Dickens and Dickens
[2011] FMCAfam 1421
•20 December 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DICKENS & DICKENS | [2011] FMCAfam 1421 |
| FAMILY LAW – Parenting – competing residence applications – children aged 10 and 8 years – entrenched high level conflict – family violence – father’s capacity to meet the children’s emotional needs – sole parental responsibility. |
| Family Law Act 1975 ss.4, 60B, 60CA, 60CC, 61DA |
| Jones v Dunkel (1959) 101 CLR 298 |
| Applicant: | MR DICKENS |
| Respondent: | MS DICKENS |
| File Number: | SYC 739 of 2010 |
| Judgment of: | Sexton FM |
| Hearing dates: | 15, 16, 17 August, 27 and 28 October 2011 |
| Date of Last Submission: | 28 October 2011 |
| Delivered at: | Sydney |
| Delivered on: | 20 December 2011 |
REPRESENTATION
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Ms M. Falloon |
| Solicitors for the Respondent: | Athena Touriki Solicitors |
| Counsel for the Independent Children’s Lawyer | Mr R. Maurice |
| Solicitors for the Independent Children’s Lawyer | Moylan Family Lawyers |
THE COURT ORDERS THAT:
All previous parenting orders be discharged.
The children [X] born [in] 2001 and [Y] born [in] 2003 live with the Mother.
In the event the Children are living with the Father at the date of these Orders, the Mother collect the Children at 4.00p.m. on the date of these Orders from inside [R] police station.
The Mother have sole parental responsibility for the Children on condition that:
(a)Unless an emergency, the Mother advise the Father in writing at least a month in advance of any major decision she proposes to make, with the reasons for her proposed decision; and
(b)The Mother have regard to any issues raised by the Father in response, before finalising her decision; and
(c)The Mother notify the Father in writing when the final decision has been made.
The Father engage in counselling with a clinical psychologist or psychiatrist of his choice, for a minimum period of 12 months from the date of his first appointment, but for additional time as recommended by his therapist, such therapy to include at least 12 appointments, to address issues concerning his emotional health raised in the expert report of Dr R and in these Reasons for Judgment.
Within 2 calendar months, the Father provide the Independent Children’s Lawyer with the name and contact details of his psychologist/psychiatrist and the Independent Children’s Lawyer provide the psychiatrist/psychologist with a copy of Dr R’s report, a copy of these Orders and Reasons for Judgment, in advance of the Father’s first appointment.
Each party complete a Parenting after Separation course with an accredited agency in the 2012 calendar year.
Until the Father has complied with Orders (5)- (7), the Children spend time with the Father as follows:
(a)During school terms, on each alternate weekend from after school Friday until before school on Monday commencing on the second weekend of each school term in even numbered years, and the first weekend of each school term in odd numbered years;
(b)On Father’s Day from 9.00a.m. until 5.00p.m;
(c)On each of the children’s birthdays, in the event that the birthday falls on a school day, from the conclusion of school until 6.00p.m. or in the event that the birthday falls on a non-school day, from 12 noon until 5.00p.m;
(d)For half of the school holiday periods at the end of Terms 1, 2 and 3, being the second half in 2012 and all even numbered years and the first half in 2013 and all odd numbered years, commencing at 10.00a.m. on the first full day of the holidays and ending at 5.00p.m. on the last full day of the holidays, with changeover to occur at 6.00p.m. on the middle of those two days, unless otherwise agreed;
(e)During the Christmas school holiday period in 2011/12, from 6.00p.m. on Sunday 15 January 2012 until 6.00p.m. on Sunday 29 January 2012;
(f)Except as provided in Order (8)(e), for half the Christmas school holiday period, being the first half in the 2012/13 school holiday period and alternate years thereafter, and the second half in the 2013/14 school holiday period and alternate years thereafter, commencing at 10.00a.m. on the first full day of the holidays (deemed Day 1 of the holidays) and ending at 5.00p.m. on the last Sunday of the school holidays (deemed the last day), with changeover to take place at 6.00p.m. on the middle day between Day 1 and the last day, or if two middle days, at 6.00p.m. on the first of the two middle days, unless otherwise agreed; and
(g)At any other or alternative time as agreed between the parties.
Each party ensure each child has liberty to telephone or communicate electronically with the other party at any reasonable time.
Upon receipt by the Mother of a report from the Father’s treating psychiatrist/psychologist verifying the Father’s compliance with Order (5), and confirming that the Father has successfully addressed his emotional issues raised by Dr R as outlined in his report and in these Reasons for Judgment, the Children spend time with the Father, unless otherwise agreed, as follows:
(a)During school terms, on each alternate weekend from after school Thursday until before school on Monday commencing on the second weekend of each school term in even numbered years, and the first weekend of each school term in odd numbered years; and
(b)For half of each school holiday period as specified in Order (8).
In the event that the children are in the Father’s care in accordance with these orders, the children’s time with the Father be suspended:
(a)On Mother’s Day between 9.00a.m. and 5.00p.m; and
(b)On each of the children’s birthdays between after school and 6.00p.m. if a school day and between 12 noon and 5.00p.m. if a non-school day.
Unless otherwise provided, changeover occur at the children’s school if a school day and if a non-school day, the Mother deliver the children to the Father at the commencement of time and the Father deliver the children to the Mother at the conclusion of time and each party remain outside the other’s residence for the purpose of changeover.
Each party be restrained from:
(a)Making any negative remarks about the other party or any member of the other party’s family or any partner of either party, in the presence and/or hearing of the Children, such Order to include verbal, written or electronic means including email and text message; and
(b)From discussing these proceedings in the presence/and or hearing of the Children, or from showing the Children any documents relating to these proceedings.
Until [Y] attains 16 years, the Applicant and the Respondent, by themselves, their servants or their agents be hereby restrained from removing or attempting to remove the Children [X] born [in] 2001 (male) and [Y] born [in] 2003 (male) from the Commonwealth of Australia.
The Marshal of the Federal Magistrates Court of Australia and all officers of the Australian Federal Police and of the police forces of the states and territories of the Commonwealth of Australia are requested to give effect to these orders and to take all necessary steps to prohibit either party from removing or attempting to remove the said Children from the Commonwealth of Australia.
Until further order the Commissioner of the Australian Federal Police and the Secretary of the Department of Immigration and Citizenship take all necessary steps to immediately place the said Children’s names on the airport watch list, also known as the PACE Alert system, at all points of arrival and departure in the Commonwealth of Australia. The Australian Federal Police maintain an airport watch of the said Children on all flights leaving any international airport in all states and territories of the Commonwealth of Australia.
Each party meet half the costs of Dr R giving evidence in these proceedings by paying the amount requested by the Independent Children’s Lawyer to the Trust Account of the Independent Children’s Lawyer within 7 days of such request.
The appointment of the Independent Children’s Order be discharged upon the Father’s compliance with Order (6) or within 3 calendar months, whichever is the earlier.
Pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Dickens & Dickens is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYC 739 of 2010
| MR DICKENS |
Applicant
And
| MS DICKENS |
Respondent
REASONS FOR JUDGMENT
(As Corrected)
Introduction
The parties have been unable to agree on parenting arrangements for their only two children [X], aged 10 years and [Y] aged 8 years. After a 17 year relationship, the parties separated in late 2008. Since then, by agreement between them, the children have spent approximately equal time with each party in 7 day blocks. The parties’ relationship has deteriorated to such an extent that they are no longer communicating. Each party now seeks to be the children’s primary carer and to limit the children’s time with the other party.
Dr R, consultant psychiatrist and the Court appointed expert, assesses both parties as having a lot to offer as parents. However, in his view, the Father is suffering a major grief reaction to the breakdown of the parties’ relationship which is affecting his interaction with the children and with the Mother, to the detriment of the children. Dr R identifies the Father’s need for substantial grief counselling as the major issue. However, the Father rejects his opinion. The Father believes that the difficulties all lie with the Mother, who he says has a history of mental illness. So confident was the Father about his own position, the Father asked the Mother in cross-examination “did you offer an inducement to Dr R to get a favourable report?” In Dr R’s opinion, the Mother does not suffer a psychiatric illness, and unless the Father accepts and addresses his need for grief and loss counselling, the children will be further harmed by an ongoing equal shared care arrangement and should live primarily with the Mother.
In cross-examination, Dr R said the children were showing some “worrying signs” of developmental disturbance as a result of the pressure on them to be responsible for the Father’s sadness[1].
[1] At page 6 of the transcript of proceedings – 15 August 2011
The Mother and the Independent Children’s Lawyer were represented by counsel. The Father was self represented.
Background
The Father migrated from Romania to join his brother in Australia in March 1985. He met the Mother in 1991, when she was still a teenager. The parties married [in] 1995. [X] was born [in] 2001 and [Y] [in] 2003. The parties separated under the one roof in October 2008, lived in separate accommodation from December 2008 until April 2009, when they again lived under the one roof intermittently until July/August 2009 when the Mother left the former matrimonial home. In December 2008 the parties instituted a week and week about parenting arrangement. The parties divorced in April 2010.
The Father, aged 47 years, is a [occupation omitted]. He was made redundant by his employer following the global financial crisis, immediately prior to separation. He now works for himself as a [occupation omitted], though says he has applied unsuccessfully for a number of positions. According to his Financial Statement sworn in February 2011, he earns $50 a week from [omitted] and receives $400 a week by way of a Centrelink parenting payment. Since March 2011, the Father has received child support from the Mother of approximately $1,300 a month. The Father lives in the former matrimonial apartment in [R]. He lives alone when the children are not with him.
The Mother, aged 39 years, is a [occupation omitted]. Apart from periods after the birth of each child, and prior to [Y]’ birth, the Mother has been in the paid workforce. When this hearing commenced, the Mother was working at [T]. In the children’s week with her, she has employed a nanny to collect them after school, and care for them until she finishes work. At hearing on 27 October 2011, the Mother advised the Court that her probation period with [T] had not been extended, but that she has been offered a position at [P] to commence shortly. The Mother tells the Court that she plans to work around school hours and have more availability for the children. The Mother lives in [omitted] and although she has had a new partner, Mr L, since January 2010, they do not live together. Mr L, aged 48 years, has two children, [A] aged 18 years and [B], aged 14 years. [B] lives with Mr L and his paternal grandmother in [omitted]. Mr L is self-employed in a [omitted] business. Since March 2011, interim orders have prevented [X] and [Y] from having any contact with him.
The children attend [C] School at [omitted], a small community school of 110 pupils. [X] is in Year 4 and [Y] in Year 2. [X] plays sport on Thursday afternoons and Saturday mornings.
Orders sought by each party
The Father initiated these proceedings in October 2010 seeking orders for equal shared care of the children, and for the children to be kept away from Mr L. In his Amended Application filed a month later, the Father sought orders for equal shared parental responsibility, for the children to live with him and to spend alternate weekends with the Mother from Friday until Monday. The Father also sought a raft of specific orders including an order that the children be kept away from Mr L. On 1 February 2011, the Father filed a Notice of Child Abuse or Family Violence alleging the children were being abused by Mr L.
In her Response filed on 3 February 2011, the Mother sought orders for sole parental responsibility, for the children to live with her and to spend time with the Father on alternate weekends from Friday until Sunday and at other times as determined by the Court. The Mother also sought an airport watch list order. In the Minute of Order proposed by the Mother at hearing[2] the Mother seeks an order for sole parental responsibility, with provision for consultation with the Father about major decisions, for the children to live with her and to spend time with the Father on alternate weekends from Friday after school until Monday before school, including during the Christmas school holidays in 2011/12 when Mondays would be extended until 3 p.m. She seeks an order that from the end of Term 1 2012, the children spend half school holidays with the Father.
[2] Exhibit 7
In his further Amended Application filed on 14 February 2011, the Father sought an order for sole parental responsibility, for the children to live with him and to spend time with the Mother on alternate weekends from Friday until Sunday and half school holidays, with the same extensive list of conditions to apply as sought in his first amended application. In final submissions at hearing, the Father seeks an order for sole parental responsibility, for the children to live with him and to spend time with the Mother on alternate weekends from after school Friday until 8 a.m. Monday (extended when a public holiday), for half school holidays and on special days, with changeover to occur outside each party’s residence or at the children’s school. He also seeks a number of orders in relation to travel, communication, exchange of information, school related expenses, relocation, and a number of orders he refers to as “household rules”. He seeks injunctions to restrain the Mother from permitting the children any contact with Mr L or members of his family, from employing a male carer for the children or from changing either child’s family name. He seeks to restrain Mr L or any member of Mr L’s family from attending the children’s school, school related activities or events and extra curricular activities or events.
Orders sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer substantially supports the Mother’s proposal. He proposes[3] that the Mother have sole parental responsibility for the children, that the children live with the Mother and spend time with the Father on alternate weekends from Friday after school until Monday morning before school, during half school holidays, on Father’s Day and on the children’s birthdays.
[3] Exhibit 6
Legal principles
The principles governing this case are set out in Part VII of the Family Law Act 1975. Section 60CA provides that the Court must regard the best interests of the children as the paramount consideration. To determine the children’s best interests the Court must consider the primary considerations set out in section 60CC(2) and the 13 additional considerations set out in section 60CC(3). Section 60CC(4) requires the Court to consider also the extent to which each party has fulfilled his or her parental responsibilities, and has facilitated the other parent in fulfilling his or her parental responsibilities. Although the two primary considerations must assume greater importance than the additional considerations when determining what orders are in the best interests of the child, the Court must consider all the factors before making a determination. It must ensure that any order it makes is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that it is possible to do so consistently with the children’s best interests being the paramount consideration.
The primary considerations are firstly the benefit to the children of having a meaningful relationship with both parents and secondly, the need to protect the children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. The Court give these matters very careful consideration because the Act provides that they are primary considerations and because they are consistent with the first two objects of the Act set out in section 60B to which the Court must have careful regard.
The objects of the parenting provisions of the Family Law Act 1975 are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects include that children have the right to know and be cared for by both their parents; have a right to spend time on a regular basis and communicate on a regular basis with both their parents and other people significant to their care; parents jointly share duties and responsibilities concerning the care, welfare and development of their children; parents should agree about the future parenting of their children and children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The Father’s health
Dr R does not believe the Father has a psychiatric disorder or personality disturbance. He identifies the major issue as the Father’s lack of self-esteem[4] due to his lack of employment since October 2008 and unresolved grief from the loss of his marriage.[5] Dr R formed the view that the Father was “quite devastated” following the breakdown of the relationship and has had great difficulty dealing with the Mother making decisions independently from him. Dr R believes the Father has projected his “deep sense of loss and hurt” onto the Mother’s partner, Mr L.
[4] At page 16 of Exhibit 1
[5] At page 17 of Exhibit 1
Dr R sees the Father’s anger as a live issue, and this anger is not caused by Mr L as the Father might think. Dr R says that the Father is intent on pursuing what the Mother is doing and is not prepared to allow the Mother to parent the children without a list of controls on her[6]. Dr R says that it is possible that the Father’s “grief has become very enmeshed and involved in a complex set of emotions and that despite his statements or his belief of overcoming his grief … it’s possible that the grief has then been channelled into other emotions such as anger and suspicion.”[7] Dr R says the basis for this clinical view is the way in which the Father interacts with the children and with the Mother.
[6] At page 35 of the transcript of proceedings – 15 August 2011
[7] At page 34 of the transcript of proceedings – 15 August 2011
In Dr R’s view, the Father needs significant psychological help to overcome his feelings of loss and grief. If he maintains his criticism of the Mother, it will be highly destructive of the children. At present, the Father is “stuck emotionally.”[8] However, without an acceptance by the Father that he needs help, nothing is likely to change. Dr R says he cannot predict with any certainty whether or not the Father can embrace counselling or whether his attitude is so entrenched in the battle, that the Father will “maintain the rage.”[9] However, if the Court accepts the truth of the Mother’s allegations about the Father’s abusive conduct, Dr R believes that the Father may be more seriously emotionally compromised in the long term, and his personality may block his ability to address grief and loss in his life. He says the fact that the Father has not found employment in 3 years, despite his qualifications, may be “a sign of his difficulties”.[10]
[8] At page 7 of the transcript of proceedings – 15 August 2011
[9] At page 12 of the transcript of proceedings – 15 August 2011
[10] At page 7 of the transcript of proceedings – 15 August 2011
The Father has not participated in therapy in relation to loss and grief issues as now strongly recommended by Dr R. In January 2009, Mr J, clinical psychologist, observed the Father as “angry and blaming” of the Mother in relation to the marital breakdown, but says the Father was not willing to seek to achieve changes in himself.[11] In April 2009, the Father was charged in relation to a serious assault on the Mother. The Father then undertook further therapy sessions with Mr J for anger management before the Local Court hearing two months later. In a letter dated 12 June 2009 from Mr J to the Local Court, Mr J recommends the Father participate in ongoing treatment, but the Father ceased treatment.[12]
[11] Exhibit 13
[12] At annexure C of Father’s affidavit sworn 14 July 2011
I accept Dr R’s opinion in relation to the Father’s health and give his opinion significant weight.
The Mother’s health
The Mother was diagnosed with multiple sclerosis (MS) in 1995. She was prescribed beta-interferon injections which affected her mood. She says “I was manic. I was irritable and agitated and easily distracted and hypersensitive”.[13] In June 1998, the Mother was diagnosed by a psychologist with clinical depression with hypomanic episodes[14] and was consequently referred to a psychiatrist experienced in MS and the effects of beta-interferon. Dr J, psychiatrist, diagnosed the Mother with “rapid cycling bipolar disorder”[15] and prescribed a mood stabiliser to be taken with the beta-interferon. After a few weeks, with professional advice, the Mother ceased all medication. During the period 1995 and 2000, the Mother says she remained in full time employment in the [omitted] industry, despite intermittent relapses in her MS symptoms and despite the side effects of the medication. The Mother has been asymptomatic of MS since 2004.
[13] At paragraph 15 of Mother’s affidavit sworn 3 February 2011
[14] Exhibit 15
[15] Exhibit 16
In approximately April 2008, the Mother was diagnosed with depression and was prescribed the anti-depressant, Cipramil. At the same time, the Mother consulted a psychologist, Ms L. In a letter dated 24 November 2008 from Ms L to the Mother’s GP[16], Ms L refers to the Mother’s “clinical depression” and says both parties report an increase in the Mother’s “manic or reckless phases since taking Cipramil.” The Mother stopped taking Cipramil in October 2008. In her Affidavit sworn 3 February 2011, the Mother denies any ill effects from the drug, but says the Father was insistent in front of her GP that it was sending the Mother “loopy” and was the cause of her decision to separate from him. She was referred to Dr W, psychiatrist whom she consulted in the Father’s presence. On 7 January 2009, Dr W wrote a report which included the medical history provided by the parties. Dr W said it was probable that the Mother suffered from Bipolar Disorder Type II as “although her mood elevation was on both occasions induced by medication it continued for some time after the medication was ceased. Because she has a vulnerability to mood disturbance there is a possibility that she could have further episodes of depression or mood elevation.”[17] She did not recommend any form of ongoing medication or psychiatric therapy. The Mother reports no recurrence of depressive symptoms since that time nor mood swings. She is not taking any medication nor receiving any counselling.
[16] Exhibit 12
[17] Exhibit 14
Dr R reviewed the Mother’s health records. In his opinion, the Mother does not suffer from any psychiatric condition.[18] Dr R says there is a difference between suspected bi-polar disorder and the actual disorder. A pattern must be observed over a period of years which was not evident in the Mother. He could see why the possibility of bipolar II was raised when the Mother was on interferon which may have caused an elevation in her mood, but does not believe the Mother has bipolar disorder. Dr R says a bipolar II diagnosis is very fashionable at the moment and there is considerable debate in the profession as to how useful the label really is. On his assessment, even if the Mother has had mild symptoms of bipolar II at times, it does not affect her parenting.
[18] At page 16 of Exhibit 1
Counsel for the Independent Children’s Lawyer submits that the Court should be impressed by the Mother’s history of taking advice when needed and acting on that advice. Counsel submits the Court should be satisfied that the Mother will continue to take the same attitude into the future.
I accept Counsel’s submissions and I accept Dr R’s opinion in relation to the Mother’s state of health.
The Children’s health
According to Dr R, the children are intensely aware of the dispute between their parents, want both parents in their lives, and are trying “to play it carefully” and “care for their parents”. They know they are the “prized item”. In Dr R’s view, the children are most concerned about the Father as they sense his fragility. They see him as being on the “losing side”, and feel responsible for his sadness. This means they carry a burden which can impact on their longer term emotional health. Dr R says in cross-examination[19]:
…carrying the burden of worrying about the parent can impact directly on their development at the time that it’s occurring and can lead them to have difficulty coping with their peer relationships and their workload and they can deteriorate in their functioning, but in the longer term it can also distort their emotional development and they can then be predisposed to problems, emotional disorders and behavioural problems later in their development towards their adolescence or early adulthood.
[19] At page 6 of the transcript of proceedings – 15 August 2011
Dr R believes the Father continues to ask the boys questions about what the Mother is doing and “is finding it difficult to accept that the Mother is having a separate life from him.” Dr R says “I see some worrying signs” of a potential distortion in the children’s development. In his opinion, the children need the Father to address his grief and loss issues, to stop criticising the Mother and Mr L to them, and they need an outcome from this litigation.
In late 2010, both children were referred to Ms E, psychologist, who saw them on two occasions, separately from one another. In reports dated 24 January 2011, Ms E recommends ongoing therapy for both boys. She says[20]:
[X] is a perceptive child and is aware that there is much tension and conflict between his parents. This leaves him feeling sad and helpless and bad about himself.
…
[Y] is trying to hold himself together and be grown up about his parent’s separation. However, I feel that underneath, he is very frightened and confused about himself.
[20] Annexure I of Mother’s affidavit sworn 3 February 2011
The Mother says she hired a tutor in 2010 and again in 2011 for [X] because he was so far behind academically. The Mother reports the Principal of the school saying “[X] has the weight of the world on his shoulders and this affects his schooling”. The Mother has also arranged a tutor for [Y] this year because he too, was struggling with his school work.
I agree with Dr R’s assessment of the children and give these findings significant weight.
PRIMARY CONSIDERATIONS
The benefit to the Children of having a meaningful relationship with both parents
It is common ground that the children have close loving relationships with each party and will continue to benefit from those relationships. I have already noted however, Dr R’s view of the onerous burden on the children of carrying their Father’s sadness. I have already noted Dr R’s concerns about the nature of the Father’s interactions with the children, the impact on them of his unrelenting criticism of the Mother and
Mr L, and the critical importance to the children of the Father addressing his loss and grief issues.
I give substantial weight to these findings, and to the children’s need and wish to enjoy an ongoing and meaningful relationship with each party.
The need to protect the Children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
“Abuse” is narrowly defined in section 4 of the Family Law Act as sexual abuse or an assault of a child which is an offence under the law. This is not an issue in this case.
A question arises as to whether the Children have been psychologically harmed by exposure to family violence or from neglect.
“Family violence” is defined at section 4 of the Act, as conduct, whether actual or threatened that causes the person to reasonably fear for, or to be apprehensive about, his or her personal wellbeing or safety.
The Father alleges that the children are neglected in the Mother’s household. He characterises the Mother as “a person of little substance, lacks credibility and seeks relationships of convenience.”[21] He alleges that the Mother prefers to socialise than care for her children. In emails to the Mother between October and December 2009, the Father says “I hate you and will do something about the way you treat the boys as soon as I can.”; “God help you when I in a position to do something about how badly you look after our children when they’re in your care.”; “You turned into a lousy mother … and are getting worse as every day passes.”; “You should think what a f heartless mother you are y cu… and die a slow painful death.”; “Well you cu… whilst you were making friends, partying setting out your social life, slutting around and blowing the family money in the process, I stayed home looking after our children.”[22] On 6 May 2010, the Father sent the Mother an email “Are you talking about the same boys, our children, I looked after whilst you neglected them to go out nightclubbing for months in a row and screw in the toilets or someone else’s children.” [23]
[21] A paragraph 4 of Father’s affidavit affirmed 11 February 2011
[22] Annexure C of Mother’s affidavit sworn 3 February 2011
[23] At paragraph 59 of Mother’s affidavit sworn 3 February 2011
Despite the Father’s assertions, I am not persuaded the children have been exposed to neglect. The Father adduces no evidence to corroborate his assertions, and I find it noteworthy that at no time has the Father sought orders for the children to be supervised while in the care of the Mother.
However, I am in no doubt that the children have been exposed to family violence on the basis of the following events.
Incident late 2008. On the Mother’s version of what happened, during a night at the end of November/early December 2008, shortly after the parties separated under the one roof, the Mother was sleeping with the boys in their room. The Father woke the three of them at approximately 2.30 a.m. He screamed at the Mother “get up get up” and pulled her by the hair. He demanded she and the children look at a painting he had done on the hallway wall. In front of the children, the Father forced the Mother’s face to within millimetres of the painting. The children were crying. The Mother graphically describes what occurred[24]:
I observed a mass of words and pictures, like graffiti, had been drawn on the hallway wall with blue, black and red permanent marker ink. The words and drawings occupied a rectangular space 3.5m long and 2.5m high. There was writing to the effect ‘you have destroyed the family you are a filthy slut. You have broken my heart and put a knife through my heart, I will never forgive you for breaking up the family.’ Some words were underlined. At the far right-hand side of the wall was a picture of a knife with blood dripping from it. There was a drawing of a broken heart with a knife sticking from it.
[24] At paragraph 30 of Mother’s affidavit sworn 3 February 2011
The Father yelled at the Mother, “Read it out loud you filthy slut”. The Mother grabbed the children and tried to comfort them and shield them from the words and pictures on the wall. The Mother was crying “Please stop and let us go back to bed”. The Father angrily shouted “No” He grabbed [X] by the arm and dragged him away from the Mother. He held [X]’s head and said “Read out loud the message on the wall.” [X], in tears, read it aloud. When finished, the Father demanded he read it out again. The Father forced [X] to read the words aloud at least six times. [X] then asked the Father to let them go back to bed. The Mother took the boys by their hands to walk away, but the Father pushed the Mother into the kitchen and told her to wait. He took the crying boys back to their beds. The Father returned to the kitchen and screamed at the Mother “read the wall”. Crying and trying to return to the children in the bedroom, the Mother’s way was blocked by the Father, and he forced the Mother to the floor of their bedroom and had sex with her by force. He said “This is my right as we are married.” The Mother heard [Y] sobbing. The next day the boys kept asking the Mother if she was all right, appearing frightened of the Father. [X] asked her not to go to work. The Mother believes the Father arranged for his brother Mr D, a painter, to re-paint the wall. The Mother did not report the incident for fear of the Father’s reaction and says she did not appreciate at the time, the impact of this incident on the children.
The Father contends that the entire incident is the Mother’s fabrication. However, I accept the Mother’s evidence because:
a)The Maternal grandmother, whom I found to be a frank and honest witness, recalls [Y] saying to her in January this year, “Daddy did a big drawing on the wall with words”; “Damah, I was at [preschool] I was only 4, I couldn’t read, I wasn’t at [C] School, [X] read it, the drawing was magnificent.” He described it as “a heart, that was broken with a knife in it, another knife had bits coming off it.”[25]
b)The Father says he has a close relationship with his brother Mr D. If the Father sought to deny the Mother’s claims, the Father’s brother would have been in a position to deny that he re-painted the wall. He did not do so, and the Father gives no credible reason for him not doing so. On the High Court authority of Jones v Dunkel (1959) 101 CLR 298, as submitted by the Mother’s counsel, I draw the inference that the Father’s brother’s evidence, if adduced, would not have assisted the Father’s case.
c)I find the Mother a credible witness. The Mother reports the children suffering nightmares after the incident. [Y] still says to the Mother “you put a knife in Daddy.” “I think it was your fault, you made Daddy do these things”. [X] has said “Can I sleep with a light on, in case someone comes with a knife.” [Y] has said “I have had bad dreams about knives going through my heart.”
[25] At paragraph 15 of the maternal grandmother’s affidavit sworn 22 February 2011
Incident April 2009. On the Mother’s version of events, on the evening of 23 April 2009 the Mother attended a work function. She had given notice on her lease and was intending to return to live at the [R] apartment because of the financial strain of supporting two households and because she believed it would work better for the children.[26] She did not plan to reconcile with the Father. The Father called her repeatedly while she was at the function that evening. Initially, he questioned her as to where she was, when she was leaving and who she was with. She then stopped taking his calls. On the following morning, 24 April 2009, the Father rang her at her apartment and asked her what time she had arrived home the night before. She told him it was late. The Father said that he was coming to speak to her. The Father arrived at her apartment early that morning with the children, who were dressed in light pyjamas. The Father was visibly angry when he arrived and the Mother became frightened. The parties had a heated argument about the Mother’s whereabouts the night before, the Father claiming the Mother was giving different accounts of her movements. She and the Father were screaming and the children were in the apartment within earshot. The Father approached the Mother who was in the bathroom getting ready for work, and began slapping her around the face and arms until she lost her balance and fell to the floor. She hit her head on the toilet bowl as she fell. The Father was repeatedly demanding to know where she had been. He took off his belt and hit her a number of times with the belt on her neck, face, head and legs. The Mother was begging him to stop. The boys were screaming “Daddy, please stop.” The Mother ran to the bedroom and jumped onto the bed, where the Father hit her again with the belt as she continued to scream. Neighbours called the police. On hearing the police sirens, the Father grabbed the boys and ran downstairs. The police stopped him and returned the boys to the Mother. One of the boys told the Mother “we’ve been at your apartment all night in our pyjamas. It was so cold we asked Dad to turn the car on.” The Mother says a red mark on her forearm was visible very quickly. She was x-rayed on the day of the incident and sustained a hairline fracture to her forearm. She says “I was covered in raised red marks around my head and back and across my legs.” She had a headache, pain in her back and a sprained wrist. She wore an arm brace for 3 months. The Father was charged with assault and a provisional Apprehended Violence Order was made against him.[27] The Father was subsequently sentenced to a two year bond with no conviction recorded and an Apprehended Violence Order was made against him for the protection of the Mother, for 12 months. The Mother says the Father blamed her for his violent reaction and insisted she see his solicitor and that she ask the police to reduce the charge. The Mother wrote the Father a positive reference to use at the hearing[28]. In cross-examination by the Father, the Mother says “you scared me into writing that reference”.
[26] At paragraph 105 of Mother’s affidavit sworn 3 February 2011
[27] Annexure B to Mother’s affidavit sworn on 3 February 2011
[28] Annexure E to Father’s affidavit affirmed on 14 July 2011
On the Father’s version of events, the parties had been planning to reconcile and the Mother lied to him about what time she returned home on the night of 23 April 2009. The parties had a heated argument about the Mother’s whereabouts that night, the Mother was giving him different accounts of when she got home, and he slapped her 3 times[29]. Acknowledging he was angry, the Father went to the children’s room, got a belt, picked it up in anger, swung it at the Mother to frighten her, but did not strike her. The children did not witness the incident as they were playing in the bedroom with the door shut. A neighbour called police and he consented to an Apprehended Violence Order. In cross examination, the Father says “I don’t believe she was hurt.” The Father says he regrets his behaviour and addressed it with his psychologist, Mr J.
[29] At paragraph 29 of Father’s affidavit affirmed on 11 February 2011
I prefer the Mother’s version of these events for a number of reasons. The Mother says the children still talk about “the big fight”. Her evidence is substantially consistent with the Grounds of Complaint recorded by police on the same day.[30] While the Father admitted some level of responsibility for his conduct, I formed the view that he genuinely believes the Mother was at fault. In his responses to questions on the incident in cross examination, he repeatedly sought to justify his behaviour on the basis of the Mother’s conduct. In his cross-examination of the Mother, more than two years after the event, the Father was still seeking answers to where she had been that night and what time she had returned home.
[30] Annexure B to Mother’s affidavit sworn on 3 February 2011
Incident mid-2009. Between May and July 2009, when the parties were living separated under the one roof, the Father forced the Mother to have sex with him “as we are still married this is my right”. The Mother says that the children heard one of these assaults through the door and [X] was calling out “mummy, are you OK?”[31] The Father did not challenge this evidence in cross-examination, and I accept it.
[31] At paragraph 48 of Mother’s affidavit sworn 3 February 2011
Incident [date omitted] 2010. On [date omitted] 2010, the children were in the Father’s care. It was the day after [Y]’ 6th birthday and the Mother had told [Y] that she would see him at the swimming centre. She went to the Centre without consulting the Father. After the swimming session, the Mother asked the Father if the children could have a hot chocolate with her at the pool. The Father refused. The Mother concedes that the Father told her several times he did not agree to her spending that time with the children, and told her to “go away”. The Mother says she then told the boys she would walk with them to the car. The four of them left the swimming centre together. The Mother describes feeling frustrated by the Father’s attitude. She was carrying a set of keys and her mobile phone. Further down [omitted] Street, the parties had an altercation in front of the children.
On the Mother’s version, her phone rang and the Father grabbed her arm to take her mobile phone. He threw her across the road and she hit something before landing on the side of the kerb. The Mother said “you are a fucking unemployed pathetic loser” in the children’s hearing. The Mother reported the Father to police and he was charged. The Father was later convicted of assault and placed on another good behaviour bond. On the Father’s version, the Mother was interfering with his time with the children without his consent, which justified his actions. She would not leave when he repeatedly asked her to leave the swimming centre. She insulted him several times in front of the children, calling him “a fucking pathetic fool” in front of the children. He thought she was “sneakily” recording him with her mobile phone, so grabbed it, threw it onto the ground causing it to break. Though he was charged and convicted of assault he says to Dr R[32] “technically it was a minor assault or act of aggression.” He relies on the remarks of the Local Court Magistrate of 31 January 2011 to show that the Magistrate was critical of the Mother. On a reading of her remarks, I accept that the Magistrate was critical of both parties and very concerned for the children. However, after a defended hearing, the Local Court found the Father’s conduct unjustified and convicted him of malicious damage to property and a “minor grade of assault”.[33] The Father was sentenced to a 2 year bond[34] and an Apprehended Violence Order was made against him for the protection of the Mother for a 2 year period.
[32] At page 8 of Exhibit 1
[33] At annexure A of Father’s affidavit affirmed on 15 February 2011
[34] Exhibit 9
I find the incident on [date omitted] 2010 a sad example of the parties’ failure to put the needs of their children ahead of their strongly negative feelings towards each other. Given the state of their relationship, I find the Mother’s decision to go to the swimming pool without asking the Father, and her decision to walk with them to the car in the face of the Father’s clear opposition to her presence, showed poor judgment on her part. I am not persuaded however, that the Mother’s actions in any way justified the Father’s response. Indeed, it is difficult to see why the children could not have had a few minutes with the Mother over a hot chocolate when their swimming was finished. However irritated the Father may have been at having his time with the children interrupted, it would have been in the children’s interests to witness cooperation, not conflict between their parents. I do not accept the Father’s statement to Dr R that “his emotions” were justified in the circumstances.
Allegations concerning Mr L. In March 2011, as a result of allegations made by the Father about Mr L’s conduct towards the children, this Court made an interim order restraining the Mother from permitting contact between the children and Mr L. Given the significance the Father places on Mr L’s alleged abusive conduct towards himself and the children, I set out in detail the allegations made by the Father and Mr L’s responses to the allegations.
The Father alleges that the children have been abused by Mr L. The Father filed a Notice of Abuse on 11 February 2011 in which he alleges as follows:
Systematic and ongoing physical abuse, verbal abuse, denigration and bullying by the Mother’s partner, Mr L…. The Mother conceals and condones her partner’s behaviour towards the children… The Mother puts her own interests ahead of the children, she also suffers from a mental illness.
The Father says the children have repeatedly complained to him about Mr L’s behaviour towards them and he accepts without question, these complaints as the truth of what occurred. The Father says[35]:
…the children’s comments indicate ongoing and systematic bulling [sic] and abuse by Mr L which in turn is concealed and condoned by their mother.
[35] At paragraph 116 of Father’s affidavit affirmed on 14 July 2011
In particular, the Father alleges:
a)On 27 February 2010, Mr L threatened the Father over the phone telling him to “fuck off” “you don’t know who you’re dealing with, I know where you live, I’ll come and bash you up.” The Father reported the incident to police. He alleges the children overheard what was said by Mr L and were frightened. Mr L denies telephoning the Father.
b)On 10 May 2010, [Y] told him that Mr L had twisted his arm the day before. The Father accepted what [Y] told him, and reported the incident to police. The police took no action. The Mother recalls the incident. She says that [Y] did not want Mr L to momentarily switch channels to check the football scores, and they tussled over the remote control for a couple of seconds. [Y] was briefly upset, but it was over in seconds.
c)On 4 November 2010, the Father reported Mr L’s alleged abuse of the children to the Department of Community Services. No action was taken.
d)On 13 December 2010, Mr L called the Father “a dickhead” in the presence of the children outside [omitted] police station at changeover. The Father reported the incident to the police but no action was taken. The Father claims Mr L did the same again on 20 December 2010 outside [R] Police station. Mr L denies speaking to the Father at any time.
e)Between 6 to 9 January 2011, Mr L trod on [Y]’s foot while on a boat cruise with the Mother and both children, leaving marks on his foot. The Father took photos of [Y]’s foot and a week or so later, on 17 January 2011, reported the incident to police. He claims the Mother witnessed the incident and concealed it[36]. The Mother and Mr L both deny any incident on the boat involving [Y]’s foot and both say [Y] made no complaint about his foot. The Mother became aware of the allegation at changeover the following week. [Y] then told the Mother that Mr L “trod on my foot” but could not elaborate. Mr L told police that [Y] was running freely on the beach late the same afternoon with no sign of a sore foot.[37] Both children, in the presence of the maternal grandmother, were interviewed[38] by police about the alleged incident. The Mother and Mr L were also interviewed. No action was taken by police.
f)Mr L pushed [X] into the pool, frightening [X]. Mr L acknowledges pushing [X] into the pool on one very hot day, which he denies caused [X] any distress.
g)In February 2011, Mr L forced the children to wrestle with each other, causing scratches to [X]. Mr L and the Mother say the boys were fighting and Mr L says he had to break them up several times.
h)The children have reported Mr L referring to the Father as a “dickhead” or saying “one day I’m going to piss on your Dad”. Mr L denies making any derogatory remarks about the Father to the children.
[36] At paragraph 53 of Mother’s affidavit affirmed 11 February 2011
[37] Statement of Mr L – Exhibit 19
[38] Exhibit 2
The Father alleges that Mr L poses a risk to the children because he is violent. The Father alleges in particular:
a)On 26 May 2010, Mr L said to him “you fucker I know where you live, I’ll come and bash you up, I’ll fix you up”. The Father reported the incident to police. On 31 May 2010, the Father sought an Apprehended Violence Order against Mr L on the basis of the alleged threats and the alleged assault on [Y] concerning the remote control. However, the complaint was later withdrawn.
b)Between 18 and 23 September 2010, Mr L left threatening messages on his voice mail, including: “Hey fuck face” “tough guy, real tough”; “Arrr- tough guy”; “hey tough guy you love to punch women around, I see you soon boy, you’re only a boy” “fuck face – you like to bash women you’re a tough fucken guy, I see you soon; get you’re phone on fucker, I just want to know why you bashed her.” The Father reported the threats to police. The voice mail recordings were played to Mr L in evidence. He denies any knowledge of the calls.
c)The Father alleges that Mr L has coached the Mother as to how to provoke him to action resulting in imprisonment. Mr L denies the allegation.
Mr L has a criminal record. He did not disclose this fact in his affidavit sworn in February 2011, but did so in his Affidavit sworn in June 2011. He has been convicted of stealing petrol in 1983 (when he was 21 years) and of resisting arrest in 1985 (at 23 years). In 2004 he was charged and in 2005 he was convicted of attempting to obtain the prohibited import drug MDMA (known as ecstasy). He spent two months in prison before being granted bail in March 2004. In December 2005, he was sentenced to 18 months imprisonment (to include the 2 months served) and was released from custody in April 2007. According to the report of 12 November 2005 from Mr B[39], forensic psychologist, Mr L went to Melbourne to bring 2 prostitutes to Sydney for a fee. It transpired that the contractors required him to bring ecstasy, not women, to Sydney. He entered a plea of guilty to the charge. The character references he relied on when sentenced, highlighted his excellent reputation as a father to his own two children, and as a caring son to his elderly mother. There have been no entries on his criminal record since 2005. The Father makes no complaint that the Mother has not complied with the order made in March 2011, restraining her from allowing the children any contact with Mr L.
[39] Annexed to the affidavit of Mr L affirmed on 14 June 2011
While I find it likely that the children have been complaining to the Father about Mr L, I accept Dr R’s evidence that the children are acutely aware that the Father requires them to give him negative information about Mr L and will not give them permission to enjoy a relationship with him. I accept his opinion that the children are under considerable pressure from him on this issue. By way of example, when
[Y] suggested to the Father that they make a fresh start with
Mr L, the Father replied that Mr L would continue to abuse him. On a reading of the Father’s affidavit sworn in July 2011, I find that the Father is intent on proving that Mr L is an aggressive man and the police should take action against him. The Father has made complaints to the police about their decisions to take no action.
I accept Dr R’s evidence that any partner of the Mother would be a threat to the Father. I agree with his opinion that the Father does not accept the Mother’s new life and finds it necessary to investigate and interrogate the children about the Mother’s life. I am not persuaded that Mr L trod on [Y]’s foot, but whether or not he did so, I find the Father’s decision to report the incident to police a week after the event, and his decision to require the children to be formally interviewed by police over the incident, a troubling example of the desperate lengths the Father is prepared to go to convince himself of the correctness of his position. I agree with Dr R that the Father’s response was “unnecessary” and “exaggerated”.[40]
[40] At paragraph 19 of Exhibit 1
The children were very pleased to see Mr L at interview with Dr R. Both children were relaxed and wanted to see Mr L again. [Y] asked if Mr L could go home with him. Dr R assessed a strong rapport between the children and Mr L and found no indication of any impairment in their relationships. I accept his assessment. I am not persuaded that
Mr L has either abused the children or behaved inappropriately towards them.As already noted, the Father alleges that Mr L left threatening messages on his voicemail on 18 and 19 September 2010. The Father relies on saved messages, a number of which were played to Mr L during cross examination. The police reports identify that three of the calls made on 18 September 2010 came from a phone owned by Mr L, and three further calls were made from his phone on 19 September. Those calls match the times of the identified messages. Mr L says the voice on the tape is not his, and says he cannot identify the voice. Counsel for the Independent Children’s Lawyer says the voice does not sound like Mr L and I agree with him. However, Mr L offers no explanation as to how his mobile phone came to be used to make calls to the Father without his knowledge. He certainly knew about the ‘swimming pool’ incident on the [date omitted] soon after it happened. In the absence of any other explanation from Mr L, I find it likely that the calls were made to the Father either by Mr L or someone known to Mr L. However, I do not conclude that the children are at risk in Mr L’s care.
The children’s exposure to family violence is an extremely serious matter and I give substantial weight to my findings in relation to the incidents of violence. I also give substantial weight to my findings about the pressure the children are under from the Father’s unrelenting attempts to have them adopt his highly critical opinion of the Mother and Mr L.
THE ADDITIONAL CONSIDERATIONS
Any views expressed by the Children and any factors (such as the children’s maturity or level of understanding) the Court thinks are relevant to the weight it should give to the Children’s views.
[X] told Dr R that he wished his parents would like each other. He said he would like the arrangements to stay the same, week and week about. He wants it to be “fair to both parents.” In front of his Mother at interview with Dr R, [X] said:
I wish the arguments would stop. I wish you would get along. I’d like it if they could sit together, mum and dad at speech night. You don’t have to talk just sit there and act like friends.
[Y] told him that he would like his parents not to argue any more[41]. He said he would like a bit longer with the Father and to see his Mother each week.[42] In front of the Father at interview, [Y] said “we like pretty much everything we do with dad.” “I kept my secret from mum, I want to live with dad.” Dr R says that [Y]:
…appears to be more sensitive to his father’s needs and worried about what his father wanted. I believe that his statements about wanting to spend more time with the father are more a reflection of the Father’s wishes than his wishes. I found the children were equally bonded to both parents”
[41] At page 11 of Exhibit 1
[42] At page 11 of Exhibit 1
Both children made positive remarks to Dr R about Mr L although [Y] said “He twisted my arm. But he does take me out to places.” Dr R found that [Y] and [X] have good relationships with Mr L but that [Y] is worried about the Father’s response to any positive remarks he makes about Mr L.
Dr R concludes that neither child’s expressed views about the parenting arrangements should be taken at face value. He believes the boys want to openly support the Father because they have a sense of his fragility[43]. He says[44]:
[43] At page 16 of Exhibit 1
[44] At page 18 of Exhibit 1
I believe that both children care equally about both parents and that they also care about Mr L.
I accept Dr R’s opinion and have regard to these findings.
The nature of the relationship of the children with each of the children’s parents and other persons (including any grandparent or other relative of the children)
I accept Dr R’s opinion which is shared by both parties, that the children have strong and loving relationships with both parties.
I am satisfied the children have a safe and warm relationship with the maternal grandmother.
As already noted, Dr R observes a positive relationship between Mr L and each of the children describing “a fondness and a good rapport.”[45] Dr R observed no sign of fear which he would expect to have seen if they had been hurt by Mr L. In his affidavit sworn in February 2011, Mr L describes a wide range of activities he has enjoyed with the children, including swimming, backyard cricket, soccer, attending football games, eating at restaurants, sharing holidays together. I accept his evidence that when the Mother became ill suddenly in early December 2010, and was admitted to hospital, the children chose to remain with Mr L, rather than return to the Father. Mr L reports [X] saying “Daddy said that if I go and live with Mummy, [Mr L] will bash me every day”. The children have said “We are not allowed to be your friend. We are not allowed to like you.”
[45] At page 32 of the transcript of proceedings – 15 August 2011
I am satisfied the children have a healthy and comfortable relationship with Mr L, and that their contradictory statements to the Father result from their acute awareness of the Father’s extremely negative attitude towards Mr L, and their wish to please the Father.
I take these findings into account in reaching my decision.
The willingness and ability of each of the Children’s parents to facilitate, and encourage, a close and continuing relationship between the children and the other parent
The Children have lived with each party week and week about since the parties separated 3 years ago. With few exceptions, despite their increasingly acrimonious relationship, these arrangements have been adhered to by each party and at times, each party has agreed to a special request from the other party for additional time. I am therefore satisfied that at least at a superficial level, each party does encourage a continuing relationship between the children and the other party.
However, at a more critical level, I find that the children are intensely aware of the bad feeling between the parties and are therefore unable to talk freely and honestly in each household about what happens in the other household. I accept the Mother’s evidence that the children do not report to her about their week with the Father, and that she understands this situation needs to change. She says “I want [the boys] to see that are both good parents and we want them to feel safe to talk about the other parent without a burden of guilt.” I accept Dr R’s opinion, to some extent acknowledged by the Father, that the Father interrogates the children about their week in the Mother’s household and regularly criticises the Mother, her partner and members of her family to the children. I accept Dr R’s opinion that the children know they must tell the Father all the negative information he wants to hear, particularly about Mr L.
I have regard in particular to these matters:
a)Between 19 October 2009 and September 2010[46], the Father sends many emails to the Mother which are highly disparaging of her, patronising, sarcastic, (for example “even you can understand…”[47]), full of insults, allegations of lies and neglect, and sometimes threatening. In an email on 30 October 2009, the Father says “these kids won’t like you… I’ll make sure of that.”[48]
[46] At Annexures G to L of Father’s affidavit affirmed on 14 July 2011
[47] See email of 19 October 2009 – Annexure F of Father’s affidavit affirmed on 14 July 2011
[48] At annexure C of Mother’s affidavit sworn 3 February 2011
b)The Father tells the Court that the Mother is a “compulsive liar.”
c)The Father questions the Mother’s judgment. In August 2009, he strongly disapproves of her decision to hire a male nanny. He believed the nanny was probably “gay or a paedophile”.
d)He contends that the Mother regularly leaves the children to go out “partying”.
e)The Father blames the Mother for a deterioration in [X]’s academic performance at school. He says the children “don’t learn much with their mother.”
f)The Father accuses the Mother of deliberately undermining the children’s confidence by making comments like[49]:
[X] you look like a moron, [Y] you look like a retard and are a horrible little child and dopey like your father and when you come back you won’t be welcome in the family.
[You’re] an absolute failure and [you’ll] fail at everything [you] do, see and touch.
g)On 25 May 2010, the Father sent a message to the children’s school teacher referring to the Mother’s “juvenile and irresponsible parent behaviour”.
h)The Father accuses the Mother of failing to protect the children from abuse at the hands of Mr L. He sought and obtained an interim order from this Court to prevent the Mother permitting the children any contact with Mr L. He has told the children that if they see him, Mr L will continue to abuse them.
i)The Father claims the Mother neglects the children’s health by failing to medicate [X]’s warts appropriately and deliberately exposing the children to chicken pox.
j)The Father accuses the Mother of deliberately provoking him in the hope he will end up in gaol.
k)The Father disparages the maternal grandmother[50] who says that at about the end of 2010, [X] repeated a song that the Father had made up about her. It started…“stinky, stingy grandma…”[51]
[49] At paragraph 146 of Father’s affidavit affirmed on 14 July 2011
[50] See in particular email dated 22 December 2009 at annexure C of Mother’s affidavit sworn 3 February 2011
[51] At paragraph 13 of Maternal Grandmother’s affidavit sworn on 22 February 2011
I am not persuaded that the Father’s criticisms of the Mother or the maternal grandmother are justified. I was impressed by both the Mother and the maternal grandmother as substantially truthful. I do not accept that the Mother insults the children or undermines their self-confidence. I am not satisfied that the Mother leaves the children inappropriately supervised or neglects their health, nor that the Mother incites the boys to behave badly with the Father. I am not persuaded that the Mother is trying to have the Father incarcerated and find it unlikely that the Mother is the sole cause of [X]’s deteriorating academic performance. As already noted, I am not persuaded the children are at risk of abuse in Mr L’s care.
Dr R reports that the Father spoke “strongly” about the Mother in front of the children at interview. [Y] became distressed and began coughing when he heard the Father criticising the Mother. I accept counsel for the Independent Children’s Lawyer’s submission that the Father’s questions in cross examination were directed to the Mother’s “flaws” as a person and as a parent, and that he asked few questions about the children.
I find the Father’s communications by email to the Mother angry and inflammatory without cause. I find the Mother’s email responses generally demonstrate an attempt to explain events, to reduce conflict and to focus attention on the welfare of the boys. I find that the Mother recognises the importance of the children’s relationship with the Father and endeavours to facilitate and promote those relationships.
I find the Father lacks insight into the damage his ongoing anger about the Mother is causing the children and I accept Dr R’s opinion that it is not possible to predict whether the Father will change his attitude to the Mother in the future.
I give significant weight to my findings under this factor.
The likely effect of any changes in the children’s circumstances, including the likely effect on the children of any separation from either of his or her parents, or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
In the Father’s view, if the Court limited the children’s time with the Mother to alternate weekends, it would make no difference to [Y] “because he wants to live with me”. He says there may be some adjustment for [X]. In the Mother’s view, the children would benefit from reduced time with the Father because they would be relieved of the unrelenting pressure to answer his questions about their time in her household.
I accept that any change in the children’s care arrangements will require an adjustment on the part of the children given the length of time they have lived in an equal shared care arrangement. However, I give this finding only moderate weight in the circumstances of this case.
The practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children's right to maintain personal relations and direct contact with both parents on a regular basis
This is not a factor in this case.
Each party’s capacity to provide for the needs of the children, including emotional and intellectual needs
I am satisfied that the children enjoy a wide range of child-focussed activities with each party and that they are well loved and cared for by each party. However, for the following reasons, I am not satisfied that the Father presently has the capacity to meet the children’s emotional needs.
a)
As already noted, I find the Father has involved the children in the adult issues, by criticising the Mother in front of them and by attempting to convince them that Mr L is abusive. It is troubling that the Father requires the children to hold the same negative opinion of Mr L as he does, irrespective of the children’s own experience of him. When [Y] suggested starting afresh with
‘[Mr L]’, the Father was quick to warn them that “he’ll do the same things that he did before.” [X] has reported to the Mother[52] “Daddy calls me [Mr L’s] lap boy, and a liar and skunk. He calls me an idiot for liking [Mr L] and for playing games with him”…“Daddy has labelled us ‘daddy’s boy’ and ‘mummy’s boy.”; “Daddy has said we can’t like [Mr L].”; “[Mr L] is a book head, a meat head a hot head.” The Mother reports [X] being distressed on 22 January 2011 when he wanted to play a game with Mr L. [Y] said “I am going to tell daddy, daddy said we’re not allowed to play Wii with [Mr L].” I accept the maternal grandmother’s evidence that an hour later, [X] was sobbing and shaking in her arms. [X] later said to the Mother “this is so unfair Mummy… I don’t want to go back to Daddy, they call me names.” I accept the Mother’s evidence that the following day the boys were fighting over [Y] threatening to tell the Father that [X] had played with Mr L. Mr L also gave evidence about the same day.[53] He says, and I accept, that the boys complained of being interrogated by the Father on their return from the Mother’s about what they have done. [Y] said “We get put into a room one at a time with Dad, and Dad asks us all the questions, we can’t come out until we answer all the questions.” The maternal grandmother heard [X] say to Mr L at that time “no, we can’t [play a game of cricket] because we’re not allowed to play games with you [Mr L], [Y] will tell Dad.” [54]
b)As already noted, I find the Father interrogates the children about their time with the Mother, and especially about Mr L. The Father himself says that “as a general rule, I asked the children to tell me if they were abused or exposed to abuse.”[55] I accept the Mother’s evidence that at times the children have resisted returning to the Father because, as [X] has said “I don’t want to have to tell Daddy everything.”
c)I find the Father has put his own need to score points against the Mother ahead of the children’s interests. By way of example, on 21 August 2010 the Father did not take [Y] to play in his soccer grand final, nor did he permit the Mother to do so. I accept the Mother’s evidence that [Y] asked the Mother to collect him for the game, knowing his Father would not take him. She had offered to collect [Y] and take him back to the Father after the game. The Mother had his boots and uniform in the car, went to the Father’s home and rang the bell. According to the Mother, the Father screamed and swore at her over the intercom. The Father would not allow the Mother to speak to [Y]. The Mother left his soccer gear with the Father in the hope the Father might take him. [Y] missed the game, there was no substitute player, and the team lost. I do not accept the Father’s contention that [Y] was sick or did not want to go.
d)The Father annexes a number of photographs of the children to his affidavit.[56] They include photographs of a chicken pox scar on [Y]’s forehead, scratches on his foot, and a bandaid on a planter’s wart on [X]’s foot. I find the Father has taken these photographs without regard to the impact of doing so on the children, to ‘prove’ his contention that the Mother has neglected the children’s health for the purpose of these proceedings. I am not satisfied the photographs establish that the Mother has neglected the children’s health. Instead, I find them a troubling example of the Father’s focus on this litigation, to the detriment of the children.
[52] Affidavit of Mother sworn on 3 February 2011
[53] Affidavit of Mr L affirmed on 3 February 2011
[54] At paragraph 13 of Maternal Grandmother’s affidavit sworn on 22 February 2011
[55] At paragraph 117 of Father’s affidavit affirmed on 11 February 2011
[56] Annexure M and N of Father’s affidavit affirmed on 14 July 2011
Dr R raises concerns about the Father’s judgment as a result, at least in part, of his unresolved grief over the loss of his relationship with the Mother. As already noted, I accept Dr R’s assessment of the Father’s mental state and his need for professional help. I find a number of examples of the Father’s impaired judgment which I am satisfied had a detrimental effect on the children. In approximately mid-December 2008, the Mother came home from work to find her only designer black lace dress cut up on the bed. The Mother burst into tears. The Father walked in behind her with the children. While the Father denies this occurred and alleges the Mother is a compulsive liar, I accept the Mother’s evidence.
I have already noted other examples of the Father’s inability to make sound judgments which include the Father’s decision early this year to have [Y] interviewed by police because Mr L allegedly trod on his foot.[57]
[57] See record of police interview with the Children – Exhibit 2
I agree with Dr R’s opinion that the critical issue is the capacity of the Father to protect the children from his emotional hurt. I find that the Father lacks insight into his own conduct and how it affects the children. Given he is unable or unwilling to accept Dr R’s opinion as to his emotional difficulties, I am not confident the Father is likely to address these issues in the short term.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children's parents, and any other characteristics of the children that the court thinks are relevant
I have nothing to add under this factor.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents
The Father has been out of the paid workforce since October 2008. Although he has since been self-employed as a [omitted], his earnings have been modest. He says he has applied for a number of employed positions unsuccessfully though adduces evidence of only one appointment with a recruitment agency in August 2011.[58] This has been a source of contention between the parties, as the Mother does not accept that the Father has actively been seeking work. As a full time employee herself with a good income for most of the period since separation, the Mother believes that she has borne the financial burden of supporting the children in both households, including meeting most of the children’s private school fees until March 2011. She believes that the Father has made little effort to assist with the children’s financial support. The Mother has been paying child support of $1,319 a month since March 2011. Before then, the Father drew on joint funds for his share of the school fees. When she started paying child support, the Mother stopped paying the school fees. Apart from a small payment by the Father in March 2011, neither party has paid school fees in 2011. The parties now owe [C] School substantial arrears.
[58] Exhibit 3
While I accept that the Mother has met the greater proportion of the children’s expenses since separation, I do not give much weight to this finding.
Any family violence involving the child or a member of the child's family
I have already addressed the issues of family violence.
Any family violence order that applies to the children or a member of the children’s family, if the order is a final order or, the making of the order was contested by a person
On 31 May 2010, the Father applied for an Apprehended Violence Order against Mr L. On 3 June 2010, the Mother applied for another Apprehended Violence Order against the Father. Both complaints were later withdrawn.
Since January 2011, there has been an Apprehended Violence Order in place against the Father for the protection of the Mother for a period of 2 years. In addition to the statutory orders, the order prohibits the Father from entering the Mother’s residence or work premises. I have regard to the existence of this Order.
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 children
I have nothing to add under this factor.
The extent to which each of the children’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent
I have nothing to add under this factor.
Parental Responsibility
Section 61DA requires the court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility for the child. Section 65DAC applies whenever a parenting order provides for shared parental responsibility. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
a)Abuse of the child or another child, who at the time, was a member of the parent’s family (or that other person’s family); or
b)Family violence.
Section 61DA(4) provides that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
I find the presumption does not apply in this case because, as already noted, I find there has been family violence. However, the Court must nevertheless consider whether or not an order for equal shared parental responsibility should be made.
Each party seeks an order for sole parental responsibility. The Father says the parties have had no communication at all since September 2010 and the Mother agrees that there has been no positive communication between the parties for the last 18 months. The parties do not speak at changeover with each other. The Father submits that if there is an order for sole parental responsibility, the children will have less exposure to friction because of the fewer interactions between the parties.
While the Mother says she recognises that the children need to know that their parents are capable of conversing about matters concerning them, so that they can see that “we are the parents, not the children” she says the situation is not improving, and the parties are presently unable to talk to each other. The Mother says she would like to consult the Father about major decisions affecting the children, but would like to be in a position to make a final decision herself if the parties cannot agree.
While neither party sought an order about schooling, it became clear towards the end of the hearing, that the parties are in dispute as to where the children will attend school in 2012. The Court therefore heard further evidence from each party on the schooling issue. The Father proposes that the children change from [C] School to [R] School where [X] spent his first two school years. The Mother proposes that the children remain at [C] school. The Mother is in negotiation with the School in relation to payment of the arrears. She says she will pay the whole of the school fees herself, to keep the children at [C] School. At the time of the hearing, the Mother expected to start a new job with [P] with the potential to earn $250,000 per annum.
The Mother believes [C] School is the children’s “sanctuary”. She says “they love their teachers, they love the school and both would be devastated” if they had to leave. She praises the Principal and teachers who she says have gone out of their way to support the children during a difficult period. She strongly opposes the children attending [R] School where she recalls [X] being unhappy in his first two school years. The Father says [C] School is “a waste of time”. He says it offers no sport, bullying is uncontrolled and he is unhappy with the religious base of the school. He also feels unwelcome in the school community because of the parties’ separation and divorce. Also, in the Father’s view, the children should not attend a private school when neither party can afford to own their own home.
Mr Maurice, Counsel for the Independent Children’s Lawyer submits that the question of parental responsibility in this case is difficult. Counsel submits that if either party has sole parental responsibility, there is a risk that that party will undermine the other’s parenting. On the other hand, Counsel submits that an order for equal shared parental responsibility in the circumstances of this case, “will not work”. Counsel submits the Mother should have sole responsibility, at least in relation to educational issues. Counsel asks the Court to make an order about the manner of the parties’ communication, suggesting limited email communication, except in an emergency.
I agree with Mr Maurice that an order for equal shared parental responsibility would not be practical at this time and neither party supports the making of that order. I am not optimistic about the parties’ ability to communicate improving, at least in the short term. It would therefore be impractical to make order requiring the parties to consult.
Having heard each party’s evidence on the school issue, I find the Mother’s attitude considerably more child focussed than the Father’s. While I accept his evidence that there are significant financial considerations, and I accept that he faces difficulties mixing in the school community, I am not persuaded that the Father appreciates how the loss of their familiar school community might affect the children in their present circumstances. I am satisfied that the school Principal and staff are a major support for the children and the children should remain at that school, if the financial hurdles can be overcome. I find that the Mother may have the means to meet the arrears and the ongoing school fees, at least until the Father is in a better financial position. I therefore agree with Mr Maurice that the Mother should have sole parental responsibility in relation to educational issues.
Given the high level of acrimony between the parties at present, I have decided that the Mother will also have sole parental responsibility for other major issues. However, the Mother will be required to involve the Father in the decision-making process.
Conclusion
I agree with Dr R that the critical issue in this case is the Father’s capacity to protect the children from the consequences of his emotional distress over the loss of his relationship with the Mother. Negative effects on the children include poor school performance ([X] in particular), and both children present to Dr R with “worrying signs” of long term developmental difficulties as a result of their circumstances. Of particular concern is the children’s emotional health if the Father continues to interrogate and pressure them. He says [PAGE 21]
It could create a dynamic where the children feel the need to be caring for their father rather than the father caring for them and responding to this. Under these circumstances, I believe it would then be necessary for the children to reside with the mother and to have restricted contact with the Father, perhaps fortnightly weekend contact. This would be a sad outcome for the children as the children do enjoy their relationship with their father.
In Dr R’s opinion the Father needs immediate therapy but is unlikely to willingly enter into it given the rigidity of his views.
Before contemplating an order to give the children significant time with the Father, Dr R advises that I must be satisfied that the Father has the willingness and capacity to gain insights into his destructive behaviour by engaging in therapy. Dr R believes that the Father may be emotionally compromised long term and unable to shift his position from criticising the Mother at every opportunity to one of giving priority to the needs of the children.
Consequently I have ordered the Father to undertake therapy with a psychologist or psychiatrist and to undertake a Parenting After Separation course. I have provided in my orders for these initiatives having successful outcomes or otherwise.
As a result of these circumstances I agree with Dr R that the children should live primarily with the Mother and should spend alternate weekend time with the Father and half school holidays while the Father is given the opportunity to make “substantial progress and engagement with his grief”. If there has not been substantial progress after 12 months of therapy, the children’s time with the Father will not increase. If, however, the therapy is successful, the children’s time with the Father will increase to 4 nights a fortnight.
I have made orders for changeover to occur at school whenever possible, to minimise the children’s exposure to conflict on changeovers. At other times, for the children’s and the parties’ convenience, changeover will occur outside each party’s residence.
As already noted, and in accordance with Dr R’s opinion, I am not satisfied there is any valid basis for keeping the children away from
Mr L.
I have given consideration as to whether the Court should make interim orders while the Father undertakes the recommended therapy but because I am not confident that the Father intends to follow the recommendation I find there is no benefit to the children in that approach. Counsel for the Mother and for the Independent Children’s Lawyer urge against that course. Both refer to Dr R’s remarks about the importance for the children of the litigation ending as soon as practicable. The Father submits that he does not require any counselling and also asks the Court to finalise these proceedings. I have decided the children’s interests are best served by the Court making final orders.
I am guided by the objects and principles already referred to. Having regard to all these matters, I am satisfied the orders set out in the beginning of these Reasons are in the best interests of [X] and [Y].
I certify that the preceding one hundred and thirteen (113) paragraphs are a true copy of the reasons for judgment of Sexton FM
Date: 20 December 2011
Corrections
1. In the catchwords on p.1 the children’s ages have been amended from “9 and 7” to “10 and 8”.
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