Carlton and Kethel
[2013] FCCA 631
•3 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CARLTON & KETHEL | [2013] FCCA 631 |
| Catchwords: FAMILY LAW – Parenting – contravention application leading to a reconsideration of parenting orders – high conflict – long history of litigation and re-litigation – final orders made in 2008 not working – subsequent interim orders not working – children expressing view not to spend time with father – father intransigent about his proposal that children live with him – father unable to accept an outcome contrary to this position – father unable to present a proposal for the children to spend time with him – no contact. |
| Legislation: Family Law Act 1975, Part VII, ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: Carlton & Carlton [2008] FMCAfam 440 MRR v GR [2010] HCA 4 |
| Applicant: | MR CARLTON |
| Respondent: | MS KETHEL |
| File Number: | SYC 196 of 2007 |
| Judgment of: | Judge Altobelli |
| Hearing dates: | 12 and 13 July 2012 and 2 and 3 May 2013 |
| Date of Last Submission: | 3 May 2013 |
| Delivered at: | Sydney |
| Delivered on: | 3 July 2013 |
REPRESENTATION
| The Applicant in person |
| The Respondent in person |
| Solicitors for the Independent Children’s Lawyer: | Stephen W Bell & Associates |
ORDERS
The mother have sole parental responsibility for the children [X] born [in] 1999 and [Y] born [in] 2002 (“the children”).
The children live with the mother.
There be no order for the father to spend time with the children.
The father be at liberty to communicate with the children, and the mother do all things necessary to facilitate such communication:
(a)By way of letters, cards and gifts on their birthdays and at Christmas; and
(b)By letters no more than once monthly, PROVIDED THAT the father does not in the course of such communication:
(i)Discuss these orders, or the separation and subsequent proceedings between the parents, or any issue arising therefrom; and/or
(ii)Denigrate the mother.
The mother will regularly inform the father by mail, email or SMS, and keep the father informed, about all significant matters relating to the children’s education and health.
Subject to the above orders, all previous orders of this court are discharged.
Subject to the above, all other applications before this court are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Carlton & Kethel is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 196 of 2007
| MR CARLTON |
Applicant
And
| MS KETHEL |
Respondent
REASONS FOR JUDGMENT
Introduction
This case is about two children, [X], who is 14 years old, and his sister, [Y], 11 years old. On 17 January 2011, the children’s father filed a contravention application. As it turns out, however, by the time the matter came before the court for final hearing it became necessary to reconsider what type of parenting order was in the best interest of the children. Indeed, the contravention application almost faded into the background with both parents, and the Independent Children’s Lawyer, formulating and advancing proposals for different final parenting orders.
Background
The matter has a very long history. Indeed, my reasons for judgment delivered 10 June 2008, and published as [2008] FMCAfam 440 sets out the history of the matter up until that date in the first 14 paragraphs of the reasons. The litigation about these children has been running since 2007 and it is unfortunately the case that for most of these children’s lives the parents have been litigating about them.
Many of the findings I made in my earlier judgment remain relevant to the present proceedings. Indeed, the findings are in many respects similar. I gave the father several opportunities to ask me to recuse myself from further hearing his case, given the adverse findings I made against him in my first judgment. He declined the offer.
Since my first judgment, but before the initiation of the current contravention application, the matter was almost constantly before the court. Each party filed applications in a case and/or responses. The father filed several contravention applications, each of which was either dismissed, or withdrawn and dismissed. What is abundantly clear from the history of this matter up until the filing of the present application is that the parenting orders made on 10 June 2008 were not working.
After the present proceedings were commenced the parenting orders were varied at least once, but even these changes were unworkable. Since the 2008 orders, the father has rarely spent consistent time with the children. Each parent stridently blames the other for this.
The hearing commenced before me on 12 and 13 July 2012 and concluded on 2 and 3 May 2013. At the end of day 2, 13 July 2012, further interim orders were made, but even these were not successful in achieving the desired goal of providing to the children the opportunity to spend time with their father on a regular and consistent basis.
In circumstances where it was abundantly clear that all attempts to fix workable parenting arrangements had failed, where the father was at all relevant times representing himself in a forthright manner, and where the mother’s representation was not necessarily continuous, and moreover, where both parties are of a non-English speaking background and gave evidence, for the most part, through Turkish interpreters, the court adopted a pragmatic approach about procedure and thus chose to focus on substance rather than form. Thus, whilst technically the contravention application was the matter before the court, in substance the court focused on each parent’s proposals as regards parenting orders.
The Evidence
The father relied on affidavits he filed on 17 January 2011, 31 August 2011, 17 October 2011, 19 December 2011, 2 April 2012 and 5 July 2012. In the father’s case, his current wife, Ms C, filed an affidavit on 2 July 2012, and Ms D filed an affidavit 5 July 2012. Evidence was also given in the father’s case by Ms A, the mother’s neighbour, pursuant to a subpoena to attend court and to give evidence. Each of these parties was cross-examined.
In the mother’s case, she relied on her affidavits filed 5 July 2012 and, by leave, 19 March 2012. She was cross-examined.
In the Independent Children’s Lawyer’s case, evidence was received from Family Consultant Ms R, in the form of a Family Consultant Memorandum to Court of 4 May 2011, a Family Consultant Memorandum to Court - Child Inclusive Conference dated 23 May 2011, a Family Report dated 14 June 2012, and a further Family Report dated 5 April 2013. Ms R was also cross-examined.
Competing Proposals
By the time of closing submission, the father’s proposal was that the children live with him and spend fortnightly time with their mother, as well as during the school holidays. The mother’s proposal was that there be no contact at all between the children and their father. The Independent Children’s Lawyer’s proposal was that the mother have sole parental responsibility, the children live with her, but spend time with their father during school terms each alternate Saturday from 9 am to 4 pm.
It should be noted, however, that the mother’s proposal changed as the case evolved. At one stage, for example, her proposal was the same as that of the Independent Children’s Lawyer. After hearing all of the evidence, particularly the evidence of the father, her proposal changed.
History of Parenting Orders
It is important to set out the history of the parenting orders made in this case, if for no other reason to assess what appears to have worked, and what has not.
The orders I made on 10 June 2008 provided for the mother to have sole parental responsibility, for the children to live with her, but to spend time with their father for two out of three weekends each month, being the second and third weekends in a cycle of three weekends, from after school on Friday to the commencement of school on Monday, together with half the school holidays. It should be noted that, for all practical purposes, the order for the children to spend time with their father was based on the mother’s own proposal in those proceedings.
On 14 August 2008, the matter came back before me on travel issues. Orders were made enabling the mother to travel overseas to Turkey with the children, subject to them spending additional time with their father both before, and after the proposed journey.
When the matter came before me on 23 December 2008, there were issues with the children not being returned in accordance with the orders. I made an order that the children were to be returned to the mother at [L] Police Station at 5 pm on 20 January 2009, and that while the children live with their father during the school holidays, they were to communicate with their mother by telephone.
On 6 April 2010, I made orders for the father’s time with the children to be suspended, but for the children to spend time with their father each alternate Sunday commencing 11 April 2010 from 9 am to 6 pm, with changeovers to take place at the [L] Police Station.
On 13 July 2012, at the end of day 2 of the present hearing, I once again varied the orders so that the father spend time with the children every third Saturday of each month from 9 am to 4 pm, supervised by Ms D. The order provided for the father to collect and return the children from the mother’s home, but to remain in the motor vehicle, and with Ms D to approach the mother’s home to collect and return the children. Orders were specifically made about all communication between the father and the children being in English, and restraining both parents from discussing the proceedings with or in the presence of the children, or denigrating each other in the presence of the children. These orders also provided that if for some reason the father, or Ms D, was unable to spend time with the children on the third Saturday of the month, the father was to notify the mother by text message or email in order to arrange for contact to occur on the fourth Saturday of that month.
In the present reasons for judgment I do not set out the reasons for making the orders that are referred to above. Some of these reasons will become apparent from the evidence which will shortly be discussed. It is interesting to note the evolution of the orders however, eg, from unsupervised to supervised; from weekends to daytime only; from school holidays to no school holidays; from changeovers at the mother’s home, to changeovers at [L] Police Station, to changeovers facilitated by a third party; from contact commencing on Friday and ending on Monday, to contact on Sunday, to contact on Saturdays. The point of this exercise is to demonstrate that in the five year period since my first reasons in this matter, many different permutations of spends time with orders have been attempted. After hearing all of the evidence in this case the court is able to categorically find that none of these orders have resulted in the children spending consistent and meaningful time with their father. The level of conflict between the parents has not abated and, indeed, has become worse. The father has consistently adopted the view that the children should be living with him, and not their mother.
The Applicable Law
In determining parenting matters under Part VII of the Family Law Act 1975 the Court must regard the best interests of the child as the paramount consideration: s.60CA.
The objects and principles of Part VII are set out at s.60B:
60B Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or 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 to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly 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; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
At the very core of the new Part VII of the Family Law Act 1975 is the creation of a presumption of equal shared parental responsibility in s.61DA. Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
If the presumption applies, I am required to consider certain things:
65DAA Court to consider child spending equal time or substantial and significant time with each parent in certain circumstances
Equal time
(1) If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Substantial and significant time
(2) If:
(a) a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child; and
(b) the court does not make an order (or include a provision in the order) for the child to spend equal time with each of the parents; and
the court must:
(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents.
(3) will be taken to spend substantial and significant time with a parent only if:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
(4) Subsection (3) does not limit the other matters to which a court can have regard in determining whether the time a child spends with a parent would be substantial and significant.
Reasonable practicality
(5) In determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child’s parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents’ current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents’ current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
Because s.65DAA refers to the best interests of the child I must then go back to consider s.60CC which specifies how I must determine what is in a child’s best interests.
60CC How a court determines what is in a child’s best interests
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
(m) any other fact or circumstance that the court thinks is relevant.
In MRR v GR [2010] HCA 4 the High Court said:
8. Sub-section (1) of s 65DAA is headed "Equal time" and provides:
"If a parenting order provides (or is to provide) that a child's parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents." (emphasis added)
Sub-section (2) makes provision for where a parenting order provides that a child's parents are to have equal shared parental responsibility for the child (par (a)) but the Court does not make an order for the child to spend equal time with each of the parents (par (b)). In such a circumstance the Court is obliged to:
"(c) consider whether the child spending substantial and significant time with each of the parents would be in the best interests of the child; and
(d) consider whether the child spending substantial and significant time with each of the parents is reasonably practicable; and
(e) if it is, consider making an order to provide (or including a provision in the order) for the child to spend substantial and significant time with each of the parents."
Sub-section (3) explains what is meant by the phrase "substantial and significant time".
9. Each of sub-ss (1)(b) and (2)(d) of s 65DAA require the Court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the Court determine that question. Sub-section (5) provides in that respect that the Court "must have regard" to certain matters, such as how far apart the parents live from each other and their capacity to implement the arrangement in question, and "such other matters as the court considers relevant", "[i]n determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents".
A little later in the judgment the High Court said:
13. Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order.
The Evidence of the Family Consultant
The Family Consultant’s first intervention with the family on 23 May 2011 was by way of a child inclusive conference. At that time [X] was aged 12, and [Y], 9. The Family Consultant’s memorandum made it quite clear that both children indicated that they do not want to spend time with the father, and both had reported witnessing an incident outside their home in December 2010 in which their father was yelling, kicking the door, and they described him as “very angry” and “screaming”. That memorandum also makes clear that the children were happy living with their mother, and were concerned about the father saying things about the mother when they spent time with him. The significance of this memorandum is that as early as May 2011 the father was on notice of the issues recited above.
The Family Consultant’s first report is dated 14 June 2012 and was based on interviews held on 14 and 29 May 2012. Mr Carlton is reported to have described his proposal at paragraph 14 of the report:
Mr Carlton stated that he is proposing that the children live with him because their mother has, allegedly, not allowed him to see them whilst they have been living with her. He claimed that both the children and he are unhappy with the current situation and that Ms Kethel has “brainwashed” the children to say that they do not want to see him. He believes that the children will be happy to live with him and, if there is any doubt, he suggested that the children could live with him on a trial basis for six months and then decide if they want to stay, which he is confident they will do. Mr Carlton indicated that he has no proposal for spending time with the children if they remain living with their mother, as he does not believe that Ms Kethel will comply with any arrangement for him to spend time with the children whilst they are living with her.
Based on all the evidence before the court, the court finds that the father’s proposals, and the attitudes inherent in what he told the Family Consultant at paragraph 14 above, were maintained right through to the conclusion of the final hearing.
At paragraph 15 of the report, the father provided his perspective about the failure of the orders made 10 June 2008:
In his Child Dispute Conference interview, Mr Carlton stated that he had requested to decrease the children’s time with him in 2010 due to him being busy at work. In the current interview, Mr Carlton stated that he had wanted to spend time with the children Saturday to Sunday because he could not transport them to and from school on the Friday and Monday, but that the Court ordered time on Sunday only.
At the final hearing, the father’s ambivalence, if not downright reluctance, to spend time with the children commencing from Friday, and concluding on Monday, remained quite apparent. Despite his denials that this had anything to do with his work commitments, his comments at paragraph 15 above seem to suggest that he valued his work commitments at least (if not more) than his commitments to his children.
The Family Consultant reported the mother as feeling very frustrated about the father’s application. Indeed the mother reported a pattern in the father’s behaviour of spending time with the children when he wants to, then abandoning them for months at a time, then demanding to see them again. As it turns out, and with the benefit of having heard all the other evidence including events subsequent to the making of this statement, the court finds the mother’s perception of the situation to be entirely accurate. The history that the mother reported at paragraph 25 of the family report was to be repeated over the following year.
The Family Consultant interviewed the children. [X] expressed the view that he wanted to live with his mother and not spend any time with his father, though the Family Consultant noted some ambivalence regarding his father. [X] was able to describe having positive and negative views about his father. He also reported:
…numerous negative experiences with his father in the past, including his father yelling at him, hitting him, kicking the front door (the incident in December 2010), not picking them up when he is scheduled to do so, arguing with his mother, and “bashing” his mother. (paragraph 38)
The Family Consultant found [Y] to be:
…worried, irritated and saddened with respect to her relationship with her father.
She wanted to live with her mother and not spend any time with her father.
[Y] stated that she had given her father “chances” in the past, but that he “spoils it” when he “does not turn up” and “we wait”.
However, the Family Consultant noted that [Y] also showed some ambivalence regarding her father and observed that they can be happy and laugh, but that he also makes her sad, angry and scared.
[Y] feels that her father wants to see her and [X], but does not want to spend “proper” time with them, meaning time that is not for the purpose of looking favourable in court and time that does not involve him undermining her mother. [Y] said that she is disappointed that her father continues to say that she and [X] will live with him again and that he does not listen to what she and [X] want. (paragraph 40)
Thus, whilst the children are expressing views the Family Consultant noted some ambivalence in these views. The children appear to have a clear perception of their father’s failings and, as it turns out, having regard to all of the evidence, the court agrees with their perception of his findings.
The children were observed with their father, and stepmother, and the observations are recorded at paragraphs 42 to 43. At paragraph 45 the Family Consultant notes:
[X] and [Y] both said that they would feel sad if they were made to spend time with their father. They both felt that their sadness would be in response to their own experiences with their father and also the impact on their mother of their father’s involvement in their lives. They indicated that they would become quite distressed if they were made to live with their father. [X] stated that he does not want to leave his friends and [Y] agreed with this point also. Whilst both children acknowledged that they might feel a small amount of sadness in the future if they do not see their father, they were adamant that they want to live with their mother and do not want to spend time with their father. [X] indicated that he could foresee the possibility of visiting his father in the future, if his father behaves appropriately.
In terms of her evaluation, the Family Consultant observed that both at the child inclusive conference on 23 May 2011, and in the interviews held for the family report, the children’s views strongly indicated against a change in primary residence, as well as the children’s views not to spend time with their father. At paragraph 49, the Family Consultant observes:
Their views appear to be based on their experiences of their father undermining their mother, pressuring them to live with him when they are happy living with their mother, disappointing them by not consistently spending time with them and behaving in an angry and aggressive manner, which makes them scared of him. They also seem to have a general perception, perhaps based on their experience of their mother’s emotional distress, that their father’s involvement in their lives causes disruption and stress to their home life.
At paragraph 50, the Family Consultant expressed an opinion about the father’s behaviour:
Mr Carlton’s lack of compliance with the parenting arrangements, as alleged by Ms Kethel, and his repeated applications to this Court involving allegations of non-compliance against Ms Kethel can be seen as Mr Carlton attempting to exert control over Ms Kethel. Mr Carlton taking the children away on a holiday, allegedly without telling Ms Kethel of locations or timeframes, is another example of behaviour that might be viewed as dismissive and controlling. Ms Kethel consistently presents as a person who is attempting to escape feelings of being controlled.
As it turns out, and based on all the evidence, the Family Consultant’s views expressed in paragraph 50 provide one way of conceptualising the father’s conduct in this case. It is regrettable that this was not explored further in cross-examination.
In paragraph 51 of the report the Family Consultant observed:
Based on Mr Carlton’s own belief system regarding his comments to the children about living with him, it appears as though Mr Carlton is unable or unwilling to listen to the children’s views and modify his behaviour based on their perceptions of him. Mr Carlton thinks that telling the children that he wants them to live with him will reassure them of his love. He does not seem to understand that him spending time with them and not talking about who they live with would reassure them far more effectively, without undermining their relationship with their mother and without causing them extra stress and uncertainty. Mr Carlton appears to be fixed in his thinking that the children should live with him and unable to accept the type of relationship with them that has been available. He also does not recognise the impact of his behaviour on the children during the incident in 2010, which may indicate a lack of child focussed thinking.
This paragraph is significant because the litigation continued for almost a year after the report became available to the father. As it turns out, just as the Family Consultant observed that the father was unable or unwilling to listen to the children’s views and modify his behaviour, he was unable to take on board what was clearly valuable advice by the Family Consultant as set out in paragraph 51.
The Family Consultant was quite firm in expressing the opinion that there did not appear to be any evidence to support the father’s view that the mother had alienated the children from their father. Based on all the evidence before the court, that is the correct conclusion. Indeed, the mother is to be commended for her persistence in facilitating the children’s relationship with their father, in all the circumstances of this case.
At paragraphs 55 to 56 of the report, the Family Consultant explains the option of a no contact order:
As long as the children remain living with their mother, consideration will need to be given as to whether or not an order regarding the children spending time and communicating with their father is appropriate.
Whilst the option of having no orders for the children to spend time with their father may result in them having no meaningful relationship with him, which the children themselves acknowledge may cause them some sadness, there are several reasons why this option might be considered. It is the expressed wish of both children not to be forced to spend time with their father and having no orders will give them confidence that their views have been respected. No orders will mean decreased opportunity for further litigation which will decrease or eliminate the stress that the children and Ms Kethel experience when involved in such litigation. Without orders the children will also be free from the feelings of disappointment that they have experienced when their father has not spent time with them in accordance with orders. If there were to be no orders regarding the children spending time with their father, there remains a possibility that they will pursue a relationship with their father when they feel that their father is motivated by the relationship and not by achieving outcomes in Court.
There can be no doubt that almost a year before this litigation concluded, the father was well and truly on notice of the possibility of a no contact order.
Nonetheless, the Family Consultant could also see the benefit of some contact continuing. At paragraph 57 she states:
Nevertheless, there might be some benefits to there being an order for the children to spend, at least minimal, time with their father. It might give them the opportunity to re-establish a meaningful relationship with their father but this would be dependent on
Mr Carlton changing his behaviour, which, at this stage, seems unlikely. It would give the children the opportunity to establish relationships with their step-mother and step-sister, although at this stage it does not seem that the lack of these relationships is particularly detrimental to the children. A particularly important issue when considering making orders against the expressed views of a thirteen year old and a ten year old is the possible stress that the children might experience associated with having their views acted upon which effectively places them in the decision making position. Making an order for them to spend time with their father removes them from this position which, in the long term, they may appreciate.At paragraph 59, the Family Consultant suggests that there may be some value in the children spending a minimal amount of time with their father, in anticipation of the relationship potentially improving. She says:
This minimal amount of time could be scheduled for one day per month or a few days each school holiday period. For such an order to work effectively, Mr Carlton will be required to always present himself for a scheduled visit, to refrain from discussing issues with the children such as his desire for them to live with him and to engage in pleasurable activities with them. It will also require Ms Kethel to ensure that the children are presented for each scheduled visit. If the parents cannot meet these conditions then there may be no alternative but for there to be no orders regarding the children spending time with their father.
As it turns out, the orders made 13 July 2012 on an interim basis, at the conclusion of day 2 of the hearing, reflect the Family Consultant’s evaluation as set out above. As the evidence will demonstrate, however, even this did not work.
All that the Family Consultant was able to recommend in the first report was that parental responsibility for the children remain solely with the mother and that the children remain living with her. Other than as set out at paragraph 59, the Family Consultant was unable to make a recommendation about the children’s time with their father.
It is of interest to note that at paragraph 64 of her report the Family Consultant recommended that the father participate in a community based program such as Unifam’s Keeping Contact - Parenting Orders program. As it turns out, the father was cross-examined about this at the final hearing. He explained that he did not comply with the recommendation because he did not agree with it, “because I raised five children.” When asked whether it was “fair to say that you believe you don’t need any help to be a better father with [X] and [Y],” the father replied, “Yes, that would be fair.”
The second family report is dated 5 April 2013 and was based on interviews and observations held 4 March 2013. The Family Consultant noted that interim orders had been made on 13 July 2012 for the father to spend time with the children once each month since then but that the children have only spent time with their father on approximately four or five occasions. The father’s proposal remained unchanged, ie, that the children live with him and spend time with the mother but, once again, he made no proposal for the children to spend time with him if they were ordered to live with their mother. Once again, he indicated that he would appeal any such decision if it involved the children continuing to live with the mother. Indeed, this is a position that the father stated several times during the course of the hearing. The mother’s proposal also continued to be that the children live with her and spend no time with the father.
The Family Consultant observed the father to be agitated, to feel persecuted, punished and severely restricted with respect to the current parenting orders and clearly frustrated and disdainful towards the Family Consultant. When given the opportunity to describe his time with his children, what the father said is reported at paragraph 11 of the report:
When asked how was his time with the children, Mr Carlton reported that [X] had asked to stay overnight with him. Mr Carlton appeared intent on convincing this Family Consultant that [X] wants to spend time with him, in opposition to what [X] had reported to this Family Consultant at the initial family report interviews. He said that [Y] “needs a bit more time” because she has been “brainwashed” by her mother.
This needs to be contrasted with the children’s experience of their time with the father, which will be set out below.
The father again expressed his conviction to the Family Consultant that the children had been brainwashed by their mother. Indeed, the father did not believe what the Family Consultant reported in the first family report to be the views of the children not to spend time with him. He presented as the victim of the circumstances in which he and the children were in and was again described as being agitated when discussing these issues. The court observes that the description of the father as being “agitated” is certainly an apt description for the father at several points in giving his evidence, or in making submissions to the court.
The Family Consultant records at paragraph 20 the mother’s history of the contact that occurred pursuant to the orders made 13 July 2012. She says:
Ms Kethel (aged 31 years) presented as confident but frustrated with the ongoing court proceedings. According to Ms Kethel, in the eight months from July 2012 to February 2013, the children have spent time with their father on four occasions, being 18 August, 22 September, 20 October 2012 and 19 January 2013. She said she received text messages from Mr Carlton saying he could not spend time with the children because Ms D was sick in relation to the possible visits on 21 July, 15 September, 17 November, 24 November, 15 December 2012, 16 February and 23 February 2013. She said that Mr Carlton had confirmed he would spend time with the children on 28 July and 22 December 2012 but then did not arrive to collect them. Ms Kethel said that she initially told Mr Carlton that the children would not be available on 28 July 2012 but then changed her plans and advised him that the children would be available.
The mother went on to express concerns about the father speaking to the children about her and the litigation, and described her perception of the impact on the children when the father cancelled visits, or simply did not attend.
Ms D was the supervisor pursuant to the orders of 13 July 2012, and the Family Consultant’s observations of her are set out at paragraph 25:
Ms D (aged 45 years) presented as fairly neutral with respect to her views of the parents. She said she is friends with Mr Carlton but also talks with Ms Kethel. She indicated that she is particularly concerned about the impact of the parents’ dispute on the children. She perceives the parents’ dispute as a “battle”, a “power play” and a “tug-o-war” between them. Ms D said that she has tried to talk to each of the parents about these issues but that each of them criticises the other. Ms D indicated that she had tried to speak to Mr Carlton about the possibility that the children will remain living with their mother but he was adamant that the children should live with him and did not engage with her in any further conversation about that topic.
Having regard to all the evidence before the court, the court finds that Ms D’s perception of the parents’ dispute to be entirely correct. Ms D’s report of the supervised contact at paragraph 27 is useful:
Ms D reported that [Y] had been reserved with her father at first but for the majority of visits both [X] and [Y] had appeared to be getting on well with their father, Ms C and [Z]. Ms D said that, often, the children are not ready at the time she arrives to collect them from their mother and she waits for them to get ready but that there have been no problems with collecting them. Ms D said that the children had requested to stay overnight with their father on two occasions but she had told them that they could not. She said that, on the first of these occasions, she was not aware of how the topic of the children staying overnight with their father had arisen as the children were with their father in the pool and she was not in the pool. She said that, on the second occasion, both children had raised it directly with her when they were leaving their father’s home and she had told Ms Kethel when she returned the children home and Ms Kethel had said that she would have agreed for the children to stay overnight if they had called her and asked her.
The children were, of course, reinterviewed. [X] reported to the Family Consultant that he was at first “a bit angry” when told of the orders the court made in July 2012, given that he had said he did not want to spend time with his father. However, he explained to the Family Consultant that he was no longer angry or upset or stressed. He described his visits with the father in generally positive terms and was able to identify enjoyable experiences with him. Clearly, however, the father had not stopped having inappropriate discussions with him. At paragraph 30 of the report, [X] is reported as saying:
He said that his father had said that he “will win us back” and talked about them changing schools and asked them about their mother but not recently.
At paragraph 33 the Family Consultant records the following in relation to [X]’s views:
[X] said that he wants to continue living with his mother and that he does not want to live with his father. He said that he does want to spend time with his father on weekends, including overnight time, but presented with some ambivalence about this proposal. He said that he would also like to spend time with his father during school holidays and suggested that he spend half holidays with each parent but he appeared to be hesitant about this proposal.
At paragraph 34 the Family Consultant records:
[X] indicated that he thinks that his father is sad when he and [Y] do not spend time with him and that his father is also getting old. He said that he does not want his father to be sad so he wants to visit him. He said that, if he spends half of his holidays with each parent, then it will be “fair”.
[Y] presented as reserved and cautious and:
…described the visits that she has had with her father over the past eight months in ambivalent terms but more negative than positive.
She too wants to continue living with her mother and:
…that she would like to spend time with her father but expressed uncertainly and frustration about how this might occur as she thinks that her father will continue to do what she perceives him to have done repeatedly in the past, that is, to start spending time with them, then not collect them for a period.
In the Family Consultant’s evaluation, commencing from paragraph 39, the consistent views of both children that they want to live with their mother is stated. Their ambivalent feelings about a relationship with their father was also noted. At paragraph 40, however, the Family Consultant noted that [X] appeared to have shifted his position and now wants to spend some time with his father. However:
[X]’s reasoning behind his current view again appears to be an attempt by him to remove himself from the conflict between his parents, this time by placating his father. [X] also appears to be motivated by empathy toward his father but it is questionable as to whether or not this empathy is developmentally appropriate and functional. One does get the sense that [X] is willing to spend time with his father, which is sometimes enjoyable for him and which allows him to maintain the relationship that he has with his father, despite the fact that, overall, it tends to cause stress and disruption in his life. [X] seems willing to do this at this time in the hope that it was will result in the dispute between his parents about with whom he should live and the ongoing court matter being finalised.
At paragraph 41 the Family Consultant noted that [Y] also appeared to have shifted her position, but only slightly. She appears willing to spend more time with her father but is cautious regarding the amount of time that she will commit to, due to her generally negative perception of her experiences associated with it. The Family Consultant believed that [Y] was motivated firstly by a desire not to be placed in the middle of her parents’ conflict, as well as a perception that whereas her mother responds to her needs, her father does not. The Family Consultant said the second issue was one of counter-rejection. [Y] perceives that her father is not genuinely interested in her and her life and that he has not consistently been available to her throughout her life. The Family Consultant thought:
[Y]’s view that she does not want to spend much time with her father, if at all, might be viewed as self-protective because, in her past experience, when she has been told her father is going to spend time with her, he does not.
Reflecting on the impact of the orders made 13 July 2012, at paragraph 42 the Family Consultant said that it resulted in some positive improvements to the functioning of the family “but also appears to have exemplified areas of dysfunction within the family.” Whilst the orders have given the children an opportunity to spend time with their father, reconnect with him, as well as develop a closer relationship with their stepmother and stepsister, the contact nonetheless did not occur on all the scheduled visits. Sometimes this was due to the unavailability of Ms D, but even this has reinforced the children’s perception of the father as being unreliable:
…as there is a degree of doubt in their minds about whether it has been Ms D or Mr Carlton who has been unavailable.
At paragraph 44 of the report the Family Consultant states:
It appears that [X] and [Y] are both close to their mother, comfortable in her care and stable in their living and schooling arrangements. There are no reasons identified at this time that would suggest that the children should live with their father. The children do appear to have a relationship with their father. The primary problem that prevents the children from spending time with their father and maintaining a meaningful relationship with him is the conflict between their parents and each of their parents’ attitudes, particularly that of Mr Carlton. Both parents present with black-and-white thinking and appear unable to fully comprehend the complexity of the family dynamics and the impact on the children. Each parent seems to have interpreted the previous family report as having made recommendations in opposition to their proposal. Neither parent seems to appreciate the dilemma that exists.
In relation to the father, the Family Consultant said he appeared to have very little capacity to understand or accept that the children are happy living with their mother, and that she is providing appropriate care to them.
He presents with an unrelenting persistent attitude and belief system that the children should live with him. This rigidity in
Mr Carlton’s thinking causes concern about his parenting capacity. (Paragraph 45)
Based on all the evidence, there is no doubt whatsoever that this is an accurate description of the father’s attitude. He made it very clear to the court that anything less than the orders that he seeks would result in an appeal. The Family Consultant expressed concern about the father’s “little insight into the impact of his attitude and behaviour on” the children. He was incapable of considering the impact of this litigation on the children and accepted no responsibility for not implementing the previous order, instead accusing the mother of contravening the orders and brainwashing the children.
Mr Carlton believes the children should live with him and has indicated that he will do whatever it takes to achieve his goal, despite his behaviour having such a negative impact on his children and his relationship with them.
The Family Consultant described the mother’s response to the father’s “unrelenting persistence” as feeling the need to defend herself, and has formed the basis of her view that there should be no contact. The Family Consultant makes the observation that despite her belief:
It appears the Ms Kethel has complied with orders and with
Mr Carlton’s requests for him to spend time with the children. There is no indication that Ms Kethel has attempted to alienate Mr Carlton from the children.”
However:
Her own tendency towards black and white thinking has probably increased the difficulties the children have faced in maintaining a relationship with their father.”
Even the mother seemed unable to acknowledge that there might be a benefit to the children spending time with their father.
Again, the Family Consultant strongly recommended against changing where the children live on the basis that it would be unsettling for them and there was, in any event, no good reason to do so. Their mother offered continuity and stability in living and schooling arrangements.
Again, the challenge was in formulating a recommendation about the father’s time with the children, in circumstances where he himself steadfastly declined to advance a proposition. The Family Consultant correctly noted that Ms D would not be available to supervise the children on an ongoing basis in the long-term.
The Family Consultant concludes at paragraphs 51 to 53:
This Family Consultant has again found it difficult to make an absolute recommendation regarding an order for the children to spend time with their father. The dilemma regarding appropriate parenting arrangements still exists, perhaps with added complexity now that the children are expressing a view that they would like to spend time with their father. On the one hand, it would be in the children’s best interests for them to spend time with their father so that they are given the opportunity to maintain a relationship with him, their step mother and step sister. On the other hand, it would be in the children’s best interests for them to be removed from these issues of conflict about who they should live with, to be protected from the emotional stress associated with their relationship with their father, to be protected from future disappointment associated with ‘spend time with’ arrangements breaking down as they have in the past and to be given the opportunity to live with their mother being free from the stress associated with their father’s involvement in their lives – which has often consisted of applications to the Court.
If the children are to spend time with their father then the amount of time could include a day, and perhaps an overnight, once per month and short blocks of time during school holidays.
If the children are to spend time with their father and if they are to be given the opportunity to develop to their full potential and benefit from their relationships with each of their parents, it is considered that it will be necessary for Mr Carlton to change his way of thinking regarding the children and their parenting arrangements. It is again suggested that Mr Carlton seek professional assistance in order to develop a more functional attitude toward his parenting role. However, the Court cannot rely on Mr Carlton doing this as he has made it reasonably clear that he is not willing to attend upon such a service.
The Family Consultant was cross-examined twice, firstly on 12 July 2012, day 1 of the hearing and then on the last day of the hearing. The father consistently declined to cross-examine the Family Consultant even though he cross-examined the other witnesses, and even though he was warned that if he did not challenge the Family Consultant’s evidence it may well result in her evidence being accepted.
The most significant part of the Family Consultant’s evidence was that which she gave on the last day of the hearing. By then, the available options to the court were able to be examined much more clearly in light of all the evidence that had been given by the parents and their witnesses in the case. Mr Bell, the Independent Children’s Lawyer, asked the Family Consultant to summarise the impact on the children of an order that they spend no time with their father. At page 147 of the transcript the Family Consultant said:
Let’s say that they live with the mother and that there is no time with the father at all?‑‑‑I think that it would have the positive effect of removing them from the conflict and the issues about who they should live with; I think it removes them from the things that I identified in the report of their experiences with their father of the pressure that they can perceive from their father about them living with him; I think that overall it could have a positive effect on the children of removing them from that pressure and such. On the other side of that, it would also have the effect of obviously having no time with their father. That, I think, in the long term will have an effect on their relationship with their father, may have a long-term effect on their identification of their family background with their father, but I think there have been long periods of time where [X] and [Y] have not seen their father and they do not – they actually seem to still present with ambivalent feelings toward their father. So, if there was a long period of time from this point, at [X] and [Y]’s age now, where they do not spend time with their father, I would still think that there would be a possibility in the future that they would still be able to have some kind of relationship with their father, whether that’s when they’re in their later teenage years or as adults.
So, you seem to say, on the balance, weighing the pros and the cons, that in some ways that the benefits of not having any relationship with their father at this stage, it seemed to be in your answer that they predominated or that they seem to be greater?‑‑‑I think it is possible that I would err on that side for these children at this stage, yes.
The Family Consultant was asked to comment on the impact on the children of living with their father. She explained that the children would be extremely unsettled, would present with some anger, that [Y] would find it extremely distressing, and that both children would be placed in a situation with people who they do not necessarily feel close to. The Family Consultant was quite clear that this was not a proposal that she supported.
Mr Bell then asked her to summarise the potential impact on the children of remaining with their mother and spending time with their father.
Yes?‑‑‑If Mr Carlton was accepting of such orders and accepting of the children’s relationship with their mother, accepting of the children’s adequate care from the mother and accepting of the children’s views that they want to continue living with their mother, then, potentially, that would be a good arrangement for the children, to maintain that relationship with their father. If it was to continue as it has been and Mr Carlton presents to the children with the attitude that they should be living with him, then I think it continues the children’s exposure to the conflict between their parents and the pressure – the emotional pressure that they should be living with him. In saying that, the children have been dealing with this on and off over the years and I think they have some resilience to it – some resilience. They’re not – they can – you know, they seem to have managed it to some degree over the years. I don’t think it’s a good situation for them, but, if one weighs up the loss of a relationship with a parent versus having some exposure to that tension, one could decide that the tension and the conflict between the parents, the pressure that they might feel, that uncomfortableness they feel with their father because of that, it could be manageable. I don’t think it’s ideal, but it could be manageable.
The Family Consultant commented on some of the longer term potential impacts on the children of a loss of relationship with their father. She said that in their current day to day lives she did not think it would have an effect on the children because they do not see their father very often at all. She did not think that this would have a huge impact on their emotional wellbeing. In the longer term however, there was the possibility of issues of mental health problems such as depression and anxiety, acting out and risk taking behaviour, and difficulties in developing and sustaining meaningful relationships.
I asked the Family Consultant about the significance, if any, of the father’s repeated indications to the court that he would not accept an order adverse to him:
HIS HONOUR: Ms R, what, if any, is the significance of what the father has indicated?‑‑‑Of not accepting ‑ ‑ ‑
Of not accepting and being prepared to simply walk away, walk out of the children’s lives, if he doesn’t get the order he wants before me and if he doesn’t get the order he wants before the appellant courts. Is there any significance?‑‑‑The significance of that is what I identified in the report, your Honour, that the rigidity of his thinking that he – in order to meet the needs of children, you need some flexibility in your thinking, you need to be able to responsive to what’s happening. Mr Carlton presents with extremely rigid thinking, he cannot – he doesn’t seem that he can change his thinking about things, it doesn’t seem that he can focus on the children’s needs or the children’s views, but is solely focused on his belief system, on what he thinks should happen. The significance of him saying that, if he doesn’t get what he wants, he will walk out of the children’s lives, again indicates just a lack of responsiveness to children, a lack of consideration of the children’s needs and views and a lack of the capacity to maintain a relationship with his children without having the power and control over the situation that he desires.
And what, if I actually make findings to the effect of what you have just said, what orders does that point towards, if any? Out of all the difficult options in this case, there are no easy ones in this one, Ms R. All right. So, many that we – all right. But I just want you to assume that I make findings of fact, verbatim, of what you’ve just said, does that point the court towards a particular outcome rather than another, in your opinion?‑‑‑No time for the children with their father.
As it turns out, and having regard to all the evidence, the court makes findings of fact consistent with the matters identified by the Family Consultant above.
This is an exceptionally difficult case. Even an experienced Family Consultant found it very difficult to formulate a proposal for the children to spend time with their father. The options were carefully considered and placed before the court. The court otherwise accepts the Family Consultant’s evidence. Nothing was put to her in cross-examination that would, in any way, detract from what she said. Likewise, there is no other evidence before the court that would, in any way, detract from her evidence.
The Father’s Evidence
The father is an intelligent and articulate man, even though English is not his first language. Throughout most of the proceedings he was able to communicate with the court personally and without the assistance of an interpreter, but all sworn evidence was given with the assistance of an interpreter. He represented himself at all relevant times. The affidavits he filed are minimalist and thus the focus on the father’s evidence was that which he gave in cross-examination. The father is an educated man. Whilst he [occupation omitted] here in Australia, he was a [occupation omitted] in Turkey. He also presented as a very persistent and determined man. The black and white thinking to which the Family Consultant made reference in her reports was plainly evident in the father’s presentation and evidence before the court. That which the Family Consultant described as the father’s “unrelenting persistence to have the children live with him” was also plainly apparent to the court. Whilst he was at all times respectful and polite to the court, the same could not be said in terms of his attitude towards both the Family Consultant and the Independent Children’s Lawyer, both of whom he had little time, and respect for. The father’s loathing for the mother permeated all of his evidence. The Family Consultant described the father as being agitated at times, and this was also clearly apparent during his evidence at several points. Whilst the father was observed to generally speak in a loud voice, when he became agitated he raised his voice even further, and spoke very quickly, even to the point where the interpreters assisting him needed to ask him to slow down. As it turns out, and for reasons that will be described below, the court has grave reservations about aspects of the father’s evidence, namely about certain critical events that demonstrate the complex issues at play in this case.
A number of quotes from the transcript of the father’s evidence provides insight into his character insofar as it relates to the issues before the court. For example, on 13 July 2012 the father was cross-examined about the Family Consultant’s evidence that [Y] had said to her that she was scared of her father, as a result of an incident at the children’s home on 20 December 2010 (which will be discussed below). The father said:
I just disregard that comment of my child because I believe my wife is brainwashing my children and because the mother said - told them to say this way, that’s why they are saying that.
Now, in a case where, because of the children’s ages, their views would have some relevance, the father was plainly dismissive of those views and convinced that any such views were the product of brainwashing. He disregarded, indeed was quite contemptuous about the Family Consultant’s professional opinion that the children’s views were genuine, and that they had not been brainwashed by their mother. Oddly enough, at other times the father asserted that the children wanted to spend time with him, thus recognising the relevance and importance of the views they expressed. Moreover, and as the evidence of what occurred on 20 December 2010 will demonstrate, he was singularly incapable of understanding how his actions might cause his children to be afraid of him.
On 13 July 2012, the father was also cross-examined about the legitimacy of the mother being afraid of him, and this being demonstrated by the need to have changeover occur at a police station for a period. His response to the assertion that the mother’s fear of him was:
…impossible. It is impossible because after 2000, I look after for the children four years. After - has been finish everything - cleared everything - you understand. After 2000, children stay with me four years full-time with the court decision and that is no problem; I was perfect father - perfect. Not normal father. Is a perfect father; you understand?
He was then asked about the existing AVO against him and reminded, indeed, that he had consented to its extension. Again when asked to comment about the mother’s fear of him, and the AVO, he said:
It’s not necessary because she’s only trying to prove and creating a scenario that I am a violent father. She repeatedly did that against me with lies and she took AVO - she tried to take AVO against me…she’s not scared of me. She is lying.
It was put to the father that the mother:
…has reported being scared of you over a long period of time, hasn’t she?
His response was:
It’s lie - all of them.
The findings that I made against the father on the issue of family violence in my reasons for judgment delivered on 10 June 2008 are extensive, and clear. The findings are summarised at paragraph 60 of those reasons where I said:
I am therefore in a position to make very clear findings against the father in relation to the three incidents referred to at the introduction to this section, namely the two assaults and convictions in respect of which he made admissions, and the event on 10 January 2007. That last event has a particular significance because of its proximity to the hearing of this matter - it took place whilst these proceedings were actually on foot and at a time when the children were already living with the father. This case is clearly not limited to past events of family violence, but to a comparatively recent one which enables me to make certain findings against the husband in terms of past conduct and future risk. Even if my findings were limited to past conduct, the fact is that family violence casts a very long shadow over subsequent events. Thus, for example, I cannot ignore the father’s total lack of remorse, and singular lack of insight about the unacceptability of his conduct and its impact on his family.
It is significant that findings made five years ago continue to resonate today. The family violence that the father perpetrated in the past certainly continues to cast “a very long shadow over subsequent events”. Just like in the first hearing, the father continues to lack remorse and insight about his own actions, and its impact on his family.
On 2 May 2013 the father was cross-examined about the potential impact of this litigation on the children. Page 68 of the transcript on this date records:
MR WALLACE: Have you thought about how all this coming to court is affecting your children?
MR CARLTON (via interpreter): Certainly it will affect the children in a negative way, but it’s not my fault. I am not causing the problems.
MR WALLACE: You are making the applications.
MR CARLTON (via interpreter): Because it’s – my legal rights were trespassed; that’s why.
MR WALLACE: That’s exactly why, isn’t it? It’s all to do with your legal rights.
MR CARLTON (via interpreter): But my legal rights are good for – in favour of my children.
The father’s preoccupation with his legal rights and entitlements is plainly obvious as is his inability to identify, let alone understand, how the needs of his children might be different.
Another interesting insight into the father’s character insofar as it pertains to these proceedings was the plan he formulated to take the children for an overseas holiday in Turkey with him towards the end of 2011. He explained in cross-examination that he wanted to go overseas with his new wife, but to take the children with him as well so that they could meet the paternal grandparents. He expressed his disappointment because he had purchased the tickets, but the mother did not give permission to the children to go and did not give any reasons for that. The exchange in cross-examination is recorded at page 67 of the transcript for 2 May 2013:
MR WALLACE: And you bought the tickets without consulting either the mother or the children.
MR CARLTON (via interpreter): I asked my current wife.
MR WALLACE: Did you think about how it would affect the children that you arranged an overseas holiday without talking to them about it?
MR CARLTON (via interpreter): No holiday is a bad holiday.
MR WALLACE: So the answer is, no, you didn’t think about how it would affect your children; is that right?
MR CARLTON (via interpreter): I thought about it and I thought it would be good for them.
The evidence creates the impression that the father plainly did not consider it necessary to consult the children’s mother about a proposal that would take them away from her, to a foreign land, in the circumstances of the conflict between them. Indeed, the father’s answers in cross-examination suggest that he prioritised getting his current wife’s consent to bring the children over obtaining the mother’s consent to travel with the children.
The father’s comment in the above passage that “no holiday is a bad holiday” is an interesting lens through which to understand a later incident. In January 2012, Ms D went to the mother’s home on behalf of the father and asked whether the children could spend time with him. The mother says that she asked the children and they agreed. This is consistent with the evidence of Ms D. The mother’s evidence is that she was told by Ms D that they would only spend two or three days with their father, and her perception of the children was that they agreed to go on that basis. Whilst Ms D’s evidence is not entirely clear, it is not necessarily inconsistent with the mother’s version of events. Indeed, Ms D’s affidavit of 3 July 2012 seems to confirm that the father told her about the holiday that he had booked for the children after the children were delivered to him. The mother says that the children were collected on or about 1 January 2012 but not returned until 29 January 2012. The mother’s case is that she did not consent to the children being taken for this period. The father’s case ignores this inconvenient truth, but focuses on the good time the children had with him. This is consistent with his stated ethos that “no holiday is a bad holiday.” Interestingly, the father’s arbitrary actions in taking the children on holiday without consulting their mother is not matched by any arbitrary action by the mother. She would have been well-entitled to bring recovery proceedings. Her evidence is that she was clearly concerned about the children in this period and was greatly frustrated by being unable to communicate with them. Nonetheless, she waited until they returned.
The events of 19 and 20 December 2010 took on particular significance in the evidence. One of the issues in this case is whether the father actually took advantage of the orders that were made for him to spend time with the children and the consequential impact on the children if he did not turn up on the dates allocated. There is a clear divergence in the evidence of the parents as to whether, and if so to what extent, the father had been regularly spending time with the children prior to the weekend of 19 December. It was the mother’s case that the father had exercised his contact rights rarely, but it was the father’s case that he had, indeed, exercised those rights frequently. The order in question provided for contact each alternate weekend with changeover at the [L] Police Station. The father’s evidence is that he last saw the children on 5 December, thus meaning that the next contact was the 19th. The father’s case, therefore, is that the 19th was a contact day but, curiously, the contravention application he filed does not include the 19th as a date when he was supposed to have spent time with the children. The father was quite clear that, in his mind, he was due to see the children on the 19th but that they were not available. He says he went back the following week, ie, the 26th just in case the mother had made a mistake and the children were, in fact, made available. It is again curious that in the family report the children would say to the Family Consultant that they were disappointed that they were not seeing their father during this period of months. It is indeed odd that the mother’s evidence was that the father was not seeing the children during this period, because he did not turn up to collect them. Only the father was insisting that he was consistently seeing his children and that is why, after they were not made available at the police station on the 19th, he drove around to the mother’s home.
Evidence about what then took place comes from a number of sources. The father’s evidence is that he did drive around, got out of his car, and was yelling out to the mother and the children, but not using bad language. He categorically denied that he was kicking the door to the mother’s home or that he was angry. He says that he spoke to the mother’s neighbour - indeed he said in cross-examination:
I think she was waiting for me. She knew that I was going to go there.
This is a rather extraordinary statement. He later agreed in cross-examination that he was upset, but not angry and that was because he could not see his children.
There is a police report of the incident. The relevant part of the COPS entry states:
On 19 December 2010, the victim was out with her children. She was out around 9.30 am and while she was out she received a phone call from her neighbour who stated that the defendant was kicking the door and yelling out to the victim. At this time no person was home. The victim became fearful and did not return home for an hour until she knew the defendant had left…on the following day, the victim was at home when she heard a bang on the door. This was around 2 pm and she walked to the front door to see what it was. When she got to the door, she noticed the defendant standing at the door. At this point the main front door was opened, however the front flyscreen door was closed and locked. The victim quickly closed the main door on the defendant, and he reacted by kicking the bottom of the door and knocking on the door loudly at the same time. This made a series of loud bangs which made the victim concerned. After a few seconds the defendant stopped and got inside his car and started to beep the horn. He continued this for a few more seconds before again walking up to the front door and hitting and kicking it. Again this only lasted for a few seconds before returning to the car and beeping the horn. During this time, the defendant was yelling out to the victim saying, “I want to talk, you fucking slut,” in the Turkish language. The victim contacted 000 due to her fears.
The father categorically rejected the version of events depicted in the COPS entry, above. Indeed, page 88 of the transcript for 13 July 2012 describes the father as quite dismissive. Counsel put to him:
You were sort of giggling from the witness box there. That’s not a funny matter, is it, if the court finds that you were at the premises and you had been yelling and kicking, that’s quite serious. You appreciate that, don’t you?
The father replied:
I did not laughing for the comic. This is the real…but I did not do that. It’s a lie. If something lie, of course I’m laughing.
The mother’s evidence about the event was consistent with the COPS entry.
The neighbour, Ms M, gave evidence pursuant to a subpoena issued to her by the father. At page 16 of the transcript of 2 May 2013, she said:
I was upstairs at my house. I heard someone talking, you know, in another language which wasn’t in my language. He was screaming and I heard noise. That noise I heard, I did not witness myself whether he kicked the door or not but when I asked the lady, she told me, his wife or former wife, she told me he kicked the door. The noise was coming from there. He also tried to put his car, you know, and horn, you know the horn, that noise of the scene of the car, he made his car to make the noise, you know the horn of the car.
Ms M agreed that she saw the father there that day. Her evidence was that:
My children were very scared because of the - how you were beeping your car…we closed the windows because of the car beeping.
The mother took out an AVO against the father as a result of the events on the 19th and 20th. The AVO was then extended, by consent, in January 2013. The Family Consultant’s evidence included reference to [Y] telling her how scared she was during this event. As previously stated, the father was quite dismissive of the assertion that [Y] was scared.
The court accepts that there is some uncertainty about the precise sequence of events and whether they took place on the 19th or the 20th of December or both. It is clear from the evidence that the father went to the home on both days. It is clear from the evidence that he sounded his car horn on both days. The court accepts that the father did bang on the door, and kicked on the mother’s door, certainly on the 19th, but possibly also on the 20th. The court finds that the father did yell out to the mother and the children, in a loud voice, intentionally, and the father said amongst other things that he loved the children. The court finds that this was an event, or events, that caused fear for the mother, and the children, and indeed the evidence suggests that the neighbour and her children were likewise put in fear. The court does not accept the father’s denials about kicking and banging on the door. Moreover, the court is far from satisfied that the 19th was a contact weekend. Indeed, having regard to all the evidence, on the balance of probabilities, even if it was technically a nominated contact weekend, the father had not attended contact pursuant to the interim orders for an extended period of time and the mother was well-entitled to have, in effect, given up on taking the children to the [L] Police Station in the circumstances as they existed at the time.
What is of most concern, however, is the father’s attitude and character insofar as they relate to the matters before the court. He plainly trivialised this event and failed to see the inappropriateness of his actions and how those actions might cause fear to the mother, and the children, let alone to innocent third parties. In a context where he had not seen the children for so long, through no fault of the mother’s, it was grossly irresponsible for him to have attended the mother’s home, and carried on as he did.
The next major issue in this case is whether, and if so to what extent, the father took advantage of the interim orders made 13 July 2012, and actually spend time with the children. The father’s evidence about this is contained in exhibit A2, a document he prepared which sets out the dates on which he spent time with the children in accordance with the orders, and the reason why it did not happen on the other days. His evidence is that contact took place satisfactorily on 18 August, 20 October and 22 December 2012, and 19 January and 16 March 2012. He says that the mother would not allow contact in July 2012, that he was unavailable in September 2012 as a result of the hospitalisation of his current wife, was unavailable in November 2012 due to the unavailability of Ms D, the supervisor, and was further unavailable in February and April 2013 due to the unavailability of Ms D.
There are differences in the mother’s evidence. For example, her case is that the father actually did not spend time with the children on the dates that he asserts.
In relation to the April 2010 orders for changeover at [L] Police Station the mother agreed that she eventually simply stopped taking the children there, and indeed, did not bring them on 19 December, but that was because the father had not attended to collect the children on many visits beforehand.
At one point the father said to the mother words to the effect that he really wanted to see the children every day, so would she allow this? The mother explained that what he proposed did not make sense - he could not comply for an order for contact once a month, so how could he comply with an order for daily contact?
The father quite skilfully put to the mother his version of the contact visits alleged to have happened between July 2012 and March of 2013. The mother maintained the evidence that she had previously given, and which is discussed in other parts of these reasons.
It would be fair to say that at certain times during the father’s cross-examination of her, the mother was unresponsive. At no time during her evidence did I form the impression that she was being untruthful. Indeed, her insight into the problems that the children confront and, indeed that the court faces, was a deep one. That is perhaps unsurprising given her lived experience in this long-running litigation. At no time did I form the impression that the mother was seeking to influence the children in any way as regards their attitudes and relationship with their father, and their views about him. Indeed, she persisted with complying with orders in the face of the father’s non-compliance. She seems to have allowed them to spend time with their father over and above the existing orders only to have had her trust in him abused by the father keeping them for an extended period. The mother was an impressive witness whose evidence the court accepts.
The Evidence of Ms D
The remaining witness of significance in this case in Ms D. She has had a long association with the family and appears to have assisted the father in caring for the children during the period when he was their sole carer. She seems to have a measure of confidence in the mother, and likewise the mother seems confident in her. She was the supervisor appointed under the June 2011 orders. Most of her evidence seemed to focus on the circumstances by which the children came to spend additional time with their father in January 2012. In cross-examination she confirmed that the father asked her to see if she could, in effect, arrange for [Y] and [X] to spend some time with him. She went round to the mother’s home. She says she asked the mother if the children could spend some time with their father to which the mother said, “Yes, sure. No problem. That’s okay - for how long?” Ms D responded, “Maybe two days - three days - maybe a week. I don’t know.” Up until this point the evidence of the mother and Ms D appears to be broadly consistent. Indeed, if Ms D’s evidence is accepted it could not reasonably have been contemplated that the children would be away from their mother for more than a week.
However, the evidence of the mother and Ms D diverges because Ms D alleges that the mother:
…said that he could take the children for as long as he wanted for the school holidays.
Ms D explained that the mother sought the children’s views, in an appropriate manner, and did nothing to obstruct them in going with her. They packed a few belongings and then Ms D took the children round to the father’s home.
She also gave evidence that at the end of the holiday, she facilitated the return of the children to their mother. Her impression was that the children appear to have had a good time.
Regrettably, neither the mother, nor Ms D, were cross-examined on the differences in their evidence, ie, about whether the mother knew that the children could be away for the whole school holidays. In the circumstances of this case, I am not prepared to draw any adverse or other inferences as a result of this evidence not being challenged. Even if it had been challenged, the court may well be left with the situation that it finds itself in - a divergence in the evidence. The court is inclined to accept that it would be highly unlikely, on all the evidence before the court, and having regard to the mother’s lived experience up until January 2012, that she would as a “spur of the moment” decision agree that the children could spend a month with their father. That is inherently unlikely on all the evidence before the court. It is, therefore, more likely than not that the mother expected the children to be returned within a few days, or certainly no later than a week, and did not give consent to the father retaining the children for almost a month, let alone taking them away on a holiday.
Ms D has played an almost heroic role in facilitating the children’s time with their father. She was able to bridge the communication and trust chasm that existed, and continues to exist, between the parents. She also played the important role of supervising, as an attempt to minimise the court’s concern that the father was involving the children in inappropriate conversations. This does not appear to have succeeded.
Meaningful Relationship
This is a difficult case. On the mother’s proposal the children would not spend time with their father, but I did not understand her proposal to exclude the possibility of communication, should the father be so interested. On the mother’s proposal, therefore, it could not be said that the children would have a meaningful relationship with their father.
The father’s proposal is that the children live with him, and spend time and communicate with their mother. The court is deeply sceptical about the father’s ability to facilitate the children’s relationship with their mother. In short, he loathes her. He does not value anything that she says, or does. His past violent treatment of the mother is testament to this. His indifference about her feelings, and in particular his minimisation of her ongoing fears of him, provides continuing evidence of this. The court is not at all satisfied that the children would have a meaningful relationship with their mother, if the father’s proposal were accepted.
The court accepts, however, that on the Independent Children’s Lawyer’s proposal in which the children live with their mother and spend time with their father, they would have the opportunity to have a meaningful relationship with both. There are disadvantages to the Independent Children’s Lawyer’s proposal that will be discussed below.
Protecting The Children From Harm
In my 2008 reasons for judgment I made findings about these children having been exposed to their father’s violence perpetrated against the mother. The physical violence has ceased. The shadow that family violence casts continues to affect this family. The mother continues to be in fear of the father. There is evidence, which the court accepts, that the children are in fear of their father’s occasional angry outbursts. Whilst the greatest thing that these children need to be protected from is the ongoing conflict between their parents, and the adverse impact on them of their father’s relentless quest for the court to order them to live with him, the issue of protecting the children from harm as defined in the primary considerations in section 60CC is still real. The children cannot be so protected if they were to live in their father’s care. For one thing, and as previously articulated, he cannot help but expose them to his active or passive loathing of the mother. The proposal that best protects the children is the mother’s because they would spend no time with the father, but the Independent Children’s Lawyer’s proposal also addresses this concern.
The children’s views
The children’s views appear to have changed during the course of this litigation. Their initial view of no contact has moderated and in particular [X] seems open to spending time with his father, albeit perhaps for the wrong reasons. [Y] would probably go along with this. The concern that the court has about placing too much weight on the children’s views in favour of spending time with their father is the risk that it is wrongly motivated. Both these children have spent most of their lives living in the crossfire of the parents’ conflict. There is a real risk, acknowledged and identified by the Family Consultant, that the articulated desire to spend time with the father is more about appeasement and protecting the mother than it is about what they genuinely desire.
In any event, the children’s views are quite clear about where they want to live. They want to live with their mother, not with their father.
Thus, in order to give a voice to the children the proposal that best reflects their view is for them to live with their mother and, possibly, spend time with their father.
This discussion about children’s views is somewhat academic, however. The father repeatedly stated in evidence that he will not accept any order that does not place the children in his care. He simply said he would appeal any order that does not achieve that. At no stage did he propose an alternative set of contact orders in his favour, should his proposal not be accepted. The only thing that can be inferred from this is that the father trenchantly rejects the children’s views, or is prepared to totally ignore them. Given the ages and developmental stages of [X] and [Y], to ignore their views about such a fundamental matter as where they live would be quite destabilising.
If there were any reasonable basis on the evidence for believing that the father could accept any decision of the court that left the children with their mother, but gave him the opportunity to spend time and communicate with his children, and if there was any reasonable basis for believing on the evidence that there could be a measure of peace between the parents and that he would abide with contact orders, it would be much easier to place significant weight on the children’s views that they want to spend time with their father, albeit live with their mother. If the cost of upholding the children’s views is condemning them in future years to the same level of conflict and litigation as has existed since 2007, then it cannot possibly be in their interests to uphold their views about contact with their father.
Nature of children’s relationships
There is no question that the children have an excellent relationship with their mother.
The children appear to have a warm and emerging relationship with their stepsister, [Z], and stepmother, Ms C.
It could not be said that the children’s relationship with their father is a good one. The history of contact between the father and children has been sporadic, inconsistent, and conflictual. There are clearly some positive memories, as well as many negative memories. In observation by the Family Consultant, the children were observed to be physically reserved with their father. Some of their interactions with him were described as being ambivalent. Even their desire to spend time with him might be described as ambivalent. There is an element of fear in the children’s relationship with their father, something which he seems incapable of accepting or understanding.
Having regard to this, the father’s proposal is plainly untenable, the Independent Children’s Lawyer’s proposal is optimal but idealistic, and the mother’s proposal is at least reasonable. On the Independent Children’s Lawyer’s proposal, the father has the opportunity to build on what seems to be a tenuous relationship with a view to making it grow. The biggest obstacle to this is the father himself and his relentless pursuit of the orders he seeks. On the mother’s proposal what relationship currently exists between the father and the children would inevitably be lost. In return, however, they would have peaceful, stable lives in an environment and community that clearly they find comfortable and in which they are happy. In her evidence the Family Consultant could see little to no loss to the children in the short-term of losing their relationship with the father. In the longer term the Family Consultant acknowledged it could be more problematic. There is, of course, nothing to stop the children resuming a relationship with their father once they become autonomous enough to do so.
The Willingness and Ability of the Parents to Facilitate and Encourage Relationships
Despite everything that the father has put the mother through, over many years, she has valiantly persisted in encouraging the children’s relationship with their father. The father’s allegation that the mother is brainwashing the children is groundless. That the mother persisted in complying with orders for the children to spend time with their father in circumstances where he was so unreliable and inconsistent, is testament to her commitment to this relationship. That she advances a proposal for no contact does not detract from this finding. Her perception, mirrored by the facts, is that both she and the court have tried, but consistently failed, to create a set of orders that the father is able to comply with so as to sustain and consolidate his relationship with the children.
As previously discussed, the court has no confidence that the father would facilitate and encourage the children’s relationship with their mother, should he live with them. The father simply cannot help himself when it comes to denigrating the mother, or discussing these proceedings with or in the presence of the children. He seems incapable of understanding the potential adverse impacts on the children. He loathes the mother. He values nothing that she does. That his feelings towards the mother subsist so long after the end of their relationship is truly disconcerting.
Having regard to this consideration, the father’s proposal is out of the question. I am satisfied that the mother would support the Independent Children’s Lawyer’s proposal, should the court find it to be in the best interests of the children. Moreover the court finds that the mother’s proposal for no contact is not inconsistent with a desire for her to facilitate the children’s relationship with their father.
The Likely Effect of Change in the Children’s Circumstances
The father’s proposal for a reversal of the existing care arrangements for the children presents drastic change in children’s lives. Quite apart from the fact that this is not what the children want, the reality of life in the father’s household would be that they would be primarily cared for by his current wife, Ms C. Whilst the father explained several times during this litigation that his work was flexible so that he would be available to care for the children, the flexibility never seemed to extend to making changeovers on Friday and Mondays work. Indeed, for the first time in the case, and in its dying moments, he mentioned that he works on Saturdays when he is not due to see the children, whereas he consistently maintained that he only worked Mondays to Fridays before. Thus, the father’s proposal involves massive dislocation in a physical and psychological sense and the children would be placed in the care of a substitute mother with whom it could be said, at best, that they have an emerging relationship.
On the mother’s proposal, of course, there is also change. The children would not be seeing their father. Is this adverse change, or beneficial change? The Family Consultant explained that it could be both. No contact hopefully puts an end to the litigation, thus taking pressure off the mother and children. But no contact also means the absence of a father figure in the children’s lives, something that may well adversely affect them in their later years.
The Independent Children’s Lawyer’s proposal is the one that would bring about least change in the children’s lives, but is that a good thing? The mother’s evidence about the impact on the children of what would seem to be the father’s lack of commitment to the contact order suggests that ending contact might, in fact, be beneficial change for them. They would no longer be in the crossfire of their parents’ conflict. They would no longer be in the no-man’s land of this litigation. They would be freed from having to listen to their father discuss the proceedings, and denigrate their mother. Yes, they would miss out on a relationship with him, but a relationship that brings such negative baggage with it that its absence would be beneficial, rather than detrimental for them.
Issues of Practical Difficulty and Expense
One of the most difficult aspects of the parental relationship is the potential for conflict at changeovers. The mother’s proposal does not involve changeovers. The father’s proposal did not articulate what he had in mind in this regard. The Independent Children’s Lawyer’s proposal provides for changeover:
…from the mother’s residence or another place nominated by the mother.
The evidence about the incident on 19 and 20 December 2010 should clearly demonstrate why changeovers should not happen anywhere near the mother’s residence. The parents are not capable of civil communication. In this regard, the father is clearly the angry one and, despite his protestations to the contrary, the one who is unable to manage his anger.
In other circumstances the most sensible changeover would be to and from school. This not only separates the parents, but provides the father with a point of contact with the school, as well as sending the message to the children that the father is interested in their education in a tangible, and not just theoretical sense. I was surprised indeed by the father’s lukewarm response when I invited him to comment on a proposal that he collect the children from school on Friday and return them the following Monday. The father quite correctly reminded me that that is the order that I made on 10 June 2008. I reminded the father that if my recollection served me that order was not put into practice because he could neither pick up the children on Friday nor return them on Monday. He did not cavil with this statement. His lack of enthusiasm for this proposal can be seen from the transcript of 2 May 2013 from pages 45 to 48. In my opinion, he was putting up all sorts of work-related excuses as to why this would not work. For example, he said that in order to get the children to school by 9 o’clock on Monday, he would have to get them up at 5 o’clock in the morning. That is plainly implausible, and unnecessary. He explained that in order to pick up the children on Friday he would probably have to stop work at 12 noon saying:
Because I am a [occupation omitted].
Again, the court finds this response plainly implausible. He was then concerned about a 3 pm pickup from the school saying:
I cannot say exactly 3 o’clock. If there is a time, like, half an hour flexibility, then I would be able to do that.
That does not make sense, nor is it consistent with his earlier evidence. Counsel for the mother picked up this theme in cross-examination and put it to him, fairly and squarely, that the idea could work. His response was:
In theory, it’s possible, but when it needs to be in practice, it’s not that straightforward.
Counsel then put it to the father:
Because it suits you to make all arrangements difficult. That’s correct, isn’t it?
The father answered:
Of course not.
The court finds there is substance in counsel’s contention that, somehow, in some strange way, it actually suits the father to make these arrangements difficult. The father’s explanation for not being able to abide with a Friday and Monday changeover is unconvincing. It was a problem for the father in 2008, and it continues to be a problem for the father in 2013. Even if the alternating weekend contact proposal were, somehow, found to be in the best interest of the children, the fact is the father could not commit to it, probably because he prioritises his work. In reality there are no issues of practical difficulty and expense. The obstacle to these children’s right to maintain relationships and contact with their father is their father’s attitude.
Parental Capacity
There seems no issue that both parents could adequately provide the children’s physical needs. The real issue in this case is providing their emotional needs. In the difficult circumstances of her lived experience with the father, the mother has done an exceptional job in meeting the emotional needs of the children. They clearly have a closer relationship. The mother’s capacity is tried and tested and she has not been found wanting.
The father’s capacity to provide for his children’s emotional needs is, at the very least, unknown but on the evidence before the court there are serious concerns about his level of understanding of the children’s needs, and the level of his own insight into the problems he himself has created. The incident outside the mother’s home on 19 and 20 December 2010 provides no reassurance to the court that the father understands the children’s needs not to be exposed to such a loud, public expression of the father’s anger and frustration which, the court finds, was derived from his own actions rather than those of the mother. His trenchant denial that the children might actually be afraid of him following such an event does not augur well in terms of his emotional attunement with the children. His failure to advise the mother, and therefore the children, that he would not be coming on two scheduled contact visits demonstrates a real gap in his understanding of their emotional needs. His persistent discussing with the children matters quite inappropriate to them is yet another cause for concern. It is true that the father had the care for these children, when they were much younger, for several years. That proves nothing in terms of his current capacity to meet their needs. Perhaps the most striking feature of the father’s case, and which most clearly manifests his inability to meet their emotional needs, is this crusade he has embarked on to seek an order that the children live with him, at all costs, including any emotional cost on the children.
In short, the father lacks the capacity to provide for the children’s emotional needs, and thus his proposal is not in the children’s best interests.
Maturity, Lifestyle, Background of the Children and Parents
Both parents are Turkish and all the evidence indicates that the children have been exposed to Turkish language and culture. There is no reason to believe that either parent will hinder these children growing up with an appropriate understanding of their cultural background.
Parental Attitudes
The father’s evidence is that he considers himself to be a perfect parent, and certainly not in need of any parental education in the form of a parenting orders program. He has a problem with authority figures, even those assigned to assist him indirectly in his case, such as the Independent Children’s Lawyer and the Family Consultant. It would appear that what the Family Consultant described as the father’s “black and white thinking” closes his mind to any idea, proposal, or alternative that does not fit within the father’s narrow framework of thinking and view of the world. He not only minimises the emotional impact on the children of some of the matters to which he has contributed (the litigation, the events in December 2010, not turning up at contact in 2012) but denies that he would cause anything such as fear in his children, despite their reports of this both to their mother, and to the Family Consultant. The level of lack of insight in the father could only be described as massive. It was put to him in cross-examination that he was preoccupied with his rights, and whilst denying the same, the evidence suggests that he certainly prioritises his rights over the needs and interests of his children. His lack of commitment and adherence to the various forms of orders that have been made for him to spend time with the children reflects a gross irresponsibility as a father. At the heart of his resistance is the fiercely held belief that the only place for the children is living with him. Having regard to this consideration alone, it would not be possible to accede to the father’s request. Because of the nature, and extent, of the father’s deficits in terms of parental attitudes and responsibility, the mother’s proposal increasingly becomes the pragmatic way to deal with the complex constellation of factors thrown up in this case.
The mother is not perfect. The Family Consultant identified in her some of the black and white thinking that she identified with the father. There is a difference of course. She survived the violence that he perpetrated. She lives in the shadow of that violence and for the last few years has had to deal with frequent contact with her abuser when the children have sporadically spent time with him, and in the context of the ongoing proceedings.
Family Violence
This litigation is being determined by reference to an old and therefore narrow definition of family violence. It is possible that some, but not many, of the incidents since my judgment of 10 June 2008 would fall within the definition of family violence, prior to the current amendments. There is an AVO in place and, despite what the father says, he indeed consented to its extension, and the reason it was granted was his appalling conduct outside the mother’s home in December 2010. The father trivialises the fear that the mother and children experience. As has previously been stated, the serious family violence perpetrated by the father in years gone by, and dealt with in my first judgement, continue to throw a shadow over subsequent events. There is a real sense in which the mother is re-victimised every time he brings her back to court. Amongst many other things, the father is hardly an ideal role model for the children in terms of his conduct towards and attitudes about their mother.
Having regard to this consideration alone, the father’s proposal to the court is out of the question, the Independent Children’s Lawyer’s proposal is an alternative, and the mother’s proposal of no contact becomes increasingly feasible.
The making of an order least likely to lead to the institution of further proceedings.
On the father’s evidence, unless the court accedes to his proposal that the children live with him, he will continue this litigation. He has indicated that he will appeal any decision unsatisfactory to him. This could, of course, be all talk and no action. Regrettably, the history of these proceedings as outlined earlier in these reasons indicates that, if nothing else, the father will bring contravention proceedings seeking to enforce his perceived rights. History has a tendency to repeat itself. The fact is that it was not very long after my reasons for judgment published 10 June 2008 that the litigation recommenced in one form or another.
The reasons which should be apparent from what is set out above, the father’s proposal is plainly not in the children’s best interests. This means he will not accept any decision the court makes. And this means that further litigation is inevitable. The same conclusion follows if the court were to make the orders proposed by the Independent Children’s Lawyer. Indeed, history would simply repeat itself. The mother was actually quite perceptive in her evidence that, in the past, the court has been giving too many chances to the father to follow the rules, but he doesn’t anyway. The Independent Children’s Lawyer’s proposal is as susceptible to further litigation as is the mother’s proposal except that on the mother’s proposal all the father could do is appeal, whereas on the Independent Children’s Lawyer’s proposal, he could appeal, file contraventions and seek variations to the orders.
The harsh lived existence for the mother and children is that litigation has been a part of their lives since 2007 and thus the court must do all it can to minimise the prospect of further litigation. In the court’s view, the mother’s proposal is, in fact, the proposal least likely to lead to the institution of further proceedings. The father may appeal, but that is all he can do. That is his prerogative.
Conclusion About Best Interests
This is a complex case. The decision to be made is a difficult one. On balance the court finds that the advantages of no order for the father to spend time with the children is greater than the disadvantage of an order for no contact. The mother seemed open to the possibility of some communication between the father and the children. Indeed she seemed open to the possibility of the children initiating both contact and communication with their father. The court is satisfied that the mother would not get in the way of implementing any such proposal from the children.
I certify that the preceding one-hundred-and-sixty-five (165) paragraphs are a true copy of the reasons for judgment of Judge Altobelli
Associate:
Date: 3 July 2013
Key Legal Topics
Areas of Law
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Family Law
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