COLLINS & RICARDO
[2012] FamCA 11
•12 January 2012
FAMILY COURT OF AUSTRALIA
| COLLINS & RICARDO | [2012] FamCA 11 |
| FAMILY LAW – CHILDREN – Relocation – Where father’s history as a parent shows abuse, aggression, controlling and unsafe behaviour – Where the father’s time with the child will be limited and supervised – Where both parties are able to fund travel |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Collins |
| RESPONDENT: | Ms Ricardo |
| INDEPENDENT CHILDREN'S LAWYER : | Jennifer Weate |
| FILE NUMBER: | SYC | 4959 | of | 2009 |
| DATE DELIVERED: | 12 January 2012 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 27 June – 1 July 2011; 1 – 4 November 2011 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Autore & Associates |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Falloon |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Jennifer Weate & Associates |
Order
All previous orders in relation to S COLLINS born … November 2008 (“S”) are discharged.
The mother shall have sole parental responsibility for S.
The mother shall:
3.1.advise the father of any long-term decision that she proposes to make about S;
3.2.keep the father advised as to any pre-school or school attended by S;
3.3.authorise any pre-school or school attended by S to provide to the father all information ordinarily provided to parents, including information about how the father can order school photographs, provided that the father shall pay any costs of the school arising out of his requests;
3.4.in the event that S suffers illness or injury requiring hospital admission, advise the father, and provide all contact details necessary for him to obtain information from professionals treating S; and
3.5.keep the father informed of her address, the address of any pre-school or school attended by S, the mother’s email address, and the mother’s telephone number.
S shall live with the mother.
Unless otherwise agreed between the parties in writing, the father may spend time with S as follows:
5.1.for two periods each year, each period consisting of two hours on two consecutive days, at the City 1, WA contact centre (“the City 1 contact centre”);
5.2.for two periods each year, each period consisting of two hours on two consecutive days, at the B contact centre in Wollongong, NSW (“the Wollongong contact centre”).
For the purposes of order 5.1:
6.1.the mother shall:
6.1.1.not later than 1 February 2012 and each year thereafter, advise the father of two periods of two consecutive days in Term 1 Western Australian school holidays and two periods of two consecutive days in Term 3 Western Australian school holidays when she can make S available at the City 1 contact centre;
6.1.2.complete any intake procedures required by the City 1 contact centre; and
6.1.3.pay any fees charged by the City 1 contact centre; and
6.1.4.deliver S to the City 1 contact centre on the two periods of two days nominated by the father from the options provided by the mother during Term 1 and Term 3 school holidays.
6.2.the father shall:
6.2.1.complete any intake procedures required by the City 1 contact centre; and
6.2.2.within 14 days of being advised by the mother of the dates when S can attend the City 1 contact centre, nominate which one of the two periods during the Term 1 Western Australian school holidays and which one of the two periods during the Term 3 Western Australian school holidays, when he will attend there to spend time with S.
For the purposes of order 5.2:
7.1.the mother shall:
7.1.1.not later than 1 February 2012 and each year thereafter, advise the father of two periods of two consecutive days in Term 2 New South Wales school holidays and two periods of two consecutive days in New South Wales Christmas school holidays, when she can take S to the Wollongong contact centre;
7.1.2.complete any intake requirements of the Wollongong contact centre;
7.1.3.at her cost, deliver S to the Wollongong contact centre on the two periods each period consisting of two hours on two consecutive days, nominated by the father from the options provided by the mother during the Term 2 and Christmas school holidays.
7.2.the father shall:
7.2.1.within 14 days of being advised by the mother of the days when she can take S to the Wollongong contact centre, advise the mother of which one of the two periods during Term 2 New South Wales school holidays and which one of the two periods during the New South Wales Christmas school holidays as nominated by the mother that the father will attend the Wollongong contact centre to spend time with the child;
7.2.2.inform the mother of the address and telephone number of the Wollongong contact centre;
7.2.3.complete any intake requirements of the Wollongong contact centre;
7.2.4.pay the fees of the Wollongong contact centre.
In the event the father indicates that he does not intend to come to City 1 (or otherwise does not come to City 1) on any occasion, then the mother is not obliged to take S to Wollongong on the next scheduled occasion and in the event that the father indicates that he does not intend to come to City 1 (or otherwise does not come to City 1 on three consecutive alternate Western Australian school holidays when S would be entitled to see him pursuant to these orders), then orders 5, 6 and 7 shall be discharged.
Subject to any restriction by the child contact centre, one or both of the father’s parents and the child C, may attend during S’s time with the father in Western Australia or New South Wales.
The parties may by agreement in writing vary the orders for S to spend time with the father, and for the purposes of this order “writing” shall include email messages.
In the event that either party moves any significant distance from their current residential address whilst orders 5, 6 and 7 are operative, then the parent who has moved will nominate an alternate contact centre that is nearest geographically to them and available to facilitate S spending time with her father pursuant to orders 5, 6 and 7 and the provisions of orders 5, 6 and 7 will operate as if those orders referred to that alternate contact centre.
The mother shall:
12.1.not less than once in every two months, email the father to inform him about S’s health, progress and well-being, and any notable events for S, and provide him by email with at least one current digital photograph of S;
12.2.do nothing to prevent S from receiving any gifts, cards, and photographs sent to S by the father care of the mother’s postal address; and
12.3.facilitate communication between the father and S on S’s birthday, Christmas Day, Father’s Day and the father’s birthday, by telephone or by Skype, and the parties shall communicate with each other in emails or text messages not less than four days before each of those days, to arrange the time for that communication between S and the father.
The father shall not make any telephone calls to the mother, or send her text messages or emails, other than for the purposes of making arrangements for S’s time with him or her communication with him or otherwise in relation to the implementation of these orders.
In any communications with each other, the parties shall not raise any issues in connection with these proceedings or any other court proceedings involving either of them, or otherwise seek to discuss such proceedings.
In all communications with each other, the parties shall be civil and courteous and shall focus on arrangements for S rather than on relationship issues between them.
Neither party shall criticise or demean the other parent to S, or in S’s presence, or permit any other person to do so.
Notwithstanding Order 2, the mother is restrained from taking any action to change S’s surname either in the birth register or by usage.
The father shall keep the mother informed of his postal address, his email address and his telephone number.
The mother shall at all times refer to the father in S’s presence and to S, as her “father” and use her best endeavours to ensure that S understands that the father is her biological father.
The father, if he chooses, may provide to the mother, on an annual basis, an updated photograph of postcard size of himself and if the father chooses to do that, the mother shall ensure that that photograph is displayed in a position in S’s bedroom where she can regularly see it.
The mother be restrained from taking or sending or attempting to take or send the child S COLLINS born … November 2008 from Australia unless, at least six weeks before the date of travel the mother provides to the father in writing:
21.1.written notice of the mother’s intention to take S from Australia;
21.2.a copy of an itinerary of travel and contact details while the mother is overseas with S;
21.3.a copy of a return airline ticket for S;
21.4.a solicitor’s letter certifying that the mother has paid into that solicitor’s trust account an amount of $25,000 which is to be held by that solicitor whilst the mother is overseas with S;
and provided that the period S is outside Australia does not exceed six weeks.
The Australian Federal Police and the police forces of the States and Territories are requested and authorised to give effect to these orders.
The Registry Manager shall immediately notify the Australian Federal Police Family Law Team of these orders and shall as soon as possible provide a copy of these orders to the Australian Federal Police.
The Court requests that the Australian Federal Police place the name of the child on the Airport Watch List at all points of international arrivals and departures in Australia for the purpose of preventing removal of the child from Australia in breach of these orders.
The mother be permitted to take S outside Australia upon her providing to the Australian Federal Police a statutory declaration which includes evidence of the following things:
25.1.evidence that written notice to the father at least six weeks before the date of travel of the mother’s intention to take S from Australia;
25.2.evidence that the father has been provided with a copy of an itinerary of travel and contact details whilst the mother is overseas with S;
25.3.evidence of a return airline ticket for S;
25.4.evidence by way of a solicitor’s letter certifying that the mother has paid into that solicitor’s trust account an amount of $25,000 which is to be held by that solicitor whilst the mother is overseas with S; and
25.5.The period of time that S is absent from Australia not exceed a period of six weeks on any one occasion.
The father has liberty to apply for the release of all or any part of the amount of $25,000 referred to in order 21.4 and order 25.4 in circumstances where the father asserts that those funds are needed by him to pay the costs associated with him attempting to recover S from a place outside Australia.
The parties shall each within six months pay to Legal Aid NSW the sum of $10,870, being one half of the cost of the independent representation for S.
The Independent Child’s Lawyer is discharged.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Collins & Ricardo is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 4959 of 2009
| Mr Collins |
Applicant
And
| Ms Ricardo |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
This case concerns the future of S Collins (“the child’) born in November 2008 (aged 3). The child currently lives with her mother and the mother’s partner on a large farming property 400 kilometres from Perth. The father lives on a farming property in the City 2 region on the South Coast of New South Wales.
The parties’ applications differ dramatically. The mother wants the child to have no further contact with the father, while the father wants the child returned to Wollongong, New South Wales, along with her mother. Initially the father proposes the child would spend time with him in a co-parenting arrangement, but by the time she goes to school he proposes he would be her primary carer. During final submissions, the father developed an alternate proposal that the child remain in Western Australia and spend time with him for three of the four yearly school holidays, including half of the Christmas school holidays, with two being spent in NSW and one in Western Australia.
It is an agreed fact that the child has not seen her father between the time when she was eight months old and early July 2011 (at which date the child was 2 years and 8 months old). There has been minimal contact since that time.
The mother’s application that the child not have any further involvement with her father is based upon her assertions as to the nature of the father’s personality and her assertions in relation to aspects of the father’s past behaviour.
APPLICATIONS
Mother
In her Response of 11 November 2010 the mother sought the following orders:
1.The mother, [Ms Ricardo], have sole parental responsibility for the child [S], born […].11.2008
2.The mother and child be entitled to remain residing in Western Australia
3.The child have no contact with the father.
4.The Father’s Amended Initiating Application filed 30 August 2010 be dismissed.
Upon the father’s application for the child to be placed on the Airport Watch List, the mother indicated this was not something she would agree to, and her solicitor suggested a security bond to be paid, of “the reasonable costs of the father’s airline ticket to Brazil and any necessary costs”.
In cross examination the mother indicated she would be open to keeping the father informed about certain matters.
The mother also sought to add ‘[Ricardo]’ to the child’s surname.
Father
The father’s formal application is that I make an order immediately for the child to return to the Wollongong area so that the child could live with her father on a week about basis straight away and by the time she is of school age, ordinarily live with him. The orders the father seeks in his Application of 30 August 2010 are in the following words (what follows is an exact transcription):
1.That a 50% parenting arrangement on a week about basis for the care of the child [Collins] until she reaches school age then full custody to the father with the mother having fortnightly weekend access.
2.50% of the school holidays, being the first half on odd years and the second half on even years.
3.Christmas morning spent with the father each year.
4.Changeovers to be halfway between [City 2] and [Sydney Suburb 1] at 5pm at [Town 1]
5.A location order is sought as the mother has a history of Mental illness and suicidal tendencies and has not been in contact with her family in Australia or the Mental Health Team at [S Hospital]
6.That the child be placed on the “WATCH LIST ” and prevented from being taken out of Australia.
7.The Mother to continue with Mental Health assessments and ongoing treatment until she can prove to the court she is mentally able to look after a small child.
8.A relocation is sought to bring [the mother] and the child back to Sydney to enable 50% shared care.
9.The Mother be prevented about making in proper suggestions or comments to the daughter about the father.
10.The mother refraimed and stopped passing sensitive court documents to the public
11.If the Mother becomes sick or hospitalised for longer than 3 days , or needs to Holiday overseas then Full custody be given to the Father.
12.The Mother to notify the Father of any medical conditions to her or the child imediately , with in 4hrs while the child is in her care.
When the father was directed to the Case Outline of the Independent Children's Lawyer he agreed with the following summary of what he was seeking:
1.the child to live week about with the parents until she reaches school age.
2.Thereafter the child to live with the father.
3.The child then to spend time with the mother on alternate weekends and half school holidays.
4.Changeovers to be in [Town 1].
5.Mother to continue with mental health treatments and ongoing assessment.
6.Watch list orders.
In relation to these orders sought (which the father later represented as ‘option 1’), the father took a reasonably unusual position. Although he wanted the child to be with him week about straight away and then the child to be primarily in his care once she starts school in two years time, he said he assumed that the court would not do that, even though he was asking for it, and he said he assumed it was ‘commonsense’ the court would work out some graduated introduction of the child to him. His idea of graduated introduction was over a period of four weeks, starting with a couple of hours on a weekend at a contact centre (but not City 1), to four hours and then a full day of time. He later thought graduation should happen on the basis of two hours initially on a Thursday, four hours on the second day, six or eight hours on the third day, and overnight access “in a very reasonable amount of time”.
The father was asked to formulate the orders he sought should the mother and child’s relocation be allowed. The father presented ‘Option Two’ as:
12.1.That the child live with the mother and spend time with the father in three of the child’s school holidays being:
12.1.1.The whole of the Easter holidays, at the father’s home in NSW;
12.1.2.The whole of the September school holidays in Western Australia; and
12.1.3.Half of the Christmas holidays, at the father’s home in NSW, with Christmas to be alternated each year;
12.2.That the mother facilitate the father spending time with the child if the father travels to Western Australia at any other time;
12.3.That the Mother pays the costs of the father’s airline ticket and accommodation in Western Australia and for the child’s travel to NSW;
12.4.That the Mother keep the Father informed of all matters relating to the child’s health and wellbeing, education and general activities;
12.5.That when age-appropriate, the child will communicate with the father by telephone or Skype; and
12.6.That the child be placed on the Airport Watch List and be prevented from leaving Australia.
In final submissions, the father acknowledged his reintroduction to the child would be graduated in both option one and option two. The father said that while option two was not the preferred option, “I think I could walk away and say that that would be the end of things for me…I wouldn’t be happy with the result, but I would live with the result”. He explained that he would most certainly not be happy with constant supervised visits, and said “If that was the case it’s not going to happen”.
The father sought an additional order that he be known as ‘Dad’ or ‘Daddy’ as well as ‘your father’ and that Mr W be referred to as ‘[Mr W’s first name]’.
Independent Children's Lawyer
The Independent Children’s Lawyer provided the following proposed orders on the final day of the hearing:
1.All previous orders in relation to [S COLLINS] born […] November 2008 (“the child”) are discharged.
2.The mother shall have sole parental responsibility for the child.
3.The mother shall:
a.advise the father of any long-term decision that she proposes to make about the child;
b.keep the father advised as to any pre-school or school attended by the child;
c.authorise any pre-school or school attended by the child to provide to the father all information ordinarily provided to parents, including information about how the father can order school photographs, provided that the father shall pay any costs of the school arising out of his requests;
d.give the father not less than 30 days notice of a proposal for the child to travel outside Australia, such notice to include a travel itinerary;
e.in the event that the child suffers illness or injury requiring hospital admission, advise the father, and provide all contact details necessary for him to obtain information from professionals treating the child.
4.Each party shall forthwith enrol in and thereafter attend to completion a post-separation parenting course, and provide the other party with a certificate that he/she has completed that course.
5.Conditional of his having complied with order 4, and unless otherwise agreed between the parties in writing, the father may spend time with the child as follows:
a.for two periods each year in Western Australia, each period consisting of two hours on two consecutive days, at a contact centre nominated by the mother (“the WA contact centre”);
b.for two periods each year, each period consisting of two hours on two consecutive days, at the Centacare Children’s Contact Service in either Wollongong or [City 2], according to the father’s choice, (“the NSW contact centre”).
6.For the purposes of order 5 (a):
a.the mother shall:
i.not later than 1 January advise the father of the location and telephone number of the WA contact centre nominated by her; and;
ii.advise the father of four periods, each period consisting of two hours on two consecutive days, when she can make the child available at the WA contact centre; and
iii.complete any intake procedures required by the WA contact centre; and
iv.pay any fees charged by the WA contact centre; and
v.deliver the child to the WA contact centre on the two periods of two days nominated by the father.
b.the father shall:
i.complete any intake procedures required by the WA contact centre; and
ii.within 7 days of being advised by the mother of the dates when the child can attend the WA contact centre, nominate the two periods each period consisting of two hours on two consecutive days of two days, when he will attend there to spend time with the child.
7.For the purposes of order 5 (b):
a.the mother shall:
i.not later than 1 January advise the father of four periods, each period consisting of two hours on two consecutive days, when she can take the child to the NSW contact centre nominated by the father;
ii.complete any intake requirements of the NSW contact centre;
iii.deliver the child to the NSW contact centre on the two periods each period consisting of two hours on two consecutive days, nominated by the father.
b.the father shall:
i.within seven days of being advised by the mother of the days when she can take the child to the NSW contact centre, advise the mother of the two periods, each period consisting of two hours on two consecutive days, nominated by her when he will attend at that centre to spend time with the child;
ii.inform the mother of the address and telephone number of the NSW contact centre;
iii.complete any intake requirements of the NSW contact centre;
iv.pay the fees of the NSW contact centre.
8.The father’s parents or either of them, and the child C, may attend during the child’s time with the father in Western Australia or New South Wales.
9.The parties may by agreement in writing vary the orders for the child to spend time with the father, and for the purposes of this order “writing” shall include email messages.
10.The mother shall:
a.not less than once in every two months, email the father to inform him about the child’s health, progress and well-being, and any notable events for the child, and provide him with at least one current photograph of the child;
b.do nothing to prevent the child from receiving any gifts, cards, and photographs sent to the child by the father care of the mother’s postal address;
c.facilitate communication between the father and the child on the child’s birthday, Christmas Day, Father’s Day and the father’s birthday, by telephone or by video conference, and the parties shall communicate with each other in emails or text messages not less than four days before each of those days, to arrange the time for that communication between the child and the father.
11.The father shall not make any telephone calls to the mother, or send her text messages or emails, other than for the purposes of making arrangements for the child’s time with him or her communication with him.
12.In any communications with each other, the parties shall not raise any issues in connection with these proceedings or any other court proceedings involving either of them, or otherwise seek to discuss such proceedings.
13.In all communications with each other, the parties shall be civil and courteous and shall focus on arrangements for the child rather than on relationship issues between them.
14.Neither party shall criticise or demean the other parent to the child, or in the child’s presence, or permit any other person to do so.
15.Notwithstanding Order 2, the mother is restrained from taking any action to change the child’s surname either in the birth register or by usage, except a change to the name “[Collins-Ricardo]”.
16.The father shall keep the mother informed of his postal address and his email address and his telephone number.
17.The mother shall keep the father informed of her address, the address of any pre-school or school attended by the child, and the mother’s email address, and the mother’s telephone number.
18.The parties shall each within six months pay to the Legal Aid Commission of New South Wales the sum of $10,870, being one half of the cost of independent representation for the child.
19.The Independent Child’s Lawyer is discharged.
There was some suggestion at one point in the last day of the hearing that the father might not be prepared to go to WA unless he had off-farm work to do over there. The father said that if the orders were made in accordance with the terms that the Independent Children's Lawyer sought, he wouldn’t be seeing the child on any long term basis.
DOCUMENTS RELIED UPON
On 2 March 2011 I attempted to identify issues that would form the focus of the hearing. Because the matter had already been protracted, without any application for expedition, I allowed the father to rely upon identified documents he had already filed.
The father relied upon the following affidavits:
18.1.Father’s Affidavit filed 17 June 2011;
18.2.Father’s Affidavit filed 17 June 2011(Amending affidavit of 4 December 2008);
18.3.Father’s Affidavit filed 9 June 2010;
18.4.Father’s Affidavit filed 14 April 2010;
18.5.Father’s Affidavit filed 26 March 2010;
18.6.Father’s Affidavit filed 18 March 2010;
18.7.Father’s Affidavit filed 17 March 2010;
18.8.Father’s Affidavits (2) filed 12 March 2010;
18.9.Father’s Affidavit filed 30 December 2009;
18.10.Father’s Affidavit filed 2 November 2009;
18.11.Father’s Affidavit filed 2 November 2009;
18.12.Father’s Affidavit filed 13 October 2009;
18.13.Affidavit Ms M Collins filed 22 March 2010;
18.14.Affidavit Mr N filed 30 June 2010;
18.15.Affidavit Mr N filed 13 October 2009;
18.16.Affidavit Ms X filed 13 October 2009;
18.17.Affidavit Mr A filed 13 October 2009; and
18.18.Affidavit Ms Y filed in court on 27 June 2011.
The mother relied upon the following affidavits:
19.1.Affidavit filed 21 June 2011;
19.2.Affidavit of Mr W filed 16 May 2011; and
19.3.Affidavit of Ms F filed 16 May 2011.
The mother originally relied upon an affidavit of Ms D filed 16 May 2011 but after I expressed a preliminary view about the problems arising from relying upon that affidavit, the mother chose not to read it in her case. There is information about incidents that took place between the father and Ms D in police records. Some of these are disturbing. However, to the extent the history was not explored or tested in cross examination of the father, whilst I note the history of allegations in the police records, I can place little weight upon them.
A large amount of material was tendered. There were 54 exhibits.
These reasons deal with the more relevant issues that emerged during the hearing from the material filed and tendered and the oral evidence.
SHORT HISTORY
The father was born in 1962 and is now aged 49 years.
The mother was born in 1963 and is now aged 48 years.
The parties met in September 2007 and commenced cohabitation in January 2009.
The child was born in November 2008 and is now aged 3 years.
The parties separated on 1 August 2009.
CREDIT
Father
I have admitted the transcript of part of the proceedings before Magistrate Mabbutt in September 2010 (Exhibit 30). These documents have been admitted pursuant to subsection 69ZX(3) Family Law Act 1975 (Cth) (“FLA”), a subsection which allows transcript of other proceedings to be admitted in Div 12A matters. The Magistrate referred to a “pretty amazing exchange” where the father was, “caught red-handed looking at his notes, denies it to the bench and then about six lines later admits it”. He then referred to the father’s unlikely evidence that he did not know where a Mr P lived despite having been there three times, before concluding “It is abundantly clear to the court the defendant’s being untruthful in those responses as well. Given any other objective analysis of those two exchanges in the defendant’s evidence he is quite prepared to be untruthful when he considers it suits him”. The findings of credit by another judicial officer have only limited weight although I accept what is recorded in the transcript as an accurate account of the father’s evidence and behaviour during the hearing before the Magistrate. More importantly however, is my conversation with the father about this transcript, having read the above passage out to the father the following exchange took place between the father and myself:
Then the magistrate sets out a series of questions you were asked about the whereabouts of a [Mr P], and concludes that it was abundantly clear that you were being untruthful in your responses?‑‑‑Sir, but
That’s the magistrate’s view of that evidence?‑‑‑[Mr P] was to be a major witness in my ex-wife’s hearing between Fowler J in this court. I wasn’t about to disclose his address or anything else to her until I was ready to use him in this court, and that was in the Family Law Courts.
Just stop there before you say anything?‑‑‑Well, I had no choice, your Honour.
No – no. You had no choice but to perjure yourself; is that what you’re saying?‑‑‑I had no choice but to say I don’t know where he is. I wasn’t about to divulge.
When you – well, all right?‑‑‑And my credibility
I’m not going to have you expand on that, because I think what you say could be quite serious?‑‑‑My credibility, your Honour, shouldn’t be judged on because I don’t want to divulge a major witness that’s in another thing. And because I don’t have the legal knowledge to be able to say, “Hey, this, this and this,” and point out all these points of law … I don’t have that knowledge and that legal capability to that, your Honour. And I’m sorry, but I don’t. And it didn’t what happened, I wasn’t going to divulge that, because he was a major witness that I needed in that family law hearing, and I just did not want her – and even to this day – disclosing where he lives.
The father demonstrated during this hearing a reasonable level of skill. I do not accept that he was unaware that he could have asked the Magistrate whether he had to answer. The father could have made an application that he not do so. The effect of what the father said during his sworn evidence was that he had chosen deliberately to lie on his oath in earlier court proceedings in order to maintain a forensic advantage in that litigation.
I have also accepted Ms J Collins’ evidence about the father physically assaulting her as being truthful. I find that the father was untruthful when he denied Ms J Collins was telling the truth.
In the judgment of the Supreme Court regarding the father’s assault of Ms J Collins (exhibit 28), it is recorded that the father denies asking Ms J Collins to visit the day he kicked her and denied kicking her in the buttocks. In proceedings before me the father said he could not remember asking Ms J Collins to visit, and accepts that he kicked her in the buttocks.
The father alleges that he had no input into the preparation of the affidavit which the father used so enthusiastically to cross examine the mother. I do not find that to be credible evidence by the father. Paragraph 4 lists the activities undertaken by the B children in a manner similar to the father listing these activities to Ms J Collins in cross-examination, and to paragraph 25 of the father’s primary affidavit. “[Mr Collins] and myself have taught the children over the last 15 months or so how to water ski, kayak, dirt bike ride, canoe, horse ride skin dive, scuba dive ([E]), swim, snow ski, first aid resuscitation technique, abseiling, rock climbing, horse care, beef cattle care, poultry care and Cattle show techniques amongst other things”. I find that it is highly probable that the mother was telling me the truth about how this affidavit was prepared and the father is not. The father insisted that he had not represented the mother during the B/Ricardo proceedings but on one occasion he slipped up and used the word ‘represented’ in the context of his involvement in the B/Ricardo case. For reasons mentioned elsewhere, I find the father was actively involved in and influenced how the mother conducted her case against Mr B.
When he was cross-examined by the Mother, Mr B explained how he and the mother had come to an agreement about the children that was working, until the mother “moved to another stage in her life, and it was a stage where [Mr Collins] was involved, these things started to change dramatically, and all those – all bets were off.” At this point, the mother sought a more than equal shared care arrangement, which Mr B speculated, was at the advice of the father. Mr B explained that the mother rarely appeared in person in court, and ‘they’ (being the mother and father) would appear for mentions by telephone. When asked who seemed to be controlling the communication with the court, Mr B said “there was many a challenge by Registrar McCaliff [sic], who became Crawford, asking [Mr Collins] if he could be a McKenzie friend, but that meant that she didn’t hear him, and he was talking on her behalf.”
The father wished to make the point against the mother’s credit that the mother used a medical certificate (dated 30 June for the court case was heard on 8 August) to say she could not be in court whilst at the same time travelling to the snow fields with him in a motor vehicle. I was a bit bemused by the father’s presentation of that evidence. There was no doubt that the mother was pregnant at this time. The father seemed to be saying that because the mother travelled to the snowfields with him, she could have gone to Court. Given that the father appeared for the mother on the telephone for the event on 8 August, I find that if there was any impropriety (and there probably was not) that the father was involved in it.
Mother
One particularly disturbing thing the mother did was she prepared an unsigned and unsworn affidavit and published it to various people via email. It is dated 20 January 2010 and is annexed to the father’s affidavit of 17 June 2011. In that document the mother accuses the father of sexual abuse of his daughter. The mother’s lawyer indicated that the mother did not maintain that allegation.
The mother’s affidavit lists numerous allegations against the father. As indicated below, I find some of these complaints are well founded. Other stories however, seemed exaggerated, such as the mother’s account of leaving the father where she allegedly said, while racing to escape the property “Fear nothing [Z], I have had enough of him and him abusing us, I will deal with him myself and if that means coming to blows, either he kills me or I will break his bones!”
The mother is not a wilting violet. I accept the evidence of Mr B that on occasion she can be fiery. Watching the dynamic of the father cross-examining the mother however, I gained the strong impression that in their interpersonal relationship the father’s will would have dominated the mother’s, in circumstances where the mother did not feel at all comfortable with being dominated. The mother sought psychological counselling to assist her in dealing with her relationship with the father in 2008. She attempted to deal with her relationship with the father but eventually sought to end her relationship with him.
The mother’s position is that she fled the father because of his intimidating and overbearing character. The father’s position is that the mother left NSW to pursue a relationship with another man. I find that there is probably truth in both of those propositions.
The mother sent the father an email on 3 August 2009 (2 days after final separation) stating (including typographical errors):
“the child is happy and peacefull, she will get a awesome life shortly, she will miss nothing, we are fine and happy and hope same for you too…As for me I am very happy and at peace, an amazing lifestyle awaits for me with the right man for me. a lover so hot and complete and partner like no other I had before, he’s swept me off my feet with his manners and kindness and blew me away with his sexual prowess. I am over the moon. This handsome, awesome man has got strong core values that match mine and also libido, perfect, I knew if it wasn;t meant to be you it would be someone else and he is here and all is good. He;s just as happy as I am to have met me, so all good.”
The mother denies being in a relationship with Mr W at that stage and said about the man in the email “I made that up…It’s a lie”. Her email at paragraphs 404 to 412 says that if the father thought she was in another relationship she thought he “would not dare come after me”. What the mother said was not without foundation. I have accepted Mr W’s evidence about how the mother contacted him in August 2009 and how their relationship rekindled after she moved to Western Australia (discussed below). The mother had had a relationship with Mr W for four months in 1997. I find that the mother and Mr W had recontacted one another by August 2009 and the mother had made plans to reunite with him in Western Australia and take the child with her.
The email of 3 August 2009 also made the following statements: “[the child] can be a part of your life I have no problems with that. If you need my help just ask. You are her Dad, so when I ask for something don’t behave like a D…head, be civil and all will benefit from agreeing” and “the child will be a part of you and your family BECAUSE you all are part of her life, I am no [sic] stupid to interfere with that, dont be silly”. The mother’s evidence was that she was being ‘diplomatic’ and trying not to make him angry. The mother’s evidence about whether she believed those sentiments at the time are confused by double negatives in her cross-examination, but it appears she did want to remove the child from the father at the time she wrote the email:
So did you mean it at the time that you didn’t want to remove her?---No, I didn’t mean it.
You did not mean it?---No, I didn’t mean it.
Did you later tell him that you didn’t mean what you had said to him by email on 3 August 2009? If you changed your mind, did you tell him you had changed your mind about that?---No.
The father made the point that the email did not make a significant complaint about him. I don’t place great weight on the fact that the mother has not, in that email, set out to the father how she felt about the overbearing nature of the father. This does not go to the mother’s credit. I accept that she was intending to get as far away from him as possible and not wanting to antagonise him whilst doing so.
I do not accept the suggestion by the father that the mother only took out AVO proceedings as a response to the court action which he had commenced. The father wished to make something out of the fact that a similar thing happened with Mr B. Mr B gave evidence that he was served with an AVO shortly after he had ‘served notice’ that he was looking at how to get his daughter Z returned from Brazil, while the mother gave evidence that proceedings started after serving the AVO. He said this AVO was dismissed after the mother’s cross-examination as having no case to answer, but the mother said it was dismissed after she accepted Mr B’s undertakings.
The father questioned why the mother would apply for an AVO against him months after the abuse which was its basis. The mother responded that she needed to get to a safe place and get the proper advice. In my view, based on the findings I have been able to make about the history of intimidation and the husband’s personality, there would have been proper grounds at that time for a court to grant an AVO in the mother’s favour against the father.
The mother’s evidence about where the child was in the second part of the trial was inconsistent. Originally when the mother was asked about the value of the crop at the WA farm, the mother said that they were waiting for more rain before they harvested, and that Mr W was currently doing contracting work off the farm, ‘stripping the crop’ in northern WA to pay the bills, and they were looking to harvest their farm the following week. When the evidence then turned to the current care of the child while the mother was in Sydney she said that Mr W or his children were looking after the child at the farm, where Mr W was managing the harvest that was currently occurring on the farm. When she was challenged about her former evidence she made an unclear comment that “Well, we all went together. It’s just us… We don’t have any workers at the moment. We had to let go everyone and… Yes, K and U and K’s girlfriend. She took a week off and she – when I came here she went over there but they’re back at the farm now. We’re doing our own…”
In 2003 the mother took Z to Brazil with her and returned to Australia in August 2003 without Z. Mr B initiated proceedings to secure Z’s return to Australia and these orders were made ex parte on 22 August 2003. Mr B maintains there was no agreement for the mother to leave Z in Brazil, that they were there only for a holiday for 5 to 6 weeks, and said he initiated proceedings under the Hague convention. Mr B said he was not told where Z was in Brazil until the court orders were issued for the mother to do that. The mother claims she was sent to Brazil by Mr B to retrain so she could secure a job in Australia and Mr B gave her permission to leave Z there for many months. The father’s cross examination of the mother about this is as follows:
So he had to go to court to get a recovery order to have his daughter brought back ?‑‑‑He didn’t get a recovery order.
He did get a recovery order?‑‑‑He did not get a recovery order.
In fact it was Registrar Loughnan ordered that the daughter be returned, didn’t he?
HIS HONOUR: It would have been Judicial Registrar Loughnan if he had done anything.
[Mr COLLINS]: Judicial Registrar Loughnan?‑‑‑I don’t recall who it was, but there was no recovery order, that’s your answer.
He made an order that [Mr B] be allowed to go to Brazil to pick up his daughter, didn’t he?‑‑‑Yes, he asked who could do this, and we agreed [Mr B] could go.
It was put down as an order, wasn’t it?‑‑‑It’s a court
It was an order of the court?‑‑‑ proceedings, yes, it’s an order.
Right, so it was a
HIS HONOUR: Well, that’s not a recovery order, technically, [Mr Collins]. A recovery order is something different
Although the mother was technically correct, I found her answers to be evasive. The orders of 22 August 2003 were made ex parte, for the mother to do all things for Z to be returned to Australia, including informing Mr B of Z’s whereabouts.
Conclusion on credit as between the parties
Difficulties with the father’s credibility arose from his personality and how he generally is unable to concede that anything in his character or behaviour has been responsible for particular outcomes. I discuss elsewhere the father’s overvalued idea that he could not prepare his case because he was unable to photocopy the B/Ricardo files. The father views hitting V with a hairbrush and kicking Ms J Collins in the backside as lawful chastisement. The father’s inflexible way of looking at particular events makes it difficult to accept at face value his rendition of what happened on particular occasions.
I also have difficulty accepting some of the things the mother said. It is probable that she was exaggerating some of the claims that she had made against the father. However overall, that exaggeration, in my view, is likely to be a reaction to how she was feeling subjectively about the oppression that she felt from the father.
Some of what I have said about the mother’s evidence, particularly the inappropriate sexual abuse allegation, raises a serious doubt about the ability to rely on the mother’s evidence in an uncritical way.
Overall, my observations of the two parties over the nine days of the trial would lead me to conclude that where the mother’s and father’s evidence is different, it seemed to me that most of the time it was more likely that the mother was more accurately remembering what had happened than the father. Where the parties disagree, the weight that I place on either party’s evidence however, is limited unless I have formed the view that the parent’s evidence on a particular matter was inherently more likely or that there was some other evidence that might support what they were saying.
Mr W
Mr W is the de facto partner of the mother. They have been in a relationship since 2009. Mr W gave his evidence in a straight forward and frank manner. He did not seem in any way constrained by talking about the fact that on some occasions the mother appeared overwhelmed and stressed and that impacted upon her capacity as a parent. There is nothing in anything that he said that would cause me to doubt that he gave his evidence in anything other than a candid way.
Mr N
Mr N was property manager on the farm from Easter 2008 until shortly before the commencement of the hearing. He had been dismissed by the father for a reason which was not fully explained but the two men still seemed to be on very good terms. All that was said was that the two men had a disagreement and Mr N was not happy with what the father was doing. The father had called Mr N primarily to give evidence about his observations of the parents on the farm and his observations of the father’s interaction with the mother’s two children, E and Z.
Mr N was clearly giving friendly evidence for the father. He conceded that the preparation of his affidavit was a collaborative effort with the father.
Mr N refused to answer questions in relation to income that he had received as a result of his employment as farm manager on the basis that those answers might incriminate him. No inference can be drawn against Mr N on the basis that he has refused to answer those questions, but it does raise questions as to the father’s financial disclosure in this case.
Ms M Collins
The paternal grandmother gave evidence by electronic means. As I understand it, both she and her husband, the paternal grandfather, have significant health problems.
The paternal grandmother expressed the view that the mother did not have the morals that she should have. When pressed however, she conceded that her son also had had multiple relationships and that she had grandchildren as a result of the father’s relationship with three of those women.
The paternal grandmother said in her affidavit that she had known the mother for 22 months and that the parties usually ate dinner at her place at least once a week and that she and the paternal grandfather visited the property at Wollongong and the farm regularly.
Although I did not see the paternal grandmother give evidence, there was nothing in her written or oral testimony that I had any difficulty in accepting was her true observation or opinion. The one exception to that is that I do not accept that the mother would easily have confided in the father’s mother about any impression the mother experienced or felt in her relationship with her son.
Mr B
The father issued a subpoena and Mr B attended to give oral evidence. The basic reason why the father wanted to call Mr B was to establish that the mother had made allegations about certain matters against Mr B which Mr B was saying were untrue and those allegations were similar to those made in this case by the mother against the father. Mr B made it clear that he was not there to support either parent. I accept that Mr B gave his evidence in an even handed manner. Mr B gave evidence, some of which assisted the father, some of which did not. For instance when the father tried to have him agree that the mother’s relationship with Mr B’s children was not good, Mr B responded that the recommendation of the family report in his case against the mother, to the effect that the children of their relationship live with Mr B, was because of the mother’s relationship with the father at that time. Mr B explained that much of the mother’s objectionable behaviour during their family court matter was during a period of time when the mother was suffering post natal depression after the birth of Z.
In fact, Mr B gave some damning evidence against the father. He said that the separation between Mr B and the mother was amicable until the father’s relationship with the mother, when the mother demanded increasing time with the children, and while the mother rarely appeared in court, the father talked on her behalf as a friend of the court. Mr B was of the opinion that the change in the mother’s approach to the litigation was as a result of the father’s involvement in the litigation.
Ms Y
The father called evidence from Ms Y with whom he had been in what her affidavit describes as a “close/intimate relationship” from December 2009 for a period of 14 months. There was no child of their relationship. Ms Y had left the relationship she said to pursue a relationship with a former friend.
I accept that Ms Y’s experience of the father in areas where the mother expresses fear and concern were of a different nature.
Lodgers
Ms H was a boarder at the father’s home in Wollongong for seven months. Her English was not particularly good and she gave evidence by electronic means. She and the father obviously got on well personally together. I had no doubt Ms H was providing her honest recollections.
Mr A gave evidence by electronic means from France. He was a university student who lived with the parties for 7 months in Wollongong. Nobody suggested that Mr A was doing anything other than providing an honest recollection.
Ms J Collins
Ms J Collins is the father’s youngest child of his marriage to Ms D. The father had approached Ms J Collins to give evidence on his behalf in this case. Ms J Collins reacted angrily when he made this approach. She subsequently provided an affidavit to the mother in this case. The father chose to cross-examine Ms J Collins and did so at length. I found Ms J Collins a very credible witness.
Ms J Collins answered questions from her father in a calm and concise manner. She made many concessions, when the father asked her about experiences she had had in her early childhood. She was not shaken at all in relation to the central negative aspects of the father’s parenting practices in respect of which she gave evidence including the two physical assaults which are referred to in her affidavit.
Ms J Collins and her father give very conflicting versions of a physical assault by the father upon her which was a forceful slap to the head. Her affidavit evidence is that while on a camping trip the father wanted her to go scuba diving but she refused because she was having ear problems. The father allegedly yelled at her and told her she would go scuba diving whether she liked it or not. She walked back to her tent. The father came to collect her to go diving and again she refused and the father “slapped [her] across the head pretty hard”. Her friend fetched the Ranger who took the girls back to the base for V and Ms D to pick them up. The father denies any such thing remotely like this happened and claimed that Ms J Collins was acting out because she didn’t like Ms Ricardo or the way the father was interacting with her children, and had refused to walk up the headland to be picked up by the boat. He denies physically hitting her but accepts he was angry with her. I found Ms J Collins’ oral evidence about that compelling. I conclude that the father was prepared to be untruthful when he gave evidence about this incident.
It did the father no credit that he chose to cross examine his 18 year old daughter, particularly when he suggested to her that she stole from him in circumstances where she had been with a girlfriend who had used her father’s credit card for a shopping expedition/binge, and he suspected she had entered his own house a number of times to steal.
During final submissions, the father suggested that he could be “best mates” with Ms J Collins tomorrow in his comment “[Ms J Collins] can walk into my life at any time. She walked into it a month or two ago, just wanted to get a car – come back. I didn’t tell her to go. She knows she doesn’t. She has done some horrible things to me, but that’s beside the point. We both live, learn, forget, and, look, we could be best mates next week.” That statement demonstrated a total lack of insight by the father as to the current state of his relationship with Ms J Collins, and the affect of his actions, as evident from her presentation in the witness box.
Ms F
Ms F gave evidence by electronic means. The father accuses her of being a person who has caused permanent grievous bodily harm to her child J. I have differing versions from the father and Ms F as to whether or not there is any possibility that J will recover. Ms F’s evidence is that there is forensic evidence that indicated that the child was not with her at the time J’s injuries occurred but rather with the babysitter. Police have not laid chargers against Ms F or the babysitter. The Department of Family and Community Services removed her younger child C, born in November 2007, (who she had with the father) after the injuries to J were discovered.
The father said that Ms F’s evidence should be disregarded because of her mental condition. Ms F said that she suffers Bi Polar disorder which is managed by medication. I also note that she works in a supervisory role in a hospital.
I note, however the Affidavit by Mr KK annexed to Ms F’s affidavit details both parties’ suitability as carer’s for C. In relation to Ms F it records a history of domestic violence, fraud, malicious damage, poor mental health, and antisocial and aggressive behaviours. In regards to mental health she has a history of delusional behaviours proceeded by alcohol and drug use. Delusional behaviours include claiming her son was poisoned to death (he was alive and healthy), and accusing a partner of possessing child pornography and sexually assaulting her son. Threatening behaviour has included threatening violence against a man and his family if he did not withdraw from a Court hearing. Records also indicated she was said to put her son in a wardrobe while she was engaging in sexual conduct with men, as well as other acts against her children.
The father focused on the fact that Ms F had claimed that she had been on the farm on hot days (30 degrees) and had been required by the father to pull fire weed. The father inaccurately asserted that I had incorrectly heard Ms F’s evidence and that she had said 38 degrees and not 30 degrees. The father asserted that fireweed does not exist in summer. Ms J Collins says she pulled fireweed in summer, and also cut thistle with a machete. During the hearing I read to the father the final sentence from the website of the NSW Department of Primary Industries that “Fireweed usually begins to die off in the spring. However in some plants, only the top of the plant dies back, leaving the base and roots intact over the summer”. The father did not accept that and indicated that he had made enquiries as to whether or not a local expert could give evidence about the life cycle of fireweed, but in the end the father made no application to do so. I generally accept Ms F’s evidence that although there were good times at the farm, that when she visited the farm she was generally put to work.
Ms F has been involved in 34 days of unfinished litigation with the father relating to their son C. I treat with some caution the evidence that she gives against the father. I also treat with at least the same caution, evidence that the father gives against Ms F.
The father wished to make something of the text mistakenly sent to him by the mother which was meant for Ms F offering money. I accept Ms F’s explanation that this was to cover lost income for the period where she waited at court to be called as a witness and could not attend work.
DETAILED CHRONOLOGY
The father was born in 1962.
The mother was born in 1963.
The mother migrated to Australia from Brazil in 1988. She was married from 1988 to 1991.
The father and his first wife Ms D were in a relationship from 1980 and married in 1996. They separated in April 2001. They had three children, L born in September 1982 (29), V born in October 1986 (25) and Ms J Collins born in March 1993 (18).
The mother and Mr B were married in 1994 and separated in 2003. They had two children, E born in November 1995 and Z born in May 2001. The two children live with their father since the mother has moved to Western Australia and visit the mother for three of the four yearly school holidays.
Police records indicate that on 12 February 1999 the police were called to L’s aunt’s home, whereupon they found L on the ground and the father standing over him. L informed the police he had left home due to the father’s intimidation (for example being made to swim long distances as punishment) and did not want to return. The father was asked to leave the property. An AVO was applied for.
Police reports (in hearsay form) record that around 6 or 7 September 1999 the father tried to convince L to come home and told him he would find him and get him. Soon afterwards, the father was waiting at L’s TAFE for him, and chased him. L spoke to the police and “demonstrated great fear of his father”.
Police reports record an allegation on 17 November 1999 that when L and his girlfriend were walking to a friend’s house and shop, the father approached L’s girlfriend. The hearsay record states he placed both hands around her neck and forced her to her knees and her mother, who was nearby, ran to her aid.
Exhibited Police reports record Ms D’s allegation that:
84.1.In April 2001 she received a telephone call from her daughter saying “Dad’s got me”. Ms D attended to negotiate with the father.
84.2.The father, Ms D and their two daughters got in the car. The father let the two girls out and drove Ms D to a mountain.
84.3.The father dragged her to the edge of the cliff (by her hair at times) and said he would jump off if she wanted to leave him, or they would both jump.
84.4.Upon returning to the car, a police van was present (by coincidence) and Ms D was driven to the police station to apply for an AVO which she later withdrew.
84.5.That when she approached the police car, the father would not leave her alone despite their requests, and told her not to tell them anything.
Again, I pause to note these are unsubstantiated hearsay statements.
On 14 October 2001 the father hit V and cut off her hair. The next day the father was charged with assault and child abuse following his excess chastisement of V. This is discussed in detail below.
On 15 October 2001 V made a statement alleging that her father in mid 2000 took her after she had gone to live with her aunt, made her run up a mountain, and took her to the edge of the cliff, threatening her. She also alleged that on one occasion about a couple of months before that, the father had hit her repeatedly with a hockey stick. Ms J Collins gave affidavit evidence that she saw the father hit V repeatedly with a hockey stick.
On 19 October 2001 V was placed under the care of the Department of Community Services and placed with a family member as foster carer.
Exhibited police reports indicate that on 16 November 2001 the father took V from the unit where she was residing with her foster carer Aunt. She was returned later that afternoon. On that day, Ms J Collins was placed briefly into the care of the maternal grandparents. There was an independent witness from the block of units that saw the father posing as an electrician to gain entry, and the Aunt’s child reportedly saw the incident take place.
A psychological report was obtained on 6 February 2002, commissioned by the Children’s Court, which was considering issues in relation to Ms J Collins’ care.
Police reports record (in hearsay form) Ms D’s allegation that in 2003 the father took Ms D to a harbour, dragging her down to the water and asking her to drown herself.
In July 2003 the mother took Z to Brazil and did not return with her in August 2003 as agreed. Mr B sought and was granted an order through the courts to have Z returned to Australia, which occurred in the second week of September 2003.
The mother had a relationship with Mr WN from late 2003 until his death in 2004. The father claimed this begun while she was still in a relationship with Mr B, which Mr B appears to believe.
Police reports record (in hearsay form) Ms D’s allegation that on 9 January 2004 she told the father she wanted to separate, whereupon he attended where she was staying, slapped her face causing her to fall off her chair, kicked her, chased her when she ran outside, pulled her back in a headlock and then ceased when Ms D was assisted by a passer-by calling police.
Police reports indicate that on 19 January 2004 Ms D attended the police station indicating she wished to leave the father but was fearful of doing so and required an AVO. This report recorded “a long history of DV”.
Police reports record (in hearsay form) Ms D’s allegation that in March 2005 the father pushed Ms D to the ground and “pulled out” a machete.
Police reports record Ms D’s allegation that in April 2005 the father was attempting to take Ms D’s phone and in doing so, pushed her to the ground, covered her nose and mouth to stop her screaming and thereby restricting breathing and forced her against the wall. Again, I am careful about what weight I place on these hearsay documents. However, in relation to the last allegation, Ms J Collins said, and I accept, that on one occasion (whether it be this alleged incident or another) she walked into her parents’ room and saw the father holding Ms D on the ground with his hands over her nose and mouth.
The mother married Mr CI in November 2006 and divorced him in early 2008.
Mr W met the mother in early 2007 and had a relationship with her for about four months at that time. Mr W travelled to NSW on a number of occasions to pursue that relationship. The relationship was terminated at that time due to its long-distance nature.
The mother and father commenced a relationship in about October 2007.
The father’s fourth child C was born in November 2007.
In January 2008 the father slapped Ms J Collins across the face on a camping trip. This is dealt with below.
On 15 December 2008 an order in the following terms was made in the matter between the mother and Mr B: “During any period when the children are either living with or spending time with the mother that the children are not to be left alone or in the sole care of the mother’s current partner [Mr Collins].”
The subject child was born was born in November 2008 and is now aged 3 years.
Exhibited material from the NSW police records that on 3 December 2008 the father was stopped for a routine check and police saw a ‘hunting knife’ under his seat while the child was travelling in the back seat of the car. The knife was confiscated because he was not carrying it in a safe manner and not for a lawful reason.
On 23 December 2008 Ms D made a complaint that the father was blackmailing her in response to her application under s 79A FLA to set aside the original consent orders which she claimed she entered into under duress. This was provided by way of hearsay documents produced on subpoena from the NSW police.
The father’s daughter Ms J Collins alleged the father assaulted her by kicking her bottom and slamming her arm in a door on 23 December 2010. This is recorded more fully below.
The mother signed property consent orders with Mr B in December 2008. She received her settlement in February 2009.
The mother signed a cohabitation agreement with the father on 14 January 2009. This agreement set out what they both claimed were the assets and liabilities they each had at that time.
The mother and father commenced cohabitation in January 2009.
Before and during cohabitation in 2008 and 2009, the mother makes numerous allegations of times when the father involved the mother and children in unsafe experiences.
On 5 March 2009 the father’s home was searched by police in relation to blackmail allegedly committed by the father against Ms D. The mother claims the father involved her in attempting to obtain photos of Ms D to further blackmail her to drop the case. The father continued to involve the mother. In the end however, the mother gave evidence for the police on 8 February 2010.
On 19 April 2009 the father allegedly assaulted the mother. This is detailed below. In the coming months he allegedly twice threatened to repeat the attack.
The parties separated on 1 August 2009.
Mr W’s evidence is that in early August 2009 the mother made new contact with him. She told him that she was in terrible circumstances and had to flee NSW in fear for her new child’s safety and her own after the breakdown of her relationship with the father. The mother alleges the police advised her to leave the State. Mr W offered her assistance and support on his family farm in a remote place in Western Australia. At some point after early August 2009, the mother and Mr W rekindled their relationship. They have been living in a de facto relationship since that time. I have accepted Mr W as a credible witness and I would be prepared to accept what he said about this rekindling of the relationship in 2009 when the mother moved to Western Australia.
On 8 September 2009 the mother made a complaint to the police about the father’s behaviour, having not made any prior complaints, and requested police assistance to retrieve her belongings.
On 24 September 2009 the mother was granted an ADVO against the father.
On 8 July 2010 an order was made in the matter of the mother and Mr B that: “During any period when the children are either living with or spending time with either the Father or Mother that the children are not to be brought in contact with [Mr Collins]”.
The father applied for an ADVO against the mother in February 2010 but withdrew it on 23 March 2010. The father said this responded to his allegations that she had damaged his property. The father gave a complicated explanation that “I gained an AVO successfully on the interim basis in December, and on a permanent basis for 12 months in approximately March. That AVO run for approximately – I think for about eight months, and Mr Autore then refuted the AVO somehow, got it put into the system, and at that stage it was put in for a rehearing, and by the time the date was granted for the rehearing it was Easter the following year, which was well out of date of the 12 months that I had been given for the AVO. I then realised that [the mother] was now in Perth; she wasn’t going to come back. I couldn’t see the point in going back for Easter to ask for an AVO that was going to be out of date by the time I got it anyway. So at the stage, it was agreed that if we all paid our costs, that we walked away from that AVO.”
MAJOR ISSUES
Has the father been afforded procedural fairness?
The father was keenly focused during the hearing on whether or not procedural fairness had been afforded to him at all stages. During the trial the father made a number of Applications based on an assertion by him that he had not been afforded procedural fairness or that in some way he had been disadvantaged as a self-represented litigant.
Complaints about procedural fairness by the father might have some direct relevance in relation to the orders that I am asked to make in relation to the child, if I was satisfied that as a result of any action by the court, the father was genuinely precluded from properly adducing evidence about some important matter or inappropriately curtailed in his ability to test the mother.
It is germane to note that the father has over a significant period of time, been an enthusiastic and persuasive litigant. He has been involved in at least four hearings in the Family Court; has defended a number of criminal charges in the local court; is currently involved in hearings in the Children’s Court, and has conducted appeals in the Family Court, District Court and Supreme Court.
In criminal proceedings in May 2009 the father defended a charge of common assault against his daughter Ms J Collins. Magistrate Guy found the offence proven. By way of summons to the Supreme Court, the father sought orders that the conviction be quashed, the matter to be retried before another Magistrate and that Magistrate Guy be disqualified from hearing matters involving the Collins family. That application was unsuccessful and the matter returned to Magistrate Guy for the sentencing.
The father’s explanation of the progress of that matter is not clear. He initially claimed “I appealed the guilty charge of assault to the Supreme Court and they said that he was wrong on five points of law”. He then explained that he appealed the Magistrate because he believed he was biased. He said the Supreme Court determined after five days that Magistrate Guy was not biased “but he was wrong on five points of law”. He said it went back to the Local Court where they sent it to the District Court, “but they didn’t have the transcripts and they didn’t have ruling of the Supreme Court of where he was wrong on five points of law. That now has again been appealed back to the Supreme Court and that’s in the process of going through the Supreme Court”. The Supreme Court judgment mentioned that on a strict interpretation of procedural matters, the Magistrate made some mistakes, but that some of the procedures adopted were in his discretion, and ultimately they did not disadvantage the father in the presentation of his case.
The father has also actively defended criminal charges laid against him in relation to assaulting V. He said he was found not guilty because his actions were deemed to be ‘lawful chastisement’ but without a judgment or transcript I am unable to agree that this was the outcome of the case. I refer to this later in the judgment.
The father is involved in litigation involving C, a child of he and Ms F. I have been informed there have been 16 days of proceedings under the Family Law Act 1975 (Cth) in relation to C and 18 days so far in the Children’s Court. The Children’s Court proceedings are by no means completed.
The father, so far as I understand it, recently represented himself in section 79A FLA proceedings against his former wife Ms D. That matter was recently resolved with an order being made for payment by the father of a sum in excess of $300,000 to Ms D.
The main focus of the father’s complaints about lack of procedural fairness in this case centred around the inability for him to photocopy material from the file between the mother and her former partner Mr B, in relation to their two children. Whilst not centrally relevant to matters dealing with the child, the father wished to establish that the mother had made exaggerated claims about Mr B’s behaviour. The father claimed these were in similar terms to the exaggerated claims she now made against him.
At the centre of the father’s attack on the mother, was an affidavit that the mother swore in her parenting proceedings against Mr B in December 2008. I accept the mother’s evidence that what was written in the December 2008 affidavit was a collaborative effort and it is impossible to say whether the mother said certain things in that affidavit or whether she said them with the father’s strong encouragement. The father sought to impugn the mother’s conduct in her litigation against Mr B.
For the sake of being thorough, I outline the following chronology in respect of the father gaining access to the B/Ricardo file. The father also outlined in submissions, his chronology of being denied photocopy access. I include that in my chronology which is as follows:
129.1.Exhibit 47 includes letter from the father to the registry manager of 1 October 2009, requesting to view the B/Ricardo files. No indication was given of the reply he may have received.
129.2.On 2 November 2009 the father filed an Application in a Case seeking photocopied access to the B/Ricardo files.
129.3.On 10 November 2009 FM Walker dismissed the father’s 2 November 2009 Application in a Case.
129.4.Exhibit 47 includes letter from the father to the registry manager of 4 November 2009, 30 November 2009 and 16 December 2009, requesting to view the B/Ricardo files. No indication was given of the reply he may have received.
129.5.On 20 July 2010 Cleary J was to deal with all outstanding interim applications. A number were withdrawn and dismissed by consent. Cleary J ordered that the three remaining applications (including that of 2 November 2009 – although it had already been dismissed) be consolidated into an amended application. She also granted leave to the ICL to inspect all documents in the files relating to either of the parties before leave is granted to either party to inspect the material.
129.6.The father said in submissions that he lodged an appeal on 18 August 2010 that also contained an order to view the B/Ricardo files. He said “The appeals indicated that there had not been an order made, that I couldn’t view the files and I couldn’t have photocopied access to the [B/Ricardo] files on that direction. Until an order was made there was nothing to appeal. It was brought back before the court”.
129.7.On 2 March 2011 I made an order adjourning the Father’s application regarding the B/Ricardo file to 4 April 2011.
129.8.On 4 April 2011 I made the following orders:
1. The Registrar of the Sydney Registry of the Family Court make available for inspection by the parties and the Independent Children's Lawyer in the exhibits section, the file involving a s 79A application between [Mr Collins] and [Ms D]. The parties are not to photocopy any material on that file. I note I am yet to make a further decision as to whether or not any documents from that file will be evidence before me.
2. The Registrar of the Sydney Registry of the Family Court produce in the exhibits section the file between [Ms Ricardo] and [Mr B] for the purposes of making it available for inspection by the parties and the Independent Children's Lawyer. At this point, no photocopy access is granted however the father has indicated he may wish to photocopy some parts of that file in order for him to be able to properly present his case. After he has inspected the file he can make that application and I will determine whether or not he is able to photocopy parts of that file.
3. The Family Court files referred to in orders 1 and 2 and the material referred to in the second sentence of notation 6 be made available to the father in the Wollongong Registry for a period of one week and the Registrar make appropriate arrangements for the security of those files while they are in Wollongong and their return to Sydney after one week.
5. This matter be adjourned to 2.45pm on 3 June 2011 to:
5.1 check on whether or not any party or the Independent Children’s Lawyer wishes to use any material from any of the files referred to in orders 1, 2 and 3 at the hearing;
5.2 how the material that I have allowed to be produced from these court files is to be used at the trial.
129.9.On 11 April 2011 an email was sent from the case coordinator to the father notifying him the material was available at the Sydney Registry. On 27 April 2011 the father was similarly notified that the material was available at the Wollongong Registry until 6 May 2011 (Exhibit 47).
129.10.On 4 May 2011 the father was granted extra time to view the files in Wollongong, until 13 May 2011 (Exhibit 47).
129.11.On 5 May 2011 the father emailed the case coordinator and asked the matter to be relisted so he could again ask for photocopied access. I note that at the end of this email it is written “This request is for my own personal report, not [Ms Ricardo’s] reports”. A reply of the same day told him to refer order 4 April 2011 that relists the matter on 3 June 2011 to consider the use of material (Exhibit 47). I note that the orders of 4 April 2011 also gave the father the option of making an application to gain photocopy access once he had viewed the file. He did not make a formal application.
129.12.On 3 June 2011 I made the order that:
4. Leave granted to the father to place stickers on the page of any document in materials in the exhibits section and number those stickers as a method of assisting him in being able to locate and possibly tender documents during the hearing before me.
129.13.During the first five days of the hearing, the father identified in Exhibit 10 the documents from the B/Ricardo file that he wishes to photocopy. On the last of those five days, 1 July 2011, I made the order that:
9. As soon as is practicable, all subpoena material is to be sent to the Wollongong registry. Mr Autore and the father are to be informed once it is there, of a week in which they can further inspect the material. During that time the father has leave to photocopy material referred to in direction 3 of 3 June 2011 and in exhibit 10, on the basis that those photocopies are not to be further copied by him and that all that photocopied material is to be returned to the court at the end of this hearing, at which time it is to be placed in an envelope to remain in the exhibits section. The material can otherwise be inspected and photocopied in the Sydney Registry at any other time. Mr Autore and the Independent Children’s Lawyer have leave to photocopy the same material on the same basis.
129.14.On 8 July 2011 the father was emailed with the July orders. (exhibit 34). The father asserts he did not receive that email.
129.15.On 8 August 2011 the father was notified that the material had been received in Wollongong and will be available 15 to 19 August 2011 (Exhibit 43).
129.16.On 18 August 2011 the father was granted an extension of 2 weeks to inspect the material, on the basis of the medical certificate provided. He was told in regards to photocopying that the orders are clear and will be given effect (exhibit 43).
129.17.On 25 August 2011 an Application in the Case was filed for photocopied access to the B/Ricardo files.
129.18.On 2 September 2011 an email was received from the father which included the statements “it is not my fault the Judge gave photocopy access to the [Ricardo] files but failed to place it in the orders” and “it is not my fault that I had the same 5 days [court hearing] to als [sic] go through 8 yrs of hearings in the [Ricardo] files and photocopy the relevant points” and “It is not my fault Sydney Register took 6 weeks to send the required files to Wollongong which only gave myself two weeks to complete an affidavit accurately” (exhibit 36).
129.19.On 14 October 2011 I made the following order:
7. Leave granted to the father to photocopy material from the [Ricardo/B] file, number […], on the basis that he retains those photocopies in his control and possession, show them to no other person apart from any lawyer from whom he is seeking advice and that those documents be returned to the court at the conclusion of the evidence and submissions in the matter.
129.20.The father claims he phoned the Wollongong registry on 14 October 2011 and was told the B/Ricardo files were not there.
129.21.The father said he sent an email on 27 October 2011 (two working days before the recommencement of the trial) to my associate asking “can you advice [sic] will the [Ricardo] files be sent to Wollongong to photo copy as requested and inspect before Court on the 1st?” (exhibit 31). This email was not received by the court.
129.22.Emails were received by the court from the father on 30 and 31 October 2011 regarding the date and time the trial was due to recommence. They did not raise the issue of the files in Wollongong.
129.23.The files were returned from Wollongong to the Sydney registry on 2 November 2011.
The relevant material is in two ring binders and is exhibit 49 in the proceedings. In an attempt to make it more convenient for the father, the court went to the trouble of isolating the documents said to be relied upon by the father in his document which is exhibit 10, and organising them into these two indexed binders. Since 11 April 2011 the B/Ricardo documents have been available in the exhibits section of the Family Court primarily in the Sydney Registry. An attempt was also made to assist the father by having the binders available, by arrangement, in the Wollongong registry for two periods of time.
I have accepted the mother’s evidence and rejected the father’s denial that the father was actively involved in assisting the mother in the litigation against Mr B in 2008. In particular, I specifically find that the father played a directive role in preparing significant parts of the mother’s affidavit in the B matter (sworn December 2008). I find that the father already knew what was in that file because he actively participated in significantly assisting the mother between September 2007 and August 2010 in the preparation and running of that case.
I am not confident that I can accept that everything the father says he sent to the Court was sent, or if sent, was received by the court. I have difficulty accepting the father did not receive the email sent to him on 8 July 2011. I have difficulty with the assertion by the father that on the Thursday before the recommencement of the trial (27 November 2011) he emailed my associate to enquire as to where the B/Ricardo files were (exhibit 31). As I indicated in the trial (and the father said he did not wish to receive evidence from my associate) no such email was received in the court system. The court has no record that this email was ever received. Despite the father not receiving a response to this email from the associate, no reference was made to this email in the father’s emails to the associate of 30 or 31 October 2011, which were received.
The fundamental point to make about the father’s claim of lack of procedural fairness in relation to the B/Ricardo files is that these files were there for him to look at and to make notes from for very many months. It is symptomatic of the father’s sense of personal injustice that he refused reasonable opportunity to further inspect the material and make notes in relation to the material, due to his view that he was denied the photocopy access he wanted. On an overall basis, I am of the view any difficulties with photocopy access did not jeopardise the manner in which the father could have conducted his case, had he not have been so intently focused on his desire to obtain photocopies from the file.
On a number of days of the hearing, at the father’s request, the courtroom was left open for extended hours before proceedings began for the day and during the lunch adjournment to afford the father an opportunity to look at subpoenaed material which he should have looked at in the exhibits section at times other than during the hearing himself.
I do not accept the father’s protestations that he does not want to be in Court. I accept he would prefer not to be in court but he is driven to be in court because, if his view about an issue does not prevail, then he has an overvalued sense that he has been unfairly treated and the court making a decision about the issue is biased. That sense of personal injustice led the father to behave in an extraordinary manner on the 8th day of the hearing. As I have said, during the period of time when the matter was part heard, the B/Ricardo files were sent to the Wollongong Registry to attempt to assist the father. After the orders of 14 October 2011 the B/Ricardo material was again sent to the Wollongong registry and remained there up until the day before the trial was to recommence. The material did not arrive back into the courtroom on the 6th day of the hearing. This was of no real consequence because the material was not needed on the 6th day for the purposes of questioning any witness.
During the 7th day the father made the allegation that “I’ve let you know the reports are missing…Somebody has tampered with these files”.
At the beginning of the 8th day the father was scheduled to recommence his cross-examination of the mother. The father (as he had done on a number of occasions during the trial) said he wished to make some applications before anything else happened. I indicated that what I wanted him to do was commence his questioning of the mother and that any application that he wished to make could be dealt with when he had exhausted the questions that he could ask. I was mindful that the mother had filed a lengthy affidavit and that there had been other evidence given in the trial in respect of which the father could have asked the mother questions.
The mother makes allegations regarding the father’s attitude towards looking after the child. While insisting the mother do everything in regards to the child’s care, the father also allegedly neglected her in demanding that the mother complete tasks before feeding or changing her, demanding she participate in a bumpy speedboat ride, not allowing a sleep routine due to the impositions he placed on the mother, driving with the child in the car when there was a knife loose in the car, and dunking the child underwater. Whilst the parents’ perception of these events is different, as discussed above, the father’s capacity to understand a child’s limits and empathise, seem to be underdeveloped. His controlling behaviour and unrealistic expectations of his older children provides some basis for the mother’s concerns.
The maturity, sex, background and lifestyle of the child and parents (s60CC(3)(g))
The mother is of Brazilian descent. The mother has indicated that she speaks Portuguese at home and her children do have some familiarity with that language. The mother wishes to be able to holiday overseas with the child, including to Brazil.
If the child is Aboriginal or Torres Straight Islander (s60CC(3)(h))
This is not applicable in the current case.
The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents (s60CC(3)(i), noting (s60CC(4))
I have no doubt that the father’s three elder children found the intensity with which the father parented, and the demands he placed upon them, to be oppressive. That is not to say that on occasions the father did not do things with the children which provided them with some experiences and life skills and which were not unpleasurable. Overall I view the father as having an inappropriate parenting style.
I comment elsewhere on the inappropriate intensity of the father’s parenting style. The father, of course, says that this has now changed and he has been to a PPP course. He says he has learned some lessons from that course, primarily to ‘chill out’ and use positive reinforcement rather than simply focus on only negatives, as he did with his three other children. There was little that I saw during the nine days of the hearing that would indicate to me that the father had learnt how to ‘chill out’. The personality traits I find drove the inappropriate parenting practices of the father in the past, are manifestly still there.
Ms Y provided a glowing testimonial to the father’s ability to interact with her three children; two girls aged 15 ½, 13 ½ and a boy aged 7 and how they enjoyed the activities he involved them in. It is clear that for some period of the time, E and Z had a very good time on the farm, which presented an alternate and enjoyable experience to them.
It is clear on the evidence that the father worked hard on the farm, usually up to 12 hours a day, except Sundays. It seems from the evidence, that having high expectations of his own work standards, the father imposed this on other family members, without realising the onerous nature of the tasks he gave them.
When pressed, the father indicated that he had learned things recently about parenting and better and more effective ways of disciplining children and that on reflection he did not think some of the things he had done in the past were acceptable. I note however that he still did not regret what I have found to be the unacceptable use of physical force against his children.
I note the father’s opinion expressed in oral evidence was that he was a better parent than the mother. He reasoned this on the fact that he had more experience and the mother had left her older children to fly to Perth. I note the father’s previous experience with parenting has not proved particularly successful, as outlined above in his treatment of his older children and their strained or non-existent relationships with him. The mother’s reason for moving to Perth was, in part, to escape the father’s controlling behaviour.
I accept Mr N’s evidence that the father involved himself with the child when she was a baby at the farm, when he was able to, consistent with his long hours.
The mother claims the father stopped her from attending to the child when work needed to be done. Both Mr N and Ms H said they never saw the father stopping the mother from tending to the child but that does not mean the mother is giving inaccurate evidence.
The father had asserted that the mother drank too much, however Mr N’s evidence was that she sometimes drank a glass of wine and on occasions would drink with him on a weekend night when they had gone out to relax. He said on occasions the mother became “tipsy”. I did not get the impression that the mother had a problem with alcohol.
Any family violence involving the child or a member of the child’s family (s60CC(3)(j) and(k))
I refer to the above discussion and findings relating to the father’s aggressive and violent behaviour. I find the father has perpetrated family violence
Family violence is defined in the FLA as “conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person’s family that causes that or any other member of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety”. The incidents have been described above. The father hit V with a hairbrush and cut off her hair. I have referred to the father hitting Ms J Collins in the head. I do not accept these were of the nature of permissible discipline or ‘lawful chastisement’.
There are other incidents involving L and Ms D referred to above. There are no current AVOs although there has been a history between the parties of each having AVOs against the other.
Likelihood of order leading to further proceedings (s60CC(3)(l))
Although the father complains about lack of compliance by the mother with court orders, the father has shown disregard for court orders in the past. As indicated above, he knew where Mr B’s children were when they were retained contrary to orders; he spent time with the mother’s older children alone when there was an order prohibiting that, and he attended on those who had AVOs against him. Police reports and DoCS reports record similar lack of compliance. He ignored a clear direction I gave him on the second last day of the trial.
Clearly if orders are made that the father wants, there is less likely to be litigation brought by the father. The court however should not balk at making an order that is in the best interests of the child simply because it is not one that the father has indicated he can live with. Any suggestion that this matter might be dealt with by way of making interim orders and then seeing how things progress is not one that I believe is in the child’s best interests. Current orders should be made in this matter based on the current situation as I find it. If, as the father confidently predicts, the mother’s relationship with Mr W will soon end (a prediction by the father so far as I understand it based upon the mother’s past behaviour, not her current relationship with Mr W), and she moves back to NSW, that may or may not be a change significant enough to allow a court to relook at the parenting arrangements. The difficulties with the father’s personality are unlikely to change in the short term.
Other matters
There are no other relevant considerations which have not already been discussed.
EQUAL SHARED PARENTAL RESPONSIBILITY
Pursuant to s61DA(2)(b) FLA, I find that the father has engaged in abuse of a child who was a member of the father’s family at the time (for example, slapping Ms J Collins forcibly in the face and hitting V with a hairbrush) and family violence.
I find that the presumption of equal shared parental responsibility does not apply.
Even if I am wrong about that, the provisions of s 61DA(4) FLA apply. The parents agree that there has effectively been no communication between the two of them since the separation two years ago. There have been some texts and some emails but they have not spoken to one another. I accept the submission for the counsel for the Independent Children's Lawyer that the potential for agreement between the parties at this stage is very low. I find that there is no ability of the parties to communicate at all and in my assessment very little likelihood that will change in the short to medium term. I find it would not be in the child’s best interests for the presumption to apply. The child’s primary residential parent will have sole parental responsibility.
EQUAL TIME AND SUBSTANTIAL AND SIGNIFICANT TIME
As I have not ordered equal shared parental responsibility, it is not necessary to consider equal time and significant and substantial time pursuant to s 65DAA. However if I was to do so, when looking at the factors under s 65DDA(5), which I am not mandated to do, there are circumstances that are insurmountable in terms of an equal or substantial and significant time arrangement.
The High Court in of MRR & GR (2010) 240 CLR 461 noted the consideration of reasonable practicability under s65DAA(1)(b) and s65DAA(2)(d) is an imperative consideration and at paragraph 15 says “Section 65DAA(1) is concerned with the reality of the situation of the parents and the child, not whether it is desirable that there be equal time spent by the child with each parent. The presumption in s 61DA(1) is not determinative of the questions arising under s 65DAA(1). Section 65DAA(1)(b) requires a practical assessment of whether equal time parenting is feasible.”
As a starting point, the total dysfunction in the relationship and in the communication between the mother and the father means that those types of orders are not in the child’s best interests or reasonably practicable.
I note there has been no interim decision to have the child return to NSW. She has been living in Western Australia since late 2009. The reality of the situation is that the child has spent little time with her father and is well established in her current environment. As I have noted above, the child’s only home, as far as she remembers, is in Western Australia. The people she has grown up with, that she remembers and has an attachment to, are the mother and Mr W, who are financially and emotionally tied to Western Australia. The child has no attachment to her father.
The father’s application is to have the child and the mother return to NSW so that the child can live between each parent on an equal shared basis until the child reaches school age. The mother is unable and unwilling to move to NSW. I must acknowledge the effect that a relocation to NSW would have on the mother, who would be required to leave her partner, her home and her investments to return to NSW, which she left, she says, in fear of the father. I have referred to evidence about how stress placed upon the mother impacted upon her parenting of the child, and I accept that evidence. The child too, is settled in WA and established in her life there.
The father is unable and unwilling to move to Perth. Given the father will remain in NSW, the tyranny of distance between the parties is insurmountable in terms of an order for equal or substantial and significant time.
In considering the child’s bests interests and the matters in s 65DAA(5) FLA I conclude that orders for the child to spend equal or substantial and significant time with both of her parents are not in the child’s best interests or reasonably practicable.
CONCLUSION ABOUT BEST INTERESTS
Counsel for the Independent Children's Lawyer submitted that the father was a severe task master who met oppositional behaviour with violence and I accept that is so. Whilst close to the children when they were little, his treatment of them was such that they became estranged when they started to seek independence. Under the father’s proposal he will be the sole primary carer for the child in her teenage years.
It is not in the child’s best interests to have her life uprooted to move to NSW. Necessarily then, I find it is in the child’s best interests that she remain in Western Australia with the mother.
I must therefore make a decision on how much time the child is to spend with her father, who will remain in NSW.
I have found that the father is controlling and domineering, with a weakened capability to empathise with those around him, and most notably, his children. He is a very domineering person with strong and rigid views and opinions. His high expectations of his children have created anxiety for them. Taking into account the father’s personality traits and although the mother clearly wishes to establish a life for the child and herself without the father, I am not convinced these factors amount to the conclusion that the child’s potential future relationship with her father should be entirely forfeited. I will not be making an order in accordance with the mother’s wishes that the child have no contact with her father.
The child’s time with the father will necessarily have to be limited given the distance. The difficulty will be ensuring their time together allows the child to know her father and have some opportunity of developing a relationship with him at some time in the future, when she is old enough to make that choice herself. A problem that I have is the statement that the father made that he would not see the child relentlessly in a child contact centre. There is a risk therefore that the child will be abandoned by the father if only recognition contact is granted. I am not sure that I accept everything the father has said and I am not entirely confident that he was being genuine when he said that.
The family consultant gave evidence about the qualities that the father needed to display. The family consultant made it clear that any new attachment between the child and her father did depend upon the capacity of the father to respond positively and the need for transfers to be peaceful and calm. The family consultant emphasised the father to be a “reflective parent”. By that he meant the father would need to be sensitive to any distress that was shown by the child and to have a preparedness to return the child to the attachment figure in circumstances where she had become sufficiently distressed to make that an appropriate response. I am not convinced the father has the ability at the current time to behave in this way. The family consultant recommended any introduction of the child to her father be incremental and slow and that the length of time for the child being away from attachment figures be monitored sensitively. The family consultant also emphasised that the mother would need to constantly and positively reinforce with the child the advantages of the child being with her father. He opined that he would not expect at this stage for the child to be in a position to spend overnight with her father.
The family consultant emphasised to the father that if he was not able to be reflective about any distress in the child then to force the child’s time with him in those circumstances may mean that in future contacts, the difficulty in forming an attachment with him would increase. It may also lead to a lack of trust in the primary relationships and attachments that the child currently has.
The father put to the family consultant that the child was able to be put with baby sitters during the days of the hearing and questioned why therefore the child could not spend time with him on an unsupervised basis. Although I have no evidence one way or the other, I infer that the child understood the persons the mother was placing her with had her 100% confidence. The child may not obtain a similar type of feeling given that the mother and Mr W’s true position is that they do not believe that it is in the child’s best interests for the child to see the father because of their views about his personality and their views about him perpetrating family violence and other dangerous aspects of his behaviour.
The family consultant also made it clear that how quickly one could move towards the child spending time with her father without an attachment figure being close by would depend upon how successful any reintroduction was.
At the current time, the reality of the situation is that it is not possible for the child to have a meaningful relationship with her father. The best that can be done for the child is to create a situation where the child is brought up knowing who her father is, and that might lead, in the fullness of time when the child is an adolescent or a young adult, to her being able to reconnect with him.
PROPOSED ORDERS
It follows from what I have already said that the mother should have sole parental responsibility for long term decisions relating to the child. I accept generally the Independent Children's Lawyer’s proposal as to how the mother should keep the father informed and facilitate information being provided to him about matters affecting the child’s long term welfare.
For reasons already stated, the child is to live with her mother.
The child’s contact with her father
The Independent Children's Lawyer has suggested that each party enrol and complete a post separation parenting course and provide the other party with a certificate that that course has been completed as a pre-condition to the child spending time with her father at a contact centre on four occasions a year (two in City 1 and two in Wollongong or City 2).
The father has already given evidence that he has participated in certain courses. Whilst I would ordinarily find some utility in such a suggestion, in the circumstances of this case I have found that there is no ability of the parties to communicate at all and my assessment is that that situation is unlikely to be changed in the short to medium term even if the parties attended such a program. Their current entrenched attitudes would be unlikely to change. The tyranny of distance means that the parents would be individually doing courses with no realistic possibility that the professionals running those courses could bring the parties together at any point. Consequently, I am not attracted to the idea of making the parties’ attendance at such a course a mandatory pre-condition to any arrangement for the child to have contact with her father.
The order defining the conditions and times for the child to see her father will be subject to any other agreement the parties might reach in the future about the child’s time with her father. That agreement should be in writing (which writing can be contained in email communication between the parties).
In order for the child to have some familiarity with her father, I propose to make an order substantially in the terms suggested by the Independent Children's Lawyer. This will give the child an opportunity on eight occasions a year (four pairs of two days) to meet with her father for two hours on each of those occasions. The occasions should alternate between City 1 and Wollongong. I have chosen Wollongong over City 2 because it will be slightly easier for the mother to get to and slightly less travel for the child.
Given that the father has said that he will not comply with an order of this nature (and my uncertainty about whether or not he is serious about that), the child’s time with her father will start in City 1, then be in Wollongong and then alternate after that. In the event the father indicates he does not intend to come to City 1 (or otherwise does not turn up to City 1), the mother is not obliged to take the child to Wollongong on the next scheduled occasion and in the event that the father indicates that he does not intend to come to City 1 (or otherwise does not come to City 1) on three consecutive occasions of periods of two days each then the order for the child to spend face to face time with her father will be discharged.
The time in Wollongong will be during the second term and Christmas NSW school holidays. The time in City 1 will be during West Australian first term and third term school holidays.
The father’s parents or either of them and the father’s youngest child C, may attend with the father during any period of time which the child spends time with her father, either at City 1 or Wollongong.
I refer to the findings that I have made in relation to the respective financial position of each of the parties. Both parties have the financial capacity to bear the costs of the implementation of the orders that have been sought. The mother will be required to pay the costs of air travel and accommodation from Western Australia to New South Wales on two occasions each year for herself and the child. The father is to fund the cost of his travel to Western Australia. I find that she has the capacity to bear those costs. Each party also pay one half of the contact centre costs (with the mother paying the City 1 contact centre and the father paying the Wollongong contact centre). The mother will be giving notice in February each year of the period of time that she will intend to come to New South Wales in term 2 New South Wales school holidays and New South Wales Christmas school holidays. The order is intended to give the mother sufficient time to plan ahead and she may think about coordinating her trips to New South Wales with seeing her other children in New South Wales.
I will make an order which will provide for a party who intends to move from their current residence away from either the City 1 or Wollongong contact centres to nominate an alternate contact centre that is near to their new residence.
I will make orders substantially in the terms suggested by the Independent Children's Lawyer for electronic communication between the parents every two months (including the electronic transmission of a digital photograph of the child) and to facilitate communication between the child and her father on the child’s birthday, Christmas Day, Father’s Day and the father’s birthday. Otherwise there will be an order restricting contact between the father and the mother unless it is necessary for the implementation of the orders. I will otherwise make orders suggested by the Independent Children's Lawyer relating to the nature of the communication between the parties.
The child’s surname
In relation to changing the child’s name, there was very little emphasis or evidence led in respect of this issue. In paragraph 522 of her affidavit the mother sets out what she originally wanted in relation to surname (the change of the child’s surname from Collins to Ricardo). She changed that application during the hearing to simply wishing to have Ricardo added to the child’s last name. Given the limited orders that I intend to make, there is some attraction to making the order that the mother seeks. However, the future status of the relationship between her and Mr W (in terms of them marrying) is unknown and the mother has not said what she intends to do with her own surname if that happens. The mother agreed at the child’s birth to give the child the surname of her father (even though that was in the context of a relationship whose nature has been described in these reasons). I have insufficient evidence to find that it is in the child’s best interests to change her name so it will remain as it is.
What Mr W is to be called
The father seeks an order that he is known to the child as ‘Dad’ and ‘father’, and that Mr W be known to the child as ‘[Mr W’s first name]’. The evidence is that the child currently refers to Mr W as ‘Dad’. The members of the child’s household are Mr W, currently his son K aged 20, and U another son aged 16. The middle child KN 18 lives in Perth with her mother but I got the impression she visits the farm on a regular basis. These children refer to Mr W as ‘Dad’ and it is Mr W’s opinion that this is why the child refers to him as such. The child refers to Mr W’s parents as Nanna and Pop. Given the limited time the child will spend with the father, and Mr W’s role as ‘surrogate father’, I will not make the order as sought by the father.
The mother is at all times however, where appropriate, to refer to the father to the child and in the child’s presence, as her “father” and to otherwise make the child aware of who is her biological father. I will make an order that the father, should he elect, provide the mother on an annual basis with a recent photograph of himself and that that photograph be displayed openly in the child’s bedroom.
Overseas travel
The mother indicated that she wished to travel overseas with the child. The father said his number one priority in these proceedings is his application that the child’s name remain on the airport watchlist. He is fearful for the child’s safety in South America. The mother’s travel overseas is of some concern given the evidence about her leaving Z in Brazil in August 2003. The mother also of course, took the child to Western Australia without reference to the father. The father’s fears in relation to the mother as a flight risk are overstated. Whilst the mother was born in Brazil she has been domiciled in Australia since 1988 and is currently in an intact relationship with Mr W. Her assets seem to be substantially invested in real estate in Western Australia. The father says if the mother’s relationship with Mr W breaks down there is some risk the mother might wish to return home to her family in Brazil. Brazil is a signatory to the Hague convention. Mr B was able to secure Z’s return to Australia. I acknowledge that the mother has also indicated she has some business interests in the Philippines, which is not a signatory to the Hague convention.
The mother will have sole parental responsibility. The father will have limited time with the child which will be supervised. I accept there is some risk that the mother might at some time in the future wish to relocate overseas with the child but I assess that risk to be low. It is appropriate that the father know if the mother intends to take the child out of the country and I will require her to inform the father of her intention to do so six weeks before that happens and to provide the father with copies of the itinerary, overseas contact details and return air ticket for the child. It is also appropriate to require the mother pay into a solicitor’s trust account an amount of $25,000 which can be a fund which the father can apply to access if he needs to pay expenses to attempt to recover the child from overseas. I will limit the time the child is to be away from Australia to a period of six weeks.
The child can remain on the airport watch list but the child is not to be prevented from leaving the country by authorities if the mother provides to the Australian Federal Police a statutory declaration which contains evidence that she has complied with the preconditions referred to in the previous paragraph.
The Independent Children's Lawyer’s costs
The Independent Children's Lawyer has sought that within six months each party pay to Legal Aid NSW an amount of $10,870, being one half of the costs of independent representation for the child. Given the extensive nature of these proceedings and the involvement of the Independent Children's Lawyer in them, I assess those costs to be reasonable. Given what I have already said about the respective financial positions of the parties, I find that both parties are in a position to make that payment and accordingly I will make the order for costs as sought by the Independent Children's Lawyer.
The Independent Children's Lawyer has sought to be discharged and I will do so.
I certify that the preceding three hundred and fifty-six (356) paragraph is a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 12 January 2012.
Legal Associate:
Date: 12 January 2012