BURGESS and BURROWS

[2006] FCWA 111

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: BUNBURY

CITATION: BURGESS and BURROWS [2006] FCWA 111

CORAM: HOLDEN CJ

HEARD: 8 - 9 AUGUST 2006

DELIVERED : 8 NOVEMBER 2006

FILE NO/S: [REDACTED]

BETWEEN: MS BURGESS

Applicant Wife

AND

MR BURROWS
Respondent Husband

Catchwords:

CHILDREN - with whom a child spends time - physical punishment - child's views

Legislation:

Nil

Category: Not Reportable

Representation:

Counsel:

Applicant Wife : Self Represented

Respondent Husband : Self Represented

Solicitors:

Applicant Wife :

Respondent Husband :

Case(s) referred to in judgment(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Burgess and Burrows has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

1These proceedings relate to two children, [Child A], born [in 1994] (aged 12) and [Child B] born [in 1996] (aged 10).

2Their father, [Mr Burrows], is a [technician] and was born [in 1969].

3Their mother, who is a [shopkeeper], was born [in 1970]. The parties were married [in mid-1991], separated [in late 2000] and were divorced in 2002.

4There appears to have been little respite to the litigation engaged in by both parties. The file is now in its fifth volume.

5The latest round was instituted by the wife who, on 13 February 2006, filed an application seeking the following orders:

“1.THAT THE PREVIOUS CONTACT ORDER BE SUSPENDED UNTIL THE ALLEGATIONS OF PHYSICAL ABUSE CAN BE INVESTIGATED.

2.THAT THERE BE A REPORT ON THE CHILDRENS (sic) WISHES.

3.THAT AN INJUNCTION BE PUT IN PLACE RESTRICTING THE FATHER FROM ANY PHYSICAL ABUSE TYPE DISCIPLINE.

4.THAT FURTHER ORDERS BE MADE UPON THE FINDINGS FROM THE CHILDRENS (sic) REPORT.

5.THAT IF THE FINDINGS OF THE REPORT SUPPORT THE ABOVE THAT THE CHILDREN BE ABLE TO DECIDE WHICH WEEKENDS THEY WOULD LIKE TO SPEND WITH THEIR FATHER.

6.OTHER CONTACT AS PER AGREED UPON BETWEEN ALL PARTIES.

7.THAT [CHILD A] AND [CHILD B] CONTINUE TO RESIDE WITH THEIR MOTHER.”

6She instituted the proceedings having discovered that when Child B was with his father he was subjected to corporal punishment and, in particular, was being punished by being hit with a leather belt.

7Prior to the institution of these proceedings, the orders in force were those of 1 August 2005 which were:

IT IS ORDERED BY CONSENT THAT:-

2the Court orders made by consent before the Court on 9 December 2003 be discharged.

3The Respondent [MR BURROWS], have contact with the children, [CHILD A] born [in 1994] and [CHILD B] born [in 1996], as follows:

(a)half of all mid year school holidays, with changeovers to be 8pm Saturday evening of the middle weekend and the Respondent to return the said children to the school at the end of the holidays;

(b)for the second half of the Christmas/Summer holidays in 2005/2006 and each alternate year thereafter;

(c)the Respondent have the Father’s Day weekend with the children and the weekend be exchanged with the Applicant, [MS BURGESS], if it does not fall on the Respondent’s normal weekend;

(d)the Applicant have the Mother’s Day weekend with the children and the weekend be exchanged with the Respondent if it does not fall on the Applicant’s normal weekend;

(e)the children have contact with the Respondent on every second weekend commencing after school on the Friday through to the commencement of school on the Tuesday;

(f)the children have contact with the Respondent overnight from after school on the Tuesday to commencement of school on the Wednesday on the alternate weeks (not the Respondent’s weekends);

(g)in the event the Respondent is unable to fulfil his contact time with the children, then the children remain with the Applicant and the Respondent is able to request, within 7 days notice, for an exchange of contact time and not be unreasonably refused by the Applicant; and

(h)liberal telephone contact between the children and each parent.

4The Respondent shall have parental responsibility for the day to day care, welfare and development of the children during all contact periods referred to herein.

5The children reside with the Applicant who shall have parental responsibility for the day to day care, welfare and development of the children.

6The Applicant and the Respondent shall share the parental responsibility for the long-term care, welfare and development of the children.”

8On 21 February 2006, an order was made inter alia “4. Until further order of the court and on a without admission basis, the Respondent be restrained and an injunction is hereby granted restraining him from any physical discipline upon the said children”.

9The father is mightily aggrieved by the making of that order. As I understand it, he considers it an unwarranted infringement of his right to parent his children as he sees fit.

10So outraged was he that he wrote to the mother in the following terms:

“This letter is to inform you of my intention in relation to the current Court Orders.

In relation to [Child B], I have determined I will not adhere to the injunction placed upon me in relation to disciplining [Child B] whilst he is in my care and control.

As such [Child B] may choose not to come to my home.

If he does stay over at my home you and he are fully aware if he misbehaves the range of punishments will include getting the belt.

I am unconcerned about the legal consequences as they amount to nothing.

[Child B] is aware I love him deeply and he is always welcome at my home.

He is welcome to visit anytime for as little or as long as he likes.

This injunction has been applied for and since granted for the sole purpose of your manipulations.

The Court Order provides no protection for [Child B] and this process has now caused unnecessary heartache for him.

Now you have achieved what you always hoped for.

I hope the thrill of the win is worth the pain and sorrow [Child B] will inevitably feel after he begins to realise what he has lost simply to gratify your deep seeded well of bitterness.

[Child A] will continue to come to my home as per the Court order.

[Child A] is not smacked and rarely misbehaves so the injunction serves no necessary end.

I have sent this letter registered mail so there is a record of it.

No doubt you will want to produce it in court to cause more misery.

Because soon your insatiable appetite for inflicting punishment, bitterness, pain and relationship breakdown will again cause you to push for more destruction.

You need professional psychiatric help for your mental illness.

Please get it!”

11He also went as far as to demand that the child attend at his home so that he could tell him the order was unacceptable and that he could now come on contact when he wished but that the terms would be that he would continue to be subjected to punishment by the belt.

12Upon discovering what was happening at the husband’s home, the wife wrote to him in the following terms:

“[Mr Burrows],

Since [Child B] has been home he as (sic) told me over and over again that he doesn’t want to go to your house at the moment.

[Child B] said “I am scared of dad because he is belting me so much”.

[Mr Burrows], I don’t want this to become a big fight - I am suggesting that for the next month that [Child B] be able to choose when he comes to your house or when he wants to see you.

I would encourage you to phone [Child B] regularly over this time. I am in no way stopping [Child B] from seeing you, however he has made it very clear to me that he does’t (sic) feel safe at your house and doesn’t want to go.

I am concerned about the amount of beltings that he has told me he has received from you over the Christmas break and the name calling that happens to him and he feels that he is picked on continuously and that things are done just to get him into trouble.

I have spoken to [the] Department of Children’s Services and after speaking with [them they] suggested that [they] would be available to mediate with both us (sic) regarding this matter.

I know that [Child B] loves you and I assume that you love him very much too – but for lots of reasons [Child B] just doesn’t feel safe coming to your house at the moment. Infact (sic) he is scared about what you will do when he doesn’t come.

I am asking that you will agree to mediation – if you are not interested then I am intending to go back to court because the only interest I have is for our childrens (sic) welfare.

Your time/my time – is of no concern to me – but primarily our childrens (sic) welfare is.

[Mr Burrows], at the moment from what [Child B] is saying your relationship with him is suffering because of the above reasons and I would like for things to be sorted out so it would benefit both of you.

I still believe it is important for you to have time with [Child B], however the way [Child B] is feeling at the moment – it seems as though it is doing more harm than good.

[Child B] has said he doesn’t want to go to your house and he has asked me to pick him up tomorrow.

[Child A] however will be expecting you to pick her up from school as per normal.

Again I hope this doesn’t become a big fight – but that things can be worked out with [Child B].

[Ms Burgess]”

13In my view, the wife’s concerns were justified and the proposal she made to resolve the issue was a reasonable one. The husband’s response was symptomatic as to what has been going on between the parties since separation. His response was as follows:

“I will not agree! and there is no need for counselling (sic)….

[Child B] is fine! He has some behavioral (sic) issues, which relate to the inappropriate relationship you have fostered with him.

I understand from speaking with [Child B] and the other children you have allowed him to throw furniture and regularly storm out of the house and refuse to go back in. This might be acceptable in your house but its not in mind [(sic)].

[Child B] is told he is not to answer back not to me, to you, [or others.] I tell him that and if he misbehaves he is appropriately dealt with.

[Child B] is not frightened he simply wants to manipulate you… and you of course want to use anything you can to cause me grief and pain because you cannot deal with the fact I am getting on my with life.

[Child B] has new little brother and it’s important he feels part of [his] life also.

I will not allow you to use your agenda to further rob him of opportunity with his dad and new brother.

[Child B]’s due at my home tomorrow night I will collect him from school and that’s the end of it.

It (sic) completely your style to run to the authorities with false allegations of abuse… I will contact the Department and let them know of your track record of false reports tomorrow.

Remember you told the Police I stole all the children’s clothes… You ran off to the Department of Community Development and claiming the children have no clothing…

Even for you this latest ploy full of all the key words like “safe” is completely despicable…

How much longer will you sink to these lows…. Get over it … if you (sic) happy be happy and leave the rest of us alone.. If you (sic) not happy and full of regret then sort it out and don’t take it out on us.

I will discuss this issue with [Child B] tomorrow and make it clear to him its not on…

If you were any sort of a mother you would support me teaching [Child B] to behave properly.”

14There are other allegations as to physical abuse by the father, either deliberate or accidental but that is an issue which I need not determine. In my view, the fact that the husband uses a belt to discipline Child B is enough. It is a fact that is not in dispute that he does use a belt to discipline Child B. The only issue is how often he uses the belt for that purpose. In my view, that is an irrelevant consideration as he should not use the belt at all.

15At trial, the husband was totally unrepentant. In my opinion, he took the view that he was entitled to discipline Child B in any way he considered appropriate and that for the court to prevent him from doing so was unwarranted interference with his parental rights.

16That is a view that I do not share. As I indicated during the course of the trial, I doubt there would be a Judge in Australia who would condone the use of a belt or any other similar object to discipline a young child. The husband made it quite clear at trial that he would not change his view and if the injunction remained in force, then the current situation would continue, namely Child B could come to his father’s home when he wanted but on his father’s terms as to punishment.

17That being the case it seems to me to be largely irrelevant to consider the matters that I am required to consider under the amendments to the Family Law Act 1975. Suffice it to say that the paramount consideration is the welfare of the child. Having said that, however, I believe it appropriate that I refer to a report prepared by [Ms Z], a Family and Child Counsellor, dated 8 March 2006. Contrary to my usual practice, I believe it appropriate to quote extensively from that report. The Counsellor reported as follows:

“According to [Child B], the best times (best residence and contact arrangements) were when he and [Child A] went to their father’s each alternate weekend, to 8 pm on Sunday. [Child B] expressed the view that since the changes, (which increased contact) he has not been happy with the arrangements.

[Child B] spontaneously said “we have just come from dad’s now. It was probably the worst weekend. Dad thinks that I’ve lied to Mum about him and I haven’t. He has had lots of little talks to me this weekend about me telling the truth. He made me read scriptures this morning about that. He told me that he has a right to punish me when I am naughty.”

The impression was that [Child B] felt under a lot of pressure this weekend. He was rather reluctant, or perhaps unable to explore the information above in any detail, commenting that he “did not know” exactly which scriptures he had been asked to read nor why his father wanted him to read them, he just thought that his father wanted him to know that he had a right to punish him when he is naughty.

[Child B] reporting (sic) having attempted to make telephone contact with his mother on two occasions over this past weekend, but she was not home. It appears that [Child B] was anxious and seeking comfort or reassurances from his mother.

[Child B] went on to report that his father hits him, sometimes “hard” and he “sometimes gets 6 smacks instead of 5 or 5 instead of 4”. This physical discipline was explored further and [Child B] explained that the father “smacks” him with a belt on his bottom. [Child B] also claimed that his father would push him around whilst holding him strongly by the shoulders.

[Child B] further reported that his father had put a piece of soap in his mouth and sent him to his bedroom for 10 minutes and he was not allowed to wash the soap out during this period. He then stated that when his mother had done this, she had used liquid soap so it was easier to wash out.

During exploration of physical punishment, [Child B] indicated that his mother also used physical punishment when he was naughty, that she smacks with a “wooden spoon” but that she has not punished him this way for a long time now. According to [Child B], other forms of punishment from each parent include sending him to his room or not allowing him to play with the play station.

When focussing upon relationships with each parent, [Child B] indicated that he was happier, less anxious and more relaxed when with his mother and [her partner], than when he is with his father and [his partner]. [Child B] feels that [the father’s partner] treats her own children much more favourable (sic) than him and suggests that she blames him for incidents that have been instigated by her own children.

[Child B] expressed a close and supportive relationship with his sister [Child A]. He would not wish to spend time with his father without [Child A], in fact he declared that he does not like being at his father’s if [Child A] is not there. For example, [Child A] plays [sport] on Monday after school and does not return until 5:30pm, therefore, he is at his father’s without her for that time.

In summary, [Child B] loves each of his parents but is more comfortable with his mother [and her partner] than he is with the father [and his partner]. In addition there was a distinct impression that [Child B] is wary of his father and also anxious when in his father’s environment.

[Child B] expressed a wish that if he had to have fixed arrangements he would want to reside with his mother and to have contact with his father each alternate weekend only until Monday morning and not on week days. Ideally, [Child B] would like to spend time with his father “whenever I like for as long as I like”.

She further reported:

“The father believes that the children have not been wholly truthful about the nature and number of such incidents, and that the mother is seeking to undermine his relationship with the children.

Information gathered, and observations made during the course of preparing this report indicate that the father does use physical punishment as a form of disciplining the children. There is also an indication that the mother has also used physical punishment as a means of disciplining the children.

Physical discipline can cause significant emotional and behavioural problems in children and is certainly not something that has positive benefits upon children’s well-being.

For these reasons, it is suggested that each parent attend a parenting programme whereby they can develop more appropriate forms of discipline. There are 2 programmes [in the area] that may be suitable. The parents can make enquiries by telephoning [the relevant person].

Both children suggest that they are fearful of their father’s parenting style to some degree and in addition, have an uncomfortable relationship with [the] father’s wife. It is quite likely that these two issues together, underpin the children’s wishes to spend less time with their father than they do currently.

The children’s relationship with their father is not a happy one at this time and unless the above issues are addressed this relationship is likely to continue to deteriorate.”

18In my view, the solution to the dilemma which presently exists is extremely simple. The husband’s evidence was that he does not use a belt to discipline his female children and has only on perhaps one occasion had to use the belt on his son of his new relationship. It is glaringly obvious that the husband can solve the situation by not using a belt or any other object to discipline any of his children.

19Notwithstanding the recommendations of the counsellor that the parties attend a parenting program whereby they can develop more appropriate forms of discipline, I do not intend to make such an order. The reason is that the husband accepts no blame for what has gone on between the parties, does not believe that he needs counselling and does not believe that he needs any improvement as a parent.

Proposed orders

20The only orders I propose to make are to amend the consent orders made on 1 August 2005, as follows:

(a)to insert in order 3, before “the Respondent”, the words “subject to the children’s wishes”; and

(b)to add an additional order:

“The respondent husband be restrained and an injunction is hereby granted restraining him from inflicting any physical discipline upon the said children.”

21Upon publication of these reasons for judgment, I will hear each of the parties as to any other matters arising.

These reasons were anonymised and published by Chief Judge Sutherland’s chambers on 23 December 2020.

I certify that the preceding [21] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court

Associate