Douglas and Judd and Judd
[2009] FMCAfam 678
•26 February 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| DOUGLAS & JUDD and JUDD | [2009] FMCAfam 678 |
| FAMILY LAW – Parenting – relocation – where the mother proposes to move to Brisbane from Bundaberg. |
| Family Law Act 1975, ss.60CA, 60CC, 61DA, 65DA(2) & 65DAA |
| Applicant: | MR DOUGLAS |
| First Respondent: | MS JUDD |
| Second Respondent | MR JUDD |
| File number: | BRC 3886 of 2008 |
| Judgment of: | Howard FM |
| Hearing dates: | 25 & 26 February 2009 |
| Date of last submission: | 26 February 2009 |
| Delivered at: | Hervey Bay |
| Delivered on: | 26 February 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Anderson |
| Solicitors for the Applicant: | Charltons Lawyers |
| The First Respondent appearing in person: | Ms Judd |
| The Second Respondent appearing in person: | Mr Judd |
| Counsel for the Independent Children’s Lawyer: | Mr Fleetwood |
ORDERS
Except as otherwise provided, the father and the mother are to have equal shared parental responsibility for the major long term issues concerning the children, [X] born in 1994, [Y] born in 1998 and [Z] born in 1999.
The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:-
(a)they will inform the other parent about the decision to be made;
(b)they will consult with each other on terms that they agree; and
(c)they will make a genuine effort to come to a joint decision.
That notwithstanding the provisions of Order 1:-
(a)the mother will be responsible for the daily care, welfare and development of the children when they are living with or spending time with her and;
(b)the father will be responsible for the daily care, welfare and development of the children when they are living with or spending time with him.
Except as otherwise ordered or agreed between the parties, the children are to live with the father from after school/6.00 p.m. on Friday in week one of a two week cycle and with the mother from after school/6.00 p.m. on Friday in week two of a two week cycle.
The children are to have no contact with Mr T (born in 1981) and in the event he is present, the children will live with the father for that period. Should Mr T attempt to have any contact with the children the mother will immediately contact the father and arrange for the children to immediately go into the father’s care.
Order 4 will be suspended during the Easter school holiday period (such period not to include the period from 8.30 a.m. Good Friday to 6.00 p.m. Easter Monday) and the Christmas school holiday period as follows:-
(a)the children will spend the first half of such holidays with the mother in odd numbered years, and the second half of such holidays with the mother in even numbered years; and
(b)the children will spend the second half of such holidays with the father in odd numbered years, and the first half of such holidays with the father in even numbered years.
For the purposes of Order 6, school holidays will be deemed to commence at close of school on the day the school term finishes or 6.00 p.m. on Easter Monday (as the case may be) and conclude at 9.00 a.m. on the day the children return to school, and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights, the parents will retain the additional night alternately.
Order 4 will be suspended during the Easter weekend from 8.30 a.m. Good Friday until 6.00 p.m. Easter Monday as follows:-
(a)if the children are not living with the mother at the time, the children will spend time with the mother from 8.30 a.m. Good Friday to 6.00 p.m. Easter Monday in odd numbered years; and
(b)if the children are not living with the father at the time, the children will spend time with the father from 8.30 a.m. Good Friday to 6.00 p.m. Easter Monday in even numbered years.
Unless otherwise agreed between the parties the children will spend time with the parent with whom they are not living:-
(a)on each of the children’s birthdays from 4.00 p.m. to 6.00 p.m. if it falls on a school day and from 1.00 p.m. to 5.00 p.m. if it falls during a holiday or on a weekend;
(b)on Christmas Day from 3.00 p.m. Christmas Day to 3.00 p.m. Boxing Day PROVIDED THAT the parties are both spending Christmas within 50 kilometres of the Bundaberg Post Office. The parties will provide to the other 14 days written notice if they are not spending Christmas within 50 kilometres of the Bundaberg Post Office;
(c)on Mother’s Day from 9.00 a.m. to 5.00 p.m. with the mother, if normally living with the father that day; and
(d)on Father’s Day from 9.00 a.m. to 5.00 p.m. with the father, if normally living with the mother that day.
The children will communicate with the parent with whom they are not living by telephone at all reasonable times.
Unless otherwise agreed between the parents, changeovers will occur:-
(a)if the children are at school, at the children’s school; or
(b)if the children are not attending school, the parent with whom the children are living will deliver the children to the other parent at the commencement of the time the children are to live with the other parent.
The mother and father will:-
(a)keep the other parent informed at all times of the residential address, email address and landline contact telephone number;
(b)unless otherwise agreed by the parents, use email to communicate parenting issues regarding the children;
(c)keep the other parent informed of the names and addresses of any treating medical or other health practitioners who treat the children and authorise that practitioner to provide the other parent with information that they are lawfully able to provide about the children; and
(d)inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or illness suffered by the children. This Order authorises any treating medical practitioner to release the children’s medical information to the other parent.
The parents authorise, by this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards obtained by the children (at that parent’s cost). Each parent is entitled to attend the school for any special event or at other times, subject to the direction of the relevant authorities.
As soon as practicable the parents will:-
(a)attend Relationships Australia (or such other organisation as agreed by the parents) to assist them in improving their communications skills with one another specifically relating to parenting issues and they will attend at such times and on such occasions as recommended by the counsellor/facilitator; and
(b)each undertake an anger management course or program.
The father will obtain counselling regarding issues arising from his childhood and the father will attend at such times and on such occasions as recommended by the counsellor.
The process to be used for resolving disputes about the terms or operation of these Orders will be as follows:-
(a)the parents will consult with a Family Dispute Resolution Practitioner to assist with resolving any dispute or reaching agreement about changes to be made;
(b)they will pay the costs of the Family Dispute Resolution Practitioner equally;
(c)in the event that they cannot agree on a Family Dispute Resolution Practitioner, the mother shall nominate three (3) practitioners and advise the father in writing details of their fees, experience and availability;
(d)the father will choose one of the listed practitioners within seven (7) days of receipt of the list;
(e)if the father fails to choose, then the mother may choose.
Except in an emergency, before an application is made to a Court for a variation of these Orders to take into account the changing needs of the children, each party is to take the steps referred to in the preceding Orders.
It is recommended that Mr Peter Jordan, the family report writer, travel to Bundaberg to explain these Orders to the children and that the Federal Magistrates Court of Australia be responsible for the costs associated with this. The parent with whom the children are living with will make the children available to Mr Jordan as advised by him or the Independent Children’s Lawyer.
That the Independent Children’s Lawyer be discharged effective
31 December 2009.
IT IS NOTED:
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 “Parenting orders – obligations, consequences and who can help” and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Douglas & Judd and Judd is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT HERVEY BAY |
BRC 3886 of 2008
| MR DOUGLAS |
Applicant
And
| MS JUDD |
First Respondent
| MR JUDD |
Second Respondent
REASONS FOR JUDGMENT
Background
This is an application for parenting orders involving three children, [X] born in 1994, [Y] born in 1998 and [Z] born in 1999. The children in question are the children of the applicant father, Mr Douglas, and the respondent mother, Ms Judd.
Mr Douglas was born in 1972 and Ms Judd was born in 1977. The parties commenced their relationship in July 1993. Throughout the course of their relationship there were periods of separation. The parties separated finally in September 2006.
The mother's proposal is that she be allowed to relocate with the children from Bundaberg to live in Brisbane. The father's proposal was initially that the two of them live week about in a shared care arrangement with the mother in Bundaberg but that the view of the father has been altered on hearing the evidence of Mr Jordan today and the father sought the orders proposed by the independent children's lawyer to the effect that the children live primarily with the father and spend alternate weekends with the mother and on the basis that Mr T, the mother's current de facto partner, has no contact with the children.
Equal Shared Parental Responsibility
I agree with the submission by the independent children's lawyer that there should be an order for equal shared parental responsibility. Pursuant to s.61DA of the Family Law Act1975 there is a presumption of equal shared parental responsibility. Despite the fact that there is evidence in this case of family violence for the reasons which I will state shortly, I do not consider that the presumption has been rebutted. Because the Court will be making an order for equal shared parental responsibility, the Court should consider s.65DAA of the Act. That is the section that deals with an order for equal time and it is also a section that deals with an order for substantial and significant time. I will come to those concepts later in these reasons.
Orders for equal time or substantial and significant time can be made, provided such an order is with the best interests principle.
Best Interests
The paramount consideration in the making of a parenting order is the best interests of the children. Section 60CA of the Act says that in deciding whether to make a particular parenting order in relation to a child, a Court must regard the best interests of the child as the paramount consideration. Section 60CC then sets out how a Court is to determine what is in a child's best interests. The primary considerations are stated in s.60CC(2). In this case it is clearly the case that the children enjoy close, loving and meaningful relationships with both of their parents. That is the first stated primary consideration in s.60CC(2).
The second stated primary consideration in s.60CC(2) is contained in sub-s.(b). Reference is made there to the need to protect children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. The need to protect these children from physical or psychological harm is an issue that I will refer to later in these reasons. In particular I refer to the evidence of Mr Peter Jordan.
Section 60CC(3) – Additional Considerations
Section 60CC(3)(a) – Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to weight it should give to the child’s views.
The children in this case have each expressed a wish to remain living in Bundaberg and, in particular, they would like to remain living in week about shared care arrangements between dad and mum.
The children are of such an age where their wishes must, in my view, be taken into account. [X] will turn 15 in 2009. [Y] will turn 11 in 2009 and [Z] will turn 10 in 2009. [X] has, in fact, stated to the report writer and, indeed, to her own mother, that she will stay in Bundaberg even if her mother were to relocate to Brisbane. [X]'s friends are in Bundaberg and her peer group is in Bundaberg. She has been going well at school in Bundaberg and she does not want to leave.
[Y] and [Z] (according to the evidence) have also been doing well at school. [Z] has clearly stated she wants to remain in Bundaberg. [Z] has told the report writer. [Y] has been the one that has stated his wish a little bit differently (note para.7.3.1.8 of the family report of Mr Peter Jordan which is annexed to Mr Jordan’s affidavit, filed on 22 August 2008).
[Y] said, regarding the move to Brisbane, "I don't know". He said he could not decide whether or not he wanted to go to Brisbane with his mother or stay in Bundaberg with his father. He said that his mother had told him and his siblings that they could decide. He thought that if they lived in Brisbane the travel to and from Bundaberg would be hard. That evidence has to be read in light of the evidence in 7.3.1.1 where [Y] had said that he had no preference about being with either parent but would prefer a week about arrangement with each. [Y]'s preference for a week about arrangement with each is essentially a preference that both remain in Bundaberg. Obviously a week about arrangement would not be possible if the mother moved to Brisbane and the father remained in Bundaberg.
It seems to me that [Y], as reported in para.7.3.1.8, was essentially saying that he did not want to disappoint either dad or mum by stating or by expressing a direct comment concerning the mother's preference to relocate. It is noted in Mr Jordan's report that the children, [Z] and [X], were clear, straight forward and categorically said they did not want to move from Bundaberg.
It is apparent that [Z] did not want to disappoint the mother and made an unrealistic comment to the mother at one stage (note paragraph 187 of the mother’s Affidavit) by saying that she would go to school one week in Brisbane and then attend school in Bundaberg the other week when spending time with her dad. Clearly that is not possible. In paragraph188 of the mother's Affidavit [Y] made it clear that he did not want to hurt his parents by making a decision. [X] was categorical she wanted an equal share arrangement and she wanted to stay in Bundaberg.
Section 60CC(3)(b) – The nature of the relationship of the child with:-
each of the child’s parents; and
other persons (including any grandparent or other relative of the child).
It is very clear to me, having regard to the evidence, that all the children have an excellent relationship with the mother and with the father.
As to the children's relationship with their stepfather, Mr T. I note paragraph 7.3.3.2 of Mr Jordan's report Mr Jordan reports [X] said:
“He’s a little bit weird. He talks to us in a nice way”. She said that Mr T teaches them certain things. When asked if he had a short temper, she said, ‘If it is something small … he can get a bit frustrated with it but if it is big, he seems to understand it better’.”
Regarding the episode with [Y] she said that she personally thought it was the right idea to go to the police about it but at the same time she said that Mr T was not really violent.
Mr Jordan, when observing the children with Mr T, set out his comments in para.8.1 of his report stating:-
“8.1.1 I sat at a distance and watched the three children interact with their mother and Mr T in the park. [Y] was sitting at a table looking at the paper. Mr T was standing in front of him, chatting quietly to him. [Z] played on the playground equipment while Ms Judd and [X] timed her as she tried various activities. Other children then came to the equipment but this did not bother [Z] at all.
8.1.2 [Y] did not appear responsive. He later informed me that he had a cold and was not feeling well. He lethargically moved around and was not speaking to anyone very much. As he came into contact with his mother, she rubbed his legs as he stood on the playground equipment. He then went and sat on the ground next to Mr T. His mother was very physically affectionate towards him, rubbing him on the back of his head.
8.1.3 Ms Judd and [X] appeared to have a pleasant rapport as they chatted together whilst timing [X] on the playground equipment. [Z] was very content to be as active as possible on the equipment. After a while, she went and sat down for a rest, next to Mr T. [X] continued to chat with her mother.
8.1.4 The children appeared quite comfortable in the situation and there was certainly no attempt by any of them to remain distant from Mr T or for that matter, from their mother. I was unable to hear the content of their discussions but there appeared to be no antagonism between any of them.”
The children were clearly frightened and upset with what occurred on 22 February 2008 when Mr T grabbed [Y] and pulled him out from underneath the massage table. At the time the children were interviewed by the Department of Child Safety and by the police. It is apparent to me that certainly at that time the children were very concerned with what had happened. At the time of the assessment by Mr Jordan the children had had approximately three months essentially without contact with Mr T. It is difficult to make any particular findings about the nature of the relationship of the children with Mr T at this present point in time except to say this: it seems to me to be the case that the children probably accept Mr T as being part of the mother's household because they do not wish, in any way, to upset the mother.
Section 60CC(3)(c) – The willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent
These parents, at times, have had a difficult relationship. They do not communicate very well. I am not sure of the reasons why they do not communicate well. They are both very intelligent people. The father is an [tradesman]. The mother has qualifications and experience in administration. They are both capable of holding down very good jobs on good pay. With the benefit of further counselling, which I will order through Relationships Australia, I am very hopeful that these parents will begin to communicate better. There will need to be an order, I believe, that the parties communicate by email.
Both parties conceded in the witness box that the other parent is a good parent. The father said he thought that Ms Judd was a good mother. The mother said she thought that Mr Douglas was a good father. Notwithstanding their own difficulties when it comes to the question of communication, I consider that they are both willing and able to facilitate and encourage a close and continuing relationship between the children and the other parent.
Section 60CC(3)(d) – The likely effect of any changes in the child’s circumstances, including the likely effect on the child 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 or she has been living.
This subsection becomes quite crucial in this case because of the recommendations made by Mr Jordan and the orders proposed by the independent children's lawyer and the father subsequent to hearing the evidence today of Mr Jordan. Such orders would mean less time with the mother – dependent upon whether or not Mr T was present at the mother’s residence.
The Independent Children's Lawyer is so concerned about the prospect of the children only having alternate weekends with the mother, that the Independent Children's Lawyer has asked for an order that
Mr Jordan travel to Bundaberg to explain the orders to the children. The children have each independently, and more than once, said that they want to live with mum and dad week about.
The children have always lived primarily with mum involved in the household. What the Court really has to weigh up at this point is whether an order which restricted time with mum to alternate weekends would have an adverse impact upon the children which would be greater than the adverse impact upon the children of some other parenting order. To what extent might the children be affected by such an order. Given that they are at such an age where they know what they want to do, especially [X], given they have all three clearly expressed they want a week about shared care arrangement, my view is that the children would find it difficult to accept only having alternate weekends with the mother.
The evidence of Mr Jordan, which he gave by telephone today, was that provided Mr T was not present he, Mr Jordan, supported a week about shared care arrangement with the mother. I think that a reduction in the time that these children spend with either mum or dad is likely to have an adverse impact upon them. I draw that conclusion based on the evidence, in particular, the wishes stated by the children on more than one occasion.
Section 60CC(3)(e) – The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
In view of the orders that I am going to propose, there will not be practical difficulties and expenses for the children spending time with their parents.
Section 60CC(3)(f) – The capacity of:-
each of the child’s parents; and
any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs.
I am satisfied that both parents have the capacity to provide for all the needs of the children.
Section 60CC(3)(g) – The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents and any other characteristics of the child that the Court thinks are relevant.
The ages of the children and their maturity is relevant because I consider they are at such an age where their wishes must be taken into account.
Section 60CC(3)(h) – If the child is an Aboriginal child or a Torres Strait Islander child:
the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
the likely impact any proposed parenting order under this part will have on that right
Section 60CC(3)(h) 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 parents have demonstrated that they are responsible and they both have an excellent attitude towards the children.
Section 60CC(3)(j) – Any family violence involving the child or a member of the child’s family.
This case involves many sad aspects. One sad aspect is unfortunately that there has been some history of limited violence. In terms of the mother and father, on occasions both parties have been at fault. It is, in my view, virtually impossible for the Court to review evidence of incidents which occurred many years ago between the parties and determine who was or was not at fault.
I will make reference to some of the incidents that have been raised in the evidence. The father broke down the door to a house, I believe it was Mr T's house, where the mother and the children moved to not long after the parents had separated. That incident occurred in March 2007. The father clearly acted inappropriately on that occasion. He acknowledges that he acted inappropriately. He was concerned that he did act in that manner and he was so concerned that he took himself off and obtained counselling about the incident. That is to his credit. The children must have been frightened and concerned with what occurred.
I am satisfied, having listened to the father, that it is extremely unlike that any similar event will ever occur again. There was some evidence of provocation. The father referred to some goading by Mr T in the background during a telephone call but the provocation certainly did not justify the father's actions. The father, I am sure, accepts that.
There was evidence of what can only be described as an “all-in brawl” involving the womenfolk in the yard of the house where the mother was living. At that time the father was living in a caravan in the same yard. The paternal grandmother, along with another relative of the father's (known as Aunty J), attended the premises and appear to have proceeded to lay into the mother. The mother retaliated, and from the account that I heard in Court (which I believe) the mother was able to defend herself. This was clearly a difficult situation and an unusual situation. The father, I find, acted completely appropriately on that occasion by attempting to break up the fight and attempted to protect the mother from his own mother and from Aunty J.
On another occasion the mother says the father grabbed her around the throat. The father says that he did not grab her around the throat. It was in the context of an argument between the parties. There can be no justification for grabbing the mother whether it was on the shirt, on the chest, near the throat or around the throat. I find that the father has reflected on such an incident and understands and accepts such behaviour is inappropriate.
The mother was struck in the face by the father on another occasion when he acted impulsively. I find that did occur. I find that it was in response to a very hurtful comment which the mother admitted to making. In any event, that action of the father was not justified even by that comment. It is not an appropriate response by a male to strike a female in those circumstances - no matter how hurtful the comment may have been. The mother's comment was utterly inappropriate. The mother's comment related to extremely unfortunate events that occurred to the father when he was young. The father has given evidence that he was sexually abused by his stepfather and the mother's hurtful comment was to the effect that he, the father, had probably enjoyed such abuse. The father's actions, on one level, are understandable but, by the same token the father’s actions are not acceptable.
There was evidence of an occasion when the mother hit the father in the face with a coffee cup. That was during one of the altercations between them. It may have been that altercation when the mother had been grabbed around or near the throat. I do not find it necessary to make particular findings about whether it was on that occasion or whether it was on another occasion. In any event, the mother struck the father in the face with a coffee cup.
On another occasion the mother hit the father, I find, with a telephone in the head.
What findings ought the Court make in relation to this history of domestic violence? The parties both concede that throughout the course of their relationship (which lasted from 1993 until 2006) there were many arguments. The mother had initially given evidence or given the impression that she was fearful of the father. Subsequently she did give evidence that on occasions she was fearful of the father and on other occasions she was not fearful of the father.
Having regard to the following evidence, which I accept:-
a)the evidence of the mother striking the father with the telephone;
b)the evidence of the mother becoming involved in the fracas with Aunty J and the paternal grandmother; and
c)the evidence by the mother herself that she was not always fearful of the father,
leads me to the conclusion that there were periods of time when the mother may have been fearful of the father but on the majority of occasions and during the majority of the time throughout their 13 year relationship I find that the mother was in fact not fearful of the father. I find that the mother was able essentially to stick up for herself. The mother admitted that it was the father who would seek to disengage from arguments and it was the mother who was upset with the attempt by the father to disengage because she, the mother, wanted to be heard.
The fact that these incidents occurred is unfortunate. The miracle is that the three children have turned out so well adjusted. It makes me think, and indeed I find, that these incidents were isolated. The parties have focused on them in these proceedings because of the fact of these proceedings. Litigation often has that effect. The children have not been unduly or adversely affected (according to the evidence).
There was, of course, also the incident of family violence involving
Mr T and [Y] in February 2008. Unfortunately, I do not consider that Mr T was as contrite as he ought to have been following that incident. Mr T is younger than the mother and the father. He was born in 1981. Until recently he had no children of his own. He now has a child named [H] with the mother. He did finally concede today under cross-examination that his actions on 22 February were inappropriate and that is clearly the case.
Mr Jordan made the point that the child, [Y], is “…a child with a fairly fragile self esteem”,
I find that, unfortunately, Mr T does yell inappropriately at the children. He has a background in the military and I have the impression that he has not adjusted particularly well to civilian life. Yelling at the children was inappropriate. Physically disciplining the children was inappropriate. I note that there is no evidence whatsoever that either the mother or the father at any time has inappropriately physically disciplined the children. That is a credit to the mother and the father and no doubt another reason that the children, notwithstanding everything they have been through and seen, remain well adjusted.
My finding concerning how well adjusted the children are is subject to one concern raised by Mr Jordan, that the child, [Z], was somewhat tearful during his interview with her, particularly when she expressed the wish for a reconciliation between the parents.
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
I accept the submission by the Independent Children's Lawyer that there should be a final order made. I had considered an order which was final, apart from an order for a psychiatric assessment for Mr T. In all the circumstances though I consider this family needs these Family Law proceedings to come to an end.
Section 60CC(3)(m) – Any other fact or circumstance that the Court thinks is relevant
Mr Jordan had initially recommended in his written report that the restriction upon Mr T spending time with the children be lifted to allow him to spend unsupervised time with the children. I will make some comments about that first. The mother provided an undertaking to the Court in August 2008. The undertaking was in the following terms:
“I will not leave the children unsupervised at any time in the presence of Mr T.”
On 28 August 2008 I made an order in discharging an earlier order. Order 4 from 28 May 2008 was to the effect that Mr T is to have no contact with the children. That order was discharged by Order on 28 August 2008. I accept the mother's explanation in relation to allowing the children to having unsupervised time with Mr T since August last year. On a review of the order that was made on 28 August, it would have been preferable if that order had specifically stated that the mother remained upon her undertaking that there not be unsupervised time with Mr T. The mother had the orders explained to her by her then solicitor, Mr Pennisi. I accept the mother's explanation. I do not consider that the mother knowingly breached the undertaking that she had given to the Court.
I started on this topic because I was referring to the evidence of Mr Jordan. Mr Jordan concluded that the children ought not relocate with the mother to Brisbane and they should stay in Bundaberg primarily because of the children's stated wishes, the fact they're doing well at school, the fact that their father lives in Bundaberg and the fact that the mother's evidence is that if I order that the children will stay in Bundaberg that she will stay in Bundaberg. I consider that it is in the children's best interests to remain living in Bundaberg. The evidence to support this conclusion is overwhelming.
In para.11.1.4 of his recommendations Mr Jordan had said:
“Supervisory requirements in relation to Mr T be removed so long as he participates in a Triple P Parenting program.”
I must say that the decision in this case would have been made substantially easier for the Court if that remained the recommendation of Mr Jordan, but it does not. Mr Jordan was provided with the subpoenaed material and he gave evidence today by telephone. Having considered the subpoenaed material Mr Jordan concluded that he thought that the children could live in a week about shared care arrangement with the mother provided Mr T was not present. It is important here to include a substantial part of Mr Jordan’s oral evidence and opinions. He stated:-
“(Mr Fleetwood) I’m just taking you to your recommendations because I - - -? --- Yes, yes.
What I’m asking you is in the light of the information that has been imparted to you and the evidence that you’ve given before his Honour this afternoon do you in any way change, add to or alter your recommendations to his Honour? ---Yes, look, I – your honour, what I’d say here is that the children are very fond of their mother, they have a strong attachment to her, they also have a very strong attachment to their father and they’re entirely comfortable in his presence. If their mother was not associated with Mr T I’d have no problems with an equal shared care arrangement. However, I do have problems with the children spending extended periods of time with Mr T. I don’t think Mr T is in his nature a violent person, I don’t think he seeks violence. I think Mr T is prone to – I think Mr T is personality disordered. I think he’s got certainly very significant aspects of narcissism to his personality and I would say that these are quite extreme, meet with the criteria for personality disorder. There are also significant aspects of paranoia, he’s got issues with authority, he’s got issues with people challenging him. If children were to challenge him he could find that difficult to deal with and not respond appropriately. He doesn’t know how to deal with being challenged and if he feels hardly done by he’s likely to verbally brow-beat people. Children are much more vulnerable than adults in that situation. I think they need to have less exposure to Mr T than – than week-about shared care. I think I could probably go along with alternate weekends so long as the mother were always present when the children are with him. I think that’s sad because I think they’d rather spend more time with their mother, but I – I have some pretty real concerns about him.
So you’re recommending to his Honour in the light of the evidence about Mr T and the other information that’s been imparted to you that the children live primarily with their father and that they spend time with their mother every second weekend. Are you able to by being a little bit more specific, after school Friday or- - -? ---I’d say after school Friday until Sunday evening. Not till Monday morning because I think we’ve seen already the difficulties that he’s had with getting [Y] to school and so- - -
What about the school holidays?- -Again, I think half holidays and mum – mother to be there at all times and Mr T not to be left alone with the children.
Mr T gave evidence that he had- - -?---Can I add to that?
Yes, sure?---That’s I guess on the theory that the mother is capable of protecting the children against him. Because one of the children, I think it was [X], referred to mum trying to push him out of the room when he was – when he was grabbing – involved in an altercation with [Y]. So I’m assuming mum can protect him , protect- - -
In- - -
FEDERAL MAGISTRATE: Say that again, Mr Jordan?---I’m making the assumption that that recommendation – your Honour, that the mother is capable of protecting the children and from one of the children’s account to me it would seem that she did do that. I don’t know what evidence there is before the Court about that issue, but the children – one of the children said to me that she was trying to get him out of the room at that time. So I’m making the assumption from that that she would behave protectively towards the children.
MR FLEETWOOD: And how are the children going to cope with that arrangement if his Honour decides that arrangement should be put in place?---Well, I think they’ll be sad and I think that they’ll be disappointed and I feel disappointed for them if the court does go down that track. At the same time their father, I believe, is a person who can care well for them, he – they – they relate well to him and they get on with him, they enjoy his company. So they’ll feel good with dad. But I do think that they’ll be sad about not being able to spend that additional time with their mother. Not so much the – no so much [X] – is it [X]’s the eldest child?
Yes, [X]’s the eldest?---She’s now getting towards a stage of independence and I think she’d be able to cope quite well. I think [Y] and [Z] will be sad about it.
If Mr T were not around would that give you any cause to change your recommendation?---Yes, if Mr T weren’t around I’d be happy to go along with equal shared care.
Because I have to tell you there is some evidence that Mr T may move to Brisbane for work commitments and may not stay in Bundaberg, whereas if the children stay in Bundaberg he seemed to indicate that (indistinct) able to. So if he were not in the household around then you would support equal shared – equal time with each parent?---Yes, if he weren’t there I see no problems with equal shared care.
Mr T gave evidence that he had undertaken a parenting course and he hadn’t finished it yet and he felt that it had assisted him. Does that make any difference to your recommendation, Mr Jordan?---Not given the degree of personality dysfunction that we’re talking about, no.
Are you able to- - -?---I think it’s a good thing that he’s doing it and it may assist him to some degree, but I don’t think a Triple P Program is really going to make a – a huge difference in terms of the risk involved here.
Are you able to suggest from your experience and extensive knowledge of any therapy or treatment that Mr T could possibly undertake to address some of these issues that you’ve identified?---One of the – one of the problems with personality dysfunction is it’s inherently difficult to deal with and one of the problems there is lack of insight in the person – on the part of the person who has the personality disorder. Everyone else around them tends to be able to see it except them. So they won’t tend to take kindly to treatment and they’re not terribly receptive to it because they don’t think they’ve got a problem and of course the behaviours that are inherent within the – within the disorder itself tends to interrupt with – with counselling or therapy as you might call it and – and may – may itself interrupt the – the therapeutic process. The issues of – any further issues such as – say, for example, we were talking about Post-Traumatic Stress Disorder as a result of the Army experience, again the prognosis for PTSD as in therapy is dependent upon severity. You could probably say as a rough statement 50 per cent of people are going to recover from it, 30 per cent are going to have some residual long-term psychological effects, 20 per cent are going to have moderate or – 10 to 15 per cent of people are going to have on-going moderate psychological or psychiatric sequelae. And you again have a small body of people who have very severe and pronounced psychiatric symptomatology for the rest of their lives. So it’s difficult to – to predict if that were the case, if he were suffering from post-traumatic anxiety related disorder, stress disorder, as a result of bastardisation or other experiences within the Army, it’s difficult to know what the prognosis would be. So I guess in answer to your question, if there – if there are therapeutic processes that are going to ameliorate or remediate him, yes, guarded, very guarded prognosis.
The next question I want to ask you is to pose something to you which arises out of some evidence that’s before the Court. What if there were concerns that the mother couldn’t protect the children from Mr T – and I base this question on some evidence which is contained in the documents which were tendered from the Department of Child Safety – and in the interview with [Z] on 25 February last year [Z] is reported to have said:
‘Thinks that her mother is now going on Mr T’s side as she is telling them to come home, but lying that Mr T is not at the house. She has spoken to her on the phone, she could hear Mr T in the background. Mother believes Mr T when he- - -’
this is what the child’s saying:
‘Mother believes Mr T when he blames them for things they have not done. Mr T always yells and is mean.’
What if there were concerns that the mother wasn’t or couldn’t protect the children from Mr T’s behaviour that you’ve described?---That – that it would be very worrying if the mother couldn’t protect them from – from him. And look, I think the danger from him is not – he’s certainly shown that he can lose his temper and he’s hurt Mr T – hurt [Y] on one occasion. My observation of him is – is that he’s a very controlling and brow-beating individual and if he were to do that to the children at times when he’s not happy or he’s upset about something or he’s impatient about something, that their long-term emotional health would – would really suffer. If – and I – and I wonder how capable she is of stopping him doing that. I found myself having difficulty stopping him doing that. I had to get – get him out of – out of the – out of the room. It’s a very – very difficult issue. If she were not capable of protecting them physically you’ve got to consider whether or not the children – I’d say you’d have to say they could only spend time with the mother when he’s not present.
MR FLEETWOOD: Thank you, Mr Jordan, would you stay on the line because there will be other questions asked of you?---Thank you.
FEDERAL MAGISTRATE: Before you finish, Mr Fleetwood, can you just put to Mr Jordan was there a reference that [X]’s (indistinct) happened when mum wasn’t around.
MR FLEETWOOD: Yes. Yes, thank you, your Honour.
FEDERAL MAGISTRATE: But first (indistinct).
MR FLEETWOOD: Certainly. Mr Jordan, his Honour’s helpfully reminded me of something that [X] said in the – now, [X] was interviewed on 25 February last year as well. She was not present when the incident took place between Mr T and [Y], but [X] was interviewed and [X] is reported to have said – and I quote from this report:
‘Anything that happens to siblings by Mr T happens when she is not around.’
I’m assuming “she” means the mother.
‘Was aware that in the past Mr T has picked [Z] up and taken her to her room. Mr T yells at children a lot. Mr T yells at mother a lot saying she’s not raising us the right way. Mr T gets angry and frustrated.’
Now, that’s a report from [X], who was at that stage 13. But his Honour has asked me to put to you the first sentence:
‘Anything that happens to siblings by Mr T happens when she’s not around.’
Are you able to comment on that- - -
FEDERAL MAGISTRATE: I just wonder (indistinct) realised the precise words, I wonder if it does mean things happen when [X]’s not there (indistinct) siblings.
MR FLEETWOOD: Or the mother.
FEDERAL MAGISTRATE: Because she says “siblings”.
MR FLEETWOOD: Yes, that’s right.
FEDERAL MAGISTRATE: She doesn’t say “things happen to us”.
MR FLEETWOOD: No, she says:
‘Anything that happens to siblings by Mr T happens when she is not around.’
And we don’t know who the “she” is.
FEDERAL MAGISTRATE: We don’t know, no, we don’t know.
MR FLEETWOOD: It’s either “she” meaning the mother, Ms Judd, or “she” meaning [X], the sister.
FEDERAL MAGISTRATE: Okay. So Mr Jordan, if the interpretation is that it happens when mum’s not around what would be the comment?---Well, mum should always be around, that he shouldn’t be alone with the children. One wonders if – if she could be trusted for that to occur. So there – you know there’s a concern, I suppose. He shouldn’t be left alone – the children should not be left alone with him and if – if there were concerns that the mother would leave him alone with the children, given what – given [X]’s comment there, then again I would – I would have to suggest that the children should only then see their mother when he’s not there.”
Mr Jordan concluded that Mr T has a personality disorder. Mr Jordan was referred to Mr T's numerous confrontations with the police. Mr T gave evidence confirming his numerous confrontations with the police, pointing out to the Court or stating to the Court, in essence, that he felt that he should confront the police on occasions and let the police know that they were acting inappropriately. Mr T believes that on each occasion that he has had a confrontation with the police, it has always been the fault of the police officer involved. An incident occurred on
1 December 2004involving the police. Another incident occurred in 2005. There was an incident that occurred, in fact, also in 2003. Those incidents are referred to in the evidence. On each occasion Mr T was of the view that it was the police who were in the wrong and certainly not him.
The incident of November 2003 was particularly concerning. It involved the break-up between Mr T and his then partner, Ms B. Mr T deposited on the roadway in front of Ms B’s residence, I understand, a refrigerator, a cot and a washing machine and apparently these items were rendered useless.
I find that the mother was not in fact aware of Mr T's history of domestic violence. That is concerning. It was apparent to me observing the mother in the witness box yesterday that she was hearing for the first time that Mr T had a history of confrontations with the police and a domestic violence history. I note, because it is worth noting at this stage, that Mr T attended from grade 8 to grade 12 at [omitted] High School in Bundaberg. His mother, Ms T, lives in Bundaberg, but I note that he does not want to remain living in Bundaberg. He said to the Court in answer to a question, the question was, what would Mr T do if the Court decided that the children should remain in Bundaberg, and Mr T was also informed at that point that the mother had said she would stay in Bundaberg. He answered that he did not know what he was going to do. It seems to me, I infer from the evidence, that this was also evidence which has perhaps come as somewhat of a surprise to the mother and to be somewhat disconcerting for her.
Mr T gave evidence that he was the victim of bastardisation during his time in the military between 1999 and 2002. He referred to his third battalion and the fact that that battalion had a history of bastardisation. He said that he had been subjected, on occasions, to physical beatings.
Mr T was referred to subpoenaed material that related to the incident of December 2004. He was sent by the police for an emergency assessment at a mental health unit. Notes made on that occasion, either by the hospital or by the police, were made after discussions with
Mr T's mother to the effect that the mother would not have him at her place because he was off his medication. Mr T denied actually being on a drug called Luvox, although in the notes concerning December 2004 there was a specific reference to the fact that his prescription had been altered from, I believe, it was 50 milligrams to 100 milligrams. Mr T indicated that he had seen many psychiatrists whilst in the army and he has seen Dr J, a psychiatrist in Bundaberg, since leaving. Mr T, as I referred to earlier, has had difficulties adjusting to civilian life.
Mr T has stated in his affidavit that he had no criminal history. Eventually he agreed that that was not correct and what he meant to say was he had no criminal convictions. He had also said that he had no history of violence or abuse but corrected that. That was in his affidavit. He corrected it in the witness box to say he had no convictions in respect to violence or abuse. He conceded that after a break-up in Brisbane (I believe it was with the lady by the name of
Ms B) he was suicidal. It is apparent to me that Mr T has not fully come to terms with what he experienced in the army.
Mr T, I find, acted inappropriately during the interview process with Mr Jordan. He spoke inappropriately to Mr Jordan. He attempted to browbeat Mr Jordan. He interrupted the mother's interview with Mr Jordan to the extent that the mother's time with Mr Jordan had to be curtailed and could not be continued. That behaviour by Mr T was, not only inappropriate, but unforgivable. The process of the report writing was not about Mr T. The process had to do with the children.
Mr T made a grave accusation against the report writer, Mr Jordan. Mr T allegedly said Mr Jordan looked inappropriately at [X]'s chest area during the interview. I do not believe that evidence from Mr T. I do not believe that Mr Jordan acted inappropriately. I find that Mr Jordan did not look inappropriately at [X]'s chest area.
Mr Jordan said in evidence today, upon hearing that accusation, that he considered Mr T either a liar or delusional. It seems to me that the best that could be said of Mr T in relation to that evidence is that he was seriously and grievously under a misapprehension. The worst that he has concocted an outright lie in an attempt to discredit Mr Jordan. I said earlier I do not believe what Mr T had to say. I find that he did not tell the truth about that particular incident. I accept the evidence of Mr Jordan that he acted appropriately at all times during the interview process and that he acted appropriately in the presence of [X].
I consider that if Mr T, in his role as stepfather, was of the view that the report writer had acted inappropriately then he ought to have immediately raised that issue with Mr Jordan. He would have, in my view, if it were true. Mr T was not backward in coming forward when discussing matters with Mr Jordan. He browbeat Mr Jordan for at least 10 minutes. It seems to me that if, in fact, Mr T had observed inappropriate behaviour by Mr Jordan that he, Mr T, would not have hesitated to immediately pounce at that stage and confront Mr Jordan with that issue. Mr T had no hesitation in confronting Mr Jordan on any range of issues in such a manner that showed inappropriate aggressiveness on the part of Mr T. I therefore find that if it had been true that Mr Jordan had looked inappropriately at [X], that Mr T would have done something at the time. I do not believe Mr T.
I was not satisfied with Mr T's explanations about his psychiatric past. I was not satisfied with Mr T's explanations about his psychiatric diagnoses. I was not satisfied with Mr T's explanations about the prescription of medication and his decision not to take the medication. I am not satisfied with the state of the evidence generally from Mr T. There are too many unanswered questions about Mr T.
I actually believe Mr T when he said, and I do find that he was the subject of bastardisation during his time in the army. I accept his evidence that a number of his friends have died, including a number who committed suicide. I accept that he witnessed and experienced things in the army, both in Australia and in East Timor which caused him trauma. He said as much in the witness box. It could well be that the history of the background that Mr T gave the Court today does go some of the way to explaining his inappropriate behaviour which occurs on occasions including his inappropriate yelling at the children; his inappropriate treatment of [Y] in February 2008; his inappropriate behaviour to the Court during the report writing process; his inappropriate behaviour in confronting police; his inappropriate actions which seemed to occur, amongst other occasions, when he goes through a break up from a relationship.
Because of all of the reasons and taking into account Mr Jordan's conclusion, I feel compelled in this case to make the following comments and to make the following orders. Mr T's problems could well stem from his time in the army. He has a controlling nature referred to by Mr Jordan. I accept Mr Jordan's evidence to the effect that he was browbeaten by Mr T. I accept Mr Jordan's evidence that he, Mr Jordan, is concerned of what impact such browbeating may have upon the children if it were to occur to them. It does seem to be the case that the general thrust of Mr Jordan's evidence and the evidence generally is that apart from the incident involving [Y] in February last year, nobody seems overly concerned of further physical abuse by Mr T. The real danger, to my mind, relates to psychological harm which could be suffered by the children. I refer to the evidence of Mr Jordan that Mr T is a controlling, brow beating individual and the long term emotional health of the children could suffer should they be exposed to Mr T. Of particular note in this regard is the evidence of Mr Jordan that the child, [Y], is a somewhat vulnerable young man. That evidence from Mr Jordan will be supported by the evidence that [Y] cowered under a massage table, in a foetal position during the altercation which took place on 22 February 2008.
The fact that Mr T may have turned out the way that he has because of things that he saw or things that occurred to him during his time in the army, is not something which the children in this case need be concerned with. What I mean by that is this: it is no concern of the children in this case what may or may not have occurred to Mr T during his time in the army. It is not their fault. They had no part in it. They are not responsible for the bastardisation or the trauma he saw in Timor. They are not responsible for the way Mr T has turned out and my conclusion is that they ought not be left in a position where their long term emotional health could be compromised because of contact with Mr T.
Another aspect of the evidence that was concerning by way of Mr T was the report by one of the children, namely [X], that "things occur involving Mr T when mum is not around". The evidence is what the Court must act upon. The children are of course the primary consideration. The wishes of parents do not take precedence ahead of the paramount consideration which is the best interests of the children. The children will stay in Bundaberg. To my mind the children should be able to live week about with each parent provided Mr T is not present. That will not be an easy order for the mother to accept but accept it she must in the light of the evidence before the Court and the findings that I have made.
It seems to me that the mother, if she wishes to continue her relationship with Mr T, will have to organise her life in such a way that she can comply with this order. Mr T may have to work a week away at a time or a fortnight away at a time and structure it in such a way that he also gets to spend time with the mother. Mr T may decide to live in Brisbane and the mother, it seems to me, could visit him in the weeks when the children are with the father. There are alternatives for the mother. There are alternatives that will allow her to see her children each alternate week and then there are alternatives whereby she could, if she wishes, maintain a relationship with Mr T.
It is clearly in the children's best interests to live week about with the mother and the father. It is clearly in the children's best interests for the mother to remain living in Bundaberg. The mother has to decide in this case whether she will put Mr T ahead of her children. There was an unfortunate occurrence last week when, following the incident involving Mr T and [Y], [Y] was sent by the mother to North Queensland. That was not appropriate. The mother ought to have sent, if she wanted to get young [Y] away from the household, she should have sent him to the father but, of course, the preferable solution would have been to request Mr T to leave the household. The mother is in a difficult situation because she now also has a child with Mr T but these difficult situations can be worked around. This Court is deciding what should happen with the children, [X], [Y] and [Z] and the decision of this Court is that they ought not have contact with Mr T.
The Court is left in a position where there really is no alternative but to make such an order. The evidence to support such an order is plain and there for all to see. The counsel for the independent children's lawyer had submitted alternate weekends with Mr T not to be present. On reflection I do not consider that it is necessary for this Court to restrict the mother's time with the children so severely. I do not consider the evidence supports such severe curtailing of the mother's time with the children. Mr Jordan's evidence was, at the end of his evidence, to the effect that if Mr T was not around then there should be equal time with each parent.
I have not yet made any particular reference to s.65DAA(1). In view of my orders though I am making an order for equal time with the very important proviso that I have referred to, that proviso being that when the children are with the mother Mr T will not be around.
I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of Howard FM
Associate: J Witenden
Date: 27 July 2009
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