father sent to the Mother the letter and compact disc which comprise Exhibit 7. On any reasonable view of that correspondence, it was a plea by the Father to the Mother that she resume the relationship with him and that the parties thus reconcile.
In stark contrast to this, the Father has sworn as the truth, falsely I find, that as at 6 January 2009, when the parties separated, he viewed the relationship as being at an end and there being no prospect or wish by him, on and from that date, to resume the relationship.
At paragraph 2 of his affidavit filed 16 September 2011, the Father deposes:
On the 6 January 2009 (sic), the Mother and I separated because of irreconcilable differences. Since that time, there has been no prospect of reconciliation.
At paragraph 31:
The Mother has further alleged that I have not accepted our separation, that I have not dealt with my own issues associated with the separation and that until such time that I would not be capable of providing for the children’s emotional needs. I deny these allegations. Although I initially wished to save my marriage, it was evident in early 2009 that there was no hope of reconciliation…
At paragraph 8(a) of his affidavit filed 7 October 2011, the Father deposes:
I deny there was a possibility [the mother] and I would resume living together from the period 6 January to 23 May 2009. Although it was a difficult time, I had no intention of ever resuming living with [the mother] or recommencing a relationship with her.
I find that as Exhibit 7 reveals, the Father sought a resumption of the relationship in April 2009 and there is a clear temporal connection between the Mother’s rejection of the Father and difficulties commencing with the children spending time with the Mother in circumstances when they had been spending week about time following physical separation in early January 2009 up until the Father realised the Mother was not amenable to his requests for resumption of the relationship.
d)The Father’s evidence concerning the offer made by way of a text message for the Mother to look after the boys for three or four weeks as at 26 December 2009, as recorded in MB7, and the events surrounding that, was wholly unsatisfactory and unconvincing. Notably, the Father’s cross-examination was interrupted by the interposition of other witnesses, by agreement. The Father, when first cross-examined about these events, suggested that after he made the proposal on 26 December 2009, both B and A made separate arrangements with the Father’s brothers (their uncles) as they did not wish to spend time with the Mother. The child Y, it was suggested by the Father, variously and inconsistently, either did not want to go to the Mother; or the Father needed Y’s assistance in the household because of his foot injury; or Y felt sympathy for the Father and wanted to stay with him. Leaving aside the contradictory nature of those versions, nothing was said by the Father in this first bracket of cross-examination about this event concerning the fact that he actually went on a camping holiday with the boys and Ms K to the township … on 5 January 2010. Because Ms K gave evidence as one of the witnesses interposed, it was only then learned that in fact that is what had occurred.
In light of that fact, and the further cross-examination on these events, the first passage of evidence the Father gave on this topic borders on the ridiculous.
e)Challenged in cross-examination as to the ten or twelve people the Father referred to as having assisted in the care of the boys post-separation, the Father asserted that he had undertaken careful checks of the background of each of these people. Yet it was that, when pressed in cross-examination, the Father was unable to give the name of any of these persons.
f)In a similar category is the evidence of the Father concerning the agreement reached with the assistance of Mr C on 16 September 2010 for Y to spend time with the Mother on Tuesday 21 September (five days later) from 10.00 am until 3.00 pm. The Father would have it that he made a mistake and had Y ready and available to spend the 20th, rather than the 21st, with the Mother. When the Mother came on the 21st to have the time as agreed, she was informed by Y that he had waited, “…all day yesterday…” for the Mother to arrive. When the Mother attempted to speak to the Father about this on 21 September, he told her, “It was yesterday, so too bad.” Thereafter, the disturbing exchanges between Y and his mother and the Father and the Mother as set out in MB7, occurred.
The Mother’s Counsel contends that the Father well knew that 21 September was the agreed date, and that his leading of Y to believe that it was 20 September and having Y wait for his mother on 20 September is a clear example of the Father’s preparedness to perpetrate an emotional abuse upon Y for his own ends. Even if it be accepted that the Father made a mistake about the date, there is absolutely no explanation as to why there was no attempt by the Father on 20 September to contact the Mother after 10.00 am came and went and as hours passed whilst Y waited and the Mother had not arrived. That is, it was in the Father’s hands to clarify matters and he did nothing. Moreover, no explanation is offered by the Father as to why he did not encourage time to occur on 21 September when the Mother did arrive, as was the earlier arrangement. The Father’s credit suffers even on the interpretation of this event most generous to the Father.
g)In this context I note that when it suited him, the Father offered as a reason for not contacting the Mother the existence of the Protection Order earlier referred to. He likewise suggested that to Mr C. Yet MB7 sets out many instances when the Father made contact with the Mother after the Protection Order was in place and his evidence about its existence preventing him from making contact can be seen for what it is, namely a fabrication.
h)It was submitted on behalf of the Father that he is a man who lacks sophistication. Whilst that may be accepted, lack of sophistication is not a basis for a lack of veracity in giving evidence. Where the Father’s lack of sophistication seemed to play a part was in his lack of judgment as to areas where he apparently thought the unbelievable would be capable of acceptance as truthful evidence. One example relates to the report of Ms D, Family Consultant, who undertook interviews on 2 February 2011. Commencing at paragraph 21 of her report, Ms D records statements made by Y in that interview, and at paragraph 22(g) of the report, she records what is perhaps the most outlandish of those, being:
…his mother ‘deliberately put something in his pasta bake to make me vomit.’ He indicated that he knew because he could taste and when asked why his mother would do that ‘she didn’t like me’.
One would have expected that any reasonable person in the position of the Father, when cross-examined about that, would make the obvious acknowledgement that such a statement by Y was outlandish and could not be based in fact. However, asked about it, the Father gave the answer, “I can’t be sure she hasn’t done that.”
Not for a moment do I accept that the Father would place any credence whatsoever on Y’s statement as recorded. This was an example of the Father’s haste to embrace any negative statement by any of the boys about their mother in the hope of demonstrating the views of the boys independent of the Father, no matter how ridiculous the statement might be.
i)Whilst the very serious issues of family violence are dealt with separately below, my acceptance of the Mother’s version as to what occurred on 23 March 2009 means that the Father’s denial of a central and serious issue is false.
j)Likewise, my acceptance of Ms K’s evidence, as set out below, means that the Father’s credit suffers both in relation to the particular event Ms K gives evidence about on 31 March 2010 as to an assault of her by the Father as well as, more generally, concerning issues of alienation as discussed below.
The degree of acceptance of the Mother as a credible witness relative to the degree of rejection of the Father’s evidence as being unreliable is such that on each and every issue of disputed fact between them, where each has given direct evidence, I prefer the version of the Mother to that of the Father.
The only qualification I have as to the acceptance of the Mother’s evidence is to the extent where she speculates, in her affidavit material, as to the Father having been involved in break-ins of her premises and in what may be described as stalking and like events where the Mother cannot supply direct evidence of the Father’s involvement. That is, whilst I accept that the Mother is genuine and firm in her belief of the Father’s involvement, where she has no direct evidence implicating the Father, I do not proceed on the basis of the Mother’s belief only. I accept her evidence in respect of those instances where she does give direct evidence of her own observations of the Father.
Preference of the Mother’s evidence to that of the Father with respect to numerous issues of disputed fact necessarily means that there are numerous other examples that could be given where I am not satisfied of the Father’s reliability as a witness or where his evidence on any issue or event is rejected. However, it is not necessary to the disposition of the case to deal with each.
Family Violence
The Mother
The Mother detailed in her affidavit evidence (commencing at paragraph 30 of her affidavit filed 19 September 2011), and was cross-examined at length about, the events of 23 March 2009.
I found the Mother’s oral evidence when cross-examined at some length about what appeared in her affidavit to be entirely consistent with her affidavit version. The Mother’s obvious fear and distress at the time of the event was palpable when she gave oral evidence recounting the events.
I find that the Father did assault the Mother in the manner particularised in her affidavit. I accept the Mother’s evidence that the Father did say the things to her which she attributes to the Father in the course of this assault. Specifically, I find that the Father did physically pick the Mother up under her arms and slam her into a door. I accept that he picked her up again and tackled her onto the floor of the kitchen. I accept that he threatened her. I accept that the Father threw the Mother onto a bed in the bedroom, and, whilst holding her down, grabbed a nightie and started shoving the nightie into her mouth. I accept the Mother’s evidence that, as a consequence of the Father’s assault, the Mother suffered the injuries depicted in the photographs which are Exhibit 3 and that the injury to her mouth and specifically to her frenulum (the membrane from the floor of the mouth to the mid-line of the tongue) was occasioned by the Father. In summary, I accept that the Mother’s evidence, set out at paragraphs 30 and following of her affidavit in relation to this event and to her application for a Protection Order, is reliable and accurate and I reject the affidavit and oral evidence of the Father to the contrary.
I accept the Mother’s affidavit evidence set out at paragraph 19 and following concerning issues of family violence or related to the issue. I note that when the Mother was interviewed by Dr G, psychiatrist, on 16 November 2010, she reported being hypervigilant, anxious and unable to sleep if she knows that she is to come into contact with the Father and experiences panic attacks and flashbacks, particularly if she hears anyone screaming. She reported that she always very securely locks her premises and she, “…hears every noise…” and has an exaggerated startle reflex. I accept Dr G’s opinion that the Mother, “…fits the criteria for diagnosis of Post-Traumatic Stress Disorder in relation to her ex-Husband,” and I find that this is a direct result of the Father’s conduct in relation to the issues of family violence as outlined in the affidavit evidence of the Mother.
In this context, I also accept the evidence, both affidavit and oral, of Mrs J, whose affidavit was filed on 23 September 2011. Commencing at paragraph 25 of her affidavit, Mrs J sets out her involvement from on or about 25 March 2009 in relation to the aftermath of the events of 23 March 2009 already referred to. Specifically, I accept that she observed the Mother’s face to be bruised and that her mouth, “…was split…” I accept that she observed bruising on the Mother’s shoulder, her back and her arms, and that she took the photographs which now appear at Exhibit 3. I accept Mrs J’s evidence as to the reports the Mother made to her of her feelings of fear in relation to the Father.
Ms K
This witness was required by subpoena to attend the trial and give oral evidence.
I assess Ms K as an honest witness who gave frank and accurate evidence upon which the Court can and should rely. It follows that the Father’s account, where it differs from that of Ms K, is rejected.
The acceptance of Ms K as a witness of truth means that Exhibit 5, being Ms K’s statement to the police dated 20 July 2010, is taken to be accurate in the detail it provides. I find that the Father perpetrated the acts, including acts of violence, described by Ms K in her police statement and reiterated in her oral evidence.
Cross-examined about that statement, Ms K was, at times, understandably upset and emotional when giving evidence before me, but nevertheless her oral evidence remained entirely consistent with the evidence contained in the statement both as to the sequence of events and particulars surrounding those events as recorded in the statement. In short, extensive cross-examination of Ms K did not produce any departure by her from her version, which I accept and indeed cross-examination only firmed up her version by the provision of additional details.
I find that on Friday 12 March 2010, the Father assaulted Ms K in the manners and respects described in Exhibit 5.
I accept Ms K’s account of what occurred on 31 March 2010, as described in her police statement which again involved the Father assaulting Ms K in the ways described in her statement.
At all material times, Ms K has been employed at the school which Y attends.
From February or March 2009 until 31 March 2010, Ms K was in a relationship with the Father and cohabited with him in his household for much of that period. In that context, she became an important figure in the lives of the boys and a significant care provider.
I accept Ms K’s account as to there being occasions that she had the opportunity to observe when the children returned from a period of time with the Mother and reported to the Father their behaviour when in the Mother’s care, or more accurately, their misbehaviour, which apparently then received the approval of the Father in one form or another.
In particular, I accept Ms K’s evidence as to a particular occasion she recalled when B reported to the Father to the effect that the children had “trashed” their bedroom at the Mother’s residence, and that the Father’s response was to laugh.
I accept Ms K’s evidence that she observed occasions when the Father instructed the boys, or one of them, not to answer the door when it was the Mother at the door and likewise, that on numerous occasions, the Father told the children or one of them that they did not have to answer telephone calls from the Mother.
I accept Ms K’s evidence to the effect that the Father was in the habit of discussing court proceedings in this Court with B, and I also accept her evidence that the Father did not do anything to prevent B or the other boys referring to their Mother as “bitch”.
I accept Ms K’s evidence to the effect that when the children, or B in particular, reported to him the boys’ refusals to be picked up by the Mother from school, the Father would passively receive that information and certainly did not reprimand or discipline the boys. I accept Ms K’s evidence that there was only one occasion when the Father said to B words to the effect of, “You’re making it hard for me. My solicitor has advised me not to keep doing that.”
I accept Ms K’s oral evidence that on one occasion, she attended with the Father and the boys at a shopping centre and whilst she was with the Father at the Coffee Club, the boys came running to them and said words to the effect of, “We’ve seen […] [a reference to the Mother] around here.” Later, when travelling on an escalator, the Mother was seen at the top of a balcony, and Ms K was standing with Y and said to him words to the effect of, “Give her a wave – say g’day.” I accept Ms K’s evidence to the effect that the Father endorsed Y’s approach of not even acknowledging the presence of his mother in that setting.
I accept Ms K’s evidence that, early on the morning of 5 January 2010, she travelled with the Father and the boys on holiday to the township …. By reference to MB7 I find that it is more likely than not that when the boys went to spend time with the Mother on 4 January 2010, the Father had already planned to travel on that holiday and that this was known by at least B, and I find that this explains B’s determination to cause the boys to run away on the evening of 4 January and to return to the Father. I find this to be a good example of the Father’s role in sabotaging the relationship between the boys and their mother. The conduct of the boys on 4 January 2010 as set out in MB7 is consistent only with an advance plan by at least B that the boys would run away that night and I find it more probable than not that the Father was complicit in that plan.
Ms K gave evidence that over the course of the period that she was in a relationship with the Father as referred to, she had a primary care role with the boys, again having regard to the Father’s work commitments. I accept Ms K’s evidence that, as a result, she developed a close relationship with the boys, including Y. There was no suggestion in Ms K’s evidence that she had any difficulties in caring for the boys over the many months when she was part of the household. I accept that by March 2010, Ms K had a close relationship with Y.
In contrast, Ms K gave evidence that after the demise of her relationship with the Father, Y’s attitude to her quickly mirrored his father’s approach. Ms K would encounter Y at his school where she worked, and Y’s demeanour towards her was hostile, and in particular, when Y was with a group of friends, Y said to others in the group with reference to Ms K, “There’s the bitch,” and that this occurred on a couple of occasions. I accept that this is similar to her experience of encountering the Father when with some of his friends at the school, of the Father saying with reference to Ms K, “There’s the bitch now.”
On 20 July 2010, Ms K obtained, at the local Magistrates Court, the Protection Order which is Exhibit 6. I accept Ms K’s evidence that when waiting at the Court on that day, the Father said to her words to the effect that, “We don’t have to do this, we can work it out.”
Ms K’s capacity to demonstrate balance was evident when she gave evidence concerning a threat received via Mr R (the Mother’s brother) and his wife, Ms R. Sometime in 2010, information was conveyed to Ms K to the effect that, having been served with a Domestic Violence Order, the Father had allegedly threatened to the effect that he was, “…going to shoot the pair of them,” which was taken as a reference to Ms K and the Mother. Ms K’s immediate reaction to hearing this information was that this was, “…just [the father] talking…” but as she explained in evidence, when it was pointed out to her by Ms R that if Mr R had asked Ms R to ring both her and the mother, the threat should be taken seriously, she did so.
It was obvious on Ms K’s evidence that she accepted that the threat was made and, after her initial reaction that it may be, “…just [the father] talking…”, that it was to be taken seriously. She arranged for her ex-partner to collect her children from school and the school was put on “lock-down” by the Acting Principal. Police undertook a weapons search of the Father’s premises. It was clear that when Ms K was giving evidence about these events before me, she was very distressed, both at the time and in recounting these events, and it was equally clear that Ms K is in genuine fear of the Father.
Challenged in cross-examination about the content of her police statement, it seemed to me that Ms K’s evidence only became firmer. For example, tested about the detail in paragraph 7, Ms K was firm that the conversation there referred to lasted for some 20 minutes. Likewise with respect to challenges to what appears in paragraphs 10 and 11 of her statement. In particular, when challenged about paragraph 17, Ms K became obviously distressed and emotional in giving her evidence, and confirmed that by that stage of the events, she simply wanted the Father out of her house.
In the course of cross-examination, Ms K revealed that the Father had told mutual acquaintances that Ms K has sustained the injuries she displayed in a bike-riding accident and that he had told people she was, “psychotic”.
Ms K gave evidence, in the course of her cross-examination, as to her attempts to intervene when the boys, and in particular B, would describe inappropriate behaviour by them with respect to the Mother. In relation to the door not being answered, Ms K said that she would say, “You can’t do that,” to which the Father simply shrugged his shoulders in dismissal. If she suggested that the door should be answered, the Father would say, “No.” Asked why she would remain in a relationship with the Father if he was as she described, Ms K explained that the Father convinced her that the Mother had been the instigator of the separation.
Most significantly, Ms K gave evidence, which I accept, that the Father would discuss these court proceedings with B and that it was not limited simply to conveying court dates, as the Father suggested in evidence.
Ms K gave evidence, which I accept and find to be of critical importance to the issue of alienation, that the Father told the children, on numerous occasions, that the Mother was the one who had walked out on them and that she did not love them.
Ms K describes B as being a confidante of the Father and that indeed it was an issue in her own relationship with the Father that B was included in many conversations which Ms K did not consider appropriate.
Ms K gave evidence of being present when the children reported to their Father episodes of refusing to be picked up from the school by the Mother, and indeed Ms K had opportunities to observe one or more of the children kicking their mother or running away from school when she was due to collect them.
Ms K gave evidence, which I accept, that on no occasion did she ever hear the Father tell the children to behave towards the Mother and to be respectful of her. To the contrary, as already noted, B’s report of the boys having “trashed” their bedroom was met with delight by the Father.
Cross-examined about the escalator event referred to, MsK confirmed that the Father intervened when she suggested to Y to go and say hello to his mother to effectively prevent that happening.
I note that at paragraph 21 of her police statement, Ms K records that she took photographs on her mobile phone of injuries she sustained in the events of 31 March 2010. Ms K there expressed the ability to produce such photographs. Tellingly, no call was made upon her on behalf of the Father to produce them during the proceedings before me.
I accept Ms K’s evidence as to the violence perpetrated by the Father upon her, and I accept her evidence as described as to the involvement by the Father of the children, and B in particular, in the ways referred to relevant to the issue of alienation.
Father’s role in alienation of the Mother
The evidence of Ms K encapsulates the central means by which the Father went about the task of ensuring that the boys would become alienated from their mother. In particular, I note Ms K’s evidence that she observed the Father tell the boys on, “…numerous occasions…” with reference to the Mother, that she was the one who had walked out on them and that she did not love them.
Allied with all of the other conduct referred to by Ms K in the period from March 2009 to March 2010, when she was part of the Father’s household with the boys, it is easy to understand how the position quickly developed where the boys, under the pervasive influence of the Father, aligned themselves with the Father and adopted a negative stance towards the Mother.
In this context, it is worth noting that in MB7 and her affidavit, the Mother herself identifies problems beginning in late April or early May. That is, the parties having separated in early January 2009, no problems became evident until after the assault by the Father on the Mother on 23 March 2009 leading to the Domestic Violence proceedings and Orders and thereafter the Mother’s rejection of the Father’s approaches that they resume their relationship in April 2009.
As already noted, Exhibit 7 confirms that even in April 2009, the Father was pursuing attempts to reconcile with the Mother and it seems clear enough that when he realised those attempts would not come to fruition, he embarked upon the conduct referred to by Ms K in influencing the boys negatively with respect to the Mother, and in particular in involving B in discussions as to what was transpiring.
Consistent with other evidence that there were no problems in the relationship between the Mother and the boys prior to the Father acting in this way is the evidence of Mrs J. At paragraph 35 of her affidavit, Mrs J refers to the position from separation and as at March 2009, where the children had been experiencing the week-about arrangement. Mrs J specifically observed A to appear to be, “…happier than he had been in a long time…” and records Y telling her that, “He thought it was ‘good’ that his mum and dad were living in different places because there would be less arguing.” I accept that evidence.
It is to be noted that it was the Father’s case at the outset of the trial (as distinct from his position at its conclusion) that the boys, independently of him, progressively rejected their mother post-separation and decided for themselves, uninfluenced by him, that they did not wish to spend time with her.
However, when regard is had to MB7, and the initial messages conveyed by the boys to the Mother from May 2009 as therein recorded, it is readily apparent that the boys were not rejecting the Mother. Rather, consistent with the Father’s stance that the Mother ought to have resumed the relationship, that is what was being conveyed by the boys.
For example, the message of 3 May 2009 from A, “If we were a family, we would be together y don’t u talk to dad,” and likewise, the messages from B of 20 May 2009 and 21 May 2009, including, “Start talking to dad and we will start talking to you,” and, “…if you loved us, we would be together… U chose to be there! Dad is doing everything with LOVE.” Likewise, the message from B on 4 June 2009, “…if you loved us, you would want to be here and look after us as a mum would.” (emphasis added)
In circumstances where the boys’ experience when the Mother was part of their household was that she was their primary carer because of the absences from the household by the Father for work, it is readily apparent that the demands of the boys were for the mother to return to her role as their primary carer within the household, and was far from a rejection of her.
Ms K’s evidence which, as already noted I accept, includes the evidence going to B’s involvement in adult issues, and in particular in relation to court proceedings, and it is readily apparent from MB7 that legal costs and money are soon part of B’s vernacular when communicating with the Mother. Notably, the message from B of 23 June 2009 is as follows:
[Mother’s name], you are stupid! Y the hell would you hang up on dad when we are trying to sort everything out. You are really stupid!
(emphasis added)
and:
[Mother’s name], you know nothing! Do you know how much the court will cost? Do you know the outcome of court? Well I do and I can tell you that the court does not decide our future after all it is our lives so why not sign the paperwork? And get it over with or come home.
(emphasis added)
and:
Why don’t you just talk to dad and work it out.
In his oral evidence before me, the Father suggested that the information he conveyed to B was essentially limited to letting B know about court dates or appointment dates, rather than the substance of what was occurring or the content of any evidence. I reject the Father’s version and find that the Father was quite prepared to freely share with B selective information designed to enlist B’s support to the Father’s “cause” and to portray the Mother as villainous and himself and the boys as hapless victims.
Any suggestion by the Father that discussions were confined to B, and that he took any care in not involving the younger boys in such discussions is, I find, improbable. Even on the most favourable view that can be taken of the Father, it would be naïve in the extreme for the Father to conclude that B would keep such information confidential and would not share it with his younger siblings. I find it more probable than not that the Father relied upon the prospect of A and Y following the lead of their older brother and to do and act as he decided.
MB7 contains numerous examples where the Father was directly involved in refusals to allow the Mother to spend time with the boys or to communicate with them. I have already noted that I have accepted the accuracy of the Mother’s account as recorded in MB7.
I find that throughout these proceedings and since about April or May 2009, the Father has put forward formal proposals by way of Orders sought for the Mother to have time with the boys which were completely unrealistic when, in the background, the Father was negatively influencing the boys against the Mother and well knew that the boys, and B in particular, would never co-operate in such “proposals”. My acceptance of MB7 as accurate records numerous such instances and the Father’s formal proposals to this Court, in terms of Orders sought from time to time, reflect that approach.
I accept as accurate what each of the experts, Mr N, Ms D, Mr C and Dr G have recorded factually in their reports, and where any of those experts have used direct quotes from the Father, I accept the accuracy of their evidence and reject that of the Father where he takes any issue with the accuracy of what is recorded.
I accept the opinions of the experts where they respectively highlight internal inconsistencies in the Father’s statements or approach. I note that Mr N and Mr C both refer to statements made by one or other of the boys about the Mother in the presence of the Father which are negative or derogatory of the Mother where the Father did nothing to admonish the boys and I accept observations to the effect that he appeared to be well-disposed to the boys making such statements or comments. I reject the Father’s excuse in cross-examination to the effect that he thought the experts were in control of the situation and therefore did not act.
Likewise, MB7 records instances where one or other of the boys made derogatory statements to the Mother or rude gestures to her, or both, in the apparent presence and hearing of the Father where he did nothing to discourage that, let alone prevent it. I accept that evidence.
I have already noted that in final submissions, it was submitted on behalf of the Father that he had significantly contributed to the alienation of the Mother and had made, “…serious mistakes…” I sought that Counsel obtain from the Father particulars of the, “…significant contribution to alienation…” and the, “…serious mistakes…” the Father acknowledged or conceded.
First, it was submitted that the Father made the mistake of deceiving the boys into believing that there was a prospect of the parties reconciling the relationship within the first three months of their separation in early January 2009. However, on my findings, that acknowledgement is in itself deceptive. As Exhibit 7 demonstrates, the Father was in fact seeking to reconcile the relationship. There was no deception in telling the boys that fact. The deception lay in inducing in the boys the belief that the Father had acted reasonably and done all he could do to preserve the relationship whilst it was the Mother’s unreasonableness, in that context, that saw the family divided; and that she left “them”, i.e. the boys, because she did not love them. Of course, that leaves out of the equation the Father’s despicable conduct in assaulting the Mother on 23 March 2009, which was fundamental to, together with the fear induced in the Mother as a result, the Mother’s decision to no longer pursue reconciliation of the relationship.
I accept the Father’s acknowledged “mistakes” in not encouraging any exchange of gifts or texts for the Mother’s birthdays; his failure to provide photographs; his failure to involve the Mother in any activities or extra-curricular activities in which any of the boys were involved; his failure to invite her to any birthday of the boys after 2009; his failure to have returned the boys to their mother each time they ran away or terminated time early; and his failure to reinforce to the boys the need to spend time with the Mother, although there would be little point to that if all the boys were doing, as I have found is the case, was acting out attitudes influenced by the Father.
The Father suggests it was a mistake that he did not screen the text messages the boys were sending the Mother. However, the Father gives evidence about messages the boys were receiving and I find it improbable that he was not well aware of the tone of the messages the boys were sending their mother and improbable that he did not tacitly, if not expressly, encourage or approve of that behaviour.
I accept that the Father did not reaffirm appropriate behaviour in the boys; did not send school reports to the Mother and did not share information about the boys with the Mother. I accept his acknowledgement that he ought to have engaged in individual counselling to address his issues concerning the separation and to address the proper way to co-parent subsequent to the breakdown of his relationship with the Mother.
Whilst it was submitted that the Mother was, “…not a major contributor…” to the alienation, I find that she did not contribute at all.
I accept, with one qualification, Dr G’s assessment in respect of the Father that:
He does display features of a narcissistic personality disorder in that he exhibits a considerable sense of entitlement and a lack of sensitivity. I believe that he demonstrates lack of empathy, idealises his relationship with the boys and the likelihood is that he gives them tacit signals that they cannot show respect and love to their mother and maintain their idealised relationship with him.
The qualification is only that on my findings the Father’s conduct was not confined to giving, “…tacit signals…”
I find that the Father, given his personality makeup as assessed by Dr G, was quite unable to accept the Mother’s rejection of him and their relationship following his vicious assault on the Mother on 23 March 2009 and the domestic violence and other proceedings that thereafter ensured.
I find that the “mistakes” acknowledged by the Father in the course of the final submissions of his Counsel referred to are at the tip of the iceberg when it comes to his role in bringing about the situation that the boys became alienated from the Mother.
It may be that since the Father has established a relationship with Ms U, he has overcome, to some extent, his compulsion to portray the Mother in a negative light to the boys. I was impressed with Ms U as an honest and reasonable witness, and her evidence did not include observations by her of the kind made by Ms K in terms of the negative influences of the Father upon the boys. However, it must be understood in this context that it is more likely than not that the die was cast in the initial period post-April or May 2009, when the Father acted as he did well before Ms U entered the picture and the lack of time and communication between the boys and the Mother has left the Father’s attitude untested in this respect.
That is, it is clear that at an early stage, B was enlisted to the Father’s “cause”, and likewise, the younger brothers soon followed and B’s influence over them is apparent on occasions referred to by the Mother as recorded in MB7. As is reflected in MB7, by April 2010, the position had been reached whereby B was essentially uncontrollable when in the care of the Mother, and she had reached the position that if B would not behave, he would not be included in visits. That resulted in B adopting the stance that if he was not to spend time, then none of the boys would be spending time with the Mother.
Thereafter, as page 22 of MB7 reflects, communications from B to the Mother reached their high point in terms of the level of vitriol communicated by B to his mother. Putting it mildly, it is abhorrent, shameful and disgusting that B would address his mother in those terms, particularly in circumstances where there is not a scintilla of evidence that would justify B adopting such a stance towards his own mother. It is readily apparent from MB7 that A and Y were readily influenced by B in adopting similar behaviour.
Thus, well before Ms U was part of the household and perhaps able to exert a more positive influence, both on the Father and upon the boys in terms of their relationship with the Mother, the position of the boys having adopted their Father’s stance in terms of attitude towards the Mother had been well-entrenched.
Thus, even in the interview by Mr C of A and Y on 3 August 2011, there is a continuation of the theme of Y referring to adult/money matters. As paragraph 18 of Mr C’s report records, Y was aggressive and critical of him and accused Mr C of, “…taking his father’s money and as such [Mr [C]] stymied his opportunity to receive a new motorbike.”
On a more positive note, there are instances as recorded in MB7 and more recently, on the evidence generally, when Y has been willing to spend time with the Mother. That is likely to be referable to, or substantially contributed to by, the positive influence of Ms U as well as the absence of B.
During the trial, arrangements were able to be made for Y to spend weekend time with the Mother, which was successful in the sense of Y apparently enjoying the time with the Mother, but was unsuccessful in the sense of Y apparently feeling the need to convey to the Mother a continuation of the message that he did not wish to spend time with her and he did not wish to be separated from his brothers.
Unfortunately, as appears from the evidence of Ms U, both orally and by affidavit, it was not explained to Y that his parents had agreed on this time being spent. Rather, Y was informed that “the Judge” had given everybody a job to do, and his “task” was to spend time with his mother. I accept Mr N’s evidence as to what that would have conveyed to Y which, paraphrased, was to the effect that it reinforced to Y the dispute between his parents rather than them having agreed (and in particular his Father having agreed) as to him spending time with the Mother and that being supported by the Father.
In that context, it is unsurprising that Y would enjoy the time he spent with the Mother (as I find he did on the Mother’s evidence), yet still feel obliged to reaffirm his allegiance to the Father by making the statements he made to his mother.
It is illuminating that it was Ms U, and not the Father himself, who told Y of these arrangements.
Determination of best interests – s 60CC considerations
As already noted, as these proceedings have evolved over a significant period of time since their commencement, the point has been reached where the proposals of the parties, including the Independent Children’s Lawyer, focus primarily upon the child Y, and it is essentially his best interests which dictate the parenting Orders that now ought be made.
By way of overview, to adopt the terminology of Mr N in his oral evidence, the Court is faced with, “…lousy options…” That is, if Y continues in the primary care of the Father, the likelihood is that there will be no improvement in the relationship between Y and the Mother and, taking the expert evidence as a whole, that means that not only will Y not have any prospect of developing and maintaining a meaningful relationship with the Mother during his remaining childhood, but that Y’s capacity to form meaningful and sustainable relationships in his adult life may be limited by reason of his exposure to the Father’s attitudes to the Mother and to women in general as providers of care. As the Mother’s Counsel put it, what has been modelled by the Father to the boys with respect to the Mother and women, is that they are, “…replaceable, interchangeable, and disposable.”
The option of placing Y now in the Mother’s primary care with a moratorium on his capacity to have time or communication with his older brothers and with the Father also has very significant potential downsides. First, Y may simply not accept that position and there may be repeated episodes of him running away and potentially placing himself in danger. Second, he will be separated from the Father, who has obviously been a central figure in his life in the period post-separation. He will also lose contact, at least for a time, with his siblings, and will be separated from them, which is something identified in the evidence from Y himself as an outcome he opposes.
He will also cease to experience the input of Ms U with which he has become familiar and his interaction with her and her son, X, who have been part of his household for some time.
I find, in respect of the primary consideration expressed in s 60CC(2)(a), that there is a clear benefit to Y of having a meaningful relationship with both of his parents. Whilst there is evidence in abundance that Y does not currently have consistently positive interaction with the Mother, I note in particular the evidence of Mr C, which I accept, to the effect that there are instances within the interaction between Y and the Mother reflective of Y’s historical experience of his mother as his primary carer. As Mr C noted, there was, throughout the process of his counselling, “bids” by Y to interact with the Mother and that the Mother was accurate in reading these bids and was responsive to them. I accept the opinion of Mr C that this is an important component in viewing the potential future relationship between Y and the Mother. In short, I accept Mr C’s opinion to the effect that there is a foundation to the relationship between Y and the Mother based upon the historical emotional availability of the Mother to Y and the attachment of Y to the Mother borne out of the history of the Mother’s primary care of Y.
Whilst there can be no guarantees of a successful restoration of the relationship between Y and the Mother, I accept Mr C’s evidence, given with reference to some social science research, that the median age for successful outcomes is between nine years and twelve years, so that it would seem Y, unlike B and A, has not yet reached an age where placement with the Mother would be a triumph of hope over expectation in terms of the prospect of the restoration of their relationship.
I also note in this respect Dr G’s evidence about the onset of puberty being an important factor, in her experience, of successful outcomes. That is, that there is an increased likelihood of success where the subject child is pre-pubescent. In the absence of evidence to the contrary, I infer that at his current age, Y is in that category.
On all the evidence, including the expert evidence, I do not consider that Y’s relationship with the Mother is likely to be restored if he continues to reside in the primary care of the Father. Even if it be that the Father has mellowed in terms of his negative views of the Mother (and I am not convinced that is so) and even if his propensity to negatively influence Y, with or without the input of Ms U, has reduced, I am not satisfied, on the evidence as a whole, that the Father has, or would exercise, the capacity to enhance the prospect of Y developing a meaningful relationship with the Mother.
With respect to the primary consideration in s 60CC(2)(b), it is of concern that the Father has a demonstrated propensity to cause physical harm to women and intimate partners, given my findings concerning his assault of the Mother and his assault of Ms K. However, there is no evidence that the Father has directly subjected any of the boys to “abuse” or “family violence” within the meaning of those terms as they are defined in the Act, save only to the extent that the boys were apparently aware of the Mother’s injuries and had the opportunity to observe them following the assault on 23 March 2009. Dr G has specifically commented upon that aspect in her report. On the balance of probabilities, in terms of assessing the future, it would seem unlikely that there is the need to protect Y in this sense.
As to Y’s views (s 60CC(3)(a)), the assessment of Y’s views depends upon the extent to which his views appear to be based upon choices that are well thought through and based upon appropriate, as distinct from irrelevant or peripheral, matters; and the extent to which his views may be said to be the result of pressure upon him and thus to what extent they reflect Y’s own choice.
Taking into account Y’s age and level of maturity from time to time when he has expressed views as they appear in the various expert reports, taken with my findings as to the extent of the Father’s role in the alienation, I find that no significant weight can be attached to Y’s negative views of the Mother as expressed from time to time.
I find that there is genuineness in Y’s views concerning his desire not to be separated from his siblings, and that there is considerable potential downside to that if the Mother’s proposal (or the Independent Children’s Lawyer’s proposal) is adopted.
However, the position is now reached that B has been pursuing his employment in northwest Queensland and is no longer usually a member of the Father’s household. That is, circumstances have dictated that Y is now separated from B by reason of the latter’s employment and B’s age and stage of development in pursuing his own career. There is also evidence before me that it may not be too far into the future when A takes a similar course. That is, A has already embarked upon the same course of trade training as that which B undertook prior to his taking up employment in northwest Queensland, and it may be that in the medium term, A will likewise leave the household in pursuit of his own employment.
Thus, whilst I accept that the relationship between Y and A is a close brotherly relationship, the reality for Y is that a point will probably be reached in the not-too-distant future when A will no longer be part of Y’s household, irrespective of the outcome of these proceedings.
Of course, Y’s views in this respect, and what may be termed the importance to Y of his sibling relationships, needs to be balanced against relevant considerations overall.
I have already largely dealt with the nature of Y’s relationship with each of his parents. No doubt Y is also developing a relationship with the Father’s current partner, Ms U. Indeed, on her evidence, she has played a principal role in improving Y’s school performance and his involvement in other activities, such as speech therapy; tutoring and rugby union. I take account of the feature that on the Mother’s proposal, Y would be separated not only from the Father and A, but also from Ms U and her son, X.
It is a feature of this case and the alienation of the boys from the Mother that the Father has likewise done nothing to preserve any relationship between any of the boys and the maternal grandmother, Mrs J, or extended members of the maternal family.
As to s 60CC(3)(c) and s 60CC(4)(b) and (4A), on my findings, the Father has demonstrated an unwillingness and inability to facilitate and encourage a close and continuing relationship between any of the boys and the Mother, and has failed to facilitate the Mother participating in any decisions concerning the boys post-separation, and has, in effect, sabotaged the prospect of them spending time with and communicating with the Mother.
In assessing the likely effect of any change in Y’s circumstances (s 60CC(3)(d)) I take into account the evidence of each of the experts as to the potential for Y to respond adversely to placement in the Mother’s primary care, involving as it does separation not only from the Father, but also A. As noted, it also involves Y being separated from the person who has now become a carer of his, namely Ms U, and on my assessment, she has been a very positive influence in that household. As to that, whether the relationship and the Father and Ms U endures is another question. It appears that since separation, the Father has maintained a relationship with one Ms T for a time, and for about twelve months with Ms K, and he has now formed a relationship with Ms U. It remains to be seen whether that relationship will subsist and that cannot be assumed given the Father’s demonstrated attitude to women.
I take into account that there may well be very significant difficulties if the Mother’s proposal is adopted and I note that on her evidence, the Mother recognises and appreciates the potential difficulties she will face. Against that, there is evidence of the underlying historical strength of the relationship between the Mother and Y, and in circumstances where a regime of counselling is proposed, this will hopefully address issues likely to arise if the Mother’s proposal is adopted.
The current practical difficulty of Y spending time with and communicating with the Mother (s 60CC(3)(e)) is interrelated with the matters that have already been discussed. A continuation of Y in the Father’s primary care is likely, I find, to produce a continuation of the same difficulties. If a proposal along the lines contended for by the Mother or the Independent Children’s Lawyer is adopted, there will obviously be no practical difficulty in this sense during the moratorium period proposed, and any future practical difficulty will relate to where the Mother is living at the time there is any resumption in the relationship or spending time between Y and the Father. Whilst the Mother was uncertain as to her position in terms of her living circumstances, what she is to receive by way of property settlement (Exhibit 12) should alleviate the financial constraints she has been under in the period post-separation. Her evidence was to the effect that whilst she was uncertain as to where she would be living, she had no active plans to remove herself by any great geographical distance from the Father’s residence. There is the prospect that she may live somewhere in northern New South Wales, but I infer that on her proposal, if there is a resumption of Y spending time with the Father on weekends and holiday periods, that ought be able to be achieved notwithstanding that she lives some distance from the Father’s locale.
The considerations of the capacity of each of Y’s parents to provide for his needs, including his emotional and intellectual needs (s 60CC(3)(f)), as well as their attitude as parents to Y and to the responsibilities of parenthood they demonstrate (s 60CC(3)(i)), have largely already been dealt with. I find that whilst each parent has the capacity to provide for Y’s physical needs (and the Mother’s capacity will be enhanced by the consent property Orders) on my findings, the Father lacks the capacity to provide for Y’s emotional need to have and maintain a relationship with the Mother.
There is also some question about the Father’s capacity to provide for Y’s intellectual needs given the evidence of Ms U. Based upon her affidavit and oral evidence, in a relatively short timeframe since she has been involved, there has been significant improvement in Y’s school performance and, as already noted, she has been instrumental in involving him in other activities. There are obviously difficulties for the Father by reason of his work commitments and his absences from the household, and that “gap” has been filled in recent times by Ms U. However, given the Father’s history in terms of his post-separation relationships, there must necessarily be a question as to whether Ms U will remain available in the Father’s household to provide this supplementary and important role for Y, whereas I am satisfied that the Mother, whose employment does not take her away from home for extended periods, may well be better equipped to perform the role of ensuring that Y’s intellectual needs are fulfilled.
Fundamentally though is the question of Y’s emotional need to have and maintain a relationship with both parents and I find that is only likely to be possible if Y is residing in the primary care of the Mother.
I have already made findings in relation to family violence, and by reason of that, s 61DA(2) operates to displace the presumption that it is in the best interests of Y for his parents to have equal shared parental responsibility for him. I find that, given the nature of the relationship now between the Father and the Mother and her fear of him; and the Father’s attitude to the Mother; it is unrealistic to consider they could have a workable capacity to communicate or negotiate such that it would not be in Y’s best interests for the parents to share parental responsibility.
The consideration of the Order that is least likely to lead to the institution of further proceedings in relation to Y brings into consideration the question of whether Orders should be made in an interim form rather than final Orders.
I find that it is in the best interests of Y for Orders in final form to be made. As already noted, this litigation has been on foot for a very significant period of time and, having regard to the findings I have made, I consider it more probable than not that interim Orders, in whatever form, would only increase the likelihood of continuation of disharmony and potentially perpetuation of efforts to destabilise Y’s relationship with the Mother, not only by the Father but also by B and A.
Conclusion and Orders
I am satisfied, on the expert evidence of Mr N and Mr C which I accept, that realistically, the only prospect of Y’s relationship with the Mother being restored lies in an outcome which sees Y immersed in her care and removed from the pervading influence of the Father’s negative attitudes towards the Mother mirrored, as they have been, by Y’s older siblings.
On the expert evidence referred to, including that of Dr G, the position is now reached that, because of their ages and stages of development, B and A will possibly only resume some meaningful relationship with the Mother when they are in adulthood and are able to apply the maturity that comes with adulthood to reflect upon their own experiences of their mother over the lengthy period prior to the parties’ separation and in particular the period prior to April/May 2009. Notably, B was aged 14 years, almost 15, as at April 2009, and A was aged 12 years. They thus have a foundation from their own experience prior to the disharmony and disruption of the family unit and the poisonous influence of the Father to reconsider their relationships with the Mother in the future.
In contrast, Y was only seven years of age when the parties separated in January 2009. Perhaps more significantly, Y is now almost eleven years of age and, on the expert evidence which I have referred to, which I accept, is still at an age where there are prospects of success of his relationship with the Mother being restored under the control of parenting Orders.
Each of Dr G, Mr N and Mr C, addressed, particularly in their oral evidence, the question of what may be termed a “moratorium” on time and communication between Y and the Father in circumstances where Y is placed in the primary care of the Mother. Whilst each agreed that it would be important to the success of that proposal that Y experience the care of the Mother uninterrupted by the potential adverse influences of the Father and his older siblings, there was no clear or unanimous conclusion as to the period of that moratorium, nor indeed were there any clear conclusions as to the likelihood of success. That is unsurprising and likewise, it is unsurprising that there would thus be some distinction between the proposals of the Mother and the Independent Children’s Lawyer respectively as a result.
I accept the submission by Ms Hogan of Counsel on behalf of the Mother to the effect that what is at stake in terms of Y’s best interests is much more than simply the promotion of the relationship between Y and his mother. I find that what is also at stake is, as Dr G put it, the question of whether Y’s future relationships, in particular his relationships with women, will be coloured by his experience of the Father’s attitudes and in particular his attitude to Y’s own mother. It is sobering indeed that Dr G refers to an increased probability of the children being abusive to women as adults.
Each of the experts Mr N and Mr C likewise referred to the role modelling and the risks to Y of that role modelling in terms of his adult life and his establishment of relationships in adulthood. I accept the conclusions of Mr N and Mr C to the effect that whilst there are very significant ramifications for Y of a change to the Mother’s primary care (Mr C referred to a probability of Y experiencing grief for a period in response), I accept the thrust of their evidence, albeit in different forms, that balancing Y’s best interests, the risks or potential downsides to which they refer were justified by attempting the restoration of the relationship between Y and the Mother and a removal of the influences negative to the Mother that have been operative on Y; as well as removal of Y from the role modelling that has been experienced by him in the Father’s household as referred to.
I am therefore satisfied that Y’s best interests overall dictate that Orders be made generally in the terms proposed by the Mother and the Independent Children’s Lawyer, albeit with some modifications. I accept Dr G’s evidence that the Mother exhibits genuine fear of the Father and her diagnosis of Post-Traumatic Stress Disorder traits in the Mother, which can only be explained by reference to her actual experience of the Father. It is therefore legitimate that she have the opportunity for anonymity in terms of being able to relocate herself and Y to an address that is not known to the Father, in terms of enhancing the quality of care she can provide to Y. However, it seems to me that some geographical limit, consistent with the Mother’s evidence, ought be imposed with a view to some future time when Y might resume time and communication with the Father.
No doubt in assessing the probability of a “grief” reaction from Y, Mr C was cogniscant that, on the Mother’s proposal, he may not only be removed from the Father and his household, but removed from his current school and from activities such as a sport which he has commenced which he apparently enjoys. I have already noted that Y is likely to have developed a relationship with Ms U, and that, too, is a “downside” of the proposed Orders.
Against all that, on the Father’s evidence, it has been Y’s experience to have something like a dozen carers when the Father has been away for work in the period since separation to date. Aside from Ms K, I note that the Father introduced his own mother as the children’s carer in circumstances where she had not seen the children for some six years prior to October 2010 and after about a week, the children were left in her care whilst the Father pursued employment in Western Australia. It is not as if it has not been Y’s experience of having to make significant adjustments, in terms of his care and who it is provided by, throughout the period since separation even though he has remained in the Father’s household. The Father continues a regime where he is away for two weeks every month.
In that sense, placement with the Mother may give Y some continuity of care that has not been his experience since the parties’ separation. Most significantly, it will be a return to the care of the Mother who, as I have found, was his primary carer prior to the parties’ separation. I have earlier referred to Mr C’s evidence as to the foundations that exist between Y and the Mother, sourced from that historical care situation.
I consider that the Mother’s proposed Orders, with some modification, best meet Y’s best interests in comparison with those proposed by the Independent Children’s Lawyer, taking into account my findings as a whole, but also based upon the conclusion that the resumption of Y’s relationship with the Father ought not be the subject of speculation now as to the outcome of therapy, both of Y and that undertaken by the Father. There ought be, I find, a demonstration by the Father of successfully undertaking therapy and a sound basis for concluding that it is in Y’s best interests that he resume his relationship with the Father and with his siblings and consideration will need to be given at that time as to how that is best achieved.
The Orders made with respect to parental responsibility reflect the reality of the parties’ capacity to communicate and the finding that it is in the child’s best interests that the parent with whom that child is to live ought have sole parental responsibility. I have already noted that, on my findings, the presumption as to equal shared parental responsibility is displaced in this case.
Whilst on my findings it is legitimate for the Mother to have anonymity as to where she and Y are living, balanced against that is the future prospect of the relationship between Y and the Father resuming, and I therefore consider it in Y’s best interests that a geographical limit be placed upon where Y lives, which is consistent with the evidence of the Mother before me, as vague as it was, concerning her future plans. I note that the property Orders reflect the Father’s intention to retain his current residence in South East Queensland as part of the property Orders.
In the course of submissions, I confirmed with the Counsel for the Mother that, rather than having the point of communication being the Mother’s own mother, a workable solution was for the Mother to provide an e-mail address, and the Orders made reflect that.
Whilst the Mother’s proposed Orders included an Order concerning the consumption of alcohol by the parents when the children are in their care, I do not consider that such an Order is realistic or workable.
A number of the Orders made, particularly with respect to counselling or therapy for either the children or the parents, were sought by all parties. I have expressed the Orders for each party to attend counselling as a condition of the parenting Orders on the basis that the Court does not have jurisdiction to make a “stand alone” Order imposing a requirement, but can legitimately impose it, and does have jurisdiction, if it is imposed as a condition of a parenting Order.
The Orders I make are a modification of the proposals advanced by the Mother and the Independent Children’s Lawyer respectively. Conditions, which I trust are self-explanatory, are imposed upon the Father making an application for Orders for time or communication with Y. Essentially, those Orders reflect my determination that it is in Y’s best interests that there be no further application unless and until the conditions outlined in the Orders have been fulfilled. This also provides a balance against any arbitrary adoption of a period of about six months for the moratorium of time and communication, as earlier referred to.
Whilst it is some time since Ms D interviewed the boys, including Y, in circumstances where the person who will be undertaking the role of providing Y’s therapy is yet to be identified and that will be dictated to some extent by where the Mother is living, I consider it in Y’s best interests that a professional explain the outcome to him and on that basis, have made an Order under s 65L and hopefully it will be Ms D who is available, who has at least previously met Y for that purpose.
In the course of his evidence, Mr N identified Mr P as a suitably qualified and appropriate therapist to undertake the therapy contemplated for the Father. The Independent Children’s Lawyer confirmed with Mr P his availability and the Father, via his Counsel in final submissions, indicated no difficulty with Mr P being the nominated counsellor.
For these reasons, I make the Orders set out at the commencement of these reasons.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 10 May 2012.
Associate:
Date: 10 May 2012
Key Legal Topics
Areas of Law
-
Family Law
-
Civil Procedure
Legal Concepts
-
Jurisdiction
-
Costs
-
Remedies
-
Procedural Fairness
-
Injunction
5
0
2