CHESTERTON & THEODORE
[2021] FCCA 560
•25 March 2021
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CHESTERTON & THEODORE | [2021] FCCA 560 |
| Catchwords - FAMILY LAW – Parenting application – where applicant father has not seen children since early 2018 – where parties’ relationship had been essentially non-conflictual but fell into a pattern of significant dispute post-separation – where applicant demands that respondent vacate former matrimonial home – where applicant commences dating and discusses those women with children – where children not comfortable in the introduction of other women so early after separation – where series of incidents result in police involvement, including at instance of applicant who reports eldest child to police for alleged incident of domestic violence – where financial disputes are said by applicant to be central to the parties parenting conflict – where disclosure is made by youngest child resulting in mandatory reporting by school and investigation by child protection services – where ongoing involvement of child inclusive conferences, family therapy and therapeutic counselling – where children entrenched in view that, at present, they wish not to communicate or spend time with applicant – where the preponderance of evidence supports conclusion that applicant is alienating children and not vice versa – whether applicant has capacity to recognise present difficulties – where extensive evidence by applicant’s family and friends attests to his non-violent demeanour – where applicant’s love for children is undoubted – applicable principles – orders made. |
| Legislation: Evidence Act 1995 (Cth), ss.68, 128,140, Pt3.2 Family Law Act 1975 (Cth), ss.11F, 60, 60(B), 60CC, 60(I), 61DA, 61DAB, 62B, 64B, 65A, 65D, 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 AMS v AIF (2002) 211 CLR 238 Bell & Nahos [2016] FamCAFC 244 Bondelmonte v Bondelmonte (2017) 259 CLR 662 CDJ v VAJ (1998) 197 CLR 172 Champness v Hanson (2009) FLC 93-407 Johnson v Page(2007) FLC 93,344 Cooke & Morton [2018] FamCAFC 9 Cubbin & Cutler [2018] FamCAFC 84 Dundas & Blake [2013] FamCAFC 133 Godfrey v Sanders (2007) 208 FLR 287 Goode & Goode (2006) 36 Fam LR 422 Harridge & Harridge [2010] FamCA 445 Heath v Hemming (No 2) [2011] FamCA 749 Holzmann & Holzmann [2018] FamCAFC 2 Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWL378 Kulat & Azzarudin [2018] FAMCAFC 97 Kuglioski v Metrobus(2004) 220 CLR 363 M v M (1988) 166 CLR 69, 78 MRR v GR (2010) 240 CLR 461 Mallory & Mallory [2018] FCCA 2335, [432] (Williams, J) citing Lennon & Lennon [2011] FamCA 571 Mellick & Mellick [2014] FamCAFC 236 Molloy & Reid [2018] FamCAFC 89 Morgan & Miles (2007) FLC 93-343 Morton & Berry (2014) FLC 93-613 Norbis & Norbis (1986) 161 CLR 513, 519, 522-533, 536 Oswald and Karrington [2016] FamCAFC 152 Panno & Panno [2018] FamCAFC 195 Ralton & Ralton [2016] FCCA 1832, [2017] FCAFC 182 Reid & Lynch (2010) FLC 93-448 SCVG & KLD [2014] FamCAFC 42, 93 Slater & Light [2013] FamCAFC 4 Stott & Holgar [2017] FamCAFC 152 U v U (2002) 211 CLR 238 Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 Williams v Smith (1960) 103 CLR 539, 545 |
| Applicant: | MR CHESTERTON |
| Respondent: | MS THEODORE |
| File Number: | MLC 3981 of 2020 |
| Judgment of: | Judge A. Kelly |
| Hearing dates: | 3, 4, 5 March 2021 |
| Date of Last Submission: | 5 March 2021 |
| Delivered at: | Melbourne |
| Delivered on: | 25 March 2021 |
REPRESENTATION
| The Applicant: | In person |
| Solicitor-Advocate for the Respondent: | Ms K. Smith | |
| Solicitors for the Respondent: | Meillon & Bright Legal | |
| Counsel for the Independent Children's Lawyer: | Mr. N.M. Eidelson |
| Solicitors for the Independent Children's Lawyer: | Altavilla Family Law |
ORDERS
Pursuant to ss 67-68 of the Federal Circuit Court of Australia Act 1999 (Cth) and ss 102D-102E of the Family Court of Australia Act 1975 (Cth), direct that the parties be allowed to appear and to make submissions before the Court by video and audio link.
All previous orders respecting X, born in 2005 (“X”) and Y, born in 2007 (“Y”) (collectively, “the children”) be discharged.
The respondent mother have sole parental responsibility for the children.
The children live with the respondent mother.
The children spend time and communicate with the applicant father only in accordance with their wishes.
Subject to paragraphs (7)-(11) of this Order, unless otherwise agreed in writing between the parties, the applicant father be restrained whether by himself, his servants, his agents or howsoever otherwise from:
(a)initiating contact or communicating with the children or either of them;
(b)attending at, or communicating with, the children’s school or activities, extra-curricular providers and health professionals;
(c)initiating any contact or communications with the respondent;
(d)attending at the respondent’s residence; or
(e)attending at the residence of the maternal grandparents.
The children have contact by telephone and/or video-conference with the father, according to their wishes (including as to the need for supervision of any such contact by telephone and/or videoconference), and to be initiated at the request of the children or either of them and not otherwise.
The respondent mother shall facilitate any request by either child for any such contact by telephone and/or videoconference.
The father be permitted to send one (1) letter by mail, to each of X and Y on four (4) separate occasions each calendar year.
The father be permitted to provide the children, by mail, gifts for each of the children’s birthdays and at Easter and Christmas.
For the purposes of paragraphs (9) and (10) of this Order, to mail any such letters or gifts respectively, the father is to transmit them by mail in the first instance to the children’s paternal aunt, Ms B, in order that she may vet the contents of such letters and consider the gifts in deciding whether such items should be sent to, and received by, the children.
The applicant father and respondent mother be permitted to receive school reports, newsletters and photos directly from the children’s school.
For the purposes of paragraph (12) of this Order, the Independent Children’s Lawyer is directed to transmit a copy of this Order to such school.
Direct that the Independent Children’s Lawyer convey to the children that the applicant seeks to make an unreserved apology for any stress and hurt which they may have experienced and of his desire that they may, in due time, seek to communicate with him and perhaps spend time with him, according to their wishes, and in order that each of them might have an opportunity to reconcile with him and thereby enhance the prospect of achieving the benefit of a meaningful relationship with their father in their lives.
Within 21 days of this Order, the Independent Children’s Lawyer confer with each of the children and communicate the effect of these orders.
The applicant father be at liberty to provide a sealed copy of this Order and these Reasons for Judgment to his treating health professionals.
The respondent be at liberty to provide a sealed copy of this Order to any treating health professional or counsellor of herself or the children.
The respondent be permitted to travel with either of the children outside of the Commonwealth of Australia.
The children’s passports shall be held by the respondent.
The respondent has leave to obtain Australian passports for the children, and to renew or replace such passports, and the requirement for the applicant to sign any passport application be dispensed with.
The children be permitted to travel outside of the Commonwealth of Australia for any school and extra-curricular trip and/or camp.
The parties be at liberty to provide a copy of this judgment to a state court.
Within 28 days of this Order, the appointment of the independent children’s lawyer be discharged.
All previous applications and any response be otherwise dismissed.
Pursuant to sections 65DA(2) and 62B 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 are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Chesterton & Theodore is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3981 of 2020
| MR CHESTERTON |
Applicant
And
| MS THEODORE |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment explain the orders that have been made in a parenting proceeding brought under the Family Law Act 1975 (Cth) (Act) respecting the two clever, articulate and mature adolescent children of the parties’ relationship, X, born in 2005 and Y, born in 2007. Although the parties were agreed in final parenting orders in August 2019, the applicant father reflected upon the matter and shortly afterwards orders were made, in September 2019, setting aside those final orders.
Since that time the parties have been assisted by the provision of a series of reports made under s 11 of the Act, child inclusive conferences, family therapy, psychiatric assessments and a family report. Those resources have been applied to assist in the resolution of the matter in the circumstances where the children have had no contact with their father since March 2018, adhering to the view that they do not wish to do so. The stress of the parties’ conflict and this litigation has been intense for the children and it is agreed, should end.
The applicant father seeks orders for equal shared parental responsibility and that, upon her attaining the age of 16 years, X be free to decide for herself where she should live, what time she should spend, and what contact she should have, with either parent. In relation to Y, the applicant father seeks immediate spend time orders, on a graduated and increasing basis. A range of other detailed orders are sought in respect of birthdays and special days.
More significantly, the father’s design is that the children should be immediately removed to his care for a period of 90 days which, upon his research, is a technique which would facilitate that there was an effective attempt to break the current impasse. As was confirmed in the course of cross-examination the father sees himself as a “rip the Band-Aid” person and considers his children to be of sufficient resilience that they too would cope with such a course of action. Presently, these adolescent children are resolute that for the moment they do not want any contact with their father to occur.
The respondent mother seeks orders for sole parental responsibility and that the children should live with her and communicate with their father according to their wishes. The mother agrees that the father be permitted to receive school reports, newsletters and photos directly from the children’s school and that, otherwise, the father be restrained from initiating communication or contact with the children including by attending at or communicating with the children’s school, extra-curricular providers and medical providers.
The independent children’s lawyer, who agrees in the making of final orders, was generally supportive of the recommendations contained in the family report dated 27 January 2021 by Mr C, family consultant supporting orders that the children should reside with their mother and spend no time with their father. The family consultant also supported that, upon attaining their 16th year, each child be afforded the autonomy of determining for herself their spend time arrangements with their father. The consultant also supported orders that would regulate the provision of school reports, newsletters, photos together with the sending of letters and gifts and ancillary relief.
Mr Eidelson of counsel for the ICL provided a brief opening submission in which he described the case accurately as a tragedy in which there was no doubt that the father loves his children but that the dysfunctional evolution of parenting arrangements has brought about a serious level of concern in each child that they do not, at present, wish to spend any time with their father. Counsel identified that there may, in time, be the prospect that the children would accept the return of their father into their lives. It was submitted that the approach being taken by the father was not promoting, but rather retarding, the achievement of that result. For his part, the father’s outline, submissions and evidence made plain his regret for events which have happened and, while attributing blame to both parties, sought to emphasise that he had taken active steps to obtain therapy. Quite simply, he wishes to see his children. He has expressed an abject apology for particular incidents. By contrast, other aspects of his evidence, coupled with the expert evidence, strongly suggests that the father lacks insight, and a capacity for insight, in relation to aspects of his behaviours and their impact upon the children.
For the reasons that follow, I have concluded that the best route by which the children might reconcile with their father is for their wishes to be respected.
Procedural History
On 6 July 2018, the father instituted a proceeding in the Family Court of Western Australia seeking a resumption of spend time with the children. Events which occurred in that proceeding are considered below.
The applicant stated that 1 November 2017 was the date of final separation. By his supporting affidavit the father deposed that the parties’ post separation agreement had been for week about spend time but that the children had simply played one parent off against the other and that they would not complete their normal household duties. He stated that the mother acquiesced in the children’s conduct making it impossible for him to achieve any appropriate behaviours in the children. He deposed that while there was food in the fridge for them at his home, the nanny at the mother’s home prepared their meals. The father accused the mother of stealing the keys to the family motor vehicle and that he then had removed the wheels from another vehicle in response. The father complained that the mother had involved the police on several occasions. As to police involvement, he deposed that there had been “a couple of incidents where Police were called by either Ms Theodore or myself, no reports were filed by police.” He regards the police involvement as unjustified.
On 10 July 2018, a family dispute resolution practitioner made a decision that dispute resolution was not a suitable media for the case: Act, s 60I.
By her response filed on 15 August 2018, the mother proposed that the parents should have equal shared parental responsibility with the children to live with her and for the provision of a single expert report and the parties to encourage each child’s relationship with the other parent. By an affidavit filed on that date, the mother said that she had always been the children’s primary carer and that the father had not played an active role in their lives as he worked full-time and on weekends or participated in sports and travelled interstate and overseas. She accepted that the father had paid child support as assessed but otherwise she had paid all parenting costs, including private school fees. The version of events she recounted was that as a result of domestic disputes the children became increasingly resistant to returning to their father’s care and expressed a wish not to spend any time with him until his behaviour improved. She deposed, “the children were expressing to me how much their father was drinking and how uncomfortable it is the way their father treats and speaks about women (particularly those he was seeing).” She deposed that the father did not understand appropriate boundaries, especially for young girls. She described the father’s behaviour and language as being constantly aggressive towards her and as making the children feel unsafe. It was (and remains), the mother’s position that she has told the children she will assist them in seeing their father when they consider that they are ready to do so.
By an amended application filed on 22 August 2018, the father changed his position, apparently doing so in response to his having relocated in July 2018 from Perth to Suburb D, in Melbourne. He sought “access to the children as agreed between the parties” but for a period of not less than four weeks per year and interim orders for “access to the children at their discretion.”
On 20 September 2018, orders were made for the parties to attend a case assessment conference but with spend time for Y to be deferred until she had completed a protective behaviours course. While no orders for spend time were made, the applicant was permitted to send cards and presents to the children subject to them being reviewed by the respondent for appropriateness.
By an amended response filed on 31 October 2018, the mother sought orders for sole parental responsibility and for interim orders with respect to the children’s spend time and communication with their father to be detailed following a report by a family consultant. Final orders were also sought for an adjustment of property interests and those final orders were made, by consent, on 8 November 2018.
In January 2019, a psychologist, Ms E, facilitated a telephone call between Y and her father. No concerns were raised. In February 2019, a child inclusive conference was undertaken by a counsellor, Ms F, who identified a pathway whereby the children might spend time with their father in accordance with their wishes.
It appears that a final parenting hearing was scheduled for 28 February 2019 and on 18 February 2019 the father filed an application in a case seeking interim orders to permit the children to spend time with him in Melbourne and, when he was there, in Perth. Orders for communication were also sought.
While the parties achieved a financial resolution of their property issues, from the applicant’s perspective, he considered that the mother’s attitude in relation to parenting issues was heavily influenced by her resentment in relation to the terms of the financial settlement, including that she had to share accumulated entitlements to superannuation with him. I examine this issue below.
In the period December 2018 – March 2019, no less than twelve affidavits were filed by or on behalf of the father. Many of these deponents would make further affidavits for the purposes of the trial in March 2021.
On 6 August 2019, the parties executed minutes of consent orders by which they agreed in final parenting orders. Pursuant to those orders, the parties were agreed that the mother should have sole parental responsibility for the children, live with the mother and undergo family therapy with the object of facilitating communication between the parties so as to address the children’s needs. Such therapy was agreed to be essentially non-reportable and to be of such duration as the therapist deemed appropriate. However, on 9 September 2019, the father obtained orders setting aside those final orders.
Thereupon, the court appointed an ICL who in turn facilitated the involvement of a family counsellor, Ms G.
In 2019, a number of other applications in a case were filed including by the father with respect to family therapy and for the children to spend unsupervised time with him, and by the mother to permit X to travel to Country H and the Country J on different trips in 2019 and 2020, one of which was to participate in a hobby championship. The making of the father’s application occurred in a context where the parties were bound by a Conduct Agreement made on 19 September 2018, operative for a period of two years, which restricted the applicant from communicating with the children other than by telephone and in accordance with their wishes. There was evidence that in the lead up to filing his application in a case, the applicant had written repeatedly to the respondent’s solicitors seeking that the children should spend time with him overnight and unsupervised.
On 1 April 2020, the mother and children relocated to Melbourne.
In April 2020, the proceeding was transferred by the Family Court of Western Australia to the Federal Circuit Court of Australia, Melbourne registry. Included in the interim orders made at that time was that the respondent have sole parental responsibility for the children who should live with her and communicate with their father, electronically, in accordance with their wishes.
On 20 May 2020 orders were made pursuant to ss 11F, 13C and 69ZW of the Act together with orders for each party to undergo a psychiatric assessment, the provision of a family report, the appointment of an independent children’s lawyer and an interim hearing, a mention and a final hearing with directions to regulate the orderly preparation of each of those matters.
On 27 May 2020, orders were made for a psychiatric assessment to be undertaken upon each of the parties by a psychiatrist, Dr K, and for the provision of family therapy by Dr L. Orders on that day included that the children might communicate with their father up to two times per week.
On 24 July 2020, orders were made for the children to attend upon a family therapist for the purposes of reportable family therapy. The order was conditioned upon several matters including: (a) the father having commenced therapeutic counselling; (b) a psychiatrist, Dr K, reporting to the family therapist; (c) the family therapist and the father’s therapeutic counsellor having conferred and agreed that it was appropriate for family therapy to commence. The ICL was ordered to furnish certain materials to the family therapist.
On 22 October 2020, an order was made that the final hearing listed for 3 March 2021 be accorded priority. Orders were made, by consent, for the mother to send copies of current photographs of each of the children and their term reports for terms 1, 2 and 3, 2020. It was recorded that the mother had taken up recommendations by a family therapist, Mr M that X be referred for psychiatric assistance. A further notation was made reminding the ICL of the need to ensure that she had conferred with the children prior to final hearing to obtain their views.
I accept that the applicant, as a self-represented person, has sought to adhere to the orders and directions made for the preparation of the final hearing.
At the time of trial, no ss 67Z or 69ZW reports were provided.
Conduct of trial
Although a series of directions were made for the orderly preparation of the final hearing, many of those directions were not observed in a timely way. The applicant’s communications with chambers indicated that he sought additional time to file documents by reason of his difficulty in obtaining legal advice over the Christmas period. In the event, the applicant’s trial affidavit was filed late, however, with the degree of co-operation that was shown by all parties, I considered the trial was undertaken and completed with proper attention being allowed to the needs of the parties, the ICL, and the dictates of efficiency. Nonetheless, the circumstance that the applicant delayed in the filing of his trial affidavit entailed the consequence that while the respondent had filed her trial affidavit in a timely way, she had not had an opportunity to address the applicant’s trial affidavit in chief. Instead, by reason of his late filing, that opportunity was instead taken in the applicant’s trial affidavit.
The applicant father, who has been self-represented in all parenting aspects of this proceeding, filed a large volume of material. Both on the second and third day of the hearing, the applicant transmitted a large number of documents upon which he sought to rely and did so notwithstanding that he had closed his case. The legal representatives of the other parties effectively reserved their position in relation to the tender of any such documents, none of which had been included in the court book. Having regard to the principles to be applied in the conduct of child-related proceedings, efforts were made to accommodate consideration of such documents upon a cooperative approach to the conduct of the case and to achieve that a final hearing was completed without undue delay and as little formality, and legal technicality or form, as was possible. As a result, I have considered each of those documents, and although not each of them may be referred to in these reasons for judgment, I have attached such weight to them as I considered to be appropriate.
Objections
The applicant filed a notice of objection to the tender of hearsay evidence: Evidence Act 1995 (Cth), s 68. He raised 388 objections and, in turn, the respondent answered those objections by which some concessions were made but otherwise his objections were resisted. The objections were considered in chambers. The parties were informed, and I confirmed, that insofar as they were resisted, the objections were overruled. Section 68 of the Evidence Act lies within Part 3.2 of that Act and, by s 69ZT(1)(c) of the Family Law Act, s 68 of the Evidence Act does not apply to child-related proceedings. Further, by s 69ZT(2), the court is entitled to attach such weight to evidence to which objection might otherwise be taken by dent of s 68 of the Evidence Act. In substance, I considered that in the circumstances of this parenting application it was appropriate to attach such weight to those parts of the respondent’s affidavit as had been the subject of objection, doing so in light of all of the evidence adduced at the final hearing, including having regard to the issues upon which the applicant cross-examined.
Cross-examination – s 102NA
Shortly before the final hearing, at the instigation of counsel for the ICL, a communication with chambers was made enquiring as to the necessity or desirability of making orders pursuant to s 102NA of the Act. The availability of such orders had been addressed in a fact information sheet annexed to an order made on 20 May 2020. The issue had also been raised during the interlocutory phases of the hearing. Having regard to the apparent frequency of email communications to chambers and the manner in which it appeared the proceeding may be conducted, a notation to an order made on 24 July 2020 recorded that if parties had any substantive application to pursue they were to do so by application in a case on reasonable notice and supported by cogent evidence. In the event, no application was made pursuant to s 102NA.
At the hearing, the issue was further ventilated with the parties and, with his customary attitude of lending all assistance to the court, Mr Eidelsen of counsel for the ICL drew attention to the power under par 102NA(3)(a) of the Act for the court to make appropriate orders and to do so of its own initiative.
The father intended to cross-examine the respondent. Allegations of family violence between those parties were in issue. Although a series of interim orders have been in place, including quite recently, no final family violence order has been made. No injunction has been issued pursuant to ss 68 or 114 of the Act. While there was extensive evidence of the involvement of police, and of various interim intervention orders, no charges or convictions of a relevant kind are established by the evidence. No order has been sought, or made, that the applicant or respondent must not cross-examine the other personally. Nor has an order been made that such cross-examination should only be conducted by a legal practitioner. The ICL did not seek such an order.
Relevantly, the parties were agreed as to four matters. First, in consequence of the Covid 19 pandemic, the final hearing was conducted by audio and video link. As a result, the applicant would be physically remote from the respondent when cross-examination took place. Secondly, not uncommonly, the objectives sought to be secured by provisions such as s 102NA can be achieved by a variety of means, including in a non-Covid 19 environment, for the parties to be located in separate courts during a hearing or for parts of it. Thirdly, the matter had been set down for final hearing with priority. Fourthly, each of the parties were agreed that they wanted the hearing to proceed to finality. I did not consider an order pursuant to par 102NA(3)(a) to be appropriate.
Nature of proceeding
At the commencement of the trial some time was occupied in explaining to the applicant the nature of the hearing. Although of obvious intellect, the applicant was self-represented. An explanation was provided as to the nature of the trial including that it was a final hearing, and that the order in which the trial would proceed (from the applicant, to the respondent and finally the ICL). The nature of opening and closing addresses was explained as was the manner of evidence in chief, cross-examination and that he would be afforded an opportunity to clarify matters in reply. Some assistance was provided in leading evidence in chief. Discussion ensued as to the manner in which cross-examination would occur, with the parties to consider, and answer, the question being asked.
Steps were taken during the conduct of the hearing to achieve the result that witnesses were called in an appropriate order and without the interposition of any witnesses in the case of any other party. This did not occur. The court confirmed that the parties’ outlines of case had been considered and, after each party had been given an opportunity to make any further brief introductory remarks, an adjournment occurred before the applicant came to give his evidence in chief and be cross-examined. In the course of his evidence and during submissions, the applicant became quite distressed on occasions and the hearing was adjourned to allow him to recover and compose himself.
The applicant sought, and an order was made for witnesses to be out of court. The applicant’s case involved reliance upon a large number of affidavits which I have considered. The solicitor-advocate and counsel for the respondent and ICL respectively adopted the position that they did not seek to cross-examine several of witnesses whose evidence was largely testimonial in nature.
None of the expert witnesses gave viva voce evidence. In particular, the applicant’s treating psychologist, Ms N, was not cross-examined upon her very brief report. In the course of opening, the applicant stated that his psychologist was providing non-reportable therapy and if she was to be called, required a summons for that purpose. The issue was not pursued. While the applicant indicated that he did not intend to cross-examine particular witnesses and reserved his position in relation to others, in the event, this did not occur.
At the conclusion of the first day of hearing, the court discussed with the applicant the approach which he would be taking in cross-examining the respondent and of the need to focus on issues which may assist in the determination of what final orders were in the children’s best interests. The applicant advised that he had assembled some 400 questions to ask.
The applicant stated that he had spent three years preparing the case and that he had prepared all of the documents to the best of his ability and I accept that he did so. At a later point, he clarified that his reference to having spent such three year period in preparing was to be understood as having prepared himself emotionally for the conduct of the hearing. I also accept that this was the case.
I did not consider the questions asked of the applicant or other witness gave rise to an occasion on which an objection might properly have been taken.
At one point the applicant proceeded upon a line of cross-examination which exposed him to the risk of a waiver of privilege upon a potentially significant issue. Again, counsel for the ICL intervened. Following some discussion and a further brief adjournment, the issue was not pursued any further.
In the course of closing addresses, some efforts were made to clarify the substantive submissions being made by the applicant. I regard the applicant as having made every effort to conduct his case appropriately.
Other events at trial
Immediately before the applicant was to commence his cross-examination of the respondent, he made application that each of the lay witnesses who had filed affidavits in his case be permitted to participate in the video hearing of the proceeding. While neither the respondent nor the ICL’s counsel objected to those persons being provided a link to enable them to observe the proceeding, I acceded to a request from the respondent that such persons should disable their video so that they could observe and hear her in giving evidence but that she would not see a screen displaying their attendance. They did so. As the respondent correctly observed, had the non-parties been present in court she would not have been able to observe them from a witness box.
Early in the second day of the hearing, the court became aware that, in contrast with the indication that the father would transmit electronic copies of one parenting pamphlet and a photo about which he made a complaint when giving evidence, he had transmitted no less than 24 documents to each of the ICL, the respondent and the court. It appeared that the documents had been transmitted by the applicant to the other parties, and the court, in some six tranches. The transmission of those documents occurred in the context that although the applicant’s evidence was that he had spent three years preparing for the case (including emotionally), and, despite an order for the inclusion of all relevant documents in the court book, no such documents had been added by him. After hearing submissions from the respondent and ICL, I indicated to the applicant that he may need to demonstrate why each individual document was of relevance but that he could expect a degree of latitude.
During the respondent’s cross-examination, the court took an opportunity to gain some appreciation of the contents of the folder containing those 24 documents that had been transmitted by the applicant and to gauge the apparent relevance of any such documents. From this examination it emerged that, included within those documents were three documents in Microsoft Word format apparently containing the questions which the applicant proposed to put to the respondent. When that fact became apparent, the respondent was asked to leave the court and the attention of the applicant and each other party was drawn to that discovery. Thereupon, the applicant stated that the inclusion of those documents containing his questions had been a mistake and that he had realised this mistake at 2:00am that day. The applicant had not informed the court of his awareness of that mistake earlier. After hearing further submissions from counsel, a direction was made that the ICL and respondent’s lawyer delete those documents from any email attachments that had been received from the applicant. For the avoidance of doubt, Ms CC, who appeared as solicitor-advocate for the respondent, explained that the emails received from the applicant had been on-sent to her client. To the extent such transmission had occurred, nothing further could be done to quarantine the documents containing the applicant’s proposed questions of the respondent.
Further, in the course of his cross examination, a series of questions were put which were predicated upon him, at the least, having slapped the respondent in the face and that he had transmitted emails to her lawyer indicating that he had been prepared to conduct himself in a way which would result in him being imprisoned, if that had been necessary to ensure that he saw his children. Counsel for the ICL raised, out of an abundance of fairness, that the respondent might be warned of the implications of making such disclosures whilst cross-examining the respondent. Before that issue could be taken up with him, the applicant volunteered he was quite prepared to take that risk.
After further submissions from the ICL, including in relation to the scope and operation of s 128 of the Evidence Act, and discussion with the applicant as to the wisdom of pursuing the course that he had embarked upon in relation to these allegations of violence and proposed violence involving the risk of imprisonment, the applicant agreed that he was in no doubt about the meaning of the expression “taking the 5th” and that he would be quite prepared, as he said, to continue on that course on the basis that the issue could be solved by the respondent agreeing not to institute any such proceedings. I informed the applicant that that was not an acceptable or appropriate solution and he proceeded to pursue issues of domestic violence at some considerable length.
In the course of the applicant’s cross-examination he proceeded upon a line of questioning which appeared to trench upon privileged communications respecting the resolution of the application and the costs of proceeding to trial. Counsel for the ICL took occasion to object, doing so on the basis that both parties and the ICL had been engaged in certain communications upon this issue and that the applicant’s approach may expose him to the possibility that the parties’ other communications would be tendered in evidence so as to provide a complete picture to the court. Counsel foreshadowed that the applicant may well be desirable of his own communications not being placed before the court. At this point, in apparent recognition of the dilemma, the applicant became distressed and a brief adjournment occurred so as to enable the parties to reflect upon the good sense of pursuing this issue in the evidence any further. The issue was not pursued.
Limit on cross-examination
After some prolonged questioning and following the ICL’s repeated objection, I placed a time limit upon the applicant pursuing further questions in relation to historical issues of family violence. In substance, the objection was that in the face of the admission of having struck the respondent and his evidence that he would have been prepared to be imprisoned as the price for seeing his children, the applicant was clearly prepared to commit offences and so, it was said, cross-examination designed to dilute the allegations of violence was a sterile pursuit. Despite that time limit, the applicant was permitted some additional latitude and time in relation to the issue. At a later point, a further objection was taken by the ICL that the constant pursuit of, and questioning upon, this topic was, in effect, arid, in light of the applicant’s admitted physical violence toward the respondent and his statements that he would be prepared to be imprisoned in order to see his children. The court granted an early lunch adjournment and asked the applicant to reflect upon this line of questioning. Following the adjournment, the applicant turned his questioning to the issues arising from various expert reports.
Finally, upon the conclusion of the second day of hearing, all parties were invited to reflect upon the final orders and upon which they would make submissions. Each of the respondent and ICL did so. For the avoidance of doubt, it was also made clear to the applicant that his outline of case distinctly identified each of the orders that he sought and he did not need to duplicate or resend that document if it reflected what he sought by way of final orders.
Evidence
The issues raised in this proceeding are to be determined on the balance of probabilities: Evidence Act, s 140. Where there were inconsistencies in the evidence, the parties were still required to prove their claims to the requisite standard of proof: Evidence Act, sub-s 140(1). In the determination whether an issue has been established to the requisite standard, the court may take into account the nature of the claim and response, the subject matter of the proceeding and the gravity of the matters alleged: Evidence Act, sub-s 140(2). The more serious the allegations, the more inclined I was to take into account the gravity of that issue in deciding whether it was made out.[1] Where the evidence did not permit the court to make an affirmative finding either way on a particular issue, the court was not bound to do so and could find that the party which bore the onus of proof had failed to discharge it.[2]
[1] CfJohnson v Page(2007) FLC 93,344, [72].
[2] Kuglioski v Metrobus(2004) 220 CLR 363, [60].
To varying degrees the parties’ affidavits addressed matters which lay at the periphery of the core issues which fell for determination. Where divergent views are put in issue “a tribunal of fact may properly refuse to accept either party’s case and work out for itself a view of the case which did not exactly represent what either party said”.[3] The court is not required to mention every fact or argument relied on by the parties as relevant to an issue.[4] Moreover, in the context of a proceeding which calls for the exercise of a discretionary judgment, it is not necessary to refer to or make an explicit finding upon each disputed item of evidence. Rather it is sufficient that the court’s findings are appropriately clear.[5]
[3] Williams v Smith (1960) 103 CLR 539, 545; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447, [19].
[4] Whisprun, (2003) 200 ALR 447, [62].
[5] Housing Commission of NSW v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378, 385-386; Molloy & Reid [2018] FamCAFC 89, [42]; Cubbin & Cutler [2018] FamCAFC 84, [13]; Holzmann & Holzmann [2018] FamCAFC 2, [34]; Bell & Nahos [2016] FamCAFC 244, [28]-[29].
These principles apply to the determination of this proceeding.
Evidence was given by the applicant, his fiancé, and the respondent. A large number of other affidavits and reports were relied upon but no other witness was required for cross-examination. From the outset, the applicant was clear he did not wish Dr K to attend for cross-examination. Nor did he seek the attendance of certain other witnesses. While he had reserved his position in seeking the attendance of Ms F, a family consultant, and Mr C, the family report writer, ultimately he did not require their attendance.
The applicant father presented as a witness who tried to give his evidence in a forthright and candid manner. At times his belief in particular aspects of his case was instructive, including of his belief that the respondent is activated by malice and is a malevolent person bent on preventing the children from ever having any relationship with their father. I found the respondent’s demeanour to be candid and forthright. Each of them was deeply stressed by the hearing.
A feature in the course of evidence was the manner in which the applicant spoke of himself in the third person and that the respondent often did likewise when speaking of him in answer to his questions. The nature of doing so was also reflected in some of the documentary evidence, in particular, the s 11F and other reports in which the children also spoke of ‘Mr Chesterton’, as distinct from their father, dad, or daddy and that when questioned on this issue seemed to identify with him as Mr Chesterton, rather than as their father.
Each of the parties were agreed that the chronology of events over the past several years was adequately distilled in a recent family report. My principal findings upon the parties’ evidence and the inferences which I consider are properly open to be drawn from it are set out below.
Background
The applicant father is aged 44 and the respondent mother is aged 47. Both parents obtained private school educations in Melbourne and obtained tertiary qualifications. They met at Employer O. Each of them is in employment.
The father has re-partnered and is engaged to re-marry. He lives with his fiancée and her two children, in Suburb P. The mother, who has not re-partnered and does not disclose her address, lives with the children who attend the inner city private school where she had been educated.
In 2003, the parties commenced cohabitation in Victoria and were married in 2004 with X and Y being born in 2005 and 2007 respectively. On 1 February 2019, the parties were divorced.
It appears the respondent was the primary caregiver until separation, however, it may be noted that for a time following the global financial crisis the applicant was unemployed as a consequence of having been made redundant and in this time was at home with the children and cared for them. Moreover, for most of their lives the children have been in the care of a nanny in the circumstance that each of the parents have held down demanding employment.
The children are in good health save that they have experienced extraordinary stress arising from the parental conflict and more particularly, this litigation and all that it has entailed. The children are undertaking study in years 8 and 10 at a private school in Melbourne. They were described by their father as brilliant, very capable and smart and as responding well to love, presents and gifts with interests in sport and music.
The respondent described her periods of maternity leave and the difficulties attending X’s infancy and infections which she had suffered. Notably, the respondent described the applicant in terms of being very helpful during the early months of X’s infancy and that he had been an active, supportive parent and partner who was “really good to me and would be very supportive and would help as much as he could.”
From 2009 until 2010, the father was unemployed as a result of having been made redundant following the global financial crisis. The applicant described various trips he had taken with the children in happier times including to various locations around Australia and Melbourne and the manner in which he had cared for them.
In 2010, the parties relocated to Western Australia as a result of the respondent been offered remunerative employment. In light of the demands of that work and otherwise, from about 2010 until late 2019, the children were also in the care of a nanny. The respondent acknowledged that in 2010 at a time when she was required to travel up to 3 nights per week for her work, the children had been cared for by the applicant and nanny. She stated that as a result of the demands placed upon her in the period March – May 2012 during a major shutdown of an industrial facility, she became concerned by the children’s ability to cope in her absence including that X continued to pull out her eye lashes and Y frequently wet her bed for over a month.
One aspect of difficulty in the parties’ relationship was the applicant’s demand that the respondent should have sex with him every two days. She recounted that when she resisted, he would stamp his feet and complain that she was not being fair and that she often just gave up. The parties’ relationship became characterised by a pattern of sex and non-sex days that was rigidly adhered to. The respondent progressively found herself being resentful of such demands and found such demands to be increasingly controlling. From about 2015, the respondent regarded the applicant has been sexually aggressive. The applicant considered that at times he has had to beg for the respondent’s affection. When cross-examining the respondent, he pressed for a concession (which was given) that she had undertaken six sessions via her Employee Assistance Program to come to terms with feelings of their inappropriate sexual relations. The applicant adopted the attitude that the parties had enjoyed “a quickie”.
It did not seem to be seriously in dispute that the relationship was affected by alcohol usage by both parties with the mother complaining that the father’s Friday nights with the ‘boys’ also included the use of marijuana and that he used cocaine while interstate or overseas.
It appears each of the parties worked hard but the respondent considered that once the applicant got home, “it was all about him”. The pattern seemed somewhat reflective of the applicant’s upbringing in a house where his father, a professional, had been hardworking and usually absent from his life.
The mother characterised the father as displaying controlling and intimidating behaviours while the father characterised the mother as denigrating him both in the presence of the children, family, friends and his employers.
It was the father’s case that before 2014 – 2015, the parties and children had enjoyed a close and loving relationship as a family. It was his case that, unbeknown to him, from about 2014 – 2017, the respondent had “checked out” of the relationship but carried on for the sake of the children. By contrast, the respondent stated that although the family had engaged in activity such as camping, by 2016 the family socialised less regularly due to her unhappiness.
The respondent described the applicant as having an expectation that the children would be both perfect and obedient to his instruction and that difficulties emerged as they grew older and began to disobey him or answer back. She deposed that the applicant criticised her for having not sufficiently disciplined the children and in due course began slapping and yelling at the children. The respondent also described the applicant and X as clashing. Her evidence included that she observed the applicant chasing X around the house, of swearing and shouting at her, grabbing her by the hair and hitting her across her bottom or on her legs. While denying domestic violence of any kind, the applicant accepted that he had threatened to discipline the children after warning them on more than three times that he would do so.
While the parties’ relationship was not continually attended by violence, the respondent recounted an incident on 14 August 2015 when she had challenged the father stating that some of his work colleagues found him to be arrogant and that he had “room to grow”. During her interview by Dr K, the respondent described the applicant as being good at his job but known as a ‘smart arse’ who would put people down and upset them by calling them stupid. She stated that managers had asked her to help them to manage him. By her account, when she did so, the applicant responded angrily that he was “the best and then the father charged at me and hit/whacked me across the head with his arm and then fought me and bent my thumb back causing injury that required a splint for six weeks. There were many times after this that the father would charge at X and I would need to stand in his way threatening to leave him if he hit her. The father always obviously favoured Y over X as X stood up to him.” From the father’s account, this incident was the product of alcohol and marijuana use and a response to the mother smashing his mobile phone and abusing him. By the mother’s account to Dr K, on this occasion the applicant had gone ballistic, yelling “I’m the best”. She deposed that although the applicant apologised for this incident the following day, he had done so on terms which were conditioned upon them having sex.
The relationship between the applicant and X was attended by difficulty as they were both strong people. One theme in the case was that the applicant was plainly not very loving of her and preferred Y over her sister. As the evidence evolved, it seemed that X perceived the father to be far fonder of Y than herself. By contrast Y was seen as being more compliant, smarter and knowing how to handle and not upset her father. In addition, on occasions the respondent would stand between the applicant and X when he had charged at her. Sometimes, the conflict would escalate to the point where the respondent threatened to leave the applicant if he struck X and on such occasions X would ask the respondent why she put up with him. The applicant denied displays of favouritism toward Y and explained that (contrary to part of the narrative), he had given the children the same presents.
On the respondent’s case, the applicant was an outgoing person who liked to socialise and who did so particularly in the last three years of the relationship including by catching up with friends most Fridays for a “boys night” and that this socialising was frequently with a friend Mr Q. The parties each asserted that the other drink heavily.
Each of the parties’ trial affidavits provided a detailed account of their current circumstances and which I have considered at some length.
Separation
On 25 October 2017, the parties separated under the one roof where they remained until 4 December 2017 when the mother and children moved out of the former matrimonial home. The respondent deposed that the applicant had invited friends over for dinner on 25 October 2017 and, being upset with her, had sworn at her to a point she decided that the marriage was over (“I’m done”).
When interviewed by Dr K, the applicant described himself as being blindsided by the respondent’s announcement that the relationship was over and that he felt abandoned. It appears the applicant thought the problem would abate but then became upset and could not accept the finality of the situation despite his request that the respondent participate in counselling. His apparent disbelief that the relationship was at an end was echoed in the closing aspects of his cross-examination of the respondent and in his closing address.
The respondent said that on the day following separation, on 26 October 2017, the applicant (in the presence of the children), had said that he would no longer pay the children’s private school fees and had made other legal and financial threats on that occasion. The children, each of whom is said to be very bright, were apparently deeply upset on account of their love of their schools. In short, the inherently destabilising nature of the failure of their parents’ relationship was playing out in front of the children and compounded by the threats that they would also be removed from their schools.
In the initial period of separation, on some occasions, the parties undertook a trial “week about” parenting arrangement which they effected by one parent moving out and staying with a friend during the week in which the other parent was to care for the children. At some point, when the father refused to move out of the family home, the mother moved into the adjacent granny flat.
December 2017 also involved the children and parents travelling to Victoria, with the children spending a fortnight with their mother and a fortnight with their father at the paternal family farm.
The week about spend time arrangements continued in January/February 2018 but thereafter was terminated. Regrettably, the father has had barely three hours communication with the children from that time.
Relations between the parties, the children and their father progressively deteriorated, including to the point where the children did not wish to spend time with him and did not feel safe with him. The mother recounted to Dr K, that following an argument on 16 December 2017, in which the applicant became verbally abusive and increasingly aggressive to the point where X had intervened she concluded “I was done.” From the father’s perspective, the catalyst for the deterioration of relations had been his taking new girlfriends to Country S which had progressively enraged the mother. In particular, in 2018, the applicant had taken his now fiancé, Ms R, to Country S. I do not accept that the respondent was enraged by the applicant’s trips to Country S with new girlfriends. The adoption of any such stance by the respondent was entirely inconsistent with the facts that she had been the decision-maker to end the relationship and that it had been he, not her, who had been blindsided by that decision.
In July 2018, the father relocated from Western Australia to Victoria.
On 1 April 2020, the respondent and children relocated to Victoria.
An overriding theme in the case is that the father has no insight, and no capacity for insight, into the effect of his behaviours especially upon the children and that they do not feel safe in his care. The deterioration of the parties’ relationship is addressed further below.
Incident in granny flat
The respondent deposed to an incident in mid-November 2017 in which the applicant variously stood over the top of her and, while saying that he loved her, behaved in a manner that drew a response from X of her telling her father to leave her mother alone. Thereafter, when the respondent went to the granny flat to change she was followed by the applicant who, after telling the children to leave, shut and locked the door to the flat and close the blinds and prevented her from leaving the flat. The applicant’s evidence was that he had shut the blinds as he did not wish the children to observe the parties in conflict.
Eventually, after the applicant had left the flat, it was the respondent’s case that the children “rushed in” to check that their mother was okay and, being concerned for her safety, slept with her in the granny flat that night.
Perhaps a week afterward, on 23 November 2017, the respondent returned home to find the applicant intoxicated. An argument ensued during which the applicant swore at X, telling her that he would no longer pay her school fees and then turned on the respondent stating that he would take the girls away from her and demanded that she get out of the house.
The respondent retreated to the granny flat only to realise the children were in the main house. According to the respondent, the applicant repeatedly yelled at her from outside of the granny flat demanding that she ‘get out’. From this evidence it would appear that the more substantive dispute occurring on this date had been the father’s insistence, and the mother’s then refusal, that she must leave the home. At all events, the mother telephoned police who attended the home and told the father to leave the property. While he did so, the applicant continued to contact the mother repeatedly by text and telephone. Such conduct illustrated a further behaviour by which the father deployed a practice of contacting the mother with a high level of constancy and would do so, both directly and indirectly, including via the children and others, including the maternal grandmother and the respondent’s lawyer.
The applicant denied being the aggressor in these incidents and deposed that both parties had threatened to call police, adding that he had sought to obtain the chest cam footage from the police officers but that it was not available (in circumstances where no crime had been committed). Whatever view be taken of this incident, I am satisfied that the events recounted in these reasons for judgment have given rise to a sense of fear in the respondent and children which is still palpable. As counsel for the ICL observed, the applicant dedicated perhaps 75% of his cross-examination of the respondent in seeking to demonstrate that the evidence of conflict was entirely exaggerated
Incident at farm
The younger child made disclosures to her mother that for at least some part of the period 14 – 31 December 2017, she had slept in the same bed as her father during a holiday to the paternal family’s farm in Victoria and that on one occasion the father and child had massaged one another while wearing only their underwear. According to Y’s disclosure, she and her father then slept in the same bed with the father spooning her. I did not understand this evidence to include any allegation of sexual misconduct. Her disclosure of this incident (2017 farm incident), which occurred in September 2018, was, it was said, confirmed by X who had slept in the same bedroom as the father and her sister by reason of her concern for the younger sister.
In an s 11F conference in February 2019, X described the incident in which the father had massaged Y while in bed stating “I just got so worried, I thought that is not okay, so I slept with her in the same room after that. I’m worried Y can be groomed, she is not great at standing up for herself.”
Y’s disclosure of the 2017 farm incident occurred following her participation in a protective class at her school and was made, in the first instance, to a teacher who in turn contacted the mother to advise that the school was subject to a mandatory obligation to report the issue to relevant authorities. The process of that report and investigation occupied some many months and the father has been deeply frustrated by the delay in progress before the Western Australian Family Court in resolving the issues arising from this incident. In the event, no action was taken against the father. The respondent’s evidence is that although the school made a mandatory report to a child protection agency, she has not seen such report and understood the agency had not pursued the matter. In the course of the investigation she received a recommendation that Y attend some form of sessional counselling by Protective Behaviours, WA. The respondent, who discovered that the service was no longer operating, arranged for alternative counselling for Y.
In closing addresses, the father averted to a CD containing records of the investigations and reports following upon the mandatory reporting by the school. For the avoidance of doubt, the father was advised that the documents on that CD had not been relied upon by any party or included in the court book. He was told on more than one occasion that the court would not be making a finding that he had committed child abuse in relation to this incident. Counsel for the ICL responded explicitly that it was no part of the ICL’s case that the father had sexually abused Y in this incident. No further reference to the CD was made and I advised the father that I would not be examining those records. At its highest, the issue had been raised only as being illustrative of the father’s incapacity to recognise appropriate boundaries with adolescents.
At trial, the father stated (while cross-examining the mother), that the weather in Town T in 2017 at Christmas had been the hottest on record for some eight years and so explained why he and Y had been clad only in underwear. He also stated that Y had slept in the same bed as she had been frightened in the dark and by what she thought to be a spider.
Australia Day 2018
A repeated theme in the evidence concerned allegations of the father’s inappropriate behaviours towards women and in particular, in the presence of the children. The mother recounted that the children had attended an Australia Day party with their father at which were present women whose breasts had been painted with the Australia Day flag.
The father apparently told X that “these women get paid $160 per hour and this would be a good money earner for her.”
In similar incidents it appears that one or other of the children has observed the applicant sharing images of naked women with their uncle and the children were introduced, as early as December 2017, to a number of women whom the applicant had begun dating using the Tinder website. The applicant’s evidence was that he started dating in early December 2017 and accepted he had dated three women at the same time immediately post-separation. He cavilled at the suggestion that in circumstances where the children had only known for their parents to be in a relationship, it would have been confronting for them to see their father dating three women at once. He considered that it was “none of their business” and for that matter, no business of counsel for the ICL.
It was part of the case made by the respondent that the applicant had encouraged one of the children to speak with one of the women he was dating, doing so on the basis that she was said to be a counsellor, a statement later discovered to be untrue. The respondent deposed that the applicant had joined the Tinder dating site within 7 – 10 days of separation and that he had spoken to both the children and herself about the women he was dating, including on one occasion when he asked for the respondent’s help to get ready for a date. In cross-examination the applicant adopted the position it was perfectly okay to have joined the dating site as the parties’ relationship was over. The point not taken by the father was the impact of this conduct on his children.
In the father’s view, the mother was enraged by the father having formed a new relationship, describing him to the children as a womaniser and of feeding conflict by discussing the parties’ financial settlement with them. In an account provided by the mother to a family consultant, Mr C, she detailed that the children were particularly upset with their father having formed a number of relationships post separation and including that he had travelled to Country S with a new partner.
The respondent also spoke of the father having told the children they would have to leave their school and should blame the mother for that outcome.
Tailgating incidents
In January and February 2018, the parties tried to conduct their parenting arrangements on a week about basis. In early 2018, the applicant was on holiday in Country S with his now fiancé, Ms R. It was the father’s case that the mother had applied for an intervention order and that this coincided precisely with a determination made by way of Child Support Assessment that she should pay him child support. One of the documents which the applicant supplied was a notice of assessment recording that on 30 April 2018 an assessment had been made in his favour for the period November 2018 to May 2019, obliging the respondent to pay $404.83 to the applicant per month during that period. I do not accept that the application for assessment of child support coincided in the manner that the father had claimed to be the case.
It was also the father’s case that the incident which served as the catalyst for an IVO application occurred on the same date that he was flying with his girlfriend, Ms R, to Country S. The father contended that the mother was, in effect, infuriated by the Child Support Assessment and, coupled with the father’s formation of a new relationship and holiday plan to travel to Country S, was motivated by vengeance in seeking the IVO. As stated, this version of events did not accord with any contemporaneous records before me.
On 4 March 2018, the mother sent the father a message stating that the children did not at that stage wish to continue spending time with him. The week about arrangement thus came to an end, including with the father accusing the mother of trying to steal the children from him. Her evidence, which I accept, is that she had actively encouraged the children to spend time with their father notwithstanding their reluctance to do so and that handovers had become increasingly difficult with the children becoming more and more upset. Indeed, the respondent employed a practice of going to the applicant’s house of a night to give the children hugs when they were staying with their father.
On 4 March 2018, the applicant returned to Perth from his holiday in Country S with Ms R to receive a message from the respondent that the children did not wish to spend time with him at that stage.
The respondent also provided a detailed account of various matters which prompted the children to dislike spending time with their father including: having different women as girlfriends; asking their father to stop talking about these women and his refusal to do so; having girlfriends staying at his house; going out with a girlfriend and Y (but leaving X at home); a shortage of food in the home; being too intoxicated to pick up the girls from school; finding the applicant passed out on the couch; being shouted at; X telling the applicant she did not want to spend any time with his girlfriends until the applicant had first chosen and committed to one. The applicant’s evidence was that the children were perfectly capable of making their own lunches and walking to and from school and helping themselves to food in the cupboard.
School incident – 8 March 2018
An incident occurred on this date while the mother was dropping the children at school. After the applicant got out of his car, he accused the mother of taking the children away from him and behaved in a frightening manner. A teacher was a witness to the incident and a school warning was issued.
Thereafter, it was said that the father tailgated the mother as she drove the younger child to her drop-off, with the father becoming increasingly distressed and shouting at the mother.
It appears that this type of driving incident may not have been isolated and he exhibited a practice of driving up to the point where, to have driven any closer to the respondent’s home, may have entailed breaching an intervention order.
After a series of three such incidents, the respondent decided that boundaries needed to be put in place and sought an intervention order. Although the respondent told Dr K that she had been prepared to re-engage, his behaviours did not improve and one such order was extended for two years.
The parties have had no direct communication since March 2018.
Lego incident – 17 March 2018
On 17 March 2018, an incident occurred in which the father attempted to gain entry to the mother’s rental property in the course of which he and X became engaged in a struggle with her pushing her father away from the front door and, it seems, into a bush. Further, allegations were raised that X had damaged his vehicle. During this incident, the father said to X that “I am calling the Police on you X”. The father did so, reporting the incident as an event of domestic violence. The police attended and X, then aged 12 years, was questioned by police. From that time, X has chosen to spend no time, or have contact, with her father. Otherwise, the parties advanced somewhat different versions of the so-called Lego incident.
By his affidavit filed on 6 July 2018, the father provided this account: “In March I called police as X punched and kicked me when I was dropping off some Lego for Y, X said I was not allowed to be there and attempted to damage my car. Apparently police had told me that I was not allowed to go there however they had not conveyed any such message to me.”
In cross-examination, the father said that events had unfolded very quickly at the time and explained that there was a lot of emotion in the family and further that he was travelling to Country S the following week. The father recounted his view that police reported to him that they had never seen a parent or child display such complete disregard for “the police uniform”. He said that the police said they considered it appropriate to lend assistance as it may help X to manage her behaviours where she was grieving for the loss of her parents’ marriage. The applicant said he was very sorry for what had happened.
By her first affidavit filed on 15 August 2018, the mother deposed that “X has made explicit her wishes that she does not wish to have any contact with the father. There have been too many poor behaviours from the father that have led X to feel this way and the most recent is when he reported X to the police for domestic violence when she pushed him into a bush outside my house when he was trying to enter uninvited, unannounced and unwelcome. Both children have expressed a wish to me not to spend any time with their father until his behaviour improves.” Thematically, this first affidavit articulated the respondent’s position (and which has been restated on many occasions), that behavioural change from the father is of central importance to a change in attitude by the children about spend time with their father.
In cross-examination, the respondent denied that her having had a shower at the time of this incident had been inconsistent with being fearful. She stated that she had already had her shower before the events in question had occurred. She agreed that a friend of the applicant, Ms U, had been in the front of the car in which the applicant had driven when coming to her property. She denied speaking to Ms U in pejorative terms and instead described her, convincingly, as a nice woman. This witness for the Lego incident was not called by either party, however, had her evidence been of assistance it seemed more likely that Ms U would have been called by the applicant.
On 18 March 2018, police attended and interviewed X. By her first affidavit, the mother deposed that police recommended she obtain a family violence restraining order and that they would direct the father not to enter her property again which she thought “was enough”.
It was the father’s evidence that a week after this incident X had walked the family dog from her mother’s rental property to the former matrimonial home and had a discussion with him. He said that the parties were still in the process of cleaning up post-separation and that Y had been at the matrimonial home all day. The mother’s case was that no such incident occurred, including by reason that X had been at a school camp in Town V at the time. Contextually, one significant aspect of the case has been X’s stated desire that her father should apologise for the incident and circumstances which led to his contacting police to report her for committing domestic violence. In any event, upon the father’s version, it had been X, and not the applicant, who had initiated a communication at which an apology might have been proffered by either of them.
In the course of a s 11F family consultation, when given an opportunity to state what he thought the children would feel about spending time with him, the father stated “they are both angry, so if she doesn’t want to spend time with me, she has stolen money from me, she has vandalised my car, pushed me into a car, I was spewing I didn’t have a Dash-cam to film that.” In the same interview, when asked how he thought X might regard his having reported the incident to police and the police investigation, the father stated “I would hope she would learn something from it. X has bashed Y, she is very aggressive and I have struggled with her behaviour” and “she is privileged”, which the s 11F consultant regarded as the father’s view of the catalyst for the conflictual relationship between himself and the elder daughter.
Further, in an s 11F interview held in May 2020, X raised her particular concern with the father having called “the police on her” and that he had stated in a recent counselling session that he would do it again. A family consultant identified this as reflecting an apparent display or acknowledgement of the position in which X had been placed as a result of parental conflict.
In his account to a family consultant in December 2020, the father described himself as having been completely blindsided when attempting to return a box of Lego, with X having had a tantrum and behaving violently toward him. He stated that her conduct was unacceptable and that he contacted police because there was no ability to address the issue with the mother.
During cross-examination, the applicant sought, in effect, to downplay the Lego incident and its significance for X. There is also some evidence the applicant has said he would be prepared to again report her to police in circumstances of that kind. The respondent’s lawyers communicated with the applicant in relation to the incident stating, in effect, that it was concerning he had employed reporting an incident of domestic violence to police as a means of seeking to discipline X. To this, the applicant replied “I suggest she get some perspective over the police incident with X, if she recalls correctly she called the police on me a number of occasions, [and in] not one of them did I kick her, attempt to vandalise her car, pushed her into a fence, punch her or even yell at her.” His response seemed to draw attention to the behaviours of X and of which he had been critical.
Each of X and Y also provided accounts of the Lego incident to the family report writer, Mr C, with Y, in reflecting that her father and sister had both behaved poorly. While there seems no doubt that X may have conducted herself in a wholly unrestrained manner, the incident and its aftermath have had a profound effect on the family dynamic and which cannot be dismissed in simplistic or inconsequential terms. It was very real. The father’s evidence in cross-examination was in conflict inasmuch as he described it as a pretty significant event, of a kind which had not occurred before, and in terms which for him had played out in slow motion. Pressed to accept that X had clearly been traumatised by the incident at one point the father suggested “I didn’t think it was that big a deal.” At the same time he accepted that it was unusual for police to be called out by a parent for an incident of domestic violence caused by a child. He referred to Munchausen’s by proxy, not for the first time, as the reason for her behaviours.
In an email transmitted by the applicant to the respondent on 21 March 2018 he advised her that he appreciated X was a challenge but said that the parties needed to face that challenge “together in a reasonable and fair manner for all concerned.”
Missing Motor Vehicle 1 keys – 24 March 2018
On this date, the mother received a call from Y at a time when she was staying with the father and who had used Y’s phone to contact her. The mother deposed that the phone was on loudspeaker and he abused her in relation to keys to his Motor Vehicle 1 that were (in his mistaken belief) missing.
Shortly afterward, Y sent a text to her mother stating that the father was on his way and she should hide. It stated “He is coming so am I hide mum”. The mother recounted that Y had written her bicycle to the mother’s home and was tearful, having arrived there, shortly before the father.
The respondent deposed that although she had locked the security gate, the father had simply climbed over that gate and banged constantly on the front door demanding that she find his missing car keys. She stated that both X and herself were terrified and that, although asked to do so, the father refused to leave. It was the respondent’s evidence in cross-examination that she had told the applicant not to come down the driveway or contact her by phone, or otherwise and explained having done so in the circumstances of him having earlier yelled at her at the school in the manner described above.
The mother called police and a restraining order was issued (#...). The mother claimed that the father responded to the restraint within 20 minutes by constantly sending Y text messages “aimed at me and inappropriate to a 10-year old girl. The police again encouraged me to get a restraining order (straightaway). The father then let Y know shortly thereafter that he found the keys to his Motor Vehicle 1.” She applied for an IVO. As a result, police again attended and on this occasion issued the father with a 72-hour restraining order. From this date, Y also declined to spend further time with her father.
The respondent then brought an application for breach arising from the applicant having transmitted an email attaching a copy of a share certificate. While the respondent stated that she was merely setting boundaries, it was the applicant’s case that the magistrate had taken a dim view of her conduct. During her cross-examination, the applicant sought to highlight that there was nothing inherently threatening in sending an email attaching a share certificate.
It was put to the respondent in cross-examination that she had insisted police arrest the applicant prior to his departure on a trip to Country S in 2018. The applicant denied having done so, stating the advice of police was that it would be better for her to allow the applicant to go to Country S. She accepted that recommendation. I accept her evidence on this issue.
The applicant was arrested upon his return from the trip to Country S and imprisoned overnight. It was the applicant’s case that the IVO had been sought by the applicant, effectively in retaliation for disagreements over finances, child support, superannuation and spend time arrangements with the children.
Possession of Motor Vehicle 2
At some point in 2018, the respondent repossessed a Motor Vehicle 2 by obtaining the keys to that vehicle from the former matrimonial home. The applicant agreed that there was not in place any order for sole use and occupation of that property. The vehicle was registered in the respondent’s name. Her evidence was that although the applicant would pay speeding fines he had refused to complete the documentation that would identify him as the driver (with responsibility for points), and she had decided to repossess the vehicle.
There is some evidence that X behaves in a hostile manner towards her father and, as he sees it, mimics the mother’s behaviours, including by taking the keys to the Motor Vehicle 2. The particular vice in this conduct was said that it prevented him from having four-wheel driving trips with the children, something he believed they greatly enjoyed. In an account provided by the mother to Dr K, she stated that while the applicant tried to get the children involved in activities such as fishing, teaching them to make lures, they did not engage with him as they were not interested in such activities. The father’s account described his pleasure in such trips.
The current circumstances of the children appear stable and conducive to a safe and healthy upbringing. Nothing was advanced before me to support a conclusion that their best interests would be enhanced by moving to Suburb P whether for three months, on a week about basis, or at all.
Objectively, as soon as the father relocated from Perth to Melbourne, he amended his initiating process so as to spend time (no less than four weeks) with the children each year. The circumstance that the children have moved from Perth to Melbourne does not impel a conclusion that it is presently in their best interests to spend time with the applicant at his new home.
Practical difficulty & expense: s 60CC(3)(e)
Conformably with the requirements of s 65DAA in relation to a child spending equal time or substantial and significant time with both parents, I note that the court is required to consider whether such a proposal is reasonably practicable. If it is not, the proposal is not open.[32] The court should assess this issue in both a practical and realistic way.
[32] Cf MRR v GR (2010) 240 CLR 461, [13], [19].
In my view, with the children having now settled into a new school quite recently there are, for them, obvious practical difficulties in splitting their time between their new home and the father’s residence.
The parties’ submissions did not address this issue in terms of there being a significant financial impediment to travel. Instead, as each of them well recognised, the true ‘practical’ difficulty of their spending time with and communicating with the applicant is that it is the express wish that neither of them wish to do so at this stage. Stated in other terms, there express wish is to obtain a period of calm, devoid of litigation, interviews and the consultations which it has entailed, and which may allow for a reconciliation in due course.
Parental capacity to provide: s 60CC(3)(f)
Paragraph 60CC(3)(f) requires the court to consider the capacity of each of the children’s parents (and any other person) to provide for a child’s needs, including to provide for their emotional and intellectual needs.
To her credit, the respondent’s submissions recognised the applicant’s capacity to meet the children’s intellectual needs and to provide them opportunities and experiences of the kind which they have previously enjoyed. While an equivalent submission was not made by the applicant respecting the respondent, I think that so much was implicit in the stance which he took.
The significance of this issue in the present case is self-evident. In short, a constant view expressed by the expert reports identifies in the applicant an incapacity to recognise the effect which his behaviours are having.
I do not disregard the opinion of Ms N which excludes a finding that the applicant is on the autism spectrum. Nor do I ignore that the applicant has taken the opportunity to consult Ms N at frequent intervals. Just as Dr K thought it commendable that the applicant made the effort over many hours to participate in a psychiatric assessment for the purposes of this proceeding, so too, the applicant is to be commended for having engaged with Ms N at reasonably frequent intervals. In the whole of the evidence it appears that much of the treatment by Ms N has been provided with a view to assisting the applicant in coping with this litigation, depression and his acute sense of loss from having spent no time with his children. As counsel for the ICL emphasised, an imperative consideration that was identified in this case was for an evaluation whether the applicant had a personality disorder. While this has not occurred, the applicant has clearly sought to take steps to seek appropriate psychological assistance.
At the same time, a survey of the nature of the case as it has evolved since 2018 confirms that there is solid support for the conclusion that the applicant lacks the insight of which Dr K spoke. Of perhaps greater concern is that there has been an escalation in the applicant’s emotional turmoil including, without limitation, the manner of his incessant communications, his treatment by a CATT team and the limbic storm event on 8 January 2021. Collectively, those and the other events described in my findings, leave open a real question as to the applicant’s capacity to provide for the children’s emotional needs as distinct from his own. As counsel for the ICL illustrated in cross-examination, there is no suggestion that the applicant is motivated by malice and his love for his children is unquestioned. Rather, inherent in the applicant’s nature is the incapacity to recognise the effects of his behaviours or to control them.
Maturity, sex, lifestyle, background of child and parents: s 60CC(3)(g)
I have addressed these aspects of the children and parents in some detail above.
Indigenous considerations: s 60CC(3)(h), (6)
These matters are not relevant.
Demonstrated attitude to and responsibilities for the child: s 60CC(3)(i)
I have also addressed these aspects of the matter in some detail above.
Family violence: s 60CC(3)(j)
These issues have also been addressed in some detail and I do not think it is of particular assistance to the parties to rehearse that history in detail.
I do not accept the applicant’s submissions which suggested the respondent’s actions in seeking police intervention was either unnecessary or unjustified. Nor do I accept that her conduct disclosed malevolence, vindictiveness or a design to alienate the children from their father. I conclude that those allegations are unfounded. While there may be some substance in the view that X has become empowered and that her responses have, on occasion been disproportionate to the conflict with which she has had to deal, it would be a complete error in reasoning to attribute responsibility for any such empowerment to the respondent. To the contrary, just as the expert opinions identify the father, not the mother, respecting alienation, so too, an equivalent conclusion could fairly be brought in relation to empowerment.
The court is authorised to take into account any relevant inferences that can fairly be drawn in relation to family violence and in this case it is open to conclude, and I infer, that for so long as this litigation remains on foot, and more precisely, for so long as spend time and communication issues are unresolved, the risk of ongoing family violence applications will exist. By extension, it must be in the children’s interests that these risks abate.
Matters relevant to existing family violence orders: s 60CC(3)(k)
I have addressed this issue sufficiently above.
An order that would be least likely to result in re-litigation: s 60CC(3)(l)
The parties and ICL are agreed that finality of litigation is an important principle which ought be applied in this proceeding. Final orders are sought.
Final orders should be made as to do so is clearly something which each of the children want. It is something which each parent wants. The most unfortunate history of the matter, including the emotional toll of the trial itself, spoke loudly of the physically and emotionally exhausting nature of this dispute. Furthermore, I am in little doubt that the parties well recognised the financial cost which this litigation has caused.
There is every reason why final orders should be made. It is common ground the parties seek the final determination of this litigation. The ICL supported such an outcome and it is clearly desirable having regard to the evidence of the distress it is causing to all concerned.
Any other relevant factor: s 60CC(3)(m)
The applicant sought to present his case is one in which there had been a great deal of love in the family until the parties’ relationship broke down and that the escalation in conflict came down to three things: the Lego incident; the car keys and disputes over finances. The respondent considered it very concerning that the applicant sought the problems in such simplistic terms. Both in cross-examination and in closing submissions the applicant stated that he had loved the respondent with all his heart until she didn’t want him. He expressed a genuine hope that the children could in due course agree to spend time with him and acknowledge the need to move on and repair. I endorse his hope.
Resolution
Based upon my evaluation of the evidence and consideration of the principles, including the primary and additional considerations as above, it is necessary to express my conclusions and determine what relief should be granted.
Assessment of risk: s 60CC(2)
I am concerned that the children face a risk of psychological harm in all the circumstances. Even in the course of the ICL’s closing submissions, the applicant either interrupted or indicated his heated assent to the proposition that he is the innocent victim of a design of alienation by a manipulative mother who is determined to punish him and to do so in retaliation for what, as he contends, was the financial harm that he inflicted upon her when final orders were made for an adjustment of property interests pursuant to which the respondent was required to transfer part of her superannuation entitlements. As I have noted, the factual premise for his view that the mother took millions from the property settlement is completely without foundation. So too, the greater likelihood is that the father, not the mother resented the result of the parties’ negotiations which resulted in a 60:40 adjustment against his interests.
I have examined the expert evidence respecting the father’s misconceived view of parental alienation. Viewed collectively, these factors militate in favour of a conclusion that the father lacks both capacity and insight as to the effect of his current behaviours upon the children. It is this lack of capacity and insight which grounds the existence of a risk of harm to the children.
Despite the sympathy which might be held for the applicant, my concern for the risk faced by the children is that, not only does he demonstrate a marked lack of insight for the effect of his behaviours, in addition, he has not taken the imperative steps required to diagnose and treat his mental health. Although I accept that the applicant has consulted Ms N, my overriding impression is that such consultations are directed to be quite separate issues of his need for assistance in dealing with this litigation and his associated depression.
The potential outcome for harm in this case is that the harm which has been diagnosed in X’s case as PTSD and in Y’s case as requiring ongoing counselling. The probability of such conditions being exacerbated at present is beyond argument. Without detailing the chronology of events it is clear that there have been a series of incidents in which one or other of the parties has sought police intervention, including most recently that which the applicant described as involving a limbic storm from his emotional turmoil and frustration in January 2021 notwithstanding his awareness that his application for final parenting orders had been given a priority fixture within a matter of weeks. The risks to the children in the short and medium term are equally manifest. Unless there is a period of calm, there is a real probability that the children’s conditions may be worsened. As submitted by counsel for the ICL the most obvious measures which are open to be deployed to defuse the present conflict is to respect the children’s wishes for no contact at this time.
Parental responsibility: s 61DA
For all of the reasons above I am persuaded that the presumption of equal shared parental responsibility has been displaced. I am satisfied that the applicant has caused the elder child to suffer serious psychological harm including by reason of the family violence to which she has been subjected. I am also satisfied that the younger child has been exposed to family violence for which she has received ongoing counselling and apart from which treatment she too may otherwise have suffered serious psychological harm.
It is unnecessary to rehearse the evidence, including the expert evidence. Rather, it is plain that despite the applicant’s views of the matter, the father has conducted himself to this point in a manner which has alienated the children. Contrary to the central tenets of his case, I do not accept that the respondent has alienated the children. No less do I accept the applicant’s over willingness to embrace allegations of Munchausen’s by proxy.
If contrary to my conclusion that the requirements of par 61DA(2)(a) of the Act are satisfied, I would nonetheless have concluded that the presumption of equal shared parental responsibility has been rebutted : Act, s 61DA(4). I find that the presumption has been rebutted in the circumstance that, on the whole of the evidence I have concluded it would not be in the children’s best interests that their parents have equal shared responsibility in this case.
I am conscious a decision for sole parental responsibility is a serious step[33] and I regard it as a step which is warranted in this case.
Statutory pathway: s 65DAA(1)-(5)
[33] Mallory & Mallory [2018] FCCA 2335, [432] (Williams, J) citing Lennon & Lennon [2011] FamCA 571, [108] (Murphy J).
As the question of equal shared parental responsibility does not arise on the evidence, it is not necessary to address these considerations.
Living and spend time
I agree in the submissions of the ICL and respondent that it is in the children’s best interests for them to live with the respondent. I am satisfied that she will, as she has, continue to provide a safe stable and caring environment for them.
Based upon a cumulative evaluation of the primary and additional considerations, and upon the whole of the evidence, I consider that it is in the children’s best interests that they should only spend time and communicate with the applicant in accordance with their wishes. As discussed in the course of closing submissions this conclusion is not one that the children should spend no time with a parent. The order which I consider to be in the children’s best interests in this case is one which recognises the exhausting effect of all that has occurred in the children’s lives since November 2017 as detailed above. It also recognises that the children have expressed an earnest desire for the present proceedings to be determined in a way which will achieve finality and quell the perpetuation of ongoing disputes about parenting arrangements. In short, the children’s overriding objective is that there should be a period of calm in which they might be able to settle in their new environment. While each of the children have expressed their views with differing degrees of stridency, it is clear, in each case, that they wish for the autonomy to determine when and how they may spend time and communicate with the applicant.
I am equally satisfied that the applicant does want a meaningful relationship with each of his children. Having regard to the level of his conviction that the respondent is driven by malevolence and a desire or retaliation arising from his perception that she is resentful in having to share superannuation, I am less than persuaded that he desires for the children to have the benefit of a meaningful relationship with both of their parents.
It was submitted that to compel the children to do spend time or communicate with their father at this time would have a high impact on them. Counsel for the ICL submitted that the father has adopted a simplistic position in alleging alienation and that this was reflected in the torrent of emails being sent on a daily basis whether to the mother’s lawyers or to the various persons who had provided reports in the matter or who had been asked, but declined to do so. It was aptly submitted that the father is a ‘Rip the Bandaid’ person whose simplistic view is that once he got the children back, all would be well. It was correctly submitted that the likelihood of an improvement in the children was negligible in light of the way the father had behaved and that if he would adopt a different approach it was possible that this may help.
For the avoidance of doubt, I note the applicant made passing reference to a decision, Ralton & Ralton, which he had seen in The Australian and upon which he relied. As I assured him I would do, I have located that the decision at first instance, and on appeal, and considered them.[34] I endorse his submission that the circumstances of Ralton & Ralton were also tragic. I do not accept that the conclusion in that decision, which was dismissed on appeal, dictates that in this case I should find the respondent is completely opposed to the children spending time with the applicant or that she is not sincere in facilitating that they should do so if and when they should express a desire to resume their contact with their father and seek a reconciliation with him.
(5) Final relief
[34] [2016] FCCA 1832, [2017] FCAFC 182.
By their outlines of case, each of the parties and ICL indicated with varying degrees of precision the orders to be sought by way of final relief. In substance, the applicant urged for a highly prescriptive set of orders to be made. By contrast, the orders sought by the respondent and ICL respectively were framed in terms which largely reflected Mr C’s recommendations.
As noted above, the parties were requested to furnish a minute of the proposed final orders in order that each of them would have a proper appreciation of the relief being sought and would do so in advance of closing submissions.
Upon consideration of the parties’ final minutes the respondent pressed for a far more extensive and prescriptive set of orders to be made. In one sense, the adoption of that course may be understood as a mirror of the position that had been taken by the applicant, however, the case was not conducted on that basis.
While the court is not obliged to accept either party’s proposal as to the orders which should be made, it is important to recognise why this is so. First, in deciding whether to make a particular parenting order, the court must regard the child’s best interests as the paramount consideration in deciding what order should be made. Secondly, in making a parenting order, the court is given power to make such order as it considers proper in all the circumstances.[35] Thirdly, it is clear that the court exercising power to make parenting orders is not bound by the parties’ proposals.[36] Fourthly, for the avoidance of doubt, even where the parties propose orders by consent, the court must have regard to the paramount consideration of the child’s best interests.[37]
[35] AMS v AIF (1999) 199 CLR 160, [95] (Gaudron J), [196] (Kirby J), [218] (Hayne J), [284] (Callinan J).
[36] U v U (2002) 211 CLR 238.
[37] Act, s 65DAA(7).
In AMS v AIF, Callinan J recognised[38] that where well-intentioned parties made competing proposals, the court was presented with making difficult choices that the parties themselves were unable to make. In U v U,[39] Gummow and Callinan JJ (in whose reasons Gleeson CJ, McHugh and Hayne JJ agreed), observed that not uncommonly, there would be cases in which it would not be possible for the court to adopt exclusively or perhaps even substantially a proposal of either party and held that it was not bound to do so. Hayne J considered[40] it would be quite wrong to treat a parenting decision as being confined to the party’s proposals. The importance of considering whether some proposal other than that of either party is appropriate in all the circumstances is clear: Heath v Hemming (No 2).[41]
[38] (2002) 211 CLR 238, [295].
[39] (2002) 211 CLR 238, [70], [80].
[40] (2002) 211 CLR 238, [171]
[41] [2011] FamCA 749, [104] (Kent J), Cooke & Morton [2018] FamCAFC, [41].
Inherent in the discretion in making parenting orders is that the task is evaluative, necessarily predictive and involves assumptions where no one answer was the only, or only correct, available one to be given.[42] The court seeks to make orders that would most likely promote a meaningful relationship with the children, not orders that will ensure such a result[43]
[42] Kulat & Azzarudin [2018] FamCAFC 97, [39]; CDJ v VAJ (1998) 197 CLR 172, [151]-[152]
[43] CfChampness v Hanson (2009) FLC 93-407, [103].
I have concluded that final parenting orders should be made. They should be made because, the matter has been litigated for some years and has been given priority. There is an interest in finality of litigation. The applicant submitted that the parties were, in effect, “no good at conflict and didn’t know how to do it.” The applicant maintains the hope that the court will identify the need to facilitate the children’s relationship with their father. I accept that submission.
One issue upon which I received helpful submissions from counsel for the ICL was whether the time had come to step away from a regime by which the letters and gifts that he will be permitted to send the children should continue to be vetted by the respondent before a decision is made for such communications to be given to either of the children. Mr Eidelson of counsel identified a number of persuasive reasons why a process of vetting should remain in place.
Equally, from my examination of the evidence, I am satisfied that in the first instance the process of vetting such letters and gifts should be undertaken by the children’s paternal aunt, Ms B. From her affidavits and those of the respondent I see this as an appropriate and positive step to take.
Finally, I accept the applicant’s submission that the orders should include a provision which conveys to the children that he seeks to make an unreserved apology for the stress and hurt which they have experienced and of his desire that they may, in due time, seek to communicate with him and perhaps spend time with him, according to their wishes, and to do so in order that each of them might have an opportunity to reconcile with him and thereby achieve the benefit of a meaningful relationship with their father in their lives.
Conclusion
Since being transferred to this court on 15 April 2020, significant efforts have been made to address it with all possible priority and to do so in circumstances where the children have spent no time with their father since early 2018. I agree that the tragedy of this case is that the ongoing litigation has done more harm to the prospect of the renewal of the relationship than allowing the relationship an opportunity to resolve by the passage of time. It was submitted by the ICL, who has met with the children on 2 July 2020 and 16 February 2021, to have been made clear on both occasions that they do not wish to spend any time or communicate with the applicant for the foreseeable future. Further, it is their position that they do feel pressured and emotionally exposed and are being coerced to do so, contrary to their wishes. The ICL described the children as being mature, intelligent, articulate, lucid and adamant in their wish to be free of the burden of the father’s application to compel them to see him and were considered to be sincere in their wish and desire to see the litigation concluded without delay. Counsel for the ICL submitted that in one or more ways, the views expressed by the children drew support from no less than three s 11F reports together with a report from a family therapist, Mr M, a psychiatrist, Dr K and a family report writer, Mr C. I agree.
Clearly, each of the parents is highly stressed and distressed by the current state of affairs. Each of them was frequently distressed during the conduct of the hearing thereby necessitating that adjournments were granted to allow them, and, in particular, the applicant, some respite. This litigation has only entrenched in the children their current determination that they should not spend time or communicate with their father at this stage.
I share the applicant’s aspiration that in time the children, or one or other of them, may reflect upon, and recognise for themselves the importance of having a meaningful relationship with their father. Despite the views expressed by the applicant, I am satisfied the respondent will facilitate any desire which the children may express to re-establish communication with their father and, in due time, to again spend time with him.
I certify that the preceding four hundred and twenty-four (424) paragraphs are a true copy of the reasons for judgment of Judge A. Kelly
Associate:
Date: 25 March 2021
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