CASTRO & HOWDEN
[2017] FCCA 1966
•25 September 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CASTRO & HOWDEN | [2017] FCCA 1966 |
| Catchwords: FAMILY LAW – Final parenting orders – future parenting arrangements for two children – mother identifies as Aboriginal – whether family violence by the father toward the mother – whether mother should have sole parental responsibility for the children – held presumption of equal shared responsibility should not apply in light of family violence by the father to the mother and inability of parties to communicate – the father is to have alternate weekend time with the children and half of school holidays – the father restrained other than in physical medical emergency from taking the children to medical practitioners except those nominated by the mother. |
| Legislation: Family Law Act 1975, ss.11F, 60B, 60CA, 60CC, 61DA, 65AA, 65DAA, 65DAC, 69ZW, pt.VII |
| Cases cited: Mazorski & Albright [2007] FamCA 520 |
| Applicant: | MR CASTRO |
| Respondent: | MS HOWDEN |
| File Number: | MLC 207 of 2015 |
| Judgment of: | Judge Jones |
| Hearing dates: | 19-20 July 2017 |
| Date of Last Submission: | 20 July 2017 |
| Delivered at: | Dandenong |
| Delivered on: | 25 September 2017 |
REPRESENTATION
The Applicant appeared in person.
| Counsel for the Respondent: | Mr Taghdir of Taft Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr Hale of Peter Lynch |
FINAL PARENTING ORDERS
The Mother have sole parental responsibility for the children of the relationship, X born (omitted) 2009 and Y born (omitted) 2010 (“the children”).
The Mother shall inform the Father in writing of any decision she has made regarding the long term issues affecting the children’s health and education within 14 days after she has made the decision.
The children live with the Mother.
Commencing on 9 October 2017, the children spend time and communicate with the Father as follows:
(a)during the school term, commencing on the first weekend in each term, each alternate weekend from Friday after school until Monday at the commencement of school, save for when the Monday is a public holiday, curriculum day or similar, the time shall conclude at the commencement of school on the Tuesday;
(b)for half of each of the school term holidays, with such half to be agreed between the parties and in default of agreement, to alternate between the first half of the school holidays in odd numbered years and the second half in even numbered years, save that the children shall live with the Mother during National Aborigines and Islander Day Observance Committee (“NAIDOC”) week (and the “first half” shall commence at 10.00am on the day after school term ends and conclude at 4.00pm on the day half way through the holidays, and the “second half” shall commence at 4.00pm on the day half way through the holidays and conclude at 4.00pm the day prior to school term starting);
(c)for half of the long summer school holidays, at times to be agreed between the parties, and in default of agreement, to alternate between weeks one, two and five in odd numbered years and weeks three, four and six in even numbered years. For the purposes of this Order:
(i)the long summer holiday is taken to be a school holiday of the year in which it commences;
(ii)week one commences at 10.00am on the first day after the school term ends and concludes at 4.00pm seven days and six nights thereafter;
(iii)each following week commences at 4.00pm on the last day of the previous week and concludes at 4.00pm seven days and six nights thereafter;
(iv)if the long summer holidays are less than six weeks and the Father has the children in week six, he shall return the children to the Mother at 4.00pm on the day prior to school term starting, and if the long summer holidays are more than six weeks, the children shall live with the Mother for any time exceeding six weeks;
(d)by telephone each Wednesday between 6.00pm and 6.30pm, to be facilitated by the Father calling the Mother’s mobile phone and the Mother is to ensure that the children are able to speak privately with the Father and ensure that she any other person remove themselves from the room from which the call is received;
(e)on the children’s birthdays and on the Father’s birthday, if not already falling on time spent with the Father, for a period of 3 hours at time to be agreed and in default of agreement, from 3.30pm until 6.30pm, and if falling on a day the children are already living with the Father, his time, shall be suspended for 3 hours at times to be agreed, and in default of agreement from 3.30pm to 6.30pm;
(f)on Father’s day, when the Father’s time falls on a day the children are not already in his care, from 4.00pm on the Saturday of that weekend until 6.00pm on the Sunday;
(g)by social media, letters, email, cards and gifts, and the Father shall be at liberty to provide the children with a phone, tablet or the like, and the Mother shall ensure the device/s are retained by the children;
(h)from 4.00pm on Christmas Eve until 4.00pm on Christmas Day in odd numbered years, and from 4.00pm Christmas Day until 4.00pm on Boxing Day in even numbered years; and
(i)as may otherwise be agreed in writing between the parties from time to time.
The time that the children live with the Father be suspended as follows :
(a)from 4.00pm on Christmas Eve until 4.00pm on Christmas Day in even numbered years, and from 4.00pm on Christmas Day until 4.00pm on Boxing Day in odd numbered years; and
(b)on Mother’s Day, from 4.00pm on the Saturday of that weekend until 6.00pm on the Sunday;
For the purposes of the children spending time with the Father pursuant to Order 4:
(a)changeover be effected at the children’s school, whereby the Father (or a person nominated by the him) collects the children from school at the commencement of time, and the Father (or a person nominated by him) takes the children to school at the conclusion of time; and
(b)in the event that the time takes place out of school times, changeover be effected by the Father (or a person nominated by him) collecting the children from McDonald's (omitted) at the commencement of time, and the Mother (or a person nominated by her) collecting the children from McDonald's (omitted) at the conclusion of time.
The parties shall authorise and direct the schools at which the children attend to forward copies of school reports, photographs, newsletters and the like to the other, at the expense of the party receiving the same.
The parties shall keep the other advised in writing of their residential address and telephone numbers.
The parties shall keep the other advised of any medical and/or health issues concerning the children, and shall authorise and direct any medical practitioner or the like upon whom the children attend to discuss the children’s medical condition with, and forward copies of any reports and the like to the other, and shall implement and adhere to any treatment regime specified by the children’s treating medical practitioner/s.
The parties shall be at liberty to attend all concerts, sports days, parent-teacher interviews and events at the children’s schools to which parents are ordinarily invited to attend, but otherwise not attend the children’s school for the purposes of seeing the children.
The parties ensure that the children attend school when in their care, save where the children are ill and unable to attend school by reason of such ill-health.
The parties ensure the children attend all extra-curricular activities in which they are enrolled, and the parties meet equally all costs and expenses associated with the nominated activities.
The parties, their agents and/or servants be and are hereby restrained by injunction from:
(a)denigrating the other in the presence or hearing of the children;
(b)discussing these proceedings in the presence or hearing of the children;
(c)consuming non-prescribed drugs or alcohol to excess 12 hours prior to, and whilst the children are in their care;
(d)administering physical punishment to the children; and
(e)allowing any other person to do so.
The Father be permitted to attend the children’s school as is necessary on Mondays and Tuesdays to enable him to participate as a volunteer in the Hands On Learning Program (“HOL Program”) conducted at (omitted) School, provided that the HOL Program continues to be conducted at the school and the Father continues to participate in said program as a volunteer.
The Father, his agents and/or servants be and are hereby restrained by injunction from:
(a)taking the children or either of them to a doctor, medical professional, social worker or the like other than the medical practitioner/s nominated by the Mother, save in the case of a medical emergency involving a physical injury; and
(b)during school hours, approaching the children or their classrooms.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist the parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
IT IS NOTED that publication of this judgment under the pseudonym Castro & Howden is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
MLC 207 of 2015
| MR CASTRO |
Applicant
And
| MS HOWDEN |
Respondent
REASONS FOR JUDGMENT
Background
This decision concerns the future parenting arrangements for X born (omitted) 2009 (“X”) and Y born (omitted) 2010 (“Y”) (collectively “the children”). The parents are Mr Castro (“the Father”) and Ms Howden (“the Mother”). The Father was born on (omitted) 1968 and says that he has, since 1999, being in receipt of a Centrelink disability pension for anxiety and depression. The Mother was born on (omitted) 1980. She identifies as an Aboriginal and Torres Strait Islander and is engaged in home duties.
The Mother has five other children from other relationships. These children are D born (omitted) 1999 (“D”) and E born (omitted) 2001 (“E”), both of whom have lived with their father since around 2007 and spend regular time, by agreement, with the Mother. The other children are A born (omitted) 2002 (“A”), B born (omitted) 2014 (“B”) and C born (omitted) 2015 (“C”), all of whom live with the Mother. At the commencement of these proceedings, the Mother was residing with her partner Mr R, who is the father of B and C as well as Mr R’s son R who was then aged nine years. The Mother gave evidence in these proceedings that she and Mr R no longer cohabitate, as Mr R has moved to (omitted) to obtain employment. The Mother said that he visits her mother once a month. There is no evidence before the Court about where Mr R’s son R now resides.
The parents’ relationship was a casual one which commenced in or around 2003. They have never cohabitated. The parents separated when the Mother was pregnant with X, and Y was conceived as a result of a night the parents spent together after their relationship ceased.
X and Y have always lived with their Mother and she has been their primary caregiver. Up until mid-2013 the Father spent regular time the children. This time ceased when the Mother refused to allow the Father to spend time with the children. By an Intervention Order made on 8 October 2013, in which the Mother and the children were named as Affected Family Members, the Father was prohibited from spending time the children. The circumstances surrounding the ceasing of the Father’s time with the children and the making of the Intervention Order are dealt with below.
The Father filed an Initiating Application on 15 November 2011 in order to commence spending time the children. Final Orders were made by Judge O’Sullivan on 11 April 2013. His Honour dismissed the proceedings because of the parties’ failure to comply with Orders for trial, and the fact that neither party had filed any material since March 2012. The Father then initiated parenting proceedings almost two years later, on 14 January 2015. The Father recommenced spending time with the children pursuant to Interim Orders made by consent on 29 April 2015.
Evidence before the Court
The Father relied on the following affidavits and exhibits:
a)affidavits filed by the Father on 21 July 2015, 4 September 2015, 17 March 2016, 29 April 2016, 8 June 2016, 29 June 2016, 2 December 2016 and 12 July 2017;
b)Exhibit F1 – correspondence signed by Dr J (“Dr J”) dated 4 April 2016;
c)Exhibit F2 – the Hands on Learning (“HOL”) Australia Annual Report for 2015- 2016, pages 44-45;
d)Exhibit F3 – a Vodaphone statement for the period 17 July 2013 to 16 August 2013 for a mobile phone in the name of Mr A; and
e)Exhibit F4 – a Child Support Agency Child Support Assessment for the period 17 July 2017 to 21 October 2018.
The Father was cross-examined by both Counsel for the Mother and Counsel for the Independent Children’s Lawyer (“ICL”).
The Mother relied on the following affidavits and exhibits:
a)affidavits filed by the Mother on 11 May 2016 and 14 July 2017;
b)Exhibit M1 – Victoria Police Law Enforcement Assistance Program (“LEAP”) Sub-Incident Summary Report dated 6 November 2006; and
c)Exhibit M2 – Intervention Order naming the Father as the Respondent and the Mother and the children as Affected Family Members dated 8 October 2013.
The Mother was cross examined by the Father.
Counsel for the ICL tendered the following exhibits:
a)Exhibit ICL1 – Family Report dated 9 February 2016 prepared by family consultant Ms A (“Family Consultant Ms A”);
b)Exhibit ICL2 – Child Inclusive Conference Memorandum to the Court dated 22 July 2015 prepared by Family Consultant Ms A;
c)Exhibit ICL3 – Family Report dated 17 September 2012 prepared by Family Consultant Ms M;
d)Exhibit ICL4 –Affidavit of Dr C (“Dr C”) filed 23 May 2016;
e)Exhibit ICL5 –Affidavit of Dr C filed 2 May 2017;
f)Exhibit ICL6 –Victoria Police LEAP Court Outcomes Report in relation to the Father dated 21 October 2015;
g)Exhibit ICL7 –Victoria Police LEAP Sub-Incident Summary Reports of various incidents involving the Father; and
h)Exhibit ICL8 – Department of Health and Human Services (“DHHS”) Response pursuant to s.69ZW of the Family Law Act 1975 (Cth) (“the Act”) dated 23 June 2016 (“the s.69ZW Response”).
Current Proceedings
The present proceedings commenced by the Father filing an Initiating Application on 14 January 2015. On 29 April 2015, Judge Phipps ordered that the parties attend a Child-Inclusive Conference pursuant to s.11F of the Act. A memorandum to the Court dated 22 July 2015 was prepared by Family Consultant Ms A (Exhibit ICL 2). Interim Orders were made by consent on 29 April 2015 providing that the parties have equal shared parental responsibility for the children, that the children live with the Mother and spend time with the Father every second weekend from 4:30pm on Friday to 6.00pm on Sunday and each Wednesday from 4:30pm to 7.00pm.
On 25 September 2015, Interim Orders were again made by consent which provided for the Father to spend alternate weekends with the children from the conclusion of school or 3:30pm on Friday until 6.00pm on Sunday, and for time on special occasions such as Christmas and the children’s and Father’s birthday. The Orders also provided for telephone communication between the Father and the children. An Order was made for the preparation of a family report. The most recent family report was prepared by Family Consultant Ms A dated 9 February 2016 (Exhibit ICL 1) (“the Family Report”). Orders were made by consent restraining the parties from administering corporal punishment and for each party to undergo supervised drug or alcohol screenings at the request of the ICL. The Court ordered that the parties undergo psychiatric assessment by a psychiatrist recommended by the ICL. The Father was ordered to do all things necessary to attend upon a psychologist, counsellor or nurse for the specific purpose of learning techniques to regulate his emotions and to notify the ICL of the name of that professional.
On 13 July 2016, Judge Phipps made Orders providing for the Father to spend half of school term holidays with the children, save that in the second school term holidays, the Father’s time would not fall in the NAIDOC week. His Honour ordered a week-about arrangement for the long school holidays.
The Father was legally represented when the Interim Orders were made on 29 April 2015 and 25 September 2015. The Father represented himself subsequently and at the final hearing.
At the commencement of the final hearing, I was informed by Counsel for the ICL that the Father refused to be given a copy of and to discuss the ICL’s then proposed minutes of order. I stood the proceedings down to enable the Father to attend upon a duty lawyer from Peninsula Community Legal Centre (“PLC”) for the purpose of having the ICL’s proposed orders explained and obtaining advice. Upon the proceedings resuming, Mr Gunasekera of the PLC informed the Court that the Father refused to engage with him with respect to the ICL’s proposed orders. Mr Gunasekera informed the Court that he had contacted the DHHS Liaison Officer for the Court, who had informed him that the DHHS had received a new child protection report on 4 May 2017, and that that matter is presently subject to an investigation.
The Father’s request for adjournment
The Father sought an adjournment of the proceedings until the outcome of these investigations had been reported upon by the DHHS. The Mother and ICL opposed this course of action. I refused the Father’s application for the following reasons.
First, the children have been subject to litigation since 2011.
Second, the Father’s evidence is that he has been contacted by DHHS to attend an interview, “regarding another complaint made regarding the children being smacked.” In his sworn evidence, the Father stated that he took X to a general practitioner at the medical clinic that the Father attends because she had been suffering from a stomach ache for some weeks. He said that the doctor asked him to step outside his room so that she could speak to X privately. The Father says that the doctor then told him that X had told her that the Mother was smacking her and that she was therefore obliged to report this to the DHHS. The Father said no medication or treatment was prescribed for X’s stomach ache.
I do not accept the Father’s evidence that the general practitioner, unsolicited, had a private conversation with X. In my opinion, it is more probable than not that the Father informed the doctor about the nature of the alleged abuse. In considering the Father’s evidence generally, I have found that the Father is not a credible witness (see [31]-[32] below).
Third, this is not the first time that the Father has involved general practitioners from his medical clinic in these proceedings. By correspondence dated 4 April 2016 (Exhibit F1), the Father’s general practitioner, Dr J, reported that X had told him that the Mother smacks her, that the Mother’s partner’s son was mean and hurts the children, and that the Mother’s partner drinks and drives them around. Dr J opined that the DHHS should investigate these claims and that the Father should be more involved in the children’s lives. In this correspondence, Dr J stated that the Father was not present in the room when he asked X about the Father. Dr J did not indicate whether or not the Father was present in the room when he obtained the information from X regarding circumstances in the Mother’s house.
In his oral evidence, the Father said that he had told the children, prior to attending on Dr J, to say what they wanted. He said he took the children to Dr J so that they could freely express their views and wishes. This attendance upon Dr J was after the release of the most recent Family Report. In my opinion, it is more probable than not that the Father took this action to obtain a report that would strengthen his case and that the children did not independently disclose the information reported upon by Dr J.
I have formed the opinion that the Father has deliberately utilised general practitioners to engage the DHHS in child protection investigations and to strengthen his case in Court. I am satisfied on the balance of probabilities that any report made by the children to the general practitioners has been influenced by the Father, because he has discussed the proceedings with the general practitioner whilst the children are present, or with the children prior to their attendance upon the general practitioner.
Fourth, there is a history of DHHS involvement after reports have been made, some of which raised very serious allegations against the Mother. Following investigation of these reports, the files have been closed with no protective concerns expressed regarding the children in the Mother’s care.
The s.69ZW Response (Exhibit ICL 8) notes that a report was received on 25 May 2016. The concerns raised mirror the concerns contained in the correspondence of Dr J dated 4 April 2016. The DHHS describes this report and its investigation of those concerns as follows:
The reported concerns are in relation to allegations that [the Mother] is smacking children as a form of discipline, and that the stepfather … is consuming alcohol and driving the children around under the influence of this alcohol.
Concerns have also been raised that the older siblings are hurting the younger siblings.
A review of the pattern and history was conducted given the alleged ongoing nature of these reported concerns. It was determined that this information has previously been reported to Child Protection.
The pattern and history is reflective of 8 previous reports to Child Protection since September 2010, all of which have closed at Intake. The current Intake is the first for 2016. It is noted that there were four reports from June 2015, making the current intake the 5th in 12 months for these children.
It is noted that the current report raises concerns for the cumulative impact on the children of the continued allegations being raised in relation to [the Mother’s] home environment. Cumulative harm refers to the effects of multiple adverse or harmful circumstances and events in a child’s life. For X and Y [sic], the pattern and history known to Child Protection indicates an ongoing exposure to the parental conflict and Family Law Court issues. Previous assessments made by Child Protection in relation to [the Mother’s] home environment, neglect concerns, physical discipline, alcohol misuse and allegations of sexual harm, have not identified any significant protective concerns warranting further investigation.
In his oral evidence, the Father somewhat ironically quoted the reference to “cumulative impact on the children” without any appreciation that this was a reference to the many unsubstantiated allegations reported to the DHHS. In my opinion, the Father lacks complete insight into the impact the most recent report may have on the children, who will once again be subject to interviews by the DHHS. This is very concerning in circumstances where I am not satisfied that the Father was simply an innocent bystander in the reports allegedly made by the doctor that the children attended in May 2017.
Parties Proposed Orders
The Father’ proposed orders are:
1. That all previous parenting orders be and are hereby discharged.
2. That the parents have equal shared parental responsibility for the children X born (omitted) 2009 and Y born (omitted) 2010.
3. That the children live with the mother.
4. That the children spend time and communicate with the father as follows:
(a) Each alternate week from the conclusion of school or 3.30pm if a non-school day Friday until the commencement of school on Tuesdays (or 3.30pm (if a non school day) commencing 4th August, 2017 and alternate weeks thereafter.
(b) On each of the children’s birthdays from 3.30pm until 6.30pm and if not a school day from 10.00am until 3.30pm if the children are not already in the father’s care.
(c) From 3.30pm on the day before Father’s Day until 9.00am on the day after Father’s Day and 10.00am if not a school day.
(d) From 3.30pm on day [sic] before Father’s birthday until 9.00am on the day after Father’s birthday and 10.00am if not a school day.
(e) For half of the first and third term holidays as agreed and if not agreed the 1st half.
(f) For half of the 2nd term holidays being the week which is not the NIADOC [sic] week.
(g) Over the long summer holidays by agreement and if not agreed on a week about basis in 2017-2018 commencing the last day of school and from 2018/2019 and each year thereafter for a period of 20 nights (inclusive of the night of the last day of school).
(h) And at such further and other times as may be agreed by the parents in writing.
(i) From 3.30[pm] Christmas Eve until 3.30pm Christmas Day in uneven years and from 3.30pm Christmas Day until 3.30pm Boxing Day in even years.
(j) From 3.30pm New Years Eve until 3.30pm on New Years Day. Father’s time shall be suspended in uneven years.
(k) From 3.30pm Easter Eve until 10.00am Easter Sunday. Father’s time will be suspended in uneven years. From 3.30pm until 10.00am Easter Sunday if not in Father’s care.
(l) When the children are not in the care of the father by telephone with the father to initiate the call to the mother’s mobile telephone number being …483 and providing the children with privacy to speak with the father between the hours of 5.30pm-6.30pm each Monday and Thursday.
5. THAT all changeovers when not at school occur at McDonalds, (omitted).
6. THAT each of the parties shall immediately keep the other informed/notified of any serious injury, illness or dental issues immediately together with the name of any treating medical practitioner or hospital providing the clinical services to the children in relation to such serious injury or illness.
7. By this order each of the parties are entitled to attend the children’s school for functions that parents normally attend and obtain from the children’s school the required notices posted to parents and that the mother and father accept and follow the reasonable directions of the children’s school Principal to their (the children’s) attendance at the children’s school.
8. That in the event that the Mother’s birthday ((omitted)) AND Mother’s Day falls within the father’s time, then the father’s time shall be suspended from 3.30pm on the day before the mother’s birthday until 9.00am on the day after the mother’s birthday if a school day and 10.00am if not a school day.
9. In the event that the children’s birthdays fall in the father’s time then the father’s time shall be suspended form [sic] 3.30pm until 6.30pm if a school day and 10.00am until 3.30pm if not a school day.
10. THAT each of the parties are restrained by injunction from:
(a) Using illicit drugs or being effected by the consumption of illicit drugs whilst the children are in their care.
(b) Consuming alcohol to excess to affect their parenting capacity whilst the children are in their care.
(c) Denigrating the other or allowing any other person to do so in the sight or hearing of the children.
11. THAT each of the parties are restrained by injunction from administering corporal punishment to the children or allowing any other person to do so.
12. In the event the mother or father become incapable of caring for the children whilst the children are in their care they are to immediately notify the other party and time with the children will be immediately suspended until medical certificate is presented that the parent is capable of resuming parental responsibilities.
13. In the event of a funeral or any personal major event the parent with current care will agree to have time suspended for a minimum of 24 hours to a maximum 72 hours to be agreed in writing.
14. If the children are not in the family home for more than 48 hours, father must be informed of whereabouts. If going on holidays must inform the other parent of suburb/town. If going interstate must supply itinerary.
15. In 2018 the father will supply the children with their own mobile phone to enable them to communicate at any suitable time.
(emphasis in original)
The ICL’s proposed orders are:
1) That the mother have sole parental responsibility for the children of the relationship, X born (omitted) 2009 and Y born (omitted) 2010.
2) That the children live with the mother.
3) That the children spend time and communicate with the father as follows:
a) during school term, commencing the first weekend in each term, each alternate weekend from Friday after school until Monday at the commencement of school, save that if that Monday is a Public Holiday, curriculum day or the like, time shall be extended to the commencement of school the next Tuesday;
b) for half of each of the school term vacations, such half to be agreed between the parties and in default of agreement, to alternate between the first half of the school holidays in odd numbered years and the second half in even numbered years, save that the children shall live with the mother during NAIDOC week, (and “first half” shall commence at 10.00am on the day after school term ends and conclude at 4.00pm on the day half way through the holidays, and “second half” shall commence at 4.00pm on the day half way through the holidays and conclude at 4.00pm the day prior to school term starting);
c) for half of the long summer school vacation, at times to be agreed between the parties and in default of agreement, to alternate between weeks 1, 2 and 5 in odd numbered years and weeks 3, 4 and 6 in even numbered years; (and for the purposes of this Order the long summer vacation is taken as a school holiday of the year in which it commences.) Week 1 shall commence at 10.00am on the day after school term ends and Week 2 shall conclude at 4.00pm on the day 14 days and 13 nights after; and Week 3 shall commence at 4.00pm on that day and Week 4 shall conclude at 4.00pm on the day 14 days and 13 nights after; and Week 5 shall commence at 4.00pm that day and conclude at 4pm on the day 7 days and 6 nights later, and Week 6 shall commence at 4.00pm that day and conclude at 4pm on the day 7 days and 6 nights later; and if the long summer vacation is less than 6 weeks, and the father has the children in week 6 he shall return the children to the mother at 4 pm on the day prior to school term starting, and if the long summer vacation is more than 6 weeks, the children shall live with the mother for any time exceeding 6 weeks;
d) by telephone each Wednesday between 6.00pm and 6.30pm to be facilitated by the father telephoning the mother’s mobile and the mother to ensure that the children are able to speak privately with the father, and the mother and any other child or adult absent themselves from the room from which the call is received;
e) On the children’s birthdays and on Father’s birthday, if not already falling on time spent with the father, for a period of 3 hours at time to be agreed and in default of agreement, from 3.30pm until 6.30pm, and if falling on a day the children are already living with the father, his time, shall be suspended for 3 hours at times to be agreed, and in default of agreement from 3.30pm to 6.30pm;
f) Where Father’s day falls on a day the children are not already spending with the father, from 4.00 pm on the Saturday of that weekend until 6.00 pm Father’s day, provided that where Mother’s day falls on a day the children are not already living with the mother, contact shall conclude at 4.00 pm on the Saturday of that weekend;
g) by social media, letters, email, cards and gifts, and the father shall be at liberty to provide the children with a phone, ipad or the like, and the mother shall ensure the device/s are retained by the children;
h) From 4.00 pm on Christmas Eve until 4 pm on Christmas Day in odd numbered years and in even numbered years from 4.00 pm Christmas Day until 4.00 pm Boxing Day;
i) as may otherwise be agreed in writing between the parties from time to time.
4) That the time the children live with the father be suspended as follows :
a) From 4.00 pm on Christmas Eve until 4.00 pm on Christmas Day in even numbered years and in odd numbered years from 4.00 pm Christmas Day until 4.00 pm Boxing Day;
5) That for the purposes of spending time with the father pursuant to paragraph 3 the following applies:
a) Changeovers take place at the children’s school whereby the father (or a person nominated by the him) collects the children from school at the commencement of time, and the father (or a person nominated by him) takes the children to school at the conclusion of time;
b) In the event that time takes place out of school times, changeovers take place by the father (or a person nominated by him) collecting the children from McDonald's (omitted) at the commencement of time and the mother (or a person nominated by her) collecting the children from McDonald's (omitted) at the conclusion of time.
SPECIFIC ISSUES
6) The parties shall keep a communication book advising each other of the children’s health, education and progress.
7) The parties shall authorise and direct the schools at which the children attend to forward copies of reports, photographs, newsletters and the like to the other, at the expense of the party receiving same.
8) That the parties keep the other advised in writing of their residential address and telephone numbers.
9) The parties shall keep the other advised of any medical and/or health issues concerning the children, and shall authorise and direct any medical practitioner or the like upon whom the children attend to discuss the children’s medical condition with, and forward copies of any reports and the like to, the other, and shall implement and adhere to any treatment regime specified by the children’s treating medical practitioner/s;
10) That the parties shall be at liberty to attend all concerts, sports days, parent-teacher interviews and events at the children’s schools to which parents are ordinarily invited to attend but otherwise not attend the children’s school for the purposes of seeing the children.
11) The parties ensure the children attend school when in their care, save where the children are ill and unable to attend school by reason of such ill-health.
12) The parties ensure the children attend all extra-curricular activities in which they are enrolled and the parties meet equally all costs and expenses associated with the nominated activities.
NON-DENIGRATION/DISCUSSION
13) That the parties, their agents and/or servants be and are hereby restrained from:
i) Denigrating the other in the presence or hearing of the children;
ii) Discussing these proceedings in the presence or hearing of the children;
iii) Consuming non-prescribed drugs or alcohol to excess twelve hours prior to, and whilst, the children are their care;
iv) Administering corporal punishment to the children.
14) That the father, his agents and/or servants be and are hereby restrained from:
i) Taking the children or either of them to a doctor, medical professional, social worker or the like other than the Medical Practitioner/s nominated by the mother, save in the case of a medical emergency involving a physical injury;
ii) During school hours, approaching the children or their classrooms.
The Mother’s proposed orders were articulated by her Counsel at the completion of proceedings as being those proposed by the ICL, save for the addition of the following proposed order:
The Father be and is hereby restrained from attending the Children’s school on Monday and Tuesday for the purpose of participating in the Hands on Learning program.
The Parties’ Evidence
The Father’s Evidence
During cross-examination, the Father gave evidence in a belligerent manner. He was argumentative, disrespectful and rude to both Counsel for the Mother and Counsel for the ICL. Instead of giving straightforward answers, he either engaged, or attempted to engage, in arguments about the question asked, responded rudely or dismissively and attempted to respond by simply questioning Counsel. I formed a view that his behaviour reflected his desire to control the proceedings and avoid answering questions which may not assist his case. Overall, he presented as an overbearing person.
I warned him, on a number of occasions, that I may take his behaviour in Court into account in my judgment. These warnings had no effect on his behaviour during the proceedings. The Father agreed to the proposition put by Counsel for the ICL that he was being as polite and respectful as he could. He gave evidence that he would not attempt to be polite and respectful outside Court.
Most extraordinarily and concerning, on the second day of the hearing, the Father gave evidence that his memory was “not so good”. When I explained that this evidence may affect the weight given to his evidence or the credibility of this evidence, the Father prevaricated, stating he was trying his best. Later however, he was again repeated that his memory was not the best.
I find that the Father was not a credible witness and, in circumstances where there is a dispute between the evidence of the Mother and of the Father, I have generally preferred the Mother’s evidence.
The Father was cross-examined about a report containing a psychiatric assessment of the Father conducted by Dr C, which was annexed to an affidavit filed by Dr C on 23 May 2016 (Exhibit ICL 4) (“the psychiatric report of the Father”). At [23] of the psychiatric report of the Father, Dr C reported that the Father described the cessation of a previous relationship, which had commenced at Christmas time in 2013 with a woman named “Ms E” as follows:
… He said he eventually separated from Ms E as there was difficulties in coordinating access visits for both sets of children and he found her to be rather demanding and unrealistic.
The Father agreed that the woman in question was Ms D and that [23] of the psychiatric report of the Father contained a correct record of the information he gave about his relationship with Ms D.
The Father agreed that he did not inform Dr C of the circumstances in which Ms D applied for and was granted an Intervention Order, nor the events surrounding his breach of the Intervention Order. The Father said that he could not recall whether he had informed Dr C about the attendance of the police and the Critical Incidents Response Team (“CIRT”) at Ms D’s home in November 2013 (see below under the heading “Family Violence, Violence and Intervention Orders”). The Father denied that he had misled Dr C about the relationship and family violence, stating that he just answered the questions posed to him by Dr C.
The Father was also asked about [55]-[56] of the psychiatric report of the Father, where Dr C reported the following about the Father’s forensic history:
55. [The Father] said that he has had two 0.05 convictions over the past 3-5 years. He said he has no convictions for assault and no criminal history.
56. [The Father] said he was charged with resisting arrest but this was a misunderstanding when he went to the back of his car to get his identification and the police thought he was getting a weapon.
Victoria Police LEAP records produced under subpoena reveal that the Father failed to provide full and frank disclosure of his forensic history to Dr C (see Exhibits M1, ICL6 and ICL7).
On 21 July 2000, the Father was convicted for refusing to take a breath test and assaulting police (Exhibit ICL6). The Father’s evidence in relation to various convictions at the Bendigo Magistrates’ Court on 10 June 2014 for charges including possessing and using cannabis, resisting police, failing to answer bail, using threatening words in a public place, possessing a controlled weapon without excuse, was that he had pleaded guilty to these charges only to get into what he described as a “special circumstances” list of the Bendigo Magistrates’ Court. He said he did not care about the charges, because he had to plead guilty. He gave evidence that he was guilty of some of the charges, but he couldn’t remember which charges. In my opinion the Father displayed a cavalier attitude to various criminal charges, which reflects badly on him.
I am satisfied that the Father failed to provide an honest account to Dr C about his history, insofar as it concerned family violence and his forensic history.
The Father minimised his involvement with the police in his Affidavit filed 29 April 2016. At [40]-[43] of his affidavit, the Father acknowledged that he had some dealings with the police, most recently in the period June 2013 to approximately February 2014, however he ascribed this to the fact that he “was not of the sound, mind, body or spirit” at the time (the Father’s affidavit filed 29 April 2016 at [42]).
In the s.69ZW Response (Exhibit ICL8), it was stated in respect of the report made to DHHS on 25 May 2016:
In relation to the current report, contact was made with the children’s school. It was identified that there was no protective concerns for the children when in [the Mother’s] care. The children attend school regularly, are presenting appropriately and the school have had no concerns with [the Mother’s] interactions with the school or the children. The school identified concerns for [the Father], as he has been attending the school to see the children during school hours. This has been addressed with [the Father], who speaks with the Assistant Principal directly for any issues. It has been identified that Y [sic] is distracted on the days he is with [the Father] or [the Father] is at the school. The school have not raised any protective concerns for the children in either parent’s care…
The Father gave evidence that the concerns referred to in the s.69ZW Response were a one-off event, and were raised by Y’s teacher when he walked past Y’s classroom and looked inside. He stated that he had sorted out this issue with the Principal.
As to his attendance on the school grounds, the Father’s evidence is that he works on a voluntary basis as a teacher in the HOL Program with secondary school children from (omitted) School. He said that he participates as a teacher in the HOL Program on Mondays and Tuesdays, and confirmed that he has a “Working with Children” certification.
The purpose of the HOL Program is described in its 2015-2016 Annual Report (Exhibit F2) (“the HOL Annual Report”) as working “to prevent early school leaving by creating opportunities at school for vulnerable young people to be more engaged, discover their talents and experience success” (the HOL Annual Report at 7).
Under the heading “Celebrating the Power of Volunteers”, there is a specific reference in the HOL Annual Report to the Father, together with a photograph of him with school children. The narrative states (the HOL Annual Report at 44-45):
The HOL team at (omitted) described [the Father] as invaluable. They insist they simply would not have got the jobs done without [the Father’s] hands on support and advice. They love that [the Father] gives his time so generously to help them, and most especially the way it is delivered – honest, positive and with heaps of passion.
A great deal of time in the cross-examination of the Father was given to the concern expressed in the s.69ZW Response about Y being distracted by the presence of the Father at the school. Unfortunately, the Court did not have the benefit of any records from the school, or any reports from the Principal or the Assistant Principal which may have shed some light on this issue.
The Father’s evidence is that a particular group of secondary students from a class, nominated by the teacher of that class, will attend during the whole of one school day in the program. The HOL Program is conducted in a house across the road from the school. The immediate visual from the house is the school oval. The Father said that he attends on Mondays and Tuesdays during school hours, and that he commences the day by signing in at the school’s administrative office. The Father’s evidence is that he spends most of the day at the house opposite the school, but he said that he does attend at the school before, during and after school hours for the purpose of facilitating the running of the HOL Program. For example, he may need to obtain materials or liaise with the Principal or a teacher. The Father said that he occasionally sees the Children on the school grounds during their tea or lunch break, or as they go between classes. The Father conceded that on one particular day he approached the Children during school. The Father did not accept that the Children were distracted by his presence at the school on the days that he participates in the HOL Program.
The Father is to be commended for his participation in the HOL Program at (omitted) School. Clearly, he is perceived by the HOL team at (omitted) School as a valuable asset. It is unfortunate that he does not appreciate that Y may well be distracted by his presence on the school grounds. The Father showed little insight in understanding the concept that being at school allows children to engage in a developmental process of being independent from their parents and interacting with their peers. It is a shame that rather than denying any distraction, the Father did not engage positively in giving his evidence by identifying steps that he would take to minimise the Children seeing him at the school.
The cross-examination of the Father regarding his presence at the Children’s school because of his involvement in the HOL Program was preceded by what can only be described as smug evidence by the Father about the restrictions that the Interim Orders made on 25 September 2015 imposed on his time with the Children. With respect to these Interim Orders, the Father asserted that the Orders state that he can do what any other parent does with their children. When asked to identify which Order said this, the Father referred to Order 6 of Exhibit A of the Interim Orders made on 25 September 2015. This Order reads:
6. That by this order each of the parties are entitled to attend the children’s school for functions that parents normally attend and obtain from the children’s school the requisite notices posted out to parents.
The Father justified his assertion that this Order enabled him to do what any other parent does with their children at school, on the basis that the dictionary definition of “function” means “action.” Of course, this interpretation of the Order is manifestly wrong. The Father was legally represented at the time the Order was made by consent, and I have no doubt that he would have been advised that the reference to function was a reference to school events; such as concerts, sporting days and the like. In my opinion, the Father deliberately misconstrued the Order for the purposes of justifying what he sees as his right to interact with the Children outside of times that he is permitted to in accordance with the Orders.
The Mother’s evidence
The Mother’s allegations regarding the Father’s aggressive and violent behaviour towards her is dealt with below. The Mother acknowledges that she suffered from depression and suffered a mental breakdown following an abortion in 2008 when she was admitted to the (omitted) Psychiatric Unit for four days (the Mother’s affidavit filed on 14 July 2017 at [13]). The Mother deposes that she continued to take antidepressants for a three-year period post admission to the (omitted) Psychiatric Unit. She says that since 2011, she has not been prescribed any medication and has not been involved with any mental health services (the Mother’s affidavit filed on 14 July 2017 at [14]-[15]). The Mother relies on her psychiatric assessment by Dr C dated 12 July 2016, which is attached to an affidavit filed by Dr C on 2 May 2017 (Exhibit ICL5) (“the psychiatric report of the Mother”). In the psychiatric report of the Mother, Dr C opined that there was no current psychiatric disability, and that the Mother appears to have a full range of activities for the Children and an awareness of their emotional and physical needs. He opined that there was no impairment to her parental capacity and no need for urine drug screens.
The Father initially announced that he did not intend to cross-examine the Mother. When I explained that the consequences may be that I accept the Mother’s unchallenged evidence, he informed the Court that he wished to cross-examine the Mother. Notwithstanding the plethora of allegations made in his affidavits about the Mother and, in particular, her parental capacity, the Father cross examined the Mother on only two issues. The first issue related to the circumstances when his time with the Children ceased in mid-2013. The second issue was his allegation that the Mother had failed to comply with Orders to undergo random urine drug screens.
In her affidavit filed 14 July 2017, the Mother deposes (at [29]-[30]):
29. Time between X and Y and the Applicant ceased in mid-2013 following the Applicant taking the children to (omitted) without my prior knowledge, with plans not to return to me. Moreover, I became increasingly concerned for the children’s safety as the Applicant was becoming increasingly aggressive and abusive.
30. I was contacted by the Applicant during one of his weekends with the children. He informed me that he was on his way to (omitted) with the Children. I was then contacted by an Aboriginal community service provider informing me that the Applicant was obtaining housing in (omitted) on the basis that the children now resided with him. I became extremely concerned. Ultimately the children were returned to my care however thereafter, I became extremely concerned about allowing the children back into the Applicant’s care for fear of him not returning them.
The focus of the Father’s cross-examination was the Mother’s allegation that the Children were taken to (omitted) without her prior knowledge. There is no dispute that the day the Father took the Children to the (omitted) was on a day when, in accordance with Interim Orders, he spent time with after school with the Children. The issue in dispute was when the Father told the Mother that he would keep the Children on the Thursday. The Father says that he told the Mother before he took the Children to (omitted) that as his weekend commenced on the Friday, he would keep them until the end of his weekend time with the Children.
The Father says that he informed the Mother prior to taking the Children to (omitted) that he intended to do this, and produced a telephone statement in support of his argument (Exhibit F3). He relies on a record of a telephone call made to the Mother’s mobile phone on 17 July 2013 at 3:09:31 pm, for a period of 54 seconds. The Mother denied that he informed her about his intention during that phone call.
In my opinion, the focus on that call is a distraction and misses the point that the Father unilaterally withheld the Children overnight on the Wednesday until after school on the Friday. The Mother’s evidence that she had been informed by another person that the Father intended to relocate to (omitted) with the Children was not challenged. In fact, it is undisputed that for a period of time (from June 2013 onwards), the Father resided in (omitted).
The Father also questioned the Mother about the contradiction between her assertion that after the Father relocated to (omitted), he did not request to see the children and she did not hear from him until January 2015 (the Mother’s affidavit filed on 14 July 2017 at [31]), and her statement that the Father attended her house demanding to see the Children in September 2013 (the Mother’s affidavit filed on 14 July 2017 at [36]). The Mother conceded that the Father had attempted to see the Children in September 2013. The Father did not challenge the Mother’s evidence that he sent abusive and denigrating text messages to her after mid-2013 (these messages included calling her names such as “dirty abo” and stating that “all abo’s sleep together”) (the Mother’s affidavit filed on 14 July 2017 at [31]), nor did the Father challenge the Mother’s evidence that on September 2013 he said to her when she informed him that children were not home, he said to her “you are lucky to be pregnant or you would be dead” (the Mother’s affidavit filed on 14 July 2017 at [36]).
As to the alleged failure of the Mother to complete drug screens at the request of the ICL, the Mother said she completed said screens and gave them to her solicitor. I am not able to say whether this is correct. This was not a matter pursued by the ICL.
Family violence, violence and intervention orders
The Mother says the Father denigrated her, was overbearing, made threats to kill and physically assaulted her during their relationship. She says she felt threatened and scared of him, and continues to be so.
The Father denies perpetrating any family violence during their relationship, and denies being threatening and/or aggressive subsequently. His denial of family violence is based on the fact that the parties had a casual relationship and never cohabitated (in other words, they were not a family unit). The Father’s evidence is that his behaviour would not affect, or did not affect the Mother at all.
In cross-examination, the Father agreed that in September 2013 he attended the Mother’s house and said to the Mother words to the effect “lucky you are pregnant otherwise I would have killed you”. He did not agree that this statement would have caused the Mother to be scared. He said that making threats to kill, such as a parent saying he or she will kill a child if the child does, or continues to do something that is annoying, is commonplace.
In his affidavit filed 29 April 2016, the Father said that after the events of September 2013, for a period of 6 to 8 months, he “did a lot of yelling and screaming sometimes not at the appropriate time”. He deposed (the Father’s affidavit filed 29 April 2016 at [9]):
… Even though I became mentally unwell and also physically unwell I never became violent and although under extremely harsh conditions at times was still able to maintain enough sanity to return back to a stable and safe environment, sometimes even amazing myself as myself [sic] control at certain times.
In cross-examination, the Father said that he did not consider raising his voice to be form of family violence.
In reference to the Mother’s refusal to communicate with him, he said that if the Mother “got struck by a bolt of lightning and matured”, then they could communicate. The Father displayed no insight that his reference to the Mother being struck by lightning is a reference to an extremely violent act being visited on the Mother. This evidence typifies his complaints throughout his affidavits, and indeed to various family consultants, that it is the Mother’s fault that they do not communicate, and that this prevents him spending more time with the children.
The Father claims there is no evidence that he has engaged in family violence involving the children. This is mere sophistry. He made a threat to kill the Mother in September 2013 and engaged in threatening behaviour outside her house, including doing “wheelies” in his car (the Mother’s affidavit filed on 14 July 2017 at [38]). The Mother says that she and the children were hiding in the house, and that the children witnessed this behaviour.
The Mother further deposes that the Father threatened to blow up her house in August 2013, and that he sent her denigrating SMS text messages, including denigrating her identification as Aboriginal on numerous occasions post-separation (the Mother’s affidavit filed on 14 July 2017 at [34]-[38]).
On 8 October 2013, the Mother was granted an Intervention Order in which the Father was named as the Respondent and the Mother and the Children as Affected Family Members (Exhibit M2). The Intervention Order expired on 1 November 2014. The Mother says that she made the application after the Father’s threat to kill her, and his behaviour outside her home. When put to the Father that an Intervention Order was in fact made, the Father’s only response was that he was not served with the application for the Intervention Order. This is true, as he was living at an unknown address in (omitted). By substituted service, the application for the Intervention Order was served on the paternal grandfather.
The application for the Intervention Order records the reasons for the application as follows (Annexure H-1 to the Mother’s affidavit filed 11 May 2016):
The Respondent is my ex-boyfriend, we have been seperated [sic] for 5 years. On Sunday 1/9/13 at 10am at my house, the Respondent got out of the car, and asked for the kids. I told him it was none of his business. The Respondent then said ‘you are lucky to be pregnant or you would be dead’. He then took off to my parent’s place to check if the kids were there. He then came back driving in a horrible manner. I took photos of the cars. The Respondent was doing ‘donuts’ on my lawn, I called police and he left before they arrived. A few weeks ago the Respondent texted me derogatory commenst [sic] at 2.30am, this has been happening for a while on and off. The Respondent has threatened to blow up my house after a court case a few months ago. I am living in fear that the Respondent will come back and do worse. I am scared for myself and my kids.
In cross-examination, the Father denied that he had engaged in domestic violence in another relationship. He was asked about his relationship with Ms D. He said the relationship only lasted for a short period. When presented with the evidence, he conceded that she applied for and was granted an Intervention Order in which he was named as the Respondent, and she was named as the Affected Family Member. He said words to the effect that there are “many reasons why women seek intervention orders.”
In the Victoria Police LEAP Sub-Incident Summary Report dated 3 September 2013 (Exhibit ICL7), Ms D is reported to state that the relationship ended because the Father failed to cease his heavy drinking and using marijuana. The Father denies this was the reason for the relationship ending, but agreed that he did use marijuana during the relationship with Ms D and for a short period afterwards. On 3 October 2013, an Intervention Order was served on the Father, naming him as the Respondent and Ms D as an Affected Family Member. The Intervention Order included a prohibition on the Father communicating or being 200 metres of Ms D’s home (Exhibit ICL7 at 8).
The Victoria Police LEAP Sub-Incident Summary Report describes the events of 14 November 2013 as follows:
On Thursday 14th November 2013, [the Father] has text the victim at 6.35pm stating that he was waiting for her at the back door. [Ms D] contacted police… stating that she was 45 minutes away and that [the Father] was in breach of an intervention order. [Ms D] was in fear and wanted police to attend prior to her arriving home. On police arrival of vehicle registration… registered to [the Father] was parked in the driveway of… Police searched the front and back garden and the house was locked. [Ms D] got another text stating that [the Father] was inside the house. Police saw [the Father] through the back laundry window. [Ms D] arrived with keys but police were unable to gain access as there was a bolt across the door. [Ms D] told police that the front window could not be locked. The window was opened by police and [the Father] tried to force the window closed shouting at [sic] threats at police “I am going to kill you” and pushed the police away and barricade [sic] the window. The victim was sprayed by police prior to [the Father] barricading the window. Critical Incident Response Team (CIRT) was requested to attend as it had escalated to a siege situation. CIRT attended and [the Father] was finally talked out by the CIRT negotiator and conveyed to (omitted) police station for interview. [the Father] made full admissions to the breach of intervention order… The respondent was remanded in custody and pleaded guilty to the breach of intervention order at the Melbourne Magistrates’ Court.
The Victoria Police LEAP Court Outcomes Report reveals that there was no conviction for this breach of the Intervention Order on the basis that the Father complies with certain conditions, including attending anger management counselling (Exhibit ICL6 at 9).
The Father gave oral evidence that the house was unlocked. He said that he prevented the police from entering the house by the window because he was scared. He agreed that the CIRT attended the scene, but said that he came out of the house voluntarily and not because of discussions with the CIRT negotiator. The Father conceded that going into the open house of his ex-partner and bolting the front door was “possibly not right”, but said blocking the window to stop the police going through the window “could be right or wrong.”
I am satisfied that it is more probable than not that the Father engaged in family violence or violence during the parties relationship, and subsequently. The Father has displayed very little insight about what constitutes family violence, as well as his threatening and aggressive behaviour and its impact on others, including the Mother. His opinion that saying to the Mother that it was lucky she was pregnant, otherwise he would kill her in September 2013 was not threating behaviour is extraordinary. It is without doubt a threat to kill. I accept that this caused the Mother to be extremely fearful. The concession that he would not modify his aggressive, argumentative and overbearing behaviour as he was trying to in the Court room, is concerning.
The Father has consistently made allegations about the Mother’s parental capacity and her mental health. The s.69ZW Response concluded there are no protective concerns about the children being in the Mother’s care (Exhibit ICL 8 at 5). Family Consultant Ms A reiterated that DHHS reported that the school has no concerns for the children’s appearance at school, their welfare or the Mother’s appearance when she delivers that children to School (the Family Report at [62]), and noted that the children attended for the Family Report interview with her well-dressed and with snacks (the Family Report at [31]).
As to the Mother’s mental health, the Father was cross-examined in relation to a Victoria Police LEAP Sub-Incident Summary Report dated 6 November 2006 (Exhibit M1). The report reads as follows:
[The Father] rang police believing have had [sic] attempted suicide by cutting herself. Police and ambulance attended and found that no such injury or intention by [the Mother]. Children present and appeared fine. [The Mother] suffers depression and has trouble managing her medication and [the Father] has at times needed to restrain her till she calms [sic] difficult to determine if restrain used is excessive. [The Mother] made no claim of assault. Recommend that [the Mother] be contacted by WAYSS for assessment.
In cross-examination, the Father said that he rang the police because the Mother was attempting to commit suicide by cutting herself. The Father said that he agreed with the report contained in the Victoria Police LEAP Sub-Incident Summary Report that there was no injury to the Mother, but he disagreed with the report’s findings there was no intention by the Mother. The Father agreed with the report’s finding that the children were fine.
I agree with the assessment of Family Consultant Ms A in the Family Report at [55] (Exhibit ICL1) that the police “report suggests they had some concerns about [the Father’s] advice that he needed to restrain her until [the Mother] calmed down because she did not take her medication”. Further, it is highly unlikely that the children, who were present, would be fine if the Mother had engaged in the attempts at self-harm as alleged by the Father. In my view, the report by the Father to the police amounted to harassment on his part.
The psychiatric assessments of the parents
Both parents were ordered to attend on Dr C for psychiatric assessment by Interim Orders made on 25 September 2015. The psychiatric assessment of the Father is dated 18 December 2015. The Father was interviewed by Dr C on 19 November 2015. Dr C concluded as follows (the psychiatric report of the Father at [70]):
70. He does not suffer from any psychiatric disability currently and in the past it appears that the circumstances of uncertainty around the access to his children and uncertainty about the reliability of his legal advice has had an unsettling effect on him. He is now in a better place emotionally and I see no reason as to why he should not be successful in his desire to be a more present father should additional access time be granted by the court.
As Dr C was not called for cross-examination, there is no evidence before the Court whether his conclusion about the Father would have changed had he been provided with complete information about the Father’s forensic history, and the circumstances following the Father’s separation from Ms D.
With respect to the Mother, who was interviewed by Dr C on 6 June 2016, Dr C concluded (the psychiatric report of the Mother dated 12 July 2016 at 6):
[The Mother] has no acute family history of psychiatric illness. She has no forensic history. She describes a happy environment with her extended family and children who all appeared to be actively involved in education and sport. There is no current psychiatric disability and appears as having a full range of activities for the children and awareness of their emotional and physical needs.
It is my opinion that there is no impairment parental capacity and no need for urine drug screens.
The clinical psychological report of the Father
The Father attached to his affidavit filed on 8 June 2016 (Annexure 7) a brief report of the Father’s attendance at six clinical psychological sessions and treatment, provided by Dr T. According to the report, the Father was referred to Dr T by his general practitioner, Dr J, and the main focus of the sessions was anger management. Dr T reported that he utilised mindfulness-based cognitive behavioural therapy, and believed the Father had “responded reasonably well”. He stated that the Father’s “primary focus appeared to be the welfare of his children and the implementation of an equitable access arrangement”.
The primary focus of the Father as reported by Dr T is reflected in a letter dated 15 April 2016 addressed to the Court from a Social and Senior Mental Health Worker for the Keys Program at the (omitted) Mental Health Association (“ERMHA”) (Annexure 5 to the Father’s affidavit filed 29 April 2016), which states that the Father “has been very passionate about his goal to be primary care giver of his children and continues to be [his] main focus in his day to day life.”
The Father’s focus on what he perceives to be equitable access to the children is clear in his evidence. During the proceedings, the Father made plain his frustration with the system which prevented him entering into an equal-shared living arrangements with the children because, he says, of the Mother’s unreasonable refusal to communicate with him. The Father made it clear that the orders he sought were simply because the legal system prevented him from entering into arrangements which allowed him, as a father, to spend equal time with the children.
The s.69ZW response
The content of the s.69ZW Response has been set out and discussed above at [24], [41]-[42], [46] and [75] above.
Family reports
The parents and the children have attended numerous family consultants for the preparation of s.11F memoranda and family reports, both in these proceedings and in the earlier proceedings initiated by the Father.
The most recent Family Report dated 9 February 2016 (Exhibit ICL1), was prepared by Family Consultant Ms A. X, who was aged six at the time, was reluctant to be interviewed. Family Consultant Ms A observed that at previous interviews, X seemed conscious of the conflict between her parents (the Family Report at [37]). Y, who was aged five years and two months at the time, reported that the Mother disciplined him by putting him in “time out” in his room. He said he was not naughty at the Father’s place, and was unable to say what happens if he is naughty. Y reported that the Mother’s partner protects him and X from Mr R (their step-brother) who hurts them sometimes. Y responded to a question by Family Consultant Ms A for his three wishes that first, he wishes to “[stay] with dad”, second, to “live with dad… 10 days”, and third, to “play with dad”.
Under the heading “Evaluation”, Family Consultant Ms A said the following (the Family Report at [65]-[72]):
65. Both parties clearly love their children. [The Father] seems to provide an affectionate and warm parenting style and [the Mother] appears to provide and facilitate an environment in which education is highly valued and the children experience a rich and diverse culture where family and extended family relationships are maintained and encouraged. Both parties also seemed to have areas of parenting which may have needed development and possibly continue to need development. [The Mother] appeared to have undertaken professional training in child care which had assisted her to develop her skills beyond that of her family of origin experiences. She seemed child focussed [sic] and able to prioritise the children’s needs above hers.
66. However, [the Mother] seemed very fearful of authorities such as police and child protection… There is also a possibility her behaviour is consistent with a longstanding fear amongst Aboriginal people in relation to legal authorities and government representatives because of the history of trauma they have experienced as a people. [The Father] said at interview he did not wish to comment about [the Mother’s] Aboriginal heritage, but seemed to be indicating he had a negative opinion about it in some regard.
67. [The Father] also appeared to have undertaken courses of action recommended and included in Orders. His treating psychologist had reported he attended six sessions of clinical psychological psychoeducation and completed training in emotional regulation. [The Father] reported he had also undertaken a psychiatric assessment pursuant to the Interim Order. He is clearly committed to spending time with his children. There were however some concerns observed during the interview and observations of him interacting with the children.
68. [The Father] continued to have the same lack of flexibility of thought noted by Ms M in relation to the constraints the Court needs to take into account in assessing whether equal shared care living arrangements are in the best interests of the children.
69. [The Mother] continues to report a high level of fear in relation to [the Father’s] behaviour. There were IVO’s against him in relation to [the Mother] and a later de facto partner around the same time in September 2013. [The Father] denied violence in both relationships and had an extensive explanation for the IVO and breach of IVO in his subsequent relationship with [Ms D]. His explanation was tenuous as it involved extremely coincidental features.
70. It is noted that [the Father] has a warm and affectionate relationship with his children. Current research suggests that fathers who have a warm relationship with their children do not increase the benefit of their parenting for their children by increased time spent with them. This is especially so when the children have a loving and secure relationship with their mother. This means that children of warm and affectionate fathers benefit from the quality of time they spend rather than quantity of time compared with fathers who are more distant and less affectionate.
71. [The Mother] impressed as continuing to be fearful of [the Father] and subject to his tendency to “talk at” which she described as “badgering” and which was apparent during the interviews with [the Father]. [The Mother] presented as quiet and somewhat reticent or non-assertive. [The Father] presented as anxious and controlling in so far as he spoke over repeatedly during the interview. He checked himself and was able to correct himself indicating some learning from the courses and therapy he had undertaken but not sufficient to have changed the behaviour consistently. There are concerns that a requirement to negotiate directly about educational and major medical decisions will escalate the conflict between the parties and that it may escalate to include overt physical violence and threats.
72. There are concerns that increasing the time the children spend with their father to an equal shared care basis will provide further opportunity for conflict between the parties and impact the children negatively. The children’s best interests and needs are most likely to be met by spending each alternate weekend with their father from after school on Friday until return to school on Monday. Long telephone conversations are unlikely to add any advantage to the children’s interests, particularly at their chronological ages. However telephone calls which end according to their wishes once each week at an appropriate time after the evening meal may benefit them (provided it is not so late that they become tired and cranky).
Family Consultant Ms A recommended that the Mother have sole parental responsibility for the children’s education and major health decisions, that the children live with the Mother and spend time and communicate with the Father each alternate weekend from after school until return to school Monday morning, and by telephone one evening during the week (preferably on a Wednesday after 7.00pm), with such communication limited to 10 minutes unless the children wished to speak for longer (the Family Report at [73]-[76]). Family Consultant Ms A supported the children spending time with the Father on school holidays and other special dates in accordance with the current Interim Orders, but indicated that the Final Orders should clearly state when the time is to be suspended to take account of the special days. Family Consultant Ms A also recommended that any decisions made by the Mother about long term issues affecting the children should be conveyed to the Father in writing, and that, given the Mother’s literacy deficits, an agent may be required to convey information on the Mother’s behalf in writing, by telephone call or text message to reduce opportunities for conflict.
The applicable law
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Act.
When considering making a parenting order, the Court is to bear in mind the objects of the legislation and the principles underlying the objects, as set out in s.60B of the Act.
In deciding whether to make a particular parenting order in relation to a child, the Court must have regard to the best interests of the Child as the paramount consideration (ss.60CA and 65AA of the Act). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Subsection 61DA(1) of the Act provides that 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. This presumption does not apply if there are reasonable grounds to believe that a parent of the child (or person that lives with the parent or child) has engaged in abuse of the child or another child who was a member of the parent’s family or family violence (sub-s.61DA(2) of the Act). Moreover, the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child (sub-s.61DA(4) of the Act).
Where a parenting order provides that the parents are to have equal shared parental responsibility for the child, the Court must first consider whether it is in the best interest of the child and is reasonably practicable for the child to spend equal time with both parents and, if so, whether an order for equal time should be made (sub-s.65DAA(1) of the Act). Where the Court decides that it should not make an order for each parent to spend equal time with the child, it must then consider whether it is in the best interest of the child and is reasonably practicable for the child to spend substantial and significant time with each parent and, if so, whether an order for substantial and significant time should be made (sub-s.65DAA(2) of the Act). The meaning of substantial and significant time is set out in sub-s.65DAA(3) of the Act.
Before considering s.61DA of the Act and the legal pathway mandated where the presumption of equal shared parental responsibility applies, it is appropriate to consider s.60CC of the Act. Subsection 60CC(1) of the Act provides that in determining what is in the best interests of a child, the Court must consider the matters set out in sub-s.60CC(2) and (3) of the Act. Subsection 60CC(2)(a) of the Act specifies what are described as the primary considerations, and sub-s.60CC(3) of the Act sets out what are described as additional considerations.
Section 60CC of the Act – the best interest of the children
Primary considerations
Subsection 60CC(2)(a) of the Act – the benefit to the child of having a meaningful relationship with both of the child’s parents
I am satisfied that both parents love the children, and that they in turn love their parents. The evidence is that, whilst the parenting style may differ, both parents have a warm and affectionate relationship with the children. The Mother has been the primary caregiver for all of the children’s lives. I am satisfied that the Father engages in a range of activities that contribute to the children’s well-being and practical learning; such as making a billy cart, going to movies, working with them on his car and visiting his friends.
The Mother provides the children with an environment in which they are part of an extended family which enables the children to experience their diverse and rich cultural heritage. I accept the evidence of Family Consultant Ms A that the Mother also facilitates an environment in which education is highly valued.
In relation to the amount of time the Father spends with the children, the issue in dispute between the Father on the one hand and the Mother and the ICL on the other, is the time that the Father would spend with the children during the school term. The Father seeks orders that the children spend time with him during the school term from after school on Friday until the commencement of school on Tuesday. The Mother and the ICL propose orders that the children spend time with the Father during the school term from after school on Friday until the commencement of school on Monday, save for when Monday is a school holiday, in which case the Father’s time is extended to Tuesday morning (that is, the Father’s proposal provides for an additional night and an additional day during the school term).
The Father insists that his proposal for substantial and significant time with the children is the second best option for him in the context of a legal system that prevents him from having an equal time arrangement with the children, because of the Mother’s failure to communicate with him.
It is important to note that the adjective “meaningful” is a qualitative not strictly quantitative one: Mazorski & Albright [2007] FamCA 520 at [26].
The concept of “meaningful” was expanded on by Cronin J in Tait & Densmore [2007] FamCA 1383 at [170]:
170. … To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship. The responsibilities of parents are to give the children a chance to be part of a family albeit in two households where they can have a feeling of being wanted and appreciated.
I accept Family Consultant Ms A’s opinion, which remained unchallenged, that in circumstances where the Mother is the primary caregiver, that children of warm and affectionate fathers generally benefit from the quality of the time that they spend, rather than the quantity of time, compared with fathers who are more distant and less affectionate.
I am satisfied that, despite her difficulties in dealing with the Father, the Mother will facilitate a meaningful relationship for the children with the Father. The circumstances in which the Mother ceased the Father’s time with the children from mid-2013 until May 2015 when the Interim Orders were made on 29 April 2015 in these proceedings were, to say the least, dysfunctional and difficult. In my view, the Mother had a legitimate fear that the Father would relocate with the children to (omitted) based on his unilateral action in taking them to (omitted) where he had just commenced residing and over-holding the children, and based on information that she said she had received about the Father’s intentions.
In September 2013, the Father made a very serious threat to kill the Mother. The Mother alleges the Father sent her numerous denigrating texts. These were the basis for an Intervention Order made on 8 October 2013 and which expired on 1 November 2014. Towards the end of 2013, the Father’s ex-partner Ms D took out an Intervention Order against him, and the Father was involved in a very serious incident when he breached those Orders in November 2013 (see [71] above). The Father admits that he was not mentally well from September 2013, for a period of around eight months. The Father made one attempt to see the children at the Mother’s place in September 2013, during which the Father made the threat to kill. Otherwise, after the expiry of the Intervention Order, his first attempt to contact the children was when he initiated parenting proceedings on 14 January 2015. I am satisfied that the Mother has been compliant with all Interim Orders made during these proceedings, insofar as they concerned the Father’s time with the children.
I am not satisfied that the Father will facilitate a meaningful relationship with the Mother. When asked by Counsel for the ICL to identify positive aspects of the Mother’s parenting, the Father was unable to spontaneously identify any. This is consistent with the content of his affidavits in which he is consistently critical of the Mother’s role and her capacity to parent. In addition, I have accepted the Mother’s evidence that the Father denigrates her cultural heritage. This is consistent with Family Consultant Ms A’s observation that the Father does not regard her identification as an Aboriginal woman highly. The failure of the Father to demonstrate that he accepts the children’s cultural heritage as something that is in their best interests to connect with and maintain is of concern. The Father has nothing good to say about the Mother. These factors weigh against the Father spending substantial and significant time with the children, because there is no comfort that he would not expose the children to his views regarding the Mother herself and her cultural background. A further contraindication to the Father spending greater time with the children is the fact that it is more likely to expose the children to the parents’ high level of unremitting conflict. This cannot be in their best interests.
Notwithstanding the Father’s history of family violence or violence, I am satisfied that it is unnecessary to consider the need to protect the children from physical or psychological harm, save for their exposure to the parental conflict (sub-ss.60CC(2)(b) and (2A) of the Act).
Additional considerations
Subsection 60CC(3)(a) of the Act – 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
X was reluctant to be interviewed for the most recent family report, no doubt that because of her exposure to the parent’s ongoing conflict, together with the numerous interviews that she has been involved with as consequence of legal proceedings in this Court and DHHS investigations. Y expressed a wish to live with his Father “this much… 10 days”. I am satisfied that the children are not of an age where significant weight can be given to the views expressed by them.
Subsection 60CC(3)(b) of the Act – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
As noted earlier, the children have a close bond with both parents. I have indicated that I am satisfied that the proposed orders of the ICL and Mother will enable this to continue.
The evidence is that the Mother has a close extended family. The Father presently lives with his stepfather. Alternate weekend time during the school term and time for half of the school holidays with the Father will enable the children to continue any relationship that they have with their paternal grandfather.
Subsection 60CC(3)(c) of the Act – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about long term issues in relation to the child and to spend time with the child and to communicate with the child
Subsection 60CC(3)(ca) of the Act – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parents’ obligations to maintain their child
I have dealt with the circumstances which led to the Father not spending time with the children from July 2013 until May 2015. The evidence is that in July 2013, the Father relocated to (omitted). It is not clear when the Father returned to reside with his stepfather. The Father alleges that his time with the children ceased because of the Mother’s unilateral action in withholding the children from him.
I am satisfied that the Mother acted protectively to remove the children from family violence or violence, including through the application for an Intervention Order, and exposure to the Father’s mental health issues (as acknowledged by the Father) for a period of time. It is to be noted that, after September 2013 when he made a threat to kill the Mother, there is no evidence that the Father took appropriate steps to commence spending time with the children. As the Father pointed out, the Intervention Order made in favour of the Mother and children contained a provision that it was subject to Orders of this Court. The Father did not make an initiating application to spend time with the children until January 2015.
Since Interim Orders were made providing for his time with the children commencing in May 2015, the Father has taken the opportunity to spend time with the children. I have no doubt that he will continue to do so when Final Orders are made by this Court, and that the Mother will continue to facilitate the Father’s time with the children in accordance with the Final Orders.
It is evident that it has been the Mother who has made the decisions about long term issues, such as schooling and health, in relation to the children.
The Father paid to the Mother $30 per month for each child from around August 2009 to October 2011. The Father’s evidence is that, following communication with the Child Support Agency, he became aware that given his limited income from a disability pension, he was not obliged to pay child support to the Mother. He therefore ceased making contributions to the Mother. He says that he contributes to the maintenance of the children by purchasing clothes and toys, and taking them on various activities when they are in his care.
Subsection 60CC(3)(d) of the Act – The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child, or other person (including grandparent or other relative of the child), with whom he or she has been living
The proposed orders of the Mother and the ICL do not involve any substantive change from the most recent Interim Orders made on 25 September 2015. I have earlier accepted the concern expressed by Family Consultant Ms A that increasing the time spent by the Father with the children may well have a detrimental effect on them because it would increase the opportunity for the children to be exposed to the parental conflict.
Subsection 60CC(3)(e) of the Act – 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
I am satisfied that there will be no practical difficulty or excessive expense connected to either the Father’s or the Mother and the ICL’s proposed orders.
Subsection 60CC(3)(f) of the Act – the capacity of each of the child’s parents and 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
The evidence discloses that the Father has demonstrated a capacity to engage well with the children, in the context of a warm and affectionate relationship between them. Following her observation of the Father’s interaction with the children, Family Consultant Ms A opined that he was able to tune in and give positive and correct feedback to the children about some of the activities. However, this was subject to a concern regarding the Father’s continuing lack of ability to understand another’s perspective (in this instance, Y), when stressed in some way (see the Family Report at [47]).
A concern for the Court is the Father’s persistence in involving the children in Court proceedings through their attendance upon medical practitioners at his medical clinic. The Father fails to understand that this conduct has an adverse impact on the children’s well-being.
The ICL and the Mother propose orders which restrain the Father from taking the children to a doctor, medical professional, social worker or the like, other than the medical practitioner/s nominated by the Mother, save in the case of a medical emergency involving a physical injury.
In my opinion, the Father has involved Dr J and another general practitioner from the medical clinic that he attends upon inappropriately in these proceedings. I am not satisfied that the reports by the doctors were obtained from the children without any prompting or discussion about the protective concerns with the Father first. The most recent report made to the DHHS in May 2017, after the Father took X to attend on a general practitioner at the clinic that he attends, mirrors earlier reports made to the DHHS which were investigated and closed. In my opinion, there is an unacceptable risk that the Father will continue to involve the children in the conflict between the parents by taking them to general practitioners at his medical clinic, not for the purpose of attending on medical issues, but in order to manipulate reports made to the DHHS. The Father said that he would not comply with any Order restraining him in the manner proposed by the ICL and, indeed, would appeal such an Order.
There is no practical difficulty with the Father taking the children, other than for medical emergencies, to the clinic which the children attend with the Mother. According to the Father’s evidence, the clinic which the children attend with the Mother is a 15 to 20 minute drive from where he lives. It appears from the Father’s evidence that he simply mistrusts the general practitioners at the clinic where the children attend when in their Mother’s care.
Due to the unacceptable risk that I have identified, I am satisfied that it is in the best interests of the children to include the restraint sought by the ICL in the Final Orders.
The Mother has provided for the children’s needs since birth. As noted earlier, she has provided a home environment where education is highly regarded and where the children experience a rich and diverse culture, where family and extended family relationships are maintained and encouraged.
Subsection 60CC(3)(g) of the Act – 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
These factors, so far as they are relevant, have already been considered.
Subsection 60CC(3)(h) of the Act – 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
The children are of Aboriginal descent and their right to enjoy their Aboriginal culture is facilitated in the Mother’s home. The proposed orders of the Mother and ICL will continue to facilitate this. The Father needs to ensure that when the children are in his care, he is respectful of their Aboriginal descent. The Mother and the ICL’s proposed order (which is agreed to by the Father) that the children’s time with the Father during the June/July school holiday time be outside of the NAIDOC week to enable children to take part in community activities in relation to their Aboriginal heritage. Clearly, such an order is appropriate and in the best interests of the children.
Subsection 60CC(3)(i) of the Act – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The parties have fulfilled the responsibilities of parenthood in circumstances where they have, in accordance with Interim Orders in these proceedings, been able to maintain a regime which has supported and developed a relationship between the children and the Father.
The ICL and the Mother’s proposed orders will enable the Father to fulfil the responsibilities of parenthood. As noted earlier at [88] and [102], fulfilling this responsibility, in circumstances where the Father has a warm and affectionate relationship with children, is not enhanced by additional time, but by the quality of the time that the Father spends with the children. The evidence is that the Father spends quality time with the children.
Subsection 60CC(3)(j) of the Act – any family violence involving the child or a member of the child’s family.
Subsection 60CC(3)(k) of the Act – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the Court in, or in proceedings for, the order, and any other relevant matter
The family violence and violence engaged in by the Father towards the Mother, together with the making of Interim Orders for the protection of the Mother and children has already been discussed earlier (above at [59]-[78]).
As I have earlier stated, the orders proposed by the Father in relation to his time with the children during the school term gives rise to a concern that the children will be exposed to further parental conflict, which may include denigration and abuse of the Mother. The orders proposed by the ICL and the Mother reduce the opportunity for this to occur in the future.
Subsection 60CC(3)(l) of the Act – 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.
The children have unfortunately been exposed to extensive litigation in earlier proceedings during 2011 and 2012, and during the course of these proceedings which commenced in January 2015. They have been further exposed to the interview process associated with numerous reports made to the DHHS, all of which (at least until June 2016) were closed on intake. Another report was made to the DHHS in May 2017 with the protective concerns apparently mirroring those concerns that have earlier been raised, and which the DHHS had previously concluded do not raise protective concerns for the children in the Mother’s care.
Clearly, it is in the interests of the children that litigation cease and that orders are made which are least likely to lead to the institution of further proceedings in relation to the children. The orders proposed by the ICL and the Mother are detailed and are designed to avoid confusion between the parties as to their interpretation. I am satisfied that they facilitate the objective of reducing any further litigation.
Subsection 60CC(3)(m) of the Act - any other fact or circumstance that the Court thinks is relevant.
There are no other facts or circumstances which the Court thinks is relevant to these proceedings.
Section 61DA and s.65DAA of the Act
As noted earlier, the presumption of equal shared parental responsibility does not apply if there are reasonable grounds to believe that a parent of the child (or person that lives with the parent or child) has engaged in abuse of the child or another child who was a member of the parent’s family or family violence: s.61DA(2) of the Act. Moreover, the presumption may be rebutted by evidence which satisfies the Court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child: s.61DA(4) of the Act.
It is appropriate to set out the obligations that flow from an order that the parents have equal shared parental responsibility. Section 65DAC of the Act provides:
65DAC Effect of parenting order that provides for shared parental responsibility
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
The ICL and the Mother propose orders that the Mother have sole parental responsibility, whilst the Father proposes orders that the parents have equal shared parental responsibility for the children. I am satisfied that on the evidence, the presumption of equal shared parental responsibility is rebutted.
There is no dispute that the parties do not communicate at all. The Father says that this is because the Mother chooses not to communicate with him, and that she should not be rewarded for her behaviour. In my opinion, there are sound reasons why the Mother does not engage in communication with the Father.
The reasons the Mother gives is that he is overbearing and she is scared of him. I am satisfied that the Father’s threat to kill, made in September 2013, caused the Mother to be fearful of him, and that she continues to be fearful of him. The Father conceded that he raised his voice with the Mother, and in fact has deposed in his affidavit material that there was a period after September 2013 for around eight months where he yelled a lot. The Father’s evidence that a raised voice (in other words, yelling) would not have any effect on the person to whom the raised voice was directed is concerning to the Court. During the proceedings, the Father demonstrated difficulty in controlling the volume and tone of his voice.
The Father also regularly resorted to talking over Counsel during cross-examination, and talking over myself. This was a feature of the Father’s conduct observed by Family Consultant Ms A in the Family Report (see the Family Report at [71], set out at [88] above), which raised concerns in her mind about the Father’s ability to negotiate directly with the Mother.
It is apparent from the Father’s evidence during proceedings that he has little or no respect for the Mother. Without any provocation, he suggested that the Mother could acquire some maturity and communicate with him if she was “struck by a bolt of lightning”. It is evident that the Father still cannot consider the Mother without resort to commentary which, in its content, is violent. I accept the Mother’s evidence that she is unable to engage in communication with him because he is overbearing and she is scared of him. The Father’s conduct in Court, when confronted with questions he did not like, was excessively and unnecessarily argumentative. The Father made it plain that he was making an effort to be polite and respectful in Court, and stated that he would not do so outside of Court.
The Father denied that the Mother is a quiet and reticent person who may have been threatened by this behaviour. Although the Mother was cross-examined for a short period of time, she presented as a quiet and reticent person. There could not have been a more stark contrast between the Father’s behaviour and the Mother’s demeanour. Taking into account the Father’s argumentative and belligerent behaviour towards Counsel for the ICL and Counsel for the Mother during the proceedings, it beggars belief that the Father would not engage in this sort of behaviour when discussing with the Mother long term issues affecting the children. I am satisfied that the Father would be unable to consult genuinely with the Mother, but rather, would aggressively attempt to assert his opinion in attempt to force the Mother to agree with his point of view.
I agree with the opinion of Family Consultant Ms A (the Family Report at [71]). I am satisfied that there is a serious risk that, were the parties required to negotiate directly about long term issues affecting the children, the conflict between the parents would escalate, and may include overt physical violence or threats. Family Consultant Ms A observed that the children (in particular, X) have been aware of their parents’ conflict. Clearly, an escalation in the conflict would not be in the best interests of the children. Family Consultant Ms A suggested that any Final Orders should include the requirement that the Mother communicate to the Father, major decisions that she has made regarding educational and major health issues. I agree such a requirement is appropriate to be included in the Final Orders. I appreciate that it may be difficult for the Mother herself to communicate her decisions in written form. The Mother will need to seek assistance from friends and family, and from within her community, for the purpose of conveying any such decisions in writing to the Father.
As I am satisfied that the presumption of equal shared parental responsibility is rebutted, I will order that the Mother have sole parental responsibility for the children. I will also order that the Mother inform the Father, in writing, within 14 days of any decisions of a long-term nature, which affect the children’s education and health.
As an Order for equal shared parental responsibility will not be made, the Court is not required to follow the legal pathway mandated by sub-ss.65DAA(1) and 65DAA(2) of the Act as described above.
I will consider which of the proposals for time with Father would be in the best interests of the children. I accept that the Father has a loving, warm and affectionate relationship with the children. I accept that in these circumstances, as pointed out by Family Consultant Ms A, it is not the length of time that the children spend with Father, but the quality of the time that the children spend with the Father that will benefit the children.
I am satisfied that during the school term, the children’s best interests are served by the Father spending time with them each alternate week from Friday after school until Monday before school, or until Tuesday morning if Monday is not a school day. This proposal maintains the quality of the relationship between the Father and children, and therefore will facilitate a meaningful relationship with the Father. I am satisfied that during the school term it will be in the best interests of the children to spend half of the school holidays with the Father.
There are clearly benefits to children spending longer periods of time with each parent during the long school holidays; for instance, the ability to enjoy travel. Given the circumstances in this case, and taking into account the ages of the children, I am satisfied that an arrangement that is in the best interests of the children is one which provides that the children spend a two week block of time with the Father, then the children spend two weeks in the Mother’s care, after which the children spend one week with the Father and the next week with the Mother. The commencement of the block time would appropriately alternate each year. I will so order.
There was some dispute about the impact of school term holidays on the arrangement of alternate weekend time during the school term. I am satisfied that, upon the commencement of school holidays, alternate weekend time be suspended and should recommence on the first weekend of the new school term, after the school holidays have finished.
The Mother sought a prohibition on the Father’s attendance at the school in the HOL Program. Given the Father’s assertion in evidence that he can do anything that any other parent can do with their children at school, I understand her concern. I make it clear that the Father cannot do anything that any other parent can do with their children at school. Clearly, the Order that he relied on was referring to the attendance or participation by the parents at school functions. The ICL and the Mother’s proposed Orders clarify this issue.
The DHHS reported concerns that Y at least was distracted by his Father’s presence. I am unable to find, however, that this is an ongoing concern, or that it was in fact resolved as between the Father and the Principal or Assistant Principal of the children’s school. The Father naturally resists any restrictions on his involvement in the HOL Program at the children’s school.
After careful consideration, I have formed the view that is in fact in the best interests of the children that the Father be permitted to continue his voluntary participation in the HOL Program at (omitted) School, on both the Monday and the Tuesday of each week. The evidence is that the Father is a valuable contributor to the program. In my view, it is beneficial for the children to experience this positive role modelling by the Father. That is, that the children are aware that he contributes on a voluntary basis to a program which is of benefit to the secondary school students.
I do have some concerns that the Father fails to appreciate the necessity, when he is attending the school for this program, of taking all reasonable steps to avoid the children being aware of his presence and certainly of avoiding contact with the children at any time during the school day on Monday and Tuesday.
On balance however, I am satisfied that the best interests of the children are served by the Father continuing to participate in the HOL Program on Monday and Tuesday. I am conscious of the necessity of crafting Orders which will make it clear to the Father that he does not have an unlimited access to the school grounds, other than in accordance with the Orders.
The ICL proposes a communication book be kept by the parties. I am not satisfied, given what appears to be the Mother’s apparent literacy difficulties, that this is a workable order. There is a mobile phone application that can be downloaded called “MyMob”, which has been developed for the purpose of facilitating communication between parents. I will not order the parents to utilise this application, however would encourage them to consider utilising it as a means of communication.
Conclusion
For the reasons set out in this judgment, I make the Final Parenting Orders in relation to the children.
I certify that the preceding one hundred and fifty-four (154) paragraphs are a true copy of the reasons for judgment of Judge Jones
Date: 12 September 2017
Key Legal Topics
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Civil Procedure
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Administrative Law
Legal Concepts
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Judicial Review
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Jurisdiction
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Standing
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Procedural Fairness
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Natural Justice
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