C and C
[2002] FMCAfam 2
•11 January 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| C & C | [2002] FMCAfam 2 |
| CHILDREN – Best interests. |
| Applicant: | K C |
| Respondent: | G C |
| File No: | ZD2179 of 2000 |
| Delivered on: | 11 January 2002 |
| Delivered at: | Darwin |
| Hearing Date: | 7 December 2001 |
| Judgment of: | Brown FM |
REPRESENTATION
| Counsel for the Applicant: | Ms Gearin |
| Solicitors for the Applicant: | Diana Elliott |
| Respondent: | Appeared on own behalf |
| Child Representative: | Stuart Barr |
ORDERS
(1)That the two children of the marriage Y C born 16 August, 1988 and N C born 10 October, 1992 (“the said children”) reside with the wife from the commencement of the Northern Territory school year in 2002.
(2)That the husband have contact to the said children as follows:
(i)Each alternate weekend from 5.00pm Friday until 8.00pm the following Sunday;
(ii)On two evenings per week to be agreed between the parties between 5.30pm until 8.00pm;
(iii)For half of all school holidays being the first half in the year 2002 commencing on the Saturday following the last day of the school term, and in each alternate year thereafter and for the second half of all school holidays in 2003, concluding on the Sunday immediately prior to the first day of the new school term, and in each alternate year thereafter;
(iv)On such other occasions as the parties may mutually agree.
(3)That the husband and wife have joint responsibility for the long term care, welfare and development of the said children and that each have sole responsibility for making day to day decisions concerning the care of the children when the children are with him or her.
(4)That the husband be permitted to travel to Greece for one month each year with the children provided he gives three months written notice to the wife of his intention to travel.
(5)That the Manager of Court Counselling or his nominee explain the meaning of these orders to the children prior to the commencement of the Northern Territory school year.
(6)That the wife and the child Y attend such relationship counselling as may be arranged by the Child Representative after consultation with Mr Heydt.
(7)All applications be removed from the Pending Cases list.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
ZD 2179 of 2001
| K C |
Applicant
And
| G C |
Respondent
REASONS FOR JUDGMENT
Introduction
The parties to these proceedings are K C (hereinafter referred to as “the wife”) and G C (hereinafter referred to as “the husband”).
The wife and the husband are the parents of two children, Y C (hereinafter referred to as “Y”) born 16 August 1988 and N C (hereinafter referred to as “N”) born 10 October 1992. Accordingly at the present time Y is 13 years and 4 months old and N is aged 9 years and 3 months old.
The parties were married at Darwin in the Northern Territory of Australia on the 30th of August 1987. The marriage between them was dissolved by the Federal Magistrates Court of Australia at Darwin, the decree nisi of the dissolution of the marriage becoming absolute on the 14th March 2001. Each of the parties seeks orders from the Court that these two children should live with him or her on a final basis. It is the resolution of these competing applications that is currently before the Court.
Applications
The wife is the applicant in these proceedings. In her Form 3 application which was filed with the Court on the 17th of April 2001 she seeks the following orders:
a)That the children of the marriage namely Y C born the 16th August 1988 and N C born the 10th October 1992 do reside with the applicant wife.
b)That the children have contact with the husband:
i)each Monday between 5.00pm and 8.30pm;
ii)each Wednesday between 5.00pm and 8.30pm;
iii)each weekend from 3.00pm Saturday to 3.00pm Sunday afternoon; and
iv)for half of all school holidays.
c)That the husband and the wife have joint responsibility for the long term care, welfare and development of the children of the marriage and that each have the sole day to day care of the children when those children are in his or her daily care.
In an affidavit in support of her position filed with the Court on the 3rd of December 2001 the wife has indicated that she currently seeks orders as follows:
a)That N reside with me and see the husband;
i)for two evenings per week from 5.30pm until 8.00pm and each alternate weekend from 5.00pm Friday until 8.00pm on Sunday;
ii)For half of all school holidays; and
iii)that she be able to travel to Greece for one month each year for the purposes of a holiday with the husband (at a time to be agreed).
The orders that she seeks for Y are:
a)That Y reside with me and see the husband;
i)For two evening per week from 5.30pm until 8.00pm and each alternate weekend from 5.30pm Friday until 8.00pm on Sunday;
ii)For half of all school holidays; and
iii)that he be able to travel to Greece for one month each year for the purposes of a holiday with the husband (at a time to be agreed).
In her affidavit the wife has also proposed the possibility of Y residing equally with her and the husband on an alternate weekly basis.
The husband is the respondent to the proceedings. In his form 3A response filed with the Court on the 27th June 2001 he indicates that he seeks the following orders:
a)That the children of the marriage Y C born 16th August 1988 and N C born 10th October 1992 reside with the husband.
b)That the husband and the wife each have sole responsibility for making decision about the day to day care, welfare and development of the children when the children are living with them.
c)That the husband jointly with the wife have responsibility for making decisions about the long term care, welfare and development of the children.
d)That the children have contact with the wife as agreed between the parties.
There have been a number of interim orders made in the proceedings prior to the final hearing of the matter. On the 10th of July 2001 Federal Magistrate Mead made an order requesting that the Legal Aid Commission of the Northern Territory appoint a separate representative for the two children. As a result of this order the Legal Aid Commission appointed Mr Stuart Barr to be the separate representative for Y and N.
Evidence
The wife relied on the following affidavits filed on her behalf:
i)of herself filed on the 28th of June 2001 and the 3rd of December 2001;
ii)of her current partner M K filed on the 4th of December 2001.
The husband relied on the following affidavits filed on his behalf:
i)of himself filed on the 9th of July 2001.
Ms Gearin of Counsel represented the wife. The husband appeared on his own behalf. When the matter came on for hearing before the Court on the 7th of December 2001 the husband indicated that he wished the matter to be disposed of as quickly as possible and for that reason elected to appear on his own behalf at the hearing of the matter.
Ms Gearin cross-examined the husband. The husband cross-examined the wife and Mr K. Mr Barr, in his role as separate representative cross-examined each of the parties and Mr. K.
In addition the Court had the benefit of a Family Report which was prepared by Stephen Heydt, a psychologist. Mr Heydt was required to attend at Court for cross-examination on the hearing of the matter and was cross-examined by the husband, Ms Gearin and Mr Barr.
Background
The husband was born in Darwin on the 29th of December 1966 and is currently aged 35 years of age. He is a roofer by occupation.
The wife was born in Athens on the 6th of March 1969 and is 32 years of age. Currently she is engaged in home duties. She is in receipt of unemployment benefits. Both parties are of Greek extraction.
The parties married in Darwin on the 30th of August 1987 and it is common ground between them that initially separated on the 4th of July 1999.
They attempted reconciliation on the 1st of September 1999. However this reconciliation was unsuccessful and the parties finally separated on the 14th of October 1999.
The wife has sought Domestic Violence orders against the husband in the Local Court at Darwin. In October of 2000 she was granted such an order for a period of 6 months. On the expiration of this order she applied to the Court on the 3rd April 2001 for a further order. On that date the husband was restrained from approaching her either directly or indirectly until the 11th April 2002.
It is common ground between the parties that following separation both Y and N resided with the wife. However in late February 2001 Y went to live with the husband and N followed him in March of 2001.
On separation the wife lived with the two children at her parents’ home situated at 10 M Road, W. She continues to live at this address.
The husband currently lives at Unit 6/4 B Street, M. However it is clear that although both Y and N may sleep overnight at this address, it is the case that the children also spent a considerable amount of time at the address of their paternal grandparents at Unit 35/298 T Road, W. Since separation the wife has re-partnered. She has established a relationship with M K, who is employed as a firefighter by the Northern Territory Fire and Emergency Services. Mr K is 29 years of age. He is divorced with two children who are aged 5 and 4 years. He shares the care arrangements of these two children with his former wife. Although the wife and Mr K have formed a relationship, at the present time they do not live together.
The husband has not re-partnered since separation. He was previously involved in a roofing business. However this business went into receivership midway through 2000.
Orders have been made in respect of arrangements for the care of N and Y on a number of occasions since the children went to live with their father. On the 10th of July 2001 orders where made permitting the wife to have contact to the children during the day on 6 occasions between the 14th and 28th of July 2001. On the 1st of August 2001 orders were made permitting the wife to have contact to Y and N as agreed between the parties.
Finally on the 4th of September 2001 orders were made in respect of the wife having contact with the children as follows:
a)On each alternate weekend from 5.00pm Friday to 5.00pm Sunday (or Monday in the event of a long weekend) commencing on 7th September 2001, with such contact being suspended during school holiday periods;
b)From 5.30pm to 8.00pm on Tuesday of each week during school term time;
c)For one half of the October school holiday period in 2001;
d)By way of reasonable telephone contact.
Since the early part of this year it is apparent that arrangements in respect of the two children have been extremely uncertain. It is also apparent that there is a high level of hostility between the parties and they are unable to communicate with one another.
The children are both currently attending the C H S School. Y was in year 7 and N was in grade 3 during 2001. It seems common ground between the parties that notwithstanding the high level of disputation between them that both children are doing well at school. It is also clear that both children are in good health and neither of them has special needs.
The issues
Having observed the parties in the witness box, a situation which was characterised by the unfortunate necessity of the husband having to cross-examine both the wife and Mr K, it was apparent to me that the bitterness of the husband regarding the demise of the marriage between him and the wife is a central issue in this case. The husband blames the wife for the end of the marriage and the collapse of his business, the two events being inextricably connected in his mind. Although the marriage between the parties has been dissolved, he remains proprietorial in his attitude towards the wife and the children. It seemed to me that he wishes to punish the wife for having had the temerity to leave the marriage. He is outraged by the fact the wife has formed a new relationship with Mr K. The husband is very much a patriarchal figure. His anger and bitterness towards the wife at the end of the marriage and the effect of his unresolved feelings on the children is a matter of great concern to me as is the suitability of the husband to be a parental role model for the children.
The husband remains in the workforce. As a result he is strongly reliant on his parents to assist him with the care of Y and N. He called no evidence from his parents.
Another important issue in the case is which of the parties is better able to provide for the children’s needs, both in a physical and emotional sense. The wife alleges that the husband was physically and psychologically violent towards her both during and after the marriage and that on occasions Y and N have been exposed to this violence. The wife also alleges that there was and continues to be a high level of conflict between her and the husband in regards to the parenting of Y and N. In her evidence the wife says the children have become embroiled in this conflict. A further issue in this case is the extent of this involvement and how in future it may be avoided. The family report in this matter explores this issue as well as the possible effects on Y and N of exposure to domestic violence.
A final issue in the case would appear to be a high probability that whatever orders are made by the Court that the husband and in turn Y will take no notice of them if they perceive the orders as not being to their liking. Y is likely to strongly influence the attitude of N.
The evidence
I found the wife to be a truthful witness. It was obvious to me that she found the process of being cross-examined by the husband a harrowing and exhausting process. The husband used his cross-examination of the wife to self-righteously accuse the wife of moral weakness and of not loving her children or of being interested in their welfare. Neither of which proposition I accept.
I find that the wife gave her evidence courageously in the face of attempts, both tacit and explicit, to intimidate and humiliate her. She presented as a person who had thought deeply and with much heartache about her position and realised that she confronted a dilemma. On the one hand she believed that both children, particularly N, would be better off in her care. However on the other hand if she was successful in her application she would be presented very much with a poisoned chalice as it was inevitable that the husband would continue, for the foreseeable future, to undermine her position as the residence parent. The wife accepted that Y at the present time wished to live with his father. She also accepted that Y and N are very close and it would not be in their best interest to separate them.
The husband was an angry, bitter and inadequate figure. I accept however that he loves his children very much and, as he sees things, is deeply committed to their best interests. There were many gaps of evidence in the husband’s case. He was however adamant in expressing his wish to the Court that it proceed with the case as quickly as possible. It seemed to me that he was deeply embarrassed at having had to come to Court to discuss issues pertaining to the care of his children. In my view it is very much the husband’s position that such issues fall solely within his domain. In particular it was telling there was no evidence from his parents, the children’s paternal grandparents, whom on the husband’s case spend a significant amount of time with the children each day.
Where there is a dispute in the evidence of the husband and the wife, on balance I prefer the evidence of the wife. That is not to say that I think that the husband is a dishonest person or gave his evidence untruthfully. Far from it. At times he was disarmingly honest. Examples of this are when he acknowledged in his evidence his physical violence towards the wife, his blame of her for the loss of the family business and his admission that he is unable to cook. He made little if any effort to downplay these matters. It is the husband’s lack of insight into the current disastrous situation that confronts the children which, in my view, is the most important aspect of the husband’s evidence.
It seems to me that the wife has far more insight into the emotional turmoil currently confronting Y and N than the husband does. As a result she is more aware of the potential for harm that may be occasioned to them by reason of the protracted and bitter conflict between her and the husband.
As I have said, the husband is a patriarchal figure. By that I mean that he sees himself very much as the head of his household. It is his role to be the breadwinner in the family and the role of the wife to attend to the affairs of the house and the needs of the children with unquestioning obedience to him. He feels bitterly affronted at what he sees as the betrayal by the wife of him and the children in leaving the marriage. Although he would seek to be the sole residential care giver of these children, he is unable to cook. He does not see this as being a serious shortcoming in this day and age. He is content to leave such duties to his mother. He did not indicate in his evidence that he would in future attempt to learn how to cook.
As a result of his attitude, the essential theme of his evidence was a general disparagement of the wife as a mother and a person. I suspect that the husband regards marriage as being a commitment for life with the result that although the primary tenor of his evidence was contempt and scorn for the wife, underlying it was also a strong yearning to reconcile with her. In my view the husband still loves his wife very much and has not as yet come to terms with the end of the marriage. He is unable to move on in his relationship with her or abandon his feelings of hostility towards her. It seems to me that he needs to display on a constant basis his sense of hurt and betrayal. As a result of these unresolved feelings and the lack of insight into them, he is prepared to use the children alternately as a weapon to punish the wife or as hostages in an attempt to lure her back to the marriage.
The current situation is very sad and potentially very dangerous for the emotional health and future development of Y and N.
When the parties finally separated in October 1999 the children lived with the wife. The husband had contact with the children each Monday and Wednesday between 5.30pm and 8.30pm and overnight each weekend from Saturday afternoon until the following Sunday afternoon. He also had contact to the children at other times as the parties agreed. This remained the situation until February 2001, a period well in excess of a year. In my view during this period the husband was of the view that eventually the wife would decide to reconcile with him.
On separation the wife moved from the former matrimonial home and began to live with her parents at 10 M Road, W. This move did not involve any disruption to the children’s schooling, as they were still able to attend C H S School, the school that they have attended for the whole of their schooling lives. The husband remained living in the former matrimonial home. Unfortunately, towards the middle of 2000, the husband’s roofing business failed financially and as a result went into receivership. This necessitated the sale of the formal matrimonial home. The husband has remained bitter about the collapse of his business and the loss of his home. This is understandable in the circumstances.
Following the loss of the former matrimonial home the husband went to live with his parents at 35/298 T Road, W.
The wife says in her evidence that the husband failed to pay her any child support during the time the children lived with her. The husband says that he paid child support at the rate of $600 per fortnight until the roofing business went into liquidation in June of 2000. Thereafter he was unable to pay any further child support. The wife maintained herself and the children by means of a Newstart Allowance and with the assistance of her parents. After separation she applied for accommodation for herself and her children from the Northern Territory Housing Commission and was placed on the waiting list for a house. She understands that the Housing Commission will allocate her a house shortly.
The situation in respect of the children was comparatively stable until February of 2001 although on a number of occasions the husband was violent and threatening towards the wife.
As I have already indicated, it is my view that the husband believed that eventually, as he saw it, the wife would come to her senses and wish to reconcile with him. Towards the end of 2000 and at the beginning of 2001 two events occurred which indicated to the husband that this was unlikely to occur and resulted in the hardening of his attitude towards the wife. Firstly in December of 2000 the wife applied for dissolution of the marriage between the parties. Secondly in March of 2001 the wife began her relationship with Mr K. These two events enraged the husband and as I find caused him to actively enlist the children, particularly Y, in his cause against the wife.
In his evidence the husband does not overtly criticise the wife’s ability to care for the children during the period that they were in her care both during and after the marriage. His only criticism of the wife’s ability to care for the children is a nebulous criticism that the wife does not love the children and that she has behaved in such a way as to lose their respect.
On any view of the evidence there can be no doubt that in the period following separation the wife was able to properly attend to the physical needs of the children.
In February of 2001 Y began to live with the husband. By this time he had obtained a flat at Unit 6, 4 B Street, M. It is the wife’s position that at that time she went along with Y’s wishes.
It is the husband’s position that Y told him that he (Y) was sick of the wife constantly abusing the husband to him and that in addition he was upset about the wife forming a relationship with Mr K. It is the husband’s position that at that time Y perceived Mr K as being the cause of the breakdown of the marriage in 1999. In my view such a position is, on balance, more likely than not to be a projection of the husband’s views on to Y, rather than any view Y might have reached independently himself.
At that time the wife respected Y’s decision to live with the husband. She did not wish to precipitate further conflict with him. As has already been indicated in October of 2000 the wife applied for a Domestic Violence order in the Local Court at Darwin. This order was granted for a period of six months. I accept the wife’s evidence the husband was abusive to her throughout the marriage, both physically and verbally, and that this abuse got worse during the course of the marriage. I accept that this violence was the primary reason the wife decided to leave the marriage. I accept that this was a difficult decision for her to make.
The physical and emotional abuse of the wife by the husband did not end with the marriage. As I have found, the husband took the end of the marriage very poorly. He did not accept that the marriage was over. I accept the wife’s evidence that on the 19th of July 2000 the husband slapped her in front of N. I also accept that on a number of occasions he has drawn a knife on her. I also accept that in August of 2000 he threatened the wife that he would kill the children. I also accept that he has on a number of occasions threatened to kill himself to the wife. He has also pushed and assaulted the wife on several occasions.
In such circumstances it is understandable that the wife would not wish to force the issue in respect of Y. It is also apparent to me that following the end of the marriage the husband indicated on several occasions to the children that it was his view that the wife was responsible for the loss of the family’s home and that if the wife had reconciled with him his creditors would not have moved against him.
In his evidence the husband did not deny that he had been violent to the wife in the past. He admitted such violence to the family report writer. In my view the husband displays no insight into the effects his threats and violence have on either the wife or the children. It is also clear to me on the evidence that the husband has constantly portrayed the wife, particularly to Y, as being an immoral person who as a result has forfeited the entitlement to any respect from either Y or the husband.
On the 18th of March 2001 Y visited the wife and spent the day with her and N. The husband came to collect Y at about 5.30pm that evening. At approximately 8.30pm the husband returned to the wife’s home. N answered the front door. At this stage the husband removed her to his car. The husband drove backwards and forwards in front of the wife’s home abusing her as a “slut”. N was a witness to this abuse. Thereafter the husband left with N in his car.
A short time later the husband returned. N was no longer with him. As a result the wife called the police. In my view given the husband’s outrageous behaviour, she was more than entitled to do this. The police attended and the husband was arrested due to the existence of a warrant for his arrest as a result of his failure to pay fines.
The husband has subsequently portrayed his arrest to the children as being the result of the wife’s unreasonable actions. As is clear, the reason for his arrest was as a result both of his own violent and intimidating behaviour and his failure to pay fines. However I have no doubt that this event was a traumatic one for a 9-year-old child. N has been wetting the bed since this incident occurred.
It is the husband’s position that for four weeks after Y came to live with him that the wife showed no interest in him and in fact rejected him. I do not accept this evidence. I rather believe the wife thought that it would be easier to let things blow over rather than risk a further confrontation with the husband.
Shortly after the incident of the 18th of March 2001, N went to live with the husband and Y. It is apparent to me that both the husband and Y placed her under a great deal of pressure. I accept the wife’s evidence that at this time she agreed that N could live with the husband for a period of three weeks. I accept her evidence that she thought that it would be easier to attempt to try and accommodate the husband rather than risk a further confrontation with him. I reject the husband’s proposition that this evidence amounts to a lack of interest in the children on her part. In my view, in the face of unreasonable and oppressive behaviour by the husband, she was attempting to secure some stability for the children, albeit as events have subsequently transpired, she was misguided in this belief.
At the end of the three-week period I accept the wife’s evidence that N told her that “Dad says that if I stay with him then you will miss us and you will have to come back home and we will be a family.” In my view this demonstrates the extent to which the husband has enmeshed the children in his dispute with the wife and has attempted to enlist them for his own ends.
As a result of harassment of her by the husband during this period, a harassment that coincided with the husband discovering that the wife had commenced her relationship with Mr K, the wife was compelled to seek another Domestic Violence order. This order was granted by the Local Court at Darwin on the 11th of April 2001 and was for a period of 12 months.
The wife commenced her proceedings in this Court on the 17th of April 2001. Since March of 2001 I am satisfied that she has met with consistent opposition from the husband in respect of her having any contact with the children. Additionally it is clear to me that the husband has with some success been successful in alienating the children from her. I accept that the children still have an unrealistic expectation that the parties will reconcile. The source of this expectation can only be the husband.
A number of interim orders have been made in respect of the wife having contact to the children since she instituted proceedings. Those orders display the willingness of the wife to take a number of different approaches in order to maintain her relationship with the children in these difficult circumstances. Notwithstanding these orders, the situation has remained fluid. In my view the children are becoming increasingly embroiled in the dispute between the parties. It is clear to me that the husband has been actively enlisting the support of the children, particularly Y, in his dispute with the wife.
Since the children came to live with him the husband has maintained his employment as a roofer. He acknowledges that he works during the day and also on occasions on the weekend. On at least one occasion he has been required to work out bush which has necessitated him being away overnight. As has already been indicated the husband has few domestic skills. As a result he is highly dependent upon his parents for the care of the children in the hours after school. He acknowledges that the children go to his parents from after school until about 7 or 8 in the evening. It is the paternal grandmother who cooks their evening meal. The children then return to the husband’s flat where they spend the night.
No evidence was called from the paternal grandparents. As a result I have no way of assessing how willing they are to continue with this arrangement on an indefinite basis. It is also a cause for concern to me that the wife has indicated that the husband’s parents regularly visit Greece for extended periods of time. As a result it seems to me that the husband would have extreme difficulty in caring for the children without the assistance of his parents. As I have already indicated, the husband acknowledges that he is unable to cook himself and is not prepared to learn in the short term.
As a result of the husband’s continuing to work, the wife alleges that the children are not properly supervised. The wife alleges that Y has been taken to the husband's building sites and is not attending school regularly. The wife is also concerned that Y is socialising with older boys at an establishment known as the SHAK, a youth club in the C area.
The hearing of this matter took place on the 7th of December 2001. At that time the husband brought Y to Court with him. It was a disconcerting experience for me to be able to observe Y jumping up and down outside the Court and peering in to it through a glass window in order to see his parents giving evidence in the proceedings before the Court. The husband indicated that at that time he had not been able to make arrangements for the care of Y due to the hospitalisation of his mother. In my view this incident is symptomatic of the lack of insight the husband has into what is appropriate care arrangements for a 13 year old boy and the lack of thought-out long term arrangements for the care of these two children on his part.
During the past few months I accept the wife’s evidence that the husband has consistently told her that the children hate her and have no longer any wish to see her. I am concerned about the potential for emotional harm to be occasioned to these children by such actions on the part of the husband. I accept the wife’s evidence that N is greatly distressed at the current state of affairs and oscillates between weeping and on the one hand telling her mother that she loves her and wishes to live with her and on the other hand telling her she never wants to see her mother again.
On any view the current situation is unstable and untenable and cannot be allowed to continue.
In his affidavit filed on the 9th of July 2001 the husband indicates that he has a girlfriend. As a result he deposed that he is happy and has moved on. In my view it is telling that the identity of his new girlfriend is not revealed and needless to say no affidavit material was provided by her. In my view the husband is obviously not emotionally stable at the present time and is far from resolved in his feelings for the wife.
The wife called her present partner M K to give evidence in the proceedings. Once again, due to the fact that the husband was unrepresented, it was necessary for him the cross-examine Mr K. There was an atmosphere of tension and aggression when this took place. In my view Mr K was an impressive witness. I was impressed by his calmness and his restraint in the face of the husband’s cross-examination. The wife and Mr K are not residing together at the present time and do not intend to reside together in the foreseeable future. I suspect the reason for this is that they suspect it will provoke further aggression from the husband.
It is the husband’s position that both Y and N are deeply resentful of Mr K. In his evidence Mr K indicated that he has attended a number of recreational outings with Y and N and there have been no problems with them. He further gave evidence that he has no intentions of assuming any parenting role in respect of the children. In my view he has the temperamental abilities to be able to deal with the difficult situation that confronts the wife. I was impressed with the level of his commitment to the wife. After all, the situation in which he finds himself is far from an easy one.
The family report
A family report was prepared to assist the Court with the disposition of this matter. The report was prepared by Stephen Heydt. Mr Heydt is a psychologist and a Family Court Counsellor. He holds both Bachelor and Master qualifications in psychology and has been practising as a psychologist since 1989. He has a particular interest in the psychological effects of trauma and worked with the victims of trauma for approximately seven years. I found him to be an impressive and well-qualified witness. I accept his evidence.
In Mr Heydt’s view the children were very confused about the current situation. Their situation concerned him greatly.
Mr Heydt interviewed the parties as well as Y and N. He observed the children with each of their parents. In addition he spoke with Mrs M C. Mrs C is the paternal grandmother of the children. Mr Heydt spoke to her through the agency of the husband who translated her comments from Greek to English.
After interviewing the wife, Mr Heydt was of the view she displayed indications of suffering from battered women syndrome with symptoms of stress disorder. Given his experience of dealing with victims of trauma, I give his observations a deal of weight. They confirm my own findings that the husband has consistently perpetrated violence upon the wife.
In Mr Heydt’s view the relationship between the parties was characterised by “a lack of communication and common purpose and on the part of the wife, by fear.”
He was also of the view that Y was particularly influenced by the behaviour of his father and used him as a role model. In this regard Y described to him the fact that his mother was responsible for the break-up of the family, the loss of the family home and business. Mr Heydt was concerned about the paternalistic view of the world as expressed by Y to him and by his lack of respect and concern for his mother. In Mr Heydt’s opinion, this was neither in Y’s best interest nor appropriate for a 13-year-old. It did not bode well for his future treatment of women.
Both Y and N expressed to him in no uncertain terms their wish to live with their father. N echoed her brother’s sentiments regarding her mother. However Mr Heydt was of the view that she was somewhat ambivalent about these views. It was his opinion that in reality N would prefer to live with her mother.
It was apparent to Mr Heydt that N was strongly influenced by her brother. He was concerned about the potential, if the current situation remained, for N to be denied access to an appropriate female role model. He was concerned that if she remained in the care of the husband that she would become a subjugated and subservient figure. He was most concerned at the removal of N from the influence of her mother, who in his view provided the most appropriate role model for N.
As a result of his observation of both children, it was Mr Heydt’s view that the socialisation of both Y and N was problematic. In his view N in particular was isolated and much in need of her mother as a role model for the period of the next 3 to 5 years in her life. He did not believe that N’s paternal grandmother was an adequate role model given her age and lack of English speaking skills.
He was also concerned about the husband’s lack of domestic skills, especially in the context as he understood things that the paternal grandparents were planning to take an extended holiday to Greece in the near future.
Mr Heydt was also concerned that Y indicated to him during the course of the interview that if a residence order were made concerning him in favour of the wife that he would not obey such an order, “even if he had to go to goal”. These words echoed words used by the husband to Mr Heydt. Mr Heydt had no doubt that the husband was the source of these sentiments on Y’s part.
In the conclusion to his report Mr Heydt wrote as follows:
“While the maintenance of the status quo (the children continuing to reside with the husband) is one option, I am concerned that this is not in the best interest of the children. Their current and apparently increasing estrangement from their mother is neither desirable nor likely to be beneficial either in the short or long term. I also have concerns about the socialisation of both children who will need to take their place in the wider society. Y’s anger is real and inappropriate.”
In short Mr Heydt recommended that both children should reside with the wife. He believed that N certainly should be placed with the wife as soon as possible. However he recognised the situation in respect of Y was more complex given his age. He was of the view that Y would benefit from counselling with his mother as to the reasons for his anger with her. He also believed that the wife required time to prepare herself for the arrival of Y in her household if the Court made such an order. If orders were made in respect of Y residing with his mother, Mr Heydt believed that there should be an opportunity for Y to have extensive and flexible contact with his father.
The relevant law
The applications of both parties concern parenting orders. They arise in proceedings conducted under Part VII of the Family Law Act. Section 60B(1) of the Act sets out the object of this part of the Family Law Act. The object is to ensure that children receive adequate and proper parenting to help them achieve their full potential, and to ensure that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying this object are set out in section 60B(2) of the Act. These principles include, except where it would be contrary to a child’s best interests:
a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
b)children have a right of contact, on a regular basis, with both their parents and with other people significant to their care, welfare and development; and
c)parents share duties and responsibilities concerning the care, welfare and development of their children; and
d)parents should agree about the future parenting of their children.
In the present case, regrettably the parties are unable to agree about the future parenting arrangements for Y and N.
The application of these objects is subject to the provisions of section 65E which regards the best interests of the child concerned as being the paramount consideration in the making of any determination concerning the care of children.
In deciding the parenting arrangements that will promote the best interests of a particular child, the Court must consider the various matters set out in section 68F of the Family Law Act. The various sub-sections contained in section 68F comprise a list of matters that must be considered to the extent that each is relevant to the particular case. Paragraph (l) permits the Court to take into account “any other fact or circumstance that the court thinks is relevant”. This ensures that the infinite variety of individual children’s circumstances can be addressed in any orders made by the Court, and in this regard I refer to B and B: Family Law Reform Act (1997) FLC 92-755.
Section 68F(2) factors — Determining the best interests of the child
(a) Any wishes expressed by the children and any factors (such as children’s maturity or level of understanding, that the Court thinks are relevant to the weight is should give to the children’s wishes.
Y is 13 years of age. He has expressed a strong wish to live with the husband. Given his age this is a significant matter. Especially when viewed in the context that he has also indicated that he will disobey any order that compels him to live with his mother.
In my view the wishes of N are more complex. I accept Mr Heydt’s opinion that in reality she would prefer to live with her mother.
Y’s wishes are not determinative of the issue of residence. They must however be given substantial weight in the overall determination of the matter. However I must also bear in mind that what is in his best interests, both in the short and long term, is my overriding consideration. Clearly Y is not in a position to assess for himself the potential detriment of maintaining his current antipathy towards his mother.
(b) The nature of the relationship of the children with each of the children’s parents and with other persons.
I am satisfied that the husband has a close and loving relationship with both children. This was the view of Mr Heydt. Although I heard no evidence from them I also believe that the children enjoy a loving and caring relationship with their paternal grandparents. It seems to me that they play a central role in the care of the children at the present time.
I have no doubt that the relationship between the children and their mother is currently fractured. In my view this is as a result of the direct intervention of the husband.
In the case of N, I am satisfied that the relationship is capable of repair. I am concerned that N is under intense pressure at the moment as a result of her split loyalties to both her mother and father. She is also strongly influenced by Y.
The relationship between Y and his mother is far more problematic. He is strongly under the influence of his father who in all likelihood will continue to influence him against his mother. In my view Y is very much at the crossroads. It would be most detrimental for him to lose the benefit of a strong and positive relationship with his mother. In my view it is crucial that at this stage steps be taken to re-establish the relationship between Y and his mother, although these attempts may ultimately fail.
In my view it would not be appropriate to split the children from one another.
(c) The likely effect of any changes in the children’s circumstances, including the likely effect on the children then in separation from:
either of his or her parents; or
any other child or other person, with whom he or she has been living.
In my view there are potentially detrimental consequences for the maintenance of the current status quo in respect of Y and N. If N is to remain in the care of the husband, it is likely that she will be socialised to become a subjugated and submissive person. If she is to remain in the care of the husband it is likely her relationship with the wife will be continually eroded.
Similarly in the case of Y, if the current status quo remains it is likely that he will lose the positive potential benefits of having a relationship with his mother. It is likely for the foreseeable future that the husband will continue to denigrate the wife to Y and this may affect Y’s view of women in future and his ability to form relationships with them.
In my view the wife is the more likely of the two parties to be able to maintain a situation where the children can have a relationship with both of their parents.
The situation in respect of the children has been fluid for some time. To a certain extent the children have become enmeshed in the conflict between their parents. However they did primarily live with the wife from the date of separation until the start of 2001. This is a significant factor to which a good deal of weight must be given. In my view it is appropriate at this stage for there to be a return to this situation.
In my view N would be able to make such a transition fairly easily. Y will need some considerable support and counselling and even with this the transition may not be successful. However in my view it is important that notwithstanding these difficulties such an attempt be made.
(d) The practical difficulty and expense of a child having contact with a parent and whether that difficulty or expense would substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
In this matter both parties have indicated that they would continue to live in the northern suburbs of Darwin for the foreseeable future. Whatever orders are made in the matter there are no practicable barriers to the children being able to have contact with the non-residence parent.
(e) The capacity of each parent, or any other person to provide for the needs of the children, including emotional and intellectual needs.
In this regard I am satisfied the wife is better placed to attend to the needs of both children. I am concerned by what appears to me to be a lack of supervision of Y by the husband. In addition it seems to me that he is over-reliant on the support of his parents to provide for the physical care of these two children. It seems to me highly likely that his parents will travel to Greece at some time in the near future.
For reasons that have already been provided, I believe that the wife is far better placed than the husband to provide for the emotional needs of the two children, particularly N. I accept Mr Heydt’s findings that N is strongly in need of a female role model.
Similarly in terms of his future development, it is important that Y has a respectful and mature relationship with his mother in order for him to develop properly as a young man. I am concerned about the clear evidence of his potential to develop into a person who believes it is appropriate to be violent and dismissive towards women.
(f) The children’s maturity, sex and background and any other characteristics of the children that the Court thinks relevant.
Both children belong to a rich Greek heritage. There is no evidence to indicate that either party will endeavour to prevent these children growing up with the realisation that they belong to such a culture.
The wife has expressed a willingness to allow the children to go on holiday to Greece in the future.
(g) The need to protect the children from physical or psychological harm caused, or may be caused by:
being subjected or exposed to abuse, ill treatment, violence or other behaviour;
being directly exposed to abuse, ill treatment, violence or other behaviour that is directed towards, or may affect, another person.
I am satisfied that the husband would not do anything knowingly or intentionally to psychologically harm either Y or N. However for the reasons that I have already provided, I am satisfied that if the children remain in his care there exists the very real potential that both will be psychologically harmed in regard to their future development. This concern is particularly relevant to Y. I am also concerned that N will grow up to become a subjugated and submissive person.
It is not in these children’s best interests to grow up in such a manner in the social circumstances of this country at the start of the 21st century. It will leave them ill-equipped to develop their full potential and for them to be able to embark on meaningful relationships in adulthood.
(h) the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents.
In my view the husband has consistently attempted to undermine the role of the wife in the lives and development of these children.
I am satisfied that he has consistently attempted to denigrate the wife to the children and alienate them from her. In this I am satisfied that he has exhibited a poor response to his responsibilities as a parent. He has attempted to cut the wife off from her vital role as the mother to N and Y. In this regard it is important that I record in my finding my view that the wife was the primary carer of these two children during the marriage, a role she continued following the parties’ separation in October of 1999 until the early months of 2001.
In my view the husband has consistently put his own emotional needs before those of his children. He has gone to great lengths to ensure that the children are alienated from their mother. As such, in my view he is an inappropriate role model for them.
(i) any family violence involving the children or a member of the child’s family
(j) any family violence order that applies to the children or a member of the children’s family.
As I have already noted, the wife has a current Domestic Violence order in her favour against the husband. In my view both the children have been adversely affected by the serious acts of violence perpetrated by the husband upon the wife, for which there can be no excuse. In reaching my conclusions as to what is in the best long-term interest of the children I have taken these matters into account.
(k) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the children.
Finality is usually preferable in children’s cases. In this case it is important that a final decision is made and that Y and N be released from the obvious stresses they are presently experiencing. I agree with the observations of Mr Heydt that the children have become engaged in the dispute between their parents and this has adversely affected them. In my view it would be their long-term best interests if both children live with the wife. However it remains a very real possibility that Y will refuse to accept such a decision notwithstanding the counselling that is offered to him. It may very well be the case therefore that because of his attitude further proceedings will be necessary. It is also highly probable that his attitude will influence that of N. Notwithstanding that likelihood, it would be in my opinion inappropriate for the Court not to make orders in respect of Y living with his mother simply because of the likelihood that they will fail. As I have found, he is a child who is at a crossroad in his life.
Conclusions
This is a difficult and troubling case. However I am satisfied that both Y’s and N’s best interests will be fostered by them living most of the time with their mother. In this way the children will be provided with an appropriate role model for their future development. I am satisfied that the wife is better placed to provide stability for these children in both the short and long term.
I am satisfied that notwithstanding the hostility between the parties and on the part of the wife her fear of the husband, that she of the two of them is better placed to be able to maintain the children’s relationship with their father.
If the Court were to make orders maintaining the current situation whereby the children continue to live with their father, I believe that in the long term there is a real possibility that the relationship between the children and their mother will be permanently and irreparably damaged and that this will have grave consequences for the future emotional well being of the children. For all those reasons the orders of the Court will be as set out in the commencement of these reasons for judgment.
I certify that the preceding one hundred and eighteen (118) paragraphs are a true copy of the reasons for judgment of Brown FM
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