FAGAN & FAGAN
[2014] FamCA 1108
•20 November 2014
FAMILY COURT OF AUSTRALIA
| FAGAN & FAGAN | [2014] FamCA 1108 |
| FAMILY LAW – CHILDREN – Best Interests –Where a child is alienated from a father – Where there are two children of the marriage – Where the father and the ICL seek orders that the father have sole parental responsibility – Where the mother seeks orders for equal shared parental responsibility – Where communication between the parents is dysfunctional – Where the parents live a considerable distance apart – Where it is found that the actions and words of the mother have contributed to the alienation of the eldest child from the father and the paternal grandmother – Where the ability of the mother to provide suitable long term accommodation for the children is uncertain – Orders made for the children to live with the father and spend time with the mother. |
| Evidence Act 1995 (Cth) Family Law Act 1975 (Cth)ss 60B, 60CA, 60CC, 60CG, 61DA, 65DA, 65DAA, 68B, 69ZT |
| Browne v Dunn (1894) 6 R 67 (HL) |
| APPLICANT: | Mr Fagan |
| RESPONDENT: | Ms Fagan |
| INDEPENDENT CHILDREN’S LAWYER: | Marsdens Law Group |
| FILE NUMBER: | SYC | 1314 | of | 2012 |
| DATE DELIVERED: | 20 November 2014 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Le Poer Trench J |
| HEARING DATE: | 3-8 March 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Ward |
| SOLICITOR FOR THE APPLICANT: | Willis Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Breeze |
| SOLICITOR FOR THE RESPONDENT: | David H Cohen & Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER | Ms Sloane |
Orders
All previous parenting orders or injunctions made pursuant to s 68B of the Family Law Act 1975 (Cth) (“the Act”) are hereby discharged.
The applicant father Mr Fagan (“the father”) is to have sole parental responsibility for decisions relating to the children X (born … 2002) (“X”) and Y (born … 2010) (“Y”) (“the children”).
That the father shall:
(a) Give the respondent mother Ms Fagan (“the mother”) notice of any major decisions which he is considering and invite her input to such decisions. The mother is to respond to any such notice and request within three days of the request being made.
(b) Give the mother notice of the decision made about any such matter within three days of having made the decision.
(c) Advise the mother in writing at least six weeks prior to any proposed change in school, provide to the mother details of the new school and invite her input.
(d) In relation to enrolling either child in a school the father is to ensure the mother’s name is included in the details provided to the school.
(e) The father shall authorize any school which either child shall from time to time attend to provide the mother with school reports, order forms for school photographs and invitations to any school event to which the parents are invited.
(f) The father shall not enrol the children in any extra-curricular weekend activities which require the mother to make the children available to participate in such activity during her weekend time unless she has agreed to the children being enrolled in that activity.
That the children live with the father.
That the children shall spend time with the mother as follows:
(a) Every second weekend from 6.00 pm Friday to 6.00 pm Sunday. The first occasion of this time to commence on the second weekend after this Order is made.
(b) Subject to the following Order, for the first half of the school holidays in even numbered years and the second half in odd numbered years commencing at 10.00 am on the first day after the last day of school term. The changeover is to take place at 10.00 am on the morning of the mid holiday point. The children are to be in the father’s care for the last two days of each holiday period even if it should transpire that they would otherwise be with the mother pursuant to this Order.
(c) Until Y has turned five years of age the children will spend time between the parents during the end of year school holidays on a week about cycle. The cycle will commence at 10.00 am on the first day after the last day of school term. The children are to be in the father’s care for the last two days of this holiday period even if it should transpire that they would otherwise be with the mother pursuant to this Order. The mother’s time for this holiday period is to commence first in 2014 and second in 2015.
(d) The mother’s birthday:
(i)If this falls on a school day, from 4.00 pm to 7.30 pm; or
(ii)If this falls on a weekend day and the children are not already in the mother’s care, then from 12.00 pm to 7.30 pm.
(e) Mother’s Day weekend from 6.00 pm Saturday to 6.00 pm Sunday, if the children are not already in the mother’s care.
(f) The mother’s time with the children on Father’s Day weekend is to be suspended from 6.00 pm Saturday if the children are due to be in her care that weekend pursuant to these Orders.
For the purpose of changeover of care for school term weekend time, holiday time and Mother’s Day, changeover is to occur at N railway station at the commencement of the time the children are to spend with the mother and at H railway station at the conclusion of that time.
For the purpose of changeover of care for the mother’s birthday time, all changeovers for that event are to occur at N railway station.
For the purpose of Father’s Day changeover the mother is to deliver the children to the N railway station.
Should the parties agree to the children being enrolled in and participating in extra-curricular weekend activities then neither is to attend upon such activity when the children are in the care of the other parent without first having the other parent’s written consent.
The father is to be responsible for the medical and dental treatment of each child. The father is to advise the mother by email or text message of any medical treatment provided to either child and to provide the name, address and phone number of any treating medical practitioner.
Unless it be an emergency the mother is not to take either child for medical treatment or assessment without the written consent of the father first obtained. Should it be necessary for the mother to have either child treated as an emergency then she is to forthwith notify the father of the condition requiring treatment and the name, address and telephone number of the medical practitioner providing that service.
In the case of any serious medical episode suffered by either child the parent who is caring for the child at the time is to forthwith notify the other parent of the illness or medical condition together with any other necessary information about the child at that time.
The father is to do all things necessary to facilitate Y’s ongoing speech therapy as recommended by Mrs T, Speech Pathologist (“the Speech Pathologist”), … and both parties are authorised to contact the Speech Pathologist to discuss Y’s progress and shall ensure that any recommendations of the Speech Pathologist are followed. In this regard the father is to ensure that information about any exercises which the Speech Pathologist has recommended Y undertakes are communicated to the mother in the manner set out in these Orders.
That the father and X attend upon Ms W as soon as practicable, and that the father and X engage in any therapy recommended by Ms W. If Ms W forms the view that Xwould benefit from further counselling or therapy the father is to do all things necessary to facilitate it. If Ms W forms the view that Y would benefit from participation in sessions with X and/or the father, or further counselling, the father is to do all things necessary to facilitate it. If Ms W forms the view that the family would benefit from the mother participating in counselling, the mother is to attend on such therapy/counselling as required, provided she can fund the therapy or counselling for her part.
Each party shall advise the other of any changes in their respective residential addresses, such notice to be given at least 14 days prior to any such change. In the mother’s case, should such change of residence be part of a Q organisation program which does not permit the mother to disclose her residential address she is excused from providing same, however she must disclose a district in which she is residing (e.g. the Sutherland Shire).
That each parent be and is hereby restrained from:
(a) Speaking to the children, or to other persons in the presence of the children, about the other parent or their family members in a negative, offensive or unpleasant fashion.
(b) Permitting any other person to speak to or about the other parent or their family members in a negative, offensive or unpleasant fashion in the presence or hearing of the children.
(c) Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
The mother is permitted to attend at either child’s schools or places of educational instruction (including extra-curricular activity tuition such as the learning of a musical instrument, sporting fixture or the like), on “open days”, speech days, concerts or performances where one of the children is a participant and to which other parents are invited to attend, parent teacher interviews as scheduled by the school or at any other time when the children are in her care pursuant to these Orders.
The mother be and is hereby restrained from:
(a) Attending at either child’s school or place of educational instruction (including extra-curricular activity tuition such as the learning of a musical instrument, sporting fixture or the like) on occasions other than those permitted by these Orders unless she has the father’s prior written agreement for her to so attend.
(b) Taking the children to see any therapist, counsellor, psychologist or social worker otherwise than as required by these Orders.
The mother, should she so agree, is to attend for psychological intervention upon an expert recommended by Dr R.
Each party (Mr Fagan born … 1975 and Ms Fagan born … 1973) and their servants/agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children X born … 2002 and Y born … 2010 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by placing the names on the Airport Watch List and maintaining the names on the Watch List at all points of arrival and departure in the Commonwealth of Australia until the expiration of five years from the date hereof.
Neither party is to apply for a renewal of a passport for either child until the expiration of five years from the date hereof.
The mother is to deliver to the father within seven days any passport she holds for either child.
Any communication between the parents whether required by these Orders or otherwise, unless and until they agree in writing to add a further means of communication is to be by text message or email. Each is to provide to the other an email address and/or a mobile telephone number upon which they will be able to receive messages.
Should the mother (a) be able to house the children and herself at an address which the father is permitted to know AND (b) be able to provide a report from a psychologist or psychiatrist with whom she has undertaken not less than 12 months therapy (at not less than monthly intervals unless the therapist directs otherwise) stating that the aspects of the mother’s parenting which have been identified in the judgment delivered today and in the reports of Dr R have been addressed successfully, THEN she is permitted to apply to the Court (Justice Le Poer Trench if available) for orders extending the time the children may spend with her.
The father has liberty to apply to the Court on short notice for orders, including a recovery order and/or the suspension of the orders for the time for the children spend with the mother, should the mother fail to deliver the children, or either of them, to the father at the conclusion of any period they spend with her.
The Independent Children's Lawyer is to provide a copy of the Orders made herein together with the reasons given today and also the reports of Dr R provided to the Court to Ms W with a request that she endeavour to explain the reasons to X if she considers that would assist him in the therapeutic work being undertaken by her with him.
The father is permitted to publish a copy of these Orders to any school in which either of the children is enrolled and to any medical practitioner providing medical treatment or medical assessment to either child.
These Orders are final orders subject to the right reserved to the mother to apply as is set out in Order 24.
That pursuant to s 65DA(2) of the Act, the particulars of the obligation these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders 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 by this Court under the pseudonym Fagan & Fagan has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 1314/2012
| Mr Fagan |
Applicant
And
| Ms Fagan |
Respondent
REASONS FOR JUDGMENT
Introduction
The child X is a 12 year old boy. He and his four year old brother Y have been caught up in a highly conflicted marital breakdown experienced by their parents. X shows many signs of a promising life. He is intelligent, he has a personality which makes him popular amongst his school peers, he is handsome and he shows aptitude for swimming, his only sporting activity outside of school. Yet he has said some incredibly worrying things to his school teachers and to his mother. The most striking example is to be found in his statement to his mother on 28 October 2012. On that occasion he is said to have threatened to kill himself. That led to involvement that day by the NSW Police, the Ambulance Service and the Children’s Hospital.
The reasons which follow explore what orders might be made to allow X and his brother to develop into the type of adults which their parents clearly wish them to be. The orders which are made represent the best that the Court can achieve to assist in achieving that end. However, sadly the Court must acknowledge, that despite the orders which are made, the prospect of the children having a trouble free childhood and achieving adulthood psychologically unscarred arising from their family background is uncertain.
In about March 2001 Mr Fagan (“the father”), an obviously Caucasian male, commenced to cohabit with Ms Fagan (“the mother”), a Thai national who was studying in Australia. In 2002 the mother became pregnant. The parties married in mid-2002 and X was born in late 2002. The marriage experienced problems and in June 2004 there was a separation which saw the mother and X commence living in Thailand. A reconciliation was negotiated and the parties cohabitation resumed in about June 2006 in Australia. The child Y was then born in 2010.
Unhappily, there was another separation towards the end of February 2012 which saw the mother take Y to Thailand without the knowledge or consent of the father. The circumstances of that trip to Thailand were the subject of considerable evidence in the hearing and I will refer to that later in these reasons. As will be seen, that time in Thailand ended for Y when the father retrieved him from the Australian Embassy in Bangkok and returned him to Australia. The mother followed a few days later.
The father has had the principal care of X since the separation and the principal care of Y since he retrieved him from Thailand at the end of April 2012. As will be seen a variety of orders have operated since the commencement of the proceedings by the father in May 2012.
At the conclusion of a lengthy hearing, each of the parents and the Independent Children's Lawyer provided the Court with minutes of orders they were each seeking (or recommending in the case of the Independent Children's Lawyer).
The Independent Children's Lawyer recommended the following orders be made:
INDEPENDENT CHILDREN’S LAWYER’S PROPOSED MINUTE OF ORDER:
1.That the Applicant Father shall have sole parental responsibility for [the child X] (dob: … 2002) (“[X]”) and [the child Y] (dob: … 2010) (“[Y]”) (collectively referred to as “the children”).
2.That the Applicant Father shall notify the Respondent Mother in writing of decisions made in the exercise of sole parental responsibility.
3.That the children live with the Applicant Father
4.That the children spend time with the Respondent Mother as follows:
4.1Each alternate weekend from 5pm Friday to 5pm Sunday.
4.2The second half of all school holiday periods as published in the NSW Government Gazette commencing at 9am on the first day following an even division of the number of school holiday days, and concluding at 9am on the final day of the school holiday period.
4.3The Respondent Mother’s birthday.
4.3.1If this falls on a school day, from 4pm to 8pm.
4.3.2If this falls on a weekend day and the children are not already in the Respondent Mother’s care, from 9am to 5pm on that day.
4.4Mother’s Day weekend from 5pm Friday to 5pm, if the children are not already in the Respondent Mother’s care.
4.5The Respondent Mother’s time with the children on Father’s Day weekend is to be suspended if the children are due to be in her care that weekend as per Order 4.1.
5.That for the purposes of Order 4, changeover is to occur at [H] Railway Station.
6.That the Respondent Mother be restrained by injunction from taking the children to see any therapist or counsellor, and that the Respondent Mother be restrained by injunction from taking the children to be assessed by [Ms D] or any other member of the [Q] Community Centre.
7.That the Applicant Father and [X] attend upon [Ms W] as soon as practicable, and that the Applicant Father and [X] engage in any treatment recommended by [Ms W]. If [Ms W] forms the view that [X] would benefit from further counselling the Applicant Father is to do all things necessary to facilitate it. If [Ms W] forms the view that [Y] would benefit from participation in sessions with [X] and the Applicant Father, or further counselling, the Applicant Father is to do all things necessary to facilitate it.
NOTATION: [The child X] has previously attended upon [Mr O].
8.For the purposes of facilitating Order 7, that leave be granted by this honourable Court to provide all reports prepared by Dr [R] for the purpose of these proceedings to [Ms W].
9.That the Applicant Father do all things necessary to ensure that [Y] continues to attend upon a speech therapist as needed or recommended.
10.That the Respondent Mother be restrained by injunction from entering or attempting to enter the place or places of education of the children from time to time or frequenting the general vicinity of those places, with the exception of attending significant sporting and cultural events to which all parents are invited to the school.
11.That the parties be restrained by injunction from denigrating the other party or members of the other party’s family to the children or in the presence of the children or at all.
12.That the parties use their best endeavours to ensure that no other person denigrates the other party or members of the other party’s family to the children or in the presence of the children or at all.
13.That the parties be restrained by injunction from discussing these proceedings with or in the presence of the children or show to the children any document connected with these proceedings.
14.That pursuant to s.62B of the Family Law Act, information about the family counselling services, family dispute resolution services and other courses, programs and services available, is set out in the Fact Sheet attached hereto.
15.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
The father sought the following orders:
Minute of Order Proposed by the Applicant Father
1.That all previous orders be and are hereby discharged.
2.That the Applicant Father have sole parental Responsibility for decisions relating to the children [X] (born … 2002) and [Y] (born … 2010) (“the children”).
3.That the Father shall:
a.Give the Respondent Mother notice of any major decisions that he makes in relation to the children at the earliest opportunity.
b.Advise the Mother in writing at least 6 weeks prior to any change in school and provide to the Mother details of the new school.
c.The Father shall authorize any school which either child shall from time to time attend, to provide the Mother with of school reports, order forms for school photographs and invitations to any school even to which the parents are invited.
4.That the children live with the father.
5.That the children shall spend time with the Mother as follows:
a.Every second weekend from 6.00pm Friday to 6.00pm Sunday.
b.For the first half of the school holidays in even numbered years and the second half in odd numbered years commencing at 9.00am on the first day of the school holiday period as published in the NSW Government Gazette.
c.The Respondent Mother’s birthday:
i.If this falls on a school day, from 4pm to 7.30pm; or
ii.If this falls on a weekend day and the children are not already in the Mother’s care,
d.Mother’s Day weekend from 6pm Friday to 6pm Sunday, if the children are not already in the mother’s care.
e.The Mother’s time with the children of Father’s Day weekend is to be suspended if the children are due to be in her care that weekend as per order 5(a).
6.That for the purposes of Order 5(b) and 5(d) changeover is to occur at [N] railway station at 6.00pm Fridays and [H] railway station at 6.00pm Sundays.
7.That for the purposes of order 5(b) changeover is to occur at [N] railway station at 9.00am on the first day of the holiday period spent with the Mother and 6.00pm at [H] railway station at the conclusion of that holiday period.
8.That for the purposes of order 5(c) changeover is to occur at [N] railway station at both the commencement and conclusion of the period specified.
9.If either child is enrolled to participate in any sporting event or extra-curricular activity during a weekend, the parent with whom the child is spending time during such weekend shall do all things necessary to ensure the child’s participation in such sporting event or activity.
10.That the Applicant Father shall do all things necessary to facilitate [Y’s] ongoing speech therapy as recommended by Mrs [T], Speech Pathologist, … and both parties shall be authorised to contact the speech pathologist to discuss [Y’s] progress and shall ensure that any recommendations of the Speech Pathologist are followed.
11.That the Applicant Father and [X] attend upon [Ms W] as soon as practicable, and that the Applicant Father and [X] engage in any treatment recommended by [Ms W]. If [Ms W] forms the view that [X] would benefit from further counselling the Applicant Father is to do all things necessary to facilitate it. If [Ms W] forms the view that [Y] would benefit from participation in sessions with [X] and the Applicant Father, or further counselling, the Applicant Father is to do all things necessary to facilitate it. If [Ms W] forms the view that the family would benefit from the Mother participating in counselling, the Mother will be invited to participate.
Notation: [The child X] has previously attended upon [Mr O]
12.That each party shall advise the other of any changes in their respective residential address, such notice to be given at least 14 days prior to any such change.
13.That each parent be and is hereby restrained from:
a.Speaking to the children, or to other persons in the presence of the children, about the other parent or their family members in a negative, offensive of unpleasant fashion.
b.Permitting any other person to speak to or about the other parent or their family members in a negative, offensive or unpleasant fashion in the presence or hearing of the children.
c.Discussing any proceedings between the parents or the parental relationship in the presence or hearing of the children or permitting any other person to do so.
14.That the Respondent Mother be and is hereby restrained from:
a.(deleted)
b.Taking the children to see any therapist, counsellor, psychologist or social worker.
c.Taking or arranging or permitting
15.That the Respondent Mother will attend for psychological intervention upon an expert recommended by Dr [R] and shall continue such therapeutic intervention as recommended by that psychologist.
16.That each party ([Mr Fagan] born … 1975 and [Ms Fagan] born … 1973) and their servants/agents be and are hereby restrained from removing or attempting to remove or causing or permitting the removal of the children [X] born … 2002 and [Y] born … 2010 from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this order by placing the names on the Airport Watch List and maintaining the names on the Watch List until the Court orders otherwise.
17.That pursuant to s.65DA(2) of the Family Law Act, the particulars of the obligation these orders create and the particulars of the consequences that may follow if a person contravenes these order are set out in the Fact Sheet, attached hereto and these particulars are included in these orders.
The mother sought the following orders:
Mother’s minutes of orders
1.That the parties have equal shared parental responsibility in respect of the children, [X] born … 2002 (“[X]”) and [Y] born … 2010 (“[Y]”).
2. That the children live with the Respondent Mother.
3. That the children spend time with the Applicant Father as follows:
3.1.Each alternate weekend from 5.00pm Friday to 5.00pm Sunday;
3.2.The second half of all school holiday periods as published in the NSW Government Gazette commencing at 9.00am on the first day following an even division of the number school holiday days, and concluding at 9,00am on the final day of the school holiday period;
3.3.The Applicant Father’s birthday;
3.3.1.It this falls on a school day, from 4.00pm to 8.00pm;
3.3.2.If this falls on a weekend day and the children are not already in the Applicant Father’s care, from 9.00am to 5.00pm on that day;
3.4.Father’s Day weekend from 5.00pm Friday to 5.00pm Sunday, if the children are not already in the care of the Applicant Father;
3.5.The Applicant Father’s time with the children on Mother’s Day weekend is to be suspended if the children are due to be in his care that weekend as per order 3.1.
4.That for the purpose of Order 3, changeover is to occur at [H] Railway Station.
5.The Applicant Father and [X] attend upon [Ms W] as soon as practicable, and that the Father and [X] engage in any treatment recommended by [Ms W]. If [Ms W] forms the view that [X] would benefit from further counselling the Respondent Mother is to do all things necessary to facilitate it. If [Ms W] forms the view that [Y] would benefit from participation in sessions with [X] and the Respondent Mother, or further counselling, the Respondent Mother is to do all things necessary to facilitate it.
Notation: [The child X] has previously attended upon [Mr O].
6. That the Respondent Mother do all things necessary to ensure that [Y] continues to attend upon a speech therapist as needed or recommended.
7. That the parties be restrained by injunction from denigrating the other party or members of the other party’s family to the children or in the presence of the children or at all.
8. That the parties use their best endeavours to ensure that on other person denigrated the other party or members of the other party’s family to the children or in the presence of the children or at all.
9. That the parties be restrained by injunction from discussing these proceedings with or in the presence of the children or show to the children any document connected with these proceedings.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
The father was born in1975 and is 39 years of age. The mother was born in 1973 and is now 40 years of age. Although the mother’s first name is …, she has the nickname “…” which may be referred to from time to time in these reasons. The parties commenced cohabitation in about March 2001. They were married in mid-2002. Their firstborn child, X, was born in late 2002 and is now 12. He is in year six at M Public School. He was appointed Vice-Captain of the school.
The parties’ second child, Y, was born in 2010. He is now four years of age. He is significantly language delayed. The father arranged for him to attend Z Playgroup in Suburb N, commencing in February 2014, which, the father says, has expertise in assisting children with language development. The father was unchallenged on that assertion.
At the commencement of the cohabitation the father was yet not divorced from his former wife.
To the extent that it is relevant, I will refer to aspects of the mother’s background when I come to consider the evidence of the expert, Dr R.
In 2010, the father instigated enquiries within the mother’s community in Thailand to ascertain the identity of the mother’s natural mother. This was a fact which was denied by the mother when she was being cross-examined in relation to records from the L Hospital detailing conversations between the mother and employees of that hospital. To the extent that it is relevant, I will refer to those records later in these reasons. It is common ground that in the second half of 2010, following the birth of Y, the mother was able to make contact with her birth mother. Since then, it appears they have developed a relationship.
In the mother’s evidence, she makes serious allegations about the father’s conduct towards her. I will deal specifically with those allegations later in these reasons.
For his part, the father said that early in the relationship he became aware of communication issues between him and the mother. The father says that if, during conversation, he asserted something with which the mother did not agree, she would say to him “stop abusing me”. It is the father’s case that, to the extent that the mother accuses him of “abusing her verbally” she has either misunderstood what he was saying, or alternatively, has used the wrong word to describe what took place between them.
Following X’s birth, the parties and the child moved to rented accommodation at Suburb A on Sydney’s North Shore. This is a one bedroom, ground floor apartment, with a front and back yard which the children can use. The father and the children remain living in that residence today.
The parties had a separation in early 2004. The father attributes the cause of the separation as his infidelity with a woman name Ms J. The mother left the Suburb A unit with the child and did not make her whereabouts known to the father until two months after they separated. The father was unable to spend any time with the child until the mother made that contact and offered him the opportunity to see the child.
The father says the mother took the child to Thailand in 2004 without his knowledge or consent. He was unaware they had left Australia until he spoke to the mother by telephone and made arrangements to visit her and the child in Thailand. In the period of 2004-2006, he travelled to Thailand twice and spent time with the child. These trips to Thailand ultimately produced a reconciliation. In June 2006, at the invitation of the mother, the father travelled to Thailand and brought the child X back to Australia. Between June 2004 and October 2006 the father transferred $10,943 to the mother in Thailand to support her and the child. The mother returned to Australia in about November 2006. The parties resumed cohabitation in the Suburb A unit.
In 2010, the parties’ second child, Y, was born. The father says that Y was not sleeping well during the first six to eight months. In August 2010, the mother attended L Support Service for a period of four months.
During the period the mother attended at L Support Service, she was referred to a sex therapist, Dr E. She and the father attended to see Dr E. This aspect of sex therapy would normally assume no importance in a case; however, in this case it may do so. The father asserted that following the birth of the child X, the mother shunned his sexual advances and their sexual activity became very infrequent.
The father reported a significant change in the presentation of the mother after her attendance at L Support Service. He said this change lasted until about February 2011. Then, she appeared to revert to behaviour he had observed prior to the L Support Service visit by the mother, namely that she became easily angered and she displayed that anger.
A matter which became an issue in the proceedings was an apparent viewing by X of a video recording reposing on the iPad device of the father’s and containing images of the mother and father in sexual activity. The father says in paragraph 54 of his affidavit that the recording of this sexual activity came about in about September 2011 at the invitation of the mother. She is alleged to have said to the father “while we are having sex, let’s make a movie and take some photo.” The father agreed to her proposal. The father says there was one video recorded, and about six photographs recorded using his iPhone. The father says these items have since been deleted. The father says he had never shown these photographs to anyone, including the children.
On 29 November 2011, the parties and the children travelled to Europe with the father’s mother. Following the European trip, they returned to Australia via Bangkok. The arrived in Bangkok on 13 December 2011.
The father says the trip required a return to Sydney on 25 December 2011. Prior to that departure, the mother asked could she stay with the children a little longer. She said she would return to Australia on 4 February 2012. The father agreed to her request. The father returned to Australia on 25 December 2011, although he may have arrived in Australia on 26 December 2011.
On 3 February 2012, the mother contacted the father and said that she would not be returning to Australia on 4 February 2012 as proposed. The child X was due to recommence school in early February 2012. The mother eventually returned to Australia with the children on 25 February 2012.
On 1 March 2012, the mother left the parties’ residence.
Between 25 February and 1 March 2012, the father alleges the mother did not sleep very much and she was carrying her handbag with her everywhere, including to the bathroom, and taking it to bed.
At about 7.00 am on 1 March 2012, the father alleges that he and the mother were in the living room. There was a conversation. The mother became agitated. The father says she threw her bank card at him and said “take my card, I don’t want your money anymore”. The father said nothing to the mother in response but took the bank card and broke it in half. Approximately ten minutes later, the father attempted to “grab the handbag” of the mother. He was concerned about what she might be hiding in her handbag. Both parties had a hold of the handbag; the father released his grip and the mother fell to her knees (this is the father’s version. The mother’s version will be referred to later). The mother was crying and screaming. The father left the room and took X to school. The father denies that he assaulted the mother on that occasion.
On 1 March 2012, the mother left the parties’ residence while the father was at work and she had the parties’ youngest child Y with her. The father was unable to make telephone contact with her.
On 2 March 2012, whilst the father was at the front of the parties’ residence preparing to take X in his car to school, the mother arrived. She spoke to X and said “do you want to come and stay with mummy?” The father alleges X replied “I want to stay with daddy, as you’re always mean to me.”
It is common ground that the mother, when she left the property on 1 March 2012, stayed with her friend Ms P, and Ms P’s partner, Mr F. There developed, during the trial, an issue about the nature of the relationship between the mother and Ms P. I find that the mother and Ms P were good friends prior to the mother’s trip to Thailand following the final separation. The evidence which I have heard in this case could lead to no other logical conclusion.
The father, in his affidavit, says that he and the mother met Ms P and her partner Mr F in about 2002. They are Thai people and operate a business near the unit which the parties occupied. The father alleges that Ms P was a close friend of the mother. On 1 March 2012, the father spoke by telephone to Ms P and asked did she know where the mother and Y were staying. She replied no. In March 2012, the father made an urgent application to the Court seeking an order restraining the mother from removing the child Y from Australia. The application was filed on 8 March 2012.
On 31 March 2012, the father received a telephone call from Ms P, who advised him that the mother and the child Y were in Thailand and had left on 7 March 2012. It is common ground that Ms P paid for the return airfares of the mother and Y to Thailand. There is issue between the mother and Ms P as to the necessity for Ms P to pay for the airfares. On that day, 31March 2012, the father was told that Y was staying with Mr F’s mother in Thailand. That lady’s name is Ms F and she gave evidence in the proceedings. The father and mother had met Ms F in about 2010 when she visited her son in Australia.
The father made arrangements with Mr F and indirectly with his mother to fly to Bangkok and collect Y from the Australian Embassy at 9.30 am on Wednesday 4 April 2012. The father flew to Bangkok on 3 April 2012, having left X with his mother, Mrs Fagan (“the paternal grandmother”). On 4 April, the father collected Y together with an emergency passport from the Australian Embassy in Bangkok.
On 9 April 2012, whilst in Bangkok, the father was informed that the mother had made contact with the Australian Embassy and had offered to hand over Y’s existing passport if she could see Y first. On that same day, the father had a conversation with his mother and she told him something of a telephone call she had received from the mother that day. He also had a further conversation on 9 April 2012 with Ms F, and she told him something about a telephone conversation she had had with the mother on that day.
The father says that as a result of what he was told, he became concerned that the mother had made a complaint to the Thai police that he had abducted the child Y. The mother did provide Y’s passport to the Australian Embassy. On 18 April 2012, the father attended the embassy and collected Y’s passport. He then made airline bookings to return to Australia on 20 April 2012.
On 19 April 2012, the father received information that the mother would be at the departure gate the following day to say goodbye to Y. Again, this concerned the father and he changed his travel arrangements to leave on 24 April 2012.
The mother returned to Australia in the first few days of May 2012. On the day of her return, she was collected from the airport by the paternal grandmother and she stayed with her that evening.
In her affidavit material, the mother alleges that there was a separation between the parties in early 2003 for about six to seven months when she left and stayed with some friends. The mother said that during that separation she asked the father to see X and he replied “I’m not ready I’m too busy”. She claimed that the only time he saw X was when she took the child to the Suburb A unit to see the father.
In the mother’s affidavit, she alleges that in June 2006, the father left Thailand with X without her knowledge. She alleged that the father had taken X’s passport from her personal property. Somewhat in contradiction of that, the mother says “before leaving, [the father] misled me that [the child] had to live in Australia because he is an Australian citizen. If I did not allow [the child] to go with him at that time, I would not be able to see him ever again. [The father] left Thailand with [X] without my consent.”
In support of his version of the facts of what happened on this occasion, the father attaches a number of photographs he says were taken at the Bangkok airport in June 2006, as he was returning to Australia with the child X. These photographs tend to corroborate the father’s version of the facts and I conclude therefore that they are probably correct.
Each party filed their affidavit in a format which was required by the directions given in respect of the preparation for trial. The directions required the parties to address their evidence under specific headings. The first of those headings is as follows “Allegations made by the mother of sexual, physical and psychological abuse by the father, financial coercion and manipulation and emotional abuse.”
The existence of this heading raised for me concerns about the application of s 69ZT of Div 12A of Pt VII of the Family Law Act 1975 (“the Act”). I raised this matter with the parties’ legal representatives at the commencement of the trial and having heard argument, as previously outlined, I ruled that the provisions of the Evidence Act 1995 (Cth) (“Evidence Act”) would apply to those allegations given the serious nature of same. Having discussed the consequences of such determination, I then invited the legal representatives to raise objections to each party’s affidavit, restricted to those matters and any other material with would be objectionable in that part of the affidavit not affected by my ruling.
After some discussion, the parties’ legal representatives were content for the trial to proceed on the basis that I would not be able to give any meaningful weight to material contained in each party’s affidavit which touched on the abovementioned heading where, on any objective basis, the material would not withstand an objection based on admissibility because it was objectionable based on the provisions of the Evidence Act and other matters such as form, argument, or conclusion. Applying that then to the allegations raised by the mother under this heading, the following is evidence which in my determination is capable of being given weight. The extent of that weight will be affected by other matters which need to be determined, such as matters of credit. It will also be important to consider which of the allegations was actually put to the father during the course of cross-examination.
Before considering the affidavit evidence of the mother under this heading, which commences at paragraph 17 of her affidavit, it is, unfortunately, necessary for me to comment on the drafting of the affidavit. It is further necessary to note that this affidavit was not prepared by an unrepresented litigant; it was prepared or settled by the mother’s solicitor, as specified at the conclusion of the affidavit. An example of this poor drafting is found in the very first paragraph under the subject heading. The paragraph details evidence to support the mother’s assertion of “financial coercion and manipulation”. It describes that the mother predominantly was not in employment during the course of the marriage. It describes that she did work for a period of approximately eight months assisting the father with a cleaning job during the course of the marriage. It describes that the father kept the income which had been earned by the mother and informing her that “it was his job to take care of the finances.” That paragraph concludes with the following sentence “I was not allowed to have anything to do with the money.” It is this concluding sentence that clearly the mother relies upon to establish that she was the victim of financial coercion and/or manipulation. It is clear that the sentence is a conclusion and to a trained legal eye, can clearly be understood not to be capable of given any meaningful weight by me.
The mother asserts that at the end of 2011, following a family trip to Europe, the parties and the children had a holiday in Thailand. It is common ground that this occurred. It is also common ground that the family were to return to Sydney on or about 25 December 2011. It is common ground that the father did return on that date and the mother and children stayed longer. It is common ground that such arrangement was consensual between the parents. In her affidavit, the mother attributes the reason for the father agreeing to her and the children staying longer in Thailand as “because [the father] did not want to pay [X’s] schooling and all of our other expenses.” The mother further asserts “[The father] expected my parents would be able to take care all those expenses.” Those statements are not capable of being given meaningful weight. However, in the last two sentences of the paragraph, the mother says “[The father] did not give me any money during our stay in Thailand and/or give me any money for me and the children to live on when he left. I had to rely on my family for assistance.”
I will not repeat hereafter, under this heading, other examples of the poor drafting of the mother’s affidavit. I will include relevant evidence which is capable of being given meaningful weight.
Whilst in Thailand, the mother says that the father said to her “you are useless, you can’t do anything. I don’t like Buddhist ceremonies in the house, you and your mother are fools and stupid Asians.” This was upsetting to the mother.
The above statement attributed to the father is said to be the reason she did not return to Sydney on or about 3 February 2012. She said “I was, however, very scared of him, particular having sex with me.”
The mother asserts that on 26 February 2013 she was “extremely distressed” as the child X accidentally found nude photographs of her on the father’s computer. The mother said the father had taken those photographs. She did not assert that she had been coerced at the time the photographs were taken, nor did she deny that they were taken with her consent. Although the date was not corrected, the flow of the affidavit makes it clear that the date that the mother was actually referring to was 26 February 2012.
The mother asserts that while the family were in Thailand in about early 2012, the father “never spent any money on my family and/or for the benefit of the children, let alone me.” The evidence establishes, as a matter of common ground, that the father had left Thailand on about 25 December 2011. During the time that the children and the mother remained in Thailand after 25 December 2011, the mother asserts that her family provided for the needs of herself and the children.
This evidence of the mother’s that she was without funds at about the end of 2011 and early 2012 whilst she was in Thailand is contradicted by her own evidence that at the time she separated from the father on 27 February 2012, she had more than $9,000 in savings. She asserted that these were funds that her parents had provided to her, it seems, over a period of time. She asserted in her evidence that when she travelled to Thailand with Y in March 2012, her airfare was paid for by Ms P, although there was no necessity as she had more than adequate funds of her own to pay for the airfare. I will refer to those matters again later in these reasons.
Notwithstanding the mother’s general accusation that the father did not allow her access to their funds, the mother acknowledges that she had been provided with a bank card by the father as a secondary card holder. This was, on the mother’s evidence, available for her for shopping, for household expenses including food. In relation to that bank card, I accept the father’s evidence that the card enabled the mother to access the parties’ joint bank account.
On 27 February 2012, the mother alleges the father opened her purse, in front of her, and removed her bank card and mobile phone. She “went to grab my purse” and “he was behind me at the time and he pushed me on my back when I fell onto my knees causing me severe pain and bruising on both knees. I was very distressed and upset crying on the floor and screaming” “I could not remain living any longer with [the father] because I feared for my safety as I was afraid of him so I took [Y] and left.”
It is common ground that following the 27 February separation the mother stayed with “a friend [Ms P] and her partner [Mr F]”. She had Y with her.
The mother asserts that whilst in Thailand, she was “being stopped seeing [Y]”. This she attributes to the action of her friend Ms P and Ms P’s partner’s mother, Ms F. She also asserts “not being allowed to return to Sydney with [Y]”. I do not accept those assertions on the part of the mother. The mother further asserts that the paternal grandmother had telephoned her whilst the mother was in Thailand at that time “to stop me bringing [Y] back to Sydney”. Again, I do not accept this assertion by the mother.
The mother alleges that the father “stopped me leaving the unit by punching me on both arms causing severe bruising on my arms and injuring my head with a heavy teacup. “ She says this was the first instance of violence she experienced.
The mother alleges in about late 2009, there was an incident where the father’s dog toileted itself on the carpet in their residence. The mother complained that “he said I have to clean it up, and I would have to put up with it”. The mother said “he raised his voice at me”…“he then threw a bowl of food on the floor which I had to clean up.” She also alleged that “he also made a mess of the place so as to create more mess for me to clean up”.
There is evidence attributed to each of the parties which satisfies me that following the birth of X, there were problems in their relationship relating to sexual intercourse between them. On the father’s side I accept that he did not consider the frequency that this occurred as satisfactory and experienced same as rejection. On the mother’s side, I accept that following the birth of X, sexual intercourse was not comfortable for her and may also have been painful at times. I accept that following Y’s birth, the parties attended sexual therapy.
The mother has included, in her affidavit, details of the parties’ sex life as part of the evidence under the heading being addressed by me at this time. In paragraph 38 of her affidavit, the mother included the following words “he continued to force me to have sex with him”. No specific evidence was included in her affidavit, or elsewhere in her evidence, which was sufficient to satisfy me that sexual intercourse between the mother and father at any time was other than consensual.
The mother described in her affidavit the use of sex aids during acts of intimacy between her and the father. In describing that, she also asserted that “he also forced me to have anal sex”. Again, this assertion is not supported by any detailed evidence.
The mother asserts that she was “forced to go” to a brothel with the father to observe him have sexual intercourse with a prostitute. She asserted that she had made “many objections” to him. Again there was no detail sufficient for the Court to agree with the mother’s conclusions there stated.
The mother alleges the father took explicit nude photographs of her as well as recording videos of their sexual activity. She asserts that he also took sexually explicit naked photos of the mother on his mobile phone. It is common ground that the referred to video recordings and nude photographs were taken. There is no suggestion that such activity was not consensual on the mother’s part. The mother claimed that she had “asked him to delete but he refuses to.” Again, there is insufficient evidence to support the mother’s conclusion of the father’s refusal and in fact there is other evidence which I will refer to later about this subject matter.
The mother asserts that the father used expressions to her including “slut, my slave, my prostitute, come on slut tiger fuck me hard.” The mother asserted that these were used in a derogatory and demeaning fashion. Although clearly offensive in almost all circumstances one would imagine, the circumstances in which they were used and when they were used is not particularised by the mother. I am prepared to accept that if such words were used, they probably were intended to offend. However, given the last of the alleged derogatory statements, there is raised the possibility at least, that it was used during the course of sexual intercourse between the parties and was not intended to be offensive.
The mother alleges that in late 2005 / early 2006, when she returned to Australia from Thailand the father purchased a very large fake penis which was about 30 cm long and 6 cm in width. She asserted “he inserted it without my consent into my vagina and into my anus which was extremely painful.” The mother then said “[The father] told me that it would give me more sexual pleasure if he was having vaginal sex with me while he was inserting this fake penis into my anus. However, it was too large and he could not insert it into my anus but he kept on trying to despite me strongly objecting to it.” The inconsistency in the mother’s allegation that the fake penis was inserted into her anus and at a later time that it was too large to be inserted into her anus detracts from the allegation. Of greater significance though is the fact that although the father has denied in his affidavit that he on any occasion assaulted the mother and he denies “any family violence or sexual, physical or psychological abuse of the mother”, none of the above allegations in relation to forced sexual activity or non-consensual activity between the mother and father was put to the father during the course of cross-examination.
The mother alleges that on or about 19 November 2012, she met the father at the N railway station for a changeover. She says that at that place on that day, the father spoke to her and he was speaking very loudly. She also described his demeanour as aggressive, although no details of that assertion were provided. She said “[The father] came towards me, which seemed as if he was going to hit me.” The mother moved away from him then spoke to a person she described as a “Cityrail security guard”. The mother made a complaint to the police and on 24 September 2013 there was a hearing at the local court in relation to an Apprehended Violence Order Application made on the mother’s behalf. The application was dismissed.
Although the mother states that the incident occurred on 19 November 2012, other evidence, which I accept, asserts that it took place on 19 October 2012 and the mother did not make a complaint to the police until 28 October 2012 after she had met with members of the Q organisation.
In relation to the proceedings generated by the complaint made by the mother to the police on about 28 October 2012, there was an attendance required at the local court on 2 July 2013. The mother, on that day, took both children to court with her. She took them into the body of the court where the father was also present. In cross-examination she agreed that there were police and lawyers and other persons in court at that time. She asserted that the child Y was sick and she had to take him. She agreed she had a support worker with her at the time. She agreed that the support worker could have cared for the children outside the court while she went into the court. She said that she wanted the support worker to take notes of what happened in court as the mother could not understand English. The mother agreed in cross-examination that it was a mistake to take the child X to the court. It was put to her that she could have made other arrangements for the care of X, however, she denied that. She denied that she made a deliberate decision to bring X into court so that he could see his father. She said she put sunglasses on him and made him listen to music. She agreed that he could see his father through the sunglasses.
The mother asserted that sometime about September 2012, the father “told me that I had no right to go to the school even if I am the mother. He said to me I was not to speak to the school.”
In response to a question from X “mummy, why are you not living at the home? Why are you living here?” she said to him “I am not allowed to live at the home.” She asserted that she had been locked out of the home. She asserted that she “had to leave”. She asserted “[X] already knew the locks have been changed.” Such statements by the mother in her affidavit are somewhat in contradiction to her evidence that when she left the property at the time of final separation, she had no intention to return. The inclusion of this paragraph (number 53) of the mother’s affidavit is difficult to understand. It does, however, illustrate a level of dishonesty by the mother in her conversations with X and raises a concern she has been instrumental, whether deliberately or otherwise, in the circumstance of the relationship currently existing between X and his father. The relationship has now reached a depth where X told Dr R, in an interview which took place on Friday 7 March 2014, that he does not want to see his father who he now refers to as “[Mr Fagan]” rather than the term “dad” or “daddy”.
The mother concludes her affidavit evidence under the subject heading with an assertion “[The father] does not pay child support.” She asserts a level of arrears at $5,000. The father conceded that he had paid no child support since the original assessment. However, during the course of the hearing evidence was provided establishing that on 10 February 2014, the arrears were $3,369.22 (see exhibit H4) and that on 3 March 2014 the father paid $2,500 from his severance pay following the termination of his job with SP Company to the Child Support Agency.
As stated earlier, the father, in his affidavit under this same heading, addressed allegations which he had been put on notice because they were contained in previous affidavits of the mother. At the time he swore his affidavit on 30 January 2014, the mother had not sworn hers. She did not swear her affidavit until 13 February 2014. The father therefore did not know what specific allegations the mother was going to make in her affidavit under that heading. Nonetheless, he made a blanket denial in the following terms “I deny any family violence or sexual, physical or psychological abuse of the mother. I further deny any financial coercion or manipulation or emotional abuse.”
Orders made by the Court on 2 September 2013 required the parties to file and serve affidavits under the headings set out in exhibit 1 to those orders. Exhibit 1 to the Orders made on 2 September 2013 became Exhibit X4 in the proceedings before me. Exhibit X4 specifies the issues as follows:
a)Whether the presumption of equal shared parental responsibility should apply;
b)With which parent the children should live;
c)The amount of time the children should spend with the parent with whom they do not live;
d)The capacity of each parent to nurture, care for and support the children;
e)Whether the mother can provide suitable long-term living arrangements for the children;
f)Matters relating to the welfare of the children including mental health and developmental issues and the threatened suicide attempt in October 2012;
g)Allegations made by the mother of sexual, physical and psychological abuse by the father, financial coercion and manipulation and emotional abuse;
h)Whether both of the mother and the father have emotional and psychological problems which impair their ability to parent the children;
i)Allegations by the father that the mother was angry and volatile towards the father and X following the birth of Y;
j)Allegations made by the father that the mother is emotionally manipulating X;
k)The views of the children and the extent to which they should be taken in to account;
l)The protective parenting behaviour displayed by X towards Y; and
m)The extent and sufficiency of ongoing therapeutic intervention for the parties and the children.
The parties addressed these issues under different headings. They did both address the following headings.
Allegation that the mother was angry and volatile towards the father and X following the birth of Y
The father’s evidence is contained at paragraph 118 and following of his affidavit. When the mother was in Thailand with Y in March 2012, X resided with the father. On about 31 March 2012, X asked to speak to his father. He said to his father “I’m glad she’s gone, she’s so mean to me” and “When we were in Thailand mummy was smoking all the time. She left me alone with [Y] every night when she went out. I felt scared.” The father said to X at that time “everything is going to be OK. I’m always here for you.”
On 11 July 2012, Orders were made in Federal Magistrates Court. Those Orders provided for the children to live with the father and spend time with the mother after school on Fridays until 5.00 pm on Sundays and half of school holidays as agreed. The Orders provided for changeovers to take place at N railway station at the commencement of time with the mother and father to collect the children from the mother’s home at the conclusion of that time. The paternal grandmother was to be prevented attending at changeovers. There was to be telephone contact as agreed or on Wednesday between 5.00 pm and 6.00 pm. There were injunctive orders made.
On 27 August 2012, X said to the father “mummy said yesterday you kicked her out of home and I shouldn’t believe what you say to me”. The father replied “I don’t know why you would say that [X]. That is not true.”
On 12 September 2012, the father’s solicitor received a copy of a letter from the mother’s solicitor. It alleged that X’s school teacher had declined to speak to the mother on the basis of specific instructions from the father. The father denies that he ever gave such an instruction. On 17 September 2012 the father says that X said to him “I don’t know who to believe anymore” “mummy keeps saying things about you. I don’t know why she says them because it doesn’t affect me. I don’t know who to believe.”
The father then sets out his version of facts in relation to attending at the N railway station on 19 October 2012 to hand over the children to the mother pursuant to the court orders. The father handed the children over to the mother. The father said good bye to the children. The father then said to the mother “please give my best wishes to your “rolling bar tilak” (which in Thai means partner)”. The father said he smiled at the mother at the time he made that comment.
The father says that as he walked away, the mother said “why, are you jealous?” to which he replied “no not at all”. He then left the railway station.
It is interesting to note that the father places this incident as having occurred on 19 October 2012. The mother places the incident as having occurred on 19 November 2012. She agreed in cross-examination that she made complaint to the police about this incident on 28 October 2012. That was the day the police attended at her unit as a result of X telling his mother that he was proposing to harm himself.
Annexed to the father’s affidavit and marked “K” is a copy of the interim Apprehended Violence Order which was made against him. It is noted that the order was made on 22 November 2012. In the facts recited in the document to ground the order being made, reference is made to an event at 4.30 pm on 19 November 2012 at N railway station.
In both the affidavit of the father and affidavit of the mother it is common ground that this event occurred on a Friday where the children were being handed to the mother so she could spend time with them over the weekend. A search of the 2012 calendar shows that 19 November 2012 was a Monday and 19 October 2012 was a Friday.
In relation to when this occurred, I accept the evidence of the father.
It is also a matter to note that when the Apprehended Violence Order was issued, the protected persons included not only the mother but also the children Y and X. The father in his affidavit denied the facts which were set out in the Apprehended Violence Order in relation to the incident at N railway station. Nowhere in the facts cited is there any apparent basis to include the children in the Apprehended Violence Order.
The events of 28 October 2012 at the mother’s home in Suburb B
The father’s evidence in relation to this date is as follows. On Friday 26 October 2012, the mother collected the children pursuant to the court orders to begin spending her weekend time with them. The time was to conclude at 5.00 pm on 28 October 2012, with the father collecting the children from the mother’s residence.
At 3.15 pm on that day, the mother telephoned the father and said “[Y] has just gone to sleep, can you pick him up a little later, say 5.30”. The father replied “that’s fine, I’ll call you at 5.00 pm to see if he has woken up.” He did call her at 5.00 pm and she told him “5.30 is fine to pick the boys up.”
The father says then at 5.10 pm the mother telephoned again and said “Can you come at 6.00 pm so that [X] can have some dinner”. The father said “OK”. The father arrived at the mother’s residence at Suburb B at 6.10 pm; he telephoned her to tell her that he had arrived and then walked to the front entrance to the mother’s building. At the front of the building, the father was approached by two uniformed police officers. He was told that they were there because a social worker or counsellor had contacted them and said X was suicidal. He was then asked “did you elbow [X] in the stomach and step on his foot?” The father said “no”. The father was then asked “Do you have a girlfriend or partner?” to which he relied “no”. He was asked to wait while they spoke to X.
Approximately 30 minutes later, the police informed the father that X was threatening to kill himself. They told him X said that he was fearful of going home with the father and that the police had called an ambulance. The police informed the father that X had threatened to “jump off the balcony”. The father then left the property. He was not contacted by the mother again. At 9.30 pm he contacted G hospital to enquire about X. He was not given any information. At 11.15 pm he received a telephone call from a Senior Constable, who advised that X was assessed at hospital and allowed to leave.
The father collected the children from the mother at 10.45 am on Monday morning. He reports that both Y and X gave the appearance of being pleased to see him. X took the initiative to hold his hand on the way back to the car. The father denies that he has on any occasion hit either Y or X or engaged in any act of violence towards him. He was cross-examined about the alleged elbowing of X in the stomach and denied that he had done anything else than to give a nudge on the arm with his elbow to prompt him to say thank you to Ms P for supplying some food.
On 29 October 2012 the father said to X “is everything OK, Daddy has been very worried about you.” He replied “I just want mummy and daddy back together again.” The father reports that he did ask X about any specific concern he had in respect of the father hurting him. He said they had a discussion about the incident where the father said that he nudged X with his elbow.
I have above referred to some conversations attributed to police officers at the mother’s house on 28 October 2012. I have done so because they are uncontroversial as between the parties.
The father reports that on 7 November 2012, an order was made restraining the mother from taking the children to see Ms S. On that same day an order was made, on a without admissions basis, restraining each of the parents from exposing the children via any medium to any age inappropriate material.
The mother set her evidence out in relation to X’s alleged threatened suicide attempt on 28 October 2012 in paragraph 60 and following in her affidavit. She said X had told her that the father was angry with him for not thanking Ms P for delivering food to their apartment. She said “[The father] jabbed [X] with his elbow on his arm and stomach which hurt him. [The father] at the same time in his anger stepped on [X’s] foot which also hurt him and made him upset.” The mother also claimed that [X] had said to her “I was upset that [Ms P] had [Y] for the whole night (on Thursday 26 October 2012) when I came back from school on Friday afternoon, [Y] had returned home from being with [Ms P] and he was wearing pink pants. I thought it made him look like a girl.”
I note at this point, that both the father and Ms P have denied that Y spent an overnight period with her on 26 October 2012 or at any other time. I accept that evidence. I further note this alleged concern of X that Ms P had made Y “look like a girl”. This is a matter which I will refer to later and relates to an alleged concern of X’s that Ms P is a “boy-girl”. The mother gave evidence as to how X may have come to have knowledge of the fact that Ms P has had a sex change. I will refer to the mother’s allegations later in these reasons.
In paragraph 62 of her affidavit, the mother says this: “on or about 5 and 19 October 2012, [X] said he was upset after [the father] showed him on his iPad photographs of me and him having sex. [The father] said to [X] at the time words to the effect ‘this is how adults play’.” This was a very serious allegation. When the mother was taken to this allegation during her oral evidence, she denied that the material contained therein was true. She said that it must have been a misinterpretation at the time. She resiled completely from any suggestion that the father had shown X any inappropriate material on his iPad. She did allege, however, that X was exposed to inappropriate sexual material on the father’s iPad when Y had accidentally accessed the material.
The mother said that X had been receiving counselling from Ms S since October 2012. She annexed a copy of a report prepared by Ms S. Ms S is a witness in the mother’s case and I will refer to her evidence at a later time. Suffice to say at this time, that by 29 October 2012, Ms S had conducted three face-to-face counselling sessions with X, commencing on 5 October 2012 with an interview taking place in the presence of his mother. She had also spoken to X on the telephone on three occasions.
The mother says that on or about 28 October 2012, X rang his counsellor Ms S at the mother’s suggestion because he was very upset. The mother said “[X] told me that he is confused and that he wanted to kill himself if he had to go back to his father.” The mother said that at a later time, Ms S told her she had contacted tripe zero. The mother said that she was surprised because she had not been told about it until after the police arrived at her home. The mother confirmed that the police spoke to X in her absence. An ambulance was called and X was taken to G hospital. The mother spoke to a social worker at G Hospital. The mother annexed to her affidavit clinical notes from G Hospital.
Before the police arrived on 28 October 2012, the mother says X said to her “mum, I want to go to sleep and never wake up if I have to go back to daddy’s tonight. I want to jump off the balcony. I want to kill myself.” She said X was in tears and inconsolable at the time he said those words.
The mother annexed to her affidavit a document said to be written by X on 22 September 2012. The document was created whilst X was in his mother’s care. It purports as follows “I don’t feel safe because I see my dad doing facetime with a person called [Ms J], but my dad calls her ….” There were other alleged concerns about his father whispering when he is talking on the phone and another occasion when X said he saw “on skype there were love hearts and a kiss sign.”
The evidence did not provide any detail of substance in relation to the time the mother spent in Thailand on or after 7 March 2012 with Y. As set out earlier in these reasons, the father set out extensive evidence in relation to that period and also called evidence from the lady by whom Y was cared for during the time that the mother was in Thailand.
The most detail provided by the mother in relation to this time appears under the heading “allegations by the father that the mother was angry and volatile toward the father and [X] following the birth of [Y].” That heading appears immediately above paragraph 55 of the mother’s affidavit. Thereafter, the mother sets out detail of the circumstances in relation to her return to Thailand on 7 March 2012. She said “in Bangkok, I had to reorganise my life, and so I needed to do a number of things including attending government department”. She said “I also arranged through [Ms P] for [Y] to stay with her partner [Mr F’s] mother to allow me get these things done.” The mother says that during that time, she visited [Y]. She claimed that Mr F’s mother had refused to allow her to see Y or have any communication with Y or indeed to take Y back to her mother’s house. The mother says she was told by Mr F’s mother “[Ms P] had told me not to allow you to spend any time with [Y] for reasons only known to herself as I was never told.” The mother denied any allegation, which may have been the basis upon which she says she was refused access to Y, that she was or ever had been addicted to diet pills. She also denied that she had a “drinking problem”. She claimed that “she hardly ever drank alcohol”. I note that evidence conflicts with evidence from Ms P and evidence from Mr F’s mother.
Arising out of the incident which occurred at N railway station on or about 19 October 2012, the father was served on 2 November 2012 with an Apprehended Domestic Violence Order. That gave rise to a hearing on 28 and 29 November 2013, during which both the mother and father gave evidence and the application for the Apprehended Domestic Violence Order was dismissed.
The father alleges that on 8 January 2013 at about 5.00 pm at the H railway station, he attended to collect the children following their spending time with their mother. He had with him a suitcase, which he wished to return to the mother. He stood at a place where CCTV operated. He did this, he said, for his security. He asked X to take the suitcase to the mother, which X did. X returned and asked where the key was. The father asked X to tell his mother that he could not find the key, but he will look for it and if he finds it, he will send it to her. The father says then that he clearly heard the mother say to X “tell your dad he’s a lying thief.” He said X then returned to him and said “mum says you’re a lying thief”. In his cross-examination the father conceded that he should not have used X as an intermediary on that occasion or at all.
The father reports that on 3 February 2013 after he collected the boys from spending the weekend with their mother, X said to him “you are a bad person, you’re going to gaol.”
On 10 February 2013 at 5.00 pm the father attended the H train station to collect the children. The mother and children approached and when about 20 metres away, Y ran to the father. The mother stopped at that point. X remained with the mother. The father called to X “come on [X], let’s go home.” X replied “I don’t want to go”. The father repeated “come on [X], let’s go home” X replied “I’m not going because you are very mean.” X had tears in his eyes. The father says the mother then called out to him “what have you done to my son, you are a really bad person.” The mother then took X to the stationmaster’s office and spoke to a staff member. The father observed the station employee made a telephone call. The father waited with Y for a number of minutes, but X remained with the mother. He then left the station together with Y in order to walk to the H police station, approximately 200 metres away. As he was walking to the police station, the respondent and X ran past the father and Y and entered the police station. When the father and Y entered the police station, he could hear the mother yelling to a police officer. She was saying “please help me and my son”. She then began crying. She said in a very loud voice “he’s a really bad father and doesn’t love his children. My son doesn’t want to go home with him. He is always trying to hurt me and my son.” The mother then said to X “tell the police you don’t want to go home”. X then said “I don’t want to go home. My dad is a mean person.” The police officer spoke to X. The mother again said “he’s a bad father and doesn’t care or love his children.” X was spoken to by a police officer. He would not go home with his father. The police officer acted as a broker between the parties and the mother agreed that she would attend to changeover at 7.00 pm at H train station on Monday night.
The father was permitted to speak to X in the presence of a police officer. However, his mother remained eyeshot and X kept his eye on his mother. The mother was speaking but the father could not clearly understand what she was saying.
On Monday 11 February 2013, the father sent a text at 5.33 pm to the mother saying “please ensure that [X] is at the [H] train station at 7.00 pm. I will pick him up.” The mother replied at 5.53 pm “[X] doesn’t want to go home with you and I can’t force him as I already tried. But he still doesn’t want to go back to you.” The father attended the H railway station at 7.00 pm as agreed. He waited approximately 30 minutes but neither the mother nor X attended.
On 12 February 2013 at about lunch time, the father received a voicemail message from the mother about returning X to him. There were a number of messages between the parties and at 7.00 pm at N railway station, the father collected X. The father said to X “is everything OK. What has happened?” X replied “I don’t want to talk about it. I’m not allowed to talk about it.”
On Sunday 17 February 2013 after the father collected X from his mother, X said to him “you wait to see what’s going to happen, you should be very scared.”
On 12 June 2013, the father collected X from KT, an after school care facility. He spoke to the director, Miss K, who told him something.
The content of what the father was told subsequently came into evidence as Exhibit H7. This is an incident report produced under subpoena by the KT organisation. It is a very detailed report, which purports to set out verbatim discussion which X had with staff members on 12 June 2013. Amongst the statements made by X, the following were included. In relation to his father he said “he’s mean to me, he doesn’t love me. “ “I don’t love my dad, I have to pretend that I do. I just have to pretend to be quiet for a while. I want to live with my mum.” X then spoke about Ms P and his concerns relating to Ms P and Y. When he was asked “who’s [Ms P]?” he replied “It’s just this girl” and “I’m worried and my mum’s worried that [Ms P’s] going to try and take [Y]” and “it’s mum’s friend, but they’re not friends anymore. She’s one of those boys those now a girl, you know those ones? She’s gay you know. She’s going to try and steal [Y].” X was asked why he would think that. He replied “she said it once to my mum. She said to my mum that she was going to take [Y]. She said you can have [X] and I’ll have [Y].” X also said “she meant it, she’s dirty.” X told the KT workers “One time my dad put me in a dark room. A dark room without lights.” In answer to where the room was, he replied “in the living room. There were no lights, not even from the computer.” X told the workers “my dad used to hit my mum in the past.” He was asked did he see this and he said “no, I never saw my dad hit my mum” and “well you can’t hear someone punching, but I hear bangs.” X also told them “I think my dad raped my mum.” and “She told me that he raped her and she showed me bruises. She showed me some bruises from where he hit her as well.” When asked whether he ever saw any of this, he said “no, all I saw was one time she was screaming at him that he makes her his slave and she has to bow down to him. And that’s not OK. And he threw a bowl of rice against the wall and is smashed to the floor. He also says that I’m a liar and he said in a Court of Law that there was something wrong in my head. Who would say that? What sort of father would say that? Do you think a real father would say something like that about their own son?”
Did the father abuse the mother physically, sexually and psychologically during the cohabitation? Was he guilty of financial coercion and manipulation and emotional abuse of the mother during the cohabitation or since?
I have addressed this issue under s 60CC. To the extent that the issue is wider than that later addressed by me I find I am not satisfied on the requisite test that the father has sexually or psychologically abused the mother. I am also not satisfied he has been guilty of financial coercion. There was very little evidence about this last aspect of the allegation. I accept that she had a second credit or access card to the parties’ funds which she was permitted to use. She complained he was particular about how she spent the money. If he was that is understandable in the financial circumstances in which the parties lived.
I accept the father’s evidence that on the day of separation that the mother threw her cards at the father and said she did not want his money anymore. Further the mother’s own admission is that she had $9,000 in funds available to her at the time of separation.
Was the mother angry and volatile towards the father and the child X after the birth of the child Y?
This is really no longer an issue as the mother has agreed that she probably was. The records from L Support Service support such a conclusion.
Has the mother emotionally manipulated the child X?
I conclude that the answer to this question is yes. Whether consciously or otherwise, this has occurred. I find the mother was very angry following the separation and particularly once she realised both her children were being cared for by the father. She considered this was against the natural order of things and she held the unmoveable belief that she should be caring for the children full time as she was the mother. She was, I am satisfied, unrestrained in what she told X about the dispute between the parents. She gave him information which was designed to have him believe she was the victim of the father’s behaviours and that she had been removed from the former matrimonial home and prevented from returning.
The result of the mother’s actions and words with X is to have alienated him from his father. Such an action in my view is a cruel and abusive thing to do to a child. She has continued, since the alienation was created with the child, to entrench that position and I am satisfied the good work which the people at the Q organisation have endeavoured to undertake with her has only moved her slightly into a position of understanding what she has done. I take the view she will need a considerable amount of further therapy to be able to have a proper relationship with the child X, one that permits the child to be able to achieve what the Act requires, namely the ability to have a meaningful relationship with each of his parents.
Has the child X displayed protective parenting behaviour towards the child Y?
There is evidence to conclude that he has displayed this trait. I accept the father’s evidence that he does not seem to display this in his care. I accept that he has displayed this type of behaviour in the presence of both parents. I accept that this has been the topic of conversations X has had with Dr R and others.
The next question is why? That is difficult to answer. I accept he will have a natural affection for Y and also given the age differences he will want to ensure Y is safe. However I also consider X’s concern is linked to matters his mother has enlivened in his consciousness such as her concern about Ms P and a desire to parent Y. He is also very aware that she does not feel a whole parent by the current circumstances in which the children are cared for.
Section 60CC Considerations
This case was commenced before 7 June 2012 when amendments to this section came into effect. I will therefore address the section as it existed when this proceeding was commenced on 8 March 2012.
Before commencing to address the matters required to be considered under this heading I set out that throughout this judgment I have highlighted important pieces of evidence which inform the matters listed hereunder. I will not repeat the matters highlighted as the judgment is already voluminous. I here record however that I have taken into account particularly each of the matters highlighted in considering the following matters.
Primary considerations
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
This is a very real concern in this case. X, the 12 year old child of the parties, is showing that he has become alienated in his affection for his father. This is in a circumstance where there is no evidence to support a proper basis for his rejection of his father other than a preference for his mother’s style of parenting, which, if I can accept her evidence, is very unstructured and without any real sanctions.
Since the separation the children’s time with their mother has been limited. The bulk of the time since March 2012 that they have spent time with her has occurred on weekends. They have not experienced her care during the normalcy or ordinary weekly living. They have not had to comply with her direction in preparing for school five days a week, ensuring X has completed homework and other activities which can cause conflict in parent child activities. They have only experienced the relaxed weekend time with her. In saying that I acknowledge that the mother has had to have the children out of bed at 5.30 am on Monday mornings to be able to have X at school on time. She says he does that without complaint.
I conclude that the circumstance which now exists for X has largely arisen from the mother’s poor parenting capacity. I will address that matter later.
Whereas it is true to say it is very rarely that circumstances in the relationships in a family are entirely the fault of one party, in this case the current relationship between X and his father is very significantly brought about by the parenting of the mother which has been created by her emotional and psychological state. I accept Dr R’s diagnosis of the mother’s mental state as set out earlier in these reasons.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
In this case I conclude it will be very important to protect the children from the mother’s parenting which I conclude has been psychologically abusive. Until she achieves real insight into what she has done to X and develops the ability to alter her parenting to relieve him of the adverse aspects of same the children will both be at risk of further abuse at her hands.
Additional considerations
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views
The view of X is recorded in many places in this case. I accept he very strongly asserts he wishes to live full time with his mother and have no contact with his father. I do not accept that is what he really desires nor do I consider it would be in his best interests.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The mother has a very strong and close relationship with each of the children. The children clearly love her and she has a great deal to offer them as a parent. Unfortunately, as set out in many places in these reasons her parenting also has an abusive aspect to it.
The father has a close relationship with each child. Y has been predominantly in his care since April 2012. X has been in his predominant care since the separation in March 2012. I am satisfied he loves and cares very much for both children. The problem in this case is that because of the abusive aspect of the mother’s relationship with X that child has been voicing opposition to being cared for by his father. He has been acting in a manner to fully support his mother in the parental battle. It is important to understand exactly how X feels about his father.
X is in his final year of primary school. On all reports he is a popular and successful student. He has been appointed Vice Captain of the school. There is no suggestion of any acting out by him or any misbehaviour. He has demonstrated some sadness as was evident to the after school care workers at KT.
The father reports that X has told him of his preference to live with his mother. The ability of X to make such a statement to his father must demonstrate he was at least confident the reaction from his father would be measurable and tolerable from X’s perspective.
The father says, and I accept, that X’s behaviour is oppositional in the day or two after he has spent the weekend with his mother. He says that X then returns to his normal cooperative and friendly disposition. I accept that evidence. That evidence is also corroborated by the paternal grandmother.
I conclude that the fundamentals of the relationship between X and his father are still intact. That is mutual love and respect. I conclude that the child is bearing the enormous pressure which the mother has placed upon him to satisfy her need to be “a whole person”. That is I conclude the mother is feeling she cannot be a “whole person” without being the full time carer (or predominant carer) for her children. I also conclude that the child has been made to feel responsible for his mother’s safety. I am satisfied that the mother has by her words and actions inculcated into the child’s mind that she has been the victim of the father’s behaviour. I am satisfied the mother has no proper basis to believe she has been victimised by the father or that the breakdown of the relationship was in no way attributed to fault or failings on her part. Having said that I am not naïve enough to conclude that the father has played no part in the downfall of the relationship. He has agreed that he was unfaithful during the marriage and if it was possible to properly scrutinise why the relationship failed I feel confident it would be concluded each party has played a significant part. The relevant and very significant difference is that the father has not parented the children in a manner which has resulted in either rejecting the mother.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I am satisfied the father is willing to facilitate and encourage a close and continuing relationship between the children and the mother. So much is established by the history of the children’s relationships with each parent post the separation. As stated throughout these reasons the mother has not been able to demonstrate she has the ability to facilitate such relationships between the children and the father.
A particular piece of evidence from the mother informs this consideration significantly. The mother was unable to articulate any real benefit the children might receive from having a relationship with the father. Further in an interview with Dr R she said she thought the father was “a lovely guy”, however, in cross-examination she was asked whether she still considered the father was “a good guy” and she said no.
I should add here that I conclude quite a significant aspect of the mother’s harmful parenting has arisen because she has accepted as true every adverse report the child X has given the mother about the father. The mother has accepted as true some plainly ridiculous allegations made by the child in relation to both the father and the paternal grandmother. These include that the father had told the child to steal another person’s thongs while the children were at a beach with the father. It also includes that the paternal grandmother locked the younger child in a car and left him there sleeping while she attended to speak to a Family Consultant who was preparing a report for this court. It is quite clear to me that the mother has no ability to consider objectively what the children say to her and determine if it may be untrue.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The matter which is perhaps the most important, amongst many other very important considerations, informing this consideration, is the possibility that the children will become completely alienated from their father during their childhood. The question is posed as to whether the mother can tolerate the children having any relationship with the father into the future.
If the children are placed in the predominant care of the father I conclude there is a very significant prospect that the alienating aspect of the mother’s parenting will continue and the children will be unable to withstand same. It is clear that the mother has been very successful in interfering in the nature of the relationship between X and the father. Y is still young enough to have been largely protected from the mother’s behaviour, however that will change in the near future as he is reaching an age where he has more understanding of the antipathy the mother has towards the father.
If the children remain in the principal care of the father in circumstances where they can enjoy some weekend time with him there is a chance that he can turn around the relationship with X. They are both to engage in therapy as recommended by Dr R and I have an expectation that the therapy may have already begun.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
This is potentially a problem in this case because of the geographical distance between the parent’s residences. The father lives on the lower north shore of Sydney and the mother lives somewhere around the southern suburb of MN. The mother does not have access to a motor vehicle and therefore necessarily travels by public transport. This then provides a practical difficulty in having the children to school on time if they spend the weekend with her or any overnight which requires attendance at school the next day. Presently she has the children out of bed at 5.30 am in order to deliver X to school on Monday.
The mother’s evidence is that she may be able to obtain accommodation closer to where the father resides if she can achieve economic independence and find a place with affordable rent.
The father is renting the accommodation he currently has. He has rented that accommodation for many years. He plans to acquire a property with his mother in the future which will be large enough for them to occupy with the children. That accommodation may well be not in the area where he currently resides.
The effect of all the above is that in the future one of the parents may find themselves having to travel some distance to deliver children to school. Given that the father does have access to a motor vehicle the probability is that it is the mother who will be hardest hit by such a circumstance.
(f) 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
The capacity of each parent has been the subject of significant evidence in this case. The conclusion I reach is that the mother has a serious incapacity to properly and adequately parent these children. That inadequacy lies in the area of her alienating the children from their father. At the moment the child Y appears to be unaffected. The child X is very severely affected. The determination I make under this heading has been informed particularly by the evidence which I have highlighted in these reasons. I find the mother does have the capacity to provide for the children’s physical needs.
I find the father has the capacity to properly provide for all the children’s needs. That is that he can provide for those needs at an adequate level. He has demonstrated that since the separation in March 2012.
The children’s paternal grandmother also has a significant role to play in the children’s lives. I find that she has demonstrated that she can attend to all their needs at an adequate level.
In this hearing the capacity of the paternal grandmother has been questioned arising out of an incident which occurred at the school. In this incident the grandmother was collecting X from school at a time when the mother was present. When X was in the grandmother’s car he was very rude to her. This occurred before that had departed the proximity of the school. The grandmother could see the mother was waiting to catch a bus. The grandmother told X his behaviour was unacceptable and ordered him out of the car.
The paternal grandmother was cross-examined about this incident. She clearly regretted the reaction she gave. I accept it is unlikely she would respond in such a manner in the future. She now clearly accepts X can be rude, a matter she did not, I believe, really appreciate when this incident occurred.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
The children are aged 12 and four years. They are both males. Their mother is Thai by birth. Their father is Australian of European background. The children have a great opportunity to live in the Australian culture and learn about the Thai culture. The father clearly admires the Thai culture and other aspects of Asian lifestyle.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not applicable in this case.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This topic has been addressed extensively when addressing other aspects of s 60CC and/or the issues which were identified by the parties. I find the father has demonstrated a proper and appropriate attitude towards the children. He has supported and encouraged their relationship with their mother. The mother has failed to do the same.
The father has failed in one respect in relation to this topic. That related to the payment of child support. He has now largely remedied his irresponsible behaviour however I need to note that there was a very considerable amount of time where he had the capacity to pay child support and failed to do so, notwithstanding he had been assessed to do so.
(j) any family violence involving the child or a member of the child’s family
The evidence of family violence which has been capable of being given weight in this case is capable of being confined to two specific incidents. The first is evidence given by the mother that the father had thrown a bowl (or plate) of rice onto the floor. The second is an allegation by the mother that the father had pushed her causing her to injure her knees on the day she left the former matrimonial home.
I accept that the mother was injured in the area of her knees on the day of separation. I do not accept this occurred as a result of an assault by the father. I accept she was injured when she fell whilst trying to wrestle her handbag from the father’s grip. I accept the father may have thrown a rice bowl on the floor as part of an argument with the mother.
The mother also made allegations that the father had injured her with a large teacup and had also punched her on the arm. I am not satisfied this occurred.
The mother also made some direct and indirect accusations that the father had controlled her behaviour by threats of doing her harm. She said this in particular about why she told the L Support Service staff the father had never assaulted her and was a good husband. I do not accept that the father controlled the mother in the manner she asserts.
(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There is no family violence order in place. There was a temporary order made however that was dismissed at final hearing.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
It is preferable in this case to make a final order if that is possible whilst providing orders which comply with a determination of the children’s best interests.
(m) any other fact or circumstance that the Court thinks is relevant
It is trite to say this is a very difficult case to decide. I am very satisfied the mother has a major deficiency in her parenting which causes harm to the children. That is as set out above.
Added to the above, the mother now has accommodation provided through the Q Organisation the whereabouts of which she must hide from the father. The father’s knowledge of the whereabouts of that accommodation is pivotal to the mother’s ability to continue to enjoy the same. As a consequence it is absolutely necessary for the mother to ensure the children do not disclose the address or any other information about the location of the residence to the father. This all ignores the practical reality that the father could easily find the residence if he set his determination to do so.
I am satisfied that the mother has either actively informed X, or otherwise allowed him to understand, that the reason her accommodation whereabouts need to remain secret is because she is not safe from the father. The children therefore are given the message that the father is a dangerous man. The mother clearly does hold a fear of the father as was demonstrated by her oral evidence when she was questioned about obtaining alternate accommodation.
I conclude that to require children to keep a secret of this nature from their father in the circumstances of this case is unacceptable. It will continue to undermine the capacity of the father to rebuild his relationship with X and it will lay a foundation for Y to be alienated from his father as X has been.
Another matter which cannot be overlooked in this case is the abduction by the mother of Y from Australia to Thailand in March 2012. Thailand is a signatory to the Hague Convention on Civil Aspects of International Child Abduction 1980. Fortuitously the father did not have to prevail on the Central Authority to obtain the return of Y.
Another matter which is very significant in this case is the abandonment of the child Y by the mother when she took him to Thailand in March 2012. At that time the child was still being breastfed by the mother. That clearly had to cease when she left him with Ms F. That whole episode demonstrated that in a crisis the mother may well put her own needs and wants ahead of those of her children.
During the time I was hearing this matter I thought from time to time that it may be too late to try and rescue the relationship between X and his father. In submissions I raised that concern with the Independent Children's Lawyer and she submitted that it was not too late. She submitted the evidence established that the father and X did have a functional and effective relationship once the child’s oppositional behaviour subsides following his having spent time with the mother. I now agree with that submission.
Section 60CC(4) & (4A)
I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters. A consideration of the evidence satisfies me that there have only been one or two occasions when the orders of the Court have not been complied with. Those occasions occurred when the mother failed to deliver the children (principally X) after he had spent time with her.
I am satisfied that the father has complied with the orders and has provided the mother with time to spend with the children. I am also satisfied he has facilitated the mother communicating with the children as the court orders required.
Future stability of residence and also schooling I consider to be far less predictable if the children are predominantly in the mother’s care. I conclude it is probable the mother will have to move more frequently in the future that the father. That will be very important over the next ten years when the children really need stability of residence so that they may at least stay at the same school and potentially establish a circle of friends. The father has proved that stability by being able to rent the same premises for a lengthy period of time. Now he has the prospect of acquiring a property with his mother which again is likely to predict stability. The mother has no such plan or identifiable capacity to be able to acquire real estate in Australia.
Balancing of all considerations under Section 60CC and the defined issues
Balancing the matters set out in s 60CC and the evidence recited in these reasons I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.
At the end of this determination I am satisfied that the best interests of the children at this time dictate they need to be predominantly cared for by the father.
Section 61DA
This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub-s (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case the Independent Children's Lawyer and the father seek orders for sole parental responsibility to be with the father. This is based upon the submission that equal shared parental responsibility is simply not capable of being functional in the circumstances of this case. I am satisfied that the parents would be insufficiently capable of communicating at a level which could possibly lead to any consensus and would therefore expose the children to further examples of parental conflict.
I propose therefore to make an order for sole parental responsibility in favour of the father. I will however make orders which will require the father to inform the mother of certain information which she should have in order to parent the children while they are in her care.
Section 65DAA
SECTION 65DAA(1)-(4)
This section requires me to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
In this case I propose to make an order for sole parental responsibility. The order I propose to make will afford the children being able to spend weekend time and holiday time with the mother. The orders will also provide for the children to spend time with the mother on other significant days.
SECTION 65DAA(5)
At this time the parties live a considerable distance apart even though they both live in Sydney. This in particular creates a problem for the mother in that she does not have access to a motor vehicle. The consequence is that for the moment it is not feasible in the long term for her to have the children stay overnight with her during the school week.
At this time it is not possible to have orders which would see the children spending substantial and significant time with the mother or equal shared time. Before that could be contemplated the mother would have to be able to demonstrate that she can parent the children without alienating them from the father and his family. That will take time if it is capable of being achieved at all.
Presently I conclude that the parents do not have the capacity to communicate at a level which would permit them to function with an equal shared parental responsibility order. Their future capacity to be able to do so must be questionable at least until the mother is able to have insight into the adverse aspects of her parenting.
At this time an order for equal shared parental responsibility and a shared time arrangement is not in the best interests of the children. It simply could not work in a manner which would be alive to the children’s best interests.
I have a concern that the mother may not comply with some of the orders made in relation to the time the children spend with her. I am not anticipating the mother would actively disobey the orders rather I am concerned that she may strike resistance from X in returning to the father at the conclusion of a period of time the children have spent with her. I have reservations about the mother’s ability to be able to persuade the child to comply with her requirement for him to return. I also have a concern that until the mother has insight into the way in which her interaction with the children is causing them to act in a manner which sees X demanding to live with her and seeing her as a victim who needs to be “safe from the father” she will continue to invoke those responses from the child which may cause him to act with some extreme behaviour. In such circumstances the father needs to be able to relist the matter urgently to obtain further orders. Such orders may include recovery orders and orders to suspend or vary the time the children spend with the mother at least on a temporary basis. I propose therefore to reserve to the father the right to relist the matter for that purpose.
The Orders to be made
The orders to be made are intended to achieve the following results:
·Provide for the best interests of the children.
·Order the father have sole parental responsibility. I propose to require that the father seek the mother’s opinion in relation to any decision he is required to make dealing with the long term aspects of the children’s welfare. He will then have that knowledge when he makes his decision.
·Ensure that the father provides the mother with relevant information and asks for her views on matters where decisions need to be made before he makes the decision. This may well be wider than matters affecting the long term aspects of the care of the children.
·Encourage the mother to address the aspects of her parenting which are problematic for the children. I propose to provide that if she undertakes therapy to address the matters of concern relative to her parenting she should be able to apply for further time with the children if she is able to provide a report from her therapist advising that she has addressed the concerns of the Court and Dr R. Another prerequisite will be the ability of the mother to provide accommodation for the children which the father is permitted to know the address of and any necessary detail of the facilities therein.
·Provide for the children to spend some school term time and some holiday time with the mother.
·Provide for the children to have each alternate weekend during school time with the father. This will enable them to have some recreational time together, something which they have not been able to share for a long time.
·Provide for a circumstance where the children will in the future move to a more equal shared parenting arrangement in the event that the mother achieves the changes which are necessary.
·Provide for a method of communication between the parents which is best able to achieve the passage of necessary information between them without exacerbating parental tension or conflict.
·Provide for the father and the children to participate in therapy to restore parent child relationships.
·Provide for the child X to have psychological therapy or support to assist him.
·Ensure that the children’s school is, as far as possible, a sanctuary from the parents’ conflict.
·Provide a method for enrolling the children in extra-curricular activities.
·Provide for how medical dental and optical health of the children is to be attended to.
·Provide for ongoing assistance to the child Y from a speech therapist.
Costs
In the event that the Independent Children's Lawyer seeks a costs order I propose to require that an application seeking same be made in a “minute of order” form and provided to the Court and to each of the parties within 14 days of the date of these Orders. The parties will then be required to reply within seven days.
I certify that the preceding eight hundred and seventy four (874) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench delivered on 20 November 2014.
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Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Remedies
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Injunction
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