Dawson and Wright (No. 2)
[2018] FamCA 862
•29 October 2018
FAMILY COURT OF AUSTRALIA
| DAWSON & WRIGHT (NO. 2) | [2018] FamCA 862 |
| FAMILY LAW – CHILDREN – Parenting – Residence Dispute – Where the court is satisfied that children will not be able to have a relationship with their father without a drastic change – Where the mother does not give the court confidence that any change can successfully occur – Where change of residence is the only option left despite opposition expressed by the children. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth) |
| CDJ & VAJ (1998) 197 CLR 172 Darley and Darley [2016] FamCAFC 10 Dawson & Wright [2017] FamCA 1029 Dawson & Wright [2018] FamCA 266 P & D [2001] FamCA 1197 Re: David (1997) FLC 92-776 |
| APPLICANT: | Ms Dawson |
| RESPONDENT: | Mr Wright |
| INDEPENDENT CHILDREN’S LAWYER: | White Cleland |
| FILE NUMBER: | MLC | 6838 | of | 2014 |
| DATE DELIVERED: | 29 October 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 20, 23-24 April 2018 and 17-19 September 2018 |
REPRESENTATION
| THE APPLICANT: | In Person |
| THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Devine |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | White Cleland |
Orders
All extant parenting orders are discharged.
Until 31 December 2020, the father have sole parental responsibility for all major long-term decisions relating to the children C (born … 2004) and D (born … 2008) and thereafter, the parents have equal shared parental responsibility.
The children live with their father.
The children spend time with their mother as follows:
(a) Commencing on Friday 16 November 2018, during each alternate weekend from the conclusion of school on the Friday until the commencement of school on the following Monday morning;
(b) For school term holidays, from the conclusion of school on the last day of term until 6 pm on the Saturday in the middle of those term holidays; and
(c) For the long summer holidays:
(i)From the conclusion of school on the last day of the school year until midday on 25 December in each even-numbered year (and 6 pm on 24 December in each odd-numbered year); and
(ii)From 6 pm on 26 December in each even-numbered year (and midday on 25 December in each odd-numbered year) until 6 pm on 11 January in each year.
That the children spend Christmas as follows:
(a) From Christmas Eve until midday on Christmas Day in each even-numbered year with their mother;
(b) From midday on Christmas Day in each even-numbered year until 6 pm on Boxing Day with their father;
(c) From 6 pm on Christmas Eve to midday on Christmas Day in each odd-numbered year with their father; and
(d) From midday on Christmas Day in each odd-numbered year until 6 pm on Boxing Day with their mother.
For the purposes of paragraph 4 (a) of these orders, the mother (or her agent) is to collect the children from their school(s) on the Friday and return them to their school(s) on the Monday morning (or if the Monday is a public holiday, the Tuesday morning).
For the purposes of paragraph 4 (b) the mother (or her agent) is to collect the children from the school when the term concludes and return them to the father at the conclusion of the relevant period to the residence of the father.
For the purposes of paragraph 4 (c), the mother (or her agent) is to collect the children from the school and deliver them to the father’s residence at the commencement of the father’s Christmas period (more specifically defined in paragraph 5) and at the conclusion of the father’s Christmas time, he shall deliver the children to the mother at her residence.
For the purposes of paragraph 4 (b) and (c), during all term and long summer holidays, the alternate weekend time referred to in paragraph 4 (a) is suspended and shall resume during the new or next term as if it had not been interrupted by the long summer holidays.
From Wednesday 14 November 2018, the children have electronic communication with their mother each Wednesday night at 7 pm whilst they are in their father’s care and similarly, have electronic communication with their father each Wednesday night whilst they are in their mother’s care and the parent responsible for the care of the children at the relevant time facilitate such communication.
That notwithstanding paragraph 2, the father authorise the principal of the children’s school(s) to permit the mother to participate in all activities designated for parents and receive such information as the school might provide parents NOTING AT ALL TIMES that the provisions of this specific order always remains the prerogative of the relevant school principal.
The father is to engage with a suitably qualified counsellor within the father’s community area, recommended by the Family Consultant, for the purposes of assisting the children to adjust to these orders and to the extent necessary, the father is to authorise that professional to obtain information and assistance from the mother.
Notwithstanding paragraph 2, the father is authorised to obtain passports for the children without the written consent of the mother.
The order appointing the Independent Children’s Lawyer is discharged.
That, save as to issues of costs, the application of the mother filed 21 February 2018 and the response of the father filed 7 March 2018 are otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Dawson & Wright (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 6838 of 2014
| Ms Dawson |
Applicant
And
| Mr Wright |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
The relationship between C (aged 14) and D (aged 10) with their father since he separated from their mother in 2014 has been disrupted and difficult. I reject the mothers’ explanations for those difficulties. For the reasons that follow, the difficulties arose because of her conduct in deliberately thwarting the children’s relationship with their father.
The issue in this parenting case between Mr Wright (“the father”) and Ms Dawson (“the mother”) is whether there is a prospect of a successful relationship between the father and the children absent their removal from the mother.
Between early 2014 and April 2018, there have not only been regular disruptions to the children’s relationship with the father, but constant litigation as well about those and related issues. As the four year period passed, the situation deteriorated to the point that the children were resistant to spending any time with their father.
In April 2018, during an enforced break in this final hearing, and after hearing considerable evidence from the parties, interim orders were made for the children’s time with their father to be resumed without supervision or restriction. Albeit disputed by the mother, the orders were remarkable for their success given the history.
The mother now says that she has in the past, and will in the future, facilitate the relevant relationship but that statement is attended by sufficient doubt for me to reject it.
Despite what I find has been a successful resumption of the father’s relationship with the children, the mother harbours significant ill-will towards the father. She continues to maintain he has been violent to the children. She continues to assert he was violent towards her. She asserts he has no real interest in the children and does not spend positive time with them. She continues to assert he has been found to be an aggressive man and the children fear him. Her attitude has not changed.
All those views of the mother led to the various interruptions to the father’s time with the children. On the balance of probabilities, I find there is a real and unacceptable risk that attitude will continue and the disruptions will resume when these proceedings are concluded.
It is significant that despite not only interim orders, contravention applications and also final orders along that four year pathway, not much has changed in respect of the mother’s attitude.
History keeps repeating itself and as such, the finality of orders under which the parents were to equally share responsibilities for decision-making and the sharing of quality parenting time, have been unsuccessful. It is now time to find a permanent solution.
The father has shown he can care for the children physically and emotionally certainly objectively since April 2018. He has a stable family life with his wife. He has stable employment but also flexibility of time given his seniority in that employment. His relationship with the children since April 2018 has been seen to be mutually loving, caring and enjoyable. In other words, these children had missed four good years of his parenting.
If I could be convinced that the winds of change have settled that past and rectified it, an alternative proposal might be open. In my view, there is no alternative here other than to give the children the stability they deserve.
This case has been complicated and not just because of the duration since separation. Unfortunately, it is necessary to traverse the history.
The degree of difficulty in assessing what arrangements best meet the children’s future needs was increased by both parties being without legal representation, their absolute lack of trust of one another, and the desire (particularly of the mother) to focus on historical matters that did little to assist the determination.
The absence of legal representation meant that (initially) there was voluminous paperwork, much of which was unhelpful in that whilst it might have been seen by the litigants to tell their story, it was not relevant in an evidentiary sense to the issues in dispute.
I have done the best I can to sift through what the parties presented. Whilst Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”) has ameliorated the relatively strict approach to the presentation of evidence[1] so that the Court can better focus on the needs of children, ss 55 and 56 of the Evidence Act 1995 (Cth) (“the Evidence Act”) are still important. Those two provisions say:
[1] In this case, I initially ordered the rules of evidence should apply. It was a difficult task for the parties to follow that ruling and accordingly, the direction was not always strictly enforced.
55 Relevant evidence
(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2) In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
56 Relevant evidence to be admissible
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
In the process of trying to discern the facts, I have had the benefit of reading the mother’s affidavit filed 7 March 2018 even though she did not rely upon it in her outline of case document, because it was to that document, the father responded. Without reading that evidence, the narrative was meaningless.
The parties
The Father
The presented as organised, emotionally contained and respectful. His ability to describe what had happened was sound. He made appropriate concessions where necessary. His overtly-expressed frustrations about what he had endured to maintain a relationship with the children were palpable, but in my view, understandable.
The complaints about the father’s parenting were not significant. An accusation of sexual impropriety against him was, at best, implausible and at worst, insignificant. Nothing about his evidence appeared untruthful.
Whilst the mother asserted to the father on several occasions that he had “no proof” of what he was saying (and by which I understood her to mean no corroboration), his evidence was entirely plausible and consistently so.
The Mother
Although the mother maintains she has no experience with the “federal courts” and seems now mostly involved in policy issues in her employment, she impressed as well-prepared for the Court hearing.
The mother cross-examined in a logical way, showing clear thought patterns of where she wanted to go (even if some of the issues of her focus were irrelevant). When she was criticised for not having factual material for the Court about what had happened to the children after April 2018, she maintained she misunderstood what she was asked to do by counsel for the Independent Children’s Lawyer. Yet, she had prepared a final address that was very targeted and considered. I do not accept that she did not understand the significance of presenting facts; she certainly had the father’s documents and was prepared to challenge the things he said. Generally, she did not put her versions of facts when she had the opportunity to cross-examine both the father and his wife. I consider she made the forensic decision to conduct the case the way she did. I have no doubt she understood the way court cases were conducted. She has been a regular litigant in this Court for over four years.
Most of the mother’s complaints about the father’s parenting, her criticisms of him as a person, and her concerns about the capacity of the children to live with their father in the future, stem from what she knew of the father before and shortly after separation and otherwise, almost entirely on what the children have told her.
The mother’s refusal to reality-test some of the statements of the children has led to many of the problems in the father’s relationship with the children.
Overview of the Family Consultant’s opinion
The evidence of the Family Consultant in this case was carefully examined and she remained unshaken in her conclusion that the mother’s enmeshed relationship with the children meant they could not be emotionally free to have a relationship with their father. That restriction on the children changed after April 2018. The Family Consultant’s evidence about the objective evidence of change in the children is powerful.
The objective evidence is that the children suddenly became free and the results were stark and astounding when compared to their previous exhibited behaviour to which I turn below. The mother does not accept that objective evidence; I do. Her refusal to accept that evidence and her persistence in saying the children are unhappy about what is happening to them is a contributing factor to my acceptance that the Family Consultant is right that there is an enmeshment here and that the mother will not foster the father and children’s relationship.
The parties as witnesses
As witnesses, the father was a better historian. His versions of what happened in relation to contentious issues was plausible and he corroborated most of the events. The mother’s evidence was evasive and argumentative. In relation to explanations for previous orders to which she had consented, she passed responsibility on to those advising her at the time. Having regard to the consistency of the orders made after she had unilaterally stopped contact, her explanation was implausible. She called no evidence to corroborate any of her assertions. She accused experts of having been misled, (see her cross-examination 23 April 2018 in respect of Professor B) she denied simple things had occurred as observed by the Family Consultant which were not errors of memory and when the Family Consultant was asked about those matters, her recollection was vivid, clear and logical. The mother did not press other matters that she had disputed. Thus, in terms of credit, if there is a controversial issue of fact as between the parties, I preferred the evidence of the father. In this case, that situation only arises in limited circumstances.
The parties’ relationship background
The parents married in 2002. Their relationship ended in May 2014. Over a number of years during the marriage, to fulfil his commitments to his profession, the father was engaged in military activities overseas. Although the mother maintained that his absence was a foundation for the lack of a relationship between he and the children, I find otherwise. Nothing indicated that his absence precluded his involvement in the children’s lives or indeed in him having a relationship with them. The mother’s assertion was that he was significantly absent. On the other hand, the father was precise about his service overseas, down to specific dates. The mother’s broad-brush assertion was misleading.
The affair
It is the mother’s view, denied by the father, that he was having an extra-marital affair. Try as she did, the mother could not show the relevance of that disputed fact but she persisted. The father’s wife (Ms K) gave evidence and the mother required her for cross-examination. Questions were put to her by the mother about when her first marriage broke down, the commencement of the relationship with the father and something to do with the nature of her relationship with her own adult daughter. The mother said that these were all relevant to the nature of the problem in the relationship between the children and the father. I rejected that assertion on the basis of relevance to the issues in dispute.
In the first tranche of the trial, rather than the mother’s endeavour to obtain and lead evidence about the father’s relationship with the children, this approach about the “affair” shed light on the mother’s unhappiness and how she saw she had been ill-treated by the father. She persisted with it in the second tranche. That shows, in part, why the children were not free to have a positive and meaningful relationship with their father.
An assault; April 2014
A second difficult matter was that in her statements to the Family Consultant as well as her trial affidavit (see [28]) and indeed throughout the hearing, the mother said that the father assaulted her in April 2014 which was around the time of their marriage coming to an end. She produced photographs of her bruised body.
The mother said that on 19 April 2014, she confronted the father alleging an affair as a consequence of which she said he was so enraged that “he seriously assaulted me causing multiple injuries and bruising to my upper and lower part of the body, back and stomach”. She then said that despite her requests that he leave the home, he refused and came and went as he pleased.
At [24] of the father’s affidavit, an entirely different perspective emerged. He said the mother had been drinking alcohol this night and was verbally and physically aggressive towards him. He said, having been accused of having had an affair, the mother started hitting and pushing him, he being in bed at the time. He said he “defended” himself.
In his affidavit filed 7 March 2018, (upon which he did rely) the father gave an extensive description about what occurred. He said that he was asleep and the mother assaulted him. He described her as being heavily intoxicated, slurring her words and being unsteady on her feet. He said she punched him in the face, scratched his leg and attempted to claw at his genitals saying “she’ll never get these”. He said he did little more than defend himself against the blows and at some point, they fell off the bed and in doing so, knocked the bedside light from the bedside table. He went on to describe how he started to call the Police but the mother begged him not to do so for fear of losing her job. He then gathered a few items of clothing and attempted to leave, but she blocked his path and begged him not to go. He then left the home driving to the nearby railway station after which, the mother telephoned him asking him to come home because it was Easter and the children would expect him to be there in the morning. He returned and slept on the floor of the lounge. None of this was challenged by the mother bearing in mind she raised it in the first place. There was considerable discussion as to its relevance given final orders were made in September 2014. As family violence is an important issue in determining the appropriateness of a parent, it was of some relevance. Counsel for the Independent Children’s Lawyer objected to its relevance but because this incident underpinned the mother’s view about all of the things the father was said to have done in a violent and/or aggressive way thereafter, I admitted the evidence.
The versions of this 2014 incident could not be more stark. I find that the father’s version is more probable given that:
a)He left the house and returned only when requested and then slept on the floor (none of which was challenged); and
b)He said the mother asked him not to report the matter to the Police because of her employment.
That last part of the evidence is at least corroborated by the mother to the extent that the matter was not reported, although she had a different version as to why that was so. The mother said she did not report it to Police because she was “in shock” and she thought she was “protecting the children”.
On the father’s description, it seems more probable than not that there would have been signs of injury arising out of the scuffle. The mother’s view was that her evidence was corroborated by medical evidence.
Dr L
Seven days after whatever occurred between the adults, the mother attended Dr L. The doctor was required to give evidence.
Dr L told the court that on 26 April 2014 at 8.12 am, the mother came to see him in his clinic. He said that she explained that her husband had abused her. He noted that the mother said that seven days before (19 April 2014), she had asked the father to leave the house and he then physically assaulted her. The doctor said she had told him that she had presented to a counsellor on 24 April and also contacted lawyers. She told him that she had been advised by her lawyers and the counsellor to attend a medical practitioner to document her injuries.
Dr L said that he noticed bruising in various parts of the mother’s body and he was able to describe them because he had written them down. He said she was tearful and emotional and told him that her husband had been having an affair.
Unsurprisingly, Dr L had no independent recollection of the consultation and could not, he said, comment on the cause of the injuries or when they occurred.
Undoubtedly, something happened to the mother because of the corroboration of injuries by the doctor. However, the doctor was not asked any questions about the consistency of the observed injuries with the nature of the allegations. He could not have been asked that because all the mother told him as that there was “abuse” by the father and that he had “physically assaulted” her. The latter statement is a conclusion rather than a fact.
Finding on the assault
The Court decides matters such as this, and others to which I turn below, on the balance of probabilities. That is, which version is more probable whilst at the same time, taking into account that the onus of proving such an accusation lies with the accuser. There is no doubt here that there was a physical altercation. Each accuses the other of being violent. The medical evidence does not enable me to find whether the mother’s injuries were consistent with an attack. The mother did not challenge the father’s versions of him being in bed, her having been drinking, or that there was an argument about an affair.
On balance, I could not find that the father “assaulted” the mother or indeed was violent to her in the sense of family violence as defined in the Act.
The immediate post-separation period
After the parents separated it seems that arrangements for the father to see the children were difficult to make. The mother said that the father’s time was to be “supervised” because of his violence. That was a high-handed, unilateral, and unnecessary decision. Nothing substantiates a claim of violence. The mother said the children told her that they were hit by their father but his evidence was entirely the opposite. Suffice to say court proceedings had to be issued by the father as late as August 2014 to stabilise things. Thus, the four month period after separation saw the first of the disputed periods of the relationship.
When the matter came before the Federal Circuit Court, one might have concluded that if the father was violent towards the children let alone the mother, such as to require his time with the children to be supervised, that would be foremost in the minds of everyone and an issue of serious concern to the court. However on the day, demands for the father to be supervised vanished. Thus, on 17 September 2014 and at a time represented by counsel, the mother agreed to orders drawn by consent of both that provided standard and comprehensive time between the father and the children including half of the school holidays from the commencement of the 2015 year.
The parents agreed on equal shared parental responsibility. They agreed that the children should live with their mother and have time with their father on weekends and holidays. Those orders must mean that the mother was saying to the court that the father had the capacity to care for the children including during overnight time.
Despite the ugly breakup between the parents only months before, there was no order made under ss 68B or 114 of the Act in relation to injunctions concerning the parties’ respective behaviours towards each other or the children.
Paragraph 4 of the minute attached to the orders made by the court in September 2014 drew into those orders ss 65DA(2) and 62B of the Act relating to the “particulars of obligations” created by the orders. The printed form attached to, and part of, the order relevantly said:
You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive obligation includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with the orders. For example, where the order states your children are to spend time with another party, you must not only ensure that the children are available but also positively encourage them to go and do so. There are agencies in the community that can help you and your family to adjust to and comply with the order.
For the reasons that follow, I am satisfied that the mother did not take that obligation seriously.
A history of contravention
It is not controversial that on a number of occasions, the father brought contravention applications. Some of those related to lack of telephone contact with the children whilst others related to his time being stopped by the mother.
The various applications predominantly arose out of actions by the mother and in hindsight, the main disruption to the father’s time with the children revolves around two or three incidents.
Christmas 2014
The father was on a work trip in December 2014 and was to have the children that Christmas. The mother took the view that because he had refused to provide his new address, he had contravened the 2014 orders. Her evidence was that she sought advice from a solicitor and “due to concerns for the children, their safety and (the father’s) threats to take the children overseas, I did not allow him access that Christmas”.
Paragraph [8] of the orders of 17 September 2014 required each party to keep the other advised of the current residential address and telephone numbers and advise of any changes not later than 14 days prior to the change via email and/or text.
A failure to comply with that part of the order could not justify a refusal to provide the children to the father. I do not accept that the mother was advised by a solicitor as she described. Nothing corroborates that she was. The mother said that she sent a message to the father saying he could not collect the children until he provided his address. Nothing indicated in that message concerns about his threats to take the children overseas and their safety.
The father responded to the allegation and said that he notified the mother’s lawyer “within the agreed timeframe” and that was as soon as his tenancy had been confirmed. Indeed, he said the mother’s lawyer acknowledged receipt and the lawyer had attempted to contact the mother unsuccessfully.
This unilateral action of the mother was consistent with the approach that she took during the four months after separation until the orders were made in September 2014 but it set the tone for what was to come thereafter.
Having been refused contact with the children that Christmas, the father and his wife attended the mother’s home on 2 January 2015. The mother described him attempting to collect the children, repeatedly bashing on the door and the children screaming and running upstairs and hiding under their beds. The father said that he was unaware of any that because there was no answer.
I refer back to paragraph [4] of the minutes of the orders of September. The mother clearly did not comply with the orders but more importantly, her actions exposed the children to a frightening and unnecessary episode.
The Mother described the father’s application as the start of ongoing and vexatious litigation amounting to domestic violence, that is, it was designed to control, harass and cause her financial hardship and emotional trauma. I reject that view. The mother had positive obligations under the September 2014 orders to make the relationship work. The father denies not providing his address and the evidence supports his assertion as the mother had the opportunity to corroborate that the advice she received but failed to do so. She knew it was an issue in the proceedings because she saw it as an indication of family violence. I reject the suggestion that the father was vexatious or indeed “committing domestic violence”.
The post-Christmas 2014 period
Subsequently, and said to be from the period when the father eventually got the children, the mother’s solicitor wrote to him alleging he had hit C on the head and bottom, had excessively consumed alcohol and had allowed his partner to walk around only in her underwear. She alleged he constantly yelled at the children to keep quiet, with little or no interaction with him during his time with them.
The father’s only response to the mother’s accusation was that it was untrue but regardless, the issues faded into insignificance by what happened on 3 February 2015.
Orders 3 February 2015
On 3 February 2015 before Judge Bender, the father had three contravention applications resolved by consent orders. Bearing in mind it is the order of the court rather than the agreement of the parties that is relevant (see Darley and Darley [2016] FamCAFC 10), not much can be drawn from what was suggested by counsel for the Independent Children’s Lawyer that there was little significance in the contraventions because they were compromised. The more telling detail from the order of 3 February 2015 (and to which both consented) was:
2.The Respondent do all things reasonably necessary to facilitate the children [C] born … 2001 ("[C]") and [D] born … 2008 ("[D]") spending make-up time with the Applicant as follows:
(a)From after 1.30pm Friday 30 January 2015 to 5.00pm Sunday 1 February 2015 (with the Applicant to collect [C] and [D] from their residence at the commencement of their time and return them to their residence at the conclusion of their time); and
(b)For a further 3 days on dates during the March and July school holidays (with the Applicant to nominate in writing by no later than 28 February 2015 a total of 9 potential dates and within 48 hours of receiving that list the Respondent to select 3 days from that list and notify the Applicant of those dates by writing).
3.Both parties encourage [C] and [D] to spend time with the other parent.
4.Both parties refrain from speaking about the other parent to [C] and [D] or in their presence in a derogatory, offensive or demeaning way.
(my emphasis)
Thus it is not the “dismissal” of the contravention applications that matters, but the mother’s acknowledgement in paragraphs [2] to [4]. Paragraph [3] should be seen as unnecessary having regard to what is already set out in ss 65DA(2) and 62B of the Act.
Further and subsequent contraventions
The 2015 orders did not resolve the parties’ dispute. On 4 May 2016, the father filed further contravention applications returnable on 11 July 2016. These were said by the father to have arisen out of a number of incidents. They included a denial of his time on Christmas Day, a refusal to allow telephone contact and also non-compliance with property orders. It is the former that is concerning. This was also a time of extraordinary upheaval in the children’s lives because of the behaviour of their mother.
In January 2016, when the children were with their father, the mother was unable to contact them because, in her view, the father had removed the sim card from C’s telephone and replaced it with another. This was the subject of cross-examination and the father disagreed with the mother’s view. That does not matter as much as the fact that when she asked C when he contacted her about a week after the sim card was replaced, she asked him if his father knew that she had the number which C had no doubt given her. She said C sent a text to her “better not tell him he will kill me”. I find in the circumstances that it is more probable than not, she discussed with her son why telephone communication had not been occurring and drew the inference that the father had deliberately changed the sim card to avoid her having contact.
The father’s version was that there had been a problem with the sim card and that he told C that he could ring his mother at any time, but he also told the mother that she could also call at any time. He observed that C had that telephone number for the new sim card and access to the mobile telephone so the curious question is why C did not contact his mother. Arising out of discussions with C in which she accused the father of deliberately preventing her from contacting C, he then became embroiled in the parental dispute.
In her affidavit relating to this January 2016 period, the mother said that C told her that if the children’s room was not to a military standard, they were hit on the head and bottom, made to sit at the table for up to an hour if they refused to eat their meal, not allowed to play in the house as they made a mess and were left in the care of their grandparents when the father went to work.
Apart from the father denying any such incidents occurred, Ms K was not challenged about what had occurred. The mother described the father as a very rigid man who “very much adheres to the principles of discipline and order”. No question was put to Ms K along those lines but I asked her to describe to the Court whether that was an apt description. She denied it emphatically and went on to describe him in loving and caring terms.
The children stay with their father for an extended period
In this same period of time, January 2016, the mother had a problem with alcohol and the children remained in the father’s care for longer than any contact orders provided.
The mother consumed an enormous amount of alcohol to get to a blood alcohol reading which was in excess of 0.3. She did not dispute that. The father described the mother as contacting the children when they were in the shower. When she called, she was abusive and insulting.
Significantly, in January 2016, a report was received by the Department of Health and Human Services (“the Department”) in relation to the mother’s mental health and excessive alcohol consumption. The father’s uncontroversial evidence was that the mother was drunk, abusive and unrelenting. He called Police for assistance and it seems the mother was hospitalised after they found her to be “very emotional and heavily intoxicated”. She was detained until the following day. According to the report of the Department, her release coincided with her agreement to “re-engage with Community Mental Health supports”. At the time that all that occurred, the children remained in the care of the father.
In January 2016, the Department became involved and spoke to at least D by telephone. They required the father to bring the children down to M Town for an interview. All of that gave rise to some of the matters that are set out in the Magellan Report prepared by the Department which was not at all flattering to the mother. However, it was the mother who kept asserting to the father that he had been present at M Town when the children were interviewed. I have presumed that what she was suggesting was that the children were influenced by their father’s presence. The objective evidence however, and the evidence of the father, was that he was not present when the interview took place. He was certainly present with D at his residence when the Department spoke to her on the telephone but when questioned about his involvement, his response was that he had no idea what she was being asked because she had the telephone to her ear.
The curious cross-examination about this issue was perplexing. Nothing in the Department’s file indicated that the father had manipulated the children and the mother’s own admission was that she was in a very bad state.
The Department took the view that the mother’s engagement and progress was thereafter positive. However, during the problem period, the Department was of the view that the children had been exposed to her problems and she had been attempting to influence C in the parental dispute. C told the Departmental representative in early 2016 that he was frustrated and exhausted by his parents’ relationship. He referred to his parents’ fighting as getting “boring and annoying”. He wanted his parents not to go to court, to build a relationship with each other, to try and be friendly “for their children”. As for their father, the children did make “disclosures” about physical discipline from their father and those were the subject of investigation.
The Department was concerned about C’s emotional health. Despite that, the children went back to the mother but that did not stop the on-going problems. These included further allegations of being denied telephone contact.
Again, the orders arising from these contravention proceedings are indicative of the parties’ positions because they compromised and Judge Bender adjourned the “matter” to 11 January 2017. At the request and consent of the parties, on 11 July 2016, her Honour made the following orders:
[1]The children Orders of 17th September 2014 be varied as follows (“the Orders”):
(a) Order 3(n) be discharged.
(b)Each parent be able to telephone the children once per day when they are in the care of the other parent by telephoning the telephone owned by the child, the telephone land line of the other parent or mobile telephone of the other parent. Each parent facilitate such telephone call and where practicable such call occur in the absence and hearing of the parent with the children.
(c)Each parent be able to email the children when they are not in their care. When they have an email address. The children be able to telephone and email either parent at any reasonable time and the parent where applicable facilitate such communications.
(d)The children spend time with the father from 4:00pm Christmas Eve until 4:00pm Christmas Day 2016 with the Christmas Day cycle otherwise remaining pursuant to the Orders.
[2]The Father’s Contravention proceedings be adjourned until the 11th day of January 2017.
[3]Unless there is any further alleged Contravention proceedings issued prior to the 11th of January 2017 the Contravention proceedings be dismissed without the necessity of appearance by either party with no Order as to costs.
…
[6]All other Orders in respect to the children made on 17th September 2014 remain in full force and effect and cannot be subject to any variation unless by written agreement or SMS by both parties.
January 2017
On 6 January 2017 (with only days to the next return date) the father filed another contravention application. This was about telephone contact contemplated in Order 1(b) (as set out above) from only six months before. Her Honour adjourned everything then outstanding to 21 March 2017 hoping all would settle down; it did not.
The allegations of sexual impropriety and physical assault
Before that next hearing, on 10 February 2017, the mother filed an initiating application. This application sought that the father’s time with the children be supervised. It is also uncontroversial that this proposed order arose out of two (possibly three) incidents. They were detailed in the affidavit filed by the mother on 10 February 2017 as follows:
[268]At the conclusion of Term 2, Friday 24 June, 2016 (the father) collected the children from the [Suburb N] campus. (The father) was later seen by [Ms O] in Coles in [Suburb N] with the children. [Ms O] witness (sic) (the father) yelling at [D] in the supermarket, grabbing her violently by the wrist and dragging her around the shop. [D] was said to be extremely upset, crying, red faced and distressed. [Ms O] is prepared to give evidence in relation to this matter.
[269]In June 2016 [D] told me that whilst she and her brother were staying in (B) with their father he had a sore back. (The husband’s wife) was also present at the address at this time. (The father) went upstairs to have a bath. (The father’s wife) was supposed to run the bath for (the father).
[270](The father’s wife) sent [D] up to run the bath for (the father). When she entered the room (the father) was naked with an erect penis. [D] was made to run and prepare the bath whilst (the father) stood naked with his penis erect supervising the preparation of the bath.
[271]The aforementioned information and supporting documentation was provided to DHS in June 2016.
(original emphasis)
Ms P
Interpolating here, no witness by the name of [Ms O] was presented by the mother. However, the person referred to as [Ms O], seems to have been Ms O.
Ms P swore an affidavit on 19 February 2018 prepared by the mother, in which she said that in July 2016, she was at Coles in Suburb N and saw an incident between D and her father. She made a statement to the Police but not until about February 2018. She referred to 2017, but that does not appear to be correct. In any event, the description given to the Police made reference to the fact that Ms P thought the incident to which she was referring was in July 2016 and she saw the father with D in a supermarket “forcefully dragging her along” and the child “screaming” with the father refusing to let go. No indication was given by Ms P as to what she did other than that she sent a text message to the mother and they later spoke about what had happened.
Looking at the sequence of events, one wonders why such an allegation was not brought to the court’s attention until the mother put it in her affidavit in February 2017. However, there is a more significant issue. Notwithstanding the mother said that she was relying on the evidence of Ms P, she later said that this witness “for a variety of reasons” was not coming to Court.
The text message attached to Ms P’s affidavit shows that she advised the mother on 15 July 2016 of what she had seen. Just why this witness was unavailable for cross-examination, I am unaware. It is a significant piece of evidence having regard to the fact that it seems to be an allegation of violence against the father. As the mother’s case is that the poor relationship between the father and the children arises from his violence and that it is long standing, this witness was crucial. No request was made for a subpoena to issue to her and that was very odd having regard to the fact that the mother had no hesitation in seeking the Court issue subpoenae in respect of other witnesses including professionals. It is also perplexing that the Police seemed to have had no difficulty in interviewing and obtain a statement from Ms P.
As the mother linked this incident in [Suburb N] in July 2016 to the whole of the modus operandi of the father, I consider the evidence needed to be tested if it was to have any probative value. In the circumstances and for similar reasons about the importance of allegations being properly proved, I give this evidence no weight.
The hearing on 21 March 2017
On the return of the parties’ respective applications before the Federal Circuit Court on 21 March 2017, a further allegation was raised by the mother. This allegation took up a significant part of the present hearing. The mother’s evidence was:
[11]In February 2017, I ceased time between the children and the father. On 16 February 2017, [D] told me that she had refused to go with (the father’s wife) to get her nails done, and the father had dragged her across fake grass and rocks to (the father’s) wife’s car.
…
[13]([C]) told me that he had heard [D] screaming from the bathroom of (the husband’s wife’s) house.
[14]On 28 February 2017, I attended at the Melbourne SOCIT offices and provided the statement to Police, and the next day both children were VARE interviewed.
Judge Bender on 21 March 2017 transferred all proceedings to this Court but significantly, her Honour made this order:
[5]All time between the father and [C] and [D] pursuant to the orders dated 11 July 2016 be suspended.
Although no reasons were published for that last order, the transcript which was provided by the parties indicates that within a very busy list, Judge Bender said the following:
I am going to make an order for the appointment of an Independent Children’s Lawyer and, given the seriousness of the allegations made – and I am not in a position at this time to make any findings as to the veracity or otherwise, and given that all those allegations are currently being investigated by both the police and the Department of Health and Human Services, I believe it is only appropriate that I make an order suspending all orders for time between the father and the children until the Family Court is in a position to properly examine the matter.
The transcript is sufficient to indicate her Honour’s reasoning.
The Department was then requested by this Court to provide a report (otherwise called a Magellan Report) under s 69ZW of the Act. Section 69ZW(5) of the Act requires the Court to admit into evidence any documents for information provided in response to the order upon which the Court intends to rely. The various reports of the Department were not only trawled over but the lead author of the report was required for cross-examination. Accordingly, I admitted into evidence, the reports of the Department particularly dated 22 June 2017 and 7 July 2016.
When the Department came to write the Magellan Report for the Court, they were aware of the allegation of physical violence and sexual impropriety against the father. C had also told the Department that he did not want to have contact with his father.
The Department interviewed C’s counsellor and D’s counsellor and obtained their views both of which were negative about the father. The Department spoke to the mother’s psychologist in June 2017 and he indicated no significant concerns about the mother’s mental health. The Department concluded that as the father was not seeing the children and that as they were unwilling to see him, any reintroduction of contact with the father should be supervised and limited. They added however that there was no further role for them as there was no identified unacceptable risk of harm in the care of the mother. They thought that both parents needed to engage in professional services.
The evidence of Ms Q
Ms Q from the Department gave evidence at the request of the Independent Children’s Lawyer but her evidence did not advance the matter at all. The lack of concern for any protective issue and the fact that the Department neither intervened in the proceedings before this Court nor took proceedings in the Children’s Court, must mean that whilst the children were articulating their views, the Department did not (and could not) delve deep into why their statements were being made. They were aware that the police had taken no action against the father.
New contravention applications
Consequent upon the Department’s report, the parties came before Johns J on 28 June 2017. The father had three extant contravention applications before the Court.
They alleged that the mother did not facilitate telephone contact in February 2017 which proceeded the suspension of time by the orders in March 2017. They had been filed before the March orders so it is difficult to criticise the father for some sort of vexatious or unnecessary approach. Judge Bender transferred “these proceedings” so the contravention applications were included. In discussion before the Court on 28 June 2017, it seems that the father was convinced to withdraw his applications on the basis of a substantive parenting hearing but that left his time unresolved.
Johns J made an order that the parties attend upon psychiatrist Associate Professor B for a psychiatric assessment. Her Honour then turned her attention to the fact that the father had not spent any time with the children for some months. Her Honour made an order that the father spend supervised time with the children on an alternate weekend basis as may be arranged by the Independent Children’s Lawyer with a professional supervisor.
It is the reasoning behind those orders that is important here. The three main issues which had given rise to the father’s time being stopped by the mother were the incident described by Ms P in July 2016, the sexual impropriety allegation against the father and a February 2017 allegation of the father dragging D and injuring her on a contact weekend to which I return below.
With that context in mind, Johns J (in Dawson & Wright [2017] FamCA 1029) made the following statements:
[9]The issue that has emerged which requires determination by me is the question as to what, if any, time the father should be spending with the children pending the preparation of the report and the ability of this Court to hear and determine the parties’ competing parenting applications, it now being the position that each party seeks orders that the children live with them, and in the case of the mother, that they spend no time with the father, in the case of the father, that they spend supervised time with the mother.
…
[11]What is sought by the father is that there be some reintroduction of his time with the children. As a result of the allegations as to his conduct made in February 2017, that is, the sexually inappropriate conduct alleged to have occurred between he and [D], as well as allegations of physical abuse, orders were made in March 2017, the effect of which was to suspend his time with both children.
[12]Up until that point, he had been spending alternate weekend times with the children as well as half holidays. What is sought by the Independent Children’s Lawyer is that the father resume spending time with the children, albeit on a supervised basis, that time to occur on alternate weekends with the assistance of a professional supervisor. It will be limited to daytime time only and, given the nature of the availability of supervision services, will likely be a period of a few hours once every alternate weekend. The mother opposes the resumption of that time.
…
[16]I have already identified the parties’ proposals and the issues that present themselves in this matter, and I have identified the central conflict between the parents as to the conduct each alleges the other has engaged in. Those matters are traversed in some detail in the Magellan report of 22 June 2017. That report provides the history of the parents’ engagement and the children’s engagement with the Department. There is an investigation of the allegations that emerged in February 2017.
…
[21]In my mind, it is significant that what emerges from the communication with the school is that there were no significant concerns in relation to the children by the school. At page 7 of the report, it is noted that the school reports that whilst there are some behavioural and academic issues in relation to [C], those matters are being managed between the school and the mother, and no significant concerns were noted in relation to either parent. In the conclusions to that report, the report writer notes the views maintained by the children currently that neither child seeks contact with the father due to his alleged behaviour.
[22]However, it is also noted in those conclusions that there is a likelihood that the children have been influenced in part by the mother’s attitudes towards the father due to the highly conflictual relationship between them and given the fact that the children reside in her primary care. As to the allegations of sexually inappropriate conduct, the Department notes as follows:
In relation to a further allegation of the children being exposed to sexual harm…[D] has made no disclosures of that nature when interviewed by the police.
[23]Whilst it was noted that [C] had reported that he had observed the father naked and with an erection, it was considered that that behaviour, whilst inappropriate, is seen to be what might be described as a one-off incident. It is observed that there is no corroborating evidence to suggest significant sexual harm, i.e., a pattern of grooming behaviours, repeatedly exposing the children to inappropriate sexual material or the like. As such, significant sexual harm has not been substantiated at this point in time.
[24]As to the allegations of physical abuse, whilst there had been a police investigation into the allegations of such abuse of [D] by the father, I am informed today that the police have indicated to both parties that they do not intend at this time to pursue criminal prosecution against the father.
It would seem the reference to the sexual conduct although described as being reported by C, was intended to be D.
Her Honour concluded by saying:
[27]There have been a raft of allegations made by each parent against the other since the final orders were made. Nonetheless, those orders have continued. The orders as proposed by the Independent Children’s Lawyer will ensure that the children are protected from the risk of harm, both physical and emotional, whilst in the father’s care. I am satisfied that the orders as proposed are appropriate and in the children’s best interests to ensure that they have the opportunity and ability of resuming their relationship with their father in a protected and safe environment.
The Father’s time under “supervision”
What then followed was the father’s time being supervised by a professional service. It is unclear what the supervisor was endeavouring to protect the children from. The supervisor was Ms H. The mother had Ms H confirm that when she presented with the children, they were told to behave properly. Ms H thought the mother was affectionate to them. At the conclusion of the time, they were seen to be affectionate towards her again.
When the children were presented to their father, C was almost entirely uncooperative. He was described by Ms H as “uncomfortable” about being there, but my very clear impression is that he was just being rude. This was not behaviour of a normal teenager. D was resistant to any enthusiasm exhibited by her father. Despite the consistency of rejection of their father and opposition to attending, the father pressed on and the supervisor permitted it to happen for some weeks.
A fair reading of the judgment of Johns J makes clear that the February 2017 allegation of physical force against the father had been examined by the police and they had chosen not to do anything further about it. In relation to the allegation of sexual impropriety against him, her Honour was satisfied that that allegation had not been properly or fully investigated and was of most concern. Needless to say, Johns J had decided that time should be resumed but it is not clear what the supervisor understood was her role. Eventually, attempts at this supervised time were stopped but not until several visits had taken place. Importantly, it was the mother who made the decision to terminate it. In my view, it was folly to have the relationship repaired in that way, let alone supervised, when there was no clear understanding of what the problem was. That conclusion can be drawn from the reasoning of Johns J. Her Honour was expecting protection from harm but the supervisor did not appear to know of what.
The sexual impropriety issue
In the report of the Department as to their investigation, the following is found:
In relation to a further allegation of the children being exposed to sexual harm…(the father) being naked with an erect penis in June 2016 – [D] has maintained when speaking with Child Protection that she observed (the father) naked when she was running a bath due to him having a sore back and [C] has also reported that he observed (the father) naked with a “stiffie”. [D] made disclosures of this nature to police when interviewed.
The Department’s view was that there was a plausible explanation for what had occurred and “significant sexual harm” had not been substantiated.
The mother said to the Court in April 2018 (the first tranche of the proceedings) that her concern was not about any sexual impropriety but rather that the father ought not walk around naked in front of the children. No evidence presented to this Court makes any mention of D observing “an erection”. She certainly refers to seeing her father naked whilst she was drawing a bath for him. The father denies such an event occurred and supports this with medical evidence.
In her evidence, Ms K (the father’s wife) said that what was detailed by the mother as reporting D, and indeed D telling authorities, did not occur. She said that when this was said to have happened, it was school holidays and the father “suddenly and unexpectedly” had a problem with his back. She said he could hardly move and was experiencing a lot of pain so she took him to the hospital for treatment. She said the children went with them. She said that at no stage did she or the father send D upstairs to run a bath. She said that at no stage was the father naked in front of D. She said that the father was downstairs when his back problem occurred, he did not have a bath and she was present at all times in the house.
This allegation did not surface for a considerable period of time after it was said to have arisen. The evidence about the back problem was corroborated by a medical report. No questions were asked about that by the mother. There is no evidence by the mother about C’s observation to the Department concerning a “stiffie”.
D was asked by the Family Consultant Ms R about her father in an interview. Ms R described D “at the outset in a rush of words” setting out her perception of the sexually inappropriate conduct as her father being “inappropriate” and she advised that “sometime in 2017”, her father had made her draw a bath for him due to having a sore back and that he “made me see him naked and his penis was showing”. Accepting that this incident was said to have occurred in 2016, nothing turns on the fact that D referred to 2017. Her perception of time was thought by the Family Consultant not to be of significance, because having regard to the language that D used, she would not have understood what she was saying. The word “erection” was not used and in Ms R’s view, D would not have understood the sexual connotation in any event.
The Department did not see the issue as troubling and in my view, having subjected themselves to cross-examination, I accept the evidence of the father and Ms K. I am confident that there is no substance to the allegation. The question is why it was said at all.
The February 2017 allegation
The second reason to stop the father’s time arose from D being said to have been dragged by the father. The mother took D to Dr S (the family doctor) at the end of a school day on the second day after the father’s contact weekend had concluded.
Dr S
Dr S was required to give evidence. He had also made a statement for the police investigation into this incident. He conceded that there was a difference in the language that he used with the Police, although in my view, not much turns on that. It is unclear to me whether the mother told him of the allegation, and D confirmed it, or whether, as the mother would have it, D told him her version. Either way, D did not mention the circumstances under which her injuries occurred. Dr S described what he saw as minor and probably not warranting a medical appointment, but he thought that the mother had attended for the purposes of documenting the incident.
Doing the best he could, the Doctor thought the injury occurred by the father trying to get D into a car forcefully. No mention was made of the child falling on the ground and being dragged across fake grass and rocks.
The Police involvement
Presumably because the mother wanted to document this incident, the Police then became involved and that led to Detective Sergeant T being required to give evidence. I found Detective Sergeant T a thoughtful and thorough witness. He set out all of the investigations that he had undertaken and after having concluded those, his superior officer did not authorise a prosecution. I am not surprised.
The mother was not present at the father’s home so her description can only be limited to what she was told by D. In my view, having regard to the fact that the Police have interviewed not only a number of witnesses but also both children, the father’s version of events of that day is more plausible. I find on the balance of probabilities that his version is correct but it is necessary to detail how intensive the Police investigation was.
The facts surrounding the incident
On the father’s weekend in February 2017, Ms K went to work in her business at around 9.00am. She did not return until 4.00pm or shortly before then. The father’s unchallenged evidence is that the children and he went swimming that day and they showered afterwards in the change rooms. As will become relevant because of C’s assertion of what he heard, they did not shower at home that day. Accepting that, there was no reason for C to be having a shower later at home. It was said by C to the Police that he was in the shower when he heard D screaming.
Ms K told the Court that she returned home around 4.00pm knowing that she had guests coming for dinner. D had apparently either been promised or desired, to have her nails painted that day. On Ms K’s arrival, D asked to be taken to the nail technician and although at first resistant, Ms K agreed. She said that the father removed D’s seat from his car and put it in Ms K’s. She said D went excitedly and willingly into the car and she drove to the nail technician which was about 15 minutes away.
The Police interviewed the nail technician. She recalled an adult and child arriving around 4.30pm, noticed no injuries on the child and there was no sign of distress or unhappiness in the child. She painted D’s toenails because, as Ms K said, D was to go to school on the Monday and it was not appropriate to have her fingernails painted.
Whilst Ms K took D to the nail technician, the father took C to a car racing venue. Both of them were under pressure for time because of the impending arrival of their guests. The father said there was no suggestion of any problems with C that day and nothing in the evidence suggests there was.
Oddly however, C told the Police that he had heard D screaming whilst he was in the shower. The Police seemed to reject that version as implausible having regard to the location of the land and house. More importantly, as mentioned earlier, I have the father’s evidence that C did not shower at the house. Significantly also, there was a very limited period of time during which Ms K and the father were present together before they went their own separate ways with the respective children.
Both the father and Ms K said that they observed no injuries on D and Dr S was not able to tell the Court how they could have occurred other than there was some force applied to the child’s wrist and hand.
How the injuries occurred, minor or otherwise, and when, remains a mystery, but the sequence of events and the objective evidence of both Ms K and the nail technician, convince me that the version given by the mother of what D told her, did not occur. The fact that two days later, D is said to have told Dr S that she was forcefully put into the car, is less elaborate than the mother’s version of D being dragged across fake grass and rocks. On the unchallenged part of the father’s evidence, the opportunity for this to occur could only have been limited. The nail technician saw no distress and observed no injuries in circumstances where she had D right in front of her.
I am satisfied that there is no basis for the allegation against the father.
The evidence of the mother
Another issue which the mother pointed to as an example of deleterious actions of the father in relation to his relationship with the children, concerned schooling.
The orders of 12 May 2015 had a notation added to them that the parties had entered into a child support agreement. By law, that agreement took the parties into a private law area over which the Child Support Agency had little involvement other than collection. The Court record shows that the child support agreement provided for the parties to equally pay school fees at a private school. In an application filed by the mother on 18 October 2017, she sought what appears to be an order that the father pay outstanding school fees and “resume all arrangements set out in the binding child support agreement”. To that application, the father filed a response on 3 November 2017 in which he sought that the child support agreement be set aside.
The return date of the parties’ dispute was 11 December 2017 on which date, the matter came before Thornton J. The Court record shows the parties arrived at a consensual arrangement that each was to do everything to enrol the children at a particular school and otherwise, all extant applications were adjourned to the Senior Registrar’s list.
Whilst undoubtedly there was some dispute between the parties about the child support agreement and the school fees, the matter was resurrected by the mother as relevant “due to the father failing to pay his share of the children’s school fees”. This, she argued, meant the children had to be removed as she could not pay the fees herself. She said the children settled into their new schools in 2018. It is not clear why, if there was a binding child support agreement, the mother did not do something about it other than compromise the position in December 2017.
For the purposes of the parenting proceeding however, these children must have been told by the mother of the circumstances under which they were changing school. In cross-examining the father, the mother challenged him as to why he had not spoken to the children about it. The father thought that doing so was not appropriate because he had not been permitted to visit them. The evidence of the supervisor of the children’s time, Ms H, recorded that on 16 December 2017, the mother told her that the children had had counselling because of the new schools because the father had not been paying the school fees. Ms H noted that the mother said that both children were not happy with the change of schools.
When C was interviewed by the Family Consultant in February 2018, he told her that he had settled well into the new school and had made a number of new friendships. Thus, the transition had been smooth. Contrary to his mother’s view, he said that he had been “excited” about changing school as he had felt his previous school was “way too expensive for the education he and his sister had been receiving”. He told the Family Consultant about the amount of money it had cost and the “poor service” he had received.
Those matters all indicate that C at least, had been involved in the adult issues although the extent of any specific conversation with the mother remains unclear.
In her cross-examination of the father, the mother put to him a number of questions about what he had paid, noting that in addition to the school fees, he had to pay incidentals. He observed that the receipts that she had sent him included things outside of the school-related activities. He told the Court that as a result of the dispute about his obligations, he stopped paying and the school contacted him and said that if all of the money was not paid, the children had to be removed. The mother asked him about the impact on the children and he readily acknowledged they would be upset.
Whilst it is unclear what the mother told the children, and clearly the father told them nothing, based on the evidence of Ms R, I find that it is more probable than not that the mother told them they were being removed from the school because their father had stopped paying for them.
The Mother involves the children
In respect of the accusation against the mother that she has involved the children in the parenting dispute, her own evidence confirmed that she had. At [41] of her affidavit, she said she regretted that they had become so aware of the dispute and accepted that she had “overly involved” them in the dispute. She said that they had been “too aware” of her views about the father. She said because of what had happened at separation, it was extremely difficult to hide her fears and concerns at the family violence the father perpetrated towards her, the children and in front of the children. The evidence does not support the conclusion that the father was violent towards her or the children. The mother did acknowledge that for the period of three months after separation, things were not at all good. She said she regretted that the children had been give too much information about the court proceedings and what orders she had been seeking. She thought that she was “reassuring” the children that what she was doing was in their best interest. That “reassurance” was damaging.
I do not accept that her description was confined to the first three months after the parties separated. Indeed, she conceded that at the time she swore her affidavit, the children were well aware of her view about the father “and his actions”.
On the balance of probabilities, it is implausible that the father would treat the children as the mother described, even if that was the language that they used. Ms K was asked about what might be described as discipline issues particularly since April 2018. She confirmed that C did go into his room and put his electronic games on and lost himself in them but she said that when he was asked to come out and participate in family activities, he did so. She described both children at the meal table talking about things that they had done, and were to do, and whilst they were reticent about eating vegetables, nothing indicated that the children were being forced to do anything. She described them as participating in family activities including doing chores which had arisen out of family discussion about them earning pocket money. She described them as going to bed easily. She volunteered the specific example of D writing a note which was left on the kitchen table indicating that she was sitting on a couch reading her book. Ms K said that she went to the couch and there was D sitting and reading. All of the descriptions indicate simple domesticity and children who were cared for and willingly participating in family activities with their father and Ms K. I do not accept that there was some change in the father after April 2018. There was certainly a significant change in the children, all of which enables me to draw a conclusion that the accusations made against the father such as those to which I have referred about January 2016, have no foundation.
Other things showing the mother’s involvement of the children
Another example of the way in which the mother acted with the children and adopted a negative attitude about the father can be seen in February 2016. She noted that the father was wearing a sling and C told her that the father had to have surgery “due to an incident in December 2015 where the father had gone to hit ([C]) over the head and ([C]) had pushed him back”. She said C told her that the father fell backwards and as a result, needed surgery because of an injury that occurred. The father’s response was that in 2016 he was scheduled to have surgery to remove a ganglion from his wrist and to correct carpal tunnel syndrome arising out of a work accident as far back as 2003. He denied that there had ever been the incident described by C.
The father was asked about this when giving evidence arising out of a different context. When C was interviewed by the Family Consultant for the purposes of the family report, he told her that he was not afraid of his father as the hitting had stopped “after he had fought back by pushing his father” and “messed up” his wrist.
That particular statement gave rise to a question as to whether anything had occurred between C and his father that might have remotely sounded like C pushing his father or “messing up” his father’s wrist. The father rejected any such suggestion confirming as he had in his trial affidavit that no such incident had occurred. The mother did not press the father about the issue when she cross-examined him and nothing was put to Ms K along similar lines. I find that there was discussion with C about his father but rather than reality test what C said, she explicitly believed him and encouraged him to be negative about his father. I accept the father’s version of those events.
In the same conversation with the Family Consultant, C told her that if the Court ordered him to see his father, he would sit in the corner and ignore him as he had done during the supervised time. There is no doubt that C had consistently ignored his father in the supervised time. That was only weeks before the interview with the Family Consultant. What the supervisor had observed over the period from August 2017 until the end of 2017 included:
·(C) had headphones on and appeared disinterested;
·Dad approached (C) who got up and walked away;
·Dad tried to have a conversation with (C) and gave him cards for his birthday that was coming up. (C) looked uncomfortable and focused on his phone.
·Dad tickled (C) a few times (but he) did not appear to appreciate the contact.
·Dad tried to engage with (C) (who) … appeared uninterested in anything said to him;
·In the absence of the father, the supervisor asked C how he was and he replied “shit”;
·At a bowling event when the father had his turn, (C) yelled “choke, choke, choke” in an aggressive tone;
·When the father asked C whether he was excited to see him at the start of a period of supervision “on a scale of 1 to 10”, C replied “three”;
·When C was hugged by his father, the child did not return the affection;
·When the father tried very hard to engage C in conversation, he was resistant giving one or two-word answers;
·when the father asked C to speak up frequently because the child had spoken in a very low voice, on one occasion C said that he was tired having been up since 5.00am on ‘‘PlayStation chatting with friends”;
The matters just set out are examples of what Ms H describes as “uncomfortable” but in circumstances where the mother told the children about enjoying their time, C was unenthused.
All of that came to an end on 13 January 2018 after the mother decided that as the orders had made no provision for grandparents to attend, she advised Ms H “that the father had breached the current court orders” and therefore the children would not be spending any further time with him. She said she was intending to lodge a contravention application.
All of the evidence above had been concluded by the time the trial had to be adjourned in April. Having told the parties that I intended to make interim findings and consider interim orders, each put a position. The mother’s position is the only one that I need to mention here having regard to her staunch resistance to time occurring. In her outline filed 18 April 2018, she proposed counselling “to support and facilitate the relationship between the children and the father”. Notwithstanding the mother had unilaterally stopped the supervised time upon the attendance of the paternal grandparents, she now proposed that the same supervision “service” resume “with some time to be between the children and the father only” pending the proposed counsellor’s “recommendation for unsupervised time”.
That led to the obvious question of how such a supervised arrangement would be profitable if it had been so unsuccessful only months before. The mother’s view was that she could get the children to participate. Having regard to the fact that her case was that she had encouraged the children but had been so unsuccessful, that was a remarkable statement to make.
In respect of what interim order should be made for what was anticipated to be almost five months, and as they had already not seen the father for that same period, one had to question how this epiphany from the mother’s perspective was at all possible.
Counsel for the Independent Children’s Lawyer proposed three out of four weekends. The mother’s response was alternate weekends but if the father wanted three out of four weekends and half holidays, the children would do it. All of that led to the following published reasons: (see Dawson & Wright [2018] FamCA 266)
[43]In contemplating what interim orders should be made, the Independent Children’s Lawyer was far more active than was the husband. He was initially content to accept two weekends out of four but that was on the basis that he thought that the mother needed time with the children. When he heard the Independent Children’s Lawyer’s position of three weekends out of four, he said that he could undertake that without any difficulty. Surprisingly, the wife’s position was that if interim orders were to be made, she would prefer alternate weekends for the very reason that the husband had initially indicated. However, in the light of her written position, it is hard to see how she will be able to get C to do any of the things that she asserts are barriers to any relationship between the husband and the children. That said, the husband’s proposal was that if he collected the children from school and returned them there including for holiday periods, there ought be no difficulty. He pointed to the fact that on the last occasion he collected D from school, she ran into his arms with joy. The involvement of the wife in the changeover is asserted by the husband to be the problem.
Before turning to what happened over the ensuing weeks, I have now no hesitation in making findings that all of the problems that arose between the father and the children between separation and April 2018 were of the mother’s deliberate doing. It is particularly important to recall that in 2014 there were final parenting orders and the father’s time and relationship with the children thereafter should have been uneventful. I find that the mother had not accepted the end of the relationship she had with the father and that that drove her desire to thwart his relationship with the children. Her unilateral actions in so doing damaged the relationship that the children should have had with the father.
In the most unusual of circumstances here, the Court has had the opportunity to see how its orders have worked.
The father’s evidence was that on the very first weekend after the orders were made, he collected the children from their respective schools. He described them as both delighted to see him and came to him happily. The mother’s evidence was that upon telling the children some three days before that they were to be collected by the father, C became very angry and told her that he was not going. She said she told him that she wanted him to go. She said in the conversation that preceded C’s anger:
“I told them that dad and I had had a chat and we wanted the very best for them both. I told them that seeing dad would be good for them as he loved them and missed them very much.”
The mother’s submission was that she has said things inappropriately to the children but that did not just happen at her house. She submitted there was no enmeshment and the school results were testament to the fact that she had not physically or psychologically harmed them. That completely ignores the evidence that she has thwarted the relationship. Nothing the mother has said could convince me that there is a wind of change blowing here.
The Legal issues
It is trite to say that this whole hearing has been about a pursuit of a parenting arrangement that will be in the children’s best interests. That is what s 60CA of the Act says. But with all of the mandated obligations in Part VII of the Act, it is important to recognise what the High Court of Australia said in CDJ & VAJ (1998) 197 CLR 172 at 219: “[i]t is a mistake to think that there is always one right answer to the question of what the best interests of a child require ... [b]est interests are values not facts”.
Both parties have been down this path before. In September 2014, the court was asked to make final orders and the dichotomy of roles was agreed. As I have already traversed, the orders failed and the subsequent proceedings were disruptive of the children’s relationship with their father. The reason why that happened lies in the conduct of the mother.
Section 60B of the Act sets out the objects of the Act in relation to children. The aim of the legislature to achieve what is best for Australian children. The mother has thwarted those objects.
The objects include such things as ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child. Nothing indicates the mother sees the benefit to the children of having the father in their lives. She told the Family Consultant how she felt and her final address to the Court was indicative that she strongly believes what she says but she fails to see the on-going impact on the children.
Another object is to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence. The mother maintains the children have been exposed to family violence and assaulted. I reject that. They have been subjected to the mother’s unrelenting view such that they could not be free to have a relationship with their father until April and even since that time, her views are negative about what the children perceive as the relationship with their father. The continuation of that view which I accept has been conveyed to the children is exposing them to the psychological harm of abuse by her.
Children are entitled to receive adequate and proper parenting from both parents to help them achieve their full potential. The mother has gone out of her way to thwart the children seeing a different side of life as exhibited by the father and Ms K. That began with her unilateral action just after separation and continued. Litigation had to be undertaken to enable the father’s relationship to be restored even if it was unsatisfactorily so. Thus, the children have not been receiving adequate and proper parenting from their mother. In addition to the objects underpinning the Act, there are also principles in s 60B of the Act. One such principle is that children have the right to know and be cared for by both parents. The mother has seen to it here that that not occur.
Another similar principle is that children have the right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development. Again, bearing in mind this check list is about what should be the objectives for parents let alone the court, the mother has deliberately thwarted the children having that relationship right. The evidence of the Family Consultant makes clear that the children were given permission by the mother to have a relationship with the father in April and they were relieved to the point of the very first meeting being a complete antithesis of what had been occurring at the so-called supervision sessions.
Parents are also to fulfil their duties and meet their responsibilities concerning the development of their children. Parental responsibility is defined in the Act to mean “... all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”. In 2014, and again at the request of the parties, the court made an order that the parents have equal shared parental responsibility for their children. Equal shared parental responsibility is not defined but it must mean something important having regard to its place in the Act. It was the first 2014 order and was intended to show to the court that the parents took their long term decision-making about the development of their children seriously. It is a concept entirely different to day to day decision-making and day-to-day care of the children because it affects major decisions that influence children’s lives.
The legislature thought this responsibility sufficiently important to enact s65DAC of the Act. That provides that sharing parental responsibility in respect of “major long-term issues” is not a passive activity; it requires joint decision-making and consultation. In addition, it is implausible here to expect that decisions could be made in the interests of the children by any joint exercise. Thus, in both cases, the presumption should not be applied.
It requires the parents to attempt to reach agreement to fulfil their responsibilities about important issues. The mother’s action has been to exclude the father. I concede there is now not only no communication but feelings of contempt by the father of the mother. His rationale is borne out of frustration with the fact that the court has failed to enforce its orders.
In this case, there is no foreseeable prospect of that deplorable situation changing and the reality of life is that the person who has the main role in the lives of the children will have to fulfil all long-term decision- making tasks. To endeavour to do otherwise would lead to arguments and the improbability of decisions to the detriment of children in respect of health and education.
Although the 2014 orders determined parental responsibility, I consider that s61DA of the Act requires the Court to contemplate the presumption that section contains. The presumption leads to a consideration of equal sharing of time but there are two considerations where the presumption is either rebutted or should not be applied. In this case, both apply. In respect of family violence, there is considerable dispute about a number of events. I am satisfied the mother was the instigator of the violence that precipitated separation. I reject the mother’s view that the father assaulted her. I reject the assertion of the mother of the father being violent towards the children before the 2014 orders and I do not accept the February incident I have canvassed. I accept that the mother was abusive towards the father which culminated in the police intervention at a time when she was alcohol affected. I do not accept other allegations against him that culminated in intervention orders were things for which he was responsible. In the circumstances, I accept that the mother has been responsible for family violence within the definition in the Act.
There are certainly extant family violence orders here. Having regard to the paucity of evidence, and in particular, the evidence required by s 60CC(3)(k) of the Act, I find no inferences can be drawn adverse to the father.
Sole parental responsibility is also problematic because, if the mother is to continue to have a significant role in the lives of the children, not having a voice about how major long-term decisions are made will see her excluded and without any understanding why decisions are made. While that may be seen as her having no responsibilities as a parent, there is no way I can craft orders which would enable her to be involved. There is no better example than what occurred after the April orders. Almost remarkably, the mother approached the father outside of the courtroom and offered to discuss issues and even if there was an element of goodwill in that, it did not last long. Shortly thereafter in telephone communications, the arguments began again. I am satisfied that the responsibility for the breakdown of that communication avenue must lie with the mother. Sole parental responsibility is therefore a necessity here.
Section 60CC of the Act in many ways replicates the principles and objects in s 60B of the Act. These are the factors around which the broad inquiry revolves arising from the various findings about how the parents have exercised their parental obligations.
The factors can be considered under specific groupings many of which I have already covered.
I have already dealt with s 60CC(2)(a) and (b) of the Act.
Section 60CC(3)(a) of the Act requires the Court to consider the views of the children but also what weight should be given to those views. When interviewed, the children wanted to remain with their mother. That may still be their view. Their level of maturity is unclear but in my view, having regard to what they have experienced since the separation of their parents and knowing little more of their father than what they have experienced since April 2018, I consider their views about where they live should be given little weight as I do not accept they could understand their mother’s deliberate conduct in thwarting their relationship with their father.
Sections 60CC(3)(b), (c) and (ca) of the Act look at the relationships affecting the children. Here, they have shown enjoyment being with their father but so too, they have been well cared for by their mother. My criticism of the mother is in two areas. First, she would not allow the children to have a relationship with the father but secondly, the Family Consultant also observed some disturbing controlling behaviour in relation to the children which prevented D from being herself. The children now have established a good relationship again with the father but also with Ms K. She is an important part in their care. They appear to have a close relationship with her. No other person on the mother’s side has such a relationship. To the extent that the mother has formed a new relationship, it was not exposed to scrutiny.
There can be no criticism of the father for his persistence in endeavouring to make his relationship beneficial to the children. He has taken every opportunity to participate in their lives including under trying circumstances at the supervised visits. I accept he has a genuine desire to assist the children.
In respect of financial matters, although there was some argument about what the father had done in relation to child support, nothing in the evidence indicates he has been aberrant in respect of his responsibilities. I have made the findings earlier about how the schooling change occurred.
Section 60CC(3)(d) of the Act requires the Court to consider changes and their impact. The father agrees there will be an impact on the children but he sees that can be managed. The Family Consultant agrees. The trauma of a change will require professional assistance and the father has agreed to undertake that task. Part of the trauma of change will arise by a change of school. There is a tyranny of distance problem here but the Family Consultant’s view is that although not ideal, these children will adapt.
Sections 60CC(3)(f) and (i) of the Act look at the capacity and responsibility of the parents. I have sufficiently covered those matters above.
Sections 60CC(3)(j) and (k) of the Act I have already dealt with in relation to family violence.
Section 60CC(3)(l) of the Act is a difficult provision in that it is seen as encouraging courts to look at options other than finality perhaps by way of interim orders to see whether proposals may benefit the children. With the mother’s unrelenting approach to the children’s relationship with their father, there is no prospect of interim orders doing anything more than putting off the inevitable. These children need to know that they are to live permanently with their father in a stable and happy relationship with Ms K and that they will have regular time with their mother but ultimately return to their father’s environment.
Orders should be made as it is in the best interests of the children that they live with their father.
Time between the children and their mother
Having determined that the children should live with the father, the questions arise as to the time they should spend with their mother but also whether there should be a period of exclusion so that they can settle into the father’s household. It is helpful to deal with the second first.
The position of the Independent Children’s Lawyer that there should be a period of three months during which the children would not see their mother. I have considerable difficulty with the concept as well as with the time urged.
The father acknowledges that the children will need professional assistance in any transition as they will not only be changing households but also schools. They will also be adapting to the father’s household with Ms K on a full-time basis and have to meet new friends. Ms K told the Court that D is more reticent in developing the relationship with her father whereas the Family Consultant was of the view that she would adapt probably better than C. But it is C who needs to adjust to a new school and friends in circumstances where he expressed disdain for his former school when the last change occurred so he is much more conscious than D about making those adjustments. He expressed the view to the Family Consultant in February 2018 that he was settled and happy and getting value from the new school so another change has to be carefully managed.
To exclude their mother from their lives in circumstances where she has been their primary care figure will be confusing and possibly unsettling whilst they try to adapt to all of these changes. I suspect that they will miss their mother and particularly so D who understandably expressed the desire to be with her mother when she was interviewed at the beginning of this year. The last thing the father needs is a return to the obstinate behaviour he witnessed when the supervised visits were taking place.
So too, it is important that the children do not see the exclusion of their mother as some form of punishment for her or them because of what has happened in the past. Any such exclusion must meet the test that it is in the best interests of the children.
Against those considerations will also be the unknown difficulties that the mother will face in adapting to a significantly different role in the lives of the children. As I have set out, the mother presently has a destructive view about the children’s relationship with their father but she also makes her own disdain for him clear. She resents and is suspicious of Ms K who will be taking on a significant part of her former role. Any repetition of the conduct that has given rise to the need to change the children’s residence on the presumption that there is no prospect of changing her attitudes, will exacerbate the settling process and create further confusion for the children.
There is no principle of social science to which my attention was drawn that says a specific period of absence from the former main parent is what children like C and D need. In some previous decisions of the Court, and with similar circumstances to this case, a three month hiatus was recommended (see P & D [2001] FamCA 1197 and Re: David (1997) FLC 92-776) but there is little, if any, discussion as to why the time was chosen. In P & D, the expert said it would be “profitable” for the child to have three months away from his mother and then build up the relationship by time gradually thereafter. Lindenmayer J rejected that as being “too harsh”. In Re: David, the Full Court gave no analysis of why that ordered time was appropriate but simply said they could understand why it would be necessary.
Ultimately, any parenting order must not only be in the best interests of the children but also proper. Accepting that the children have now been exposed to the regime in their father’s household and have objectively shown no ill-effects, they have transitioned well to establishing a secure relationship there. I think that a period of settling is therefore not necessary and may even be destructive because there will be so many changes. Having said that, I think a period of three consecutive weekends after these orders begin, and I intend them to begin immediately because of the need to quickly change schools, will give the children the opportunity to establish friendships and work out extra-curricular activities in the father’s residential area.
Regardless of what their mother says to them now, they will know that they are to live with their father and otherwise enjoy the relationship with their mother on weekends and holidays. They will know that they no longer have to listen to criticisms of their father because the Court has determined all of those issues permanently.
I consider it appropriate in the circumstances to have the Family Consultant explain these reasons in age-appropriate language and to specifically draw to their attention that after a consideration of all of what has happened over the last four years, this decision is seen by the Court as best for their futures.
Finally, I return to what period of time is appropriate for the children to spend with their mother. The mother’s position had been that the father should have alternate weekends but she also criticised him for not getting the children into extra-curricular activities and allowing them to make local friends subsequent to April. She will have the same difficulties because she argued strongly that the children were telling her that they missed their friends. The mother will need to consider whether she wants to spend quality time with both children doing activities with her rather than being distracted by spending time away from her home on the weekends.
The final term of the school year leaves less than two months for the children to settle before a school holiday period begins. I consider that the first part of the holidays should be spent with the father and the children will experience the Christmas and New Year festivities and then they can spend some time with their mother until they return to the regimentation of the new school year.
Some observations about other proposed orders by the parties
Although these reasons do not necessarily address the minutiae of the minutes provided by all parties including and the Independent Children’s Lawyer, I have not ignored them. I make the following observations to indicate why I have not included all of those matters.
The parties seemed to agree under cross-examination, and also in submissions that they needed very tightly defined orders. That is most unfortunate where children who are growing up and changing daily have constantly changing needs. Unfortunately here, there is little prospect of successful co-operative parenting as can be seen from what happened after April 2018. That said, I expect that with the children getting closer to 18 years of age and in their teenage years, the necessity to have the father making all of the major decisions should be diminished as things settle down and fewer decisions become necessary. That is why I have limited the time in order number [2].
I also appreciate the need for state intervention through intervention orders and the view of the parties that handovers should occur at places such as “McDonalds”. I reject that concept on the basis that it exacerbates the understanding of the children that there is a monumental dispute between their parents. Clearly, changeovers at school eliminate some of that stress for the children but otherwise, they need to see that their parents can begin to at least attend the outside of the other parent’s residence without police vans being dragged in to supervise the adults. That is the basis of orders [4] and [5].
Christmas is said to be special for many people in the community but where there is enmity between the adults, children caught in the conflict shut down. I see no reason here why specifically on the day when many people sit down for midday festivities, each parent should not be inconvenienced having to do travel for the sake of their children even where that involves distance. The children should be able to move to the festive house and the parent there should be able to engage in preparation for that festivity without having to go out and deliver the children. That is also the logic in the orders.
The father seeks to have the children with him on Anzac Day and like many people in the community, I can understand the significance of that day to him which he wants to imbue in the children. But so too, the same must be said of Mothers’ Day, Fathers’ Day, various birthdays, and in some cases, special or feast days. If the parents do not recognise the significance of those for the other parent, it gives rise to two things. It means first that there is unlikely to be any “swings and roundabouts” but it also means that it prejudices the children who, in their quest for adulthood, learn selfishness. The orders here have taken into account that some of those special days will not fall of weekends but others will. If the parents cannot work those out, I consider the Court’s intervention is pointless. I therefore have specifically not designated who is to have the children on those days; if the children learn that they are not to participate in days special to their parents, there is no-one to blame but the parents.
I have limited the electronic communication. I have not set what type of communication it should be because in this quickly changing world, children will work out ways quicker than the adults of making that communication work. My orders are designed to be the minimum and I am conscious that as children grow, they will dictate the terms. Accordingly, I have limited the communications.
The father also sought orders relating to information-sharing with the mother about illness and the like. The present relationship is so poor that the parties will need to work out the medium anyway. However, the Court, in my view, should not be regulating every part of the lives of not just the children but also their families. If the parents cannot see that common courtesy should prevail so that the other parent who is still a significant part of the development and upbringing of the children should not be kept “in the dark” about so many things that interest and affect their children, again, the Court cannot fix those things. In time, the children will work out the “lie and the land” and vote with their feet. In this case, that would be very sad having what these children have endured for four years.
My orders have also provided for the mother to attend things at the schools and by implication, attend extra-curricular events including sports events. That inference should be obvious because although I have set the parameters of the mother’s contact with the children, the parties are obviously at liberty to make their own arrangements. That said, I do not consider it appropriate to regulate the way in which a school principal manages the people who come and go within a school. The principal shall have the final say. Most children are proud of their parents when given the opportunity to be a part of their lives as has been seen here since April but common experience also tells us that children want their parents to see the at things at which they do well. For that reason, I have made no injunctive orders here. However, if the parents or either of them cannot regulate their disdain for the other, the state intervention may be necessary and failing that, this Court should do so.
The father also raised the question of international travel. I have made no orders about that but consider that because of s 65Y of the Act, co-operation is necessary. I consider there is no basis here to make orders in relation to the provision of itineraries and information because again, those are matters of courtesy. The parents are a liberty to travel wherever they like during their designated holiday periods but lack of information leads to further mistrust and indeed can be confusing for children. For example, there is no point a parent having the full time responsibility for the children trying to anticipate whether to pack beachwear or snow clothing for a holiday if the other parent will not have the courtesy to say what is planned. The parents clearly do not have to like one another but they have a responsibility to shield their children from the conflict. That has not happened here to date.
The father also sought an order that the children not be exposed to denigration and the like and I suspect from the mother’s perspective, she would similarly seek such an order. Making those orders is like ordering people not to break the law by using drugs. In my view, it is irresponsible parenting to expose children to that sort of conduct but because of its insidious nature and the degrees of difficulty in proving it, I consider that if the parents have not learned by now, the court cannot intervene in every issue in their family’s lives. Here, only time will tell whether these children benefit from their parents adopting a co-operative approach. I readily accept that from the father’s point of view, that will be difficult because of what he has endured but these orders are final. That is, the Court expects there will be no further litigation. That philosophical approach was apparently not taken by the court and the lawyers for the parties in 2014, but it is in this Court.
I certify that the preceding two hundred and eighty-eight (288) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 29 October 2018.
Acting Associate:
Date: 29 October 2018
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