ELDRIDGE & ELDRIDGE

[2010] FamCA 272

FAMILY COURT OF AUSTRALIA

ELDRIDGE & ELDRIDGE [2010] FamCA 272

FAMILY LAW – CHILDREN – With whom children live – Where orders are sought by the mother and supported by the Independent Children’s Lawyer that the father have no time or communication with the children – Where there are profound concerns for the children’s emotional, psychological and physical well-being – Where the father left the courtroom without taking part in the proceedings in any meaningful way – Where the court has obligations to ensure that proceedings do not become harmful or abusive to the children – Orders made that the father have no time or communication with the children – Order made pursuant to s 68B for the personal protection of the mother, her partner and the children

Family Law Act 1975 (Cth) Div 12A, s 68B
Mental Health Act 2000 (Qld)

Cotton v Cotton (1983) FLC 91‑330

APPLICANT: Mr Eldridge

RESPONDENT: Ms Eldridge

INDEPENDENT CHILDREN’S LAWYER: Mr Emerson

FILE NUMBER: BRC 4170 of 2008

DATE DELIVERED: 1 April 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 1 April 2010

REPRESENTATION

APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Mr B.W. Thiele

SOLICITOR FOR THE RESPONDENT: Rhonda Sheehy & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER Mr J. Linklater-Steele

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER Emerson Family Law

Orders

1. The children T born … July 1997, N born … March 1999, E born … June 2000 and R born … August 2001 live with the mother.

2. The Mother have sole parental responsibility for the children.

3. The children spend no time with their father.

4. The father not be permitted to communicate with the children in any form at any time.

5. In the event that the children express a desire to communicate with the father by way of written communication or the like the mother take such steps as are necessary to facilitate that communication but the mother be at liberty to first examine any written response sent to the children by the father prior to making a decision about whether any such response is appropriate for the children before passing it on to the children.

6. Except as provided for at paragraph 11 of these orders, the father shall, prior to bringing any further parenting proceedings in this court, first obtain the leave of this court to so apply and that any such application be heard by the Honourable Justice Murphy if possible.

7. Any application for leave pursuant to the previous paragraph of these orders shall be made in the form required by the Family Law Rules 2004 and be accompanied by an affidavit deposing to the asserted basis for the said leave.

8. The contravention application filed by the father on 19 May 2009 be struck out.

9. The Independent Children’s Lawyer be discharged.

ORDERED PURSUANT TO S 68B THAT

1. For the personal protection of the mother, the mother’s partner and the children, the father shall be restrained and an injunction issue restraining the father, either himself or through any person acting with his authority or permission, from:

   (a)seeking to ascertain the living arrangements, residential address, or any employment addresses of the mother or her partner or any of the children’s schools;

   (b)approaching, or seeking to approach within 200 metres of the mother, her partner or any of the children;

   (c)approaching, or seeking to approach, within 200 metres of the residential address of the mother, her partner or any of the children, any place of employment of the mother or her partner or any of the children’s schools.

FURTHER ORDERED THAT

1. The father be at liberty to make an application in relation to the order made pursuant to s 68B only, such application to be heard on an ex parte basis.

2. A copy of the Orders and Reasons for Judgment herewith be forwarded to the father.

3. Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 4170 of 2008

MR ELDRIDGE

Applicant

And

MS ELDRIDGE

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

1. On 27 July 2009 I heard interim proceedings in this matter.  I described it then as an exceptional case.  I have no reason to depart from those comments in delivering these reasons with respect to final orders that I will shortly make. 

2. I said in those earlier reasons a number of things directly relevant to the Objects, Principles and Considerations by which this decision, like all parenting decisions, must be made.  It is, I think, important to repeat those reasons which are as acutely apposite now as they were some eight months ago. 

3. It needs to be recorded by way of background that the father has been gaoled on three occasions for breaches of domestic violence orders.  Those periods in gaol appear to have occurred in about April 2006, March 2007 and September 2007.

4. The matter has had a litigation history in the Federal Magistrates Court before being transferred to this court by order of Jarrett FM.  Initially, in January of 2009, the father was ordered to have supervised time with the children for a maximum of two hours at the E Contact Centre.  The evidence before me plainly indicates that the father’s conduct in and about his time at that contact centre resulted in it refusing to have him as a client.  The evidence also reveals that no other contact centre reasonably available to the parties would have him as a client. 

5. I should also record that, during this matter’s litigation history, the Federal Magistrates Court had, and this court has also had, available to it, a number of reports, including reports from Mr Y, a consultant social worker, a family report from Ms D, who is a consultant social worker, two reports from Dr C, who is a consultant psychiatrist and a Children’s and Parents Issues Assessment prepared by a family consultant, Ms B. 

6. My earlier reasons quote a number of aspects of those reports which, on any view of it, are extremely troubling in terms of the children’s day-to-day welfare.  Perhaps most troubling of all is an indication by Ms B, when she saw the children for the purposes of her assessment, that the children exhibited - clearly, manifestly and unequivocally - a genuine fear of their father.

7. A further very significant issue raised in all of those reports (which, in the proceedings then before me, the father himself acknowledged had a remarkable consistency to them) was the attitude toward his co‑parent exhibited by the father.  As but one example, I quoted there, and quote again here, what Ms D reports the father saying about the mother at paragraph 4.3 of her report:

   I hate her.  She is the most disgusting vile person ... I think she was just looking for money ... if I had stayed with her and fucked the slut she would have charged me with rape ... she treated my like a piece of shit ... I have made thousands of phone calls and slipped up with some of them because I used words like “fuck”, “cunt”, “slut” or “bitch” ... domestic violence orders are only based on assumption.

8. I should say that an important part of the background history of this matter is that the father has been made subject in the past to Involuntary Treatment Orders pursuant to the Mental Health Act 2000 (Qld), apparently made in October 2002 and January 2004, and that as part of the treatment required by those orders the father was required to spend time as an inpatient at a mental health facility for periods of time.

9. I said in my earlier reasons, and repeat here, that all of the report writers effectively described the father, nevertheless, as an intelligent man.  There is no doubt whatsoever that he knew, and understood completely, that all of the things said by him to the various report writers were being recorded by them and would be used for the purposes of, and during the course of, proceedings with respect to the children.

10. A report by Dr C records the following in respect of a woman who in July last year, the father indicated, would be a witness in these proceedings before me:

    ... [The father] is now living in [M] with another woman, [Ms G], (53), who is doing a fitness course.  Her four-year-old son resides with them.  And asked about his relationship with this lady [the father] told me “I just fuck her.”  He went on to tell me it was “just a sexual thing” and went on to tell me that he was “over women ... most of them are just trash”.

11. The passage just quoted should be seen as a good example of the father’s attitude towards women in general and toward the mother of these children.  Frighteningly, with reference to the opinion by Ms B earlier referred to that the children exhibited a genuine fear of their father, the father in this case had some things to say that cause this court profound concern about their welfare.  Ms B says in her assessment:

    It was explained to [the father] that the children had reported feeling scared as a result of his behaviour to which [the father] responded by saying, “I have a right to know this stuff.  It’s called being a father.  Children cannot withhold information from their father.  Of course they are fearful because they know they are doing the wrong thing.  It’s these type of things that drive fathers to throw kids off a bridge.”

12. I said in my earlier reasons, and I say again here, that it might be observed that no one knows what causes people to throw children off bridges, but it is certainly something that is neither rational nor capable of justification or rationalisation.  It is either insanity or completely immoral, vile and utterly contemptuous behaviour by a person towards their children. 

13. Ms B also records the following:

    [The father] was asked to comment on how he might feel if the court ordered that the children continue to live with the mother.  His reply was, “I don’t talk in hypotheticals.  That’s not an option.  While they’re not going to talk to me, it’s not going to work ... you see, it becomes a progression of a parent getting the shits and that’s what drives fathers to throw their kids off bridges.”

14. I consider it important to refer to what I said in those earlier reasons because the repetition of them is, in my view, important for the father, should he ever care to consult these reasons, and, indeed, for all parties to know just what the court might make of the sort of attitudes and evidence exhibited by the father in the passages that I have just quoted (and otherwise). 

15. I said in my earlier reasons:

    In what I consider to be a particular troubling – and particular poignant – passage in Ms [B’s] report, Ms [B] records this:

    For example, when the family consultant commented that [T], [N], [E] and [R] were lovely children, he responded by saying, “They are a bunch of arrogant arseholes.  They do not respect me any more.” 

    That a father would say this about his children is almost beyond belief.  That a father would say this to a family report writer, knowing that his comments are to be reported to a court, is incomprehensible.  What that says about the father’s capacity to parent, what it says as an exemplification of the responsibilities of parenthood and what it says about the father as a man hardly needs to be commented upon.  Ms [B] goes on to say:

    When it was suggested that they were fearful of him [the father] stated that he could understand why the mother was fearful of him and claimed that, indeed, she should be scared of him.

    …

    In that context, says Ms [B], [the father] was reminded that he children had reported that they felt scared when he yelled at them.  One might think that a responsible, caring, loving father would react to such a comment from a family consultant in a concerned, worried and loving way.  This was the father’s response:

    He responded by saying, “Good.  Let’s have another contact next weekend.  If they fear me, maybe they’ll respect me.  I won’t have my kids controlling me.  I control them.  That’s my prerogative.”

    It is necessary to say that in the context of the Family Law Act the father could not possibly be more wrong. The Act makes it abundantly clear that, in the usual course of events, children have a right to know and be cared for by their parents. Moreover, they have a right to have their parents participate in their lives in a loving, caring and meaningful way.

16. The last comment can be seen to be a reference, in particular, to one of the two Primary Considerations necessary to be taken into account by a court in making parenting orders.  In a context of a legislative environment, different from that which now pertains and over 20 years before the concept of “meaningful relationship” found its way into the statutory considerations, Nygh J said this:

    ... It was at one stage the view that a parent had a right of access to their children of which that parent could only be deprived in extraordinary circumstances.  That, of course, was language which suggested that a parent had a property interest in a child ... that language was abandoned well before the present Act came into force and judges started to speak of the right of children to access to a parent ... the test which must apply in proceedings involving children is that of the welfare of the child being the paramount consideration which is, in my view, the one and only principle to be applied.  It means that in each case the court must make an independent investigation of what the welfare of the child requires and a court is not very much assisted by recourse to general principles other than that principle.  It is true that we can fall back on general accepted experiences and perceptions in so doing as a guide, but care should be taken not to elevate any of these generally accepted perceptions and presumptions which can only be displaced by evidence to the contrary.  One of these generally accepted perceptions, as I see it, is that it is desirable for a child to maintain a meaningful relation with each of his or her parents.  It is obviously desirable when the parents are living together in a united household, but it becomes even more desirable when the parents are separated ... however, that desirability only operates where there is a chance of a meaningful relationship which is beneficial to the child.  It is not, in other words, a question of contact for contact sake.  If there is a situation where contact with a parent is on balance likely to cause more harm to the child than good, or even if it is not likely to confer any benefit, then little purpose is served by this court making orders for such contact.  That does not detract from the desirability for the child to have a meaningful relationship, but the possibility of a meaningful relationship must first exist.  Nor is it necessary - as it must be obvious from the way I have expressed myself- that access should only be denied if it is established that a parent is likely to do positive harm to the child.  It is the emotional relationship which counts and not the inherent harmfulness of the parent as such.  Thus, I can well imagine that in certain circumstances a woman who leads a totally immoral life, such as a prostitute, may have something to offer her children.  On the other hand, it may be that a person who leads a life which, to the general observer, is one of a pillar of rectitude, has nothing to offer to his children.  (Cotton v Cotton (1983) FLC 91‑330 at 78,252).

17. In my respectful view, there is much in what his Honour there said which finds ready reflection in the principles to be applied now, nearly 27 years later.  In particular, best interests - then the welfare of the child - remains the ultimate aim of orders for these particular children in their particular circumstances and findings about same remain the criteria by which the parties’ proposals - or alternative proposals fashioned by the court - are to be judged. 

18. “The benefit to the child of having a meaningful relationship with both of the child’s parents” is a mandatory Primary Consideration and now, as then “...the desirability for the child to have a meaningful relationship” is plainly a consideration at the forefront of the court’s mind. But now, as then, “the possibility of a meaningful relationship must first exist” and now, as then, the best interests of the particular children in the particular children’s circumstances is the ultimate guide in that respect.

19. Here, these children are in an unenviable position.  They have a father who they want to love and who they want to nurture, care and love them.  The father is, on any view of the evidence, plainly unable or unwilling to do so.  Not only is he unable or unwilling to offer the sorts of components of a proper, loving, nurturing relationship that might ordinarily be expected, his influence, the evidence plainly reveals, is likely to be significantly more malign than that. 

20. In particular, it seems to me highly likely that the children will continue to be very frightened of him.  It seems to me highly likely that he will continue to engage in behaviour - quite consciously and deliberately - that is frightening to them. Indeed, comments made by him to more than one family report writer would seem to suggest that instilling fear in these yet young children is worn by him as some sort of perverse badge of honour. 

21. It needs to be said loudly that, mostly, children have an absolute right to be children.  Children have an absolute right to be loved and cared for and nurtured by those from whom they properly seek that love and care and nurture.  I again repeat what I said in my earlier reasons because I consider what I said there to be acutely apposite to the situation confronting the children some 10 months later.  I consider it a situation that is likely to confront these children into the future insofar as their “relationship” with their father is concerned.

22. I said in those earlier reasons:

    I have not seen one solitary piece of evidence before me that suggests that the father has the slightest idea about any of the matters to which I have just made reference. 

    Normally speaking, a court would be extremely reluctant to make an order, the effect of which is to not have children, particularly children of this age, see their father.  The reasons for that are not only found in the Objects and Principles and Considerations in the legislation, but in things such as human decency and human experience. 

    Human experience teaches (irrespective of what is contained in the Family Law Act) that children need to be, and deserve to be, loved and cared for by each of their parents. But sometimes parents abdicate that responsibility in the most appalling of ways. I consider on the evidence before me that the father has abdicated that responsibility in the most appalling of ways.

    This is, in my view, an exceptional case.  Even at an interim hearing, on the basis of what the father himself admits to be a “consistent stream” of expert evidence over a long period of time, it is difficult for me to see what possible benefit there could be in subjecting these children to what is highly likely to be nothing but fear from a father who treats their legitimate fears as something that is contemptuous and not even worthy of comment. 

    I have not the slightest hesitation in saying, on an interim basis, that it is in the best interests of these children that they do not see their father or communicate with him, save in the manner described broadly in paragraph 3 of the order made by Jarrett FM.  I will, for the sake of clarity, discharge that order and order in similar terms with some additions.

1. Since that time, as has earlier been observed, the father has chosen to not put any material before the court which seeks to contradict, challenge or call into question any of the other material before the court, including the “consistent stream” of expert evidence already referred to.  There is no evidence whatsoever before the court that seeks to suggest that the father has in any way, shape or form changed his attitudes or behaviours or plans to do so in the future.  Indeed, the father, has neither placed material before the court nor, indeed, remained in the court for the proceedings themselves (in which he would have been afforded the opportunity to orally tell the court such matters as he wished to in respect of the best interests of the children). Again, I find that behaviour both extraordinary and troubling.

2. Having seen and heard what this court made of evidence then before it in reasons which were significantly more extensive than might otherwise have been given in the context of an interim hearing, the father seeks to say nothing about the matters recorded in those reasons which, I made abundantly plain, were not only of the utmost importance, but which were perceived as being particularly troubling to these young children. 

3. The situation that confronts the court today is different in that orders will be made on a final basis.  That brings with it ramifications that are well known in respect of further proceedings.  A court should be even more reluctant to make an order that effectively stops time between children and their father until they are adults (or, perhaps, more accurately in terms of practical reality, until they are well into their teens).

4. The reasons for that reluctance are clear and have been outlined earlier in these reasons.  However, the words of Nygh J echo loudly in this case, as do notions of appropriate parental responsibility and ordinary notions of love, care and nurture that would be expected to attend any such proceedings. 

5. I have seen no evidence at all that the father purports to love, or care properly for these children or has any real or proper desire to appropriately nurture them in a way which any child should have a right to expect. 

6. Given his violence, given his attitudes to the children and given his attitudes more broadly to women and to the mother, the only time that could possibly be contemplated would be supervised time.  But not only will the only practically available contact centre not take the father because of his past behaviour, it is abundantly plain that if that behaviour was repeated, no other contact centre would avail him of time either.

7. In any event, those matters can be seen to be irrelevant because the father has made it abundantly plain on a number of occasions that he will not participate in time at a contact centre for reasons which he has expanded upon in the past that were referred to in my earlier ex tempore reasons. 

8. It seems to me abundantly plain on the evidence before me that the best interests of these children require the step that might be seen in the usual course of events as being quite extraordinary, that all time and communication between the father and these children be stopped.  It should be stopped simply because the father cannot be trusted to provide the children with the sort of parenting, even if somewhat curtailed, that might be expected of a parent exercising ordinary human decency and ordinary parenting capacities.

9. For those reasons I intend to make final orders then broadly consistent with those sought by the mother and supported by the independent children’s lawyer.

10. I will make an order that the father cannot initiate further proceedings without leave. I make it plain that I am not making that order pursuant to a finding of frivolousness or vexatiousness. Rather, I make that order pursuant to what I regard as being broad powers available to me to make orders in the best interests of the children.  The evidence before me suggests plainly that not only has the father not provided any indication at all that he wishes to participate in any court proceedings in relation to the children, but I am strongly suspicious that any such future proceedings are likely to be a form of harassment or pressure upon the children. 

11. This court has a number of obligations now set out in specific form in Division 12A of the Act to ensure that proceedings do not of themselves become abusive or harmful to children.  It seems to me that those same broad obligations would also embrace the notion that potential future proceedings might be harmful to, or an abuse of the children. 

12. I consider that there is a real prospect that in this case future proceedings brought by the father are likely to fall into that category.  If the father shows by reference to material in which this court could have reasonable satisfaction that parenting orders sought by him are born of a sincere desire to establish a relationship with his children in circumstances where there is good evidence to suggest that his erstwhile attitudes and behaviours have changed or are likely to change, that is a matter that can be dealt with on an application for leave.

13. It seems to me appropriate for these children that they be given the peace and the stability of knowing that any such proceedings brought by the father must first meet that barrier and criteria.

14. The facts and circumstances earlier referred to by me make the application for contravention filed by the father to be, in my view, both unnecessary and likely to bring pressure upon the mother and indirectly on the children. 

15. The father’s affidavit filed on 19 May 2009 purports to provide, in an unparticularised form, the basis for the contravention.  In short, and expressed in broad terms, the alleged contravention is said to devolve from time not taking place at the E Contact Centre.  As my earlier reasons make clear, whatever may or may not have been the case in respect of the unparticularised occasion referred to in the application for contravention, there is no doubt that any time order was at that time frustrated by the behaviour of the father and his incapacity or unwillingness to comply with the requirements of that contact centre. 

16. It seems to me that the contravention alleged in the application filed on 19 May 2009 is not made out and should be struck out.

17. Mr Linklater-Steele, who appears as counsel for the independent children’s lawyer, makes oral application for an injunction to issue pursuant to section 68B of the Act. 

18. It will be appreciated, of course, that, by reason of the father absenting himself without explanation from the proceedings, that he has no notice of that application.  That raises obvious concerns about due process and natural justice. The circumstances in which any such injunction is granted should be seen as being either exceptional or out of the ordinary. 

19. I have already made an order that the father should seek leave in bringing any further application with respect to parenting. I am persuaded that the circumstances here can be described as out of the ordinary or compelling for reasons I am about to give and that an order as sought is necessary for the personal protection of the mother and the children. 

20. I will, of course, order that the orders made by me and the reasons for judgment given by me be forwarded to the father and in order to balance concerns about natural justice with my concerns about the children’s safety and emotional well-being, I will give liberty to the father to apply, on an ex parte basis, to be heard in respect of that application.  Any such ex parte application would seek to establish that proceedings with respect to injunction should be heard by the court and should involve the mother and/or the independent children’s lawyer.  Any such application would need to be filed in the appropriate form and be supported by cogent affidavit evidence justifying the actions just referred to. I will in my perfected orders encompass those matters just referred to. 

21. Mr Linklater-Steele submits that an injunction is necessary in circumstances where a domestic violence order currently in place in respect of the father is about to expire and where he submits the evidence clearly reveals that orders of this court for the personal protection of the party and/or the children ought be made.  I have previously referred to the fact that the father has been gaoled on no less than three occasions for breaches of domestic violence orders.  I have also referred to the fact that the father has been made the subject of Involuntary Treatment Orders in the past and has required hospitalisation as a result.

22. I have also referred, in general terms, to the fear of the father expressed by the children. I have not the slightest shadow of a doubt that the mother is, appropriately, frightened of the father.  It is plain beyond doubt that violence has been perpetrated on her in the past.  It is plain beyond doubt that the mother has found it necessary to seek such protection as is afforded by orders made under the State domestic violence legislation and that, despite those orders, breaches have occurred serious enough to warrant the gaoling of the father on three occasions. 

23. In addition to the more general statements made earlier in these reasons about the children’s fear of the father, Mr Linklater‑Steele points to specific comments made by the children, in particular to Ms B. For example, it is to be noted that in respect of T, who then was a boy of 12, Ms B says:

    [T] reported that he gets scared when his father is angry and he raises his voice.  [T] said that he was scared his father would find out where they lived and further stated that he worries about it all the time.  [T] stated that “I’m not scared he’ll hurt us (pause), I’m scared that he’ll hurt mum.”  ([T] got a little choked up and filled up in the eyes).  [T] further stated that he did not want to see his father any more claiming, “It’s not worth the risk.”

24. N, who was 10 when he spoke to Ms B, said that it was “scary” when his father was yelling at them and thought it was even scarier when he saw his father waiting by his car on the highway after their mother came to pick them up from the contact centre.  N went on to say, “Most of the time I worry that he might hurt mum, not worry that he’ll hurt me.”  In speaking specifically about the prospect of not seeing his father again, N told Ms B, “If I couldn’t see dad again, I’d feel sad, but at the same time, I don’t want to feel scared any more.” 

25. Similarly, E, who then was only nine years old, is reported by Ms B as saying:

    He was worried his father was going to follow them and said it was very scary ... he is worried about his father finding out where they live and very worried about [the father] hurting their mother.  He said he worries about this all the time.

26. R, the youngest of the four children, aged 8 when she spoke to Ms B, is recorded by Ms B as follows, relevantly:

    [R] reported that like her brothers she worries about her father finding out where they live.  She is scared that their father will “take me away from mum”.  She recounted a time when she and her brothers had spent time with their father and “then he didn’t take us back to mum’s and I didn’t think I was going to see mum again.” 

27. There is, in my view, abundant evidence, not only that the children are frightened of their father, but frightened of his potential future actions and are specifically concerned about the father ascertaining their whereabouts and attending at their property. 

28. I have already referred to the fact that I regard this case as an exceptional case.  I also regard it as a sad case.  I consider that this court would be failing in its obligations to these four children if it did not seek to do what it could by orders made by it to protect them - and, of course, their mother - by making such orders as can be made on the evidence to effect that purpose.

29. Accordingly, I am persuaded, in the absence of the father, that I should make an order for injunction pursuant to section 68B of the Act, such order directed to the personal protection of the children and the personal protection of the mother and her current partner. 

30. Accordingly, orders will reflect that an injunction will issue preventing the father from attempting to ascertain any residential address of the  mother, her partner and the children or any place of employment for either the mother or her partner and will further reflect injunctions issuing restraining the father from approaching within the vicinity of either of such places. 

31. To the extent that an injunction is sought in respect of communication, the terms of the parenting orders earlier made by me specifically with respect to communication will, I think, cover that issue sufficiently. 

I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  14 April 2010