Chalmers and Chalmers
[2015] FCCA 2103
•7 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHALMERS & CHALMERS | [2015] FCCA 2103 |
| Catchwords: FAMILY LAW – Parenting – Children aged 12 & 10 living in different households – where the father’s extreme anger over the marriage breakdown has turned the 10 year old against the mother and the 12 year old against the father – where the children should be reunited in the mother’s care – difficulty of ensuring that the 10 year old remains with the mother while he adjusts to the change when the parties live in a country town. |
| Legislation: Family Law Act (Cth), ss.60CC, 61DA, 65DAA |
| Cases cited: Mazorski & Allbright (2007) 37 Fam LR 518 |
| Applicant: | MS CHALMERS |
| Respondent: | MR CHALMERS |
| File Number: | NCC 1484 of 2014 |
| Judgment of: | Judge Terry |
| Hearing dates: | 29 & 30 June & 1 July 2015 |
| Date of Last Submission: | 1 July 2015 |
| Delivered at: | Armidale |
| Delivered on: | 7 August 2015 |
REPRESENTATION
| Counsel for the Applicant: | Mr Kelly |
| Solicitors for the Applicant: | Bridge Street Lawyers |
| The Respondent: | In person |
| Solicitor Advocate for the Independent Children’s Lawyer | Mr Broadhurst |
| Solicitors for Independent Children’s Lawyer: | Legal Aid NSW |
ORDERS
(1)The mother shall have sole parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2004 (“the children”);
(2)The children shall live with the mother;
(3)The children shall spend no time and have no communication with the father;
(4)Pursuant to s.68B of the Family Law Act the father is restrained and an injunction is granted restraining him from:
a)removing or attempting to remove the children from the mother’s care;
b)attending at the children’s schools.
c)removing or attempting to remove the children from their school or from any extra-curricular activity, hospital, medical assessment or counselling session and from the care of any person in whose care the mother has placed them.
IT IS NOTED that publication of this judgment under the pseudonym Chalmers & Chalmers is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
FEDERAL CIRCUIT COURT |
NCC 1484 of 2014
| MS CHALMERS |
Applicant
And
MR CHALMERS
Respondent
REASONS FOR JUDGMENT
Introduction
Ms Chalmers and Mr Chalmers separated in August 2013. Until April 2014 their children X and Y lived with the mother but currently X, 12, lives with the mother and Y, 10, lives nominally with the paternal grandparents but on weekends at least with the father.
The father is extremely angry with the mother over the marriage breakdown and harbors a vitriolic hatred for her and he has exposed Y to this anger and hatred. Y is convinced that the mother is a slut who has AIDS and whose new partner is diseased.
As a result Y is refusing to see the mother and X, who is strongly attached to the mother, is refusing to see the father.
The mother seeks orders that both children live with her so that the siblings are reunited and so that Y is rescued from the harm being inflicted on him by the father. She proposes that the children spend no time with the father.
The father seeks orders that both children live with him, the unspoken subtext being that this is necessary to save the children from exposure to the mother’s degraded moral character. At trial he proposed that the children spend time with the mother at a Contact Centre although he said that he was prepared to agree to more liberal arrangements for X.
For reasons which will become clear as this judgment unfolds, I could not possibly make an order that the children live with the father. Even if this could be facilitated in the face of X’s opposition to it the father’s extreme hostility to the mother means that if the children lived with him they would both become emotionally damaged and Y’s relationship with the mother would never be repaired.
It is in the children’s best interests that they live with the mother. There is no guarantee that if they do so they will thereafter have a relationship with the father let alone a good relationship with him but this is not because the mother will do anything to impede it for no good reason but because of the father’s attitude and behaviour. If the father ever becomes willing to seek help to deal with his issues arising out of the separation the situation could be different.
However while the outcome of both children living with the mother would be in the children’s best interests, Y is strongly aligned with the father and an attempt to remove him from the father’s care in March 2015 failed after only one day. The parties live in a country town and the challenge in the case, as the mother, the Independent Children’s Lawyer and the Family Report Writer all recognised, is how to successfully restore the situation of both children living with the mother.
I go so far as to say that I am concerned that making an order removing Y from the father could lead to tragedy but I cannot refuse to act.
The evidence
At trial the mother relied on her affidavit and the affidavits of her mother Ms P, her brother Mr P and her partner Mr K.
The father relied only on his affidavit. He annexed to it statements from each of the paternal grandparents. These were struck out but the father was informed that he could call the paternal grandparents to give evidence in which case they could rely on their statements. The father declined to do so even though the paternal grandfather was present at court during the hearing.
A Family Report was prepared by Ms K, a Regulation 7 Family Consultant.
All of the witnesses were cross-examined.
Background
The mother and father were both brought up as (religion omitted) and they met through the church when the mother was 16 and the father 31. They married two years later and they have two children, X born on (omitted) 2003 and Y born on (omitted) 2004.
Throughout the marriage the parties lived in (omitted) where the father has a (omitted) business. The father worked full time in the business and until April 2013 the mother’s only employment was helping out in the business.
In 2013 the parties agreed that one of them needed to obtain paid employment to supplement the income from the business and in April 2013 the mother commenced work at (employer omitted) as an (occupation omitted).
After the mother commenced work she began an affair with a co-worker. The father found out about this in August 2013 as a result of seeing messages on the mother’s phone and he was understandably extremely upset.
The parties did not immediately separate but on 25 August 2013 they had a bitter argument during which the father called the mother a slut and told her to take the children and get out of his house.
Over the course of the next hour or so the mother packed up some things for herself and the children while the father yelled abuse, punched a hole in the wall and kicked a wall.[1]
[1] This was the mother’s evidence and I accept it. The mother was not an entirely reliable witness; cross-examination by the father and Independent Children’s Lawyer demonstrated for example that she had overstated the extent to which she worked in the (omitted business). However her evidence about the events which happened on the day of separation was not successfully challenged and the father’s evidence lends credence to it.
As the mother walked out of the house and down the front steps the father pushed her in the back and she stumbled down 2-3 steps.
The father disputed that he pushed the mother and that she stumbled down several steps but X told the Family Consultant that this occurred and the father while denying it said as follows in his trial affidavit:
I did think about pushing her down the steps but then I thought Ms Chalmers(sic) might get hurt so I just touched her firmly on the back showing her how vulnerable she was – she didn’t even stumble but she did turn around and lear(sic) at me.[2]
[2] Father’s affidavit filed 29 June 2015 paragraph 103.
The mother said that after she left the house and got in the car with the children:
I had no idea what I was going to do. For the first time in my life, I was completely on my own. I felt panicked and frightened.[3]
[3] Mother’s affidavit paragraph 195.
This is entirely understandable. The mother had lived with her parents in (omitted) until she married the father at the age of 18. The father is 15 years older than her and during the marriage he controlled the finances and allocated the mother a set amount each week for housekeeping. After the mother started work at the (employer omitted), her wages were paid into a joint account but the father transferred all of the money out except for the set amount each week which he allowed the mother for housekeeping.
The father agreed during cross-examination that he regarded himself as the captain of the ship and the person who had the last say when decisions had to be made.
The mother had to find somewhere to stay and the first thing she did was to drive to (omitted) with the children and spend two nights there in a cabin in a caravan park. In what can only be viewed in hindsight as a major error of judgment on the mother’s part, on the first night she allowed the co-worker with whom she had been having the affair to spend the night with her while the children slept in the other room.
After spending two nights in (omitted) the mother drove to (omitted) where her friend Ms I and her husband lived. Ms I agreed to put the mother and children up and the mother enrolled the children in school in (omitted). She obtained a job as a (occupation omitted) and after a period of time she moved out of Ms I’s home into her own accommodation.
The mother rang the father to tell him that she was in (omitted). He was able to speak to the children on the telephone regularly and he visited (omitted) several times.
The father spent some short periods of time with the children in (omitted) and the mother brought the children to (omitted) on several occasions so that they could see the father. However the father’s focus was not on seeing the children but on trying to get the mother to return to the marriage and she found his behaviour very difficult to deal with. He sent her text messages saying that she was a bad person and needed to come home and he often refused to spend time with the children unless the mother accompanied them, on one notable occasion refusing to take the children on a promised visit to an (omitted) after the mother refused to go as well.
The father was confrontational with the mother in person. She gave evidence which I accept about an occasion when the father followed her in his car, tried to grab the GPS from her car to find out where she was living in (omitted) after she moved out of Ms I’s home and grabbed and bruised her arm trying to prevent her from leaving.
While the mother was in (omitted) she discovered that there were loans and credit cards in her name to the tune of about $70,000.00. One of the debts was attached to her car and threats were made to repossess it.
The mother asked the father to help with the debts, asserting that most of them were in reality debts of the (omitted) business, but he refused to assist her. He said in evidence that he did this because:
She had to realize it was hard in the world. I thought if she had to service these loans it might help her to see that it might be better to reconcile.
The mother found that she could not earn enough to support herself and the children and make debt repayments in (omitted) and in November 2013 she moved back to (omitted) and resumed working at the (employer omitted) where her position had been held for her.
The (omitted) job involved shift work and the mother struggled to care for the children after she returned to (omitted). The father’s focus continued to be on getting the mother to return to the marriage and not on spending time with the children or assisting with their care and toward the end of the 2013 school year, the mother’s parents in (omitted) offered to have the children live with them for a while so that the mother could work as much as possible to try to clear the debts.
The mother took up the offer and the children were enrolled in school in (omitted) and by the beginning of the 2014 school year were established in (omitted) at the home of the maternal grandparents. (omitted) is about two hours from (omitted) and the mother spent time with the children as often as she could.
The mother informed the father of what she had arranged. He did not offer to take the children but told her that it would not work and that the children would end up hating her.
On his own evidence the father made limited efforts to see the children while they lived in (omitted). He said as follows in his trial affidavit:
I didn’t see the children during this period much because they were at her parents’ house in (omitted). I did spend time with the children as well when I was told they were over here, but the key to the children’s future was for me and Ms Chalmers to work this out and get back together – so I did concentrate on her.[4]
[4] Father’s affidavit filed 29 June 2015 paragraph 105
When the father did see the children it was usually because the mother brought them to (omitted) but X became increasingly resistant to speaking to the father which the father blamed on the influence of the maternal grandparents and only Y spent time with the father.
After the mother returned to (omitted), she became friendly with Mr K, an acquaintance whom both the mother and father had known for more than ten years. Mr K was separated from his wife and the mother began socializing with him.
From March 2014 onwards the father sent the mother a barrage of threatening and abusive text messages, calling her names such as whore and slut, telling her that she had committed adultery and was diseased and a bad and unfit mother, insisting that X “come home” and referring to the maternal grandmother as her IDIOT mother and Mr K as “disease dick” [5]
[5] Exhibit B
The separation of the siblings occurred in April 2014. Y spent time with the father at the commencement of the April 2014 school holidays. By agreement between the parents the father was due to drop him back to (omitted) on Sunday 13 April 2014. However that weekend the father happened to drive past Mr K’s property and saw the mother and X in Mr K’s car. He was devastated; despite the barrage of overbearing, offensive and abusive text messages he had until then believed that there was some hope of reconciliation. When he saw the mother and X with Mr K he realized that this was not going to happen.
The father did not return Y to maternal grandparent’s home on 13 April 2014 as had been agreed and the mother was unable to contact him. She contacted the police and they found the father and Y in (omitted) on 15 April 2014.
Shortly afterwards the father returned to (omitted) and kept Y in his care.
In yet another regrettable turn of events, and possibly because this incident occurred at the start of the Term 1 school holidays, the mother did not make any immediate effort to retrieve Y. However she did make arrangements for X to commence living with her and Mr K in (omitted) and at the commencement of Term 2 she enrolled him at (omitted) Public School.
The mother contacted the father at the beginning of the new school term to ask whether Y was attending school and the father said that Y was not at school and that he intended to home school him. Y did not attend school during Term 2, 2014. When Ms K asked the father why this occurred he said that it was because:
He was so upset and I was in a bad state.
The father refused all the mother’s requests to see Y and while he permitted X to speak to Y on the telephone, the mother said and I accept that on the few occasions she was able to speak to Y, the father would intervene as soon as he was aware it was happening and she could hear him saying to Y in the background:
Tell her to piss off
Tell her she’s a slut
X refused to visit the father and spent no face to face time with Y.
In May 2014 the mother sought legal advice and on 12 June 2014 she filed an application seeking orders that Y and X live with her. However due to inadvertence the mother failed to attend court on the first return date of 27 June 2014 and the matter was adjourned to 1 August 2014.
At some point during Term 3 2014, the father enrolled Y at (omitted) Public School in (omitted).
On 1 August 2014 (by which time Y had been with the father for nearly four months) an Independent Children’s Lawyer was appointed for the children and orders were made for the children to spend time with each other at the home of the paternal grandparents on two designated Sundays. The orders allowed the mother and father to each remain for two hours with both children during separate time periods.
Neither of their visits was a success.
On the first occasion X refused to get out of the mother’s car.
On the second occasion he got out of the car and began talking to Y and the mother was able to speak briefly to Y but the paternal grandparents became angry about the fact that the mother had brought her brother Mr P with her and kept saying that this was not permitted by the court orders and demanding that he leave. The police were called and they attended at the paternal grandparents’ property but there was nothing they could do to resolve the dispute between the mother and paternal grandparents. The mother was not willing to leave X at the property without Mr P being present and eventually took X away.
The father did not spend time with X on either occasion.
The father continued to send the mother offensive and threatening text messages. On 25 August 2014, the day after the second abortive visit at the paternal grandparents home, he sent the following message:
I hate you! U have no honour or dignity. U truly r an abhorent slut bitch hoare. I hope God gets you sooner or later. Only an absolute Moron would do what uv done! I told you some things u can run from and some u can’t. I hope Mr K doesn’t have a police record, how’s the intimacies going????? Lololol U fucking dirty bitch!!!!!!!!!!!!!!![6]
[6] Mother’s affidavit paragraph 392.4
The father did not hide what he was doing from Y. One message he sent to the mother began:
Y wanted to know what I just sent u, so I read it to him. I swear without provocation he said that he couldn’t wait til he’s older so he can go and beat u up on ur porch – I don’t know why the porch. And then he said that he wanted to beat grandma up as well. R u proud of this world uve created…..[7]
[7] Mother’s affidavit paragraph 393
The mother reported the offensive threatening text messages to the police and in August 2014 the police applied for an Apprehended Domestic Violence Order (ADVO) on the mother’s behalf and a 12 month order was made. The mother said that until the police applied for the ADVO she was receiving up to 20 text messages a day from the father.
When the parenting matter was next in court on 9 October 2014, orders were made for some visits to take place at (omitted) Children's Contact Centre, again with a view to each parent seeing the child who did not live with them and the children seeing each other. However the parties were informed that the Contact Centre could not start visits until January 2015 and an agreement was reached between the parties’ solicitors for time to occur supervised by a private supervisor.
Visits involving the mother X and Y occurred on 25 October 2014, 8 November 2014 and 22 November 2014 and a visit occurred between the father and X and Y on 1 November 2014. The father cancelled the visit for himself and the children scheduled for 15 November 2014.
The supervisor’s notes confirm that the first visit between the mother and X and Y on 25 October 2014 went well.
The visit between the father, X and Y on 1 November 2014 did not go well and ended early. X walked away from the father and Y complaining that they were “talking rubbish.”
The visit between the mother, X and Y on 8 November also did not go well. The mother’s evidence was that Y said things to her such as “Why did you do this? Why did you break up the family? You have been slutting around. Does Mr K have aids or Hep C?” The mother said and I accept that these were all things which the father had said to her either personally or in text messages.
The father cancelled the next visit between himself and the children.
The mother’s next visit with Y on 22 November 2014 also did not go well. She said as follows:
During that contact visit Y’s behaviour escalated. Y went from saying things such as “You know you have wrecked the family?” to becoming physically obstructive in relation to the contact visit occurring at all by attempting to leave, Y threatening to call the police, threatening to punch the supervisor. The most heartbreaking part of the contact visit was when Y said to me words to the effect “You don’t love me anymore, I know. You hurt me more than a belt buckle.”
Y threatened the mother with a chair and later threw a chair at her hitting her wrist.
No further supervised visits took place.
On 26 November 2014 the parties attended interviews for the family report and the report was released in January 2015. Following the release of the report, in which the Family Report Writer expressed grave concerns for Y’s well being, the mother filed an application in a case seeking an order that Y be removed from the father’s care.
In the report the Family Report Writer expressed the opinion that placing Y directly with the mother might fail. She recommended that he be transitioned into the mother’s care. The mother sought an order that Y be placed either with her brother Mr P in (omitted) or her mother Ms P in (omitted). The father opposed the application.
In hindsight given the way the matter played itself out placing the child in (omitted) may have been preferable but on 9 March 2015 after hearing argument an order was made placing the child with Mr P. An order was also made that the father have no contact with Y until further order.
The father delivered Y to Mr P’s home as he was ordered to do. The mother had taken X to Mr P’s home prior to Y arriving. Y was aggressive toward Mr P and used his mobile phone to call the police. The police attended but left after ascertaining that Y was safe and well but unfortunately as Y re-entered Mr P’s house, he fell backwards and hit his head. According to Mr P Y picked himself up and seemed to be alright.
The mother went to Mr P’s home later that evening and spoke to Y. She said that she was able to settle him and that he displayed no aggression toward her. She left after Y and X went to bed. Y woke and vomited during the night but went back to bed.
In the morning Y began asking to see the father but he settled.
The mother was working that day and met Y, X and Mr P for lunch.
That afternoon Mr P walked with the boys with the intention of taking them to Legal Aid Office in (omitted) to meet the Independent Children’s Lawyer. However on the way he gave in to Y’s request to be able to visit his favourite takeaway which just happened to be within walking distance of the father’s business. As they neared their destination, Y ran off and ran into the father’s business.
Y told the father that he had fallen over the previous night at Mr P’s home and hit his head and the father took him to (omitted) Hospital. The paternal grandparents met the father there. Mr P also went to the hospital when he discovered where Y was but Y insisted on leaving with the paternal grandparents and they facilitated him doing so.
At the next mention of the matter a decision was made to conduct an expedited final hearing. The earliest available dates were 29 & 30 June and 1 July 2015.
At the hearing the father said that Y was residing with the paternal grandparents but that just prior to the commencement of the hearing he had begun spending weekends with him.
Y has continued to attend school since 10 March 2015 and it emerged at the hearing that he was enrolled in a program at (omitted) Family Relationships Centre called Youth Hope although it is unknown to me how this came about.
Y has not seen the mother or X since 10 March 2015.
The children’s best interests
Any orders I make must be orders determined by treating the children’s best interests as the primary consideration and s.60CC(2) & (3) of the Family Law Act1975 contain the matters to which I must have regard in order to determine the children’s best interests.
The primary considerations in s.60CC(2) are as follows:
a)the benefit to the children of having a meaningful relationship with both of the children's parents; and
b)the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family vviolence.
S.60CC (2A) provides that in applying the considerations in s.60CC (2) the court is to give greater weight to the considerations in s.60CC (2)(b).
X has a meaningful relationship with his mother at the moment, in other words a relationship which is significant valuable and important to him.[8]
[8] Mazorski & Allbright (2007) 37 Fam LR 518
X does not have any relationship with his father at the moment, let alone a meaningful relationship but trying to force X to see the father by means of court order will not change that. The only thing which will change that is the father changing his attitude to the mother.
Y does not have a meaningful relationship with his mother at the moment and if he remains with his father that is unlikely change. The father is very angry with the mother and takes pleasure in Y rejecting her.
Y is spending time with the father and has a relationship with him but that relationship is not valuable to him. The father is swamped by his own feelings and has completely lost sight of Y as an individual. He is not nurturing and guiding Y, he is forcing Y to see the mother as he does and is inflicting psychological harm on him.
As for the second primary consideration, the father exposed the children to family violence when he punched walls and pushed the mother on the day of separation. However he must have been under considerable emotional strain that day and if that was all and the father was remorseful, it would not be the end of the world.
However since separation the father has sent the mother vast numbers of abusive, offensive and threatening text messages and these constitute family violence in the form of repeated derogatory taunts. He continued to do this until the police applied for an ADVO on the mother’s behalf.
The father’s anger toward the mother is as strong now as it was when the parties separated. He feels no shame about his abusive and threatening behaviour and he has permitted Y to read some of the text messages. The children will be exposed to family violence in the care of the father.
The children are not likely to be exposed to abuse neglect or family violence in the care of the mother.
There was an occasion when after a telephone call between the mother and the father the mother did not properly terminate the call at her end. The father listened in for a lengthy period (and put the phone on speaker so Y could hear). He heard words and noises which he considered to be Mr K being threatening and abusive. The mother said that it was nothing of the sort and that Mr K and some children were running around playing with Nerf guns and being generally very noisy. I have no reason to doubt this evidence.
I must also have regard to additional considerations in s.60CC (3).
The first is the views of the children and the weight to be given to these views.
The children’s views are clear. X wants to live with his mother and wants nothing to do with the father and Y is hostile to the mother.
I would not be inclined to override X’s views given the father’s attitude to the mother.
X told Ms K that he wanted Y to return to live with him and the mother.
Y’s views are based on a false belief about the mother and I cannot place weight on his views in determining what should happen for the children.
I must consider the nature of the relationship of the children with each of their parents and with any other person including a relative of the child.
At present X has a good relationship with the mother and Y has no relationship with her but that is not the end of the matter.
The mother was historically the children’s primary carer and I am satisfied that they had a good relationship with her historically. X continues to have a good relationship with her, and there was no evidence that Y was ever abusive to the mother prior to the father unilaterally retaining him in April 2014, even after the separation in August 2013. Y has a strongly negative view of the mother at present as a result of information fed to him by the father.
The mother’s opinion was that her relationship with Y could be easily restored if an order was made that he live with her. She said that he was responsive to her the night she went to Mr P’s place and that the first visit supervised by a third party went well.
It is very difficult for me to assess whether the mother is being unduly optimistic and whether other pressures such as exposure to Mr K might cause Y’s placement with the mother to fail.
X has no relationship with the father at present and as mentioned earlier, while Y does have a relationship with him it is not a healthy relationship. It depends on Y accepting and acting on the father’s hostile and negative view of the mother.
The mother claimed that historically X was less close to the father than Y. The father disputed this but both the father and the mother allowed X to not spend time with the father in the months prior to the father retaining Y, suggesting some tacit agreement between them that X should not be forced to spend time with the father which gives some credence to the mothers view about X’s relationship with the father historically.
Ms M, a counsellor who saw X in October 2014 reported X as saying:
My Dad was always angry and I don’t think he liked me very much. He only liked Y.[9]
[9] Family Report paragraph 114
However it is difficult to form a concluded view about the father’s relationship with X historically because so much may have been skewed by the father’s hostile behaviour since separation.
It was the mother’s case that the maternal grandparents had historically had a reasonable relationship with the children. The maternal grandmother gave evidence at the hearing and said that this was also her view.
The father questioned whether the children ever had a good relationship with the maternal grandparents and whether they were happy to stay with them in the early part of 2014. However he is hostile to the maternal grandmother and the evidence which emerged during the hearing suggested that he had historically had a negative view of her and avoided interacting with her. The father’s evidence about the children’s relationship with the maternal grandparents cannot be treated as reliable.
The paternal grandparents did not give evidence even though Y had, according to the father, been living with them since he ran away from Mr P in March 2015. The reports made by both parties about the unsuccessful visits in August 2014 suggest that they have strongly taken the father’s side in the dispute. X does not have a relationship with them at present and it is impossible for me to assess the nature of Y’s relationship with them.
X appears to have a good relationship with Mr K. There was no evidence about whether Y met Mr K before the rift in April 2014.
The children are close in age and have historically had a good relationship with each other. There are numerous indications in the material that the children miss each other, for example Y tossing a toy for X through the car window during one of the abortive visits at the paternal grandparents’ home in August 2014.
Ms K stressed the importance of the sibling bond and of the children not being separated unless there were exceptional reasons.[10]
[10] Family Report paragraph 125
I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with or communicate with the children or make decisions about the children.
The father allowed the children to go with the mother at separation in August 2013 and while he spent some time with them after this, his primary interest was in seeing the mother and trying to get her to resume the relationship.
The father on his own efforts continued to make limited efforts to spend time with the children in early 2014 and when he did make an effort it only seemed to be in regard to Y.
It is regrettable that the mother did not act sooner to get Y back into her care but I am satisfied that this was very likely because of the exigencies around getting legal advice and perhaps because of a mistaken belief that she could persuade the father to be reasonable rather than because of any lack of interest in Y.
I must consider the extent to which each party has financially supported the children.
This is not a relevant issue in this case.
I must consider the likely effect of any change in the children’s circumstances.
The father proposed a change for X in that X would live with him.
This would be a wholly destructive change for X even if he could be made to do it. It would be contrary to his wishes and it is extremely unlikely that he would settle. It would force him to be exposed to the negative views the father holds about the mother which X rejects and this would be psychologically damaging for him.
The mother proposed a change for Y in that Y would live with her.
If Y accepted this outcome then the change would be beneficial for him. He would be reunited with X and would be removed from exposure to the poisonous negative views the father has about the mother which must be causing him extreme mental anguish and he would have the opportunity to resume a loving relationship with the mother.
I must consider the practical difficulty and expense of children spending time with a parent.
Both parties live in (omitted) and this is not an issue in the case.
I must consider the capacity of each parent to provide for the needs of the children including their emotional and intellectual needs.
The mother is parenting X capably on a day to day basis. He is attending school regularly.
The mother is no longer working at (employer omitted) and she is not required to do shift work in her current position.
Nothing adverse is known about Mr K which would make him unsuitable to live in the same household as the mother and the children. The father alleged that Mr K had a criminal record but there was no evidence of that. He alleged that Mr K may be diseased but there was no evidence that Mr K had any concerning health problems.
In his affidavit filed on 29 June 2015 the father expressed the view that the mother had borderline personality disorder and said that he believed that the maternal grandmother suffered from the same condition. There is no basis for such beliefs.
The mother has had some mental health issues. She has suffered from depression and saw a doctor in (omitted) and was prescribed Zoloft. There was no evidence however that the mother was suffering from any mental health issues which impacted on her capacity to care for the children.
The mother has made some poor choices in the last two years which have had an adverse impact on the children for example, having an affair with a work colleague and spending the night with him in (omitted) after leaving the father, events which the father endlessly revisits in his own mind to stoke his anger against the mother.
It is regrettable that the children had a disrupted time between August 2013 and April 2014, first living in and attending school in (omitted), then returning to (omitted) and then after a brief stay there moving to the maternal grandparents’ home in (omitted) and being enrolled in school there.
However two things need to be born in mind. One is that the father did not make it easy for the mother after separation. He took her mobile phone, he refused to help her when problems with debt emerged and he barraged her with offensive threatening text messages. The mother is in some ways to be commended for handling the difficult post-separation situation as well as she did.
The mother’s decision to send the children to live with her parents in (omitted) might, at first glance, seem a questionable decision but the mother was still struggling to find her feet after leaving the relationship. She was struggling to pay the $70,000.00 of debt in her name and needed help so that she could do a job which required shift work.
The father was well aware that the children were living in (omitted) and did not protest against it. He did not remove Y from the maternal grandparents’ home because Y was unhappy there but because he was devastated when he saw the mother and X with Mr K and realised that reconciliation was not going to occur.
However despite being satisfied that the mother while not perfect is a generally good parent, I have some unease about whether she will be able to make a placement of Y in her care work.
Some of the mother’s actions have compounded the difficulties with Y. She let him remain in the father’s care for two months before commencing proceedings, she missed the first court date in June 2014 and more recently she inexplicably failed to return recent calls from a co-ordinator of the Youth Hope program which Y is attending, who hoped to engage with her after Y expressed some interest in seeing.
Another concern I have is that the mother is quite fixated on earning income. Y will require intensive support if he returns to live with the mother and he will need to be taken to medical appointments and counselling. If the mother does not sufficiently prioritise Y if he returns to her care then his placement with her will fail.
The mother made all the right noises in her trial affidavit about having thought through strategies to ensure the placement did not fail, but because of the matters outlined above, I am left with a sense of unease.
The father has the capacity to provide for the children on a day to day basis in terms of feeding and clothing them and he has been sending Y to school since part way through Term 3 2014, but he conspicuously lacks the capacity to provide for the children’s emotional needs. He has indoctrinated Y with the idea that the mother is a slut who has AIDS. At the hearing he professed to no longer believe himself that the mother had AIDS but he blamed the mother for Y’s continued belief that she did, saying that the mother had refused to deny it when Y questioned her about it.
Ms K who prepared the family report commented that:
Y 10 years old was emotionally distraught at the interview and it was clearly apparent that he is the recipient of both verbal and written adult concepts from the father. The father reported that he was emotionally upset after the mother left and discussed issues with Y. He agreed that Y had had access to the texts that he had sent.
This is emotional abuse of a 10 year old child and cannot be ignored.[11]
[11] Family Report
Ms K, described the father as “emotional and self-focussed” and this description is borne out not only by how the father presented to Ms K but by the contents of his trial affidavit filed on 24 June 2015.
It was apparent from the contents of the father’s trial affidavit that his anger and hostility toward the mother is as strong today as it was two years ago and the father can see nothing wrong with the way he has behaved toward the mother. When challenged about it during cross-examination he said:
I wanted to get her to straighten herself out. Sometimes I was cranky too – I was upset.
There is no sign of the father changing or seeking help. He was ordered to do a parenting after separation course and attended only two of the five sessions.
One of the recommendations made by Ms K was that:
Mr Chalmers the father has an urgent mental health assessment...[12]
[12] Paragraph 135 of the Family Report.
The father has not had such an assessment and has no intention of doing so.
I must consider the maturity sex lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
Three matters are relevant here.
The first is that the mother and father were both raised as (religion omitted). They did not attend church regularly during their relationship and the children have not been raised in this faith but in his text messages to the mother, the father repeatedly referred to biblical passages in condemning her.
After Y’s placement with Mr P failed, the father sent both Mr P and the maternal grandmother letters of demand. On their face they seemed to demand payment of sums of money but when the father was asked about them at the hearing he said that what appeared to be references to sums of money were actually references to passages in the Bible.
It seems possible that the father’s religious upbringing is impacting on his inability to accept the separation but issues to do with the father’s personality or mental health could also be at play. The father has not had a mental health assessment, so it is impossible to get to the bottom of the significance of his continual reference to passages from the Bible.
The maternal grandparents are staunch (religion omitted) and this is causing some difficulty at present because the maternal grandmother feels that she cannot visit the mother while the mother is living with Mr K, partly because the mother and Mr K are unmarried and partly because Mr K is a dis-fellowshipped (religion omitted).
The second relevant matter is Y’s mental health and his cognitive development and whether he might have autistic traits.
Prior to the parties separating, Y’s school informed the mother that they had concerns about Y including that he was walking in circles when his brother and friend were not at school and was talking to himself.
Ms K considered material from the school produced on subpoena and said as follows:
Y was referred to the school counsellor in 2012 because the class teacher was concerned about his inability to relate to his peers, his academic performance, his gross and fine motor skills and sensitivity about issues. There was reference to autistic tendencies but these were not discussed further. There were no tests which confirmed Y’s cognitive capacity. Some of these traits were apparent at his interview for this report.[13]
[13] Family Report paragraph 31
The mother said that she informed the father about the issues which the school made her aware of but he was insistent that there was nothing wrong with his son, and the father confirmed this. .
The father said as follows in his affidavit:
About 3 years ago Ms Chalmers told me that one of his teachers and a counsellor were worried that Y may have Autism or Dyslexia. I asked what the problem was and Ms Chalmers said he was writing his letters back to front. I sat down with Y and asked him to write some words for me. I discovered that he was writing his “b” as d but not his “d” as b. It was just laziness because of the way his hand and pen were moving across the page. I had Y practice for about 20mins the letters he was lazily writing and over the rest of the week had him spend about 10 mins when I got home practicing these letters and encouraged him not to be lazy. Ms Chalmers informed his teacher the next day and the question of autism and dyslexia was silently dropped.
The father agreed that he had told the mother that they should wait and see if Y grew out of the other identified problems. The father said that he had had similar problems at school.
Ms K expressed concern that the parents had failed to deal appropriately with the concerns raised by the school and felt that Y needed to be urgently assessed. She was also concerned about Y’s highly distressed presentation during the family report interviews and recommended as follows:
Y has an urgent mental health assessment by an experienced and qualified child mental health practitioner and the details of this to be provided to the Court. If this not available locally consideration be given to discussion with (omitted) or Sydney based options such as (omitted) House or the Sydney Children’s Hospital. However this may not effective if he is still living with his father who has not been compliant with counselling to date.[14]
In the medium term Y have a cognitive assessment and intervention to establish if he has further emotional and developmental needs.[15]
[14] Paragraph 132 of the Family Report.
[15] Paragraph 134 of the Family Report.
These recommendations have not been acted on and there is no prospect of the father taking Y for any assessments. Ms K said in her report and I accept (although the father denied it) that when she asked the father about Y attending counselling, he referred to the cost and time if he did so. The father was asked at trial if he thought that Y had problems and he replied:
I don’t think so. He’s a nervous child. I was a nervous child. I don’t think he needs a mental health assessment.
The third relevant issue is that X has shown signs of suffering anxiety since separation and has been observed fidgeting and scratching his chest below his neck.
Ms K did not seem to think that X’s behaviour was significantly concerning but she recommended that he attend counselling. The mother took X to Ms M but it turned out at trial that he had not attended since January 2015. The mother said that this was because Ms M said that he should be brought back only if the need arose and it had not arisen.
X did not present to Ms K in the same way as Y and I do not draw any adverse conclusion against the mother because of the cessation of this counselling.
I must consider the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents.
The father has shown an extremely poor attitude to the children and the responsibilities of parenthood by failing to quarantine the children and Y in particular, from his distress about the breakup of his relationship with the mother.
Some of the father’s text messages suggest that he has no interest in the children other than as tools to upset the mother. He said for example:
The boys are your Achilles heel. You’ve lost Y…how long before you lose X?
On another occasion he taunted her:
Perhaps for U a lifetime of being hated by your own offspring will be worse than death.
I must consider any family violence involving the children and a member of the children’s family.
S. 4AB of the Family Law Act defines family violence as follows:
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member ), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
The mother maintained that the father was very controlling almost from the day they married. She said that he interfered with her spending time with her family and controlled the finances. Her Centrelink payments and any other money which came to her were paid into accounts. The father controlled and the mother’s wages when she started work at the (employer omitted) were also paid into an account controlled by the father. The father allocated a set amount of housekeeping each week.
I accept the mother’s evidence in this regard; there was corroboration for it in the father’s evidence. The father agreed that he had controlled finances and allocated the mother a set amount of housekeeping each week but said that he did it to help her budget.
The father agreed that he had interfered with the maternal grandmother interacting with the family and had avoided her but he suggested that this was justified because of the repulsive habits of her and her family (e.g. eating with their mouth open and failing to bathe regularly) and because of her attempts to impose her presence and wishes about activities on him and the mother.
The father’s condescending attitude to the maternal grandparents was apparent during his interview with Ms K who said as follows:
The father reported that he married the mother in 1998 ‘getting her away from those basics [the maternal grandparents] that do not always shower.’[16]
[16] Family Report paragraph 71
The father denied saying this to Ms K but it is consistent with the material about the maternal grandparents in his trial affidavit and I do not accept his denial.
It is open to question whether branding the father’s behaviour during the marriage as family violence is especially helpful but the fact that such behaviour occurred makes credible the mother’s claims about controlling coercive behaviour by the father post-separation and the longevity of the behaviour raises a concern about whether there is any prospect of the father changing in the future.
The text messages the father sent to the mother after separation certainly constituted acts of family violence. They were clearly attempts to coerce and control the mother and they contain repeated derogatory taunts.
The text messages stopped after the ADVO was made but the mother believes that the father is stalking her. She believes that he has been responsible for making calls to the office where she works which she has answered only to hear heavy breathing. She alleged that she had seen the father driving past her work many times and said that she did not believe that he could possibly be going anywhere connected with his work. She alleged that he drove past her home four times a week.
The father denied that he had been calling the mother’s home and maintained that he had legitimate reasons to drive past her place of employment. However during the hearing a disturbing piece of evidence emerged. The father admitted that he gave X a mobile telephone during one of the two visits in August 2014 and that there was a tracking device installed on the phone. He said that he was able to trace that X had gone to a movie theatre and another location before the phone went dead.
I cannot be satisfied on the balance of probabilities that the father is stalking the mother but the evidence suggests that he is obsessed with her and with obtaining evidence of her degraded moral character and while I cannot find that stalking is occurring, I feel gravely uneasy that it may be.
A troubling aspect of the matter is Ms K’s comment that:
The father appears to want revenge and will do all he can to denigrate the mother in the family, in the community and in her workplace. [17]
[17] Family Report paragraph 86
This is troubling because there is a flavour of this in the father’s trial affidavit in which he referred to recently ringing the mother’s workplace and the wife of the man with whom she had an affair.
I must consider if a family violence order applies, or has applied, to a child or a member of a child’s family – any relevant inference 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 the proceedings for the order, any findings made by the court in or in proceedings for the order and any other relevant matter.
The mother complained to the police on a number of occasions about the text messages the father was sending her. Initially the police spoke to the father asking him to desist but finally on 26 August 2014 the police applied for an ADVO for the mother’s protection.
A final order was made on 23 September 2014 and is in force for 12 months. The order notes that the father was present in court when the order is made but no evidence was provided about whether there was a hearing or the father did not consent but did not contest or whether the father consented to the order.
The only inference I can draw from the fact that the order was made is that the mother felt so harassed and intimidated by the barrage of text messages, that she sought assistance from the police to put an end to them.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
An order that Y live with the mother is the order least likely to lead to further proceedings if it is successfully carried into effect but there is a risk that it will be difficult to carry it into effect.
I must consider any other relevant matter and there are none not already covered.
Parental Responsibility
The mother sought an order for sole parental responsibility for both children.
The father sought an order for equal shared parental responsibility when he was represented but he told Ms K in November 2014 that he wanted full parental responsibility because the mother was “not fit to parent the children”. He did not address the issue of parental responsibility at trial
Pursuant to s.61DA of the Family Law Act1975 I am obliged to apply a presumption that it is in the children’s best interests that their parents have equal shared parental responsibility for them absent a finding that the one of the parents has engaged in abuse of the children or family violence.
The father has engaged in acts of family violence and the presumption does not apply.
In theory I can still make an order for equal shared parental responsibility even if the presumption does not apply but if both children live with the mother, the only order I could make would be an order for equal shared parental responsibility.
Decisions will need to be made quickly about Y being assessed and possibly attending counselling or having other therapeutic interventions. I could not possibly put the mother in the situation of being required to consult with the father before making decisions and the father is the reverse of child focussed and is not capable at the moment of making appropriate decisions about the children.
The recommendations in the Family Report
Ms K made the following recommendations:
(i) The father not have any time with X in the short or medium term until X wants to have time with him. This to be reviewed after the father seeks and completes appropriate treatment.[18]
(ii) Supervised time between the siblings to continue without either parent present until Y has a mental health assessment and consistent counselling for at least three months. The father to pay for this time.[19]
[18] Paragraph 140 of the Family Report.
[19] Paragraph 141 of the Family Report.
(iii) It is recommended that the siblings attend the same school in 2015.[20]
(iv) It is recommended that an extended family member be considered as a carer for Y as an interim measure, it would be important that any family members considered for this is made aware of the reasons for this and they can demonstrate protective behaviours.[21]
(v) It is recommended that Family and Community Services be given a copy of this report and consideration be given to asking them to intervene in order to assist with case management of the matter so that Y can be transitioned back to the care of his mother.[22]
[20] Paragraph 142 of the Family Report.
[21] Paragraph 144 of the Family Report.
[22] Paragraph 145 of the Family Report.
After the release of the report, a s.91B order was made inviting the Department to intervene but they declined to do so.
Prior to being cross-examined, Ms K was informed about the failed placement in March 2015. She said that she was strongly of the view that Y should be removed from the father and should live with the mother but she was very concerned about the impact on Y of an order being made for him to live with the mother and the placement failing.
Ms K suggested that Y go into care of the Department as a stop gap measure but was informed that this court had no power to order that this occur. Ms K agreed with the view expressed by the court that Y’s circumstances were not such as to be likely to attract the attention of the Department or cause them to devote their limited resources to this case.
Conclusion
I cannot make an order that X live with father given his views, his age, and the father’s behaviour and attitudes and nor can I possibly make an order that Y live with the father.
If Y lives with the father:
a)he will have no relationship with his mother and brother. His only relationship will be with his father who is incapable of having a relationship with him in which Y’s individual needs are recognised and respected. He will continue to live with a parent who sees him as tool to punish the mother;
b)the concerns raised by his school in 2012 concerning his social interactions and his academic performance will never be addressed because the father does not accept his son has any problems which cannot be overcome by the passage of time.
c)he will continue to be psychologically harmed by being exposed to the father’s false beliefs about the mother. This must be setting up immense psychological strain for Y as he historically had a good relationship with the mother who was always his primary carer and he is now being told that she is an evil depraved individual. Ms K was concerned that Y might ultimately become an inpatient at a mental health facility.
The mother sought an order that Y live with her, and she set out in her affidavit the things she intended to do to help him if he came into her care. She does not accept that Y truly rejects her or that she will be unable to retain Y in her care if the court makes an order for him to live with her.
However Ms K, the social worker who prepared the family report, recommended that Y be transitioned in this mother’s care, not placed there at once. Ms K’s opinion was that Y needed to be debriefed before returning to live with the mother.
There is certainly reason to be concerned that the mother may be underestimating the difficulties of a change of residence for Y, and reason to be concerned about the mother’s judgment and capacity to manage the transition.
The mother is living with Mr K who Y hardly knows; it is impossible to be sure how Y will cope living in a household with Mr K given the extent to which the father has got into his ear about the mother’s moral depravity.
The mother is working and considers that she needs to work to pay down debt. If she continues to work full time she may not have enough time to help Y adjust and to take him to medical or counselling appointments or liaise with his school.
The mother has been remiss in some ways in responding to the children’s needs. She failed to attend court in June 2014 and she admitted that she had not responded to a call from the Youth Hope program Y is attending.
And yet in the end what choice does the court have but to do as the mother proposes and make an order that Y live with her? Y cannot stay with the father, his situation is not one which will cause the Department to intervene, and a placement with the mother’s brother failed and there is no reason to suppose that a placement with the maternal grandmother would succeed. The only advantage of it would be that Y could not easily run back to the father but the mother and X could also then not easily see him or arrange for him to have medical interventions.
I intend to make an order that Y live with the mother. I will hand the mother the order today and she can make arrangements to collect Y from school if she chooses to do so.
In circumstances where neither the mother or the Independent Children’s Lawyer put forward any care options for Y, other than the one the mother proposed, I have no alternative but to leave the matter in the mother’s hands.
I am unconvinced that making an order that Y be taken to a social worker or counsellor to have the order explained to him before the mother collects him, or around the time the mother collects him, will make any difference to whether the order succeeds. I can only hope that the mother makes Y her absolute priority, perhaps takes some time off work to focus on him and that she promptly organises assessments. I can only hope that being reunited with his brother will work some magic.
The mother proposed an order that the children spend no time with the father and I have no option but to make that order. X is refusing to see the father and allowing Y time with him would cause Y’s placement with the mother to fail.
There is nothing to stop the father at some time in the future making an application to spend time with the children, but to obtain such an order he will have to be able to demonstrate to the court that he has sought help to deal with his reaction to the separation and will not expose the children to denigration of the mother if they spend time with him.
For all of the above reasons the orders of the court are as set out at the beginning of this judgment.
I certify that the preceding two hundred and thirteen (213) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 7 August 2015
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