Egan and Egan - [2011] FMCAfam 1059

FEDERAL MAGISTRATES COURT OF AUSTRALIA

EGAN & EGAN

[2011] FMCAfam 1059

FAMILY LAW – Parenting – rebuttal of presumption of equal shared parental responsibility consideration of both parents attitude to the responsibilities of parenting – findings of serious psychological abuse and hurt by the Mother – order for Father to have sole parental responsibility with no order for consultation – total absence of communication – no specific times for children to spend time with the Mother – ongoing risk of harm and abuse.

Family Law Act 1975, ss.60B (1), 60CA, 60CC(2), (2)(b), (3), (3)(f), (3)(f)(i) & (ii), 61DA (4), 65DAA

Applicant:

MR EGAN

Respondent:

MS EGAN

File Number:

CSC 962 of 2007

Judgment of:

Coker FM

Hearing date:

10 February 2011

Date of Last Submission:

10 February 2011

Delivered at:

Cairns

Delivered on:

11 February 2011

REPRESENTATION

Counsel for the Applicant:

Ms Wilson

Solicitors for the Applicant:

Williams Graham & Carman

Respondent:

In person

ORDERS

That all previous parenting orders be discharged.
That the Father have sole parental responsibility for decisions relating to the long-term care, welfare and development of the children, [X] born [in] 1996 and [Y] born [in] 1999, including but not limited to:
(i)a child’s education (both current and future);
(ii)child’s religious and cultural upbringing;
(iii)a child’s health;
(iv)a child’s name;
(v)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with other parent.
That within 48 hours of any decision finally being reached by the Father addressing issues defined in Order 2 herein, that the Father in writing, by email or post, advise the Mother of the decision.
That the Mother spend time with the children as may be able to be agreed between the Mother and the children, and the Father facilitate such time being spent by the children with the Mother.
That before the children are to spend time arranged between them and the Mother, the Mother is to communicate with the Father by email or letter, so the time arranged can be confirmed by the Father with the children.
That at any time that the Father is absent from Cairns for work-related purposes or unable to provide care and supervision of the children, then in that event that the Father is able to make arrangements for the children to stay with the Paternal Grandparents.
That the Mother forthwith deliver to the Father the passports of the children held by her.
That the reasons for judgment be published.

IT IS NOTED that publication of this judgment under the pseudonym Egan & Egan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT CAIRNS

CSC 962 of 2007

MR EGAN

Applicant

And

MS EGAN

Respondent

REASONS FOR JUDGMENT

These proceedings relate to arrangements with regard to the parenting of two children, [X], born [in] 1996 and, therefore, just a little over

14 years of age, and [Y], born [in] 1999 and, therefore, a little over 11 years of age. The children are the children of Mr Egan, who is the applicant in these proceedings, and I shall, for convenience, refer to him as the father, and Ms Egan, who is the respondent to the proceedings and, again, for convenience, I shall refer to her as the mother.
The parties to these proceedings separated in 2006. They are divorced. On 12 June 2008 orders were made by consent in relation to arrangements with regard to the parenting of the children. They provided, in general terms, for the parties to have equal shared parental responsibility in relation to the long-term decisions to be made. They went on then to provide, as is perhaps normal, for each parent to have sole parental responsibility in relation to decisions to be made when the children are living with them, and then went on to provide some definitions in respect of what, at least broadly, could be described as the major long-term issues in relation to the children’s lives.
The orders then provided for arrangements with regard to the children spending time with the father and they, quite comprehensively, set out arrangements in relation to taking into account the work that the father had which took him away from Australia. The orders were then quite comprehensive again in providing for specific arrangements in relation to special times and occasions that might arise outside the day-to-day performance of the activities within the children’s lives.
The orders provided, again, for communication by email between the parents in relation to issues with regard to the welfare of the children, and then went on to provide, as again is perhaps normal, arrangements with regard to provision of information between the two households, such as any details of changes of addresses, telephone numbers, changes to work rosters and issues such as that.
The orders were, if you like, of a generally acceptable nature and I mean that in the sense that they are the common type of order that was made. It was a sensible resolution between the parties of what was to facilitate the future care and provision for the children of the relationship. One would have hoped, as one always does, that it would have been the end of the litigation between the parties, not only because of the financial and emotional toil that that takes on the parents themselves, but, more importantly, because it provides that settled and stable environment that the children themselves are entitled to.
Unfortunately, that has not been the case in relation to these proceedings and, whilst those orders were made in June of 2008, within a little over a year further proceedings were brought before the court, with the father instituting the proceedings that have finally led to the determination required by me to be made in relation to this matter. He instituted further proceedings on 20 August 2009 and, as a result of the institution of those further proceedings, orders were made by consent in relation to variation to the earlier orders of 12 June 2008. Those variations were as follows:
That the order made in the Family Court of Australia at Cairns on 12 June 2008 be varied as follows:-
6.That clauses 4 and 6 thereof be deleted and in their place the following clauses be inserted:-
“4.   That the children shall live with the mother as follows:-
(a)That the child [Y] shall live with the mother as follows:-
(i)For the period from the end of the school day on Monday 26 October 2009 to the commencement of the school day on Friday 6 November 2009.
(ii)For the period from the end of the school day on Monday 16 November 2009 to the commencement of the school day on Friday 27 November 2009.
(iii)For the period from the end of the school day on Monday 7 December 2009 to the commencement of the school day on Friday 18 December 2009.
(iv)Each alternate week commencing from the end of the school day on Friday 5 February 2010 and each alternate week thereafter.
(b)That the child [X] shall live with the mother as follows:-
(i)    From the completion of the school day on Friday 30 October 2009 to the commencement of school on Monday 2 November 2009.
(ii)   From the completion of the school day on Friday 20 November 2009 to the commencement of school on Monday 23 November 2009.
(iii)     From the completion of the school day on Friday 11 December 2009 to the commencement of school on Monday 14 December 2009.
(iv)     For each alternate weekend from the end of school on Friday to the commencement of school on Monday commencing on Friday 5 February 2010 and each alternate weekend thereafter.
(c)That both children shall live with the mother as follows:-
(i)For the second half of the Christmas holiday period in 2009.
6.The children shall live with the father at all other times and if the father shall be away from Cairns at any time up to 31 December 2009 for work related purposes during periods when the children are to live with him, they will continue to remain in his care and control but will be permitted to stay with the father’s parents Mr E and Ms E.”
THE COURT ORDERS THAT:
7.The parties do all acts and things and sign all documents to ensure that the child [X] born [in] 1996 is enrolled forthwith to attend upon a child psychiatrist through Relationships Australia for child counselling.
8.The Mother and the Father is to provide the counsellor with a copy of their Affidavit material including the Affidavit of the Mother’s brother forthwith.
9.Ms C be permitted to discuss this litigation and in particular, interviews with the children with the child’s psychologist or counsellor upon [X] or [Y] attend.
10.The parties attend upon Ms C for a further Conference in November on a date to be advised by Ms C.
11.That pursuant to section 62G of the Family Law Act 1975 the parties and the children attend upon a Family Consultant as directed by the Manager Child Dispute Services on a date and time to be advised but no earlier than February 2010 for the purposes of preparation of a family report.
12.That a family report deal with the following matters:
a)   Any views expressed by the Children and any factors (such as the Children’s maturity or level of understanding) that would affect the weight that the Court should place on those wishes.
b) That the matters set out in ss60CC, 61DA and 65DAA of the Family Law Act 1975; and
c)   Any other matters that the Family Consultant considers important to the welfare or best interests of the Children.
13.Upon the release of the Family Report, the matter will be listed for mention on 29 March 2010 at 10:30 am in the Federal Magistrates Court of Australia at Cairns.
NOTATION:
A.The Mother and the Father be guided by the counsellor as to [Y]’s attendance and both parties have agreed to follow the recommendations of the Counsellor.
B.The Father is resigning from his employment and has given 8 weeks notice.
Basically, they differentiated from what was to occur between the two boys, [X] and [Y]. There was included in those orders an agreement, understandably, that there should be steps taken with regard to the preparation of a report in relation to these proceedings and a requirement that the parties and, of course, the children participate in the preparation of the report.
There have, unfortunately, been further developments in relation to this matter and I shall, of course, comment upon them as I progress through the reasons in relation to this matter. The final positions taken by each of the parties in relation to the proceedings are not that far apart.
Unfortunately, it has come to a situation where the mother’s stance in relation to the matter is to say that she would generally accept what was proposed by Ms C in relation to arrangements with regard to the ongoing future parenting of the children. Ms C has prepared two reports in relation to these proceedings, the first of those released on 7 April 2010, and the second released on 30 September 2010.
Ms C, in that second report, indicates that what she would propose in relation to both of the children is that both boys live with the father, that both boys be given the option of visiting their mother at any time which can be negotiated between the boys and their mother, but that, failing that, that they should visit the mother at least once a month for a weekend. Ms C then goes on to make recommendations with regard to the boys being able to communicate with their mother by way of mobile telephones and, unfortunately, and it is a reflection of the relationship between the parties, she goes on to recommend that:
The father and the mother have as little to do with each other as possible.
She then goes on, I think, again unfortunately, and I shall comment upon it later to also recommend that the mother gives [Y] (and [X] as well) all his personal items which are important to him. She then says:
At interview [Y] said “I asked for my stuff, my iPod and my phone charger (and other things). I don’t think she will give them to me.
Ms C had previously recommended in the earlier report released 7 April 2010, that there should be equal shared parental responsibility. The mother says that that, not having been commented upon by Ms C in the subsequent report, is the appropriate course to follow in relation to the proceedings. As I said there is not a huge difference, though there are fundamental issues that are in dispute between the parties.
The father’s position in relation to this matter was finally detailed, perhaps as the circumstances in relation to this matter developed, in the outline of case which was filed on 8 February 2011.
The father says, quite simply, that shared parental responsibility is not something that can work and that he should have sole parental responsibility in relation to the long-term decisions to be made with regard to the welfare and best interests of [X] and [Y] and then, perhaps understandably and quite properly, says that he would advise the mother of any long-term decisions to be made in relation to the children within a period of seven days.
He further says that the children should live with the father and spend time with the mother as they choose. That, of course, reflects the recommendations of Ms C, but he does not adopt that further fallback position of a specific arrangement in the event of there not being able to be some arrangements made, with regard to time to be spent.
Those are the two issues in dispute in relation to these proceedings and the arrangements to be made with regard to the parenting of the children, though they are obviously issues of significant nature and matters which will need to be commented upon at some length.
Obviously, before I address issues in respect of the law and issues generally with respect to these proceedings and how I consider it appropriate to apply the law in relation to the matter, I need to comment upon the evidence that is before me. It came from a number of sources, as is always the case. Primarily, it came from the parties to these proceedings themselves, the mother and the father. Their evidence was obviously significant and, perhaps, telling in relation to the determination of these proceedings, but I was also assisted by the evidence that was given by two other witnesses called in relation to the proceedings.
They included, from the father’s perspective, the paternal grandfather, Mr E senior, and, from the mother’s perspective, her partner, Mr V.

I was also assisted, having already made comment, of course, in relation to it, to the two reports provided by Ms C. Ms C was not required for cross-examination, though it was clear from the mother’s addresses in relation to the matter that there were certainly some issues in relation to what Ms C reported in relation to this matter which were, the mother said, not an accurate reflection of what was the outcome of the discussions between them during the interviews which led to the preparation of the reports. Again, I will comment in relation to those particular aspects of the matter a little later in these reasons.
Before turning to the primary evidence, of course, being that of the mother and the father, it is important, however, that I comment briefly upon the evidence of the two other witnesses who appeared, Mr V and Mr E senior. Insofar as Mr V was concerned, I did not have a great opportunity to consider him or to observe him in the witness box, but I got the impression that he was a decent, honest, honourable, reasonable man, except in a couple of circumstances, and I will obviously come to those in a moment.
He took, I thought, a very appropriate stance in relation to this matter. Whilst he was there for the support, he said, of the mother, he realised that issues in relation to the parenting and decisions to be made with regard to the parenting of the children were matters that should properly be decided between the mother and the father. It was a perfectly sensible and a perfectly proper approach to be taken in relation to proceedings, but I was troubled, and I raised it in cross-examination in relation to this matter, and my own queries with Mr V.
It relates to one particular issue which troubled me enormously. It was the apparent change in circumstances between what [Y] had experienced within the household of his mother, prior to the commencement of the mother and Mr V living together, and the circumstances thereafter. Whilst I accept, of course, that there must be changes in respect of such issues, I get the distinct impression that there were very radical, at least from [Y]’s perspective, changes within the household and, certainly, they affected him directly in relation to his relationship with his mother.
One obvious example of that was the fact that there was a restriction on the child being able to open the front door. It was, I commented, somewhat incongruous that [Y] was not able to open the front door to strangers and, whilst perhaps not in any real or determined way, disciplined or criticised by Mr V for opening the door to a school friend and his mother, it was an issue that troubled the child. He speaks about it to Ms C in the reports that were made. The incongruity, of course, is that when I asked Mr V why the child was not able to open the door, he quite properly indicated that it was obviously a protective measure and one that related to issues with regard to not knowing who might be on the other side. The incongruity is that, for two or three weeks or so, before [Y], unfortunately, made the decision that he made with regard to living with his father, he was not able to have a key to the house and was required to wait outside.
The mother emphasised to me at that time that it only occurred on a few occasions, perhaps three or four times during that two or three week period, but what was most troubling of all is that the child was not able to open the door because of security issues, but he could be locked out of his home, and it is his home, not just the mother’s, not just Mr V’s, but his home, and that must have been enormously troubling for him. Disciplinary issues are all well and good, but I was troubled by what I thought was the inconsistency in relation to that.
What I was particularly troubled about was the fact that there seemed to be little appreciation of how that might affect this little boy. In fact, Mr V’s response in relation to why the child was kept outside troubled me, perhaps more than anything else. He said that he had to protect the property and, whilst I understand fully and, of course, that there is an obligation that a tenant has in relation to the property, how it can be suggested that the child be kept outside was less important than the protection of the property and, therefore, the inherent risk in the child being outside, and the obvious effect that it had on [Y], was a matter that troubled me very much.
It was an issue that played out throughout this matter, because I gained the distinct impression that, at least in respect of that particular aspect of the matter, Mr V did not see the long-term consequences of the actions taken by him and the mother in relation to the children. Unfortunately, it was only one of a number of examples of where the mother failed to appreciate in any way the effects of her actions upon the children and, whilst it does not give me any pleasure, it will be something that I must comment upon in relation to these reasons further on.
I also had the opportunity of seeing the paternal grandfather, in relation to the evidence he gave in respect of this matter. Mr E, I thought, was one of the most impressive gentlemen I have ever seen in over a decade on the bench. He was honest, he was frank and he was, in every respect, what one could only hope for in relation to a supportive, loving and generous grandfather. More importantly, however, he gave me the distinct impression that he was not only there for his grandchildren and for his son, but he was also, until recent times, there for the mother.

She asked him a number of questions in relation to cross-examination about whether she had always been polite to him and he, quite immediately, responded that, of course, that had been the case. She asked whether she had put him and the paternal grandmother on a pedestal and he indicated, again, that that was the case. She then asked whether the grandfather thought that she was the same person and, in fact, he indicated, I thought rather intuitively, that that was not unfortunately the case, because of things that had happened in recent times.
The grandfather was concerned for his grandchildren, but he was also concerned for the mother. He did, as he was asked, sit with her for a period of some three hours or so to listen to her concerns in relation to the disciplinary issues, particularly that the mother was experiencing, in relation to the child, [X]. It may be difficult for the mother to accept, but in my experience, and it spans nearly 30 years now in family law, there are not very many parents of one party or the other who would provide that nature of support to the other party following a separation.
Mr E senior was an enormously impressive witness, and he made a number of comments which I thought were absolutely telling in relation to this matter. When asked about the change in attitude, he spoke of the fact that he was troubled by what the boys told him. The mother asked him why he had not believed her when she asked for help, and he said that he didn’t disbelieve her, but what he heard were conflicting views in relation to the matter, and then, of course, the instance of [X] being taken to the police station occurred, and that was, to some extent if not entirely, the final straw in relation to the support that he could bring to bear.
He said:
I listened to you until you took a 12 year old child to the police station.
The child was threatened to be put in a cell. The mother was not present at all times in relation to that, but she denied that it occurred. I find that there were certainly inappropriate threats made by police officers, or intimidating or harassing statements made by police officers in relation to this matter and I am horrified, and will record publicly, my horror at the actions of the Juvenile Aid Bureau or the Child Protection Investigation Unit in relation to this matter. But, in the end, what has happened to this little boy, [X], has been as a result of the actions of the mother and they will be the subject of very serious comment by me.
Mr E senior said the following about the mother:
You’ve shattered the child.
and I could not agree more. What has happened in relation to this boy has been nothing short of the most serious psychological and emotional abuse that I could ever imagine. Without a shadow of a doubt, the mother needs a very serious reconsideration of her entire attitude to parenting and her expectations in relation to these children because, at the moment, I see, unfortunately, little prospect of these children having any real relationship with her, whilst her attitudes remain that she is entirely right and entitled to act exactly as she pleases in relation to the growth and development of these two children.
That is not parenting, that is a dictatorship and, understandably, these children have grown to feel that there is little that can be gained from their relationship with their mother. It is no-one else’s fault but the mother’s and it troubles me enormously that, even until the very last minutes of this matter, the mother could only lay blame at the feet of any other person rather than look in a mirror and see where the blame and responsibility for the breakdown in her relationship lies.
When Mr E senior said, as an example of the effects on this child of having been taken to the police station, that there was a comment made by [X] that he does not believe in God any more, I was troubled by the reactions of both the mother and the father. The father broke down and cried, which was an entirely understandable and appropriate, though, no doubt for him, a little embarrassing, stance to take in relation to the matter. The mother did not cry. She saw no harm in what that child has been through, and that was the most telling piece of evidence that I have seen in a very long time, in relation to the determination of proceedings.
Mr E senior was an enormously impressive man in every respect. These children are blessed to have grandparents such as those who are on the side of these children. To the forefront are the children, not the wishes of the father or the mother, but the best interests of the children. I agree with the final comment that was made by the mother in relation to this matter, that the [paternal family] are no better than the [maternal family], but what I had was an opportunity to see the [paternal family] at their very best. I had very little opportunity to see the [maternal family], other than in a situation which troubled me enormously.
I turn now to the evidence of the report writer. There was much contained within her material which was of enormous assistance to me in relation to these proceedings. In no particular order, I intend to note a few of the comments made by Ms C in these reports. At paragraph 22 of the first report, when speaking of the CD that was taken of [X]’s attendance at the police station, and it was a police station, it was not a room upstairs, and there was no distinction that could possibly be drawn by a child as to the fact that he might have been standing at the desk of a police station, and it was one of the further issues that, again, I thought were troubling in relation to the mother’s attitude and approach to this matter.
Ms C says at paragraph 22 the following:
The writer subsequently listened to a CD recording of this police interview at the mother’s request. In this recording, which ends with the paternal grandfather respectfully and firmly insisting the police were ignoring context, [X] had not signed any documentation. [X] continued to assert he acted defensively after the mother “hit” him on the head.
Paragraph 23:
Also enclosed for the writer’s perusal was a copy of the caution signed by [X]. (Refer attachment B) It is countersigned by the maternal grandfather, Mr S, the person who was previously rejected by [X]. No recording of this second interview was given to the writer to assess.
As I have already commented in my assessment, the actions of the police, but instigated by the mother, were catastrophic and destabilising in relation to this child. It has been, without doubt, one of the most distressing pieces of evidence that I have ever seen. The effect on the child of his mother insisting that he be charged, and that is what he believes, and it is because of the mother’s actions, not because of the statements of the father, is an absolute tragedy and it is something that troubles me enormously in relation to any issues with respect to this child’s possible future relationship with the mother.
This little boy protested his innocence. His paternal grandfather was there as the person he wished to have with him. After he left, this little boy was the subject of further abuse, and there is nothing else that it could be, which led to him signing a document which he categorically did not acknowledge and did not wish to sign. The people who should have protected him were the people who forced it upon him, his maternal grandfather and his mother. It is, without doubt, a horrifying, abusive act by people who should have had nothing but the best interests of the child at hand.
The mother served her own purposes in relation to these proceedings. She may have sought assistance and guidance from the police, but in the end they gave bad advice and, rather than acting responsibly and protectively of the child, she allowed the abuse to occur. I am horrified that it should ever have arisen. The mother’s attitude in relation to this matter continued to be reflected in so much of what the comments of Ms C were in relation to the proceedings.
The child, [Y], made numerous comments about what his observations were in relation to the household. He commented about the relationship between the mother and the child, but, interestingly, he very clearly recognised that the altercation which led to the police interview, to which I have already referred, was not a one-way street. His evidence to Ms C, both in the first interviews and in the second interviews, was that he saw his mother attempting to strangle the child. The mother categorically denies that. She says it is hearsay. It is not any more because I find that the exchange between the mother and [X] was an appalling instance of both the child and the mother acting irresponsibly and both, if you like, giving as good as they got.
But, of course, the huge distinction to be drawn in relation to this matter is that one person was an adult and one person was a little boy. The little boy has the excuse of immaturity and child-like behaviours. The mother has no excuse in relation to what occurred on that occasion, other than that she intended to get her own way in relation to everything in respect of the parenting of this child and these children, without any consideration of what might be in the best interests of the child.
Similar circumstances arose, unfortunately, a short time later in the latter part of 2009 when an instance arose where, nonsensically, some cartridges to a printer apparently could not be found. The mother accused the child, no ifs, buts or maybes. She may not have said stolen, she may not have said taken, she may not have used any words of that nature, but, in every respect, she disbelieved the child and accused him.
Tragically, and I think tellingly yet again, when she was wrong, and she was wrong, she refused to admit her own failings. How this child could not have been absolutely shattered at the inconsistency of her demands put upon him, is something that troubles me enormously. It is a continuing theme through the reports and it is a matter that is commented upon by the children and by Ms C.
I do not gain any comfort in what are horrendous findings in relation to this mother and to this situation, but it is clear that there has been enormous hurt caused to both of these children as a result of the mother’s actions and, as I have said already, as a result of no-one else but her and her determination to get her own way in relation to these proceedings.
Ms C recommends that there should be an arrangement where the children are involved in the discussions and that there is limited, if any, contact between the mother and the father. Ms C says at paragraph 36 of the second report:
The boys are clearly troubled by their relationship with their mother. They experience her as punitive and rejecting and are hurt and upset about this. They are unable to establish a healthy relationship with her at the present time.
I could not agree more and I could not restate more often than I already have, that it is no-one’s fault but the mother’s and, until she realises that until she accepts that the damage to this relationship has nothing to do with a lack of communication or rejection by the father, there will be no improvement in relation to what exists between the mother and the boys but only continued deterioration and, tragically and unfortunately, I am of the view that she will not accept my words or any others in relation to this matter, but will continue to insist that she is right, that everyone else is wrong, and then easily be able to explain the lack of a relationship with her boys by saying it is someone else’s fault. I am troubled enormously by that.
I turn briefly to the evidence of the father. He, like all of us, has faults. He acknowledged that he had made denigrating comments in the presence of the boys and, in fact, to the boys in relation to their mother. They were said in frustration, but they were obviously said in circumstances where it was inappropriate that it occur. The father, like the mother, is the adult in relation to these proceedings and he should have been more restrained and responsive to the best interests and the issues that existed with the boys.
Unfortunately also, when the complaints were being made by [X] prior to [X] finally coming to live permanently in his care from the latter part of 2009, he did not listen to the child as closely as he should and, of course, it is the father who will have to deal with the emotional issues that arise for him, but have also arisen for [X] as a result of the continued abusive circumstances that existed between the child and the mother.
Otherwise, however, I was enormously impressed with the father. He was a man who battled, no doubt, with the various pressures and balances that had to be met in relation to the parenting of his children, but also the opportunity to provide financially for him and the children. He is blessed, as I have indicated already, to have the support of such nurturing and caring parents as his, and he and the boys will, no doubt, benefit from that.
I do not doubt that the father is genuine in his desires for these children to have a relationship with their mother. The text that was perhaps the last piece of evidence sent in relation to this matter relating to Christmas Eve or Christmas Day time with the children was a cry for a response from the mother. He says, and I accept unconditionally, that he did not know what might or might not have been arranged between the boys and their mother. That is because the parents should have been making those arrangements in relation to the proceedings. He asked for that arrangement to be made by way of the text sent on Christmas Eve, which asked for such arrangements to be discussed, and sought a response from the mother.
She, for reasons which are totally beyond my comprehension, failed to do so, and then said that the father prevented her from seeing these children on Christmas Day. It is simply one more of the multitude of self-serving statements on the part of the mother which easily lead her to be able to justify to herself, and perhaps to others, that it is everybody else’s fault with regard to the relationship in relation to these children. I have absolutely no doubt as to the father’s genuine wish for these children to have a beneficial and proper relationship with their mother, but also to protect the children and to ensure that there is the proper opportunity for that relationship to be fostered and developed.
As I have, obviously, clearly indicated I am enormously troubled by the mother in relation to this matter. Rarely have I seen a witness who so lacks insight into the cause of the difficulties in relation to the relationship that now exists between her and her children. It is everyone else’s fault. I thought overnight about this matter long and hard and as to what course I should take in relation to the proceedings.
In the end I have come to the view that the mother is actually unable to see what is happening in relation to her relationship with the children, and honestly believes that when she looks in a mirror she sees something different to what is actually occurring in relation to these children. She sees every action by the boys as a reflection of the undermining of her relationship with them by the father or by others, rather than to simply look at what has been occurring between she and the children.
I am firmly of the view that the mother would benefit enormously from appropriate counselling to deal with her own demons because, whilst I do not have the psychological or psychiatric qualifications in relation to this matter, I have not a skerrick of doubt that the mother’s approach in relation to her parenting of the children, her demands, the support from the father of what she wishes to do and her rejection of so much of what the father’s attitude in relation to the matter is, and the boys’ wishes in relation to the matter are, are such that I am troubled as to her own capacity to deal with the future parenting of, no doubt, developing and maturing children, who will be more challenging than they have already been in relation to parenting.
The mother has no trust of the father. She does not communicate with him. When he asks for an opportunity to arrange braces for the children, she goes to another dentist. There is no evidence that she sought other information from the father, she simply did not believe him. When he sought, through his legal representatives, to obtain information that would assist in obtaining Italian passports and, through his lawyers, explains why he wishes to do so, she seeks other advice. She does not trust him. That is the whole essence of the proceedings. It is all about the mother, and it is all about the issues that lead to the mother taking the stance in relation to these proceedings.
I do not intend to further speak about the incident of this little boy, and he was a little boy, being taken to the police station. I could rarely imagine a more abusive action that has been taken, and it was the mother who abused this child. For the child to cry out, as he clearly did, for his paternal grandfather to be there and then, after he left, for it to be the subject of further approach, and for the maternal grandfather to then be his support person when the child did not want it, is hard to imagine in relation to the effect upon the child. The mother has abused both of these boys horrendously.
The action with [Y] in the last six months or so, of taking him immediately to his grandparents, of withholding his possessions, as she did, such that there had to be an order of the Court for his property, his personal items to be made available to him, reflects so poorly on the mother that I am, in some respects, speechless as to my actual views in relation to this matter. Nor would it, perhaps, be appropriate for me to fully express the damage that I believe this mother has caused to these children.
I do not intend, obviously, therefore to go point by point through this matter, but I have one further issue that I must comment upon in relation to the evidence that was given. Annexed to the second report by Ms C is a copy of a poem that the child, [X], has written, and I find that [X] has written it and, more particularly, when the mother told me repeatedly in her own evidence, and through the questions that she directed in relation to this matter, that she was the one who was primarily responsible for the care and support of the children, that she knew the writing on that sheet was [X]’s and it suited her not to do so, I find that to be the fact in relation to this matter. It is no longer a matter of hearsay.
This poem was one of the most direct cries for help that I could ever imagine. The poem by this little boy and, again, I emphasise he is still a child, is as follows:
Why
Why can’t you see what you’re doing to me
every time we fight it gets worse and worse.
As the months go by I get sick. Sick of you,
sick of the way you treat me, sick of the way you control me.
I need a way to get out. I can’t take
you anymore. As the days go by, the
knife looks friendlier. I pick it up, I have
my easy way out, but as I go to do the deed,
I can’t. I am too weak or too strong to do it.
In the end you start to see, that when the curtains lift
for the whole world to watch,
you just put on that fake smile.
So I hope you remember me this Mother’s Day
as you spend it by yourself.
It is, without doubt, the most telling cry for help from a child that I have ever seen. And the mother’s response in relation to it is simply to ignore it. She says it is hearsay. She denies that it is the cry of the child. The evidence of Mr E senior was that he was present when the child wrote it. The evidence of the father is that it was, as best he could say, the writings and the words of the child, but the mother still will not accept that. If that could not get through to the mother, the hurt that this child has experienced, then I doubt that there is anything that will finally break through the curtain that [X] refers to in relation to that poem.

It is a very serious and a very sad statement. And that the child should even have in his mind issues as to self-harm and to take a knife to end the pain is something that I, at least, find horrifying and tragic.
I turn to the law, but not for long. The paramount consideration, as set out in section 60CA of the Family Law Act is that the welfare of the child is the first and paramount consideration. There is guidance provided by the Act and many matters must be considered in relation to parenting. Section 65DAA headed “Court to consider spending equal time or substantial and significant time with each parent in certain circumstances” is a significant issue, but it flows from the requirements for consideration of the provisions of section 61DA.
Section 61DA is headed “Presumption of equal shared parental responsibility when making parenting orders”. The law says, and it requires, understandably I should say, that in most instances it is in the best interests of children for both parents to be involved in the decisions to be made with regard to their long-term care, welfare and development. In a perfect world, that is of course the case, but, understandably, there are, unfortunately, circumstances where it is not in the best interests of a child for that to occur.
Ms C recommended equal shared parental responsibility at the commencement of the first report. She does not make any comment about it in the second and, understandably therefore, the mother says that there is that continuity and that it should occur. Of course, we were not given the opportunity to see whether that was still her view in relation to the matter, but in many respects it is unnecessary because, whilst she makes recommendations having heard all of the evidence in relation to this matter, the orders are made by the Court appropriately appointed and, in this instance, that responsibility falls upon me.
The presumption of equal shared parental responsibility can be rebutted in circumstances where there is family violence or abuse. In other words, an obvious imbalance in the power between the parties, and the mother herself suggests throughout her material and throughout the statements to Ms C, that she has been the subject of domestic violence and abuse within the relationship and that that abuse, at least of a psychological or emotional nature, continues subsequent to separation.
I am not inclined to think that that is the case. In that respect I note that the boys specifically rebutted such statements and rebutted what was said in relation to those matters when they told Ms C that, apart from one occasion where I think [X] said he saw his father push his mother away, he never experienced any of those issues and his memories would be vivid. Their vivid memories are more of what they say was the violence perpetrated upon them by their mother and, as I have indicated, I find that something occurred, which was not a one-way street, with a little boy lashing out without intention or without reason.
Of course there is also another basis upon which the presumption of equal shared parental responsibility can be rebutted, and that arises pursuant to the provisions of section 61DA(4). It is in these terms:
(4) 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 do not need to say a great deal in respect of that, other than that there is limited, if any, opportunity for communication, and the recommendation by Ms C is the clearest indicator of all that there could not, and should not, be equal shared parental responsibility.
For a report writer of the experience of Ms C to recommend at dot point 4 of her second report, that the father and the mother have as little to do with each as possible, is telling in the extreme. These parents cannot communicate. They do not trust each other. They do not respect each other. They have little in common other than the two little boys who have been the subject of dispute in relation to these proceedings.
There appears, clearly, to be little upon which they can properly communicate and, as I have indicated, even in recent times when the father tried to raise with the mother an issue as significant as Christmas Day, the mother’s response was not to even respond to him. There can be no communication. There can be no possibility of equal shared parental responsibility. The mother acknowledges that, perhaps, other than for two days a month and some holiday opportunities, the children should live with the father. Obviously, that is the course that should be followed in relation to this matter and, obviously, the father should have sole parental responsibility.
I comment in that respect also that I would normally order that there should be consultation and consideration by both parents, even though one might have sole parental responsibility in relation to decisions to be made, but in this instance I am so disturbed by the lack of respect, the lack of trust, the lack of civility, the lack of courtesy as between the parties, and it is a two-way street, that it is an impossibility. The father’s proposal as set out, finally, in the outline which is before me, to the effect that he have sole parental responsibility, but ensure that the mother is made aware of decisions to be made with regard to long-term care, welfare and development of the children is, in my assessment, in the best interests of these children and I intend to make such an order.
The other big issue in relation to this matter is what opportunity there should be for the mother to spend time with the children. It is, perhaps, only of limited relevance in relation to the matter because what the mother seeks, and what is recommended by Ms C, is only a very limited time, but it is understandable that it was submitted on the part of the father that to put in place any particular order with regard to time to be spent by the mother with the children, is, to all intents and purposes, a recipe for disaster. It sets the children and father up for further litigation and that is a factor to be considered in relation to the determination of proceedings.
These boys have spoken. They have unfortunately spoken with their feet more often than anything else. They both now live with their father and have the care and support also of their paternal grandparents. To suggest that, if arrangements could not be made between the mother and the boys, that there should be other times, is exactly what was submitted by counsel for the father, a recipe for disaster. If the mother and the boys cannot make arrangements, then to say that the boys should go when they have already repeatedly acted in the manner that they have, they have absented themselves from the mother’s care and the mother’s home, is clearly only an opportunity for there to be further litigation in relation to these proceedings.
I do not intend to make such an order in relation to this matter, but I do intend to make certain orders with regard to how there can possibly be a relationship between these children and their mother and how, hopefully, it can be fostered further and developed.
Before turning to the orders that I intend to make in relation to the matter I am required, obviously, to comment upon the statutory framework in relation to the decision to be made in respect of these proceedings. It is not necessary, as I have said, for me to go further with the provisions of section 65DAA of the Family Law Act. It is clear that equal shared parental responsibility is not appropriate and, therefore, the statutory direction to consider equal time, or substantial and significant time, falls by the wayside, but that is not to say that it is still not a consideration in relation to what arrangements are to be made, but again, as I have already commented, I have no confidence whatsoever that there can be any specific orders made in relation to the mother’s opportunity for time to be spent with these children, other than for there to be proper communication between the children and the boys and then at least some form of written communication between the mother and the father, to confirm and corroborate what arrangements are to be put in place.
I turn then to the objects and the principles of the Act and the considerations as set out in sections 60B and sections 60CC and, in particular, subsections (2) and (3) of the Family Law Act. Section 60B headed “Objects of Part and principles underlying it” is, at least, as relevant in these terms. Section 60B(1), “Object of Part”:
The objects of this Part are to ensure that the best interests of children are met by:
(a)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
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The objects are followed by the consideration set out in section 60CC and, to all intents and purposes, they are, at least in my assessment, a checkpoint that reflects the objects of the Act. Section 60CC(2) headed the “Primary considerations” is in these terms:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child's parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
They are, I would think, a counter-balance to each other. In a perfect world there is no question that there is a benefit to a child in having a meaningful relationship with both of their parents. Parents provide a counter-balance. They each bring qualities positive, and sometimes negative, to a child, but a child grows and develops from those particular considerations. But there is the obvious need also to, in some circumstances, reject the suggestion of a meaningful relationship being in the best interests of the child.
The primary issue is that which arises pursuant to the provisions of section 60CC(2)(b), the other factor to be considered:
The need to protect the child from physical or psychological harm.
I have already commented at length in relation to this matter. The harm that the mother has brought to bear upon these children is something that I find almost overwhelming. The incident involving the police station is, without a shadow of a doubt, one of the most troubling pieces of evidence that I have ever seen. The abuse of the child - and it was nothing short of abuse - and the actions of the mother and her father in relation to this matter is such that I am minded to refer my reasons to the Commissioner of Police and/or the CJC because what happened on that occasion was abuse and it involved police officers. It was a tragedy.
In the end, I am not inclined, however, to do so because it will simply lead to a re-exaggeration in, at least, the mind of this little boy, [X], of the trauma that he has been through, and I do not consider that to be in the best interests of the child. But both of these children have been the subject of horrendous psychological abuse. The actions of the mother in that particular instance and, of course, in the other to which I have already referred in relation to [X] with regard to the cartridges and the accusations unreasonably and unjustifiably made, but more particularly not apologised for, are tragic.
Just as clearly, the instance of [Y] not being able to open a door to a school friend, not feeling confident to speak to his mother and being locked out of his own home, and that is what happened, because of the need to protect property more than the child, is abuse of the highest order and, in my view, it cannot be ignored.
The child has a right to a relationship with a parent, but the child also has, in my assessment, an overriding right to protection. He is not protected at this time, nor is there any likelihood in the near future that he will be protected in the mother’s home. I, unfortunately, as I have said, feel that there is little expectation that there will be change within the mother which will then lead to a protective nature of the relationship with the father.
The additional considerations are set out in section 60CC(3). The Court is required to give consideration to any views expressed by the child and factors such as the child’s maturity or level of understanding that the Court thinks are relevant to the weight it should give to the child’s views. These children have cried out long and hard as to what they want in relation to this matter. They want stability. They want peace. They have that in their father and their grandparents’ household. They do not have it in their mother’s household. The children’s wishes, and in particular the wishes of [X], need to be given significant weight in relation to this matter and, as is perhaps obvious from all that I have already said, they will be given significant weight.
The nature of the relationship of the child with each of the child’s parents is a significant factor, as is the child’s relationship with other persons including grandparents or other relatives. I have not commented at great length in relation to the maternal grandfather’s actions in relation to this matter, but I noted, of course, what was annexed to material in relation to these proceedings with regard to the emails that passed between, it would seem, the maternal grandfather and the mother. They may have been taken in a surreptitious way by the child, [X], and no doubt the mother is disturbed by that behaviour. What I am far more disturbed by is the contents of those emails and the suggestions of fighting dirty and using the children in relation to these proceedings.
I note that Mr S was not called as a witness in relation to this matter. I am able, at law, and I do draw the conclusion that that is because there was nothing positive that could be drawn from his evidence, and only matters which would be detrimental to the mother’s case in relation to this matter.
The children’s relationship with their mother has been horribly scarred and I have doubts as to whether it will ever be able to be fully restored. One would hope that that would be the case, but it will come first and foremost from a serious consideration by the mother of her actions and her behaviours in relation to these proceedings and, until such time as there is a review and a positive change, I have little hope that there will be a real or beneficial relationship for these children with their mother.
There is a requirement that I consider the willingness and ability of each of the child’s parents to facilitate and encourage a close and continuing relationship between the children and, as I have commented, there are criticisms that can be made of both parents in that regard. The father, at least in the past, has made comments which were inappropriate in relation to the mother and, whilst they may have been said in frustration, they were said and it was improper. I am inclined, however, to believe that the father is now, perhaps, more willing simply to bite his tongue in relation to what has gone on and, as between the children and their mother, and that there is a willingness, as he indicated by the text sent on Christmas Eve, to attempt to encourage a continuing and fostered relationship between the mother and children.
Unfortunately, again, as is obvious from so much that I have already said in respect of this matter, I have little confidence in the mother’s capacity to do so. Until the totally self-centred approach that, unfortunately, exists in relation to her attitudes to the children and to the father is reviewed, and radically reviewed, there is little opportunity and little hope that the mother would be able to, in any way, foster the relationship that is already positive between the father and, unfortunately, I gained little confidence from what I have heard in relation to these proceedings.
Significant also are issues with regard to the capacity and attitudes of the parties. Section 60CC(3)(f) is in these terms. The Court must give consideration to:
the capacity of:
(i)each of the child's parents; and
(ii) 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.
And subsection (i) should be read, in my assessment, in conjunction with it. It is in these terms:
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents.
I do not intend to rehash what I have already said. I simply need say that the father has, in my assessment, met the obligations that he has in relation to meeting the emotional and intellectual needs of the children and has shown a proper capacity to provide for those needs. The father has shown, I think, an appropriate attitude to the child or children and to the responsibilities of parenthood, and has demonstrated that with the actions that he has taken and continues to take. The mother has not. The evidence is so overwhelmingly clear in that regard that I need say no more in relation to those particular aspects of the matter.
I am required to consider issues of family violence. I do not find that there has been in the past family violence, at least as between the mother and the father, though no doubt there have been cross words and anger, particularly leading up to the final separation between the parties. I accept the boys’ evidence in relation to this matter, that they saw one occasion where the father pushed the mother away, but that could not, in my view, be an issue of family violence that would give rise to concern in respect of these proceedings.
There has, however, been violence within the household and that has involved the mother and, at least, the child, [X]. I am enormously troubled by the evidence in relation to these proceedings. That [Y] should repeat on two occasions to the report writer, some six months or so apart, that he saw his mother strangling his brother and yet the mother denies categorically that any such thing has occurred, or suggests that it is a fabrication brought about by manipulation by the father, is staggering in the extreme.
I do not intend, as I indicated before, to make an order which provides for a fallback position in the event of the mother and the boys not being able to arrange times as between themselves in relation to these proceedings. It is a recipe for disaster. It is a recipe for further litigation in relation to proceedings and, of course, one of the factors to be considered in relation to any final orders that might be made by a court, is whether it would be preferable to make an order, in one form or another, that would be least likely to lead to the institution of further proceedings in relation to the child. To order that there be a set regime of any nature in relation to the children spending time with their mother is that obvious opportunity for there to be further proceedings because, at the present time, I have little confidence that there will be cooperation from the boys unless it something that is negotiated between the boys and the mother.

I certify that the preceding ninety-one (91) paragraphs are a true copy of the reasons for judgment of Coker FM

Date: 4 October 2011