Section 4: Major long-term issues, in relation to a child, means issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e) changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
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37 The parties must make a genuine effort to come to a joint decision about the issues. The obligation to consult arises from an order for equal shared parental responsibility irrespective of the amount of time that either party spends with the children and irrespective of where each lives.
38 In this case neither party is seeking there be an order in terms of the presumption that they have equal shared parental responsibility. The father is seeking to retain some shared responsibility for issues relating to the religious upbringing of the children, any change of name and their connection to the European culture. The mother opposes any involvement by the father. 39 In terms of a change of name it appears that this step is highly likely to have already taken place. Given the relocation, the children’s religious and cultural upbringing is also likely to have been, at least in recent times, in the sole province of the mother.
40 I intend to make an order that the mother has sole parental responsibility for the children. However, the areas into which the father has sought to have some input still need to be considered. I will canvass the reasons for my decision about parental responsibility in the course of my judgment to avoid duplication.
The parties
41 During the trial the father’s love for his children was palpable. He has close relationships with his own parents. He has a coterie of loyal friends. The single expert says he is intelligent.
42 In contrast he can be an angry, aggressive and violent man. The single expert says it is probable he feels anger towards the mother. The father told both the single expert and the Court he has no interest whatsoever in the mother.
43 The single expert opined that the father is a dominant person who wants to be in control and can be aggressive towards his environment and to people. During cross-examination by the mother’s counsel, the father largely maintained his control. However, at times he was very disrespectful and challenging of her. There was thinly disguised aggression. When examples of his alleged bad behaviour were put to him, his denials were minimal and unequivocal.
44 When the father was questioned about the mother, he resorted to using some inappropriate language. This was in the face of his evidence that he did not routinely swear, particularly in front of children or women. Later in the trial the father’s mother told the Court she had never heard him swear. However, the mother said her mother-in-law would often chastise her son for calling his children inappropriate names such as little cunt and pussy cock. The father blamed the mother’s counsel for his use of inappropriate language in the court room. He said she had tried to trick him with her questions.
45 The father also accused the police and the lawyers of tampering with some hospital notes produced under subpoena. In the Court’s view, the notes of the hospital
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were completely equivocal. However, when a proposition was put to the father he had acted inappropriately at the hospital his immediate response was that others were actively conspiring against him and the hospital notes had been changed.
46 The mother is considerably younger than the father. She was about 16 years of age when they first commenced their relationship. He was about 33 years of age. The single expert says the mother tends to be immature and can act impulsively at times. 47 The mother was young and rebellious when the parties first met. She had a very troubled childhood. She was keen to involve herself in what, without much elaboration, was described as the bikie lifestyle. The mother said that at first she found their lifestyle exciting, but now, in hindsight, she saw it as toxic.
48 The father said that the mother was acceptable at the beginning of their relationship, but she changed. He said she did not think and she became a pain. She would argue with him about why he went to the Gang clubhouse.
49 Over time, and with two children to care, for I accept the mother’s initial enchantment with the parties’ lifestyle paled. I accept she was caught in a relationship which for various reasons was subject to a power imbalance. I return to this later in the judgment when dealing with the issue of domestic violence. I accept there were times when the father was aggressive towards the mother. His behaviour was impacting on the children. In the end his behaviour towards her and its impact on the children left her with little choice but to distance herself from the relationship.
50 I found the mother’s version of events more accurate and reliable than that of the father. Although some of the incidents she recounts seem incredible and may offend most people, this by itself is not enough to doubt her version. She denied making up events she recounted. She said she did not have to make them up as the truth itself was bad enough. I accept there is likely to have been some imprecise recounting of history by the mother and also some exaggeration. I take into account her immaturity and her young age at the commencement of the relationship. However, by and large where there was a conflict in the evidence I preferred that of the mother. She made appropriate concessions and admissions against interest.
51 Some of the father’s evidence did not marry with other less subjective observations. He described his relationship with his daughter, [A], who was born in September 2003 in glowing terms. He said that A loved him and they got on well together. He said he saw A all the time. He told the single expert he does not spend time with her overnight as she is close to her mother. His assessment of the relationship ran counter to the single expert’s observations of him with A. Mr De Rooster remarked at A’s discomfort in his presence. He said she was reluctant to go with the father and did not really speak with him. His impression was that A did not feel confident with the father and did not seem to have a spontaneous relationship with him.
52 The father was not prepared to make some obvious concessions about his own behaviour. He staunchly refused to take responsibility for any of his actions. He said his pleas of guilty to criminal charges were entered simply on advice from lawyers and in order to gain a lighter sentence rather than being a genuine reflection of guilt. He
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blamed his drug taking on the mother. He said his current rocky relationship with his new girlfriend was a result of police harassment and that incidents of road rage arose because of the wrong doing of others. Where he admitted assaults on others he said it was in retaliation. The father generally lacked credibility.
53 The father said he tried not to swear in front of the children and rarely did so. However, his friend [D] accepted that both the mother and the father swore excessively in the household. Almost without exception the father minimised every aspect of his behaviour. 54 The mother involved herself in the father’s lifestyle and at times embraced it with gusto. She is the first to admit that her own behaviours were completely inappropriate. Given her current presentation and her evidence I have no doubt that she has made significant changes to the manner in which she now lives.
Applying the facts to the law
55 I will firstly turn to the two primary considerations in determining what would be most likely to promote the best interests of child A and child B. There is a degree of tension between these two primary considerations in this case. They go to the very heart of the matter.
56 There is also an overlap of matters in some of the other considerations. Issues I have dealt with in one of the considerations could easily fall within another area.
• the benefit to the child of having a meaningful relationship with both of the child’s parents
57 It is now accepted that “meaningful” in this context is synonymous with “significant”. Thus, to have a meaningful relationship is to have an important relationship or one of some consequence. The Full Court in the matter of McCall & Clark (2009) FLC 93-405 set out what it considered to be the three possible interpretations of s 60CC(2)(a):
118. … (a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (‘the present relationship approach’);
(b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents (‘the presumption approach’); and
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(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (‘the prospective approach’).
58 The court concluded that the preferred interpretation of the benefit to a child of having a meaningful relationship is the “prospective approach”. However, the court accepted that depending upon the circumstances of the case, the present relationship approach may also be relevant. The court went on to say:
119… If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
59 The court said the legislation required a court to focus on the benefit to the child of having a meaningful or significant relationship. In order to consider the issue of child A and child B having the benefits of having a meaningful relationship with both parents some brief background material provides a context. 60 The father, who was born in …, is now … years. The mother was born in … and is now … years. In 1999 the father became a member of the Gang.
61 The parties met in 2004 and commenced a relationship. They started living together in 2005 when the mother became pregnant with child A. He was born in … The mother was 17 years old.
62 The father has had two other children; A, already referred to, and a son [G], born in May 2001. G passed away in January 2004 due to a medical condition.
63 The parties married in February 2006 and their daughter, child B, was born in … The mother was then 18 years old.
64 In September 2010 the parties separated and the husband left their home in [Place C]. As a result of an incident that is alleged to have taken place at the time, the father was charged with aggravated common assault. This was withdrawn some time after the mother was accepted into the SWPP.
65 On 8 September 2010, by agreement, the children stayed overnight with the father in Place A. The following day, on 9 September 2010, the parties went to the former matrimonial home in Place C together where an argument took place.
66 The father was charged with aggravated common assault and threats to injure, endanger or harm the mother. Again, the assault charge was later withdrawn. The father pleaded guilty to the charge of threats to injure, endanger or harm and was fined $1,200.
67 In 2010 gang crime detectives referred the mother and children to the WPU and they were subsequently accepted into the SWPP.
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68 The father commenced proceedings in this Court on 16 November 2010. The father has not spent any time with the children since 9 September 2010. They have had no contact at all with him.
69 The father says that he was a self-employed cabinet maker working from home during the time the parties were together. He says this gave him every opportunity to form a close and loving relationship with the children. He was available to assist in their care. He told the single expert he was a brilliant father. The father believes child A and child B had a very strong bond with him.
70 The mother reported to Mr De Rooster that she thought child A may have a bond with the father, but as he never really spent time looking after the children, they did not develop a very close bond. She reports that the father was often away from home and involved in motorcycle club activities. She said child B was a Daddy’s girl until he became abusive and she would then hide from him. She believed the children became scared of the father leading up to the separation.
71 The mother’s evidence and which I accept, suggests that in the year or so leading up to the separation the lifestyle of these parties was increasingly chaotic.
72 Apart from the period of time leading to the separation, I accept that the children generally had a good relationship with their father. I accept he was involved in pleasant leisure activities with them. They enjoyed this time with him. However, leading up to separation the father’s behaviour was less than ideal. I refer to the mother’s behaviour later in the judgment.
73 Examples of the father’s behaviour, according to the mother, which impacted on the quality of his relationship with the children are:
• Although the parties took illicit drugs from time to time the father increased his intake in around 2009. As a result he was not sleeping properly and was what the mother described as paranoid. He was fearful of people coming to the house. His behaviour was very controlling. • When he ran out of drugs, he would become aggressive and violent. He would damage the children’s toys in front of them and hit walls. On one occasion he hit child A with a teddy bear which had a metal rod down the back of it. This hurt the boy. He had a lump on his head and a small cut. He was then very frightened if someone waved their arms near his head. He cowered if anyone raised their hands.
• Child A witnessed his father pull his mother’s hair and hit her face. The children were in the car when he threatened to kill her on 9 September 2009. The mother deposes child A has said he wants to be able to protect her.
• On one occasion in the latter part of the marriage the father became angry with the mother and burnt all her clothes, shoes and hand
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bags. This not only occurred in the presence of the children, but the father enlisted child A’s help in burning the possessions.
• He was verbally abusive to the mother and the children. He constantly denigrated the children. The mother says the children became petrified of their father. He hit child B and on two occasions when he was screaming at the mother child B urinated in her bed. • At separation the mother says child A was leaking urine. She discussed this with the WPU psychologist.
74 Mr De Rooster assessment of child A’s relationship with the father is qualified by the fact he was unable to see the children in the presence of the father. However, from his observations of child A at interview and from psychological testing, he concluded in his report of 8 July 2011:
• Child A was not estranged or extremely rejecting of the father and had some positive projections of him; • Child A did not show intense fear or have any phobic reaction towards the father;
• Any negative feelings he had about the father were normal, realistic and developmentally appropriate, given what he had experienced; and
• On 7 May 2011 child A presented as a well adjusted, confident and well mannered child.
75 In the psychological testing child A had said negative things about and displayed negative feelings towards the father. 76 Mr De Rooster did not interview child B due to her young age, but observed her to be happy, conversing and interacting spontaneously with child A and the mother. The mother says she has not said anything negative about the father to the children since the separation. Child A has had psychological counselling since his admission into the SWPP.
77 There were times during this period when the mother’s behaviour was also poorly controlled. She was an inappropriate role model and acted in a particularly immature and damaging fashion.
78 However, she was and continues to be the unchallenged primary caregiver of the children. There was no question the children would remain with her at separation. The real issue for the Court to grapple with here is whether the relationship between the children and their father should resume and continue.
79 I am satisfied that prior to separation the father and the children had developed a meaningful relationship. I also accept that leading up to separation there was some behaviour of both parties, but especially the father, which created difficulties for the
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children. I accept what the mother says in this regard. For example, the mother said child A remembers having to fetch her clothing and shoes for burning and apologises to her. He would cower if anyone raised their arms after he was chastised by the father. She said child B was very shy and would cry if men came to the house. Child B did not talk in front of strangers. D said child B did not talk.
80 The mother says that leading up to the parties separating child A was very angry and he would break things. He was swearing, throwing things, spitting and hitting child B. She describes him having “major meltdowns”. She said child B was very withdrawn. 81 With all this in mind it is necessary to determine whether the relationship that was once established between the children and the father should be allowed to recommence and continue into the future. In doing this, the Court needs to address whether there is any benefit for the children. There is also the question of the likelihood of any threat of harm to the mother, their primary caregiver, and whether that threat encompasses the children as well. If there is any such threat, is it likely to militate against benefits that may otherwise flow from an ongoing relationship between the father and the children. If there is a threat, what is the likelihood of it being carried out.
82 On the other hand the Court needs to consider whether a complete severance of the ties between the children and the father pose a risk to their long-term emotional development.
• the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence
83 This issue arose in many different guises.
• Lifestyle generally (during relationship)
84 The mother described the parties as having an exciting lifestyle. There was considerable money coming into the household and the parties did not lack material possessions. The Court did not gain an impression of a household that operated to any set routine or that there was a great deal of daily structure. 85 The parties engaged in some drug taking together, especially early in their relationship. Each blames the other. I consider it likely that the consumption of illicit substances such as cocaine and methamphetamine happened in the household from time to time. I do not accept that the mother was the primary instigator of the drug taking, particularly as time went on. It is far more believable that the father continued drug taking both inside and outside of the family home. His drug taking increased in the latter stages of the relationship. The mother, to the single expert, said the father left drug paraphernalia around the house. She says he was dealing in drugs and made most of his money that way.