CORCORAN & CORCORAN
[2016] FCCA 2985
•22 November 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| CORCORAN & CORCORAN | [2016] FCCA 2985 |
| Catchwords: FAMILY LAW – Parenting – high conflict. |
| Legislation: Family Law Act 1975, ss.60CC, 65D(A) |
| Applicant: | MR CORCORAN |
| Respondent: | MS CORCORAN |
| File Number: | SYC 4787 of 2012 |
| Judgment of: | Judge Henderson |
| Hearing date: | 10, 11, 12 and 13 October 2016 |
| Date of Last Submission: | 13 October 2016 |
| Delivered at: | Sydney |
| Delivered on: | 22 November 2016 |
REPRESENTATION
| Counsel for the Applicant: | Ms Messner |
| Solicitors for the Applicant: | David H Cohen & Co |
| Counsel for the Respondent: | Mr Kearney SC |
| Solicitors for the Respondent: | Swaab Attorneys |
| Counsel for the Independent Children's Lawyer: | Ms Falloon |
| Solicitors for the Independent Children's Lawyer: | Peter Baker Solicitor |
ORDERS
That the mother have sole parental responsibility for the long term care, welfare and development of the children of the marriage, [X] born (omitted) 2003 and [Y], born (omitted) 2005 ("the children").
That the children live with the mother.
That [Y] shall spend time with the father as follows:
3.1During school term, mid-week time from the conclusion of school (or 3.00pm if not at school) until commencement of school next day (or 9.00am if not at school) on a day as determined in accordance with Order 5;
3.2During school term, each alternate weekend from the conclusion of school Friday (or 3.00pm if not at school) until the commencement of school Monday (or 9.00am if not at school), provided that in the event that such a weekend is a long weekend, time shall conclude upon the commencement of school Tuesday (or 9.00am if not at school); and,
3.3For the second half of each school holiday period;
noting that it is intended that [Y] and [X] shall have time with the father on the same mid-week occasions and weekends as each other.
That [X] spend time with the father as follows:
4.1During school term, mid-week time from the conclusion of school (or 3.00pm if not at school) until the commencement of school the next day (or 9.00am if not at school) in each week on a day as determined in accordance with Order 5;
4.2During school term, each alternate weekend from the conclusion of (omitted sport) on Saturday until the commencement of school Monday (or 9.00am if not at school) provided that:
4.2.1in the event that the mother notifies the father that [X] is not scheduled to attend (omitted sport) on any such weekend, time shall commence from the conclusion of school Friday (or 3.00pm if not at school) and for such purpose the mother shall notify the father not less than 7 days prior to any such occasion if [X] will not be attending (omitted sport);
4.2.2in the event that such a weekend is a long weekend, time shall conclude upon the commencement of school Tuesday (or 9.00am if not at school);
4.2.3in the event that [X] has a (omitted sport) event on the Sunday of any such weekend, then the mother shall provide the father within not less than 8 weeks prior notice of the same and time shall not occur on that weekend but shall occur on the weekend immediately following in accordance with this Order.
4.3for the second half of each school holiday period.
That on or before 31 January in each year, the mother shall provide to the father in writing the scheduled days that [X] is to attend (omitted sport) from Monday to Thursday each week for that calendar year and:
5.1in the event that [X] has only one day upon which she is not scheduled to attend (omitted sport) training from Monday to Thursday, then such day shall be the day upon which mid-week time in accordance with Orders 3.1 and 4.1 commences in each week for that calendar year; and,
5.2in the event that there is more than one day upon which [X] is not scheduled to attend (omitted sport) training from Monday to Thursday than within 7 days of the provision of notice by the mother in accordance with this Order, the father shall nominate in writing one of such days and such day shall then be the day upon which mid-week time in accordance with Orders 3.1 and 4.1 commences in each week for that calendar year.
THE COURT ORDERS BY CONSENT:
That for the purpose of Orders 3 and 4:
6.1‘school term’ is defined to mean the period commencing upon the day and at the time which [Y] is required by his school to attend school for each term and concluding upon the day and at the time which [Y] is required by his school to last attend school for each term; and,
6.2‘school holiday period’ is defined to mean the period commencing upon the day and at the time which [Y] is required by his school to last attend school for each term and concluding upon the day and at the time which [Y] is required by his school resume attendance at school for the following term.
6.3‘the second half of each school holiday period’ shall commence:
6.3.1for each of the school holiday periods at the end of Terms 1, 2 and 3, at 9.00am on the second Sunday following the commencement of the school holiday period; and,
6.3.2for the school holiday period at the end of Term 4, at 9.00am on 10 January in each year;
6.4time with the father on each alternate weekend in accordance with Orders 3.2 and shall recommence in each school term on the second weekend following the recommencement of the school term.
That notwithstanding any other Order herein, the children shall spend time with the father as follows:
7.1between the hours of 6.00pm on the day immediately prior to Father’s Day until the commencement of school (or 9.00am if not at school) on the Monday immediately following Father’s Day;
7.2From 5.00pm on Christmas Eve until 2.00pm on Christmas Day in 2017 and each alternate year thereafter and from 2.00pm on Christmas Day until 6.00pm on Boxing Day in 2016 and each alternate year thereafter;
7.3From 9.00am until 2.00pm on Greek Orthodox Easter Sunday in 2016 and each alternate year thereafter and from 2.00pm on Greek Orthodox Easter Sunday until the commencement of school (or 9.00am if not at school) on the Monday immediately following in 2017 and each alternate year thereafter.
That notwithstanding any other Order herein, the children shall spend time with the mother as follows:
8.1between the hours of 6.00pm on the day immediately prior to Mother’s Day until the commencement of school (or 9.00am if not at school) on the Monday immediately following Mother’s Day;
8.2From 5.00pm on Christmas Eve until 2.00pm on Christmas Day in 2016 and each alternate year thereafter and from 2.00pm on Christmas Day until 6.00pm on Boxing Day in 2017 and each alternate year thereafter;
8.3From 9.00am until 2.00pm on Greek Orthodox Easter Sunday in 2017 and each alternate year thereafter and from 2.00pm on Greek Orthodox Easter Sunday until the commencement of school (or 9.00am if not at school) on the Monday immediately following in 2016 and each alternate year thereafter.
That when time is not to commence and conclude at school in accordance with these Orders, the father (or his nominee) shall collect the children from and deliver the children to the mother (or her nominee) at McDonalds, (omitted) at the times provided by these Orders.
That without derogating from Order 1 herein, the father be and hereby is restrained from causing or permitting:
10.1[X] to be enrolled in any extra-curricular activity, whether related to (omitted sport) or otherwise, and from doing any act or thing to interfere with [X]’s participation in and attendance at any extra-curricular activity, including but not limited to (omitted sport);
10.2The children or either of them to attend upon any medical practitioner, hospital or other health professional or institution, save in the event of an emergency and in such event the father shall forthwith provide the mother with complete details as to any such attendance.
That each of the mother and the father shall forthwith:
11.1Notify the other as soon as possible and in any event within 24 hours of any serious injury or illness suffered by the children while they are in the care of that parent;
11.2Notify the other not less than 7 days prior to any change of that party's residential address and of the new details;
11.3Notify the other not less than 7 days before change of that party's telephone number and of the new details;
11.4Notify the other and keep the other notified of a telephone number where the children may be contacted in the event of an emergency; and,
11.5Upon request, supply to the other any authority directed to the school attended by the children necessary to authorise the other to obtain from the school particulars of the children's welfare and progress at the school, school reports, school photographs, details of upcoming functions or activities and any other information disseminated by the school to parents of children attending the school.
In relation to travel arrangements for the children:
12.1Each of the parties shall be permitted to remove the children from the Commonwealth of Australia to travel overseas provided that the travelling party provides the other party with 2 months' written notice (or such other period as agreed) of the intended trip, including details of the proposed date and destination, and provided they give 14 days' written notice of the confirmed dates and times of travel, the itinerary, returning ticket details and contact details for the children for the duration of the trip;
12.2Any such travel may only take place provided that the entirety of any such travel occurs during the time that the children are to spend with the travelling party pursuant to these Orders during a school holiday period;
12.3That the mother shall hold the children's passports and shall release the children's passport to the father not less than 14 days prior to the proposed date of departure by the father and provided that Order 12.1 has been complied with by the father with the father to return the passports to the mother within 14 days of the children’s return to Australia; and
12.4That the travelling party shall notify the other party by way of SMS text message that the children have arrived safely at the holiday destination within 24 hours of the children's arrival.
That for the purposes of facilitating overseas travel, the parties shall each do all acts and things and sign all documents necessary to ensure that the children have an up-to-date passport to allow them travel and to facilitate this, the mother shall provide to the father a passport application and within 7 days of the receipt of this passport application by the father, he shall sign that passport application and return it to the mother. The mother shall thereafter lodge the passport application, receive the passports and keep the passports in safe custody for use by both parties in compliance with Order 12.
That the Applicant father pay the Respondent mother's costs of and incidental to these proceedings.
IT IS NOTED that publication of this judgment under the pseudonym Corcoran & Corcoran is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 4787 of 2012
| MR CORCORAN |
Applicant
And
| MS CORCORAN |
Respondent
REASONS FOR JUDGMENT
The matter of Corcoran was an application concerning the parenting arrangements for the parties’ two children, [X], born (omitted) 2003, and [Y], born (omitted) 2005.
Mr Kearney SC represented the mother, Ms Messner of counsel, the father and Ms Falloon of Counsel represented the Independent Children’s Lawyer.
Although initially all matters were in dispute the issues ultimately to be determined by the court were sole parental responsibility and the regime of time the children were to spend with their father. The matter required four days of hearing and the evidence given by the parties was distressing, to say the least.
The mother sought sole parental responsibility for the children and the father sought this responsibility to be shared. The mother sought orders that the children spend alternate weekends with their father from after school Friday to the commencement of school Monday and on one evening each week. To ensure [X] attended her extracurricular activities the mid-week time would vary around her (omitted sport) timetable and she and [Y] would spend the same time with their father each week.
The father sought the current orders be maintained and that the children live with him from after school Thursday to before school Wednesday each fortnight.
On the third day of the hearing the Independent Children’s Lawyer put forward a minute of order agreeing that the mother have sole parental responsibility and that the children spend time with their father in week one from after school Thursday to Monday morning and in week 2 from 7.00pm Friday to 9.00pm.
The mother agreed for the children to continue spending time with their father even though there are significant issues for her in her parenting of the children arising out of the father’s attitude and conduct towards the mother and which the children are aware of.
The parties agreed to a raft of other matters such as travel overseas, holding of passports, half school holidays, definition of half school holidays and the like.
The mother and father have been engaged in a war since separation in 5 March 2010. The war escalated from 2014 and continues unabated today. Rather than time healing the impact of separation and commencing new relationships assisting in the healing process the war escalated. The casualties of this war are, as always, the children. After having heard the evidence of each of the parents and the family consultant, I formed the view that the father has been the perpetrator of the war and that foolishly, rather than simply ignoring the father’s childish, demeaning and, at times, disgraceful conduct and behaviour, the mother fell into his trap, responded, and thus the war escalated.
The evidence I read for the father is as follows:
a)Initiating application which sought that the children live with him and they have telephone contact only with their mother filed 20 March 2014;
b)Affidavit sworn 2 September 2016; and
c)Affidavit of his partner Mr J sworn 15 September 2016.
Father’s Exhibits
d)Exhibit 1: case outline; and
e)Exhibit 2: emails to and from the parents’ solicitors commencing 17 May 2016 relating to [X]’s (omitted sport).
The evidence I read for the mother is as follows:
a)Second amended response filed 26 August 2015;
b)Affidavits of 1 September 2016, 10 April 2014 and 11 July 2014;
c)Affidavit of Mr C of 3 September 2016;
d)Affidavit of Ms A of 3 September 2016; and
e)Affidavit of Mr T of 3 September 2016.
Mother’s Exhibits
f)Exhibit 1: case outline;
g)Exhibit 2: notes from a Dr A;
h)Exhibit 3: page 7, paragraph 15 of a family report prepared by Ms M on 3 October 2011 when parties were originally before the Court and resolved their parenting and financial matters on 23 March 2011. The father was having 5 nights a fortnight with the children by virtue of those orders. Paragraph 15 reads as follows:
It is clear when the parents were interviewed together that although they are able to communicate about the children, they have some difficulties in communication. Unfortunately that has deteriorated in those six years. Mr Corcoran at times spoke in a rather loud and very definite way, which Mrs Corcoran appeared to find difficulty. This was pointed out to Mr Corcoran and he appeared to be unaware of this.
i)Exhibit 4: a calendar of events for [X], who is a talented and gifted gymnast; and
j)Exhibit 5: the police reports in relation to the numerous occasions that the husband had deemed it appropriate to call the police.
Both the parties, Mr T and Mr J were cross-examined.
The Independent Children’s Lawyer tendered the following exhibits:
a)Exhibit 1: case outline;
b)Exhibit 2: notes of Dr C; and
c)Exhibit 3: Child Inclusive Conference memorandum dated 24 April 2014.
The family consultant, Ms K, prepared a report dated 21 November 2014 marked court exhibit 1 and gave evidence at the trial.
I formed the view after hearing the evidence that that the father has an exceedingly negative and pejorative view of the mother. This opinion was cemented by the father’s evidence and his demeanour. Additionally I accept Mr Kearney SC’s submissions that his instructions to counsel at the conclusion of the proceedings in his submission that if I granted the mother sole parental responsibility she would use this as a weapon also supports this finding.
Such is the level of the father’s dismissal of the mother as a mother and individual that he did not even take the time to properly read, digest and understand her affidavit. I formed the view that he had barely read it. When questioned about the mother’s response to allegations of his poor behaviour in her affidavit, his answer was he didn’t know. When pressed on whether he had read her affidavit, he was evasive saying things such as “a bit, not really, not all of it” and the like. This is but one example of how little the father regards the mother.
I accept that his partner Mr J encouraged him to read the mother’s affidavit before the trial. Had it not been for her, I doubt he would have read it at all.
Details of exceedingly distressing incidents arose during the cross-examination, incidents all instigated by the father. I have found all the incidents of conflict and poor behaviour and particularly when the children have been caught in the middle have been instigated by the father. The mother has caused the children distress by involving them in the conflict instigated by the father; that is also clear. However it is the father who starts the conflict.
The father’s own father died earlier this year. The mother only found out about that sad event for the father and, in particular, her children during the fathers’ cross examination. The father at no stage rang the mother, contacted her, or wrote to her or her lawyer to tell her of this sad event so that she could share in the grief process with the children.
The children attended their grandfather’s funeral and they, at no stage, told their mother that their grandfather died or they attended his funeral. Ms Messner’s submission to me at the conclusion of the hearing was that the reason for this tragic incident is because the children’s relationship with their mother is fractured and not close; thus they cannot tell or share such sadness’s with her. I have formed an entirely contrary view for the following.
The father would hardly have agreed for an arrangement of 6 nights in his care and 8 in their mother’ care if he believed their relationship with their mother was so poor.
The children have not told their mother of these important family events because their father has given them messages, subliminally or directly, that they are not to tell their mother anything that happens in his home or about his family.
When the mother was cross-examined on this issue, she began to cry. This was a callous, cold-hearted, calculated manoeuvre by the father to further excise, as best he can, the children from their mother by ensuring they do not tell her significant events that they should be able to share with their mother.
When Ms K gave her oral evidence, she said that she believed she would have come to Court to find that the children had been totally aligned with their father and she had opined this concern in the report, particularly with [Y], who thought it necessary to lie to Ms K when she questioned whether her father and Mr J yelled. [Y] had said they did not yell, yet the father and Mr J said they did.
Ms K said she was pleased that this had not occurred and indicated that may be because of the regime of time that the children were in and/or the strength of their relationship with their mother.
Thirdly the father took the children on a camping trip to (omitted) at Easter this year. [X] suffered significant abdominal pain. Her father took her to Hospital A. The father did not, at any stage, inform the mother himself, or via his lawyer, that this had occurred. He also took her to a medical centre and was given a referral for an ultrasound and failed to advise the mother of these events.
[X] did not tell her mother of this event either, only that she had had bad stomach pains and was lying on the ground when camping with her father. When [X] told her what had happened, namely severe pains in her stomach and that she had to lie on the ground. The mother believed the father had not attended to the child’s medical needs and caused her lawyers to write a letter the very next day telling him she had taken take [X] to Hospital B on 17 April 2016 due to her severe abdominal cramps and accusing him of failing to attend to the child’s needs.
To this day the father has never told the mother he took [X] to Hospital A, the (omitted) medical centre or that that he had a referral for an ultrasound. The mother found out about the hospital visit, the medical centre attendance and ultrasound referral serendipitously when she took [X] to the same (omitted) medical that the father had taken [X] to earlier. That is how the mother became aware her pre-menstrual child had been taken to hospital, a medical centre and had had a referral for an ultrasound. The father at no stage informed the mother, and neither did [X].
This was a calculated attempt by the father to further excise the mother from important matters in the children’s lives. He had no explanation for this behaviour.
Fourthly the father tells me at paragraph 177:
I live in a spacious three bedroom home in (omitted) where the children have their own bedrooms, close to their school transport amenities. I collect the children from their school when they’re in my care, flexible working hours, which allows me to be with the children at any time. I always have the children’s lunches made and packed the night before.
He does not tell the whole story which is that he leaves the home at 5.30am on school mornings for work and the children get themselves to school via public transport. The mother was unaware of this, the children had not told their mother. I accept, in this modern world, some parents have no option but to do this, however they would put in place structures to ensure their children are safe.
One such structure you might put in place is to let the children’s mother know that this is the situation or the necessity. The father failed to do that. His failure in this regard is compounded as he has other options other than this early leaving time. He boldly told me he has flexible working hours and can choose to start work any time provided he spends his 8 hours at work. He chose this early leaving so he could collect his children of an afternoon. That is an arrangement that suited him. He has before and after school available to him to ensure he can do his 8 hours a day work and that his children are being cared for appropriately. The father chose a non-child-focused approach which was potentially risky for the children. The mother only became aware of these totally unsatisfactory care arrangements at these proceedings.
The father has placed the children at risk by these decisions in not informing the mother of the treatment [X] received at Hospital A and the (omitted) Medical centre and his choice to leave the children at home every morning from 5.30am.
Further, the hypocrisy of his decision is highlighted at paragraph 30 of his affidavit with his significant complaint of the mother’s care of the children as he asserts she has left them alone and gone to the gym on a few mornings. At paragraph 25 he says:
“We woke up this morning and mum was gone. We were scared. She came back a little while later. She had been to the gym.” At the ages of 10 and nine, I believe the children are too young to be left at home unsupervised.
The mother denies doing this and even if she did, on one or two occasions, she came back to the home before they left for school. The mother did not leave for work at 5.30am, nor did she allow the children to get themselves to two different schools on their own. The father was unable to see the hypocrisy in actions and this complaint.
Short and relevant chronology
The father is 49. The mother is 41.
The parties married and commenced cohabitation in October 2000.
[X] was born in 2003 and [Y] in 2005.
The parties separated 5 March 2010.
Final parenting orders were made on 23 March 2011 and the parties were divorced in October 2012.
The father commenced these proceedings on 20 March 2014.
Interim parenting orders were made by Judge Walker on 15 July 2014.
The father commenced the parenting application due to his concerns from the children’s reports to him of very serious physical abuse of them by their mother. This included repeated hitting, belittling, yelling loudly, such that the children were so fearful and distressed they ran into their rooms to escape their mother. The father was concerned about the mother chasing after [Y] with a stick to hit him, not listening to the children, questioning the children, causing them to be bruised and pinching them. The allegations are very concerning and are extremely serious allegations of abuse. The father sets out in graphic detail the abuse his children reported to him. This behaviour commenced, he says, in earnest at paragraph 38 of his trial affidavit in early February 2014.
The father said that the children were scared of their mother. They were saying “Mummy’s hitting me and [Y] and she screams and swears at us every day.” “Mum tells us if we tell you about it, we will never see you again.” “Mum pinches me. It hurts and makes me cry.”
The father took [Y] to Dr L after these disclosures and did not tell the mother. Dr L report states “that his mother pinched him and hurt him”. [X] reported to the father on 10 February 2014 “that Mum gets mad at us. We cry, and then she yells at us more. She hits us over and over. It really hurts. We have to run and hide to our rooms.”
The father alleges a child called [A] had hit and hurt [Y]. The father reports [Y] said to him “I don’t want to go to [A]’s party. He hits me all the time.” The father said, “Does he really? When does this happen?” “We go to [A]’s place a lot where mum can’t look after us. He’s really mean and hits me.” [X] interjects “It’s true, dad. I’ve seen [A] hit [Y].” This is most concerning yet the father does not ring the mother about these concerning reports and say, something like “What the children are saying is a real worry. What is going on? I’m concerned about what our children are telling me. What can we do?”
The father attends the police station to report the allegations of hitting by the child [A]. He takes both children with him. The father rings [A]’s father and states in his affidavit that [A]’s father becomes defensive. [A]’s father Mr C’ filed an affidavit and was not called for in cross-examination, therefore his evidence is accepted by me.
Mr C'sMr CMr C’s affidavit of 10 August 2016 recalls the conversation with the father. Mr C says “my son is not aggressive. He has not hit [A], they are good friends”. Mr C goes on to say he was shocked to read in the father’s affidavit that the principal of (omitted) Primary school where [Y] attends and where his son [A] used to attend is reported to have said to the father:
You know [A] is autistic? Autistic children can be aggressive. [A] used to attend the school, but he was just too physically aggressive with the other children and he had to be removed. [A] won’t be able to attend mainstream schools.
Mr C, says this:
I was shocked that it was asserted Mr L used those words. My son is not aggressive, nor physically aggressive with children. He was not removed from the school. We decided to remove him because we thought he needed extra academic support. He goes to (omitted school), which has a special needs class, and has made great improvement. He will go to mainstream high school and remains a happy child. He is at the lower end of the autism spectrum. I have never been advised by any of [A]’s teachers or the school principal that he was aggressive or physically aggressive with other children. It is just not true.
Mr C says in his affidavit that he rang the headmaster and asked about this and the headmaster said: “I’ve no recollection of (omitted) discussing [A] with me. Under privacy legislation, I can’t do it”.
I accept Mr C’ version of events and not the events recounted by the father. The father, having read the affidavit of Mr C, might have sat back and reflected upon why it is that his children were saying these things to him however when pressed on his reflection of why his children were saying such things to him he was clueless.
The mother’s evidence, when cross-examined on these very concerning issues of her hitting and yelling at her children, was not impressive.
The mother looked terrified in the witness box. No doubt she was, as this father has used every weapon in his considerable armoury to abuse, belittle, control, coerce and demean the mother and this includes the children. The mother flatly denied that she hit her children on any occasion, flatly denied that she would raise her voice so that it would be some sort of a screaming or yelling, but admitted she did raise her voice at times, for example, when [Y] wouldn’t get off the X-box, or to have [Y] to do his homework, if the kids are in another room, if they’re not doing what she says her voice will be raised. The mother would not concede that she may have acted in a way so that her children thought she was going to hit them or had hit them. Her denials were simple and complete.
I have formed the view that the mother does yell at the children at times. It is not an uncommon experience. I have formed the view that the mother has raised her hand at times to hit the children, and may have tapped or hit the children on occasions due to difficult behaviours in her home which may well have been created by the father. However, I am not satisfied that the mother has abused the children as is alleged and my reasons will follow as to why I have formed that view.
In any event the father admitted he has not had concerns for the children’s physical safety in their mother’s care for 18 months and [X] reported that their mother had stopped hitting them in January 2014 some two months prior to the father bringing his application.
Ms K was clear in her evidence that children in the kind of protracted conflicted situation which these children have lived with for five years, will distort events. This, she said, is one way they can cope with the war between their parents, by distorting an event. This may lead them to become aligned with one parent because they simply cannot cope with the stress and pressure of the parental conflict. This is what Ms K thought would have happened for these children, but fortunately it has not.
Ms K said it could well be the case that that’s what has happened here - namely the children have distorted events at their mother’s home. On the other hand, Ms K said it could well have been that the mother had been, to use her words using: “harsh discipline, over-disciplining” the children, but she was not able to say.
Whatever the situation is, that behaviour stopped on both children’s version of events, when Mr T came into the mother’s life, which was in December 2013. Both the children reported that the hitting had stopped in January 2014. Given also that the father concedes he has had no concerns about the mother physically abusing his children for about 18 months, I am confident these forms of harsh discipline, even if they were occurring, will not re-occur.
The question about why the children were reporting these events if they were not occurring was, to use Ms K’s words, complicated, deep and convoluted.
The family had therapeutic intervention with Dr C in mid-2014. It is clear from the father’s own material, his oral evidence and from the notes of Dr C that the father had been telling the children for some time to stand up to their mother and tell her things that they want her to do or not do, such as stop hitting them. He told me, in the witness box, that he tells his children to tell their mother what they’re thinking. I asked him: “Why would you need to tell your children to tell their mother what they’re thinking?” He said, “Because in our family, we’re open and honest and we always tell people what we’re thinking”.
The only explanation I can see for this strange attitude is to further undermine the mother’s authority over the children by re-enforcing in them that her relationship with them is so poor they have to tell her what they are thinking as it is not a usual thing for them to want to do or to do naturally. It is clear that the father has undertaken a course of conduct since at least January 2014 to undermine the mother’s authority with the children.
Judge Walker’s orders of March 2014 were a significant change to the children’s care regime. They came to live and are still living with their father in one block of 6 nights a fortnight and their mother 8 nights and not as previously 5 nights a fortnight broken up. Dr C said it was essential for the children’s wellbeing that each of the parents supported this significant change in their care arrangements. The father told Dr C in mid-2014 he would not support the orders and could at best be neutral. This is in circumstances where on his own evidence any physical abuse of the children had ceased in January 2014 and despite Dr C telling him that to not support the orders was very destructive for the children’s relationship with their mother.
The tragedy here for the mother and children is that at the time Judge Walker made her orders, any physical abuse had stopped and the father knew this, however such evidence did not emerge, as Her Honour was only conducting an interim hearing. There was no necessity in fact to have changed the children’s care arrangements as was so dramatically done in March 2014, however her Honour did not know this. The consequence has been to allow the father to continue to white ant the children’s relationship with their mother for his own reasons and endeavour to exclude the mother from the children’s lives by way of minimising her authority over them, and highlighting to the children any poor behaviours or difficulties he sees with the mother.
The father has not been successful in his campaign. This is a testament to the children’s affection for, and strength of relationship with, their mother. However, [Y] is closely aligned with this father, and this was clear in Ms K’s report of two years ago as highlighted at paragraph 47:
When questioned about his father also..... yelling, [Y] said, “No, no.” When it was raised with [Y] that his father and Mr J had told the family consultant they sometimes yell, he said, “They sometimes do, but only when we don’t do the right thing.”
The family consultant subsequently raised with [Y] a concern about [Y] possibly feeling, for whatever reason, the need to possibly lie about this, but [Y] did not respond. He could say nothing good about his mother’s home. He had forgotten about any good things and when pressed said “I don’t know.” [Y] was conflicted and it may not be unsurprising that he has distorted matters in his mother’s household given he is living with a parent who has such a poor view of his mother.
The father has not taken [X] to (omitted sport) in 2016, and was unable to recall the last time he did so. He has complained and continues to complain that [X]’s (omitted sport) interferes with his custody time. I pointed out to the father, after hearing the word “my time, my time, my time,” endlessly that it is not “his” under the Act[1] but the children’s time with him, and that taking children to extracurricular activities is part of parenting. It is surprising to me that the father was seeking equal time initially and still seeks equal shared parental responsibility, yet is averse to being involved in an important part of [X]’s life, (omitted sport).
[1] Family Law Act 1975.
The father occasionally agreed to a proposition such as “will you take [X] to (omitted sport)” with answers such as “yes, but only if she wants to go”. The father imposes conditions after any concession; this is his style of operation. He did not once say “yes” or “no” and leave it at that; a condition suited to his needs always followed.
It was put to him whether he would agree to the mother making all the arrangements for [X]’s (omitted sport) and whether he would abide by her decisions, including taking [X] to competitions in his time. He said “I will let the mother make those arrangements and I will take [X] to competitions, but I would like to have some input into these competitions”; a further conditional agreement imposed by the father.
Never once did Mr Corcoran say: “I will abide by what the mother arranges” and leave it at that. Always, his answers were qualified. I have no faith at all that Mr Corcoran has retrieved himself, amended his ways or think he has done anything wrong. In his view, the mother is still at fault.
The parties do not talk or communicate by SMS. The last communication they had was in the September/October 2016 school holidays when the father wrote to the mother and said: “I will be collecting the children the first Saturday after school breaks, and I will return them the Saturday before” and the mother replied “Okay”. The reason they do not communicate by SMS is it usually leads to arguments. The mother would react to the father, or the father would react to the mother. The mother said this particular communication was amicable because she acceded to his demands, and that is correct. However the straw that broke the camel’s back on this form of communication is as follows.
The paternal grandmother rang the mother on 4 March 2016. This is at page 135 of the mother’s affidavit. The mother says: “Mr Corcoran’s mother rang. She was upset and she said:
“I tried to speak to Mr Corcoran about not having [X] travel such a long distance to (omitted) on her own. He would not listen to me and hung up. [X] is only 12. I would take her myself, but I do not know the road to take her.” The mother responds. “I’m working tomorrow. I don’t know if I can finish, but I will try so I can take [X] for you.”
The grandmother did not feel the father’s arrangement was safe, the mother was concerned and they were correct - the arrangement was not safe. This is a similar attitude that the father demonstrated in believing it was appropriate to leave his 13 and 11 year old child at home from
5.30am in the morning and get themselves to different schools.
The mother contacted [X] and said she would pick her up and take her to gym. The mother works from home at times. The mother then endeavoured to contact the father about the child-focused change of plans. The mother contacted the paternal grandmother and said:
I’m going to collect [X], take her to gym and bring her back. You don’t have to worry.
The mother tried to call the father on a number of occasions to speak to him about this important issue. He would not answer. As soon as she said “Hello”, he would hang up. She sent a text:
Can you please give me a call when you’re not with the kids? We need to talk about [X] and [Y]. It’s not fair on them we’re not communicating. They’re feeling stuck in the middle and have not been able to do the things they love. [X] is pre-teen and if we don’t start communicating for her best interests, she will start rebelling against both of us.
The mother finished work early, collected [X] and said: “I’m going to drive you to (omitted) rather than get there on your own, but I think it’s only fair you ring your dad and let him know I’m taking you. I don’t want any more trouble.” [X] responds: “Mum, don’t ring him. I don’t want you to ring him. I’m scared of him. If he finds out, he’s going to be very angry.” The mother said she called the father as she did not want [X] to think she could hide things from her father. This attitude is in stark contrast to the father’s attitude.
The mother was eventually able to speak to the father and said: “I’ve picked up [X] and taking her to (omitted).” The father’s reaction was to say: “I’m going straight to the police.” The mother responds: “Stop being ridiculous. I’m just saving our daughter a long trip. I’m happy to take her.” He replied: “I’m going straight to the police. I’m getting an AVO against you”.
The mother and [X] have a conversation because the issue of (omitted sport) for [X] when in the father’s “time”, as he calls it, has been a bone of contention and source of conflict for some time. [X] says: “I only want to go to (omitted sport) at (omitted), but I don’t know how to say that to dad so he can let me go there. I wish you and dad could start talking again. Yesterday dad was really angry at me and I was so scared of him I didn’t know what to say to him. I want you to talk to him about (omitted sport)”. The mother responded “I’ve tried, [X], but he won’t speak to me” and that is the reality: it is the father’s way or the highway.
True to his word, the father went to the police and complained that the mother was harassing him by her phone calls. I have no idea what his complaint was based upon, however he managed to convince a female police officer that the mother was the offender here. A constable S spoke to the mother on the father’s phone and said “Who are you?” “I’m Ms Corcoran. I’m trying to speak to Mr Corcoran.”
Police officer: “What do you want?” Mother: “I want to let the father know we’ve arrived at the (omitted sport) that he wanted [X] to go to.” Police Officer: “Which one?” Mother: “(venue omitted).” Police Officer: “Mr Corcoran is here applying for an AVO against you. If you contact him one more time again by phone, the police will not hesitate to grant him an AVO against you”. Mother: “How am I expected to communicate with him about the children if I can’t contact him?”, “Via email only”, the mother heard the father say. The mother did not tell the children of this disgraceful incident caused by their father. The Police Officer was out of line and the father was creating a mischief with his false complaints of the mother’s behaviour.
Unsurprisingly, the mother will not text message the father any more.
The father unsuccessfully endeavoured to justify his unjustifiable behaviour in the witness box. He could not see the error of his ways and demonstrated no insight into the negative impact of his behaviour of his children and their mother.
The father did not get a rise from the mother on that occasion so he chose another matter of conflict: mobile phones.
On 31 March 2016, the mother received an email:
In future, do not confiscate [Y]’s phone and, on a lesser scale, [X]’s, when they’re with you. I know this as I tried calling the kids several times whilst in your care to no avail. It has now come to light, as soon as the kids were back in your care, you took their phones away.
The mother’s best course of conduct would have been to delete the email. However she did not and she reacted poorly. The mother questioned [Y] about this; a boy already aligned with his father. [Y] became very upset, no longer able to cope with the conflict. What the father’s message had to do with [Y], I do not know. The mother chose a very poor path when she asked: “Why did you tell dad I take your mobile phone?” [Y] became so upset he left his mother’s home, went to his father’s home and after some to-ing and fro-ing, he returned to his mother. However the damage was done and he has now, on one occasion, voted with his feet.
The mother reacted poorly to the father’s poor behaviour and who bore the consequence of that? Her son [Y]. The mother was very emotional when being cross-examined on this incident and admitted, as she did on many occasions, that she had done the wrong thing and she would not do it again. The mother said she needed to leave the children out of the dispute and agreed to delete these foolish emails in the future. They are a nonsense and irrelevant to parenting the children.
Sadly, although it is clear that the mother is unable to communicate with the father due only to his treatment of her, the mother said she would like the father’s input into things concerning the children, that she would like to be able communicate with him and get his side of the story, but that after the AVO incident, she cannot see how to do it because she says the father is not to be trusted. I accept this is correct. The father will manipulate any situation to suit his needs. His children’s needs are either secondary to his needs, or he sees his children’s needs as the same as his needs.
In relation to (omitted sport), the father said that once the hearing was over, [X] will resume (omitted sport) in his time. That evidence made no sense. Why does not the father take [X] to (omitted sport) now if this be his true position? The father said he had asked [X] if she would like to continue (omitted sport) and she said: “I’m not fussed”. [X] knows her father is implacably opposed to her attending (omitted sport) in his time and is seeking appease him.
He said:
I should have some role in the events [X] attends. I would like to know about the events, where they are etc., so I can get her there. There has never been any problem getting [X] to her competition.
She has missed three this year because of the father’s non-agreement. He further said:
If [X] said: “I don’t want to go”, I would discuss it with the mother and get her to tell her mother why.
If the father has any role in [X]’s (omitted sport), it will be a total disaster for [X] and a further source of conflict. I have formed the view that the father has no intention of taking [X] to (omitted sport).
He cannot see his way to clear to supporting [X], who is a talented (omitted sport). He simply cannot and will not. I have no faith that he will support her endeavours. He may support [Y] with (activity omitted) because the father likes that activity as well. The father perceives [X]’s (omitted sport) is the mother controlling him. It is not, but that is his perception. If [X] is to be involved in (omitted sport) at the level she is capable of and seeks to achieve this, it must be the sole domain of the mother.
The father at no stage informed the mother that he changed his application formally. His application was the children live with him and have supervised time with their mother, despite his agreeing that at the meeting with Dr C in 2014, the six/eight arrangement was working well for the children at that time and they did not seek to change those interim orders at that time. Never formally did the father tell the mother he changed his application.
The father was evasive on this. He said he discussed this change with her. Clearly he has not; they do not talk. The father said he cannot speak to her and “We don’t talk on the telephone”. As Mr Kearney pointed out, since he has filed his application, he has had plenty of opportunity, and taken up opportunity, to email her about school holidays, having some peculiar view that school holidays commenced on the Monday, and enforcing that view on the mother, complaints regarding (omitted sport), not agreeing with the mother as to [X]’s high school, (omitted High School), yet no mention of the final orders he was seeking. In February 2016, the father was able sent the mother an email calling her a “fucking psycho” and able to write her another email calling her “the she devil”.
The father has not informed the mother that he is very happy with [X]’s school, despite his significant objection to her attending (omitted High School). He is now satisfied that [X] is doing well and is settled, that the school is appropriate and he wants [Y] to attend the same school. This concession has never been communicated to the mother. It has never crossed his mind to let the mother know he and she were now in agreement regarding High School for both children.
The father had maintained that he and the mother had had a discussion in 2015 about parental responsibility and that the mother agreed it should be equally shared. As Mr Kearney put to him, if indeed that conversation had occurred, a conversation the mother has denied, “bringing up the fact you were no longer concerned about the mother physically disciplining the children would have been the perfect opportunity to raise the issue of shared parental responsibility”. The father was silent on this. I accept the mother’s evidence that such a conversation has never occurred.
It was put to the father that when the children described their mother hitting them, was it a possibility of the children telling him what they wanted him to hear? His answer: “Not a chance”. It was put to him he was encouraging the conflict as he wanted more time with his children in early 2014 and was pressuring the children on this desire of his. Although the father denied this to be true, his own affidavit is to the contrary. At paragraph 38 the father comments that his son is sad and he asks him if he’s okay. He responds “We hardly spend any time with you. We’re going back to mum so quickly”. Me: “I know. Maybe you could try telling mum you want to spend time with me when you’re supposed to”. The father was to use his words spending the time he was supposed to under the prior orders.
Clearly the father was putting pressure on the children for more time rather than the father making such request through the mother.
The father denied he denigrates the mother to the children. I reject that evidence. He has referred to the mother as “a she devil” in an email dated 31 January 2014 and a “fucking psycho” in an email dated February 2016. The she devil email is found at page 44 of the mother’s exhibit to her trial affidavit.
Dear She Devil, where does one even begin to address the utter repugnance of someone who could write the emails you send me.
What was going through your mind? Are you incapable of imagining the heartache I face when you scheme and demise ways to alienate me from our children, or are you sadistically picturing the father’s face crumbling in tears, or did you just not think?
First of all, I loathe your existence. It did not have to be this way, but sadly it is. You’ve made my life more than slightly miserable for way too long. All I want to do is spend quality time with our children. That’s all I want, but you cannot accept that because of your own inadequacies and your disturbing pursuit for revenge against me.
I shall defend myself against the false allegations you’ve stated in your latest poisonous email.
I’m aware you leave the children unattended in the morning while you attend the gym. They wake up feeling abandoned and scared
The father complains that [Y] is always constipated whilst he in his mother’s care.
All I see is continual manipulation from yourself, which is adding serious emotional stress to our children.
Your obsession with extracurricular activities is due to your inability to want to manage the children on your own and alienate the children from me.
The husband was told: “There is no mention of physical abuse of the children in this email yet it is at the very time you say you were most concerned”. His response: “I didn’t want the mother to know about the physical abuse because I didn’t want her to retaliate more to the children. I was in a tail spin”. The father raised issues of neglect of the children by the mother but not physical abuse. The father was able to remember that February 2104 was a pinnacle date in relation to the revelation that the children were being hit by the mother.
It may be correct that the children were scared in their mother’s home as the father alleged. There is some evidence why the children might be so scared, namely the multiple occasions the father called on police to check on the children at their mother’s home at this time.
Secondly, the mother’s evidence is, in February 2014, [X] was crying because the father said he would not take her to gym any more on Saturday morning, in what he called “his custody time”. The mother said: “Look, you’re meant to be with your dad”. Showing a child-focused approach, the mother relented and said: “All right. I will pick you up, and [Y]. I will take you to gym and you can go and see your dad after that.”
The father attended the mother’s home after she had collected the children. He wanted the mother to hand over the children and threatened to call the police. The mother said “You can speak to the kids from the window of the bedroom”. The father responded “I’m calling the police”.
The father was banging on the door calling out to the mother to hand over the children. This would have been a frightening event for the children, their father coming to their home, banging on the door, threats of calling the police being made and all over the mother’s decision to take [X] to (omitted sport) because I accept the father would not do so in his time.
In hindsight this may have been a poor decision by the mother. However the father’s response was totally unacceptable; his children were not at any risk. It is clear since 2013, the father has railed against taking [X] to an activity she clearly enjoys and wishes to attend in his “custody time” as he calls it.
The father denied he was upset at this time. I do not accept that evidence he was furious with the mother. I observed his anger in the witness at times and I am certain he has temper. The father went to the mother’s home when he knew she did not want him there.
This is a further example of the father’s needs overwhelming what is best for his children and his scant regard for the mother’s position. He does exactly what he wants no matter what the mother says, for her opinion is irrelevant to him. It is what the father wants that matters. He must have known going to the home and behaving as he did would cause major conflict, all witnessed by his children. Even after cross-examination, the father could not see that this would have been a frightening event for his children.
In February 2016, the mother raised her concerns about [X]’s hair being bleached at the father’s home. [X] was upset that it had been bleached. The mothers writes:
In future, please do not touch [X] or [Y]’s hair. [X] came home with bleached hair and was most distressed about it.
This series of emails are at Page 276 of the mother’s exhibit bundle.
The father responds:
Who the hell do you think you are? You have single-handedly beat the children into submission because of your own personal and unresolved issues and the list goes on and on with you and then you have the audacity to tell me what and what not to do. I’m going to make this quite clear to you. Stop scaring and controlling the children. Clearly you parent them by fear because you lack compassion and intelligence. It’s funny you say you don’t lie. You have a track record for doing just that and how dare you question my parenting techniques. It’s you who is an absolute disgrace of a mother. My advice is for you to clean up your own backyard before criticising others.
The mother responds:
Why are you sending me abusive e-mails?
The father responds:
Due to your neglect, stop lying and displaying your jealousy of my relationship with Mr J.
The mother responds:
When the children are upset, it’s my role as a mother to intervene. Do you have any idea how [X] felt when you bleached her hair? What message are you sending her?
The father responds:
Please. Your role to date has been to hit and scare the children, nothing more. I’m still waiting for the day when the children are actually comfortable being around you. Now, stop wasting my time with your bullshit. Like my previous texts, get a life.
The mother asks:
Why are you sending me abusive texts?
In 2015, the father asked for a pair of shoes to be returned to him that [Y] needed.
The mother responded that she did not have them.
The father responded:
You’re full of shit. [Y] tells me you hid his shoes. Why am I so abusive? Perhaps because I’m sick of the way you treat the kids. I’m not going to put up with your crap this year. Just bring me his new shoes.
In 2015, the mother asked the father for shoes that [X] needed for cross-country running. The father responds:
I’m not going to put up with your crap.
The mother again asks:
Why are you continuing with sending me abusive texts?
The father delivered the shoes to the school the next day, however he had created more conflict with his offensive emails to the mother.
The father said under cross-examination he did not mean to be abusive to the mother in his email of 30 January 2014 when he called the mother a she devil. He said:
It was an emotional rant for my part. It was a frustrated rant.
Yet on 22 February 2016 he sent the mother an email which said:
You fucking psycho. What is wrong with you?
His frustration continues unabated it would seem. Nothing has changed. I find that the father has, consistent with the mother’s evidence, always dealt with her in this abusive, belittling, hectoring manner with no regard for her opinions or views.
In late January 2014, the father told the children that the mother was poisoning them. This is found at paragraph 30 of the mother’s affidavit. [Y] says: “Mum, dad said you’re poisoning us.” Maybe dad meant poisoning emotionally but [Y] took it to mean physically. The father agrees that [Y] calls his mother a crazy mother. The father does not pull him up on that. This behaviour is consistent with the father’s campaign of eroding the mother’s authority over the children.
The current orders clearly state that each of the parents must advise the other of educational and medical needs. The father has failed to carry out his obligation to so do. He did not tell the mother he took the children to see Dr A. He did not tell the mother he took [X] to Hospital A or to (omitted) Medical Centre. He did not tell the mother he took [Y] to see Dr L.
Upon a perusal of these notes, there is no mention of the mother hitting the children as a cause of concern. The father admitted he was the sole source of any information to Dr A to support [Y]’s need for a mental health plan. There is no mention in Dr L’s notes of February 2014 of the mother hitting the children.
The mother, as Ms K reports, is the more structured, organised parent. The kids have a good time with their father. He does not cavil with them or contradict them.
The father agreed that the children’s behaviour and, in particular, [Y]’s behaviour, had deteriorated when the Court proceedings commenced. He was quick to add that this had nothing to do with him. It has everything to do with him for the following reasons.
At paragraph 65 of her affidavit, the mother says that in the waiting room at Dr C’s office and in the clear hearing of the children the father was talking on his mobile phone about the Court proceedings, the orders that had been made and what had happened in Dr C’s rooms. He was told by Dr C how inappropriate this behaviour was, as this is noted in her notes.
It was put to the father, by the Independent Children’s Lawyer, that from Dr C’s notes of 20 August 2015, she formed the view that:
You have pushed and pressured the children to tell the mother how they feel about things.
The father says:
I encouraged the children to explain their feelings about their mum.
Dr C said you were not to pressure the children or use the children as messengers. Are you still doing this?‑‑‑No.
You told Dr C at the time you find it hard to stop?‑‑‑I don’t remember saying that.
The father did say those words to Dr C, for Dr C opined:
The father uses the children as messengers and puts extreme pressure on them.
When asked if he agreed with this he said:
I did not think I was doing the wrong thing by expressing that because of the things they were telling me when they came back from their mother.
The father uses the children as messengers and puts extreme pressure on them. Dr C’s receptionist said she heard the father speaking to [X] in a very overbearing and pressured way and using these words:
Mum wants to have you at her place on my time. She can’t. It is my time, [X].
The father was overheard on the phone talking about details of the case and the Court matter and the issues discussed with Dr C very loudly, with the children in earshot. This is deeply concerning. The father agreed he spoke on the phone but he could not remember speaking to [X] in this overbearing way. That is clearly how he speaks to the girl. It is clear he discusses the case with the children. He would not even know because he does not care. His needs overwhelm the children’s needs.
Mr J fully supports the father. Mr J is the one who has encouraged him to go to the police needlessly. I accept that the mother behaved badly when she came to the door of Mr J’s house and banged on the door seeking out the children at a school holiday changeover. The mother admitted this was poor behaviour by her.
Mr J believes holus bolus what the father tells her so her evidence did not assist me at all.
The father told the children when they went to the interview with Ms K: “You can be strong. You can do this.” He was asked what you meant. He said: “being honest”. Ms K said such comments would have put pressure on the children and made them anxious and nervous.
The father has no filters when it comes to the mother and I am in no doubt that the children have been exposed to the rawest and uncontrolled behaviour from their father about the horror he perceives their mother to be.
The father never once admitted he was in the wrong without a “but” to follow. The parents could not agree on a high school for [X]. The mother wished her to attend the local area high school at (school omitted); the father wanted a private school. He simply refused to enter into a dialogue with the mother on this and ultimately [X] attended (omitted High School) this year.
He grudgingly admitted that in discussing [X]’s high school with her and not the mother, he may have been out of line, but quickly added: “Well, when the mother hit [X] that was out of line”. The father believes that even if he has done something wrong the mother has done much worse.
There was an incident at New Year’s Eve on 2014/2015. The mother and father were at the same venue, unbeknown to each other. The children were in the father’s care. The mother came into the room, saw the children and went over to speak to them. I accept the mother’s version of events. The father lost control when he realised the mother wast the same venue and had spoken to the children.
I accept that all the mother did was say hello to her children on New Year’s Eve. I accept the mother’s evidence at paragraph 87 which is that the father came over to her and said: “Fuck off. Get the fuck out of here. Fuck off”. This is the same language he uses to the mother in his emails. The mother said: “Don’t swear at me like that in front of the children”. I accept Mr J thought she was calming the situation down. I accept that the father went to lunge at the mother and his brother Mr P stopped him and that the mother left and sat with her friends.
Why the father behaved in that fashion is unbeknown to the Court, as he could not give any satisfactory explanation other than denial which I do not accept. The father is unable even now to see that the children seeing both parents on New Year’s Eve would have been a treat for them. The father can only see that the mother is interfering with his time with his children. The father sees only that his rights were being trampled on by this she-devil of a woman who is a “fucking psycho”.
The real issues around [X]’s (omitted sport) started when the father moved with Mr J to (omitted); a choice he made. The trip to [X]’s school and (omitted sport) was arduous for him and incidentally the children, yet he contended that the mother needs to be flexible about this.
The father no longer lives with Mr J. He lives closer to where the children attend school and the children are not in the blended family environment they were when Ms K saw them.
The children spend time with Mr J’s children and I accept they have a very good relationship and enjoy that time with those children and Mr J.
The father has involved the police on at least six occasions, totally unnecessarily. He involved police in the allegations that [A] had hit [Y] 9 March 2014. He took the children with him on this occasion and put them in the most uncomfortable position and his answer when pressed was: “Well I said I did the wrong thing”. No apology has issued.
He threatened to call the police on 25 April 2014 because he believed the mother did not want him to speak to [Y]. He asked the police to attend the mother’s home for a welfare check. The children were distressed and told their mother they were distressed about this event.
The COPS entries reveal the anger of the police for wasting their time. The police attended the grandparents’ home to see how the children were in order to carry out a welfare check. The mother reports that they said to her:
We’re not impressed that Mr Corcoran has called us yet again on a false alarm. We will have a word with him about wasting valuable police resources unnecessarily. We will not make a report of this incident and it would be a waste of our time and taxpayers’ money.
The father causes the problems. He caused problems for [X] and (omitted sport). He caused major problems in having a police officer threaten the mother with an AVO if she attempted to SMS him again and all she was trying to do was communicate with him in March 2016.
The mother is not perfect. I do not accept her blanket denials that she has not hit the children. The mother has hit the children. What level the hitting was I am unable to say. The mother has yelled at the children. At what level the yelling is I am unable to say. However, the mother is the most child-focused parent. The mother’s unqualified concessions of poor behaviours and choices were absolute with no backtracking and she well understands the impact of the parental conflict on her children.
The mother admitted it was wrong for Mr T to have asked the children questions about their mother hitting them and agreed he had nothing to do with him. The mother accepted this was totally inappropriate, although I accept she was shocked by these allegations.
The mother agreed that the children had said to their father that she had stopped listening to them when Mr T arrived on the scene and accepted that the children could have felt this to be the case.
The mother recalled telling [X] and [Y] to do speeches. The children had reported to Dr C their mother was yelling at them. The mother says she did not yell at the children but was open to the concept that the children may have had a different perception.
The mother agreed that asking [Y] if he had lied to the Police in relation to the [A] allegations was wrong and that it was totally inappropriate that she had involved the children in the proceedings.
The mother’s behaviour at holiday changeover in 2015 when she insisted on shoes and a t-shirt being returned was a poor decision and she accepted this was poor judgment.
The mother advising the (omitted) gym in July 2015 that as the father was not interested in [X]’s gym, that they did not necessarily need to give him [X]’s schedule of training, was also poor judgment with which she agreed.
These parents have a capacity to play tit for tat and in so doing, their needs and not the children’s are being met.
However, the mother’s behaviour pales when one looks at the father’s behaviour. The mother never once recanted a concession or tried to slip out of her culpability or blame the father. The mother readily agreed she did the wrong thing questioning [Y] about the mobile phone incident and became tearful when realising the impact this poor choice had upon her son. The mother agreed she did the wrong thing asking [X] to ring her father about (omitted sport) and accepts that this is something she needs to do. The mother agreed she had made wrong decisions at times about inappropriate conversations with the children about the proceedings and did the wrong thing questioning the children when the allegations of abuse were first raised. The mother freely admitted to these lapses without hesitation.
On the other hand, the father could not see when the Independent Children’s Lawyer put all these matters to him that he has put his children in a very troubling situation by his manner of communication with and treatment of the mother. He just does not see the nuances of the children’s relationship with their mother and his ability to support that relationship is beyond him.
He has attended not one course that Dr C suggested he should attend. He has no excuse for not attending despite his best efforts to convince me he did. The mother did a course called Meeting Minds, again showing the difference in the parents’ insight into the needs of their children. The father said he has been busy because of the death of his father and this was the first time the mother became aware of this death, in cross-examination. It is clear to me the father does not think he has any problem or has or is doing anything wrong.
He sent [X] to school with sanitary pads and did not tell her mother. When asked why he did not tell the mother, he said: “Because the communication was so low I wanted to curb the conflict. I spoke to [X]. She seemed okay”. That glib answer is not accepted by me. This was the father subliminally saying to [X]: “We will keep it a secret, [X]. You don’t need to tell your mother”. Women menstruate, not men, and a mother’s knowledge and assistance at this tumultuous time is invaluable. This attitude to the mother is cruel and dangerous for [X].
The father has not created a safe environment for his children to reach their full potential. The children are all over the place, never knowing what plan their father is going to hatch next to make sure he has his children in his care. The father’s needs have and will overwhelm his children’s needs into the future unless he amends his ways.
In light of this distressing evidence, I see no hope of parental responsibility being shared, for to do so would only maintain the conflict and that cannot be an order in the children’s best interest.
The mother’s sole parental responsibility order and time regime are the only orders that can work in parenting these children. This father can have nothing to do with the children’s extracurricular activities. He may attend if he chooses, however if he can in any way have input into anything to do with [X]’s (omitted sport), for instance, it will be a disaster.
The tragedy of this matter is that the orders were made at a time when there was no capacity to test the evidence. They provided far too much block time for the children in their father’s care, given his capacity to undermine the mothers’ parenting authority over their children. Had I been free to deal with this matter today on the issue of the father’s time, I would have made an order that there be a break in his time of up to 6 months to give the mother and the children an opportunity to repair the damage the father has wreaked to their all-important relationship; a relationship equally as important as his.
However, that option would, Ms K said, be likely to cause more damage than repair for the children. They have lived in this 6/8 nights arrangement for over two years now and the consequences of a break now or even a substantial change in particular for [Y], is unknown and likely to be negative.
Secondly, the mother does not seek such an order and nor does the Independent Children’s Lawyer.
As Ms K said, it is most important that the pressure was taken off these children. However she was concerned that if they had no time, that that would be of a significant negative impact to [Y] and she could not predict how he would react given he has already left his mother’s home once. That possibility is of real concern. I accept that the children love their father, are attached to him and enjoy their time with him.
To reduce their time too greatly may be problematic for them. However Ms K could not see much difference between four or five nights a fortnight. Her recommendation in 2014 had been five nights a fortnight. Four or five was much the same from her perspective, and a reduction of one night she did not see would be of such a consequence.
Ms K was clear there is no way parental responsibility can be shared.
The orders have to be as simple and clear as possible and the Court is to use its best endeavours to minimise any chance of these parties having, to use the father’s words “flexibility”. Ms K was very helpful and insightful in assisting the Court to understand how the children would react. Ms K was asked:
Do you think the children would be upset if they spent less time with their father than at present?
Yes. [X] may be able to deal with it because of her (omitted sport). [Y] may be okay with extra (omitted sport) but he would be sad spending less time with his dad.
As Ms K said:
Your Honour’s task is to work out the least worst option.
However, one of the imperatives for Ms K in 2014 was Mr J’s children; she wanted all the children to be together. That is now not an imperative, so the Court can be more flexible about the arrangement. Ms K was clear the children must spend substantial time with their father. Ms K said that the children are carrying the burden of the parents’ conflict and that is abusive and that she was in reality:
… recommending the children spend substantial time with parents when, to do so, is abusive of them because of their parents’ behaviour. For example [X] cannot be allowed to enjoy something she really enjoys because of the parents’ conflict.
The conflict is the father’s, not the mother’s and he is the instigator.
Ms K said the past predicts the parents’ behaviour in the future and thus sole parental responsibility cannot be shared. Reduced changeovers take pressure off the children and the parents can tell the Court this is a decision the Judge made, which is what they want to happen.
Having a break would be most dangerous because of the response of the children, particularly [Y] and Ms K could not recommend that. Ms K said the children have experienced intense emotion from their mother. She experienced this at the interview and I saw the same in the witness box. The mother became emotional at the grandfather’s death, [X]’s (omitted sport), the [A] incident, the issue of questioning [Y] about the mobile telephone incident, not being told of [X]’s attendance at Hospital A and other incidents. The children would have experience of this intense emotion as well and maybe that has been misinterpreted or, to use Ms K’s words, distorted. Ms K went on to say:
The children’s opinions could not be relied upon because they are always influenced by parents and, in particular, high conflict cases they are distorted and, in fact, it’s better to make a decision absent the children’s wishes because it takes the pressure off the children. It’s very concerning that the children can’t communicate what’s happening in each parent’s home and they live in a silo-like arrangement. Siloed in their mum’s home, siloed in their father’s home. They have to cope and have to cut off experiences of one parent to the other.
Ms K said the children were forthright about their concerns of hitting, however she could not say that the allegations were true. However, what parents regard as not yelling or not hitting may be regarded by children in high-conflict situations distortedly as yelling and hitting. They are the same allegations over a limited period of time and they could well be correct. If the children wanted to have some therapy and have an independent therapist, Ms K said that would be of assistance to these children in this high conflict situation.
Ms K would not recommend the parents have any therapy as she sees no way forward. I have formed the view the father is not attuned to the children’s needs. The mother is. There is a degree of support for that finding in Ms K’s report and her oral evidence and in the fathers’ final submissions to the Court that the mother would use sole parental responsibility as a weapon. There is not one jot or scintilla of evidence to support that submission. I find to the contrary. If the father was awarded sole parental responsibility it would be used as a weapon against the mother and no doubt that is why such a fallacious submission was made.
Going to the law, pursuant to s.65DAA, I have determined on the weight of the evidence to rebut the presumption of equal shared parental responsibility. This responsibility cannot be shared if the children’s best interests are at the forefront of my mind. The parents do not communicate and when they do, conflict erupts and the children’s needs are subsumed in this conflict. The father has been and will continue to be abusive to the mother is his language and attitude to her and has no respect for any position she adopts. Thus it is not realistic for practical for the parties to share this responsibility and given I have found that the mother is the parent most attuned to the children’s needs, that responsibility will lie with her.
As to time, I have in the judgement addressed the relevant matters under s.60CC(2) and (3). Although the children benefit from a meaningful relationship with their father, it has come at the cost of their similarly meaningful and beneficial relationship with their mother due to the father’s conduct and behaviour.
The children have been subjected to abuse and family violence in their parents’ care.
As Ms K said, wishes of children in high conflict cases cannot be relied upon, and that a change from five to four nights a fortnight for the children would be do-able for them. The change will be from six to four nights a fortnight in reality. Although this is a significant change to the arrangements that have been in place for some time now it is an imperative that their mother’s authority over the children be given a chance to be re-established and this necessitates more time with their mother than with their father.
The mother is the parent with the most child-focussed approach and is the only parent who has the capacity to put the children’s needs before her own. The father’s decision to leave the children alone from 5.30am on school mornings is only one example of this lack of capacity.
Both parents can provide for their children’s day to day needs and education; however the father’s capacity to provide for the children’s emotional needs is flawed. He has scant regard for the importance of the mother in their lives. He has no capacity to support [X]’s (omitted sport), as he sees this as the mother controlling him.
I will accede to the mother’s position, as she is the only parent who has the capacity to end this campaign and make any parenting orders work for her children. If the mother believes these orders will work, I will accept her position. The father is at this point in time devoid of this capacity, given his inability to see the errors of his way.
If the father does not amend his hitherto erroneous and negative attitude to the mother, he may lose time with his children. He would be well advised to attend the parenting courses as was recommended in 2014 by Dr C and gain some insight into the consequences for his children of the campaign he has waged and lost against the mother.
I certify that the preceding one hundred and seventy-nine (179) paragraphs are a true copy of the reasons for judgment of Judge Henderson
Date: 22 November 2016
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