DENNY & DENNY
[2013] FMCAfam 219
•15 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DENNY & DENNY | [2013] FMCAfam 219 |
| FAMILY LAW – Contravention Application – husband found to have reasonable excuse for contravening the Court orders – mother’s Contravention Application dismissed. FAMILY LAW – Parenting – child aged 10 years – the child previously living in shared care arrangement – the child made disclosures of being physically and emotionally abused by the mother whilst in her care – the mother denied such abuse and alleged the disclosures by the child were as a result of the father manipulating the child – found the child is at risk of physical and emotional harm if spending extended time with the mother – orders made for the father to have sole parental responsibility for the child, the child live with the father, the child spend time with the mother on the last Saturday of each month from 10.00am to 4.00pm and on special occasions – the mother’s application to travel to Bulgaria with the child refused as found there was an unacceptable risk that the mother would not return to Australia with the child if permitted to leave Australia. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA. 65DAA, 70NAC, 70NAE, 70NAJ |
| AMS v AIF (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Goode & Goode (2006) FLC 93-286 |
| Applicant: | MS DENNY |
| Respondent: | MR DENNY |
| File Number: | MLC 11984 of 2007 |
| Judgment of: | Bender FM |
| Hearing dates: | 14, 15, 16, 17, 18 & 21 January 2013 |
| Date of Last Submission: | 21 January 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 15 March 2013 |
REPRESENTATION
| Counsel for the Applicant: | Self-represented |
| Solicitors for the Applicant: | Self-represented |
| Counsel for the Respondent: | Mr Barbayannis |
| Solicitors for the Respondent: | Barbayannis Lawyers |
| Counsel for the Independent Children’s Lawyer: | Mr O’Connell |
| Solicitors for the Independent Children’s Lawyer: | McCormack & Co |
ORDERS
The mother’s Contravention Application filed 17 October 2012 be dismissed.
All previous parenting orders be discharged.
The father have sole parental responsibility for the child,
[X] born [in] 2002 (“[X]”).
[X] live with the father.
[X] spend time and communicate with the mother as follows:
(a)on the last Saturday of each month from 10.00am to 4.00pm commencing the last Saturday in March 2013 and each month thereafter;
(b)on Mother’s Day from 10.00am to 4.00pm;
(c)on the mother’s birthday from 4.00pm to 7.00pm;
(d)on [X]’s birthday from 4.00pm to 7.00pm;
(e)on Christmas Day each year from 2.00pm to 6.00pm;
(f)by telephone each Wednesday and Sunday between 6.00pm to 6.30pm with the mother to telephone [X] and the father shall facilitate [X] telephoning the mother on [X]’s reasonable request to do so;
(g)by email on a reasonable basis; and
(h)as otherwise agreed between the parties.
Changeovers for the time [X] spends with the mother shall take place at Hungry Jack’s, [N].
In the event the mother sends [X] emails that are abusive or derogatory of [X], the father or the paternal extended family or in any way pressures [X] to spend further or additional time with the mother, order 5(g) herein which provides for the mother to communicate with [X] via email shall be discharged.
The father do all things necessary to authorise [X]’s school to forward to the mother at the mother’s expense copies of [X]’s school reports, school photograph order forms, notices and all other documents normally provided to parents.
The mother be restrained from attending at or contacting any school attended by [X] without the express permission of the Principal of that school to do so.
The father is authorised to provide a copy of this order to the Principal of any school attended by [X].
Each party shall advise the other party of any serious illness or injury suffered by [X] whilst in their care as soon as practicable following the onset of the illness or occurrence of the injury and shall provide sufficiently detailed information and any necessary authorities to allow the other party to obtain information directly from any treating medical practitioners.
Each party and their servants and agents are restrained from abusing, insulting, belittling, rebuking or otherwise denigrating the other party to or in the presence or hearing of [X], and from permitting any other person so to do.
The Independent Children's Lawyer is requested to meet with [X] on or before 29 March 2013 to explain these parenting orders to [X] and the father shall facilitate [X]’s meeting with the Independent Children's Lawyer as requested by the Independent Children's Lawyer.
The funds currently held in the Australian Scholarship Fund on behalf of [X] be divided equally between the parties.
The mother’s application that a passport issue for [X] and the Australian Federal Police Watch List order made 19 January 2006 be varied to enable the mother to travel with [X] to Bulgaria be dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Denny & Denny is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 11984 of 2007
| MS DENNY |
Applicant
And
| MR DENNY |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter relates to the longstanding dispute between the parties in relation to the living arrangements for their daughter, [X] born [in] 2002 (“[X]”).
The parties have been in almost continuous litigation in relation to [X]’s living arrangements since they separated in December 2003.
In July 2007 final orders were made for [X] to live with the mother and spend time with the father each alternate weekend from after school Thursday to before school Tuesday and each alternate Thursday from after school until the commencement of school Friday, for half of the school holidays and on special occasions.
On 10 April 2012 the mother filed an urgent Initiating Application seeking that a Recovery Order issue in relation to [X] as [X] had been overheld by the father in breach of the orders made in July 2007.
On 16 April 2012 the father filed a Response seeking orders that all previous parenting orders be discharged, that he have sole parental responsibility for [X], that [X] live with him and spend such time with the mother as the Court determines following the release of a Family Report and psychiatric assessment of the mother.
On 11 May 2012 the mother filed an Amended Initiating Application in which she sought that the July 2007 orders be varied to provide that the mother have sole parental responsibility for [X] and for [X] spend to time with the father each alternate weekend from after school Friday to before school Monday, for half of all school term holidays, for two weeks in the long summer vacation and on special occasions. The mother also sought an order that a passport issue for [X] and that the Australian Federal Police Watch List order made by Federal Magistrate Riethmuller on 19 January 2006 be varied to provide for the mother to travel with [X] to Bulgaria to visit the maternal family in September/October 2012.
When the matter first came before the Court in April 2012, the parties agreed that [X]’s living arrangements would resume in accordance with the July 2007 orders.
On 19 July 2012 the father filed an urgent application in a case seeking orders that [X]’s time with the mother be suspended. In support of his application the father filed an affidavit in which he set out serious allegations of physical and emotional abuse of [X] by the mother which [X] had disclosed to him during the second term school holidays.
Given the seriousness of the alleged abuse, an interim order was made on 19 July 2013 suspending the order for [X] to live with the mother.
[X] was interviewed by the Department of Human Services (“DHS”) in relation to the allegations made by her. Pursuant to section 69ZW(1) of the Family Law Act 1975 (“the Act”) an order was made on
19 July 2012, that DHS provide a report in relation to the allegations of abuse made by [X]. DHS provided their report dated 3 August 2012. Paragraphs 3 to 6 of the report dated 3 August 2012 states as follows:
Following investigation and assessment by Child Protection it has been assessed that both Mr Denny and Ms Denny are responsible for emotional harm being caused to [X], which has also resulted in cumulative harm. Allegations of physical harm to [X] by her mother remain unsubstantiated and it is the assessment of Child Protection that these incidents did not conclusively occur as [X]’s story in relation to the incident was inconsistent and her explanation of the incident appeared to be beyond her development level, with Child Protection having concerns that she has been coerced to say these things about her mother by another party.
Ms Denny was interviewed by Child Protection workers and was assessed as presenting no immediate risk of harm to [X] however concerns continue to remain about [X]’s exposure to current and cumulative emotional harm due to the severe level of acrimony between the parents demonstrated by their long history of disagreement within the Family Law Court. It is also concerning to Child Protection that the mother can present as very animated at times and has admitted to screaming at [X] due to [X] misbehaving. Considering the nature of the allegations and the long history of acrimony a measure of frustration and anger is understandable on the part of the mother, though not exposing [X] to this is of key importance and there have been instances in which [X] has been exposed to this. In relation to physical abuse there is no evidence to prove this and the mother has completed a safety plan with Child Protection.
Mr Denny was interviewed by Child Protection workers and was assessed as presenting no immediate risk of harm to [X] however concerns continue to remain about [X]’s exposure to current and cumulative emotional harm due to the severe level of acrimony between the parents demonstrated by their long history of disagreement within the Family Law Court. It is also concerning to Child Protection that considering that [X] reportedly presented with bruising on Thursday at the father’s home, following a reported incident of physical abuse he did not take her to see a GP or to the police to report the incident until the Sunday.
Mr Denny when questioned about this explained that it was a mistake in his part.
Police have also assessed that it was unlikely these incidents occurred as there was no evidence of these injuries and there was no further investigation from the police following the initial family violence notification. Child Protection was informed of this and followed up without police involvement.
On 6 August 2012 interim consent orders were made which provided for [X] to live with each of the parties on a week-about basis with [X]’s time with the mother to commence on the first Saturday that changeover could take place at [B] Contact Centre (“[B]”).
The parties and [X] attended [B] on 18 August 2012 for the first changeover whereby [X] was to move from the father’s to the mother’s care. Despite the best endeavours of the experienced [B] staff, [X] adamantly refused to go with the mother.
In light of [X]’s refusal to go with the mother, the matter again returned to the Court on 7 September 2012. On that occasion orders were made that [X] live with the father and spend time with the mother each Saturday between 10.00am and 4.00pm and for [X] to communicate with the mother by telephone each evening between 6.00pm and 6.30pm.
On 17 October 2012 the mother filed a Contravention Application alleging the father had breached the orders made 7 September 2012 in that the father had failed to make [X] available to spend time with the mother on 15 September 2012, 22 September 2012, 6 October 2012 and 13 October 2012. The mother also alleged the father contravened the orders by providing [X] late on 20 October 2012 and by not facilitating telephone communication between [X] and the mother on numerous occasions.
The mother’s Contravention Application was listed to the same date as the final hearing, being 7 November 2012.
On 7 November 2012 the matter was unable to proceed because of the unavailability of the Family Report writer, Dr H, due to ill health.
On 7 November 2012 the final hearing of the mother’s Contravention Application and the substantive matters was adjourned to
14 January 2013. Directions were made that the matter proceed on the basis that both the mother’s Contravention Application and the parties’ competing applications in relation to [X]’s living arrangements be heard on the adjourned date.
At the final hearing of the matter, the mother was given leave to amend her Contravention Application by adding two further alleged contraventions of the September 2012 orders by the father, being that [X] did not spend time with the mother on 27 October 2012 and
3 November 2012.
In relation to the mother’s Application for Contravention, the father conceded that [X] did not spend time with the mother pursuant to the September 2012 orders on these Saturdays set out in the mother’s Amended Application but submitted there was a reasonable excuse for his non-compliance with these orders. The father denied that the mother had been unable to speak with [X] on numerous occasions and submitted that there had only been two or three times [X] had not spoken to the mother and that this had occurred when the mother rang after 6.30pm.
In respect to [X]’s living arrangements, the mother filed a
Further Amended Initiating Application on 17 October 2012 in which she sought the following orders:
a)all previous parenting orders be discharged;
b)the mother have sole parental responsibility for [X];
c)[X] live with the mother;
d)[X] spend time and communicate with the father:
i)each alternate weekend from after school Friday to before school Monday, such time to resume two weekends after school holidays;
ii)half terms holidays;
iii)special occasions including [X]’s birthday, the father’s birthday, Christmas day and Orthodox Easter;
iv)two weeks in the long summer vacation; and
v)by telephone each weekend between 5.00pm and 6.00pm or otherwise as agreed;
e)changeovers that did not occur at [X]’s school to be at [N] Police Station;
f)if [X]’s birthday, the mother’s birthday or Mother’s Day fall on a weekend [X] is with the father, time be suspended from 9.00am to 7.00pm;
g)when [X] is with the father, the mother telephone [X] between 4.00pm and 8.00pm;
h)a passport issue for [X] and the Australian Federal Police Watch List order made by Federal Magistrate Riethmuller on 19 January 2006 be varied to enable the mother to take [X] to Bulgaria for two months between May and October 2013; and
i)the father sign all documents to enable the $700.00 currently held in Australian Scholarships Group to be transferred to the mother.
In the mother’s closing submissions to the Court at the conclusion of evidence, the mother told the Court that she now seeks orders that would allow her adequate time to re-establish her relationship with [X].
Accordingly the mother seeks that all time between [X] and father be suspended for a minimum of six months. It is the mother’s proposal that she and [X] be permitted to travel to Bulgaria in 2013 and that upon their return to Australia [X]’s time with the father resume in the terms set out in the mother’s Further Amended Initiating Application, save that [X] not be away from the mother for more than ten days as any longer than this is:
…detrimental to [X].
It is the mother’s proposal that whilst she and [X] are “re-establishing” their relationship the father and [X] be able to communicate by email only and not by telephone as:
…it is highly disruptive to [X].
The mother also seeks an order prohibiting the father from being able to approach any school attended by [X].
The father seeks orders that he have sole parental responsibility for [X], that [X] live with him and that the orders not specify the time [X] spends time with the mother but rather [X] spend time with the mother as requested by [X].
The Independent Children’s Lawyer proposes the Court make orders in the following terms:
a)all previous orders be discharged;
b)the father have sole parental responsibility for [X];
c)[X] live with the father;
d)[X] spend time and communicate with the mother as follows:
i)each alternate Saturday from 10.00am to 4.00pm;
ii)on Mother’s Day from 10.00am to 4.00pm;
iii)on the mother’s birthday from 4.00pm to 7.00pm;
iv)on Christmas Day each year from 2.00pm to 6.00pm;
v)by telephone on Wednesday of each week and each alternate Sunday between 6.00pm and 6.30pm with the mother to telephone [X];
vi)by email on a reasonable basis; and
vii)as otherwise agreed between the father and mother;
e)changeovers to take place at Hungry Jack’s, [N];
f)the father do all things necessary to ensure [X]’s school forwards to the mother copies of [X]’s school reports, notices and other correspondence addressed to the father;
g)the mother be restrained from attending [X]’s school or contacting staff members at [X]’s school;
h)both parties immediately notify the other of any medical emergency concerning [X];
i)the mother forthwith do all things necessary to obtain the services of a practicing psychologist to address issues concerning her personality and its impact upon [X] as referred to in the Family Reports of Dr H dated 4 July 2012 and 30 October 2012 and the psychiatric report of the mother by Professor B dated 25 October 2012;
j)the mother provide the psychologist and if necessary her general practitioner with copies all affidavits filed in these proceedings and the Family Reports of Dr H dated 4 July 2012 and 30 October 2012 and the psychiatric report of the mother byProfessor B dated 25 October 2012; and
k)the mother follow all lawful directions of the psychologist.
Background
The mother was born in Bulgaria [in] 1971 and is 41 years of age. The mother is studying part-time, though has currently deferred those studies. The mother has not re-partnered.
The father was born [in] 1976 and is 36 years of age. The father is employed as a [omitted]. The father is not currently in a relationship.
The parties met in Greece in 1999. The mother, who is fluent in six languages, was working as a [omitted] in Greece at that time. The father, whilst an Australian citizen had been living in Greece for some years. The parties married in Bulgaria on [date omitted] 2000 and moved to Australia in September 2000. The parties separated on
13 December 2003.
Whilst lengthy, the history of litigation between the parties prior to the current proceeding will be set out in this judgment as the current proceedings must be viewed in the context of the longstanding issues between the parties.
The father commenced proceedings in March 2004 seeking both parenting and property orders.
After a defended hearing, Justice Brown made orders on
10 March 2005 that [X] live with the mother and spend time with the father each alternate weekend from 6.00pm Friday to 6.00pm Sunday and for two periods of seven days in January and July, such time to increase so that when [X] started school she spend time with the father each alternate weekend from after school Friday to before school Monday, half term holidays and two weeks in the long summer vacation.
In December 2005 the father filed a Contravention Application alleging the mother had failed to make [X] available to spend time with him on multiple occasions, in breach of the orders of Justice Brown.
On 19 January 2006 Federal Magistrate Riethmuller found the mother to have contravened the orders of Justice Brown and placed the mother on a bond for 12 months and required the mother to attend counselling.
On 19 January 2006 Federal Magistrate Riethmuller also made orders restraining the parties from removing [X] from the Commonwealth of Australia and placing [X]’s name on the Australian Federal Police Watch List.
In July 2006 the father filed a further Contravention Application and an Initiating Application seeking Justice Brown’s orders be discharged and that [X] live with him.
After a defended hearing on 21 and 22 June 2007, Federal Magistrate O’Sullivan made orders on 23 July 2007 that [X] live with the mother and spend six nights each fortnight with the father.
On 20 August 2007 the mother filed an appeal against the orders made by Federal Magistrate O’Sullivan on 23 July 2007.
On 1 November 2007 the father filed a Contravention Application alleging the mother had contravened the order of
Federal Magistrate O’Sullivan made 23 July 2007.
On 11 December 2007 Federal Magistrate McInnis found the mother to have contravened the orders of Federal Magistrate O’Sullivan without reasonable excuse, placed the mother on a bond for 12 months and ordered the mother to pay the father’s costs fixed in the sum of $990.00.
The mother filed an appeal against the orders of
Federal Magistrate McInnis that she pay the father’s costs of
12 December 2007.
On 22 December 2007 the father filed an Initiating Application seeking orders in relation to where [X] was to commence school in 2008. The mother filed a Response on 8 January 2008 seeking orders that [X] attend [H] School and orders the mother be permitted to travel with [X] to Bulgaria.
On 21 January 2008 Federal Magistrate Burchardt ordered that [X] attend [H] School and otherwise stayed the mother’s application to travel to Bulgaria with [X] pending the disposition of the mother’s appeal.
Justice Mushin heard the mother’s appeals sitting as a single Judge on 7 May 2008. On 27 November 2008 His Honour delivered his judgment in which he dismissed both of the mother’s appeals against the order of Federal Magistrate O’Sullivan and
Federal Magistrate McInnis.
On 17 March 2009 Federal Magistrate Burchardt heard the mother’s application to travel with [X] to Bulgaria. On 1 May 2009,
Federal Magistrate Burchardt delivered his judgment whereby
His Honour dismissed the mother’s application on the basis he could not be satisfied that if allowed to travel with [X] out of the Australia the mother would return to Australia with [X].
Each party make allegations of abuse, harassment and violence each against the other, both during the relationship and after separation, much of which has involved police and State Court intervention.
The father obtained an intervention order against the mother in or about 2010.
In 2011, after a defended hearing, the mother was convicted of two breaches of the father’s intervention order.
In 2011 the mother was charged with unlawful assault of the father. After a defended hearing in 2012 the mother was found guilty of the assault and placed on a bond to be of good behaviour and ordered to undertake counselling and an anger management course.
The mother appealed the Magistrates’ Court decision in relation to the assault charge and in 2012 the County Court upheld the findings of the State Magistrates’ Court.
In 2012 the parties obtained mutual intervention orders by consent without admission, such orders being for a period of five years. .
The orders made by me in the current proceedings to date have been set out in detail in this judgment and will not be repeated here.
The interim order that [X] spend time with the mother each Saturday remained in place when the matter was adjourned from 7 November 2012 to 14 January 2013. It is common ground that [X] has only spent a handful of Saturdays with the mother since the adjournment of the matter on 7 November 2012.
The Application for Contravention
Division 13A of Part VII of the Act sets out the consequences of failure to comply with orders and other obligations that affect children.
Section 70NAC of the Act sets out the meaning of contravention of orders as follows:
A person is taken for the purposes of this Division to have contravened an order under this Act affecting children if, and only if:
(a) where the person is bound by the order—he or she has:
(i) intentionally failed to comply with the order; or
(ii)made no reasonable attempt to comply with the order; or
(b) otherwise—he or she has:
(i)intentionally prevented compliance with the order by a person who is bound by it; or
(ii)aided or abetted a contravention of the order by a person who is bound by it.
Section 70NAE of the Act sets out the meaning of reasonable excuse for contravening an order of the Court. The relevant sections to the contraventions that are alleged in this matter are as follows:
(1)The circumstances in which a person may be taken to have had, for the purposes of this Division, a reasonable excuse for contravening an order under this Act affecting children include, but are not limited to, the circumstances set out in subsections (2), (4), (5), (6) and (7).
(2)A person (the respondent) is taken to have had a reasonable excuse for contravening an order under this Act affecting children if:
(a)the respondent contravened the order because, or substantially because, he or she did not, at the time of the contravention, understand the obligations imposed by the order on the person who was bound by it; and
(b)the court is satisfied that the respondent ought to be excused in respect of the contravention.
(5)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to spend time with in a way that resulted in a person and a child not spending time together as provided for in the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to spend time together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b) the period during which, because of the contravention, the child and the person did not spend time together was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
(6)A person (the respondent) is taken to have had a reasonable excuse for contravening a parenting order to the extent to which it deals with whom a child is to communicate with in a way that resulted in a person and a child not having the communication provided for under the order if:
(a)the respondent believed on reasonable grounds that not allowing the child and the person to communicate together was necessary to protect the health or safety of a person (including the respondent or the child); and
(b)the period during which, because of the contravention, the child and the person did not communicate was not longer than was necessary to protect the health or safety of the person referred to in paragraph (a).
Under section 70NAJ of the Act, the standard of proof to be applied when determining whether a person contravened an order or, if they did so, whether they had a reasonable excuse to do so is on the balance of probabilities.
The contravention of the Court’s orders by the father as alleged by the mother are as set out in the table below.
Count
Order Date Alleged Contravention Count One Order 3(a) of orders made
7 September 201215 September 2012 The father failed to make [X] available to spend time with the mother Count Two Order 3(a) of orders made
7 September 201222 September 2012 The father failed to make [X] available to spend time with the mother Count Three Order 3(a) of orders made
7 September 20126 October 2012 The father failed to make [X] available to spend time with the mother Count Four Order 3(a) of orders made
7 September 201213 October 2012 The father failed to make [X] available to spend time with the mother Count Five Order 3(b) of orders made
7 September 2012Numerous occasions The father failed to allow the mother to speak to [X] Count Six Order 3(b) of orders made
7 September 201220 October 2012 The father was late in delivering [X] to spend time with the mother Count Seven Order 18 of orders made 28 July 2007 21 October 2012 The father denigrated the mother within [X]’s presence and hearing Count Eight Order 3(a) of orders made
7 September 201227 October 2012 The father failed to make [X] available to spend time with the mother Count Nine Order 3(a) of orders made
7 September 20123 November 2012 The father failed to make [X] available to spend time with the mother
It is my intention to deal with each alleged contraventions in turn.
Count One
It is the mother’s evidence that she attended at Hungry Jack’s, [N] at 10.00am on 15 September 2012 to collect [X] and the father failed to arrive and make [X] available for time with the mother.
It is the mother’s evidence that she telephoned [X] at 10.30am and [X] told her that the father had left earlier to go to work.
In cross-examination the mother agreed that she and the father exchanged text message between 9.30am and 10.20am in relation to [X]’s failure to spend time with the mother.
It is the father’s evidence that in accordance with the orders made on
7 September 2012 [X] spent time with the mother on 8 September 2012. It is the father’s evidence that he received a text message from [X] on the afternoon of 8 September 2012 asking him to pick her up at 5.30pm instead of 4.00pm as stipulated in the orders. It is the father’s evidence that he was happy for [X] to spend additional time with the mother.It is the father’s evidence that on Friday 14 September 2012 [X] told him that she did not want to spend time with the mother as on the previous Saturday the mother had pressured [X] to write a letter saying that she wished to live with the mother. It is the father’s evidence that [X] told him the mother also pressured [X] to tell her school counsellor that she wanted to spend more time with the mother.
It is the father’s evidence that [X] also told him that the mother had told [X] that if she did not return to the mother’s care then “there would not be a next time”. It is the father’s evidence that he understood this to mean that the mother had intimated to [X] that the mother would kill herself if [X] did not come back to her.
It is the father’s evidence that [X] told him she had told the mother that she would write the letter “the following Saturday” in order to avoid having to write it when [X] was with her mother on Saturday
8 September 2012.It is the father’s evidence that on the morning of the 15 September 2012 [X] refused to go and spend time with the mother. It is the father’s evidence that he actively encouraged [X] to go and see the mother, indicating that she would have a good time, that the mother missed her and that [X] was required to go and see the mother by order of the Court.
It is the father’s evidence that [X] flatly refused to go and see the mother and that absent physically grabbing her and throwing [X] in the car the father was unable to make [X] spend time with the mother.
It is the father’s evidence that he believes [X] refused to spend time with the mother as a result of the pressure placed on [X] by the mother to write letters and speak to her school counsellor about wanting to spend more time with the mother.
It is the father’s evidence that upon his instructions his solicitors forwarded correspondence dated 20 September 2012 to the mother’s then solicitors confirming that time had not taken place on
15 September 2012 and the reasons that that had not occurred. A copy of that letter is annexed to the father’s trial affidavit sworn
26 October 2012.It is the mother’s evidence that she did not ask [X] to write a letter saying she wanted more time with the mother, nor did she pressure [X] to speak to her school counsellor.
I accept the father’s evidence that [X] told him the mother had placed pressure on her to write a letter and speak to the school counsellor when [X] spent time with the mother on 15 September 2012. I further accept the father’s evidence that he used his best endeavours to encourage [X] to spend time with the mother on 15 September 2012 and that [X] was adamant in her refusal to do so.
In these circumstances I am satisfied that there was a reasonable excuse for the father failing to make [X] available to spend time with the mother on 15 September 2012 and I do not find the contravention proved.
Count Two
It is the mother’s evidence that she attended at Hungry Jack’s, [N] at 10.00am on 22 September 2012 to collect [X] and the father failed to arrive and make [X] available for time with the mother.
It is the father’s evidence that [X] again refused to spend time with the mother. It is the father’s evidence that [X] said to him words to the following effect:
I can’t go Dad, I know I said I would (when she was talking to the mother during the week) and she promised not to talk about stuff but I don’t trust her.
It is the father’s evidence that he did everything he could think of to encourage [X] to spend time with the mother and that when [X] continued to refuse to do so, he required [X] to telephone the mother to explain to the mother that she was not coming and why. It is the father’s evidence that when [X] telephoned the mother to tell her she would not spend time with the mother that day, the mother began yelling and screaming at [X] over the telephone and telling [X] that she would discuss with her anything that she wanted to.
It is the father’s evidence that at his request his solicitors forwarded correspondence to the mother’s then solicitors dated 25 September 2012 to confirm that [X] did not spend time with the mother on
22 September 2012 and the reasons why that time did not take place. A copy of this letter is annexed to the father’s trial affidavit sworn 26 October 2012.
The mother agreed that [X] rang her on the morning of 22 September 2012 and told her that she did not want to attend. It is the mother’s evidence that she believes that [X] made the call and said she did not want to see the mother because the father had influenced [X] to do so.
The mother expressed the view that the father’s inability to ensure [X] attended for time with the mother was indicative of the father’s inability to control [X].
I am satisfied that the father used his best endeavours to encourage [X] to spend time with the mother on 22 September 2012 and that [X] was adamant in her refusal to do so.
I am further satisfied that [X] conveyed her feelings directly to the mother about not wanting to spend time with her and that the mother became abusive of [X] at this time.
In all these circumstances I am satisfied there was a reasonable excuse for [X] not spending time with the mother on the 22 September 2012 and I do not find the contravention proved.
Count Three
It is the mother’s evidence that she attended at Hungry Jack’s,
[N] at 10.00am on 6 October 2012 to collect [X] and the father failed to arrive and make [X] available for time with the mother.It is the mother’s evidence that she telephoned [X] to see where [X] was, and that [X] told her that she and the father:
…had made plans for that day.
The father gave no specific evidence in relation to the circumstances in which [X] failed to spend time with the mother on this date.
It is the father’s evidence however that he and [X] never made plans on the Saturdays that [X] was due to spend time with the mother and that he was as firm as he could be in his expectations of [X] that she was to spend time with the mother.
It is the father’s evidence that on the days [X] was to spend time with the mother, [X] would refuse to get out bed, refuse to put on clothes and would deliberately hide from the father in order to avoid having to spend time with the mother.
Despite the absence of specific evidence as to the circumstances in which [X] declined to spend time with the mother on 6 October 2012, I am satisfied that the father used his best endeavours to encourage [X] to spend time with the mother but that [X] was adamant in her refusal to do so.
In these circumstances I am satisfied there was a reasonable excuse that [X] did not spend time with the mother on 6 October 2012 and I do not find the contravention proved.
Count Four
It is the mother’s evidence that she attended at Hungry Jack’s, [N] at 10.00am on 13 October 2012 to collect [X] and the father failed to arrive and make [X] available for time with the mother.
It is the father’s evidence that he heard [X] and the mother speaking on the telephone on the evening of Friday 12 October 2012 and that [X] told the mother she did not want to spend time with the mother on the following day and that the mother should not wait for [X] at Hungry Jack’s.
It is the father’s evidence that after [X] hung up the telephone from talking with the mother, [X] told him that she did not want to spend time with the mother as the mother had called [X] “a little bitch” and that she did not trust the mother.
It is the father’s evidence that on the morning of 13 October 2012 he encouraged [X] to spend time with the mother but that [X] refused to do so. It is the father’s evidence that the mother rang [X] at approximately 10.00am on 13 October 2012 at which time [X] again told the mother that she did not wish to spend time with her on that day.
It is the father’s evidence that [X] told him that whilst the mother said she was waiting at Hungry Jack’s, [X] did not believe the mother to be at Hungry Jack’s because [X] could hear the mother using the keyboard on her home computer over the telephone whilst [X] was speaking to the mother.
It is the mother’s evidence that she did not call [X] “a little bitch”. It is the mother’s further evidence that [X] did not tell her that she did not want to spend time with the mother but that [X] told her that she and the father had already arranged to do something else on Saturday 13 October 2012.
I am satisfied that the father made all reasonable efforts to encourage [X] to spend time with the mother on Saturday 13 October 2012, but that [X] refused to go and advised the mother of this on Friday
12 October 2012 and again on Saturday 13 October 2013.Accordingly, in these circumstances I am satisfied there was a reasonable excuse for the father’s failure to comply with the orders of the Court and I do not find the contravention proved.
Count Five
It is the mother’s evidence that she telephoned [X] on numerous occasions pursuant to paragraph 3(b) of the orders made on
7 September 2012 and on each occasion her call went unanswered or the father answered the telephone to say that [X] was having dinner or had some other excuse as to why [X] could not come to the telephone.It is the father’s evidence that of the over one hundred calls that the mother has made to [X] since the orders were made in September 2012, [X] would have only missed two or three calls and that this occurred when either the call was missed or the mother had tried to telephone [X] after 6.30pm. The Court notes that the orders make provision for the mother to telephone [X] between 6.00pm and 6.30pm each evening.
It is the father’s evidence that [X] and the mother’s telephones conversations last anywhere from five minutes to an hour. It is the father’s evidence that there has been times he has asked [X] to hang up when [X] becomes angry and yells “stop it mum” or “I am not stupid”. It is the father’s evidence that often [X] or the mother hang up on each other.
It is the father’s evidence that if the mother hangs up then [X] will call the mother back and if [X] hangs up then the mother will call [X] back.
It is the father’s evidence there have been times when [X] has not wanted to take the mother’s call or instances when [X] was having her dinner and on those occasions it is the father’s evidence that he encourages [X] to answer the telephone, to tell the mother that she is having dinner and she will call the mother back in ten minutes or so. It is the father’s evidence if [X] does not return the mother’s call, the mother will call [X] back and ask why [X] has not as yet given her a call and this often leads to the mother and [X] arguing.
I am satisfied that there has only been two or three occasions when [X] has not spoken to the mother in accordance with the Court’s September 2012 orders, and that when this has occurred it has been because the telephone calls were made after 6.30pm or because the telephone calls were inadvertently missed.
Accordingly, I find that this contravention is not proved.
Count Six
It is the mother’s evidence on 20 October 2012 the father was late in delivering [X] to spend time with the mother in that the father and [X] arrived at Hungry Jack’s at 10.30am rather than at 10.00am.
It is the father’s evidence that he did drop [X] to the mother at 10.30am on the morning of 20 October 2012 but at the request of [X] and the mother, it was agreed that [X] would return to the father at 7.00pm rather than at 4.00pm as stipulated in the September 2012 orders.
The mother agrees that she returned [X] to the father at 7.30pm. It is the mother’s evidence that she was late in returning [X] to the father because the father had been late in delivering [X] to the mother earlier that day.
Given that [X] spent more time with the mother than stipulated in the September 2012 orders and that the mother returned [X] later than had been agreed between the parties on the day, I am satisfied there has been no contravention of the orders on this occasion and find accordingly.
Count Seven
It is the mother’s evidence that on Sunday 21 October 2012, [X] invited the mother to come and watch her play [sport omitted].
It is the mother’s evidence that she did not know where [X] was playing [omitted] on that day and was only advised of the location shortly before [X]’s game was scheduled to commence.
It is the mother’s evidence that in these circumstances she arrived at [venue omitted] just as [X] had finished playing her game. It is the mother’s evidence that she approached [X] who by this time was in the father’s car and that the father, in the presence and hearing of [X], shouted at the mother with venom:
Get away from my car you idiot.
It is the mother’s evidence that [X] got out of the car to speak to the mother and that the father continued to yell at the mother at which time [X] turned around and said:
Stop it dad.
It is the father’s evidence that when the mother arrived at [venue omitted] he and [X] were in the car. [X] was a little upset as she had lost her game. It is the father’s evidence that he and [X] heard loud banging on the window and door on [X]’s side of the car and it was the mother. It is the father's evidence that he did say to the mother “get away from my car” but denies adamantly that he called the mother “an idiot”.
It is the father’s evidence that after the mother banged on the car, [X] got out of the car, hugged the mother and [X] and the mother walked some six to ten metres away from the car where [X] and the mother talked for approximately ten minutes.
It is the father’s evidence that he eventually called out to [X] that it was time to go and that [X] called back to him:
Wait dad stop it.
It is the father’s evidence that he waited another few minutes and that [X] then said goodbye to the mother, got into the car and the father and [X] left.
It is the father’s evidence that at no time did he abuse or denigrate the mother in [X]’s presence or hearing on this day.
On the balance of probabilities I am satisfied the father did not abuse the mother in [X]’s presence or hearing and do not find the contravention proved.
Count Eight
It is the mother’s evidence that she attended at Hungry Jack’s, [N] at 10.00am on 27 October 2012 and the father failed to arrive and make [X] available to spend time with the mother.
The father did not specifically address this contravention in the affidavits filed by him or in his viva voce evidence.
However, in an annexure to the mother’s affidavit filed
7 November 2012, the mother annexed transcripts of text messages exchanged between the parties. The mother annexes a transcript of a text message that was sent to her by the father on 27 October 2012 at 9.37am in the following terms:[X] is cracking it. She’s saying she’s not going to you because you’ve been calling her stupid child and that you were screaming at her.
The mother responded to the father’s text message in the following terms:
You will have to explain the fact that you did not bring [X] again for changeover and how ‘sorry’ you are to the Court, see if they would believe your pathetic lies! I just left Hungry Jacks, having waited for more than an hour.
The mother was not cross-examined as to whether she and [X] had argued in their telephone conversations in the week leading up to
27 October 2012 and whether the mother had called [X] stupid and had screamed at her.On balance, I am satisfied that the father used his best endeavours to persuade [X] to spend time with the mother but that [X] refused to do so as a result of an argument between [X] and the mother in the week leading up to 27 October 2012.
In these circumstances I am satisfied that there was a reasonable excuse for [X] not spending time with the mother on this date. Accordingly, I do not find the contravention proved.
Count Nine
It is the mother’s evidence that she attended at Hungry Jack’s, [N] at 10.00am on 3 November 2012 to collect [X] and the father failed to arrive and make [X] available to spend time with the mother.
It is the mother’s evidence that having waited at Hungry Jack’s for approximately half an hour the mother asked the manager to call the father’s number which the manager did. It is the mother's evidence the father told the manager very rudely not to call again.
It is the mother’s evidence that at around 11.00am [X] telephoned her and told the mother that she was sorry she was not there at 10.00am but that she had just woken up because she was very tired having gone to bed late the night before. It is the mother’s evidence that [X] then asked if she could come later and it was agreed between the mother and [X] that [X] would spend time with the mother from 12 noon to 4.00pm.
It is the mother’s evidence that she waited until 12 noon but that [X] was not bought to Hungry Jack’s by the father.
It is the father’s evidence that on the morning of 3 November 2012 [X] was very upset and refused to get dressed. It is the father’s evidence that he received two or three calls from someone at Hungry Jack’s and that on the third occasion the father asked that person not to call again. The father denies that he was aggressive.
It is the father’s evidence that [X] spoke to the mother on the telephone at around 11.00am and that subsequent to that telephone conversation [X] came to the father and said
What have I done? I’ve told her I’m going and I don’t want to go.
It is the father’s evidence that he told [X] that she would have to go and spend the afternoon with the mother as she had told the mother that is what she was going to do.
It is the father’s evidence that [X] then started to avoid him, that she would not put her shoes on, that she went outside and started riding her bike, that she went and hid under the kitchen table and refused to get into the father’s car. It is the father’s evidence that he tried to physically take [X] to the car by taking her hand but that [X] pulled away and ran away from him.
It is the father’s evidence that because of [X]’s behaviours he was not able to take her to the mother at 12 noon and that he texted the mother to advise her of this.
I am satisfied that on this occasion the father did everything he could reasonably do to attempt to have [X] spend time with the mother and that the father has a reasonable excuse for his failure to provide [X] on this occasion. Accordingly, I do not find the contravention proved.
Conclusion
In relation to the nine alleged contraventions of the orders by the father, I have found that on each occasion there was either a reasonable excuse for time between [X] and the mother not taking place or that I am not satisfied on the balance of probabilities that the alleged contravention occurred.
Accordingly, the mother’s Contravention Application is dismissed.
Parenting Matters
The mother is seeking orders that she have sole parental responsibility for [X], that [X] live with her and that the father’s time with [X] be suspended until she and [X] return from two months in Bulgaria, a trip the mother proposes take place in September/October 2013. Thereafter the mother proposes [X] spend time with the father each alternate weekend from after school Friday to before school Monday, half terms holidays, ten days in the long summer vacation and for specified times at Christmas, on birthdays and Father’s Day.
The mother seeks orders be made to vary the current order that places [X]’s name on the Australian Federal Police Watch Lost to enable the mother to travel to Bulgaria with [X] in 2013.
The mother also seeks an order that the funds currently held in the Australian Scholarship Fund on behalf of [X] in the sum of $700.00 be transferred to her. The father proposes that these monies be divided equally between the parties.
The father seeks orders that he have sole parental responsibility for [X], that [X] live with him and that there be no orders specifying the time [X] spend with the mother but that rather [X] spend time with the mother as requested by [X]. The father opposes any orders that would enable the mother to take [X] out of Australia.
The father seeks that there be an order that the funds currently held in the Australian Scholarship Fund be divided equally between the parties.
The Independent Children's Lawyer proposes that the Court make orders that the father have sole parental responsibility for [X], [X] live with the father and spend time with the mother each alternate Saturday from 10.00am to 4.00pm, and for specified times on Christmas Day, Mother’s Day and on [X] and the mother’s birthdays. The Independent Children's Lawyer does not support any orders that would enable the mother to take [X] out of Australia.
The mother’s evidence
The mother relies on her affidavits filed 10 April 2012, 11 May 2012, 21 August 2012, 17 October 2012 and 7 November 2012. The mother also gave extensive viva voce evidence at the final hearing of this matter.
In support of the mother’s Initiating Application, the mother sought to rely on the evidence contained in the following affidavits filed on her behalf:
a)affidavit of Mr B sworn 3 June 2012 and filed 27 June 2012; and
b)affidavit of Ms S sworn and filed 31 October 2012.
Mr B was overseas at the time of the final hearing and unavailable for cross-examination. Accordingly, Mr B’s affidavit was not accepted into evidence.
Ms S, was not required for cross-examination by the father or the Independent Children's Lawyer.
The mother issued a subpoena requiring Sergeant S of Victoria Police and to Ms H, the Co-Ordinator of Children’s Contact Services at [B], to give evidence at the final hearing. Accordingly, Sergeant S and Ms H gave viva voce evidence at the final hearing of the matter.
The Mother
It is the mother’s evidence that she and [X] have a close and loving relationship which has been completely undermined by the father’s manipulation of [X] and the Court system to achieve his aim to take [X] from her.
It is the mother’s evidence that she was subjected to extreme and continuous violence at the hands of the father during the course of their relationship, that the father has continued to subject her to abuse and violence since separation and that she continues to be subjected to that abuse and violence to this day.
The mother was overtly rude and antagonistic towards the father during the entirety of the current proceedings commencing from April 2012 and continuing throughout the final hearing. The mother called the father, amongst many derogatory comments, “a liar”, “a lying bastard”, “a criminal”, “a bully”, “ignorant”, “lazy”, “aggressive”, “authoritarian”, “someone who uses people and abuses people”, “manipulative who will do anything to make himself look good” and someone who “only cares about himself”.
In direct response to a question as to whether the mother has anything positive to say of the father as a parent it is the mother's evidence that she did not have much good to say about him.
In direct response to a question as to whether the mother accepts the father loves his daughter, it is the mother's evidence that:
…he is a man who does not love he just uses and abuses people, not love them.
When specifically questioned as to whether the mother thinks that [X] loves her father, it is the mother's evidence that “of course she did”. When further questioned as to whether there would be anything positive that [X] could say about the father, it is the mother’s evidence that she does not think so. It is the mother’s evidence that she had asked this question of [X] herself and that [X] had not been able to answer her.
It is the mother's evidence that she does not believe that [X] is properly cared for by the father. It is the mother's evidence that [X] is overweight and had become more so whilst [X] lived with each party in a shared care arrangement. It is the mother's evidence that she believes [X] has become even heavier since being in the primary care of the father.
It is the mother’s evidence that she does not believe that [X] is fed nutritious food by the father and that she is often allowed to eat junk food as [X] would come home from spending time with the father asking for Cola-cola, chips and other junk food. The mother also complains that the father does not provide [X] with nutritious school lunches and raises concerns about the frequency with which the father allows [X] to have lunches from the school canteen.
It is the mother’s evidence that when [X] is with the father, [X] has no routine and is allowed to do as she chooses including going to bed when she wishes, watching television, not exercising and not doing her homework.
The mother also complains that the father does not properly attend to [X]’s hygiene when in his care.
It is the mother's evidence that [X] advised the mother that on
New Year’s Eve 2012, she and the father and the paternal grandmother did not return home until 3.00am having gone into Melbourne to watch the fireworks. It is the mother's evidence that she believes this is far too late for a child as young as [X].The mother is equally disparaging of the paternal grandmother who lives with the father and [X] and assists in [X]’s care.
In the mother’s viva voce evidence the mother describes the paternal grandmother as “a slave” and as “the maid of the house”, as the father’s “bludger mother who came to Australia and left the fourth husband in Greece” and that she came to Australia to “try help the father to take my children away from me”.
The mother categorically denies that she had ever physically or emotionally abused [X] in any way.
When questioned in relation to the allegations that [X] had made about abuse at the hands of the mother to the father, the school Counsellor Ms J, DHS and to the Dr H, the Family Report writer, it is the mother’s evidence that [X] lied and had been manipulated by the father to tell these lies as part of the father’s goal of taking [X] from the mother’s care.
It is the mother's evidence that she wants [X] to succeed educationally. It is the mother’s evidence that she is very keen for [X] to qualify for a scholarship to attend [H] College or to gain entry into a select State secondary college.
It is the mother's evidence that she made enquiries of [H] College as to how [X] could obtain a scholarship and was advised that the College would look at [X]’s NAPLAN results as well as the results of the entrance exam that [X] could sit in the latter part of primary school.
It is the mother's evidence that the first NAPLAN tests that [X] sat were in May 2011. It is the mother's evidence that she was most concerned that [X] was underperforming educationally and accordingly the mother purchased, and continues to purchase, many educational books for [X] to work on at home to assist her in maximising her potential and to enhance the possibility for [X] to obtain the much sought after scholarship.
During the cross-examination of the mother by Counsel for the father and Counsel for the Independent Children's Lawyer as to the extent of the additional study time the mother required [X] to undertake at home, it is the mother's evidence that she would ask [X] to do extra work each night. Such extra work was particularly focused on mathematics and English. It is the mother's evidence that she would require [X] to do approximately one hour extra work each night. It is the mother's evidence that when doing this work [X] would get stuck and did not really understand the extra work the mother was requiring [X] to do.
It is the mother's evidence as follows:
I was explaining once, twice, five times and she was still doing mistakes and I – I – I felt that she is not really taking in what I’m, you know, basic – basic things – basic things, she wasn’t taking in.
It is the mother's evidence that she required [X] to undertake this level of study in the lead up to the NAPLAN test in May 2011 but that after the test was over, the mother did not insist that [X] work as hard but that she encouraged [X] to continue to do extra work. It is the mother's evidence as follows:
But she – she didn’t want to do. She wasn’t keen, because its easier to sit on the couch and do nothing and run after the puppy and that. Its easier.
So she didn’t really – I struggled with her structure because when she goes to her father, she is let – do whatever.
She was finally sitting on the chair and then finding excuses and go to the toilet, stay in the toilet for a while, just to – just to – not do to – to – just not – to avoid doing the work.
…I tried to encourage her basically. I tried to – to tell her, [X], if you want please – just pick up your book by yourself and do a little bit of work and after that we can go and do something, you know, fun. We can go and have fun because we love having fun.
The mother was asked whether [X] took the mother’s direction and did the extra work. It is the mother's evidence as follows:
She did. She did on some occasions. On some occasions, yes she did. After repeating many times, she did.
The mother was asked whether she became frustrated with [X] when she did not do the extra study that the mother required. The mother responds to this questions as follows:
I was becoming disappointed with her and upset with her, of course. That would cause me a degree of frustration, wouldn’t it?
In response to further questions put to the mother in relation to the pressure that she placed on [X] to complete additional school work it is the mother's evidence as follows:
[X] is lazy. [X] prefers to do nothing and waste her time – she needs a lot of encouragement.
It is the mother's evidence that in the latter half of 2011 and the early months of 2012 [X] exhibited oppositional behaviour when in the mother’s care. These behaviours included [X] refusing to go to sleep at night and refusing to wake up in the morning so that she was regularly late to school. Further, [X] would not do as told by her mother and would run away and lock herself in the bathroom and not come out for several hours.
It is noted that [X] being regularly late for school has been an issue since [X] commenced school until July of 2012.
It is the mother's evidence that during this period she experienced difficulties in managing [X]’s behaviour and that she believes the cause for these difficulties was the shared care arrangement that had been in place for [X] since orders made in July 2007. It is the mother's evidence that she believes that such an arrangement was not in [X]’s best interests as [X] was not able to settle into a routine because she was moving between the mother’s and father’s homes where there were different expectations in relation to behaviour, discipline and standards of care.
The mother is quite adamant in her evidence that she is not to blame for [X]’s behaviours at this time.
In 2011 the mother was charged with two breaches of the intervention order that the father then had against the mother. The mother was also charged with unlawful assault of the father arising from an incident that occurred at changeover in or around March 2011 when the mother choked the father.
In 2012, after a defended hearing before the State Magistrates’ Court the mother was found to have breached the intervention orders and was placed on a 12 month good behaviour bond.
The charge of assault against the mother proceeded by way of a defended hearing in the State Magistrates’ Court in 2012 and the charge was found to be proved and the mother was placed on a bond. The mother was required to undertake an anger management course and receive counselling. The mother unsuccessfully appealed this decision to the County Court.
When cross-examined in relation to the police charges, the mother denied the charges against her and was adamant that there had been a gross miscarriage of justice and the convictions were as a result of her poor legal representation.
The mother’s behaviour during the entirety of these legal proceedings from April 2012 through to the final hearing of this matter has been highly volatile. The mother continuously interrupted proceedings by yelling out and by being abusive of the father, the father’s legal representatives, the Family Report writer, [X]’s school counsellor and school teacher and the Court.
Despite being told that her behaviour and demeanour in the Court would be something that the Court would take note of in the Court’s determination of the issues before it, the mother was unable to contain herself and there were many occasions when the matter was before the Court for interim hearings when proceedings had to be adjourned to enable the mother to regain control of her behaviour.
At the final hearing, the mother apologised to the Court for her behaviour. The mother was at pains to explain to the Court that it is the stress of Court proceedings which causes her to behave inappropriately and that under normal circumstances she is a kind, cheerful and fun person and does not behave in the manner observed in the Court.
When being cross-examined by Counsel for the Independent Children's Lawyer the mother said:
I’ve got a different personality. I feel very sorry that you have to see this aggressive and terrible sight of me. I feel really, really sorry that you’re seeing that side of me but that side is not my normal side. My personality… is totally different.
Ms H
Ms H is the Co-Ordinator of Children’s Contact Services at [B] (“[B]”).
As noted earlier in this judgment, orders were made by me on
6 August 2012, which made provision for [X] to spend week-about time with each of the parents and that changeover take place at
[B].Arrangements were put into place with [B] for changeover to take place for the first time on 18 August 2012 whereby [X] was to return to her mother’s care having not spent time with the mother for approximately five weeks.
Changeover could not be affected on that date and as a result the mother issued an urgent application in a case came before me on
7 September 2012. On that date Ms H gave viva voce evidence via telephone.In a brief judgment delivered by me on 7 September 2012 I set out in paragraphs five to nine my synopsis of Ms H’s evidence on that date as follows:
5. Ms H, the Coordinator of Children Contact Services at [B], gave vive voce evidence today by telephone in relation to what occurred on 18 August 2012 and shortly before that date and thereafter.
6. It is Ms H’s very even-handed evidence that [X] was adamant in her refusal to go to her mother. Ms H advised that [X] expressed a willingness to speak with the mother, but only if the mother promised not to take her from [B]. The mother was not prepared to make that commitment.
7. It is Ms H’s evidence that [X] attended [B] prior to 18 August 2012 for the familiarisation process. This process enabled [X] to become familiar with [B] and to be given information so that she understood what would happen at changeover. It is Ms H’s evidence that during this process [X] expressed real concerns and reluctance about whether she wanted to go to her mother once the time came.
8. It is Ms H’s evidence that on 18 August 2012, after an hour and a half of trying to persuade [X] to go with her mother, [B] properly did not proceed to facilitate changeover on that occasion, as that is not their role.
9. It is Ms H’s evidence that the father was present with [X] at all times when [X] was at [B]. This was not as a result of the father or [B] insisting on the father staying with [X] but because [X] refused to allow her father to leave the room, even when the father suggested to [X] that she speak to
Ms H on her own.
The mother issued a subpoena for Ms H to give further evidence in the matter and Ms H did so by telephone at the final hearing.
It is Ms H’s evidence that when completing [B]’s intake documentation the mother raised with [B] her concerns that there may be difficulties with [X] happily coming to the mother at changeover because of the manipulation and influence of the father.
Ms H gave evidence that [B] had no concerns that the mother would pose a risk to [X] if [X] were to leave with the mother. It is Ms H’s evidence that the reason that changeover did not occur on 18 August 2012 was because [X] was adamant that she did not wish to go with the mother.
It is Ms H’s evidence that [B]’s policy is that they require any child at [B] to be in the care of one or other of his or her parents at all times during changeover because if a parent were to leave the centre before the child was in the care of the other parent, that child would then be in the care of [B].
It is Ms H’s evidence that on 18 August 2012 the mother telephoned her then solicitor when difficulties arose with changeover and that
Ms H spoke to the solicitor and explained that they could not ask the father to leave [B] as that was against their policy.
It is Ms H’s evidence that she had suggested that [X] speak to the mother without leaving [B]. It is Ms H’s evidence that she chose not to proceed with that suggestion as she had formed the view that it would be too emotionally distressing for the mother and [X] if this were to take place, especially as the mother indicated that it would be difficult for her to see [X] and not be able to leave [B] with [X].
It is Ms H’s evidence that she had promised [X] that if [X] were to speak to the mother that it would be on the basis that she could guarantee [X] would not have to leave with the mother. Ms H formed the view that given the mother’s distress, and the mother’s comment to Ms H that the Court orders provided for [X] to be in the mother’s care, she would not have been able to keep that promise to [X] that [X] would not have to leave with the mother.
It is Ms H’s evidence that she had no concerns with how the father behaved at [B] on the day that changeover was not able to be effected. It is Ms H’s evidence that the father encouraged [X] to go to the mother and talked to [X] about how long it had been since [X] had seen her mother and that the mother was missing [X] greatly.
It is Ms H’s evidence that the mother contacted [B] on 19 August 2012 to enquire if changeover could be affected that day. Ms H gave evidence that [B] contacted the father to ascertain whether he was agreeable to attempting a changeover on that day and the father advised he was unwilling to bring [X] to [B] on that day because of [X]’s distress on the previous day and because [X] was still upset from that experience.
Sergeant S
Sergeant S is a member of the Victoria Police stationed at the [omitted] Family Violence Unit.
It is Sergeant S’ evidence that he met with the mother in early 2012 to explain to the mother why charges would not be laid against the father in relation to an incident that took place in late 2011 where the mother alleged the father had spat on her and on [X] during changeover. (An allegation which is strenuously denied by the father).
It is Sergeant S’ evidence that on that occasion he and the mother inspected the Kentucky Fried Chicken car park in [N] to ascertain whether there would be CCTV footage recording an incident, again at changeover, where the mother alleged that the father had sworn at the mother in [X]’s presence and hearing, albeit Sergeant S had no clear recollection as to the reason why the inspection of the car park and CCTV coverage was being undertaken.
It is Sergeant S’ evidence that when he met with the mother [X] was with her and he spoke to [X]. To the best of Sergeant S’ recollection the conversation he had with [X] was as follows:
Sergeant S: “Does dad treat mum badly?”
[X]: “Yes”.
It is Sergeant S’ evidence that it is hard for him to recall what then happened or what was said other than him telling [X] that if her parents did start behaving badly in front of [X] that she should tell to them to stop their behaviour.
It is Sergeant S’ evidence that he also asked [X]:
Have you seen or has dad ever spat at mum?
and [X] answered:
Yes, she had seen dad spit on mum.
It is Sergeant S’ evidence that the mother was standing approximately 20 metres away from where he and [X] were having their conversation and that whilst the mother was unable to hear the conversation, the mother was clearly in sight of [X] and Sergeant S.
The Father’s Evidence
The Father
The father relied upon his affidavits filed 16 April 2012, 6 June 2012,
18 July 2012, 3 September 2012, 26 October 2012 and 7 January 2013. The father also gave viva voce evidence at the final hearing of this matter.The father also filed an affidavit from his mother, Ms L, on 26 October 2012. The paternal grandmother requires a Greek interpreter. Whilst the father’s solicitors ensured an interpreter was available on days three to five of the final hearing, despite their best efforts, the father’s solicitors were unable to arrange an interpreter for day six when the paternal grandmother was, finally, to be called.
As the mother required the paternal grandmother for
cross-examination, the father was offered an adjournment of the matter to enable the paternal grandmother’s evidence to be placed before the Court. The father made the decision not to rely on the paternal grandmother’s evidence.It is the father's evidence that until late 2011 he was of the view that the shared care arrangement was working well for [X] as it enabled [X] to have a meaningful relationship with both the father and the mother.
It is the father's evidence that in early 2012 [X] began to refuse to return to the mother’s care after [X] had spent time with him and was refusing to attend school on those days when [X] knew the mother would collect her.
It is the father's evidence that [X] began disclosing to him some very concerning things that were happening to her when [X] was in the mother’s care including being hit by a belt and often being called names including “a loser”, a “fucking bitch”, a “fucking bastard” and “stupid”.
It is the father's evidence that approximately two weeks before the April 2012 term holidays, [X] told the father that the mother had been hitting her on the back of the head and the face. It is the father’s evidence that he was becoming more and more anxious about [X]’s safety when in the mother’s care.
It is the father's evidence, that because of [X]’s disclosures and reluctance to return to the mother’s care, he spoke to [X]’s teacher who in turned organised for [X] to meet with the school counsellor, Ms J.
It is the father's evidence that in late March 2012 [X] disclosed to him that the mother had chased her around the house threatening to hit her with a wooden spoon and that [X] had run into the bathroom and shut the door in order to protect herself from the mother’s anger.
It is the father's evidence between 29 March 2012 and
11 April 2012 he was unable to persuade [X] to return to the mother’s care despite his every effort to do so.It is the father's evidence that at the time the mother issued her application for a Recovery Order, the father had engaged his solicitors to file an Application on the his behalf seeking that [X] remain in his care as a result of his concerns about the abuse [X] was receiving at the hands of the mother when living with her.
It is the father's evidence that after the interim orders were made by me on 18 April 2012 which confirmed the living arrangements for [X] set out in the July 2007 orders continue, the father had ongoing difficulties in persuading [X] to return to the mother’s care.
It is the father's evidence that [X] would refuse to attend school on the days she was returning into the mother’s care. It is the father’s evidence that on the days [X] was due to return to the mother’s care he would drive [X] to school and she would refuse to leave the car. When this happened, the father had to approach [X]’s teacher, the school Principal and the school counsellor to assist him to persuade [X] to leave the car and go to school. It is the father’s evidence that on occasions [X] would become hysterical, start kicking and screaming and that the Principal or the school counsellor would have to take [X] by the hand and physically escort her into the school.
It is the father's evidence that on 17 May 2012 [X] disclosed to him that the mother had been questioning [X] about where [X] wanted to live, yelling and screaming at her, had locked [X] in the bathroom and had demanded that [X] explain why she did not want to live with the mother.
It is the father's evidence that on 1 June 2012 [X] disclosed to him that the mother had grabbed [X] by the hair, pulled [X] to her bedroom, had screamed and sworn at [X] and then grabbed a thong and started hitting [X] and that when [X] rolled into a corner of her walk-in-wardrobe the mother threw a thong at [X]’s face which resulted in [X]’s nose bleeding.
It is the father's evidence that when [X] returned to his care on
12 July 2012 after spending ten days with the mother during the mid-term school holidays, [X] was very quiet and upset. It is the father's evidence that later that evening [X] disclosed to him that on Tuesday 10 July 2012 [X] had an appointment to meet with the Independent Children's Lawyer which the mother had taken her to. It is the father's evidence that [X] told him that on the way to the appointment the mother had continually told [X] to tell the Independent Children's Lawyer that she did not want to spend time with the father and had threatened [X] that if she did not tell the Independent Children's Lawyer what the mother wanted her to there would be consequences. It is the father's evidence that [X] also told him that the mother had wanted to secrete a Dictaphone in [X]’s pocket to record [X]’s conversation with the Independent Children's Lawyer.
It is the father's evidence that [X] told him that after she had met with the Independent Children's Lawyer and was driving home with the mother, the mother continually badgered [X] to find out what [X] told the Independent Children's Lawyer and when [X] refused to answer the mother called [X] “a whore”.
It is the father's evidence that [X] then disclosed to him that after she and the mother arrived home, [X] ran to the bathroom to hide from the mother but that the mother snuck up on her and slapped her very hard in the face which caused [X]’s nose to bleed. It is the father's evidence that [X] then told him that the mother had grabbed her by the fringe, dragged [X] from the bathroom to the bedroom and commenced hitting her again on the head with [X] screaming at the mother to stop.
It is the father's evidence that [X] disclosed that when she told the mother that she told the Independent Children's Lawyer that she wanted to live with the father, the mother had become so enraged she had dragged [X] by the hair to the toilet and held [X] over it while her nose dripped blood into the toilet.
It is the father's evidence that on 12 July 2012 after [X] disclosed to him the abuse at the hands of the mother, the father examined [X] but she had no visible injuries and that as [X] begged the father not to tell anyone, it was not until Sunday 15 July 2012 that the father decided that given the seriousness of the allegations made by [X] he had to report them to the police.
It is the father's evidence that he attending the [N] Police Station on 15 July 2012 and that he was asked by the police officer to being [X] in for an interview which he did so on the evening of 15 July 2013. It is the father’s evidence, that after speaking with [X], they matter was referred the matter to DHS and Victoria Police’s Sexual Offences and Child Abuse Investigation Team (“SOCIT”).
It is the father's evidence that on previous occasions when [X] had made disclosures of abuse at the hands of the mother, the father had contacted DHS but they had declined to take any action in relation to his complaints.
It is the father's evidence that he did not contact DHS in July 2012 when [X] raised the serious allegations of abuse at the hands of the mother as he was of the view that DHS would not take these further complaints seriously, given that [X] had no visible injuries to substantiate her disclosures of abuse.
As a result of the seriousness of the complaints made by [X], the father instructed his solicitors to make an urgent application for interim orders suspending [X]’s time with the mother. The outcome of those applications have previously been set out in this judgment.
It is the father's evidence that [X] continues to be reluctant to spend time with the mother, even on the limited day time basis that the current arrangements make provision for. It is the father’s evidence that despite his very best efforts there has only been a few occasions when the father has been able to persuade [X] to spend time with the mother in accordance with the current orders.
It is the father's evidence that [X] and the mother speak daily in accordance with the current orders but there have been many occasions when either the mother has hung up on [X] or [X] has hung up on the mother as a result of them arguing. It is the father's evidence that he has heard the mother calling [X] “a bitch” over the telephone.
It is the father's evidence that [X] has told him that on the few occasions she has spent time with the mother on a Saturday in accordance with the current orders, the mother badgers her to tell the Independent Children's Lawyer that she wants to live with the mother. Further, it is the father's evidence that [X] has told him that the mother puts pressure on her to write a letter or email saying she wants to live with the mother for the mother to use as evidence in these proceedings.
It is the father’s evidence that [X] spent time with the mother on
12 January 2013. The mother did not return [X] to the father until 6.30pm. It is the father's evidence that [X] told him that the reason [X] and the mother returned late was because [X] had refused to agree to the mother’s demands that [X] tell the Independent Children's Lawyer that she wanted to live with the mother or write the letter in those terms the mother had kept [X] in the car in her closed garage for up to two hours pressuring [X] to write an email or speak to the Independent Children's Lawyer
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This section is not relevant.
Section 60CC(3)(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both parties in this matter dearly love their daughter [X] and want only what they think is best for her.
That the parties are unable to agree as to what is in [X]’s best interests has meant that for the entirety of [X]’s life she has been exposed to the deep-seated and intractable conflict between them.
Further, the mother’s overwhelming desire for [X] to succeed academically, coupled with the mother’s extreme personality style means that [X] has been subjected to emotional and physical abuse by the mother.
The mother denies all allegations that she abuses [X] and apportions all responsibility for [X]’s oppositional behaviour, disclosures of abuse and resistance to spending time with her at the feet of the father, alleging manipulation, continuous denigration of her as [X]’s mother and a longstanding campaign by the father and the paternal grandmother to take [X] from her.
The mother sees herself as the victim of the father’s behaviours and accepts no responsibility for the breakdown of her relationship with [X].
Sadly, I am satisfied that the difficulties in the mother’s relationship with [X] lie almost entirely with the mother.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
My findings in relation to the violence and abuse perpetrated by the mother on [X] are clearly set out in this judgment and will not be repeated here.
The mother makes very serious allegations of abuse both physical and emotional by the father both prior to and following the breakdown of the parties’ relationship. Those allegations that predate the hearing of the matters before the Family Court and the Federal Magistrates Court in 2007 will not be re-agitated here.
It is the father's evidence that it is the mother who has been physically abusive of him. The mother denies these allegations.
In relation to the mother’s allegations of abuse since the matter was before the Court, I prefer the evidence of the father in relation to these incidences and find that the mothers allegations of violence by the father all unsubstantiated.
There are findings made in the State Courts that uphold the allegations made against the mother and those findings will not be challenged by me, despite the mother’s proclamations that in each instance there was a miscarriage of justice as a result of her inept legal representation.
Section 60CC(3)(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
As noted, the parties have been in almost continuous litigation either in this Court, the Family Court or within the State system since their separation in December 2003.
It is difficult to see that litigation ending despite the mother’s protestations that she wishes out of the Court system.
The mother was quite clear that in the event this Court made orders with which she disagrees, she will immediately appeal the determination. I believe she will do so.
The father proposes this Court make orders that do not define [X]’s time with the mother but rather that there be an order that the father facilitate [X] spending such time with the mother as [X] requests.
The father argues that given [X]’s current reluctance to spend regular time with the mother because of the mother’s ongoing abuse of [X] when [X] does spend time with the mother, any orders for specified time between [X] and the mother would result in further Contravention Applications being filed by the mother.
The Independent Children's Lawyer proposes that orders be made for [X] to spend time with the mother each alternate Saturday from 10.00am to 4.00pm.
The very difficult task for this Court is to put in place arrangements that would ensure [X] spend time with the mother but does this in such a way that the mother does not put unnecessary pressure on [X] to see her and avoids ongoing Contravention Applications.
Section 60CC(3)(m) any other fact or circumstance that the court thinks is relevant
The mother is seeking orders that she be permitted to travel with [X] to Bulgaria to visit [X]’s ailing maternal grandmother who [X] has never met.
If such an order was made the current Australian Federal Police Watch List order whereby the parties are restrained from taking [X] from Australia would need to be varied to enable such travel to take place.
The father opposes the mother’s application to be permitted to travel out of Australia with [X] as he is of the view that if permitted to travel to Bulgaria the mother would not return to Australia with [X].
The mother is also seeking that $700.00 that is currently in the Australian Scholarship Fund for [X] be distributed entirely to the mother.
It is the father’s proposal that the monies in the Australian Scholarship Fund be divided equally between himself and the mother.
Both these matters will be addressed shortly in the conclusion to this judgment.
Conclusion
This is the third time that the question of what are the best living arrangements for the parties’ 10 year old daughter, [X], has been determined by the Courts since the parties separated 12 months after [X] was born.
In the judgment delivered by the Honourable Justice Brown on
10 March 2005, Her Honour in paragraph 22 states as follows:As noted earlier, Ms Denny acted for herself which is difficult for any litigant and particularly one in her position. She has no family in Australia and few friends and supports. It is probable she is very isolated and feels financially, physically and emotionally vulnerable. But even making allowances for that position, her evidence about Mr Denny’ family members was highly coloured and offensive, and I doubt she has the capacity to keep her opinions about them from [X]. For example, she asked the Court to take account of the fact that all Greeks are scoundrels, crooks and liars; she described Mr Denny’s mother as an evil, hysteric, uneducated, low mentality woman; she said
Mr Denny’s father was a chronic alcoholic and violent man and his sister a woman with psychological problemsIn paragraph 28 at the conclusion of Her Honour’s judgment in relation to children’s matters Justice Brown states as follows:
Whilst I have some sympathy for Ms Denny’s vulnerable position, she must realise that she has a responsibility to make contact orders work. Were these orders to be contravened as often as the orders made in May 2004, one could anticipate the potential for Mr Denny to seek a residence order in his favour.
In the judgment of Federal Magistrate O’Sullivan delivered on
23 July 2007 His Honour noted the mother’s evidence that she believed the father had used the Court system to cause her further detriment both emotionally and financially. His Honour further noted that the mother continued to be angry and unable to shield her negative views of the father from [X].In July 2007 His Honour Federal Magistrate O’Sullivan made orders that put in place a shared care arrangement whereby [X] lived with the mother and spent six days in a fortnight with the father.
Those arrangements continued, albeit with some difficulty including two findings by this Court that the mother had contravened those orders, until April 2012 at which time the father overheld [X] as a result of [X] refusing to return to the mother’s care because of the emotional and physical abuse that [X] had suffered when in the mother’s care.
When [X] was not returned to the mother’s care, she immediately brought an urgent application for a Recovery Order and at the same time the father brought an application that the July 2007 orders be suspended and that [X] live in the father’s care.
The parties’ applications first came before me on 18 April 2012. It was agreed by the parties that [X]’s living arrangement would continue in accordance with the orders made in July 2007 pending a final hearing of the matter.
[X]’s living arrangements continued in accordance with the July 2007 orders until July 2012 when interim orders were made suspending [X]’s time with the mother in light of serious allegations and disclosures made by [X] about physical and emotional abuse at the hands of the mother in early July 2012.
The allegations of abuse made by [X] in July 2012 were investigated by DHS. In a section 69ZW(1) report DHS indicated [X] allegations and disclosure of physical and emotional abuse by the mother had not been substantiated by them on the basis that Child Protection believed the language [X] used to describe the abuse was to sophisticated for her chronological age and as such her allegations of abuse had been coached.
Subsequent to the receipt of the report from DHS, orders were made by consent that [X] live week-about with each of the parties pending the final hearing of this matter. The orders also made provision that the changeover between parents take place at [B].
On 18 August 2012 changeover was attempted at [B] when [X] was to return to the mother’s care for the first time since she disclosed the mother’s abuse in July 2012. [X] adamantly refused to return to the mother’s care despite the professional efforts of [B] to assist her to do so. As a result of [X]’s refusal to return to the mother, interim orders were made on 7 September 2012 for [X] to continue to reside on a full-time basis with the father and spend each Saturday from 10.00am to 4.00pm with the mother.
Since 7 September 2012 [X] has only spent a handful of Saturdays with the mother. [X] has generally refused to spend time with the mother and has made further disclosures that on the few occasions she has spent time with the mother, the mother subjects her to ongoing pressure and abuse to tell the Court, the Independent Children's Lawyer and the Family Report writer that she wishes to return to live with the mother.
Dr H prepared two Family Reports for the assistance of the Court.
Dr H concludes in his second report that he is of the view that [X]’s disclosures of abuse at the hands of the mother are genuine, and that the mother has subjected [X] to physical and emotional abuse and will continue to do so at any time [X] refuses to comply with the mother’s directions and demands.It is Dr H’s evidence that he believes that [X] is at risk of abuse by the mother if she were to spend any substantial or significant time with the mother. It is Dr H’s strong recommendation that at best [X] should spend very limited time with the mother and that if during such time the mother were to become agitated or abusive, [X]’s safety must be assured.
Professor B, neuropsychologist, conducted a neuropsychological assessment of the mother. It is Professor B’s evidence that the mother’s judgment is influenced by the mother’s emotional state and that the mother’s adequate cognitive functioning cannot be relied upon to regulate her emotional distress sufficiently so that harm to [X] does not continue.
The mother put to Professor B that it is the stress and anxiety of ongoing litigation which causes her behavioural difficulties and that absent litigation the mother is a normal, loving and happy person. It is Professor B’s evidence that whilst the stressors of the litigation would account for some 40 per cent of the mother’s behaviour, Professor B is of the view that the mother’s reactive behaviours are as a direct result of personality and will continue even absent any involvement by her in litigation.
Ms J, [X]’s school counsellor, and Ms E, [X]’s class teacher during 2012, both gave evidence to the Court of the difficulties encountered by [X]’s school in their interactions with the mother.
Ms E gave evidence that the school had to put in place special arrangements to ensure that Ms E was not continuously exposed to the mother’s aggression and abuse. These arrangements included the school changing the area in which Ms E conducted yard duty and having another teacher dismiss Ms E’s class at the end of the day.
Both Ms J and Ms E gave evidence of there having been a complete turn around in [X]’s behaviour at school since [X] came into the father’s primary care in July 2012. [X] went from being an antisocial and unpopular student to one who is making friends easily.
Ms J and Ms E also gave evidence that there has been a marked improvement in [X]’s academic performance. At the end of first semester [X] was below the level expected from a child in [X]’s grade, and by the end of 2012 [X] was at level or higher.
Ms J and Ms E also gave evidence that since [X] has lived with the father, she regularly attends school on time which contrasted markedly with the longstanding issue of late arrivals by [X] at school since she started in Prep.
The mother adamantly denies the allegations and disclosures of abuse made by [X] and it is the mother’s evidence that [X] was lying when she told Dr H and Ms J that she has been hurt by the mother or abused and belittled by her.
It is the mother's evidence that [X] made the disclosures of abuse as a direct result of manipulation by the father who has been running a long term campaign to undermine the mother to [X]’s school, treating practitioners and to this Court with a view to removing the mother from [X]’s life.
It is the father's evidence that he believes [X]’s disclosures about her abuse at the hands of the mother and that whilst he knows [X] loves the mother, he is now of the view that it is in [X]’s best interests that she should live with him and spend very limited time with the mother so as to ensure [X]’s physical and emotional wellbeing and safety.
As set out earlier in this judgment, I am satisfied that the disclosures that [X] has made in relation to the physical and emotional abuse at the hands of the mother are genuine and that the abuse took place.
Throughout the course of these proceedings, the mother’s behaviour at times has been totally unacceptable. The mother has been unable to contain her anger and outrage when evidence was given with which she disagreed and has loudly and angrily interrupted the Court proceedings and any evidence or submissions being made with which the mother did not agree.
Whilst the mother was legally represented at the commencement of these proceedings the mother was self-represented at the final hearing of this matter. During the six days of the final hearing, the mother was unable to control her outbursts. The mother was abusive, loud, angry and continuously interrupted the witnesses, Counsel for the father, Counsel for the Independent Children's Lawyer and the Court. When cross-examining the father, Dr H, Professor B, Ms J and Ms E, the mother was argumentative, rude and insulting in her questions and in her interruption of the witnesses, especially when she did not agree with the evidence being given.
The mother is at pains to explain to the Court that her behaviour during the Court proceedings did not reflect her true self but was rather a direct result of the stress and anxiety that the ongoing litigation has placed upon her and that absent that litigation she is a caring, loving and happy person who loves life and who shares a close and harmonious relationship with her daughter.
I do not accept the mother’s submissions in this regard. Whilst accepting that for a self-represented litigant, litigation is a difficult and confronting process, the mother’s inability to control herself is very concerning.
The evidence of Ms E, [X]’s class teacher, about the level of abuse that the mother subjected Ms E to when she did not agree to the mother’s demands is most telling and I believe indicative of how the mother responds to anyone the mother perceives to be in any way criticising her or not agreeing with her point of view.
I would suggest that this opinion is supported by the observations of Professor B in relation to the cause of the mother’s unacceptable behaviour being vested in the mother’s personality rather than as a result of the stressors of litigation.
Both Professor B and Dr H were questioned in relation to the utility of therapeutic intervention to assist the mother in addressing the issues that have given rise to the breakdown of her relationship with [X].
Whenever these matters were raised with either of Dr H or Professor B, the mother interjected angrily with vehement denials that she needs any therapy. The mother took real offence with any suggestions that she has any mental health issues whatsoever.
It is quite apparent that the mother does not accept that there are personality issues that she needs to address and fails to accept that the suggestion for therapeutic intervention is not an allegation that she suffers from mental health issues but are directed to her behavioural and personality issues.
It is the evidence of both Dr H and Professor B that unless and until such time that the mother accepts that there are issues about herself that she needs to address, therapeutic intervention would not be efficacious.
[X] has been quite clear that she wishes to live with the father and that she wants to see the mother but only in circumstances where she is safe and the mother, to put it simply, is nice to [X].
Given the Courts findings of abuse by the mother, and [X]’s strong views that she live with the father, I am of the view that in this matter the best interests of [X] are met by the father having sole parental responsibility for [X] and for [X] to live in the father’s primary care.
In relation to the time that [X] spends with the mother, it is the father’s proposal that there be no defined time and that orders be made that [X] spend time with the mother at [X]’s request.
The Independent Children's Lawyer also recommends that the father have sole parental responsibility and that [X] live with the father. It is the Independent Children's Lawyer’s proposal however that [X] should spend every second Saturday with the mother from 10.00am to 4.00pm on the basis that this will allow [X] to maintain a relationship with the mother but in circumstances where the risk of [X] being exposed to further emotional or physical abuse by the mother is minimised.
The concern with the father’s proposal is it leaves [X] open to unrelenting pressure from the mother to come and spend time with the mother and leaves the responsibility for when that time should be on [X]’s already overburdened young shoulders.
The difficulty with the Independent Children's Lawyer’s proposal for regular fortnightly time for [X] with the mother is that at this time [X] is exhibiting real resistance to spending any kind of regular time with the mother and has, despite the father’s best efforts to encourage [X] to do so, refused to spend time with the mother other than on a handful of occasions.
On balance, I am of the view that orders should be made that define the time that spends with the mother but that at this time once a fortnight may be more than [X] can comfortably and reasonably accommodate.
Accordingly, it is my intention to make orders that the father have sole parental responsibility for [X], that [X] live with the father, and that [X] spend time with the mother on the last Saturday of each month from 10.00am to 4.00pm and otherwise as agreed between the parties. Further, orders will be made for [X] to spend time with the mother on special occasions including Christmas Day, [X]’s birthday, the mother’s birthday and Mother’s Day.
The current interim orders that are in place make provision for the mother to telephone [X] every night between 6.00pm and 6.30pm. It is the father’s evidence, which I accept, that the majority of these calls have taken place but that there have been many occasions where those telephone calls have ended up in heated arguments between [X] and the mother and in the mother becoming abusive to [X] which have caused [X] some distress.
Accordingly, I intend to make orders that there be telephone communication between [X] and the mother each Wednesday and Sunday between 6.00pm and 6.30pm and that otherwise the father facilitate [X] contacting the mother upon [X]’s reasonable request to do so.
Given the modern electronic age I am also going to make orders that will facilitate electronic email communication between [X] and the mother. However such orders shall provide that if the mother sends [X] emails that are in any way abusive of [X], the father or the paternal family or put pressure on [X] to spend time with the mother such email communication will cease.
Orders will also be made which will require the father to authorise any school attended by [X] to forward to the mother copies of all school reports, newsletters and the like
Given the evidence of Ms E and Ms J of the mother’s behaviour at [X]’s school, an order will be put in place that injuncts the mother from attending at [X]’s school, without the specific invitation of the Principal.
The father will be authorised to provide a copy of these orders to the Principal of any school attended by [X].
Orders will be made that will require the parties to notify each other of any serious illness or injury suffered by [X] when in their care and to authorise the other party to speak to any doctor treating [X] in relation to that serious illness or injury.
The Independent Children's Lawyer sought orders requiring the mother to attend upon a psychologist to address the issues raised in the reports of Dr H and Professor B. Given the evidence of both Dr H and Professor B as to the necessity for the mother to accept the need for such intervention and the mother’s clear resistance to the necessity for therapy I am not persuaded that anything is to be gained from making an order in the terms proposed by the Independent Children's Lawyer.
It is however hoped that the mother will grasp the necessity for her to undertake therapeutic intervention to help her address her behavioural issues because it is most apparent to this Court that absent such an intervention, the mother’s relationship with [X] can never be the close and loving one that the mother so desperately craves.
Given [X]’s intelligence and relative maturity, [X]’s life long exposure to the parties’ negative views each of the other and her current reluctance to spend time with the mother, it will be important that these orders be properly explained to [X]. I intend to make an order that the Independent Children's Lawyer meet with [X] within 14 days to explain these orders to her and that the father ensure he facilitates [X] meeting with the Independent Children's Lawyer to enable this to take place.
[X] travelling to Bulgaria
The mother is seeking orders that she be permitted to travel with [X] to Bulgaria in order to visit the maternal grandmother who is most unwell.
It is the mother’s evidence that if permitted to travel to Bulgaria, she has no intention of remaining in Bulgaria with [X]. It is the mother’s evidence that she has her own home in Australia and that Bulgaria is an economically depressed country. It is the mother’s evidence that she believes that it is in Australia that she and [X] have the best opportunities into the future. Accordingly, the mother denies that she will not return to Australia with [X] if allowed to travel to Bulgaria with [X].
The mother sought orders that she be permitted to travel with [X] to Bulgaria in proceedings that came before Federal Magistrate Burchardt in March 2009.
On 1 May 2009 His Honour handed down his decision in relation to that application. In paragraph 68 of His Honour’s judgment
Federal Magistrate Burchardt states as follows:68. Ms Denny’s (sic) desire to visit Bulgaria and take [X] with her is entirely understandable and would in a general way fit well within the objects of the legislation. It is desirable that [X] be made aware of the culture from which her mother has sprung and it is desirable that she meets her extended family.
In paragraph 70 however His Honour states as follows:
70. What would be severely detrimental to [X]’s best interests would be to be removed from her father to a foreign land and not returned. The problems this would cause [X] are self-evident. She has been found by the court to have a loving bond with her father and his extended family. Her right to the benefit of that relationship is set out in s.60B and s.60CC(2) of the Family Law Act (“the Act”) and is reflected in the current court orders. I am not prepared to permit that relationship to be sundered.
In paragraphs 71, 72 and 75 His Honour found as follows:
71. In addition to the objective factors already described, I am influenced at least to an extent by Ms Denny’s (sic) demeanour. I make every allowance in her favour for the stress that the proceedings impose upon her and I make every allowance for the difficulties that she may have in expressing herself in English.
72. Having said this, it must also be said that Ms Denny is very unfortunately a very unconvincing witness.
75. Ms Denny plainly regards the father in the most negative terms and despite numerous proceedings giving rise to judgments in which the desirability of her coming to terms with the child’s relationship with the father… she has wholly failed to do so.
His Honour then states quite boldly in paragraph 76 as follows:
76. There is no escaping the conclusion that I think I must put in bald terms. If Ms Denny goes to Bulgaria with [X] I do not think she will bring [X] back.
For these reasons His Honour declined to make the orders sought by the mother at that time to be able to travel with [X] to Bulgaria.
I too am of the same view as Federal Magistrate Burchardt. I am satisfied that if the mother was permitted to travel with [X] to Bulgaria she would not return to Australia with [X].
In these circumstances the mother’s application for permission to take [X] to Bulgaria is refused.
Monies held in the Australian Scholarship Fund
It would appear that during the parties’ relationship monies were placed into an Australian Scholarship Fund for the benefit of [X]’s education. Those monies have sat in that fund since separation.
The mother is seeking an order that she receive the whole of the those funds on the basis that she needs the money for [X]’s support.
The father seeks an order that the funds be divided equally between he and the mother.
Given the orders being made in this matter that [X] reside in the father’s primary care and that the entirety of the financial responsibility for [X] will rest with him as the mother is unlikely to be in a position to pay child support given her longstanding dependence on social security, the father’s proposal is more than generous and orders will be made in the terms proposed by him.
I certify that the preceding five hundred and eighty-six (586) paragraphs are a true copy of the reasons for judgment of Bender FM
Associate:
Date: 15 March 2013
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