D and N
[2002] FMCAfam 66
•14 March 2002
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| D & N | [2002] FMCAfam 66 |
| CHILDREN – Residence – relevance of violence – marijuana smoking and denigration of the parties – suitability as a role model. |
| Applicant: | T D |
| Respondent: | P N |
| File No: | ZM 4360 of 2001 |
| Delivered on: | 14 March 2002 |
| Delivered at: | Melbourne |
| Hearing Dates: | 22, 23, 24 January 2002 18 February 2002 |
| Judgment of: | Bryant CFM |
REPRESENTATION
| Counsel for the Applicant: | Mr Skinner |
| Solicitors for the Applicant: | Mahoneys Solicitors 400 Collins Street MELBOURNE VIC 3000 |
| Counsel for the Respondent: | Mr Smith |
| Solicitors for the Respondent: | Maria Barbayannis & Co Solicitors 307 Clayton Road CLAYTON VIC 3168 |
ORDERS
THAT the child of the relationship C R N born on the 20th day of May 1999 live with the Mother as from 14 March 2002 and the Mother be solely responsible for her day to day care, welfare and development.
THAT the Mother and Father have joint responsibility for C’s long term care, welfare and development.
THAT the Father have contact with C each alternate week from the conclusion of school on Thursday until the commencement of school on the following Monday commencing 14 April 2002, the Father to collect C at the conclusion of school on Thursday and return her to school on the following Monday, commencing Thursday.
THAT the contact in Paragraph (3) hereof be suspended during all school term holiday periods including the summer school holidays.
THAT in addition to the contact in Paragraph (3) the Father have the following contact with the C:
(a)for one half of all school term holidays (excluding summer holidays) and in default of agreement the first half;
(b)for half of the Easter period in each year if that period does not otherwise correspond with the school term holidays, in the year 2002 and alternate years thereafter, the Father have the first half and in each other year he have the second half;
(c)during the summer vacation and subject to Order (5)(d) and (e) hereof, the Father have one half of the holidays:
(i)in 2002 and alternate years thereafter, the second half, to conclude on the Thursday prior to the commencement of first term; and
(ii)in each other year, the first half.
(d)from 4.00pm on the 24th day of December until 4.00pm on the Christmas Day in the year 2002 and in each alternate year thereafter;
(e)from 4.00pm on Christmas Day until 4.00pm on the 26th day of December in 2003 and each alternate year thereafter;
(f)for four hours on C’s birthday and on the Father’s birthday, if contact does not otherwise fall on those days;
(g)unless otherwise occurring on a contact weekend, from 10.00am until 6.00pm on Father’s Day;
(h)if contact is occurring on Mother’s Day weekend then contact cease at 10.00am on Mother’s Day;
(i)regular telephone contact with C on no less than two weekdays between the hours of 7.00pm and 7.30pm; and
(j)as otherwise agreed between the parties.
THAT the Husband be restrained from smoking marijuana during contact with C.
THAT each party keep the other informed of their residential address and telephone number and advise the other of a change to either their residential address or telephone number as soon as practicable.
THAT each party keep the other informed of any serious health issue relating to C and advise the other if C is hospitalised.
THAT the Mother do all things necessary to arrange for C’s school from time to time to make available to the Father all school reports, photographs, newsletters and advice of school functions.
THAT both parties either personally or through their servants and agents be restrained by injunction from denigrating the other in the presence of or hearing of C.
THAT pursuant to section 62F(2) of The Family Law Act 1975 the parties (and if recommended C) confer with a Counsellor nominated by the Primary Dispute Resolution Co-Ordinator of the Federal Magistrates Court at a time and place to be advised to the parties for the purpose of discussing how best to implement these orders in the interest of C and how to best explain to C the result of these proceedings and to facilitate improvement of their communication in future regarding C’s interest.
THAT for the purpose of collection and return of C on periods falling outside school term times, the changeover take place at B police station.
THAT all subpoenaed material be returned to the party subpoenaing it and the Department of Human Services file be returned to them.
THAT all pending Applications otherwise be dismissed.
IT IS DIRECTED
THAT all Applications be removed from the Pending Cases list
THAT pursuant to section 65DA(2) of the Family Law Act1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
ZM 4360 of 2001
| T D |
Applicant
And
| P N |
Respondent
REASONS FOR JUDGMENT
Introduction
This Application concerns competing Applications by the Mother and Father for an order for residence of their child C R N born on the 20th day of May 1991 (“C”).
Orders sought
The Mother relied upon her amended Application filed on the 12th day of December 2001 in which she sought the following orders:
(a)that the child reside with the Mother and she have the sole responsibility for her day to day care, welfare and development;
(b)that the Father have contact with the child as follows:
(i)each alternate weekend from 6.00pm Friday until 6.00pm Sunday;
(ii)for one half of school term holidays;
(iii)for half of the Easter period in each year;
(iv)from 4.00pm on Christmas day until 4.00pm on Boxing day in 2001 and in each year thereafter;
(v)from 4.00pm Christmas eve until 4.00pm Christmas day in 2002 and in each alternate year thereafter;
(vi)for four hours on the child’s birthday and on the Mother’s birthday;
(vii)from 10.00am until 6.00pm on Father’s day, contact to be suspended at 10.00am on Mother’s day;
(viii)telephone contact on two weekdays between the hours of 4.00pm and 4.30pm; and
(ix)by agreement between the parties.
(c)that the Husband be restrained from smoking marijuana at least 24 hours prior to exercising contact and during contact with the child;
(d)that the Husband provide to the Wife’s solicitors urine screens upon being given 24 hours notice in writing, the Husband to authorise his medical practitioner to provide the screens should the Husband fail to do so; and
(e)such further or other orders that the Court deems proper.
In his closing address the Mother’s Counsel also sought an order that the parties each be restrained from denigrating each other in the presence of or the hearing of the child.
The Father relied upon an Amended Response filed on the 3rd day of December 2001 in which he sought the following orders:
(a)that the child of the relationship live with the Father, and the Father be solely responsible for her day to day care, welfare and development;
(b)that the Mother and Father remain jointly responsible for the child’s long term care, welfare and development;
(c)that provided the Mother take her prescribed medication, she have contact with the child as follows:
(i)each alternate weekend from 6.00pm Friday until 6.00pm Sunday;
(ii)for half of all school holiday periods;
(iii)for half of the Easter period in each year;
(iv)from 4.00pm Christmas day until 4.00pm Boxing day in 200, and in each alternate year thereafter;
(v)from 4.00pm Christmas eve until 40.00 Christmas day in 2002, and in each alternate year thereafter;
(vi)for four hours on the child’s birthday and on the Mother’s birthday;
(vii)from 10.00am until 6.00pm Mother’s day; contact to be suspended at 10.00am on Father’s day
(viii)regular telephone contact;
(ix)further contact as otherwise agreed between the parties.
(d)that each party keep the other informed of their residential address and telephone number and advise the other of a change to either their residential address or telephone number;
(e)that each party keep the other informed of any serious health issue relating to the child, and advise the other if the child is hospitalised;
(f)that the Mother, either personally or via her servants or agents be restrained from discussing the Court proceedings or denigrating the Father in the presence or hearing of the child;
(g)that the Mother provide to the Father’s solicitors a report from her current treating medical practitioner as to her current state of health, and as to any medication that she may be taking;
(h)that the Mother attend upon a psychiatrist nominated by the solicitors for the Father for purpose of a preparation of a report as to the Mother’s current mental state, the cost of such report to be shared by the parties.
In his closing address, Counsel for the Husband indicated that the last two orders were no longer sought.
Background
The parties commenced a relationship in 1988 and C was born in 1991. The mother alleges that the Father was violent to her almost as soon as she arrived home from hospital (which the Father denies) but it is conceded that a week or so after C’s birth the Mother was admitted to St. Vincent’s Hospital in an unconscious state. She had suffered a large intra-cerebral bleed which left her paralysed on her right side, with no speech. Her short term memory was affected and she was epileptic for a period of time.
She was discharged from St. Vincent’s Hospital on the 17th day of June 1991 and admitted to the Royal Talbot General Rehabilitation Hospital with C. She remained there until mid-July and then continued to be an outpatient for speech and physiotherapy. She took C to visit relatives in New Zealand for four months at the end of 1991.
The parties originally lived in C and then moved to B Street, T in about 1999.
On the 4th day of May 2000 in circumstances which are the subject of dispute between the parties, the Mother left the home at B Street after an altercation. After spending two nights at the Good Samaritan’s and then at Caroline Lodge, on the 8th day of May 2000 the Mother went to Sydney and stayed with friends. C remained with the Father. There is an issue between the parties as to what contact the Mother had with C between May and July 2000, although it is common ground that C went to Sydney to stay with her Mother between the 10th and 23rd days of July.
The Mother returned to Melbourne around the end of July and moved into rented accommodation in B, not far from the B Street property. She obtained shift work with Bayside Trains and there is again an issue between the parties as to the amount of contact the Mother had with C.
From the 11th day of January 2001 until the 28th day of January 2001
C accompanied the Mother to New Zealand.
On the 3rd day of February 2001 an incident occurred at B Street which caused the Mother to go to the William Angliss Hospital for treatment.
On the 6th day of February 2001 the Father obtained an intervention order against the Mother which was returnable on the 20th day of February 2001. The intervention order obtained by the Father included an order that the Mother not be at or within 200 metres of the premises at 8 B Street, T except for the purpose of exercising contact.
On the 9th day of February 2001, the Mother obtained an intervention order against the Father returnable on the 20th day of February 2001. The order she obtained prevented the Father from knowingly being at or within 200 metres of the premises situate at 1609 B Highway, B or where she lived or worked.
When both Applications came before the Ringwood Magistrate’s Court on the 20th day of February 2001, the Father consented to an order which prohibited him from assaulting, harassing, threatening or intimidating the Mother.
On the 9th day of March 2001, on the Father’s Application the interim order of the 20th day of February 2002 was varied to delete the provision excluding the Father from being within 200 metres of where the Mother lived and worked.
On the 13th day of March 2001, following her return to the B Street property, the Mother alleged further violence by the Father, and on the 22nd day of June 2001 she applied to the Ringwood Magistrates Court to vary the previous intervention order so as to exclude the Father from the B Street property. After hearing evidence from each of the parties, an order was made by the Ringwood Magistrates Court excluding the Father from the B Street property. On the 10th day of July 2001 the Father consented to a variation of the order on a final basis.
Thereafter, the parties have lived separately. Proceedings in the Federal Magistrates Court were commenced by the Mother on the 17th day of April 2001.
The matter first came before the Court on the 21st day of May 2001 and a Family Report was ordered and the matter further adjourned to the 9th day of July 2001.
On that date the parties further requested a further adjournment and on the 6th day of August 2001, following a contested interim hearing, the following orders in relation to residence, contact and specific orders were made:
(1)That the Mother and Father have joint responsibility for the long term care, welfare and development of C;
(2)That C live with the Father at all times other than those specified in order (3) hereof when the child will be living with the Mother, and the Father’s residence commence at the conclusion of school on Friday the 10th day of August 2001;
(3)That C live with the Mother from the conclusion of school on Thursday until the commencement of school on the following Monday on the first three weekends of every four weekly cycle, commencing on Thursday the 16th day of August 2001;
(4)That the Mother have telephone contact with C on each Tuesday and Wednesday evening’s between the hours of 4.00pm and 4.30pm by telephoning the Father’s residence to speak to her during that time;
(5)That the Mother have responsibility for C’s day to day care, welfare and development when she is living with her; and
(6)That the Father have responsibility for C’s day to day care, welfare and development when she is living with him.
The Applications were otherwise listed for Final Hearing on the 13th day of December 2001 at 10.00am. The orders also provided for contact during the September school holidays and an updated family report. The matter did not proceed in December 2001 and the parties were able to agree to summer holiday contact which was essentially to share the school holidays between them.
The matter was further listed for hearing on the 23rd day of January 2002 and was heard over two days at that time. Unbeknown to the parties, Ms Robyn Weir who had prepared the family report was on leave and was unable to be contacted by the parties. It was agreed that her evidence and final addresses would proceed on the 18th day of February 2002 when she had returned from leave and prepared a further report as to the child’s wishes which the parties agreed should occur as a result of assertions that the child was expressing different views. The matter concluded on the 18th day of February 2002.
Documents relied upon
The Mother relied upon the following:
(a)Affidavit filed on the 30th day of November 2001;
(b)Affidavit of Charlie P filed on the 30th day of November 2001;
(c)Affidavit of Bernadette B filed on the 30th day of November 2001;
(d)Affidavit of Terri P C filed on the 30th day of November 2001;
(e)Affidavit of Graeme W H filed on the 30th day of November 2001;
(f)Affidavit of Teresa D H filed on the 30th day of November 2001; and
(g)Affidavit of David M S filed on the 10th day of December 2001.
The Father relied upon the following:
(a)Affidavit filed on the 3rd day of December 2001;
(b)Affidavit of Danny R B filed on the 3rd day of December 2001;
(c)Affidavit of David J T filed on the 3rd day of December 2001; and
(d)the Father was permitted to file an Affidavit of David H S which was handed up during the course of the proceedings.
Proposals
Both parties proposed that the existing arrangements change and that C live predominantly with them. Both parties acknowledged that the existing arrangement was not working in C’s best interest and that she wanted more stability than the present interim orders provide.
The parties are involved in litigation in the County Court over provisions for Part IX of the Property Law Act 1958 (Vic) in relation to the B Street property. The Mother proposes to continue to live at B Street until the current litigation in the County Court has been resolved. She proposes that C will continue to attend at T Primary School. She has formed a relationship with C P and they hope to marry next year.
It is likely that the Mother will go to live with Mr P in his house at B once the B Street property os sold or she is paid out by the Father following the conclusion of their County Court proceedings.
The Father’s case as presented in his Affidavit material was that he anticipated buying out the Mother’s share in the B Street property and continue to reside there with C. By the end of the proceedings it was not clear that the Father would be able to purchase the Mother’s interest in the property, and there is a likelihood that the property will have to be sold. The Father has not re partnered, but is caring for Colin D who is 14 years of age. Colin is the son of the Mother’s sister and has been residing with the Father with the consent of the Mother. Colin was residing with both parties by agreement, but it is common ground that when the parties separated Colin wished to remain living with the Father. C and Colin have a close relationship which Ms Weir described as “more akin to siblings than cousins”.
Issues
The parties identified a number of factual issues in the case, as follows:
(a)whether the Mother or the Father was the primary caregiver for the first ten years of C’s life;
(b)whether the Mother’s ability to care for C is impaired by virtue of her brain injury and failure to take medication;
(c)whether the Father cared for the child full-time between March 2000 and May 2001, and whether the Mother neglected the child’s interests;
(d)the affect of the Father’s marijuana smoking on his parenting and possible effects on the child;
(e)the effect of the Father’s violence on the child;
(f)whether the Father can care for the child’s needs;
(g)the wishes of the child;
(h)the extent to which the parties have influenced the child’s wishes;
(i)the Mother’s new relationship with Charlie P; and
(j)the relevance and strength of C’s relationship with Colin D.
Evidence and findings
In Paragraph (4) of his Affidavit, the Father says that from the time of C’s birth until the date of separation both the Mother and he were involved in the care of C. He says
“I had the principal involvement in C’s care from approximately 10 years ago, when the Mother had a cerebral haemorrhage which caused her short term memory loss and has resulted in her having a slight speech impediment. At the time of the Mother’s haemorrhage or stroke she was in hospital for some weeks and then in rehabilitation for a further two months.”
The Father goes on to say in Paragraph (5):
“When the Mother left the family home on the 5th day of May 2000, she left C and did not return to our home until the 13th day of March 2001. During the 10 month period in which I cared for C, the Mother only occasionally visited C”
He agreed that C travelled with her Mother for a period of 17 days in January 2001 and visited her in Sydney in July 2000.
In Paragraph (8) he says:
“That whilst the Mother was not in the family home from May 2000 until March 2001, I cared full-time for C, supported her financially and took her to and from school and all of her extra-curricular activities.”
The Mother in her material asserted that she had been the primary caregiver for C for most of her life. In Paragraph (5) of her Affidavit, she said that, except for the period between May and July 2000:
“I have always been responsible for preparing C’s food, lunches, washing of her clothes, transporting her to and from school and taking her to doctor’s”
When cross-examined the Father conceded that he had not been the sole caregiver since March 2001. He asserted that since the 29th day of June 2001 he had been the primary caregiver and in percentage terms said that he had been doing 60 percent of the caring. This it appears, he calculated on the basis of the amount of time that C spent with each of the parents. On a purely mathematical basis, based upon the amount of days and nights that the child spent with each of the parents, the assertion that he was the “primary” carer may be technically correct. His Affidavit at Paragraph (4) says that he has the principle involvement in C’s care from 10 years of age, and in Paragraph (12) he says:
“I have remained primarily responsible for C’s care since the Mother’s return in March 2001”
The way in which those statements are made does not in my view, give a true picture of the Husband’s real involvement, particularly during the period since June 2001 as explained by him in cross-examination. The Father conceded that the statement in Paragraph (37) of his Affidavit that he was the sole caregiver of C between May 2000 and March 2001 was “slightly wrong”. He conceded that the Mother had come to the house “a few times” and further that C had spent two weeks in Sydney with her Mother during this period.
He explained that he meant by primary care that:
·he was there every day to look after the child;
·he provided financial support;
·he provided academic support;
·he provided emotional support.
He claimed that:
·he was there most days;
·he was there more than the Mother;
·he provided more financial support;
·he provided more emotional and academic support.
For these reasons he asserted that he had been the primary care-giver.
He asserted that for the first four years after the cerebral incident, the Mother was taking drugs and slept a lot. He said that she had fits and odd behaviour and he was there to console the child when this occurred as she would often be upset.
In Paragraph (14) of his Affidavit, in indicating that he is concerned about the Mother’s ability to care for C, he indicated that:
“For a period of almost 10 months between May 2000 and March 200, she hardly bothered to contact or visit C, save for the trip to New Zealand and a trip to Sydney”
He said:
“I would telephone and encourage her to exercise contact as I was of the view that this was in the best interest of C.”
At one stage the Department of Community Services had been involved with C and Brenda Jane Edwards from the Department of Human Services was called. Ms Cheryl Page, an Officer of the Department was assigned to the case and the parties had contact with her. There had been notifications in January 2001, May 2000 and March 2001. There is currently no investigation pending.
The Father conceded that he had told Ms Cheryl Page that the Mother was visiting weekly between July 2000 and March 2001. He further conceded that when she was in Sydney she telephoned C. The Mother’s version of what occurred when she returned to Melbourne at the end of July was that she obtained shiftwork with Bayside Trains and walked around to the house each day, cooked meals for C and Colin and walked them to and from school and on some occasions when the Father let her, drove them to and from school.
Terri P C gave evidence on behalf of the Mother. Her child A became friends with C and she lived at 11 B Street, which is on the other side of the road to the parties’ home. She met the parties in about 1999 and moved from B Street in June 2001. She said that during the time that the Mother was in Sydney in 2000 she rang and asked if she could telephone C on a couple of nights during the week, knowing that C would be spending a lot of time at her home with A. Ms Carey said that the Mother regularly called on Tuesday and Thursday.
Ms Carey said that after the Mother went to Sydney, C used to come and play at her house with A and stayed with them on nearly every weekend from Friday night until Sunday night, and some nights after school. She frequently took C to school and picked her up after school. C went on holidays with her family during the May and September school holidays.
Ms Carey said that C continued to stay at her home on weekends until June 2001. She said that once the Mother returned and obtained a bed-sit she saw her on numerous occasions walking home with C after school in her railway uniform.
She said that after the Mother moved into B, the Father rang her on Friday evenings and asked her not to let the Mother have contact with C. She said that often on weekends C would stay at her home and she would meet with the Mother and allow her to have contact with the child.
Since she has moved to Calista, C has continued to come and stay with A, and A has stayed with the Mother in her household. In cross-examination she maintained her position about the matters deposed to. It was suggested to her that she was giving evidence from a position of partisanship toward the Mother. She admitted that she had taken a positive position in relation to the Mother, but because of the observations she had made about the Mother and her care and from her discussions with C.
She indicated that C had said to her at least on one occasion, that she didn’t want to go home and that she was effectively lonely in the house.
Evidence was also given on behalf of the Mother by Teresa H and Graeme H. The H’s met the parties in about 1992 when they lived at C. They maintained contact until they moved to Queensland in 1996 and subsequently continued telephone contact.
Mrs H first met the Mother when she was recovering from a brain haemorrhage and said that she was the primary caregiver of C. She said that the Father would go to work during the weekdays leaving the Mother and child at home and that at weekends the Father played golf and on occasions went fishing.
Mr H also swore an Affidavit as well. He also deposed to the fact that the Mother, despite some disabilities arising from her brain haemorrhage, was managing extremely well and looked after C. Although the H’s were cross examined, neither of them were shaken in their evidence.
I am satisfied from the corroboration, especially that of Terri C, that the Mother was a concerned and caring parent and was the primary caregiver for C at least up until the period of separation in March 2000. The Father’s concessions also support this finding. Although the Mother clearly needed some assistance at the time of her brain haemorrhage the Father was working full-time and was so engaged up until the parties separated in March 2000. During this period although he assisted with C’s care in a real and substantial sense he was not the primary caregiver for her.
It is also clear from the evidence of the witnesses, in particular Terri C, that the Mother did not, as alleged, hardly bother “to contact or visit C save for the visit to New Zealand and the trip to Sydney in May 2000 and March 2001”, or that she only “occasionally visited C”. Upon her return to Melbourne in March 2001 she obtained employment, independent accommodation and regularly visited the home, as often as she could to see C and assist with her care. When she was not permitted to do so by the Father, she visited and had contact with C through Terri C.
The Mother in this case has alleged a significant history of violence throughout the relationship since the birth of C and extending beyond the separation of the parties in May 2000. In Paragraph (6) of her Affidavit, the Mother says:
“The relationship broke down because the Father was arrogant and possessive. Further, he abused me verbally and was physically violent with me. He would tell me that I was stupid and fat and he would put me down in front of other people including C. He used to tell C that I was sick. If I did not agree with what the Father said he would be violent with me, for example he would pick me up and throw me against the wall. He did this to me a number of times over the years. I did not report him to the police until February 2001 because he told me that no-one would believe me”
The Mother attributes the separation on the 4th day of May 2000 to a fight with the Father about the television. As a result of her complaint to him about being selfish over the television set, she says that he dragged her down to the bedroom, put his fist through the wall, told her to get dressed, that he was taking her for a drive and said he was going to get rid of her. The Mother said that she took this as a serious threat and left the house in a dressing gown.
The Mother further alleged that on the 3rd day of February 2001, she had taken C to basketball and when she returned to B Street there was a discussion about the parties’ property. The Mother said that she refused an offer made by the Father and that he became angry, started yelling at her and tried to drag her off the couch. He rang the police, the police came and after they had left, the Mother says that he dragged her off the couch, took her into the kitchen, held her up against the wall and punched her on the left side of the head several times, spat at her and picked her up by the neck. She says that he tore her dress. She went to the police and reported the incident and went to the William Angliss Hospital in U. As a result of this alleged assault she obtained an intervention order on the 9th day of February. As appears in the chronology, on the 6th day of February the Father had already obtained an intervention order.
The Mother further said that after she moved back into the property in March 2001 because she was concerned about Colin’s and C’s care, the Father’s violence continued. She said that he threatened to kill her on the 4th day of June and when she nudged the gates open with the car, he threw a pair of secateurs at the car and kicked the front of the car. She said that this was followed by verbal abuse.
The Mother further alleges that on the 6th and 8th days of June there were further instances of violence which were reported to the police. On one of these the Father hit her in the face and pulled her hair, and the other he scraped a piece of toast across her face and punched her in the face with his right fist. Both of these incidents she said occurred when C was in the house. The last incident became the subject of an Application to the Ringwood Magistrate’s Court to vary the Mother’s intervention order to exclude the Father from B Street and after hearing evidence-in-chief from both parties, an order in favour of the Mother was made.
The Father’s Affidavit did not deal with the specific allegations as made by the Mother because he had obviously not seen her Affidavit at the time his was prepared. Nevertheless, he refers to an earlier Affidavit sworn by the Mother on the 2nd day of August 2001 where some of the allegations of violence are also set out. He simply denies the allegations. The Father’s position was that the Mother had a severe anger control problem. During the course of cross-examination he conceded that there had been incidents where both parties had become angry. He agreed that he threatened to kill her on one occasion and agreed that he slapped her once after she had slapped him. He said that she was losing control and stirring him up and he simply hit her in self-defence. In relation to the incident on the 4th day of June the Father said that the Mother had rammed the gates and that he was in front of them and that he was upset and was abusive to her. He said that he put his foot on the car to stop her and that she followed him to the house hitting him.
On the 6th day of June he said that she came back after she had taped him on the previous occasion abusing her and “taunted me”. He said that she hit herself on the head so that she could go to the police and that she planned this incident so that she could go to the police and allege that he had assaulted her. In relation to the incident on the 8th day of June, the Father denied that he scraped toast across her face. He asserted that the photograph attached to Mr H’s Affidavit of an injury to the Wife was caused by her hitting herself with a cup on the right side of her face. He again alleged that this was a plan to make it look as though he had hit her so that she could get him out of the house. He asserted that he couldn’t have hit her on the right side of the face as alleged. He further said that she was provoking him with her boyfriend and calling him a “poofter and faggot” and that this was enough to provoke him but that he never hit her.
The allegations were not put specifically one by one to the Mother, but she confirmed one of the incidents in June. She denied that she abused or provoked the Father. Otherwise there was no specific cross examination of the incidents alleged. In particular it was not put to the Mother that she fabricated allegations of violence in order to set the Father up to have him excluded from the home. The Mother’s allegations of violence were specific and not really challenged. Having observed the parties in the witness box and their demeanour, I am satisfied that the Mother was the more truthful witness on these issues. The Father’s suggestion that the Mother had fabricated some of the incidents in order to get him out of the house is in my view, fanciful and was not put to the Mother at all. Further corroboration for the Mother’s allegations is provided by other witnesses. In Mr P’s Affidavit he deposes to the fact that on the 3rd day of February when he went to visit the Mother at her bed-sit, he was not there but soon returned. He saw that she had injuries to her head, neck, face, arms and leg and there was blood on her dress and it was torn. He took her to the William Angliss Hospital.
On the 6th day of June the Mother showed him the back of her right hand which had a series of cuts upon it and the Mother complained that the Father had run a serrated edge of Gladwrap across the back of her hand.
On the 8th day of June the Mother reported to him that she had been assaulted by the Father and later that night he saw that she had a lump on the right side of her head and the back of her hand was swollen. He took a photograph of her.
Mr P further alleged that the Father was threatening and abusive to him on two occasions. On one occasion he was informed by the Mother that the Father was alleging that he had arranged for someone to call and threaten him. Mr P telephoned him to explain that it was not him and that Father was abusive towards him and said that he would organise someone to “get him”.
On the 27th day of April 2001 he went to C’s school to assist the Mother collect her and when the Mother had collected A C and C, the Father approached his car and abused him and said:
“You won’t get away with this. You’re gone”
When challenged by Mr P as to what was going to happen he said:
“It won’t be me, I have someone else organised.”
The Father had an opportunity in evidence-in-chief to comment on Mr P’s Affidavit and did not do so. Furthermore, the Father did not challenge Mr P’s evidence on these issues.
Furthermore, on the evening in May 2000 when the Mother left, although the Father would not concede that he had lost his temper, he did concede that he had as alleged, put his arm through the wall, but said that it occurred sometime after the Mother had left the home. This he said took place about an hour after she had gone and was because he was frustrated. I find that it is likely that the events of the 5th day of May occurred largely as the Mother described them.
Whist I accept that the Mother’s behaviour was at times frustrating for the Father, I am satisfied that he did act violently towards her as alleged by her.
The Father alleged that the Mother’s ability to care for C was impaired by virtue of her brain injury and failure to take medication.
As a result of these allegations, the Wife was examined by David Ian Smith, a clinical and forensic psychologist who swore an Affidavit annexing his report. His clinical observations of her led him to conclude that she was well able to co-ordinate her movements without observable effort or stress and was able to write fluently without any perceptible difficulty. In terms of expression she was able to articulate and convey successfully her thoughts. He also found her to respond in a calm and non-defensive manner, and to explain the circumstances of her failed relationship and at no time did her demeanour or the content of her responses suggest a low frustration tolerance to stress or a pattern of difficulties with anger.
Mr Smith administered the BECK depression inventory and the Minnesota Multi-phasic personality inventory and the Weshsler memory scale. The BECK depression inventory and the BECK anxiety inventory indicated the presence of no depressive or anxiety symptomatology.
The Minnesota Multi-phasic personality inventory profile suggested that an individual who manifested no psychological impairment. Her performance fell within the normal range and showed no significant adjustment, emotional or personality problems. Mr Smith indicated that her profile is characteristic of one who holds a balanced view in regard to the trustworthiness of others, who is generally comfortable in social situations and who is interpersonally sensitive. He found that her responses found her to be emotionally stable and non-aggressive, to possess the capacity to control her impulses, to think clearly and rationally and to possess a balanced moral view.
The Weshsler memory scale placed her within the normal range for healthy people of average intelligence within her age group. Mr Smith then tested her on the parenting stress index which is a screening and diagnostic instrument used to identify parent/child systems under stress, dysfunctional parenting and the development of emotional pathology in children. She achieved a profile consistent with that of a well-functioning parent who regards her parenting role positively. Mr Smith conducted telephone interviews with Ms Barbara C, the principal of the T Primary School; Ms Bernadette Brennan, a family counsellor and the co-ordinator of the Family Violence Women’s Program for Anglicare Victoria; Ms Terri C and Mr Adrian S, a past work colleague and personal friend of the Mother.
In summary, Mr Smith’s findings were that having been asked to address the issues of whether the Mother was unstable emotionally, he concluded she has the capacity to provide for the emotional or intellectual needs of C and asked whether she has the proper attitudes towards the care of her daughter, he concluded that the information derived from all sources provided a compelling argument, and a contradiction of the contention that she was either emotionally unstable or in any way unfit to parent her daughter. He found that there was no clinical, psychiatric or anecdotal evidence to support the view that the Mother currently suffers from any psychological order or any diagnosable psychopathology.
At the outset I accepted Counsel for the Father’s submissions that in relation to the telephone discussions with the principal of the school who had not been called as a witness, that her observations should be limited by section 136 of the Commonwealth Evidence Act 1995 to observations of C’s progress at school.
No contrary evidence was called and it is clear from Mr Smith’s evidence that the Mother does not have any psychiatric, psychological or physical symptoms which would interfere with her capacity to parent. This is in direct contradiction of a number of allegations made by the Father about her mental state. In Paragraph (15) of his Affidavit the Father says:
“That the Mother particularly since her haemorrhage has been unstable emotionally. She has a severe anger control problem and she also has emotional and mental problems. She is required to regularly take medication but I understand that she often refuses to do so. This causes her condition to be unstable and erratic. I would thus seek that the Mother provide to this Honourable Court an updated report as to her current medical state and also the medication which she is required to take. In addition, I seek an order for psychiatric assessment of the Mother.”
In Paragraph (16) he said:
“I fear for C’s safety when the Mother loses control and she does not take her medication.”
In Paragraph (17) he said:
“The Department of Human Services investigated the matter and I understand they found they had no concern about my parenting. I understand that the Department of Human Services file could contain some concerns about the Mother’s mental state.”
The Father’s case was clearly predicated on the basis that as a result of some serious psychiatric or psychological disorder, the Mother’s capacity to parent was significantly affected. The Mother asserts that the Father has gone further and has sought to portray her to others and to C as having a mental illness. Ms Bernadette Edwards from the Department of Human Services was called and produced the file. Whilst there were allegations by both parties about the other, no finding had ever been made by the Department that there were parenting concerns to do with the Mother’s mental state. They did find that there was an indication of physical and verbal abuse between the parties which raised concerns about the children’s exposure to it. It is clear from her evidence that the Father had reported that the Mother had bipolar disorder or schizophrenia.
In general terms I find that the Father regularly exaggerated his evidence and on other occasions I simply do not accept the evidence he gave. For example in Paragraph (34) of his Affidavit the Father says that:
“The mortgage repayments are in arrears and I am constantly receiving notifications from the Bank in respect to the arrears.”
He conceded that he had received one letter and one phone call from the Bank and that he had ceased making payments on the 29th day of June. He said that the letter came a couple of months after he had moved out as did the phone call and agreed that he had exaggerated.
The Father’s Application was supported by an Affidavit from Danny R B. Mr B’s Affidavit supports the Father’s Application for residence and is very critical of the Mother. He asserts that in the last 12 months she has been abusive on the telephone to him and has threatened many times in his presence to kill the Father because she will only ‘get five years’. He also asserts that she has told him that the Father is gay and a paedophile. In particular he says that in about May 2000, the Mother telephoned him and suggested he sleep with the Father as he is a homosexual. He alleges that she had told him that C would be better off with her Father. He asserts that about a week before he swore the Affidavit, which would have been in late November 2001, the Mother telephoned him asking him not to swear an Affidavit supporting the Father and threatening that if he did she would “get him”. He says that he telephoned the B police and reported the incident.
The Mother was cross-examined about Mr B’s Affidavit, or at least part of it. She said that he had been at their house in 2000, a period when the Father was asserting that she was not attending the house. She said that she recalls having cooked dinner for Mr B that night and later rang him to say that she was doing an Affidavit and to ask him if he remembered the incident.
In relation to Mr B’s assertion that he was threatened by her, she said that she had telephoned him in late November 2001 but did not threaten him. Immediately after the conversation with him, she was contacted by the police who told her that they had been informed by someone that she was suicidal. She went to the police at the request of her solicitor and assured them that she was perfectly allright. When cross-examined about this incident, Mr Bowers conceded that she was not directly abusive to him. He said:
“She said I could get involved in sex with P. I took it as abusive indirectly to myself.”
He then said that his phone call to the police was made after he had reported the Mother’s phone call to the Father. It was the Father’s idea to give the police a call and detail the Mother’s telephone call so there would be a record of it. He conceded that he told the police that the Mother’s behaviour was “concerning” and asked that they go around to her home. He conceded that the only matters he was concerned with were her health, the assertion that he could go and have sex with P and some concern that she had expressed about whether his son was safe with the Father. When it was put to him in cross-examination that he had made no reference to any threat, he said that he did not ring the police to report a threat and that he was not threatened by the Mother.
This evidence is completely at odds with Paragraph (15) of his Affidavit which said:
“She threatened me that she would get me if I did make an Affidavit in support of P. I telephoned the B Police and reported this incident.”
In view of his subsequent evidence this gave a completely wrong impression of what had occurred. The fact that his Affidavit presented such a different picture of this particular incident from that which occurred, I find that his evidence, particularly that contained in his Affidavit, is unreliable and I am satisfied from his subsequent concessions that no threat was ever made to him by the Mother. In view of Mr B’s willingness to exaggerate or fabricate his evidence to assist the Father, I place little reliance on his evidence.
David J T also swore an Affidavit on behalf of the Father. Mr T was a workmate of the Father’s and most of his evidence consisted of corroboration for the Father’s case that he was able to relate well to C and care for her. He described the Father as a competent, caring Father. Having asserted in his Affidavit that the Mother denigrated the Father and complained about her life he explained that what he meant was that she had said that the Father was not a good provider and that she had complained that the house was too small and that they needed new carpet.
During the course of the proceedings the Father was permitted to file an Affidavit by David H S. Mr S is a Barrister practicing at the Victorian Bar and prior to signing the Bar Roll in 2001 he had been involved in his parents’ security business for 8 years and in this way had come to know the parties. Mr S deposed to three telephone conversations with the Mother. The first he said occurred around about the time of separation when the Mother asked him if he was going to take sides in respect to the separation. The second he said, was in about September 2001 when he asserts the Mother called him and said that Danny B had told her that he would be violent towards her (the Mother) if she did not stop making allegations towards P N in relation to family law matters “or words to that effect”. He says that on this occasion her tone and intonation indicated that she was in a panic.
The third phone call he says, occurred on the 15th day of January when he says that the Mother said to him that,
“Danny B told me that you had cut your Wife with a knife between her vagina and her navel and that you would do the same to me if I did not withdraw from Family Court proceedings, or words to that effect.”
He deposed to the fact that his Wife was with him at the time and he informed the Mother that the allegation about him was untrue.
He said that he was most concerned about the allegations that the Mother was making about him and the Father.
The Mother’s evidence was that she considered Mr S a friend but that she had not called him about the time of separation. She denied calling him in September 2001 but did admit that she had called him on the same day she had called Mr B, as well as other witnesses, to ask if he was giving evidence. She thought the conversation took place in about November 2001. She says that he informed her that he didn’t want to get involved and she admits to telling him that she was concerned for her daughter and that the Father was sleeping with other men. She denied on that occasion making any assertions that she had been told he would be violent towards her.
The Mother admitted that she telephoned Mr S on the 15th day of January 2002 at about 3.30pm. She rang to ask him about an incident that had occurred the previous year on the night when she had cooked dinner for the Father and Mr B. She said that they were having dinner and the Father told her that David S had a knife and had cut his Wife’s vagina. The impression that she gained from the conversation was that it was said to her by the Father to frighten her and leave her with the impression that he might do the same thing to her. She said that she was genuinely afraid of P N.
The Mother said that she had rung Mr S in January 2002 because the incident described to her by the Father had been on her mind for over a year and on the advice of a friend that she should clear it up by speaking to Mr S, she did so.
Mr S was cross-examined. He said that after the January phone call he had telephoned the Husband and offered to swear an Affidavit. He explained this on the basis that in the last conversation he had with the Mother, the things that she said were so outlandish that he felt obliged to tell the Father and to assist him in the proceedings. Mr S in cross-examination adhered to his recollection that the Mother said that she had been told by Danny B that he had cut his wife with a knife from her vagina to her navel and that the same thing would occur to her if she continued the proceedings. He said that he believed that she was worried because he (Mr S) would be violent to her. He said that her manner of speaking was erratic and that he was very concerned about what was being said about him.
It appeared that Mr S was extremely distressed by the comments that were made to him by the Mother, even though she was reporting someone else’s assertions. It was put to him in cross-examination that in the shock that he received when he heard this allegation, he may have missed the fact that the Mother was in fact telling him that the threat was that P N would do this to her and not Mr S. He conceded that it was possible that in the shock he might have misunderstood it. He further conceded that the Mother had said to him that she didn’t think he would do something like that.
Mr S appeared to be very personally concerned about the allegation that was made about him and said that was the reason why he had pressed the Father to give an Affidavit on his behalf. He agreed that the Mother seemed generally distressed when talking to him, but appeared to think it necessary to refute the allegations.
Although the versions of the Mother and Mr S were different, I am satisfied that both of them were genuine in their recollections of what had occurred. The comments made to the Mother by the Father had been made 12 months before the conversation with Mr S took place. It appears that she had been genuinely concerned by the allegation and distressed that it involved Mr S. As it had been weighing on her mind she finally decided, after discussing the matter with a friend, that she should openly discuss it with him to hear his response. For her part as she told him on the phone she did not think he had done it and was relieved to hear him deny it.
Clearly from Mr S’s point of view, the allegation came as a shock to him and he was focused upon his concerns and the outrage he felt at what he saw as a direct and outrageous allegation against him. It is likely, in my view, that he did miss the import of what the Mother was explaining to him, namely that her concern was not that Mr S would do something to her, but rather that the Father would. There is no doubt that Mr S was at Court essentially to clear his name, and his focus was on the Mother as the reporter of the allegation. The point that the comments originated from someone else seems to have eluded him completely.
The Father’s evidence was even more curious. The Father denied that he had discussed David S with the Wife. He said that he had spoken about someone else, another man he knew through his security job, who had cut his wife and had subsequently been charged. His evidence indicates that there was a conversation in front of the Wife which to some extent corroborates her evidence. Whilst the Father denied that Mr S was mentioned, that was the impression the Mother had formed and it was the sole purpose of ringing him 12 months later.
It is difficult to see the relevance of Mr S’s evidence on behalf of the Father. The Mother was, on any view, reporting to Mr S what she believed she had been told about him. It is equally clear that she was never at any stage making allegations herself against him. Despite the fact that Mr S said he was concerned about allegations the Mother was making against him and the Respondent Father, it is clear from his evidence that he was at all times aware that she was not making the allegations but was rather passing on to him what she asserted others had said. The Mother in my view could not be criticised for having tried to clear this matter up with Mr S in view of her reasonably held concern. Mr S’s evidence in this respect does not, in my view, assist the Father’s case. He perhaps understandably, misunderstood the purport of the Mother’s call and that the ultimate threat was directed to her by the Father. Having regard to the concession made by the Father I find it more likely than not that the threat was made as alleged by the Mother. Certainly, something along those lines was said to her. Even if she had misinterpreted the comment there was nothing malicious in her call to Mr S and his evidence seemed to be largely directed to a misguided view that it was necessary to deny the allegations against him.
The law
Contact orders and Residence orders are Parenting orders. They arise in proceedings that result from Part VII of the Family Law Act 1975. Section 60B sets out the objects of Part VII and the principles which underlie those objects. They are subject to section 65E, that in determining the outcome the best interest of the child is the paramount consideration. That is the overriding principle.
In deciding the residence and contact arrangements that will promote the best interests of the particular child, the Court must consider the various issues set out in section 68F(2). Each subsection comprises a list of matters that must be considered in the context that each is relevant to the particular case.
(a) The wishes of the child
Earlier in the proceedings the parties had agreed to obtain a Family Report from Robyn Weir and she provided a report dated the 27th day of July 2001. C informed Ms Weir that she was distressed at the fights between her parents, that both got angry, although she seemed to blame her Mother somewhat more than her Father. Ms Weir saw C on two occasions for the preparation of the report, on the 16th day of July 2001 and also on the 23rd day of July 2001. On each occasion C indicated a preference for living with her Father. She said that she loved both parents but felt closer to her Father. At that stage she seemed to feel somewhat resentful of Mr P’s role in their lives. Her first preference was to live with the Father and Colin, her cousin, in the matrimonial home. Her second preference was to live with her Father in rented accommodation and her third preference would be to live with her Mother in the matrimonial home and not with Charlie, and her last choice was to live with her Mother and Charlie in B (his home). She indicated that the latter situation would make her very angry and upset.
A further updated report was prepared by Ms Weir on the 26th day of November 2001. Ms Weir noted that C appeared more settled on this occasion but continued to indicate a preference to live with her Father and see her Mother on alternate weekends. She also noted C’s close relationship with her cousin, Colin.
On the 26th day of November 2001, Ms Weir reported that she had, subsequent to the preparation of the report received a phone call from the principal of C’s school indicating that C wanted to speak to her.
C told her that she had changed her mind and wanted to live with her Mother. Ms Weir reported that it appeared that C had just spent a week with her Mother and perhaps had returned somewhat ambivalent about her expressed wish. She was unable to elaborate in any reasons why she had a change of mind.
In view of the fact that the proceedings were not heard until early January 2002, and evidence given by the Mother that C had changed her mind, the parties agreed to a further updated report which was prepared on the 4th day of February 2002. The interviews with the parties and C took place on the 1st day of February 2002. Ms Weir reported that C had changed to the extent that she is now in the position that she does not wish to make a choice about where she would like to live. Ms Weir concluded that she is now simply finding the situation too difficult. She indicated that she was feeling pressure about having to make a decision, but was more ambivalent than she had previously been. She indicated to Ms Weir that when she is with her Father she wants to live with him and when she is with the Mother she wants to live with her. She indicated however, that the current arrangements are somewhat difficult for her. The current arrangements involve her spending from the conclusion of school on Thursday until the commencement of school on the following Monday on the first three weekends out of every four with the Mother and the balance of the time with the Father. C indicated that this arrangement made her feel as though she had no base household and it was difficult for her to adjust and change with such frequency. Ms Weir elicited from C that it was not that she did not wish to express a wish and in doing so would be disloyal to one or other parent, but C indicated that she was unable to be clear about where she wanted to live and also confirmed that she did not wish to be disloyal to both parents.
C had no concerns about her care at either of the parents’ homes.
Ms Weir concluded that C was feeling under enormous pressure about where she would like to live and maturity-wise and developmentally-wise she is simply unable to do this at this point. In response to the proposition by Ms Weir as to whether she could spend one week with each parent, C indicated that she was not adverse to the idea, but it was not one proposed by her. Ms Weir had some reservations about how workable this arrangement would be given the lack of communication between the parties and the degree of hostility between them. C indicated that such an option would extricate her from the position of having to choose between her parents and would also mean that she would see them for a significant and meaningful period of time.
Ms Weir concluded that if the Court were to find that a week-about arrangement were not really workable and the current arrangement should change as it involved too much coming and going for the child as it did not allow her to have a consistent and manageable pattern, her view was that an arrangement whereby she stay with the residential parent for ten nights and then had contact with the non-residential parent for four nights would be preferable.
Ms Weir noted that C also valued her relationship with Colin and this needs to be a factor which should be given some consideration. Ms Weir indicated in her evidence that C’s present wishes possibly reflected that she was more at ease with her Mother now than she previously was. Although she had not finally resolved whether or not she liked Mr P, she indicated that she was more at ease with him and his presence in the household did not appear to be an issue for her.
(b) The nature of the relationship of the child with each of the child’s parents and with other persons
It is clear from the last report of Ms Weir that C has a good relationship with each of her parents. That relationship is now such that she does not wish to choose between her parents in relation to the household in which she might be living. There are two other persons of relevance to C in the Mother’s household. There is Charlie P. Although she felt somewhat resentful of Charlie’s role in their lives, in the first report in July 2001 was prepared, with the passage of time and the opportunity to get to know Mr P better, the second point indicated that she was more at ease with him. Ms Weir reported that Ms Weir had said:
“People tell me that I should like Charlie but I am not sure yet”.
Much was made of this comment by Counsel for the Father who suggested that it indicated that despite the passage of time she did not like him. Ms Weir said that the context of it in her view was that C had not finally made up her own mind.
The other significant person to C is Colin. Colin is 14 and his relationship with C is a close one. Ms Weir described them as having a relationship more akin to siblings more than cousins. The Mother expressed some reservations about C living in the household with Colin. This arose from an incident which the Mother reported as involving Colin and asking C to take some alcohol from the home to give to him. This complaint seems to have been communicated to the father and dealt with.
(c) The likely effect on the changes to the child’s circumstances, including the likely effect on the child of any separation from:
(i) either his/her parents; or
(ii) any other child or other person with whom he/she has been living.
The interim orders made on the 6th day of August 2001 provide for C to live with her Mother from the conclusion of school on Thursday until the commencement of school on the following Monday on the first of three weekends out of every four and the balance of time with her Father. Thus, at least since August 2001 she has been spending considerable time with both parents. She currently attends the T Primary School and it is the proposal of both parents to continue to send her to T Primary School for the time being. Colin presently attends U High School, so that Colin and C presently attend different schools.
C has been doing well at school and her report for December 2001 is an excellent one. Both parties claim credit for her good results. It certainly appears to be in her interest to continue at her existing school where she has friends and is doing well and both parties propose that she should continue there in the short term. Both parties, however, have some uncertainty as to their future accommodation arrangements. The parents are involved in proceedings in the County Court of Victoria pursuant to the provisions of the Property Law Act 1978 (Vic). In the course of the hearing both parties expressed some doubt as to whether they could reach resolution and the Mother’s position was that the likely result was that the Father would not be able to purchase her interest in the property and it would have to be sold. Although that was not the Father’s initial position, in his evidence he conceded that he would probably have to sell the house. This was a concession made fairly late in the proceedings by the Father and he put forward no other proposals as to where he might live.
The Mother’s arrangements are similarly uncertain save that she will be moving from the former matrimonial home once the claim in the County Court is determined or resolved and then, or at some later point is likely to move in with Mr P. She says that they have a good relationship and hope to marry next year. As Mr P lives in B, that arrangement would also necessitate a change of school for C. Thus, although it appears to be in C’s interest to continue at T Primary School until her education is concluded, I cannot be certain that the arrangements that either of the parties would make following the conclusion of the County Court proceedings will enable this to occur.
A considerable amount of importance was placed by the Husband upon C’s relationship with Colin. It is clear that C does have a close relationship with Colin although it has to be remembered that Colin came to live with the parties at the end of 1999 and accordingly been in a household with C for a period of a little over two years. As this was the period of the disintegration of the relationship of the parties, no doubt C was able to take refuge in the company of Colin at times when her parents’ relationship with each other was volatile. However, Colin is older than C and already attending high school and in the short term at least, their interests are likely to be more divergent than similar. It is also the case that as there is no dispute about where Colin is to be living, there is nothing to prevent Colin from spending time in the Mother’s household if C were to be living there and the children wished to spend more time together. From the evidence there is nothing to suggest that the Mother does not have a good relationship with Colin and his reason for staying with the Father upon separation was a choice made by Colin which was respected by the Mother. Whilst a situation where C lived in the Mother’s household would separate her from Colin whilst she lived with her Mother, there is no reason why she and Colin could not spend virtually every weekend together if they wished to do so.
(d) The practical difficulty and expense of a child having contact with a parent
At the present time the parents are living in reasonably close proximity to each other. There was no evidence to suggest that even a move by both parties would present any practical difficulties with contact.
(e) The capacity of each parent or any other person to provide for the needs of the child, including emotional and intellectual needs
Both parents to date have demonstrated that they are able to provide for the needs of C. Her loyalty to both parents and her inability to decide where she would rather live at the present time is testament to this. C is progressing well at school and although the Mother is critical of the Father’s commitment to her school work and takes much of the credit for her success, it is in my view unlikely that she would have done so well had she not received assistance and support in both households. In my view both parents are able to provide for her intellectual needs and both appear to have met her emotional needs.
(f) The child’s maturity, sex and background and any other characteristics of the child that the Court thinks are relevant
There was no evidence submitted by either party relevant to this subsection
(g) The need to protect the child from physical or psychological harm caused, or that may be caused, by:
(i) being subjected or exposed to abuse, ill-treatment, violence or other behaviour; or
(ii) being directly or indirectly exposed to abuse, ill-treatment, violence or other behaviour that is directed towards or may affect another person.
Unquestionably C has been directly exposed to aggressive and violent situations between her parents. The Department of Human Services in March 2001 required the parties to sign an undertaking that there would be no physical or verbal disputes within the family home and that there would be no physical or verbal disputes in front of C and Colin. Both C and Colin directly reported to the Department of Human Services that they had been exposed to a level of verbal abuse between the parents. Regrettably not all of that hostility has ceased upon the separation of the parties and there have been incidents since separation between them.
It is not suggested in this case that C has been the subject of any direct violence by the parents. It is equally clear from the evidence that there was verbal abuse between the parties. Certainly in earlier times the Mother was no doubt frustrated by her disabilities and even now that is to some extent apparent. Whilst she has overcome most of the problems associated with her cerebral haemorrhage, she is not particularly articulate and her answers in the witness box have to be considered in that light. She is also somewhat vague as to precise dates on which events occurred. An incident at Centrelink in which she became agitated indicates a level of frustration on her part which I am satisfied has lead to abusive situations between the parties.
I have found that the Father has been physically abusive to the Mother on several occasions and notwithstanding he may have felt provoked by her, the physical violence is unacceptable. Whilst the separation of the parties may mean that such incidents are unlikely to occur again, his value system is one which has allowed him to engage in this conduct over a period of time. He accepted no responsibility at any stage for his part in the violence both verbal and physical and this must inevitably influence his attitude to the Mother in particular, and women in general. (Refer to cases on violence: Patsalou & Patsalou (1995) FLC 92-580 and JG & BG (1994) FLC 92-515).
This is one of the factors which when weighed up with the other matters under section 68F(2) reflects adversely on the Father. I also accept that he has at times exploited the Mother’s vulnerability and naivete by indirectly at least, threatening her. I am satisfied that there was a discussion in her presence about an associate of the Husband cutting his wife’s vagina. If as the Husband asserted, this conversation took place in the presence of Mr B on the only evening on which the Mother had cooked dinner at the former matrimonial home after she left in May 2000, it seems curious indeed that a topic like this would be raised coincidentally or innocently. Whatever was precisely said, the Wife had the impression that a threat was being made to her and I am satisfied on the evidence that this was the impression that the Father intended to convey. Whether or not Mr S’s name was mentioned is not important. In my view, what is important is that comments were made to the Wife, in circumstances which I am satisfied led her to honestly believe a threat was being made.
The Husband’s use of witnesses, Danny B and David S to suggest that the Mother was threatening them could also be viewed as an aggressive act on his part. It was he who encouraged Mr B to telephone the police after the Mother had a discussion with him. Counsel for the Father opened his cross-examination by putting to the Mother that she had abused Mr S and threatened him about coming to Court. At no time did Mr S assert in his Affidavit or in his evidence that he had been threatened by the Mother about giving evidence. Counsel for the Father put similar questions to her in relation to the evidence of Danny B. Again it was put to her that she had threatened him which she denied. Although Mr B in paragraph (15) of his Affidavit said that he was threatened if he made an Affidavit in support of the Husband, in cross-examination he conceded that although she asked him not to go to Court, he did not ring the police to report a threat by her and he was not threatened by her.
In the past the Father has been directly aggressive to the Mother. His aggression continues, albeit in a less obvious way.
(g) The attitude to the child and the responsibilities of parenthood demonstrated by each of the child’s parents
It is clear that both parents in this case love C but both have at times put their own interests and needs above hers. The level of conflict in the household is one example of this as is their continued hostility to each other. Both parties have acted inappropriately at times. As far as the Mother is concerned she has made allegations about the Father which are quite inappropriate although she may have had genuine concerns. In particular the Mother has what I find to be a genuinely held view that the Father has had homosexual encounters in the past and is bi-sexual. The Father denies this. This raises in the Mother’s mind concerns which do not on the evidence appear to be reasonable ones, although, again I am satisfied that they are naively held but genuine. She has expressed concern about the Father and Colin and when asked whether she thought Colin could be at risk with him she told Counsel it had crossed her mind. She has raised the Father’s sexuality with not only counsellors who she has seen but also some of his friends. Her attitudes, whether or not he admits or denies the allegations, appear to be homophobic. I have some concerns that this might lead her to be difficult about contact, but on the other hand she has raised these matters with professionals and sought and obtained reassurance that C is not at any risk and appears to have accepted that reassurance.
She has to that extent lacked some insight as to the effects of the allegations on her relationship with the Father and the potential for embarrassment to him. When arguments have occurred between the parties , she has, I am satisfied, on occasions called the Husband a “faggot”. No evidence was presented which would suggest that the Husband had engaged in homosexual practices or that even if he had, that it would pose any kind of a threat to C and to raise these issues, particularly if they could come to C’s notice, is clearly not in her interest.
The Father has complained about incidents regarding contact in August 2001 and October 2001. I am satisfied on the evidence that what occurred were different interpretations of the orders or misunderstandings about times, and I am not satisfied that the Mother acted capriciously or is a person who would not comply with orders for contact.
For his part I am satisfied that after the Mother left in May 2000, the Father was difficult about her contact with C and she was required to make some clandestine arrangements with Terri C to see C regularly. In addition, the Father has endeavoured to paint the Mother as a person who has a mental illness and I am satisfied that he has not always sought to hide his view from C. The Affidavit upon which he relied at the hearing asserts that she has a severe anger control problem and also has emotional and mental problems. He asserted that she is regularly required to take medication but often refuses to do so. The evidence does not support his views about her psychological and mental wellbeing, and I find that he has at worst intentionally, and at best recklessly, made his views known to their acquaintances and friends. This does not indicate on his part any understanding of the desirability of ensuring that the child respects both parents and the impression given from his evidence and demeanour is that he has no respect for her. To some extent however, the same could be said of the Mother.
(h) Any family violence involving the child or a member of the child’s family
This issue has already been canvassed.
(i) Any family violence order that applies to the child or a member of the child’s family
The family violence orders are detailed in the background to the proceedings. Any intervention order obtained by the Mother on the 10th day of July 2002. The Order obtained by the Father against the Mother expired on the 2nd day of March 2001.
(i) Whether it would be preferable to make the order that would be less likely to lead to the institution of further proceedings in relation to the child
There is no obvious order which would fulfil this criterion and no submissions were made on it.
(l) Any other factors or circumstances the Court thinks is relevant
One of the issues raised by the Mother is that the Father is a regular marijuana smoker. The Father admitted his continuing use of marijuana. The Father admitted he may be addicted to it. His evidence was that he did not smoke in front of C and denied the allegations by Mr and Mrs H that in February 2001 during a visit, he had rolled some joints and smoked in front of the children. He further denied that he drove home affected by the smoking. The evidence of Mr and Mrs H was not seriously challenged in cross-examination, although the Father denied that he had smoked in front of them. I am satisfied from their evidence and from the fairly cavalier attitude the Father showed to his marijuana smoking that he regards it as an unremarkable feature of his life and that he is consequentially more likely to have smoked in front of C more than he was prepared to admit. The Father consistently refused to give urine samples to the Department of Humans Services on the basis that they would inevitably prove positive.
Conclusion
Neither party in this case has behaved perfectly in relation to C’s interests and both have at times put their own interests above hers. Both have been willing to be critical of the other party without understanding the negative impact this could have on C. C however, clearly loves both parents and in the latest report has been unable to make a choice as to which parent she wishes to live with and would be comfortable in both households. Both parents have the capacity to meet her emotional and intellectual needs.
In weighing up the factors in section 68F(2) I have concerns about the Father’s capacity to provide best for C’s needs as a result of the following matters:
(a)The violence towards the Mother during the course of their relationship and subsequently, for which he is not prepared to accept or take any responsibility. His attitude towards her has been a hostile one and he has, I am satisfied, been intimidatory to her at times. The attempted portrayal of her of threatening his witnesses is but one example of this. The fact that he sought to defend himself and justify abuse or physical violence towards the Mother leads me to conclude that he does not appreciate how his views might reflect upon him as a role model and parent for C. Similarly his use of marijuana and casual acceptance of it gave some insight into his values and those to which he might impart to C.
(b)His hostility and denigration of the Mother and attempts to portray her as mentally ill and as a threatening and hostile person to his witnesses is an indication of how little he values her as the Mother of C, let alone as a person. Again he has no insight into how these views might detrimentally affect C. At times the Mother has shown herself to be equally lacking in insight. Nevertheless, I am satisfied that the Mother will be a better role model for C, particularly as her teenage years are before her.
(c)There is some uncertainty about where the Mother will live once the former matrimonial home is sold, but on the evidence it is equally as likely that the Father will have to move from the home as well. The Mother has not rushed into a move to live with Mr P, and I am satisfied that she will continue to make cautious decisions in this regard.
(d)Although C will be separated from day-to-day living with Colin, and during holidays if she lives with the Mother, she has the opportunity if he desires, to see him every weekend.
(e)There is no evidence that, as the Father alleged, the Mother’s health in any way prevents her from caring adequately for C.
Having regard to what orders should be made, I note the final report of Ms Weir suggested that C was not adverse to the idea of spending one week with the Mother and one week with her Father. Ms Weir however, conceded that this was an option which was proposed to her and not one she instigated. There are some problems with that option in my view,. the major one being the hostility of the parents. As C’s complaint about the present arrangements are that they involve too much moving between the parents and do not allow her a consistent and manageable pattern, in my view to require her to spend a week-about with each parent would not provide her with the stability that she is seeking. I am satisfied that the best interests of C would be met if she was to live with her Mother for ten nights from Monday night until Thursday morning the following week and then has contact with the Father from Thursday night until Monday morning.
There was little dispute between the parties as to what should happen with the holidays and special days and the orders will reflect what they have sought.
I certify that the preceding one hundred and thirty-six (136) paragraphs are a true copy of the reasons for judgment of Bryant CFM
Associate:
Date:
0
0
0