Chardon and Balard
[2008] FamCA 773
•11 September 2008
FAMILY COURT OF AUSTRALIA
| CHARDON & BALARD | [2008] FamCA 773 |
| FAMILY LAW - CHILDREN - Magellan - allegations of sexual, physical and emotional abuse - interrogation and inspection of children - orders for supervised time. FAMILY LAW - CHILDREN - change of surname FAMILY LAW - COSTS - thrown away due to adjournment |
| Family Law Act 1975 (Cth), ss 60B(1), 60CC(1), (2), (3), (4), (4A), 61DA, 61DA(2), 65DAA(1) and (2), 117 (2A) |
| McCoy & Wessex [2007] FamCA 489 Flanagan and Handcock (2001) FLC 93-074 |
| FATHER: | Mr Chardon |
| RESPONDENT: | Ms Balard |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | DGF | 674 | of | 2006 |
| DATE DELIVERED: | 11 September, 2008 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | BROWN J |
| HEARING DATE: | 19, 20, 21, 22 February; 27, 28 March; 3, 14, 15 April, 2008 |
REPRESENTATION
| COUNSEL FOR THE FATHER: | Mr. Hoult |
| SOLICITOR FOR THE FATHER: | CE Family Lawyers |
| COUNSEL FOR THE MOTHER: | Mr. Brewer |
| SOLICITOR FOR THE MOTHER: | Quintessential Lawyers |
| COUNSEL FOR THE I.C.L. | Ms. Dowler |
| INDEPENDENT CHILDREN’S LAWYER | Hardys Lawyers |
Orders
That all existing parenting orders and injunctions relating to the children N Chardon born … January, 2002 and K Balard born … November, 2005 be discharged.
That the mother have sole parental responsibility for the children.
That subject to paragraph (4) hereof the father have time with the children as follows :
(a)during school terms, for three hours on two out of each three consecutive Sundays, at a time to be agreed and, failing agreement, from 10:00 am. until 1:00 pm., commencing on the first weekend hereafter on which supervision can be arranged pursuant to paragraph (4) hereof and recommencing on the first Sunday of each school term;
(b)on the first Saturday and last Sunday of each school term holiday period, for three hours at a time to be agreed and, failing agreement, from 10:00 am. until 1:00 pm.;
(c)for three hours on Christmas Eve at a time to be agreed and, failing agreement, from 4:00 pm. until 7:00 pm.;
(d)for three hours on the last three Saturdays of the summer school holiday period at times to be agreed and, failing agreement, from 10:00 am until 1:00 pm.;
(e)for three hours on Fathers’ Day at times to be agreed and, failing agreement, from 12:00 noon until 3:00 pm.; and
(f)at such other times as are agreed between the parties.
That unless the mother consents to the contrary, in writing, each period of the father’s time with the children pursuant to paragraph (3) hereof be supervised by :
(a)a person who conducts or is employed by a professional supervision agency; or
(b)another person agreed to between the parties;
and each person who supervises a period of time pursuant to these orders shall be provided with a copy of the reasons for judgment published this day prior to his or her first period of supervision and read those reasons prior to commencing supervision.
That prior to supervising any period of time with the father pursuant to these orders, each person who is to supervise such time agree that he or she will terminate a period of time with the father if the father or any other person present :
(a)seeks to inspect either of the children for bruises, marks or injuries;
(b)questions either of the children about the origins of any bruise, mark or injury; or
(c)denigrates the mother in the presence or hearing of either of the children.
That if four periods of the father’s time with the children are terminated by a supervisor pursuant to the provisions of the preceding paragraph, all time between the father and the children pursuant to paragraph (3) hereof shall be suspended forthwith, until further order.
That the father may spend such additional time with the children as is agreed between the parties and it be in the absolute discretion of the mother as to whether such additional time be supervised or not.
That if the mother believes it to be in the best interests of the children that supervision pursuant to paragraph (4) hereof be completely dispensed with, she advise the father in writing, and thereafter his time with the children be as agreed between the parties, and, failing agreement :
(a)during school terms, each alternate weekend from 5:00 pm. Friday until 5:00 pm. Sunday;
(b)one week in each school term holiday period at times to be agreed and, failing agreement, the second week;
(c)two weeks in each summer holiday period at times to be agreed and failing agreement, to commence on 10 January;
(d)for six hours on Fathers’ Day at times to be agreed and, failing agreement, from 11:00 am. to 5:00 pm. and
(e)from 12:00 noon on Christmas Eve until 12:00 noon on Christmas Day in each uneven year and 12:00 noon on Christmas Day until 12:00 noon on Boxing Day in each even year.
That the father be responsible for all costs of supervision, including any costs referable to the supervisor’s collection and return of the children and that changeovers take place at the mother’s home or such other place as is agreed between the supervisor and the mother and neither the father nor his parents be present at changeovers effected by a supervisor.
That the father communicate with the children as follows :
(a)by sending cards or small presents PROVIDED THAT:
(i)such correspondence be sent by ordinary pre-paid post addressed to the mother’s home; and
(ii)the mother may read correspondence and open parcels and decline to hand them to the children if, in her absolute discretion, she believes they contain material which denigrates her or criticises her parenting, or is otherwise likely to distress the children;
(b)by telephone on each Wednesday, the call to be made by the mother to a telephone number provided by the father, between 4:00 pm. and 6:00 pm. PROVIDED THAT:
(i)the mother may monitor the telephone calls and intervene to terminate a call if the father denigrates her or is critical of her parenting, or questions a child about injuries or aspects of the mother’s parenting; and
(ii)in the event that four telephone calls are terminated by the mother pursuant to sub-paragraph (10)(b)(i) hereof, all telephone communication between the father and the children shall be suspended forthwith, until further order.
To give force and effect to paragraph (10) hereof :
(a)the mother keep the father informed of a postal address to which correspondence can be sent pursuant to paragraph (10(a) hereof;
(b)the father provide the mother in writing with a telephone number to which calls can be made pursuant to paragraph (10)(b) hereof;
(c)no telephone call shall last for more than thirty minutes; and
(d)if the number is a landline number charged at STD rates, or a mobile phone number, the mother be at liberty to make the call on a reverse-charge basis.
That the father have such additional telephone communication with the children as is agreed between the parties.
That as soon as practicable the mother authorise the principal of each school and kindergarten attended by the children to send to the father, at his expense (if any) :
(a)a copy of each school or kindergarten report for the children; and
(b)an order form for each school or kindergarten photo of the children.
That save with the written consent of the mother the father be and is hereby restrained from attending at a school or kindergarten attended by the children, and from attending school or kindergarten events, activities and functions routinely be attended by parents.
That as soon as practicable the mother serve a sealed copy of these orders on the principal of each school and kindergarten attended by the children.
That the mother advise the father as soon as practicable of any serious injury or accident experienced by the children when in her care.
That during any time he spends with the children the father be and is hereby restrained from taking the children to a medical practitioner or like professional save in the event of an emergency, in which case he must advise the mother forthwith of the nature of the emergency and the name and phone number of the medical practitioner or like professional he is to attend upon.
That if N or K is unavailable to attend a period of supervised time with the father pursuant to paragraph (3) hereof by reason of ill-health, the mother shall provide the father with a medical certificate within 72 hours of the time on which the child or children would otherwise have commenced to spend time with the father pursuant to these orders.
That the father’s parents may be in attendance during periods of supervised time and, subject always to the agreement of the supervisor, friends of the father may also attend.
That the father’s application for an order requiring K’s surname to be changed to Chardon is dismissed.
That the father pay the costs of the mother and the independent children’s lawyer of the adjournment on 3 April, 2008, previously fixed at $4,330 for the mother and $2,700 for the independent children’s lawyer, and such costs be paid within three months hereof.
That a copy of these reasons for judgment may be provided to :
(a)Ms. C;
(b)the principal of a school or kindergarten attended by N or K and, in the absolute discretion of that principal, to a teacher or teachers involved with N or K and to other professionals who may be engaged with them through the school or kindergarten;
(c)the Department of Human Services;
(d)any member of a State or Territory police force engaged in investigating any allegation relating to the children or a party; or
(e)any medical practitioner, psychologist, counsellor or like professional consulted by N or K.
That each of the parties be and are by themselves, their servants and agents, restrained from denigrating the other in the presence or hearing of the children and from allowing any other person to do so.
That the parties continue to use a communication book in which to record matters of importance in relation to the children and that such book be transferred between them at changeovers.
That the independent children’s lawyer be discharged one month from this date or, in the event a Notice of Appeal is filed, on determination of the appeal or earlier order in the Appeal proceedings.
That all extant applications be otherwise dismissed.
That these proceedings be removed from the List of matters awaiting finalisation.
That a copy of the entries in the father’s diary for 7 and 8 February, 2007 be placed in the correspondence section of the court file.
That all exhibits and documents produced pursuant to subpoena be returned to the person or entity who produced them one month after this date or, in the event a Notice of Appeal is filed, on determination of the appeal or earlier order in the Appeal proceedings.
That pursuant to s.62B and s.65DA(2), of the Family Law Act 1975, 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 parties adjust to and comply with an order, are set out in the document entitled “Family Law Courts Fact Sheet” a copy of which is annexed to these orders.
That each party be at liberty to file and serve any written submission in relation to the costs of the applications for final parenting orders within 28 days hereof, and :
(a)each party have a further 28 days in which to file and serve any written submissions in answer to any submissions filed by the other party; and
(b)each submission have endorsed on the cover sheet the date on which a copy of that submission was served on the other party.
That within 24 hours of the filing of any submissions pursuant to this order, the party filing it fax a copy to the associate to the Honourable Justice Brown.
That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.
IT IS NOTED that publication of this judgment under the pseudonym Chardon & Balard is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGF 674 of 2006
| MR CHARDON |
Father
And
| MS BALARD |
Mother
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Before the court are competing applications for parenting orders for N Chardon, born in January, 2002, and K Balard, born in November, 2005. They are the children of Mr Chardon and Ms Balard, who separated in May 2005. K was born some six months after that separation.
Pursuant to interim orders, the children live with the mother. Orders made on 22 February, 2008 provide for the father to have supervised time with the children on each Saturday or Sunday for three and a half hours, subject to negotiation and the availability of a supervisor. Supervision is provided by Angelicou Community Services and the costs are borne by the father.
The parents have each made serious allegations about the other’s behaviour and parental capacity. The mother alleges that the father is intent on proving that she is physically and emotionally abusive of N and, to a lesser extent, K, and intent on punishing her for the wrongs he perceives she has done to him. To achieve this it is alleged he has zealously and obsessively inspected and interrogated the children, seeking signs of trauma. In April 2007 N complained to her mother that her father had touched her genital area. The mother filed a notice of child abuse on 12 April, 2007.
N’s description of her father’s behaviour resulted in the mother taking N to a doctor, who notified the Department of Human Services, leading to departmental and police involvement. N repeated her complaints about inappropriate touching to police, in a VATE interview recorded on 5 April, 2007.
Although it took some time to reveal this, I am satisfied that the mother’s case was never that the father had abused N for his sexual gratification or pleasure. She is not a sophisticated woman and found it difficult to articulate her concern which, I am satisfied, was that the father had inspected and touched N’s genital area in his quest for evidence of abuse and neglect. From her perspective, it reflected the length to which the father was prepared to go to obtain residence of the children and undermine her relationship with them. Ms. C’s evidence was that she vividly remembered what the mother said to her about the allegations of sexual abuse. She said the mother made it very clear that she did not think that the father had sexually abused N but said he had “over stepped the boundaries”. She told Ms. C that “he should have known better”. It is unfortunate that this was not teased out earlier and that the case was conducted for so long on what was a false premise.
For his part, the father alleges that the mother is physically and emotionally abusive to the children, who are at significant risk in her care. In his view, despite N’s frequent consultations with medical practitioners and his complaints to police, DHS and the court, his concerns have been ignored and the children’s safety jeopardised. His allegations led to N being again interviewed (recorded on a VATE tape) on 5 May, 2006 and, probably, at a police station on 27 March, 2006. It is his case that the mother has no love for her children and her residence application is motivated by the desire to receive Centrelink benefits.
LEGAL PRINCIPLES
The provisions in the Family Law Act 1975 relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
Section 60B of the Act sets out the objects of the part of the Act dealing with children and the principles underlying them, in these terms :
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3)For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b)to have the support, opportunity and encouragement necessary:
(i)to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
The objects point the way to an optimum outcome. The first two are picked up in s.60CC(2) as the primary considerations when determining where children's best interests lie. The second is also reflected in the circumstances in which the presumption of equal shared parental responsibility is not to apply, those circumstances relating to findings about violence; see s.61DA(2).
The principles applicable to determination of a case involving allegations of sexual abuse are summarised in McCoy & Wessex [2007] FamCA 489. By analogy, the court must also consider whether there is an unacceptable risk of the children being physically abused in their mother’s care and assess the risk to their psychological development from the emotional abuse alleged by the mother.
PARTIES
The father is aged 35 and lives in G in the peninsula area, in a house owned by his parents. He described himself as, variously, employed in his father’s business, and as unemployed. He is a qualified tradesman and during the relationship ran his own business. The father gave evidence of his bankruptcy, for which he blamed the mother; it was a bankruptcy notice which led to the parties’ separation. He will be discharged from bankruptcy in February 2009. The father has maintained his rage about the downturn in his financial position and there was a sense of it underpinning his contempt for the mother. He said he ceased employment (with his parents, who run an automotive business) when assessed to pay child support of $520 per month and now pays the minimum child support figure for the children. He readily conceded he did not want to pay child support.
The father’s evidence about his present employment status was confused and inconsistent. I have no confidence in its accuracy. Tendered medical records of an attendance by him on Dr. W on 31 October, 2007 note advice from him that he had hurt his back “about three weeks ago” when “bending over at work” and “has a lot of [driving] ahead of him”. It is probable he is involved in the businesses conducted by his parents and his own evidence satisfies me that he is keen to arrange his financial affairs to minimise child support obligations. According to him, he is entirely supported by his parents who provide him with independent accommodation, motor vehicles and such income as he has. Asked how he would support the children were they to live with him, he spoke of obtaining Centrelink benefits and of gaining some employment.
The mother is aged 36 and lives in R, in the south-east suburbs, in rented accommodation, owned by her brother. She described her occupation as home duties and receives Centrelink benefits. The husband alleged that she is engaged in commercial trading on E-Bay; her evidence was of earning a small income through E-Bay purchases and sales, which she declares. She has a history of gambling related crime and criminal convictions.
The mother’s criminal record was in evidence. The first recorded conviction was on 4 June, 1998 when she was placed on a community based order for twelve months after pleading guilty to obtaining a financial advantage by deception and obtaining property by deception. The community based order required her to perform two hundred hours of unpaid community work and to undergo counselling for gambling issues, as directed. She was required to pay $26,764 costs. On 1 February, 1999 she was before the court for a breach of that CBO (it is probable she had not performed community work) and the order was cancelled. In lieu, she was given a sentence of imprisonment for three months, suspended for twelve months.
On the same day, the mother was convicted of obtaining property by deception and obtaining a financial advantage by deception and sentenced to an aggregate of seven months imprisonment, to be served by way of an intensive correction order. The police record shows breach proceedings in respect of that order on 23 February, 2000, at which she failed to appear. That breach was listed again on 12 March, 2002. The record notes that the order was varied and she was sentenced to seven months imprisonment, on each charge, concurrent, to be served by way of an ICO. That day the mother was also convicted of making a false document to the prejudice of others and obtaining property by deception; she was sentenced to an aggregate of four months imprisonment, which was suspended for twelve months, and she was ordered to pay compensation of $200.
On 17 July, 2002 the mother was convicted of contravening a “section of Act” and of knowingly obtaining a payment, “payable in part”. She was convicted and fined a total of $750 and ordered to pay $446 costs.
Documents were produced by Victoria Police in response to a subpoena filed by the father on 10 January, 2008. They revealed no convictions between 17 July, 2002 and the date of production of the documents.
SHORT HISTORY
The parties commenced cohabitation in August 2001. N was born in January, 2002. She was three when they separated, in acrimonious circumstances, on 9 May, 2005, prior to the birth of their second child. They gave competing accounts of the circumstances which led to the separation but it was common ground that they separated, briefly, in April 2005, a few weeks prior to 9 May. The father received a bankruptcy notice on 21 April, 2005 and attributed responsibility for financial mismanagement to the mother; he dated the separation from that event. On 27 April the mother, pregnant, attended a GP and then a counsellor or psychologist who worked at the GP’s practice; she may have been diagnosed with depression. In early May, the mother was admitted to hospital.. Her evidence was that complications of her second pregnancy caused that hospitalisation whereas the father attributed it to her manipulative behaviour. It was common ground that the father rang the mother, in hospital, on 9 May, 2005 and told her the relationship was over and that she would not be welcome to return to the family home.
K was born some six months later. The father disputed her paternity. Only after 19 April, 2006, when DNA tests established that K was his biological child, did he seek parenting orders in respect of her. He had nothing to do with her for her first twelve months. Possibly for that reason, the father’s focus was on N and more than one professional had to remind him of K’s importance as a sibling, and of her needs.
These proceedings commenced when the father filed an application seeking residence of N on 30 November, 2005. The father’s evidence was of obtaining advice from a number of lawyers and he was represented for much of the proceedings. The solicitor then on the record served a Notice of Ceasing to Act on 4 February, 2008, a fortnight prior to the trial.
The trial ran over nine days. For the first six days the father was not legally represented. On 3 April, 2008 Mr. Hoult of counsel appeared for the father and sought an adjournment to 14 April, 2008. Over objection, the application was granted and the court provided a transcript of the hearing to date to assist counsel for the father, who appeared for the balance of the trial. The mother and the independent children’s lawyer (ICL) sought that the father pay costs thrown away as a result of that adjournment. These were fixed at $4,330 for the mother and $2,700 for the ICL and judgment was reserved to the end of the trial.
EVIDENCE
Findings are made on the balance of probabilities, having regard to the evidence and my observations of the demeanour of witnesses. In what follows, statements of fact constitute findings of fact.
The father relied on an amended application for final orders filed on 8 February, 2008, and an affidavit sworn by him on 25 January, 2008 (his trial affidavit). In that affidavit he confirmed as true the content of affidavits sworn by him earlier in the proceedings, being affidavits sworn on 25 November, 2005, 11 January, 2006, 30 March, 2006, 31 July, 2006, 1 August, 2006, 10 April, 2007 and 6 June, 2007. Early in his evidence he made it clear that he sought only to rely on his trial affidavit. Subsequently, paragraphs 14 to 20 of an affidavit sworn by him on 10 April, 2007 were tendered as I was concerned that evidence of his early response to the allegation of inappropriate touching was not included in his trial affidavit, despite it traversing events between 2005 and its swearing. With leave, he also relied on facts asserted in an outline of case prepared by him and what he called “an opening speech”.
In her report Ms. C noted the father’s unresolved anger; in her view, the conflict between the parties would not subside in intensity unless he receives counselling for this. The trial commenced some four months after that report was written but anger remained the dominant theme of the father’s presentation. Ms. C was critical of both parties for contributing to the conflict but her opinion that the father is more aggressive, irrational and obsessional in his behaviours was borne out by his presentation and his evidence.
The father tended to assert he had evidence which could conclusively determine facts in issue, which either did not do so, when adduced, or was never adduced. A few illustrations will suffice.
The father gave Ms. C a CD on which he said was eight hours of allegedly abusive interaction between himself and the mother at changeovers. After reviewing almost three hours of that material, Ms. C found no evidence of any verbal abuse from the mother to the father. She asked the father to provide a CD of only the alleged violent incidents; he did not do so.
The father alleged that the mother had tried to murder him prior to separation, putting Draino into vitamin capsules. His evidence was of discovering a capsule or capsules filled with what looked like Draino after separation, of the mother admitting she had administered such a capsule to a dog, of a police investigation and of toxicology tests. He attributed gastric problems experienced by him now to the ingestion of Draino prior to separation. Draino is a commonly used corrosive substance which generates, when liquid is added, an exothermic reaction designed to dislodge deposits in plumbing. Were Draino to be consumed, one would envisage serious damage to the internal organs. The father produced no medical evidence whatsoever of any condition or symptom which could be attributed to this alleged attempt to kill him, when ingested or since. He adduced no evidence of toxicology results. He did act for himself during parts of the proceedings but it is clear he was well aware of the capacity to put evidence before the court by way of subpoena; he issued numerous subpoenas, cross-examined on the basis of information in documents produced pursuant to subpoena and tendered some such documents.
The father alleged in these proceedings, and in earlier proceedings in the Magistrates’ Court, that the mother had sent him abusive text messages. He sought to rely on a fax sent by one police member to another attaching information as to the name in which a particular telephone service was registered. As the mother denied ever purchasing or acquiring such a service, the court made it clear that if he sought to have it rely on the records of the service provider (particularly those referrable to the commencement of the service) they would need to be subpoenaed. The father did not seek to do so.
The father was keen to rely on the mother’s criminal convictions for dishonesty as indicative of a tendency to lie. Only when compelled did the father admit that he lied to police investigating the allegations of sexual abuse and lied to the court about that investigation. He eventually conceded that he and his mother colluded to concoct a story about a date on which he allegedly put Canesten on N’s genital area, evidence to which I will refer later.
The father frankly stated that he wanted the mother punished. While he sometimes connected the punishment with her alleged abuse of their children, he imparted a strong sense of wanting her punished for what she has done to him, financially and in other ways. He either could not or would not consider the collateral harm to the children were she punished as he sought.
While keen to rely on the absolute accuracy of any record critical of the mother, the father contested the accuracy of records of conversations with him in, for example, the DHS file. A note in a medical, DHS or other record may be inaccurate; the point is his apparent inability to recognise he was applying one standard to himself and another to the mother.
When cross-examined there was a histrionic edge to the father’s presentation. He demonstrated no capacity for reflection and little insight into his children’s emotional world. The father’s lack of insight and his inability to acknowledge any evidence which did not fit his case can be illustrated by his assessment of the mother’s relationship with the children. According to him, the mother does not have feelings. She does not love the children or have a good relationship with the children. She does not feed them properly. She has the capacity to poison or kill N, by giving Draino to her. She only wants the girls to live with her as she would lose Centrelink benefits if they did not. So poor is the relationship, and so significant is the risk, that the children would be better off in foster care than with their mother. N would not be affected by seeing little or, possibly, nothing of her mother. That assessment is in stark contrast to the evidence of Ms. C, who saw nothing referable to these allegations in the attachment behaviours of the children with their mother. She found that N was not frightened of her mother and has a positive and strong attachment with her; she described the mother as a loving mother.
I have no confidence in the father’s capacity for objective recollection and am satisfied he was prepared to invent and distort evidence to achieve his end.
The father did not call either of his parents, despite deposing to his mother’s observation of N’s injuries and neglected presentation, her presence when N allegedly spoke of her mother’s abuse of her and of a number of notifications made by her to DHS. It is clear that the father’s father was present on a number of occasions of which the father gave evidence, about which his account was contested. The court made clear the consequences of not calling a witness in those circumstances but the father maintained his position. One or both of the father’s parents sat behind him for most of the trial.
When the trial recommenced on 14 April, the husband was represented by able and experienced counsel. He and his legal practitioners had had the opportunity to read the transcript of the hearing to that date. No application was made to adduce evidence from the father’s mother or father. In these circumstances, the court is entitled to draw an inference that it would not have assisted his case to call either of them. It is a significant omission.
The mother did not file an amended response to the amended application filed by the father on 8 February, 2008. Her original response was filed on 1 December, 2005. She relied on an affidavit sworn by her on 23 January, 2008 (her trial affidavit).
As Ms. C noted, the mother’s criminal record confirms her capacity to deceive at a considerable level and to continue a deception until caught. While expressing the opinion that part of the mother’s vagueness (when with Ms. C) could be stress related, it was her view that there was a definite minimisation, omission of information and a glossing over of significant events.
The mother’s presentation in court was not (as when with Ms. C) vague or unresponsive. She impressed as frustrated with the father’s obsessive quest to prove her a delinquent parent and was distressed, at times, but she presented as a much calmer and more thoughtful witness than did the father. It is clear from the evidence that she has expressed her frustration in front of the children and that she has contributed to the conflict between the parents, albeit sometimes in a more indirect manner. Nevertheless, I have far more confidence in her account of the parties’ time together and events since separation and, save where a finding is made to the contrary, prefer her evidence to that of the father.
The mother relied on affidavits of her sister and her mother, filed on 23 January, 2008. The mother’s sister is a care worker, who looks after disabled children. She was cross-examined by counsel for the father and the ICL. She was an impressive and, I am satisfied, honest witness.
The father foreshadowed cross-examination of the mother’s mother but his counsel did not seek to do so. Nor did the ICL.
The ICL relied on a number of expert reports. Ms. S saw the parties and children in April 2006 and prepared a report dated 28 April, 2006. Dr. V is a consultant forensic psychiatrist who assessed the parties on 27 July, 2006. At the pre-trial conference all parties were represented and the registrar was advised that no party sought to cross-examine Ms. S or Dr. V. That position was confirmed when the trial commenced.
Ms. E is the Co-ordinator of GordonCare Children’s Contact Service where the father’s time with K was supervised for a period in 2006 and 2007. GordonCare also supervised ten changeovers between the parents and N between November 2006 and March 2007. Again, no party sought to cross-examine her.
Ms. C is a clinical psychologist who saw the parties in July 2007, the father again in August 2007 and the children in September 2007. She prepared a report dated 12 October, 2007. She was cross-examined. Her evidence was cogent and insightful and I place weight on it.
Ms. H supervised the father’s time with the children from 15 July, 2007 until 14 February, 2008. She prepared an undated and rather general report of her involvement between July 2007 and January 2008. She did not know of the father’s longstanding concern about the children’s physical state, or the allegation of inappropriate genital touching, or the mother’s concerns about the girls being inspected and interrogated. Although she said her role was to “supervise the father, make sure the kids were okay, that there were no derogatory remarks made about the mother”, her lack of knowledge of the allegations which led to supervision meant she had no context in which to assess what might be “derogatory” and she did not see it as essential to ensure the father was not alone with the children, as long as she could hear them. She spoke with the mother prior to commencing supervision and said “there was much talk about nasty things the father did” but that she “really didn’t take much notice because all I knew was there was a very strong antagonism between those parents”.
Ms. H could not recall whether she received the letter of 22 June, 2007 from the mother’s solicitors, summarising the reasons GordonCare withdrew from supervising K’s time with her father and the allegation of inappropriate touching. She knew nothing of the VATE taped interviews or police involvement. Despite her long involvement with DHS, Ms. H presented as insufficiently watchful, detached and sceptical to be supervising in a case of this complexity and her approach to supervision was less than optimal. On at least two visits she asked N whether she liked or enjoyed her visits with her father. She allowed the father to be alone with N, usually within earshot but sometimes not; a clear illustration of the latter is her account of a visit to the beach.
That said, I accept as true Ms. H’s denials of hearing remarks allegedly made by N in her presence and a number of conversations between the father and children. In particular, I do not accept as true the father’s account of Ms. H asking N if she wanted to live with her father, of Ms. H putting an option to N or of Ms. H asking N if she wanted to spend two hours a fortnight with her father. I do not accept as true his evidence that in Ms. H’s presence N said she had been told to say certain things by her mother or his evidence of repeating to Ms. H remarks allegedly made by N to her father and grandfather, when alone with them in the bathroom. I am satisfied Ms. H told the truth when she denied ever hearing a conversation between the father and N in which he queried N’s account of how K was bruised and told N that K told him she got the bruises from her mother.
The court also had before it a report prepared by DHS, at the request of the court. The report is dated 31 May, 2007. Earlier in the proceedings, counsel briefed by DHS appeared as amicus curiae. No party sought to cross-examine the authors of the report or call any DHS worker. Two DHS file notes were tendered.
PROPOSALS
When the trial commenced, the father sought that the children live with him and that the parties have equal shared parental responsibility for them. He proposed that the children spend each alternate weekend with their mother, as well as time on special days, such as the children’s birthdays, and at other times as agreed. He sought a number of orders relating to the children’s attendance at a particular medical clinic and for the parties’ involvement in their school and kindergarten lives. He also proposed that K’s surname be changed from Balard to Chardon, to be consistent with the surname used by N.
The father explained that the omission of any holiday time with the mother was deliberate and that he envisaged the alternate weekend regime running for the whole of the year. He spoke of the importance of keeping the children in a regime and of difficulties he had in getting N to go to bed after spending time with the mother, difficulties which he attributed to a lack of routine in the mother’s home. He was confident that N, at least, would be happy with reduced time with her mother. Pressed about his proposals, the father said that he was “absolutely certain” that if the mother had only two days a fortnight with the children she would “walk away” from them and move to live in rural Victoria, as she would lose the Centrelink payments which (according to him) were her sole motivation for wanting the children with her. He also said he would like her contact with the children “limited” and that he had only sought the orders he had (then, alternate weekend time) because he was advised he would lose if he did not say she should play a role in their lives.
In the witness box the father was given an opportunity to say what he thought should happen in the event he were unsuccessful in his residence application. He responded by saying that if the children could not be with him or his family, they should be placed in foster care. This was not an off-the-cuff remark but a position he maintained. The most charitable interpretation would be that it is indicative of the depth of his concerns for the children in their mother’s care. It is, nevertheless, an astonishing proposal, particularly given the expert evidence of the children’s presentation after being in their mother’s primary care for some years and his own evidence of the inadequacies of foster care.
Ms. C described this proposal as “extraordinary”. In her opinion it is indicative of the father’s lack of insight and refusal to acknowledge the strong attachment the girls have with their mother, and of the lengths to which he will go to punish the mother.
In final submissions, counsel for the father reiterated his case for residence. Initially, he said his client proposed the children have no time with the mother. After obtaining further instructions, he proposed time on alternate weekends, half holidays and special days.
The mother proposed that the children continue to live with her and that she have sole parental responsibility for them. She sought that the father be restrained by injunction from denigrating her to the children or in their presence and from taking the children to a doctor, save in an emergency. She was initially content to leave the time the children spent with their father to the court.
At the commencement of the trial the mother proposed that the father spend each second Sunday with the children, from 10:00 am. to 7:00 pm., unless the court were to find no substance in her allegations. In those circumstances she would propose some alternate weekend time, progressing to half holiday periods and at other special times.
After the mother heard the father’s evidence, and the evidence of Ms. C, she altered her position and proposed that the father’s time with the children be supervised by an independent person, paid by the father. She maintained a view that he should see his daughters; it was her case that his relationship with N should be maintained and his relationship with K strengthened. She said the girls need to know their father and that she did not want to be placed in a position where they ask in eighteen years “Where’s my dad?” She was, however, concerned that the children would not be returned to her and that the father would inappropriately discuss adult issues with them, and inspect and interrogate them, if his time were not supervised.
In final submissions the mother’s counsel proposed three to four hours of professionally supervised time per fortnight.
The ICL submitted that the children should live with the mother and have three to four hours of professionally supervised time with their father each week.
In final submissions, counsel for the ICL and the mother canvassed the question of whether orders should require the father to seek the psychiatric treatment recommended by Ms. C. Early in his final submission, counsel for the father spelt out his instructions in relation to continuing supervision of the father’s time with the children, and psychiatric treatment, as follows :
Secondly, if your Honour puts a question to me, rhetorical as it might be, in relation to supervised time, I don’t have any instructions about that. I have specific instructions that there are no instructions about that. Likewise, your Honour, if there are any questions asked by your Honour of me in relation to psychiatric health of my client, again I’m not in a position to say anything to your Honour about that, other than that I have specific instructions that there are no instructions about it.
May I say that it might be a matter that I would ask for him to, if I may, revisit that, depending on how your Honour sees the case and what decision makes at the end of the case. But at this stage I don’t have any instructions and I don’t intend to waste your Honour’s time about it.
CHRONOLOGY
Given the number and breadth of the allegations in this case, it is not possible to consider and make findings on every one of them. To put the proposals and submissions in context I will set out the more important events in chronological form.
It was the father’s evidence that when he telephoned the mother in hospital, on 9 May, 2005, and told her the relationship was over, the mother asked him :
. . . to bring [N] into hospital so that she could tell [N] that it was all my fault and commit suicide in front of [N]. After this conversation with [the mother] I called the hospital and told them that [the mother] had just threatened to commit suicide.
The mother denied any such conversation and I accept her denial as true. I also accept as true her evidence that the father told her in that conversation that N would remain living with him and she should get a lawyer.
The mother’s evidence was that she then agreed to a shared care arrangement, with N living with her for four days each week and with the father for the rest of the time, as it was the only way she could see N. I accept that evidence.
On 18 May, 2005, the father signed a transfer of land, transferring the home in which the parties had lived to his parents. He remained living in that property for a period and then moved to live with his parents. In due course his parents sold that property and bought another in R, and the father moved to live there. It is where he remains.
On her discharge from hospital the mother moved to live with her brother and his family and, in about July 2005, into a house owned by her brother in R, which she rents. She remains there.
In July 2005 N burnt her bottom when she lent against a heater after getting out of the bath. The father agreed this was an accident but complained that the mother failed to get proper medical attention for N.
Photos of the burn on N’s bottom were tendered. The burn from the heater bars can be clearly seen. While there was no medical evidence, I do find it reasonable for the father to be concerned about this burn, although it was probably not as serious as he alleged. His penchant for inspecting N (and, in due course, K), and documenting what he saw as evidence by the taking of photographs, visits to doctors and note taking, may have had its origins in this burn. It is clear from the photographs that N was not in pain or distressed by the time she came to him and he or his mother dressed the burn; the photos show a laughing child, photographed on a bed, with her underpants and pants pulled down to her knees and her bottom exposed. The father spoke of making a game out of taking the photos but it is improbable a distressed child could have presented as N does in those images.
On about 4 October, 2005 the mother filed an application for an intervention order, naming the father as the defendant, in which she alleged he was harassing her by phone. He gave an undertaking to desist. It is probable he undertook (among other things) not to come within 200 metres of the mother and that an exception (as is often the case with intervention orders) applied for contact changeovers.
On 13 October, 2005 the father’s parents applied for an intervention order against the mother, which was resolved on 28 October, 2005 by consent orders, without admission.
The father tendered photos of N, naked, taken on 27 October, 2005 which show bruises on her lower back and upper buttocks.
The father alleged that on 2 November, 2005 N presented with sunburn and marks on her feet indicative of shoes which were too big and had to be done up too tightly. The pattern of sunburn meant N must have been wearing a distinctively cross-strapped top or bathers. Amongst the photos is one of N, sitting naked on the side of the bath, holding her arms out to either side to better display the sunburn.
The father tendered seven photographs, from close-ups of N’s feet and photos of her lower legs and feet while standing on a mat, to the photos taken while N sat on the side of the bath. She could have been left in no doubt that this was evidence gathering.
The mother denied ever having any garment for N which approximated the sunburn pattern, evidence which I accept. In any event, a sensible parent would simply have spoken to the other about using more sun-screen. The child’s legs and feet do not appear to be burnt and the sandal strap marks would not concern most parents.
K was born in November, 2005. The father’s evidence was that on 24 November, 2005 the mother accused him of sexually assaulting N when he arrived to pick her up. His account in his trial affidavit is in these terms :
[The mother] accused me of sexually assaulting [N] when I picked up [N]. Then she handed me a copy of a medical certificate from [D] Medical Clinic saying that [N] had mild vulval thrush.
I am satisfied that the mother did tell the father that N had thrush, so he could treat her. I do not accept the father’s account of being accused of sexual assault. The balance of the father’s evidence about this episode illustrates his quest for evidence to discredit the mother and his irrational thinking.
Despite the medical certificate, the father took N to another doctor the following day. He adduced no expert evidence but said he was told she was not suffering from thrush but “it was more likely that [N] had redness from being left in a soapy bath for too long”. He said he then “made contact” with D Medical Clinic and obtained a copy of N’s medical records. The records showed that on 23 November, 2005 N, K and the mother all had thrush; in relation to N this was consistent with the doctor’s certificate.
One would have thought that this would have placated the father. To the contrary, it simply fuelled his concerns about (apparently) the mother’s care of the girls. It is difficult to be certain but it seems he did not accept the D Medical Clinic diagnosis. What should have been a routine matter, thrush being not uncommon in newborn babies, little girls and adult women, was exploited by the father in an attempt to obtain evidence against the mother. I have no confidence in the father’s account of what he was told by the doctor on 24 November, 2005 but unless he invented the attendance, the court must assume that N was subjected to an unnecessary vaginal examination on that day.
Three days later, on Sunday 27 November, 2005, the father was to return N to the mother at McDonald’s at L in the southeast suburbs, after a period of time with him. Unbeknownst to the mother, the father had a tape recorder running from the time he arrived at McDonald’s, with N, until his decision to return with her to his parents’ home some hours later. Recorded on the tape are his parts of exchanges with the mother, discussions between him and N, N’s unsolicited remarks and the father’s part of conversations with a third party who, I am satisfied, was his father. It is illuminating but chilling evidence.
The father’s account of events that afternoon and evening, and the recorded exchanges, are illustrative of his anger and irrational responses. His contempt and, indeed hatred, of the mother are manifest. He was either unable or unprepared to contain himself in N’s presence and did his best to enlist her in a conspiracy against her mother. On the tape he presents as a man who is out of control and close to raving. Rarely does the court have evidence which so tellingly illustrates the sacrifice of a child’s best interests on the altar of a parent’s ego. I have no doubt that N has been exposed to many such situations when with her father. It is probable she and K continue to be exposed to his unbridled hatred for their mother and what I am satisfied is a distorted view of reality. For this reason I propose to deal with events on 27 November, 2005 in some detail.
The mother arrived early for the changeover and sat in the restaurant, with K, who was nineteen days old, in a stroller. The father agreed that he and N (who was not yet four) came to the door of the restaurant. Rather than proceed inside, he took N out into the car park, from where he rang the mother; he told her she must come out to the car park to collect N or she would not get N back. It was the father’s evidence that N could not have seen her mother from where she stood in the doorway but I accept the mother’s evidence that N and she saw each other (evidenced by the child’s response) before the father took her into the car park. Much later in the tape the father told his father that he did see the mother and that she saw him.
The tape then records the father and N having a conversation to this effect :
FI don’t know where she is. If she doesn’t come out, we are going.
N I want to go in.
F No.
N Why? I want to go in.
F We’re going. If she won’t come out, we’ll go.
F (to mother on the phone) I’m outside.
F (to [N]) Should she come out?
F(to mother) We’re at McDonald’s, come out if you want your daughter, goodbye.
N Is that my mummy? Is she coming out?
F I don’t know [N].
The father and N may have been in his car during that conversation; there is then a remark about N getting into her seat, at which point the father said to N “Mummy is not here, so we’ll go.” N can be heard saying “I want to go in, mummy, I want mummy”, to which the father replied “I tried to ring her twice”. After N entreated him a couple more times, he rang the mother again. The conversation suggests that by that time he had started to drive from the restaurant. It is to this effect :
F(to mother) Are you going to collect your daughter? I’ll come back if you collect her. There is nothing about having to go inside, McDonald’s is a public place.
By this time the father’s voice was full of rage. He told the mother she should walk outside, collect N and walk her back inside. He said to N “If mummy is not going to come out, then we are going to have to go”.
There was then a conversation between the father and the mother in which he denied he had come into the restaurant and said he simply went to the door to see if she was there. She probably told him to grow up as he responded “you’re the one who needs to grow up”. He then said “I’m on my way down to the police station to report you for your abuse”. Having repeated that he had called her (on the phone), and that the whole of McDonald’s is a public place, including the car park, the father then said to N “Mummy doesn’t want you, [N]”. The child can be heard crying on the tape.
At that point the father hung up and had a telephone conversation with another person, in N’s presence. In the course of it he said that “she refused to get off her arse and walk outside”, that he stood by his car with N’s bag, that he was not “having her performance” and “it’s simple, I’ve already driven off”. The person on the other end may have been trying to calm or reason with the father, as he responded “ I know, but that lazy bitch wouldn’t get off her arse and collect her daughter”. He then went into what could only be called a rant about the car park being a public place. He said he was going straight to the police station, said he was not “doing this” in a restaurant in front of people every week, and that he had “everything recorded”. N can be heard saying “Daddy” which elicited a response to this effect :
We are trying to get mummy to pick you up and mummy doesn’t want to and we’re going to go to the police now because daddy doesn’t want to do it in the car park, I mean, in the restaurant because mummy gets rude and daddy doesn’t want to get yelled at in front of other people. So we’ll go and talk to the policeman.
The father then announces into the tape recorder “We are at the police station.” The tape records a radio and people talking. The father can be heard trying to tell someone (presumably a police member) about the car park and about his phone calls to the mother, while third party conversations can be heard about more serious matters.
Apparently receiving no joy from police, the father than returned to McDonald’s at about 2:30 pm. As if summarising past events, he said “I stood by her car with the bag. She wouldn’t get off her bum”. N can be heard trying to say something. N can then be heard crying while her father, again, spoke to the mother on the phone. In that conversation he told the mother that all she had to do was walk to the door to get her daughter, he really didn’t care and that it was she who refused to get off her bum and walk to the door. He said that “there are no orders so there is nothing they (probably the police) can do”. In the course of that conversation, N can be heard saying “Daddy, daddy” in a pleading tone.
The father then said to N “righto we’re going home” to which she replied “Daddy, where is mummy?” He then put the child on the phone, saying “you talk to mummy and ask mummy why she isn’t coming”.
N can then be heard saying “Mummy? Mummy?” The father said “ask her” and N said “Mummy, why aren’t you coming?” She then said to her father “she said she will come”.
The father then resumed a conversation on the phone, saying something about you (probably the mother) coming to the police station. He then said “if you start abusing me I will then hang up on you right now”. The mother volunteered that by the end of the exchanges at McDonald’s, she was swearing at the father (on the phone). The exchange continued :
N What did my mummy say?
F (to [N]) Your mummy is very rude.
N Where is mummy?
FYou are not going to get to see her anymore. We are not doing it anymore. I don’t know why mummy won’t come out and get you.
F(to mother) So you’ve got a witness there and you still won’t come out? [Mother’s name], if you can’t collect your daughter – I will hang up – I will hang up and you will have to fight this all the way.
The father then hung up and had a conversation to this effect with N :
F Yeah, mummy was rude again.
N She won’t come out and get me?
F No.
N No, mummy won’t . . .
FAnd all she had to do was walk to the door and take you by the hand, didn’t she?
N Yes.
FI don’t know why kiddo, I don’t know why. We’ve been to the police station, haven’t we? I can’t believe it, all I asked her to do was to come to the door and she wouldn’t. We were near the door, weren’t we?
N Yes
F All she had to do was walk to the door.
The father is then heard to complain that his phone needs charging because he called the mother so many times and N offered to plug it in for him. By this stage they were obviously back in the car. The father then made another call, to a third party, to whom he referred as “Dad”. He told his father that he still had N, that the mother refused to come to the police station and refused to come outside to pick N up. He said the police wouldn’t do anything about it and would not even ring her, telling him it was a civil matter and they had to sort it out themselves. He said he could not pronounce the name of the police member but had asked him to note his attendance.
It is possible his father tried to calm him down or persuade him to take a different course, as the father said :
Dad, I must have rung her five or six times – I’m not ringing again. Each time she says there is an undertaking – you can’t come near me – I don’t want her to make a scene – she is yelling, screaming and abusing me – I’ve hung up. The undertaking allows me to go within 200 metres of her for changeovers – it’s simple as that – I have to go to the solicitors and sort it out.
Yeah – but how petty and pathetic – had to get off her butt and walk maybe ten or twenty steps – I don’t know dad but it’s as simple as I’m not going to have a scene made – it was less distance than when [N] walks from outside her house at [R] to the door – but she wouldn’t get off her arse. I did see her – she saw me – I gave her five minutes – I went across the car park and got my phone and rang her – bugger it, it’s now not until we go to court.
His father may have again tried to calm him down but the father continued :
No bugger it – maybe so – maybe they need to go and get urgent orders to get [N] – I’m not prepared to go through this crap for a changeover – that’s it – well that’s it – [N’s] started to get upset, didn’t you kiddo?
N answered “yes” to which the father said “Pa is going to come and give you a cuddle”.
It is possible the father’s father was in the vicinity of McDonald’s as the father then said “Well, you walk across the road and tell them I’m not going to be coming tonight”. He told his father that the mother “carried on about new born babies” and he did not understand it (a reference to the mother telling him she was breastfeeding K inside the restaurant), but there was no way “it’s happening” inside the store and that he told her he was going to report her abuse and should have done so (presumably to police). There is then another exchange between N and the father :
N What did Pa say?
FHe’s going to come home and give you lots of cuddles. What do you reckon?
NDo you think she won’t see me? I want to see mummy.
FI know but mummy is being silly so you can have a BBQ with daddy and nanna and pa tonight.
The father then suggested that they go and get a bag of bread and feed the ducks and N can be heard to say “No”.
The father’s account of these events is at paragraph 51 of his trial affidavit. He complained about the mother’s refusal to come into the car park, to come to the police station and to collect N. He complained that the mother said she would not drive to the Police Station at S, in the peninsula area because she was in the middle of feeding K, at McDonald’s. One gets no sense from this account of the implication of N in the dispute or of the tone of his discourse with her mother.
N was not returned to the mother that Sunday afternoon or evening. Indeed, she was not returned until 7:00 pm. the following Tuesday, after negotiation between the parties’ solicitors.
Three days after the incident at McDonald’s the father filed an application in the Federal Magistrates’ Court in which he sought that N live with him from 5:00 pm. Thursday until 5:00 pm. Sunday, and with the mother from 5:00 pm. Sunday until 5:00 pm. Thursday, in each week. He also sought DNA testing to establish K’s paternity. The application was listed for hearing on 27 February, 2006.
On 1 December, 2005 the mother filed a response in which she sought that N live with her and have contact with the father on each alternate weekend from 5:00 pm. Friday until 7:00 pm. Sunday, each Wednesday evening from 5:00 pm. until 7:30 pm. and by telephone. She sought that changeovers be inside the McDonald’s restaurant at L.
In the lead up to Christmas 2005 N was to attend her first induction day at kindergarten, which fell in a period she was living with her father. The mother sought additional time to take her, which was refused, but the father said he would take N. On the first induction day the mother went to the kindergarten and joined the other parents and children there, only to learn that the father had attended the day before to show N the kindergarten. He did not bring N to the induction day.
N was to be returned to the mother at noon on Christmas Eve 2005 at the S Police Station. The father and N did not arrive. The father later said that he had no car and no way of transporting N to the S Police Station and that he left a message for the mother in which he tried to make alternate arrangements for her to collect N from a park around the corner from his home at noon. I accept the mother’s evidence of receiving no such message and that she was in S from about 11:30 am. until after 1:00 pm. waiting for N to be delivered.
The mother’s evidence was of phone records noting calls made by the father’s mother from the S area between 10:45 am. and 1:23 pm., the father calling his mother from G at 10:57 am. and S at 11:10 am. and then from a southeastern suburb (where his parents have a property) at 12:11 pm. The mother relied on evidence in affidavits previously sworn and filed by the father’s parents in which they said it was not uncommon for them to be in the general area “to watch changeovers”.
N was not returned to the mother until about 2:30 pm. on Christmas Day, over a day late. That changeover occurred in the police station. The mother brought with her the Christmas present N had chosen for her father, which was a block of chocolate. N tried to give it to him. The father rejected it, saying he would accept no food from N as he believed the mother had tried to poison him in the past. The father deposed that he made it clear to the mother after a changeover on Fathers’ Day in 2005 that he would never again accept “food product” that came from her. His evidence was that by allowing N to offer the chocolate to him the mother went out of her way to create conflict.
After the incident at Christmas the mother did not deliver N to the father at the end of the period of time with her. N had been overheld in late November and again on Christmas Eve and the mother feared the father would keep her again. It is probable there were a number of acrimonious phone calls between the parties and that the father threatened to take N directly from kindergarten.
On 11 January, 2006 the father filed or sought to file an ex-parte application, seeking a recovery order to take possession of N. He said his application was dismissed; it is possible a preliminary application (for example, to abridge time and proceed ex-parte) was dismissed.
On 12 January, 2006 the father rang the mother’s mother, the maternal grandmother, at work. He deposed that the conversation lasted for eight minutes and seventeen seconds. He took strong exception to an account of the conversation which the maternal grandmother attached to her affidavit and to what he described as her “disgusting language”. He annexed to his affidavit “a true and correct transcript” of the telephone conversation.
While its thrust is accurate, it is true there are some inaccuracies in the maternal grandmother’s record and some expressions attributed to the father were not used in the conversation but the maternal grandmother did not record the conversation. The father was under no such disability; unknown to the maternal grandmother, he taped the whole conversation. What is extraordinary is that he would put into evidence a transcript of a conversation in which he was bellicose, threatening and intimidating and in which the maternal grandmother was calm, civil and surprisingly (in the circumstances) detached. The tape was played. Again, the father’s voice is that of a man out of control and ranting. It is extraordinary that a man who, in an unsolicited phone call, could speak that way to the maternal grandmother of his children, could complain about the need for the maternal grandmother to “tone down” her language.
January, 2006 was N’s fourth birthday. The father’s evidence of his actions on that day are set out in paragraph 48 of his trial affidavit. His evidence was that while speaking to N on the phone he asked N if she wanted to see him; she said she did. He said the mother told him he was not to see N and that if he came anywhere near her, she would call the police. According to him, she hung up. Having deposed to that, the father deposed “I headed up to [B] to see [N] for her fourth birthday”.
The house at B belonged to the mother’s brother and his wife. The father gave an account of ringing them and the mother, saying they should call the police as he was not leaving until he got to see N, and of parking his car across the road from the home. Subsequently, two police attended. His evidence was of advice from police that he should leave, of him saying he would not leave until he could give N a kiss and a cuddle, of them negotiating for the mother to bring N out for two minutes, of turning on his voice recorder and of having the kiss and cuddle he insisted upon. It is clear the police were called by the mother or members of her family and her evidence was of the father behaving in an angry and aggressive way when he arrived, which resulted in the call to police. I accept her account.
N’s first day of kindergarten was 30 January, 2006. She was delivered by the mother, with whom she was living. Soon after, the father attended the kindergarten and removed N. He deposed to the circumstances in which this occurred in paragraph 47 of his trial affidavit.
According to the father, he went to the kindergarten to see N and N told him that :
[the mother] had hit her across the head and knocked her over with her new kindergarten bag, had sent [N] to her room for crying, had not allowed [N] to have any breakfast before kindergarten.
After these disclosures N “went back over to the rest of her class and continued singing a Wiggles song”. When the song finished, he asked N if she would like to come with him and she said “yes, daddy”. He deposed to N being concerned about why he was not taking her bag, to him not taking the bag because “[the mother] would have lied about the contents” of it and that “at no time did I act in an erratic or violent manner while I was at the kindergarten”. He said he told staff members that the mother would “more than likely” become very abusive and aggressive towards them once she found he had taken N. He took N home and rang the Department of Human Services and “filed a report for child abuse”. He said he gave them a full history of the way N had been treated by the mother since separation on 9 May, 2005.
The DHS report dates the first intake at 30 January, 2006 and the ensuing investigation concluded on 2 February, 2006. The notification alleged that the mother denied the father contact, that N had concerning bruises on her body during the past months, that N disclosed that her mother grabbed her and threw her into her bedroom and that the mother’s home was dirty and unhygienic. It was further alleged that the mother committed theft and fraud in business prior to the parties’ separation and that she had attempted to poison the father in the past. It is apparent from the report that the allegations arising from the heater burn were aired at this time.
In the course of that investigation child protection workers contacted Dr. Y, who denied observing any concerning marks on N in 2005 when the father presented her at his surgery. The report notes that Dr. Y felt there was a reasonable explanation for the burn and he had no concerns for N.
On 30 January, 2006 the mother made an urgent ex-parte application for a recovery order. On that day Phipps FM ordered that the father return N to the mother at the S Police Station at 7:00 pm. that evening. Orders provided that, until further order, N live with the father from 5:00 pm. Thursday until 5:00 pm. Sunday and at all other times with the mother. Changeovers were to take place in the foyer of the S Police Station and neither party was to denigrate the other or to discuss the proceedings in the presence of the child. An independent children’s lawyer was appointed and all extant applications were otherwise adjourned to a duty list on 27 February, 2006, being the original return date of the father’s application.
From early 2006 the father frequently took N to the doctor. The father’s evidence was of undergoing a course of treatments himself and of taking N with him to the doctor, but the evidence does not support such an analysis. They support a finding that the father sought to document bruises and marks on N and to get N to make complaints about her mother. He continued photographing N, sometimes naked, sometimes partially clothed. The father agreed he had told N he was taking photos so “hopefully, one day I can stop her from being hurt”.
On 27 February, 2006 orders were made for DNA testing. The parties were to attend upon a counsellor or psychologist nominated by the ICL for the preparation of a family report.
DNA test results were released on 13 April, 2006, confirming that the father was K’s father.
The DHS report notes a second intake on 3 March, 2006, the investigation of which closed on 20 March, 2006. The notification alleged that N had a large red mark on her bottom and that N told her father that her mother had smacked her, that her mother laughs when she smacks her and she gets smacked a lot. It was further alleged that on 2 March, 2006 N had a bruise the size of a twenty cent piece on her waistline and did not know where this came from. It was alleged she also had a bruise under her left arm and that N had told her father that that was the result of her mother grabbing her and throwing her into the bedroom.
The DHS report notes that in ceasing involvement protective workers took into account advice from the counsellor supporting N that she had no concerns for N whilst in the care of her mother.
Three days after that investigation was closed, another notification was received in an intake commencing on 21 March, 2006. The DHS report notes that “numerous concerns” were raised by the notifier, including past concerns about N having bruising caused by her mother with her mother allegedly smacking her on the bottom. All those concerns had been raised in earlier DHS investigations. The notifier expressed further concerns relating to SMS threats “by an unknown person” to the father which he believed to have come from the mother and advice from him that N had an injury which her doctor believed looked like a cigarette burn.
DHS workers spoke to the GP in question and with the mother; they also spoke with members of SOCAU in relation to the alleged burn. In relation to the SMS messages, the DHS report notes that local police advised that they did not come from the mother’s phone and that the father attended the police station regularly with new allegations about her. DHS ceased their involvement on 24 March, 2006.
A few days later, on 27 March, 2006 the father filed a complaint and summons for an intervention order in the Frankston Magistrates’ Court. A copy of that application and the ex-parte interim order made that day is in evidence, as are the reasons of the presiding magistrate.
The father’s application concerned himself and N only. The inferences are that he was not concerned that K was at risk with the mother (as he alleged N to be) or that he did not care. The complaint on the initiating document is in these terms :
The defendant is my ex defacto partner. We have been seperated (sic) since 19/5/05. The second AFM [N] (D.O.B. […]/1/02) is our daughter. There are current interim custody orders in place. We have shared custody (3 days per week with me 4 days per week with the defendant). The family Court hearing is scheduled for 8/6/06. On 20/3/06 I received an SMS message from the defendant on my mobile phone “If U don’t back off UR taking [N’s] life into UR hands I won’t faile (sic) again”. On 17/3/06 at 4.15 pm I received another SMS message “Leave me alone U ahole or it will be U instead of UR stuff”. On 22/2/06 my parents house where I am living was broken into. Things were taken and damaged. On 11/1/06 the defendant had her friend […] give me a call and threatened “If I didn’t back off her husband and his friends would come around and kick my head in”. Since 21/4/05 I have had to change my mobile number twice because of abusive calls from the defendant. My parents have taken out intervention orders against her and change to a silent number because of the abuse. I have included our daughter in this application as on 23/3/06 when I picked [N] up from the defendants house she had a cigarette burn on her right arm. The SMS message I received on 20/3/06 threatened [N’s] life.
In the past the defendant has tried to poisin (sic) me with home made capsules. I am fearful for both mine and the 2nd AFMS safety if an order is not made.On 27 March, 2006 the presiding magistrate, ex-parte, varied the existing orders made under the Family Law Act 1975 (pursuant to s.68T) to suspend the orders pursuant to which N spent time with the mother and to require N to be delivered to the care and control of the father. She also made an ex-parte interim intervention order which prohibited the mother from approaching the father or N, save in the company of a police officer or to participate in counselling or exercise child contact. Orders prohibited the mother from being at or within 100 metres of the father’s home in G or any other premises where he or N lived, subject to the same exclusions. The order was to last until 29 March, 2006.
The father’s case in the Magistrates’ Court, and before me, was that the mother sent threatening SMS messages to him. He sought to rely on a copy fax from Detective Senior Constable … of G CIU to … of S Prosecutions, which attached a request result for details of the customer to whom phone number 04… was recorded as belonging. I cannot say on what basis an enquiry was made or on whose authority. The result sheet recorded the customer to be the mother.
The mother denied ever having any such service or phone number. It was made clear to the father that if he sought to prove that the mother was the customer who bought that service, he would need to subpoena documents from the phone company, particularly those referable to the establishment of the service. He did not do so.
The copy fax from the service provider on which the father sought to rely, does not spell her name correctly. It would be unusual for a person to mis-spell her own name in that way. There was no evidence from the father of any alleged abusive SMS messages from the mother prior to the two on which he relied in the Magistrates’ Court proceedings, and no evidence of subsequent ones.
Ms. C’s evidence was that if N had been abused as the father alleged (hit, punched, grabbed, lifted, thrown, over a long period of time) it would “absolutely, one hundred percent” manifest in her response to her mother in a way which would have been observable. She said it also would have manifested in behavioural indicators which others would have seen as well. What the father alleges is pervasive, significant physical abuse of a serious kind. One would expect to see indicators, apparent even to a stranger, including frozen watchfulness, the hyper-vigilant response of a child waiting to be punished and hurt. Ms. C said she also would expect regressive behaviours like rocking, thumb sucking, sucking of clothes. She would not see the happy demeanour that N expressed when with her but rather a very sad and withdrawn child. She would also expect definite indicators to come out in the attachment observations between the parents. Children who experience the sort of physical abuse described by the father have developmental delay, intellectually and physical. Even the human growth hormone can stop with that sort of high degree of physical abuse. She said indicators would definitely be seen by others.
Counsel for the father asked Ms. C what she saw as necessary in order to enable the children to see their father on an unsupervised basis. She said she would expect the father to regularly see a forensic psychiatrist. Notifications by him and his mother or anyone else acting on his behalf must cease. She said his level of insight is incredibly poor and limited, and that there are real questions about his delusional beliefs.
Ms. C could not be persuaded that the father’s preference for foster care, and his distress at the lack of response to his concerns, were explicable in the light of his genuine (even if baseless) belief that the children were exposed to physical abuse and neglect. Ms. C did not agree, describing his thinking as incredibly irrational.
The evidence satisfies me that despite the reduction in the time N has spent with her father since supervision was introduced, she has been able to maintain and develop her relationship with him. Similarly, in the context of frequent but relatively brief supervised contact, K has built on the relationship which was established in the supervised sessions at GordonCare, and has developed an attachment to her father. The court can find that a meaningful relationship can be maintained between the father and the children through such contact.
ADDITIONAL CONSIDERATIONS
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
Late in her cross-examination Ms. C agreed with counsel for the father that N is a very normal little girl living within the context of highly conflicted parents. She is not demonstrating disturbed behaviours at home with her mother, at school, or when observed by Ms. S or Ms. C. I place no weight on the behaviour alleged to occur when with the father. Given N’s implication in the parental dispute, her court would need to be very cautious about placing any weight on views expressed by her as to her preferred living arrangements. She is far too young for them to be determinative and it is probable she has expressed to each parent the sentiments she believes they want to hear.
Ms. H deposed to N’s awareness of the intense antagonism between her parents. She spoke of an occasion when N said one thing to her, and another thing to her father, as follows :
On the second last visit I asked [N] if she liked her visits at the father’s home and [N] told me that she only wanted to visit dad for two hours, but could not look at me. However straight away she took her father into her bedroom and was crying and sobbing telling her father that she had told me a lie, that she wanted to stay with her father. [N] did not know I could hear her as I was standing around the corner. She was clinging to her father and would not let go.
The father’s version of this conversation involved N telling the father she had to tell Ms. H she only wanted two hours with him because she was told to say that by her mother. Ms. H heard nothing to that effect.
Ms. C agreed that an “incredibly accurate” analysis of this evidence was that N told Ms. H something she might normally tell her mother and, when she realised her father had heard it, was put in a difficult situation and immediately told him a different version, being the one which would please him, and which she might normally tell him. Ms. C agreed that what N needed was for the adults in her life to have the insight and detachment not to take everything she says literally, as it is very likely she tells each of her parents what she believes they want to hear. For this reason, the court needs to be cautious about the weight placed on statements made by N, even when it has some confidence in the person repeating them. The disparities in the accounts of Ms. H and the father about events which allegedly occurred when both were present illustrates the father’s unreliability as a historian and his tendency to gloss statements made by N, to fit his preoccupations.
(b) The nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child);
Ms. C’s evidence was that the father’s inability to halt the pervasive pattern of obsessive behaviour, arising from his hatred for the mother, was “incredibly disturbing”. She was particularly concerned about the father’s expressed view that a primary motive of the mother in abusing N is the satisfaction she feels at seeing him upset; that is, that the mother is harming the children in order to harm him. Ms. C said she saw no evidence of that in the attachment behaviours of the children with the mother; neither child demonstrated any fear of her and there were strong and positive attachments. She saw no evidence to support his assertion that the mother was only interested in the children’s residence so she could qualify for Centrelink payments; her opinion was that she is a loving mother. I am satisfied the mother has a warm, loving and appropriate relationship with her daughters.
There is no doubt the father loves his daughters and relates well with them. His relationship with N is close and while that with K may be less developed, the court can find it to be warm and loving.
Ms. C readily conceded the good relationship she observed between the father and the children. Asked by his counsel about the importance of maintaining that relationship, Ms. C responded :
Yes, but if there’s a question of child abuse occurring, i.e. that I talked about, early psychological abuse or physical abuse, then that nullifies the attachment.
The father’s counsel then put that even if the court found the father was implicated in the flyers, and that he was overly obsessive, the children still needed to see their father, developmentally. To that Ms. C responded :
Not necessarily, no. I dispute that. If we’ve got a behaviour that’s psychologically damaging to the children, then I would not categorically say it’s in the child’s best interest to see the father, no.
Ms. H’s evidence supports a finding that the children have a loving relationship with their father and paternal grandparents. Unfortunately, his parents appear to have supported and encouraged their son in his obsessive pursuit of the mother and the father’s evidence was of his mother sharing his views of the mother. It is unlikely they would intervene to stop their son interrogating or inspecting the children, or denigrating the mother; to the contrary, it is likely they would encourage him. There is a risk that the father’s distorted view of the children’s reality will be endorsed or entrenched during time the paternal grandparents spend with them, if that time is unsupervised.
The mother has received practical and emotional assistance from her brother and his family and it is probable the children have a good relationship with them.
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
(f)the capacity of :
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
These s.60CC(3) factors relating to parental capacity and attitude, as do the matters contained in s.60CC(4) and (4A) of the Act, which are as follows :
(4)Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child's parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child's parents:
(a) has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent's obligation to maintain the child.
(4A)If the child's parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Findings referable to these provisions have been made. The father has demonstrated no capacity to facilitate a relationship between the children and their mother. The mother understands the importance of their relationship with their father but has indicated her frustrations to the children, at times, and can be criticized for contributing to the tension and animosity between the parties.
The mother has the capacity to provide for the children’s needs; the father’s deficits in providing for their psychological and emotional needs are significant.
While both parents have put their needs before the children’s needs, at times, it is the mother who has demonstrated an understanding of parental responsibility. She is very involved in the children’s lives at playgroup, kindergarten and school and supports them as well as she can on Centrelink benefits. The father’s admitted disinclination to pay child support, and his cessation of employment to thwart the Agency’s recovery processes, is not indicative of a genuine understanding of parental responsibility.
The provisions of s.60CC(4A) are relevant; a woman in the mother’s position would have to be super-human to transcend her concerns about matters such as the father’s obsessive behaviour, the false allegations which resulted in the ex-parte order removing N from her care, and the offensive flyer, and communicate easily and freely with him, or trust him to put the children’s interests before his.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from :
(i) either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
It is probable the children are now used to supervised contact with their father and would continue to relate warmly and well with him, if it continues. They are able to see their paternal grandparents and maintain that relationship.
The court cannot know what follows from counsel’s advice that he had no instructions about supervision. There is no evidence the father intends to cease contact with his children if his time with them is supervised and he appeared keen to put alternative arrangements in place when Ms. H had to withdraw from supervision, following hip surgery. Whatever his views about supervision, it is the best interests of the children on which the court must focus, and their best interests demand protection from the short and long term consequences of his emotional abuse of them.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
Supervision has been costing the father some $80 per session, and there is no evidence that financial constraints would impact on him continuing to pay a professional supervisor.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
Ms. C was asked about the father’s submission that if N continues to live with the mother she will continue to learn bad habits and language from her “and become a criminal, just like [the mother], if not worse”. Ms. C said she had no indicators that N or K were demonstrating delinquent like behaviours and described it as being “a little bit over the top”.
(j)any family violence involving the child or a member of the child’s family;
(k)Any family violence order that applies to the child or a member of the child’s family, if :
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
I have no hesitation in finding that the distribution of the flyers constitutes family violence as defined in the Act; it was conduct by the father, towards the mother, that caused her to fear for or reasonably to be apprehensive about her personal well-being or safety. Given Ms. C’s evidence of the potential ramifications on the children, it involved them, as well as the mother, and was abusive of them.
There are no current intervention orders involving the parties.
(l)whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
If supervised time is ordered, as recommended by Ms. C, the court must consider whether to make interim or final orders. Counsel for the mother and ICL submitted final orders were necessary to protect the children from the stress of continuing litigation. Counsel for the father did not address the issue, as his instructions precluded him making any submissions referable to supervision. For the same reason he made no submissions about psychiatric treatment or his client’s psychiatric state.
This litigation commenced in November 2005. It was transferred to this court some nine months later. The litigation itself has not ameliorated the father’s obsessive behaviour; given the pervasive pattern of his responses, it is not surprising he turned his time with the children into evidence gathering forays. Continuing litigation would exacerbate the problem. The father’s refusal to allow his position about psychiatric intervention to be put effectively precludes the court from considering whether an adjournment to allow that to occur would be in the children’s interests. The court cannot and should not restrain notifications to DHS; it can and does rely on the professionalism of DHS protective workers, who must determine what investigation, if any, is warranted after receipt of a notification.
The mother sought supervision only after hearing it recommended by Ms. C. She agrees that the children enjoy their time with the father. Orders could provide for the cessation of supervision if the mother agreed; prerequisites might be no baseless notifications to DHS and a change in the father’s obsessive cataloguing of complaints.
(m)any other fact or circumstances that the court thinks is relevant;
It is important that the Court considers the objects and principles set out in s.60B.
PRESUMPTION OF EQUAL SHARED PARENTAL RESPONSIBILITY
I am not satisfied the presumption applies, given the findings of the father’s abuse of the children. If the presumption did apply, the evidence overwhelmingly supports a finding that the children’s best interests demands its rebuttal. Their best interests demand that the mother have sole parental responsibility for them, including responsibility for decisions relating to their education and health. Orders will provide for the father to be able to receive information about their progress at school and any significant illness or injury suffered by them.
CONCLUSION
I am satisfied the children should continue to live with the mother.
I am satisfied that the father’s time with the children needs to be supervised, to protect them from short term and long term emotional harm. That position may be able to be reviewed in the future. While it would always be a matter for the judicial officer before whom an application was brought by the father, it is difficult to see that a court could envisage the removal of the requirement for supervision unless it had before it evidence that the father had addressed his obsessive and consuming hatred for the mother through psychiatric or other interventions and that there had been a period of at least twelve months in which no unfounded allegations were made by him or those in his camp.
Given the expert evidence in this case, the mother could not be criticized for submitting that supervision of the father’s time with the children is appropriate. Orders will give her the capacity to agree to unsupervised time with the children, whether in addition to the ordered periods of supervised time, or in lieu of it. Further, if she determines that supervision should be dispensed with completely, as no longer necessary, the father can spend time as agreed between them, with a safety-net provision of alternate weekends, and time during school holidays, on Fathers’ Day and at Christmas.
Ms. C supported phone contact between the father and the children and orders will provide for weekly phone contact. The mother will have the capacity to monitor those phone conversations and if the father uses it to denigrate her or interrogate the children about their health, she can terminate the call. If four or more telephone calls are terminated pursuant to that provision, the order providing for phone contact will be suspended, until further order. Orders will cover matters such as the duration and costs of phone calls.
The ICL submitted that the father should have supervised time with the children on each weekend; the mother sought it occur on each alternate weekend. I am satisfied that the best interests of the children require that, during school terms, there be some weekends on which the mother can spend time with the children for the whole weekend, without the necessity to arrange events around the requirements of supervised time; I am satisfied that, during school terms, the father should see the children, supervised, for three hours on two Sundays out of each three.
Orders will provide that during school term holidays the father spend time with the children, supervised, on the first Saturday of the school holiday period and the last Sunday. Orders will provide for periods of supervised time around Christmas and on other days in the summer school holiday period. I am satisfied orders in those terms will be in the children’s best interests and will provide some certainty and consistency to their time with their father.
The father will be restrained from taking or allowing the children to be taken to a medical practitioner or like professional during periods of supervision, save in the event of an emergency. If N or K are unable to attend a period of supervised time with the father through illness, the mother must forward a medical certificate to the father within seventy-two hours of the time at which the cancelled period of time would have commenced. As requested by DHS, the existing injunction which provides for DHS to consent to medical treatment (amongst others) will be discharged.
All costs of supervision will be borne by the father. Orders will require the person or people supervising the father’s time with the children to read these reasons for judgment and the person must either conduct or be employed by a business engaged in professional supervision of this kind, or be approved by the mother. The father’s parents may be present during supervised time; subject to the consent of the person supervising, friends could also be there.
Each of the parties will be restrained from denigrating the other in the presence or hearing of the children and from allowing any other person to do so.
K’S SURNAME
In Flanagan and Handcock (2001) FLC 93-074 the Full Court considered an appeal against an order of the trial judge dismissing the father’s application for an injunction restraining the mother from using her surname for the children. The appeal raised the question as to whether a grant of injunction under Division 9 of the Family Law Act 1975 is governed by the application of the paramountcy principle; that is, that the best interests of the child is the paramount consideration.
Kay and Holden JJ. held that if the paramountcy principle was not decisive, it was certainly relevant and needed to be given careful consideration. Without fully expanding the point, their Honours considered whether the true nature of such an injunction application is governed not by s.68B (being the section specifically referable to injunctions concerning children) but by s.65D (being the more general provision concerning children). Finn J. held that the power to do so arose pursuant to s.68B(1) and the best interests of the child is the paramount consideration or essential test for an exercise of that jurisdiction.
In Flanagan and Handcock the Full Court also considered the relevance of authorities predating the 1995 amendments to the Family Law Act 1975.
Unlike many of the reported cases on this point, this is not a case where a resident parent wishes to change the name of a child who carries the father’s surname to her own surname or that of a new husband or partner. The application is brought by the father who, until DNA tests proved otherwise, was not prepared to concede his paternity, in respect of a child with whom he had no contact until she was some twelve months old. In those circumstances it is hardly surprising that the mother registered the child under her own surname. Their separation was acrimonious, K was born after separation and the father evinced no interest in her for a long time.
There is little discussion in the reported cases as to whether marriage might itself be a relevant consideration. It is hard to see its genuine relevance, but if it could be said to impact on practises about the naming of children, these parties were not married.
K has lived with her mother all her life. Pursuant to the orders made today she will have supervised time with her father, as she has had all her life. Her relationship with her father has been able to develop within that context.
Orders made in these proceedings will provide for the mother to have sole parental responsibility for K. That is not itself determinative but is a factor to consider.
It is true that N carries a different surname but that is not at all unusual in family constellations today.
There is no expert evidence as to the effects of a change of surname on K or on her relationship with the parties or N. To date she has thrived. There is no evidence on which the court could be satisfied that her surname has impacted to date in any way on her relationship with her father or her sister N. K is nearly three; while still very young, children of that age routinely know their names. She is far too young for her views to be definitive.
Little attention was paid to this aspect of the father’s application in evidence or submissions. Balancing all competing considerations I am not satisfied that it would be in K’s best interests or otherwise appropriate or useful to insist that her surname be changed to that of her father. That aspect of the father’s application will be dismissed.
COSTS
The mother and ICL sought costs of the adjournment sought by the father’s counsel after he was instructed. The general rule in proceedings in this court is that parties to litigation pay their own costs; see s.117. However, the court has the power to make such orders for costs as it considers just. The factors to take into account are those set out in s.117(2A).
The trial had been running for a number of days when counsel was instructed. The sole reason for the adjournment was the father’s decision to instruct counsel at that time. The fact of legal aid is relevant but does not preclude an application. Shortage of VLA funds mean the number of ICL appointments is now capped; wasted funds impact on VLA’s capacity to fund an ICL in other cases. In these circumstances it is appropriate that the father pay the mother’s costs, which were fixed at $4,330, and the ICL’s costs, which were fixed at $2,700. I will grant a stay of three months in the payment of those costs.
Orders will provide for the filing of written submissions in support of any other applications for costs.
EXHIBITS
I will direct that a copy of the father’s diary entries for 7 and 8 February, 2007 remain on the court file. Other exhibits can be returned, as can documents produced pursuant to subpoena, at the expiration of one month or, if a Notice of Appeal is filed, on determination of that appeal or as otherwise ordered.
I certify that the preceding
334 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown.
Dated the day of 2008.
…………………………………………
Associate.
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Costs
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Injunction
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Procedural Fairness
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Remedies
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Appeal
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