Flagg and Hall
[2016] FCCA 672
•28 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FLAGG & HALL | [2016] FCCA 672 |
| Catchwords: FAMILY LAW – Parenting proceedings. |
| Legislation: Family Law Act1975, ss.60CC, 61DA, 65DA, 65DAA |
| Cases cited: Briginshaw & Briginshaw (1938) 60 CLR 336 |
| Applicant: | MS FLAGG |
| Respondent: | MR HALL |
| File Number: | NCC 3034 of 2011 |
| Judgment of: | Judge Myers |
| Hearing date: | 1 September 2014, 2 September 2014, 3 September 2014, 16 March 2015 and |
| Date of Last Submission: | 17 March 2015 |
| Delivered at: | Newcastle |
| Delivered on: | 28 January 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Toronto Legal |
| Solicitors for the Respondent: | Gianacas Argiris McDonald |
| Solicitors for the Independent Children’s Lawyer: | Grant & Co |
THE COURT ORDERS THAT:
The children X born (omitted) 2003 and Y born (omitted) 2005 live with the mother.
The mother have sole parental responsibility for all major long term issues in relation to the children. That each party have the responsibility for the decisions as to the day to day care, welfare and development of the children whilst they are in their care.
The children X and Y spend time with the father as agreed or failing agreement as follows:
(a)During the New South Wales school terms, each alternate weekend from Friday 6.00pm until the commencement of school Monday commencing on the second weekend after school term resumes in each instance provided that during any long weekend such time will extend to cover the whole of the long weekend;
(b)Upon the expiry of six months from the date of todays’ orders each Wednesday collection at 6.00pm return to school Thursday during school terms;
(c)For one half of each of the New South Wales gazetted school holidays in terms 1, 2 and 3 being the first half in even numbered years and the second half in odd numbered years;
(d)For half of the school holidays in term 4 comprising the first two weeks and the last two weeks of the school holiday period.
(e)On Christmas Day with the father from 2.00pm on Christmas Eve to 2.00pm Christmas Day in even numbered years and with the mother from 2.00pm Christmas Day until 2.00pm 26 December.
(f)With the mother from 2.00pm on Christmas Eve to 2.00pm Christmas Day in odd numbered years and with the father from 2.00pm Christmas Day until 2.00pm 26 December.
(g)On the children’s birthday the children shall spend time with the parent whom they are not otherwise spending time with for a period as agreed between the parties and failing agreement on school days from 4.30pm until 8.30pm and on non school days from 10.00am until 2.00pm.
(h)For Mother’s and Father’s Day with the father on the whole of the Father’s Day weekend from the conclusion of school Friday until the commencement of school on Monday and with the mother for the whole of the Mother’s Day weekend from the conclusion of school Friday until the commencement of school Monday.
For the purposes of facilitating the orders the father to collect the children from the mother at (omitted) McDonalds Family Restaurant at 6.00pm on a Friday and on the Wednesday the father shall collect the children from the mother at 6.00pm from the old terminus of the (omitted) Railway Station.
For the purposes of the handover of the children between the parties on all other occasions other than as set out at order 4 above the parties shall collect and return the children from one another at the (omitted) Railway Station.
For the purposes of defining the commencement and conclusion times the commencement of school holidays shall be collection at school on the last day of school, if commencement begins during the middle of the school holidays on the first half or second half commencement shall be the middle Saturday or second Saturday at 12 noon and conclusion shall be the end of the school holidays on the day prior to return to school at 6.00pm.
The parties have reasonable contact with the children by telephone, email, skype or other electronic communication when they are not spending time at reasonable times given the children’s age as agreed but failing agreement on Thursday between 6.30pm and 7.00pm.
The parties will advise and keep one another advised of the telephone number to be used to communicate with the children within seven (7) days of any change or prior to the children being in their care whichever shall occur first.
Each party is to provide such requisite consents or authorities that may be required by any school or extra-curricular activity that the children attend for example parties to receive at the party’s own expense reports, photographs, order forms, newsletters and such other material as is normally communicated to parents of the children who attend.
Each party is at liberty to attend and communicate with any person involved in any of the children’s educational, sporting or extra-curricular activities irrespective of whether or not the child is presently living with that party.
These orders are sufficient authority for each party to obtain information including notices, newsletters, reports, photographs and the like in relation to the children from their pre-school or school.
The mother is to cause both parties details to be placed on any school enrolment form for the children and the father listed as the second emergency contact person for the children.
Each party provide such consents and authorities to allow any treating medical practitioner or practitioners to provide any medical reports or reports and discuss any treatment in relation to the child with both parties.
Each party or their nominee is to contact the other as soon as is practicable upon the happening of any of the following:
(a)One or more of the children becoming seriously ill;
(b)One or more of the children being hospitalised;
(c)One or more of the children being involved in an accident.
These orders are sufficient authority for each party to obtain at their costs information in relation to the children from any medical professional treating the children.
The parents are restrained from discussing or questioning the children about the other parent or events in the other parent’s home in the presence or hearing of any of the children or permitting any other person to do so other than an Independent Children’s Lawyer, the police, a child welfare agency, a family consultant or the counsellor or therapist appointed pursuant to these orders.
The parents are restrained from criticising or making derogatory statements to the children about any wishes they express regarding significant people in their lives.
The parents are restrained from denigrating criticising or speaking ill of the other parent his or her partner or members of his or her family in either or both the children’s presence or within their hearing or permitting any other person to do so.
These orders are conditional upon the children and parents undertaking family therapy or counselling with a counsellor or therapist nominated within 21 days of today’s orders by the Independent Children’s Lawyer after having conferred with and obtained input and guidance from family consultant Ms K or senior family consultant Ms L and thereafter attending all such appointments and treatments and doing such things as may be required by the counsellor or therapist.
These orders are conditional upon the father undertaking and completing a recognised anger management course within 6 months from the date of these orders or providing evidence of the same having been completed.
The court directs the Independent Children’s Lawyer is to meet with the children for the purposes of explaining to the children the orders the orders made today including the restraints and conditional requirements of the orders within 14 days of the making of these orders.
These orders are conditional upon the mother causing the children to attend upon school unless by reasons of injury or illness or attending a significant family event such as funeral or wedding and in the case of injury or illness providing the school a doctors certificate where illness or injury causes the children to be absent from school for more than 3 consecutive days or for more than 7 days collectively in any given school term.
The mother is to provide the children for the purposes of the Independent Children’s Lawyer explaining to the children the orders on such date and at such time as nominated by the Independent Children’s Lawyer.
The Independent Children’s Lawyers costs be reserved.
A transcript of the reasons for judgment be ordered.
IT IS NOTED that publication of this judgment under the pseudonym Flagg & Hall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3034 of 2011
| MS FLAGG |
Applicant
And
| MR HALL |
Respondent
EX TEMPORE` REASONS FOR JUDGMENT
This is a decision in parenting proceedings between the applicant mother, Ms Flagg, and the respondent father, Mr Hall, in respect of two children of their relationship, namely X, born (omitted) 2003 and now aged 12 years, and Y, born (omitted) 2005, aged 10 years.
The following orders were sought by the parties and the independent children’s lawyer at the hearing that form exhibit R in the proceedings. The mother sought orders essentially as follows:
(1) that the children live with her;
(2) that the mother have sole parental responsibility for the children;
(3) that each party has responsibility for the day to day care, welfare and development of the children whilst they are in their unsupervised care;
(4) that X spend time with the father as agreed between the parties.
(5) that Y spend time with the father as agreed between the parties, but failing agreement:
(a)during the New South Wales school holiday terms each alternate weekend from after the conclusion of school on a Friday until the commencement of school on a Monday, commencing on the second weekend after school term resumes in each instance provided that during any long weekend such time will extend to cover the whole of such a long weekend;
(b)essentially for half of the New South Wales school holidays, including for the first half of the Christmas school holidays in term 4l;
(c)particular times on Father’s Day, the children’s birthdays, Mother’s Days.
(6) handovers take place at school and where not at school at the McDonald’s Family Restaurant at (omitted);
(7) there be telephone communication between the children and the parties;
(8) the parties keep one another advised of their current residential address;
(9) each party be provided with authorities of consent to enable them to attend extracurricular activities;
(10) they be at liberty to attend on those extracurricular activities;
(11) that one another provide what the court might describe as consents to enable the parties to obtain information from the children’s medical practitioners.
(12) that the parties be restrained from travelling with the children interstate or internationally without the permission of the other parent, providing at least 30 days written notice of their intention to do so;
(13) the mother have the passports for the children, and essentially the father surrender the passports back to the mother if he returns from overseas with the children after 60 days of having returned.
The mother seeks restraints, particularly with respect to the parties discussing or questioning the children about the other parent or events in the other parent’s home in the presence or hearing of the children; or the parents permitting any other person to do so from denigrating, criticising, speaking ill of the other parent or his or her partner or members of his or her family; criticising or making derogatory statements to the children about any wishes they express regarding the significant people in their lives.
The mother seeks that X and the parents undertake counselling with Mr J and attend such appointments and treatments and do such things as may be required by the psychologist Mr J. Further orders were sought where if a dispute arises between the parties over the orders in the future the parties will act in good faith in an attempt to resolve the issues. The mother sought that the children attend the (omitted) Primary School and progress to (omitted) High School. The mother sought the court make notations to the effect that the parties acknowledge all efforts will be made to have X spend time with the father that mirror the times spent by Y.
The father sought orders essentially that he have sole parental responsibility for the said children, the children live with the father and that for a three month period the mother spend time with the children for two hours supervised by the (omitted) Contact Centre on dates and times advised by the (omitted) Contact Centre at (omitted).
At the expiration of the supervised time the mother spend time with the children:
(1) each alternate weekend from Friday until Monday;
(2) during school terms each Wednesday from the conclusion of school until 3 pm;
(3) during school holiday periods for half of the terms 1, 2 and 3 New South Wales school holiday periods
(a) in odd numbered years from 5 pm on the last day of school until 5 pm on the middle Saturday; and,
(b) in each numbered year from 5 pm on the middle Saturday until the date the children resume school on 9 am on the first day of school;
(4) for the second half of the term 4 school holidays;
(5) particular times during the Christmas Day and Christmas Eve, Mother’s Day, Father’s Day, time on the children’s birthdays.
Under the heading Schooling the father sought orders that the mother and father discuss and reach mutual agreement regarding the school that the said children attend and failing agreement the children shall attend the nearest local public school to the home the children are residing at. There are orders sought for telephone communication and that otherwise at the commencement of spend time with periods the mother or her nominee collect the children from school, but if not from school otherwise at the (omitted) Railway Station.
The father seeks orders regarding emergency notifications of one another in the cases of illness, injury or emergency; that each party advise the other of any change to their residential address within seven days of doing the same. The father seeks that the orders be taken as an authority to enable the parties to obtain information from the children’s school and also from medical practitioners, and both parents are at liberty to attend all meetings, interviews, consultations, appointments, social sporting events the parents are invited. The father asks that the court make orders whereby the parties essentially be restrained from denigrating one another or allowing any other person to do so in front of or within the presence of the children.
The father proposed a second option whereby the parties have equal shared parental responsibility, that the children live with the mother and spend time with the father as follows:
(1) during school terms each alternate weekend from 6 pm Friday until the commencement of school at 9 am on the Monday extending till Tuesday when Monday is a public holiday;
(2) that during school terms each Wednesday from 6 pm until the commencement of school at 9 am the following day;
(3) for half of the school holidays; and,
(4) times at other specific times including Mother’s Day, Father’s Day, Christmas, Easter, parents’ birthdays, schooling and the like, there be telephone communication.
The father sought additional orders that mirror the orders sought in his first proposal with respect to notifications, implementation of the orders and authorities to obtain information from education and healthcare professionals. The same orders were sought by the father with respect to schooling and non‑denigration. The father sought an order within seven days from the date of the orders the mother and father do all acts and things necessary for the parents to cause the child X to be engaged with Mr J.
A further or third option was sought by the father where he have sole parental responsibility for the children, that Y live with the father, that the mother have sole parental responsibility for X, that X live with the mother. The father sought orders as to the time that Y would spend with the mother, essentially during school terms each alternate weekend from 6 pm Friday till 6 pm Sunday, for half of the New South Wales gazetted school holidays and at other times.
The father sought orders X spend time with the father during school terms from 6 pm Friday until 6 pm Sunday, half of the New South Wales gazetted school holidays, and the mother and father ensure that the time the children spend weekends with the other parent coincides with the weekend that the children lives with that parent. Orders were sought that within seven days of the date of the orders the mother and father do all things necessary to engage X with Mr J and that changeovers occur either at school or at the side of the (omitted) Railway Station.
The Independent Children’s Lawyer proposed orders that the children, X and Y, live with the mother, that the parties have equal shared parental responsibility for the children, the father have responsibility for the day to day care of the children when they are with him, and the father spend time with the children as follows:
(1) essentially each alternate weekend from Friday at the conclusion of school until Sunday 4 pm;
(2) for one half of each school holiday period; and,
(3) during Christmas from 3 pm Christmas Day until 3 pm Boxing Day.
The Independent Children’s Lawyer sought further orders that the father communicate with the children by way of telephone at reasonable times by agreement but failing agreement each Wednesday between the hours of 6 and 7 pm; that changeovers in respect of the time are to take place at the school with the mother to collect the children from the residence of the father at the conclusion of the spend time with period; the parties be restrained from denigrating one another, and the parties keep one another informed of their current residential address.
The Independent Children’s Lawyer sought further orders that the father be at liberty to attend sporting and school activities undertaken by the children once the children commence school; that the parents must keep one another informed as soon as is practicable of any of the children suffering medical illness or injury, the children having prescribed medication, if there are specialist medical appointments with any medical doctors, psychiatrists, psychologists, counsellors or therapists regarding the children or any other matter of relevance to the welfare of the children; that the mother do acts and things necessary to authorise and direct any medical practitioner upon which the children are to attend to communicate with the father and answer any requests made by him; the mother execute any documents in order for the father to obtain information from the children’s schooling, and the parents and the children to attend upon Mr J or similar within 14 days of there being final orders.
Background
The mother was born on (omitted) 1978. She is 37 years of age. The father was born on (omitted) 1977. He is 38 years of age. The parties commenced cohabitation in or about 1997, married on (omitted) 2001 and separated in March 2011. The parties ultimately divorced in late 2012.
The parties entered into final consent orders with respect to property and parenting in the Family Court on 30 December 2011. The parenting orders in essence provided that the parties have equal shared parental responsibility for X and Y, the children live with the mother and the children spend time with the father each alternate weekend from 5 pm Friday until 9 am Monday with Wednesday overnights from 5 pm until return to school and half of the school holidays.
Specific orders were made in relation to the children spending time with both parents on Christmas Day, Father’s Day, Mother’s Day, Easter and the parties’ and the children’s birthday. Final orders were made relating to communication and what the court would describe as facilitation of the orders.
On 6 March 2013 the mother caused to be filed an initiating application that sought to amend the orders made on 30 December 2011, that in essence provided: the parties continue to have equal shared parental responsibility for the children; the children continue to live with the mother; the children spend time with the father each alternate weekend from 6 pm Friday until 6 pm Sunday; that the children no longer spend any mid-week time with the father; the mother be permitted to change the children’s school to (omitted) Public School.
The matter came before the court on 13 March 2013. On that date the court suspended the operation of orders 4.1 and 4.2 of the orders made 30 December 2011. In their place the court made orders that provided for the children to spend time with the father from the collection of school Friday, return to school Monday each alternate weekend, and collection at school Wednesday, return to school Thursday each week.
Orders were made for the children to attend a child inclusive child dispute conference and for the father to file a response and an affidavit. The matter was adjourned for interim hearing until 20 June 2013. On 3 April 2013 the family consultant, Ms J, interviewed the parties and the children.
The family consultant in her report dated 3 April 2013 set out observations including that the mother sought the children be enrolled in (omitted) Public School; that the mother proposed the children continue to reside with her and spend alternate weekends with the father, changeovers for the children take place between the parties at (omitted) or (omitted). The father proposed the children remain at the (omitted) Primary School and raised concerns that the children have changed school some three times.
Under the heading Safety Factors the family consultant noted the mother alleged a history of family violence causing her to suffer from post-traumatic stress disorder. The mother alleged the father assaulted the children on 9 March 2013 with the incident reported to police and JIRT. The mother alleged the father smokes cannabis, which the father denied.
The father alleged the mother suffers bipolar disorder and that the mother’s family have a history of mental illness that includes bipolar disorder and schizophrenia. The mother denied she had bipolar and instead advised she suffered post-traumatic stress disorder as a result of what she described as family violence perpetrated upon her by the father.
Under the heading Issues Relating to the Children, the family consultant set out that the children reported they experienced significant family violence when the mother and father lived together. The children spoke of the father hurting the mother by pushing and yelling at her. One of the children is reported as saying to the family consultant:
I used to say to Mum, “When are you going to make Dad leave?”
One child was reported as telling the family consultant that their mother said:
Daddy’s nice to you. He would never hurt you.
The children reported feeling frightened and scared when the father abused the mother and reported that the father pushed the mother down the stairs on one occasion. The children advised the family consultant that they could remember the police coming to the family home on one occasion and again to the father’s home when they came home from (country omitted).
The family consultant set out that the children reported that the father got angry at the mother when she arrived at his apartment and wanted to take the children home after returning from (country omitted). The children advised the family consultant that the father began to hurt the mother and one of the children jumped on the father’s back to stop him from hurting the mother. The family consultant sets out that one of the children stated:
When I jumped on his back he was so angry that he just flung me off.
The family consultant further reported that on 9 March 2013 the father demanded X’s password to her iPod and when she refused to give it to him the family consultant set out that the father became incensed and started to yell at X that she was a liar and that she was messaging her mother. X told the family consultant that the father hit her across the back of the head and pushed her causing her to hit her head on the edge of the top bunk and again on the wall when she fell back onto the mattress.
The children told the family consultant that Y then tried to protect X and the father grabbed Y and started to shake her. The children advised the family consultant they were not allowed to phone the mother and to wait until Monday to see her when they went home. The children further stated to the family consultant that the father had smacked them before but nothing had ever happened like that before. The children made complaint with respect to the father sleeping in and the children waiting to eat breakfast.
On 15 March 2013 the father caused to be filed a response that sought that the application filed by the mother on 6 March 2013 be dismissed. The matter came before the court again on 16 April 2014. On that date the court made orders by consent essentially as follows: that orders 4.1 and 4.2 made on 30.12.2011 be suspended; that the father spend time with the children during school terms each alternate weekend from 6 pm Friday until return to school Monday and each Wednesday from 6 pm until return to school Thursday; orders relating to the facilitation of the orders and that the children change school to the (omitted) Public School.
The court made further orders for the appointment of an Independent Children’s Lawyer.
Following the making of the orders the mother ceased providing the children to the father as she alleged the father was harassing the children about statements that they had made to JIRT. The mother alleged the children were scared of the father and that the Department of Family and Community Services had advised the mother not to facilitate time unless such time was supervised.
The matter came back before the court for directions on 5 August 2013. As a result of orders made on 16 April 2013 Mr Grant was appointed the Independent Children’s Lawyer. Orders were made for the preparation of a family report and the court made orders without admission by consent that provided: (a) the father would ensure his partner, Ms D, is present at times when the children are spending time with the father; (b) the father shall not be required to have his partner, Ms D, present during trips he makes with the children collecting or returning them to school.
On 31 October 2013 the family report was completed by family consultant Ms K. The report was prepared following the family consultant having met with the mother, the father, the mother’s partner, Mr G, the father’s partner, Ms D, and the children. The family consultant read the documents that had been filed by October 2013 by the parties, and had read a considerable amount of subpoenaed material.
The family consultant set out the background of the dispute between the parties and set out her understanding with respect to the current living and spending time with arrangements. The family consultant provided details of her observations and opinion.
The mother told the family consultant she had sought to facilitate time with the children and the father between May and August although on a supervised basis. The father reported to the family consultant that the children appeared to struggle emotionally with transition periods between handovers. The father indicated to the family consultant his belief the mother interrogated the children after returning to the mother following having spent time with him. The father indicated he doubted the mother’s willingness to comply with court orders.
In contrast, the mother indicated she believed the children were comfortable spending time with the father in the presence of the stepmother and indicated they would be scared if the stepmother was not present.
The family consultant articulated what she understood to be the parties’ respective positions and proposals as set out at paragraphs 15 and 17. The mother sought the children’s time with the father be reduced with time to take place from 6 pm Friday until 6 pm Sunday. It was unclear to the family consultant whether the mother sought the father’s time be supervised by his partner, described by the family consultant as the children’s stepmother.
The father indicated to the family consultant that he had initially sought the mother’s application be dismissed but had changed his position to one where he sought the children live with him, that he have sole parental responsibility for the children and the children spend supervised time with the mother at the (omitted) Contact Centre.
The family consultant noted that the father indicated that while he was happy with what were then the current arrangements 12 months prior to the proceedings, he had changed his attitude where he felt the mother was undermining him, making constant allegations. The family consultant noted the father’s concerns with respect to the children and others being put at risk of physical and emotional harm if the children were removed from the mother, and further that the father would be guided by the court in respect to the time the children might spend with the mother if there was a change whereby the children live with him.
The family consultant summarised the issues in dispute between the parties as being whether there is an unacceptable risk of physical and emotional harm for the children in the father’s household and whether there is an unacceptable risk of emotional harm for the children in the mother’s household due to alleged concerns the mother is seeking to undermine the children’s relationship with the father through false allegations.
The family consultant outlines the various complaints made against the father that relate to family violence allegations made prior to final separation and then following separation that, in essence, provide complaints of the mother being verbally abused and denigrated through the parties’ relationship with the family consultant setting out the mother said the father would say, “You are worthless, stupid and the only thing that will fix you is a bullet”.
The mother alleges that following Y’s birth the father would yell at and be critical of the mother and would pin the mother down on the bed and if he kept getting angry he would punch the side of the bed or punch her or push her into the bathroom. The mother alleges that in 2007, X witnessed the father pushing the mother into the bathroom, kicking her and locking her in the bathroom.
The mother further alleged to the family consultant that in 2009 the father pushed the mother into the bathroom and kicked her. The mother alleges that on another occasion the father held the mother down, kneeling on her legs, holding her arms with one hand and punching her. The mother alleged X witnessed the 2007 and 2009 incidents.
The mother alleges the father made negative comments about Y following her birth and that the father attempted to enter the home on 28 February 2011, yelled abuse, banged on the doors and windows and threw rocks. The mother alleges that on 1 March 2007, the mother allowed the father into the home to collect some items whereupon the father started yelling at the mother, pushing her up against the wall.
The mother alleged that she attempted to call the police, that Y witnessed what was happening and the father grabbed the phone and called the police. The mother indicated to the family consultant that the police attended the home, that the father was escorted from the home and that she had not informed the police about the incident of violence due to what she describes to the family consultant as her fear for her safety.
The mother alleges that on 3 March 2011 the father telephoned her and stated, “I’m not fucking going to calm down. I’m going to come over there and bash the fuck out of you. You just wait until I leave work. Fuck, I’m going to come over now”. The mother further alleges that on 27 May 2011 the father and the mother pushed each other at a handover.
The mother alleges that she was physically assaulted by the father on 3 June 2011, causing the mother bruising on her right shoulder, large bruises over her right hip and on both thighs, and that both the children have witnessed the father assault the mother.
In an affidavit filed 6 March 2013, the mother alleges that on 21 November 2011 the father had attended upon the mother’s home to discuss consent orders, that the father became violent, pushing her up against the kitchen cupboards and thereafter sexually assaulted her. The mother alleges the father said, “Sign them or you’re dead”, and that the mother was so scared that she signed them.
In an affidavit filed by the mother on 28 March 2013, the mother alleges the father threw her down on the floor, banged her head against the cupboards, sexually assaulted the mother, continuing to bang her head against the doors. The mother alleged she passed out and she woke with the father standing over her with a letter to sign.
On 21 February 2013 the mother alleges that she was in the bathroom, was pulled off the toilet, hit twice over the back of the head with a bottle twice by an unknown assailant. The mother alleges the assailant said to her, “You’re a bitch. You’re the bitch that has been causing all the problems. This is a special delivery. I will be coming back to kill Mr G”. The mother alleges that the assailant then threw a card that the mother had some time prior made for the father, at the mother on the floor. The mother is alleged to have lost consciousness and stopped breathing for a period.
The mother alleges that on 5 March 2013 the mother received a telephone call from a person stating that she would regret going to what she described as, “Your little meeting with your pathetic solicitor today”, in addition to other threatening comments.
The mother further alleges that on 12 March 2013, the mother had been sitting in a car after having made a complaint to the police about events that took place on 21 February 2013 that the court would describe as the earlier bottle attack and in relation to allegations that the father assaulted the children. It is alleged by the mother that on that date in essence that the mother was seated in the driver’s seat of the car. An unknown person opened the car door and rammed or pushed forcibly into the mother’s mouth a cake containing codeine tablets; that the mother is allergic to codeine and was told to, “Eat this, bitch”.
The father denies each and every allegation made against him by the mother and the children. The family consultant notes that the mother was until 2003 taking antidepressant medication. Subpoenaed material suggests that on 4 July 2004 the mother attempted self-harm following difficulties with the child suffering with a common cold. In March 2006 the mother was convicted of shoplifting items with a minimal value of some $89.18. What is apparent from the material is that the mother was struggling emotionally at that time.
The mother alleges physical family violence by the father in 2007, allegedly witnessed by X, and then further physical violence by the father in 2009. While the father denies these incidents, he did during the course of the family consultant’s interviews advise the family consultant the tensions in the relationship began to emerge in or about 2009 and that the tensions related to financial issues as he felt the mother was not consistent in her employment.
This view of the mother was one adopted by the father when there was a clear background of the mother struggling emotionally. The father revealed to the family consultant that the pregnancy resulting in X’s birth was not planned, causing him worries about what he describes as financial management or matters, and that following X’s birth financial concerns continued and the mother suffered serious health issues including fainting and fits.
The father admitted that the mother was at that time depressed and not coping. It would also appear that while the father loves Y, he was well less than supportive of the mother when she became pregnant for the second time. The parties separated for a number of months from late 2009 until the middle of 2010. The mother alleged this occurred because of the father’s negative comments about Y. The father alleges it was because of financial pressure.
Whatever the case may be, the court can easily find that as of late 2009 the parties were in a turbulent, dysfunctional relationship. Annexed to the mother’s affidavit filed 1 August 2013 marked with the letter I is a letter of Mr D dated 6 December 2012. The letter is important as it provides an insight into the parties’ relationship as at the time the parties separated and then resumed their relationship in 2010.
The letter is dated 6 December 2012, signed under the hand of Mr D provides:
To whom it may concern.
I’m not able to supply definite dates of specific details that were raised during our sessions with Ms Flagg and Mr Hall as my former case files have been shredded due to us moving and our policy of not keeping notes for longer than 12 months. However, I do recall there were a number of sessions around the middle of 2010 and the relationship had some power and control issues. I offered suggestions on how things could be done differently and explained to Mr Hall a model on anger.
I worked with the couple’s dynamics and possible power imbalances within the relationship. I do this work where anger or power and control issues may be present in the relationship. I met with Ms Flagg on 5 December. It was obvious she had been under extreme stress. Ms Flagg told me she had let Mr Hall come back home with the provision that they came to counselling. Ms Flagg brought with her the homework I had suggested when I saw them and this again highlighted there were control issues in the relationship.
As standard practice, both Ms Flagg and Mr Hall were given the following tasks: (1) describe your view of a typical day in your life; (2) describe how you and your partner deal with conflict; (3) describe what you would like to change within your relationship. Based upon the responses by Mr Hall and Ms Flagg I assigned individual homework tasks. The homework tasks for Mr Hall focused on anger and control issues in addition to tasks to promote appropriate communication and behaviour.
The homework tasks for Ms Flagg focused on assertiveness in addition to addressing her insecurities and fears arising from the nature of the relationship. I’m not trained to do assessment or diagnosis of an expert nature. However, I did use some descriptive words to describe to Mr Hall how he may need to change to have a more functional relationship. I’m writing this letter to assist Ms Flagg as I feel she is genuinely under enormous stress and needs as much support as possible.
What the letter reveals is a relationship different to that proposed by the father. The father’s suggestion that the parties were having difficulties relating to financial concerns and that the father may have been nervous and worried about how the parties would financially cope are inconsistent with the letter Mr D where he writes:
I explained to Mr Hall how things could be done differently and explained to Mr Hall a model on anger.
And then later writes:
The homework for Mr Hall focused on anger and control issues in addition to tasks to promote appropriate communication and behaviour.
The family consultant noted at paragraph 33 of her report that both parties agreed that when they reconciled their relationship they felt the other had changed; however, things deteriorated with both parties alleging the other party returned to their past behaviours. On a holiday to (country omitted) following the parties’ reconciliation the father alleges the mother in the words of the father “went nuts”, and hit him, going crazy.
The police attended upon the mother’s home on 1 March 2011. COPS entries from the date note the father having cut off the mother’s mobile phone and home phone and the father making allegations the mother was having an affair, and there were financial problems. The court notes that the mother indicated she failed to advise the police of having been physically assaulted by the father out of fear. Some two days later the mother phoned the police in fear making complaint that the father was coming to bash her.
The family consultant notes the police wrote that the mother appeared to be terrified, crying, shaking and hugging herself, rocking as she recounted what had happened. The family consultant noted that the mother indicated to the police while the father had not hit her before the mother disclosed the father had physically intimidated her before and “had knocked me around”, in her words. The family consultant points out the inconsistencies between what the mother told the police and that as set out in the mother’s affidavits alleging previous serious assaults.
The family consultant noted that the mother advised the police she did not want the father charged but instead wanted the protection of an apprehended violence order. This complaint came two days after the police had visited upon the mother’s home where the father alleged the mother was having an affair. Of particular note and weight is the comments made to the police by the mother that she had no fear for the physical safety of the children but feared they would witness subsequent violence by the father.
The comments by the mother to the police are not suggestive of the mother making false allegations against the father for the strategic purpose of preventing him spending time with the children. The mother states to the police she did not want the father charged. The mother’s presentation on the papers was, in the view of the court, consistent with a person being subjected to family violence perpetrated by the father.
On 27 May 2011 the mother contacted the police following what the family consultant notes to be a verbal altercation with the father after the children’s return with the father from (country omitted). While the mother failed to disclose to the police physical violence, the mother suggested to the family consultant in the interview for the preparation of a family report that the police contacted her the following day stating that they were concerned there had been violence.
The mother attended upon her GP on 3 June 2011 indicating she was fearful for herself and the children. The doctor noted the mother had bruising on her right shoulder, large bruises over her right hip flank, sacral area, and also anteriorly on both thighs. The family consultant also noted that both the children were seen by the GP and that the notes suggest the children witnessed an assault upon the mother. The family consultant notes that the mother attended upon the police.
The police noted some bruising on the mother but also noted that the mother had kept her jacket on so as not to show the police any of her injuries. The mother indicated to the police that she had not advised the police earlier of the assault as she was fearful of future assaults. The mother spoke to the police of having been pushed and grabbed by the father. The police decided to charge the father with assault and/or assault occasioning actual bodily harm.
The mother suggested to the family consultant that she was in fear, wrote to the court and did not attend the court hearing resulting in the charges against the father being dismissed. The mother’s behaviour is, in the view of the court, suggestive of somebody seeking to minimise violence being perpetrated upon her as opposed to somebody making up allegations for the purpose of preventing the children having a relationship with the father.
The father is noted by the family consultant to strongly deny the assault and suggests that the bruising may have been inflicted by some other person or have been self‑inflicted. The children were interviewed by Ms J on 3 April 2013 and provided specific account of them having observed the father hurt the mother, one of the children having jumped on the father’s back to stop him from hurting the mother, with the father getting so angry he flung the child from his back.
In cross‑examination of the father on the topic, found at page 34 to 35 of the transcript of proceedings on 16 March 2015, the father conceded that he had seen photos of the bruising alleged to have occurred during the incident on 27 May 2011, but had no idea how that came about. The father did concede that he had attempted to push the mother out of his unit, picking her by the armpits and walking her out the door. Counsel for the mother asked the father the following question:
Would you agree that there had been a lot of violent confrontation between you and Ms Flagg in the presence of the children, a lot of angry outbursts, a lot of shouting, yelling at each other?
The father has answered:
Yes, that did happen.
The court has heard and considered the evidence of the mother and that of her partner given during cross-examination. The evidence of the mother in relation to having been hit over the head with a bottle is such that the court has serious doubts as to the mother’s version of that event but is unable to find whether the event did or did not take place.
Cross-examination on the topic of the incident where the mother alleges a person attempted to cause the mother to consume codeine is such that the court holds significant concerns that the mother may have fabricated those allegations. Such concern is held by the police who set out in their records:
Police have strong belief that the victim was pretending to be unconscious and that the alleged incident was fictitious.
The court notes that a codeine pamphlet was discovered in the front of the vehicle by the police and there were serious inconsistencies in the evidence given by the mother’s partner with respect to the way in which the vehicle’s doors were locked that lead to the court to the conclusion that the incident is unlikely to have occurred.
While the court holds such concerns, the court does not make the finding that the mother fabricated the allegation. It is very much an extremely bizarre allegation made in the context of proceedings in which on the mother’s and father’s evidence the children have been exposed to family violence.
One of the most disturbing of the allegations made by the mother against the father is that where he sexually assaulted her whilst attempting to coerce the mother to execute what might be described as terms of settlement. The allegation is one that suggests the father sexually assaulted the mother as a means of degrading and dominating the mother enforcing what might be described as a significant power imbalance.
The court is mindful of the seriousness of the allegations and conscious of employing what is often described as or referred to as the Briginshaw standard or principle as set out by the High Court in the case of Briginshaw & Briginshaw (1938) 60 CLR 336 where at pages 361 to 362 the court held the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independent of any belief in its reality. At common law it is enough that the affirmation of an allegation is made out to the reasonable satisfaction of the court.
The court has considered the allegation the mother made with respect to the alleged sexual assault. The court is unable to make a finding that the alleged sexual assault did or did not take place.
The children gave significant accounts about having witnessed family violence perpetrated upon the mother by the father. The children reported to the family consultant, Ms J, that on 9 March 2013 the father demanded X’s password to her iPad and that she refused to give it to him. They said the father became incensed and started yelling at X that she was a liar and that she was messaging the mother.
X stated to the family consultant that the father hit her across the back of the head and pushed her where upon she hit her head on the edge of the top bunk and again on the wall where she fell back onto the mattress. The children said that Y then tried to protect X and the father grabbed Y and started to shake her. The children indicated they were not allowed to phone the mother and had to wait until Monday to see her when they went home.
The mother suggested that she took the children to the police station to report the assault. The children said the father has smacked them before but nothing has ever happened like this before. The father reported that he had never smacked the children and they had fabricated the story with the assistance of the mother.
The mother began to take the children to see a person by the name of Dr M. Having regard to the various transcripts of interviews between the children and Dr M, the court calls into question the therapeutic benefit of the relationship between the children and Dr M when on the face of the volume of material on the subject it suggests that the mother has engaged Dr M as an interviewer and recorder of the children’s experiences as opposed to a provider of beneficial therapy to the children.
At paragraph 119 of Ms K’s family report she sets out that both the children have been interviewed about alleged concerns in the father’s household on a number of occasions: Dr M; by the family consultant Ms J; JIRT; and, the, of course, family consultant, Ms K. The family consultant made a decision not to again interview the children about past incidents and opines that consideration may need to be given to the potentially negative impact on the children of being repeatedly interviewed, and a restraint placed on the children being reinterviewed.
During the course of the interview by Ms K she noted that X was then aged 10 years, four months of age. She presented as an intelligent, articulate and open child. She did not appear to be anxious nor concerned about the interview process. X said that she thoroughly enjoyed her new school but she wished she did not have to go to the mother’s home before school to get changed into her school uniform. X indicated the father and stepmother take them to a lot of fun places. X said however that:
Dad stills yells at us if we say something to Mum that he has done like if he has been mean and Ms D says mean stuff about Mum.
X said she tells her mother about it and the mother tells her to just ignore it. X said that her parents have not gotten on “for as long as I can remember”. She said that:
Dad gets angry at Mum for pretty much everything.
X said that she had not noticed her Dad act this way with the stepmother and, “They are fine when I am there”. X said that the stepmother said to Z, one of her children, in front of her it is “their”, the subject children’s, fault that they could not go somewhere because their mum told the judge they did not want to be with their dad. X said she gets upset if anybody in the father’s household talks negatively about the mother. She said:
I know Mum has not done anything wrong. I get angry when he keeps saying stuff.
X’s advice for the father, as set out by the family consultant at paragraph 127 of her report, is “just be amicable”. She described “amicable” as meaning “to compromise and stuff”. X reported to the family consultant that there were no worries or concerns in the mother’s household, that she loved Mr G and loved her mother and everybody was nice.
X expressed a view to the family consultant that she wanted to be able to choose when she spent time with her father rather than it being a set regime of time, alternate weekends and every Wednesday. She indicated to the family consultant that she wanted to have a choice in the matter stating:
Because then I don’t have to go if he’s being mean and if he’s nice I will want to go and because he might start being nice and – so I will come.
X stated to the family consultant that if she did spend time with the father but the supervision element was removed:
I wouldn’t be happy because I’m scared he might hurt us again. I will be quite upset and be very scared.
The family consultant notes that after X made a comment about being hurt the family consultant sought to clarify with her what she meant. The family consultant set out that X indicated her concern related to two alleged incidents where the father had harmed her, the incident where she hit the head on the bed and the wall, and the incident where she was allegedly pulled into the bedroom by the father when she tried to abscond. X finished the interview importantly saying to the family consultant:
I think Dad can be a good dad because he takes us good places and he can be nice sometimes. He just chooses not to.
Y was interviewed. At the time of the interview she was eight years and seven months of age. She also presented as an articulate intelligent child who was willing to be interviewed. Y also spoke positively about her new school. Y stated to the family consultant that she felt things had been going reasonably well since she returned to spend time with the father, and that the new changeovers were good as:
They don’t have to see each other and there are no fights.
Y suggested that the parents had not previously had fights at changeovers but when they lived together, stating “We never got to sleep because we just heard yelling”. Y was able to relate a broad range of good times she had spent with her father. Y said that it used to be at Dad’s he was always angry:
He smacked us and yelled at us, shakes us, but now we go off and do our own thing and he used to yell and not leave us alone but not now.
Y said she felt there had been a change in the father’s behaviour because he is with Ms D. Y suggested the father likes to impress her so he tries not to get angry in front of her. Y said if the stepmother forgets to do something he, the father:
…gets a bit angry but he doesn’t push her down the stairs and lock her in the bedroom like Mum so I reckon they’re better together than Mum and Dad were.
Y did not express any worries or concerns in the mother’s household. She said:
Mum and Mr G, they’re good together. They love each other and if they argue we are not around but they figure something out and they’re okay.
Y said she thinks things are okay now with supervision and she said:
I hope Dad is always nice and never gets angry again. I hope we can all start getting along.
Y said that if the time was not supervised:
If he wasn’t angry at us I would be fine with Ms D not there but if he’s angry I want her there because otherwise it will just be like before and that’s not very good.
The family consultant raised serious concerns with respect to the amount of schooling the children had been attending including concerns with respect to the children reporting complaints of anxiety, headaches and vomiting. The family consultant set out at this stage the risk of the children being exposed to family violence in the father’s household would appear to be relatively low. This is based on the children’s reports that they have not witnessed any concerning interactions between the father and the stepmother to date.
The family consultant opines it would appear the most concerning potential risk factor in the father’s household is whether the children are likely to be subjected to further emotional or physical harm from him. If the father has engaged in past patterns of behaviour towards the children as alleged by the mother then this would constitute a future risk to the children in his care. However, there are significant protective factors for the children in this regard.
The family consultant opines that the first protective factor is that the children are clearly intelligent and articulate and have the capacity to report any future concerns as they have ably done repeatedly about the current allegations.
Further to this, the family consultant sets out there is a current apprehended violence order in place, or was, and the father is an astute man who is extremely aware that the children are both capable and likely to report any perceived transgression by him to the mother, and that the mother will immediately bring it to the attention of the relevant professional persons, thus risking a breach of an AVO.
Additionally, and most importantly in the view of the court, the stepmother and father are now cohabitating and the stepmother will have far more of a presence than when the allegations were made, and the court notes that the relationship between the father and his partner is an extremely good one and might be described as a calming influence in the children and the father’s life.
The family consultant sets out it is noted that whilst the children’s willingness and ability to report any perceived transgressions of the father is a positive protective factor for the children, it will also however create difficulties for the father in being able to effectively implement appropriate boundaries for the children for fear that further allegations about his misconduct will be made. And that is a serious matter that the court does take into account and it is something that the father will need to consider long-term.
He will need to be able to parent these little girls and he will need to be able to set boundaries and say “no”. And it is something the mother must be aware of. This will require the father to engage in a sophisticated level of parenting with the children, particularly whilst the children live primarily with the mother. And it is something the father does need to take into account and consider in view of the court.
The father does need to consider that he will need to engage in a sophisticated level of parenting with these children. The family consultant set out the father’s concerns that the mother was fabricating allegations in relation to his behaviour towards her including him allegedly orchestrating serious and potentially life-threatening assaults on her and the children. If correct the family consultant opines this would appear to indicate that the mother is escalating her pattern of behaviour to the extent of self‑inflicted injuries in an attempt to undermine the children’s relationship with the father.
The court has not been able to find that the events took place but the court also has not been able to find the events did not take place. It is on the basis of the evidence in these proceedings unable to do so. The family consultant notes that the mother’s proposal of ongoing supervised time does not appear to be consistent with the children’s needs at the time of the report. It is also the view of the court as well.
Whilst the option of supervised time appears to have facilitated the children to return to spend time with the father in an comfortable atmosphere, there are now a number of protective factors in place, and the court agrees with the view of the family consultant in that regard. Additionally, it is noted the ongoing supervision of time does not appear to be practically viable given such a requirement places an ongoing practical burden on the supervisor and indeed on others within the family.
Again, the court finds that supervision in this matter is not required, and the court will go through those matters set out at section 60CC(2)(a) and (b), (3)(a) through to (m), section 61D and section 65DAA when dealing with the issue. The family consultant suggested the father’s proposal for the children to live with him may be most consistent with the children’s best interests. However, the family consultant opines this would depend on whether the court is of the view that the mother has deliberately fabricated allegations with a view to severing the children’s relationship with the father and whether she is likely to continue to do so in the future.
It is noted that the father’s proposal would require a drastic change in the children’s living arrangements, given that the mother has always been their primary carer, and they are likely to experience significant grief and loss of this relationship with their mother. The family consultant opines that the impact of this would need to be weighed against the risk of psychological harm to the children if they remained in the mother’s care due to their involvement in the allegations and a potential loss of the relationship with the father.
The family consultant suggested a possible alternative to both proposals would be for the supervision to be removed in the interim and the matter to be adjourned for a six month period. The following recommendations were made by the family consultant:
a) It is recommended the party with whom the children live has sole parental responsibility for the issues relating to the subject children.
b) It is recommended that the current requirements for supervision be removed.
c) it is recommended that the matter come back within a six month period and there be an evaluation.
d) changeovers take place to and from school, and this should include the children being able to have a school uniform and be changed into the school uniform in the father’s care.
e) It was recommended that the restraint placed on the children being interviewed by anybody other than the court or by a child protective service if it be deemed necessary be made.
f) It is recommended that if the mother has concern for the children in the father’s care she communicate this through her solicitor and the independent children’s lawyer rather than directly with the father.
At the time of the hearing it became apparent that X was what might be described as becoming resistant to spending time with the father whereas Y was not.
The father was unable to shed any light or insight on to the topic during cross‑examination and clearly held a belief that the mother had influenced the children, particularly X, not to have a relationship with him. Whilst at first a perplexing issue, cross‑examination of the father’s partner, Ms D elicited information that allowed the court a better understanding of X’s attitude. Counsel for the independent children’s lawyer asked Ms D a series of question found at pages 96 to 102 of the transcript of proceedings held 16 March 2015. The court refers to the cross‑examination as follows:
Counsel: At any time during the time when X was in the home did you say anything in her presence which would constitute a denigration of the mother, her mother in other words?
Ms D: Washing clothes maybe.
Counsel: “Mum should wash your clothes,” is that what you mean?
Ms D: Yes.
Counsel: Well, anything of a more derogatory nature about her?
Ms D: No.
Counsel: Something that was said perhaps in the presence of not only X but the father? Can you recall having any ‑ ‑ ‑?‑‑‑:
Ms D: No.
Counsel: ‑ ‑ ‑ discussions or ‑ ‑ ‑?‑‑‑
Ms D: I don’t recall saying anything like in the whole making any comments about the mother?
Counsel: And what about the stepfather, Mr G? Have you ever said anything in the presence of X derogatory to him?
Ms D: I don’t believe I have, no.
Counsel: Do you recall an incident that occurred virtually the last time that the children were – both children had come home ‑ ‑ ‑?‑‑‑
Ms D: Yes.
Counsel: in which you got angry with X over something to do with her mother? Can you remember anything occurring like that?
Ms D: I remember we had a discussion about her calling me “she” and it – it started because she wanted to have something to eat and it was 5.30. I was cooking dinner and I asked her if she – sorry – and I asked her if she waited dinner would be ready soon if that’s what you’re referring to, but that’s all.
Counsel: Well, can you recall on that occasion, that was possibly the last time the children were there, saying something derogatory – things about her mother at that stage?
Ms D: I didn’t say anything derogatory about the mother at that time, no.
Counsel: So you’ve never said – is that what you’re saying?
Ms D: I don’t – I don’t believe I have, no.
I asked a question:
Judge Myers: Ms D, did you say anything about the mother?
Ms D: Pardon.
Judge Myers: Did you say anything about the mother?
Ms D: Yes.
Judge Myers: What did you say about the mother?
Ms D: Well, the children would not allow – sorry – not allowed to bring things to our home, and they have – if they have – if they do, they have to be returned. So I always say, “Please make sure everything is taken back to Mum otherwise we will get constant emails”. I said, “I don’t appreciate your Mum – I don’t appreciate Mum emailing saying I don’t feed you”. So ‑ ‑ ‑
Judge Myers: Was this in respect of making dinner at 5.30?
Ms D: No, there are other ‑ ‑ ‑
Judge Myers: You said something about being referring to a “she”. You said something that was ‑ ‑ ‑?
Ms D: That was what she was calling me.
Judge Myers: What did X say?
Ms D: She asked could she have something to eat and I said, “If you just wait a while dinner will be ready soon. I’m just cooking it”. And then her dad said, “What’s the problem?” and she said, “She said I can’t have anything”. And I said, “I beg your pardon”. And she said, “You heard what I said and I said she said I can’t have anything to eat”.
Judge Myers: What happened next?
Ms D: I said to her, “I don’t appreciate you talking to me that way. I don’t appreciate lies and I don’t – I just would really like it if we could all get along. We all have to learn to live together and be nice and wouldn’t it be nice if we could all get along”.
Judge Myers: What was the comment about lies about?
Ms D: Because the children constantly lie about everything. It’s really sad. They don’t.
Judge Myers: What’s “everything”?
Ms D: They lie. A perfect incident was Easter last year when we had a lovely Easter together with my family. We got an email just after to say my children were given gifts and eggs and her children received nothing and when I asked the children, X and Y, they said, “Yeah. Well, you didn’t give us anything”. And I said, “But you were here spending Easter with all our family”.
Ms D went on to say:
So it’s really sad at that age they – I don’t know how not to lie. They’re willing to lie about anything to please Mum.
Judge Myers: When you spoke to X about lying had she lied that day?
Ms D: She had lied saying that I wouldn’t give her anything to eat, yes.
Judge Myers: What, lied to the father?
Ms D: Well, she lied to me. She said, “You said I can’t have anything to eat”. And I said, “No, that wasn’t what I said. I said wait a little while, I’m cooking you dinner”.
Judge Myers: Did things settle down or did they stay hostile?
Ms D: No. Later I went upstairs and apologised for, you know, having any disagreement because I don’t like it with my own children. So I believe that’s what I – that’s what you should say and we were all nice. And I said to X, “I would love it if you would come here with your friends freely, that Mum was able to come here and pick you up. It would be really nice if we could all get along just like I do with my children and my ex‑husband”, and that was all nice. We had a nice dinner and it was all forgotten. But of course then since an email comes in and it gets blown out of proportion like every menial thing, day to day life and I’ve never responded and I don’t ever speak to Ms Flagg. I’ve had lots of allegations made against myself and I’ve never, ever responded because I don’t want to be involved in any.
Judge Myers: Are you fairly worn out by this?
Ms D: I’m feeling exhausted by this.
Judge Myers: Do you think X is aware of your exhaustion?
Ms D: I think X from day 1 – and I still believe – ever since I’ve been, you know, in Mr Hall’s company I believe she knows what’s going on. She knows it’s wrong – it’s the wrong thing. But it’s her mum and she’s willing to support her and defend her. And, you know, X and I always had a great relationship.
Judge Myers: Do you think X knows or understands that you feel that way about he, that she’s willing to lie and support her mother?
Ms D: Yes.
Judge Myers: She knows how you feel?
Ms D: Yes.
Judge Myers: Do you think that would impact on her relationship with you and the father?
Ms D: I don’t believe so because she’s – because when she’s there we always have a nice time. We have a lot of wonderful family and friends and we do a lot of things with them lots and there’s never any bad feelings or ‑ ‑ ‑
Judge Myers: Do you like X?
Ms D: Yes, I do.
Judge Myers: Do you think she knows that?
Ms D: Yes, because we spoke about it on that day.
Mr Fraser as counsel for the Independent Children’s Lawyer then asked some questions:
Mr Fraser: Did you say anything about Mr G being dumb?
Ms D: Yes, because I did say did – did she speak to Mr G that way she spoke to me.
Mr F: Yes. Have you, have you considered perhaps that that was probably not an appropriate thing to say?
Ms D: Exactly. And that’s why later on I did sit down with X and apologise and said, you know, “It’s not nice for anyone to talk like that and I’m sorry”, and it all ended well.
I asked a further question:
Judge Myers: Sorry, Ms D. I’m a bit confused. You said that it was after you called the mother’s partner dumb – after you were asked the question whether you called the mother’s partner dumb and you agreed. What exactly did you say? What did you say about the mother’s partner being dumb?
Ms D: I said, “Do you call Mr G who’s dumb a” –
The transcript reads “blank, blank, blank”. I am not sure what “blank, blank, blank” means. I think that it is crossed out for some reason. I then asked:
As best as you can using the words that you would have used, what did you say to X?
Ms D: I said, “Do you speak to Mr G that way you speak to me? He’s dumb. Do you speak to him the same way you speak to me?”
Judge Myers: And when you meant that he’s dumb you didn’t mean that he can’t speak or hear. You meant he was stupid?
Ms D: Well, yes.
Having considered the comments the court made to the family consultant it was clear to the court that the children felt Ms D’s influence in the father’s life was a positive one, where they could rely upon her for safety and to promote a stable and harmonious life in the father’s household.
During the course of cross-examination it became apparent that Ms D’s comments to X shocked the father and no doubt X in circumstances where Ms D had not previously involved herself in the sort of exchange that took place with X. No doubt Ms D’s comments about the mother’s partner were hurtful and precipitated X’s current attitude towards the father.
These are proceedings governed by part VII of the Family Law Act1975. The court has read and considered the voluminous affidavit material filed by the parties, the various documents tendered in the proceedings forming exhibits A through to R, the outline of case documents and written submissions. The court has heard and considered counsels’ submissions and the parties’ and their witnesses’ cross-examination. The court has read and considered the family report, the child inclusive memorandum, and has heard and considered the cross‑examination of the family consultant in the proceedings.
The court turns to the legislative pathway found at part VII of the Family Law Act1975. The court initially turns to section 60CC. The court must determine what is in the best interests of the children having regards to two primary considerations, (2)(a) and (b), and additional considerations found at (3)(a) through to (m).
The primary considerations are the benefit of the children having a meaningful relationship with both of the children’s parents. It is clear in these proceedings having regards to the family report, having regard to the evidence of the parties including the material provided by the parties in their affidavit material that there is a benefit to these children having a meaningful relationship with both parents.
The court considered the need to protect the children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence. Having regard to the family report, particularly on issues relating to the possibility of the children experiencing harm in the father’s household, the court is of the view that the children will not suffer physical or psychological harm in the mother or father’s household as a result of abuse, neglect or family violence.
Things have changed dramatically. The parties have left each other and in doing so left what was a seriously dysfunctional relationship. It appears on the face of the material that the parties have entered into relationships with partners who much better meet each other’s needs as partners. They are no longer, in the view of the court, in dysfunctional relationships although the relationship between the mother and the father remains seriously dysfunctional.
The court considers any views expressed by the children and such factors of the children’s level of maturity or understanding the court thinks are relevant to the weight it should give the children’s views. These children dearly love their mother. They love their stepfather. It is the view of the court, having regard to the family consultant’s family report, that the children’s views are such that they would not want to leave living with the mother. It would cause them significant emotional distress.
The children do want to have a relationship with their father. But they want to have a relationship with a father who is not angry at them, where they just simply have fun but in circumstances where they do not hear anything untoward or critical of their mother or their mother’s partner.
The court considers the natures of the relationship with each of the child’s parents and any other person including grandparent or other relative of the child. The nature of the relationship between the children and the mother is a good one, as is the nature of the relationship between the children and the mother’s partner. The children dearly love on the face of the material their father. They have a good relationship with him but one where historically they have been fearful of him.
The nature of the relationship is this. Where the children feel as though as the father or his partner are critical of the mother the relationship breaks down. They find that an unacceptable relationship. If the father is not critical of the mother and otherwise does not get angry at them then they feel that their relationship is a good one. So the children’s relationships with the father waxes and wanes dependent on what they perceive perhaps as the father’s moods or his views of their mother.
They have an extremely good relationship with Ms D or at least did until such time as the exchange between X and Ms D, but the court is of the view that that is something that is certainly repairable. And having regard to Ms D’s cross-examination, it is something I am sure she deeply regrets. And in fact, having regards to the manner in which she gave her answers, it is something she clearly did.
The difficulty in the matter with the relationship at the moment is that X appears resistant to spending time with the father and that is the nature of the relationship. And the court will try and heal or overcome that issue. It is something the court will try and manage in the orders that it makes.
So the nature of the relationship between the children and their stepparents is good, with the mother good, with the father waxing and waning. It can be good, but needs to be better. The court seeks a solution as to how these children can have a relationship with their father and feel better about him.
The father and the stepmother, the mother and the stepfather have all participated in making decisions about the children and communicate with the children and otherwise engaging with the children. They have been involved in these proceedings that have gone on now for a considerable period of time and look as though they have now no end.
The court does not criticise either parent for failing to fulfil their obligations to maintain the children. They have done so. The court takes into account and gives significant weight to the likely effect of any change in the children’s circumstances, including the likely effect on the children from any separation from either parent.
The mother seeks orders that would continue to allow the children to spend time with the father. That is, they will not be separated from him. The independent children’s lawyer seeks orders that the children continue to spend time with the father. The father seeks orders in the alternative that the children live with him or otherwise spend time with him.
Having regards to the totality of the evidence, having regards particularly to the evidence given by the family consultant, the court is significantly concerned that if the children’s residence were changed from that of the mother to the father that the children would blame the father significantly, that is it may be the thing that completely destroys any hope of the father having a normal relationship with the children.
The children’s level of maturity and understanding does not extend to the extent that they would understand why the court made the order or accept that the father was seeking those orders perhaps in the best interests of those children. They would not understand it. They would not be accepting of it. And in the view of the court, the effect of the separation of the children from the mother would be one twofold in that it would be significantly disastrous to them as to how they would feel being separated from the mother, but also significantly disastrous long-term to the relationship they might have with the father.
The children will not be separated from their stepparents on either set of the orders. And I should say this. What the father proposes is that there be supervised time and that it move to a regime of what the court might describe potentially substantial and significant time. But the effect is the same where these children have historically lived with the mother and spent time with the father.
It would be a significantly disastrous effect on the father’s relationship such that the court is of the view that the effect on the children with respect to how they might feel not living with their mother but then living with the mother would be twofold. It would affect their relationship with the father long-term in a negative way and would also affect the children in general. There is nothing in the practical difficulty and expense of the children spending time with or communicating with a parent which would substantially affect the children’s rights to maintain direct with both parents.
The court must assess the capacity of each of the child’s parents to provide for the needs of the children including their intellectual and emotional needs. While the court is satisfied that the mother can provide for the needs of the children including their intellectual and emotional needs the court will be make orders about the children going to school, ensuring that the mother does certain things, because the court is worried about the children’s poor school attendance.
These are intelligent children who to some extent are mimicking or otherwise reflecting the anxieties and insecurities of the mother with respect to perhaps them missing school, and they should not be doing so. It is certainly a concern of the family consultant and such a concern of the court. The court will make orders to ensure that the mother sends the children to school except in particular circumstances.
The father has the capacity to provide for the needs of the children including their intellectual and emotional needs but only in circumstances where he refrains from exposing the children to how he actually feels about the mother. He feels badly about the mother, probably justifiably so in some circumstances. But nevertheless, the children do not want to hear the father’s views about the mother and it affects them if he expresses those views to the children.
The father’s capacity to provide for the emotional needs of the children is tainted if he exposes the children to how he feels about the mother. The father must refrain from doing that. The court is of the view that he can and the court is of the view that he will, because the court is of the view that the father will prioritise his relationship with the children instead of telling them how he might feel about the mother.
There is nothing in the maturity, sex, lifestyle and background of the parents the court gives significant weight in the proceedings. The court is not aware that either of the children are Aboriginal or Torres Strait Islander children.
The court considers the attitudes to the children and the responsibilities as a parent to demonstrate a regard for the children’s parents. The parties do not get along at all but individually on their own it is the view of the court that they have demonstrated a good responsibility towards parenthood even though they are unable to co-parent with each other.
The court has made findings about family violence. On either party’s version of the events, and by the parties’ own admissions these children have been exposed to a turbulent, dysfunctional relationship between the parents where there was family violence. They have been affected by it. There has historically been a family violence order naming the father as the defendant.
The court understands the nature of the order but the court does not understand and there was no direct evidence led as to the exact circumstances in which the order was made. There was no evidence given as to the evidence that was admitted at the time the learned Local Court Magistrate made findings or made the order. There was no evidence as to what findings the learned Local Court Magistrate made at the time the order was made.
And therefore the court can draw limited inferences from the apprehended violence order other than to say that it is an example of the dysfunctionality of the parties’ previous relationship and a symptom of the family violence that occurred between the parties in that relationship. When considering family violence, the court is satisfied and has made findings that the court is satisfied that the children will not be subjected to or exposed to abuse, neglect or family violence in the father’s household.
The family consultant has set out clearly that she believes, and the court accepts her beliefs as correct, that there are sufficient safety mechanisms in place in the father’s household to ensure that the children will not be exposed to family violence again in that household, particularly notably the positive influence of Ms D in the father’s life. The case was not reopened. The court knows that there is another application that has been made but the court can only make the best orders it can today hoping that these orders and this decision will end the litigation between the parties on a final basis.
The court will make orders as best as one can having regard to the need to try and make orders that are less likely to lead to the institution of further proceedings. I should say this is as a means of ensuring that the children are not exposed to any issues, and as a way of perhaps impressing upon the children a change in the father, the court will be make an order with respect to the father undertaking an anger management course.
The court will make order that the children might be made aware of the orders made perhaps as a means by which the children will thereafter feel some sort of safety or recognition.
The court takes into consideration another fact or circumstance. The court took into account prior to the amendments to the Family Law Act1975 on 7 June 2012 now does so because it can still do so pursuant to subparagraph of Section 60CC(2)(m) – the willingness and ability of the parents to facilitate and encourage a close and continuing relationship between the children and the other parent.
The court states for the record that the court has serious concerns but could not make findings in this matter that the mother has an inability or unwillingness to facilitate and encourage a close and continuing relationship. Much of the mother’s cross‑examination on various topics was wholly unsatisfactory with respect to the matter in which she was allegedly force-fed codeine and what I might describe as the bottling incident.
The mother did at one stage seek to rely upon those incidents against the father in the proceedings. And the court notes that the mother did not rely upon, or mention those matters in her final trial affidavit. I should say this. The mother does not seek a no contact order but nevertheless, the court is concerned about the mother’s attitude. The mother is placed on notice and needs to be made aware about the court’s concerns. But given the totality of the evidence, the court cannot make findings about it.
The court is satisfied though that the father has a willingness and ability to facilitate and encourage a close and continuing relationship between the children and the mother. I must turn to section 61DA of the Family Law Act 1975. I am required to do so and consider the presumption of equal shared parental responsibility in the making of a parenting order.
The court must apply the presumption except in circumstances where there is family violence, abuse of a child or another child or a member of the parents’ family, or where it is not in the best interests of the children to do so. The parents’ relationship is one of high dysfunction. They are highly dysfunctional and the court cannot understand how these parties could possibly share parental responsibility with one another.
So much is raised by the family consultant. It is the family consultant’s recommendations that the parent with whom the children live have parental responsibility, in the view of the court, as a means by which the children will not be dragged through further conflict and to end conflict between the parties. The court is required to consider making an order least likely to lead to the institution of further proceedings, and it is the court’s view that if an order for equal shared parental responsibility was made it would give the parties the opportunity to have further conflict.
For that reason the court rebuts the presumption in favour of equal shared parental responsibility because the court is concerned about the ongoing conflict between the parties. That is a matter that the court takes into account in section 60CC. It goes towards the best interests of the children and for that reason the court rebuts the presumption.
The court considers section 65DA whether the court has or has not rebutted the presumption. When considering whether or not the children should spend equal time with the father the court is of the view that it is not in the best interests of the children because of the level of dysfunctionality between the parties and the current state of the relationship between the children and the father.
Otherwise it would be impractical when considering subparagraph (5) not by reasons of distance between the parties, not by reasons that the parties could not facilitate equal time but because the parties do not have the current or future capacity to communicate sufficiently to overcome issues that might arise in implementing an arrangement of equal time.
With respect to substantial and significant time defined by subparagraph (3) of section 65DAA and includes times that falls on days that includes weekends and holidays and days that do not fall on weekends and holidays and allows the parent to be involved in the occasions of particular significance to the parent but also the child’s daily routine, meaning as weekends and holidays and also weekdays so that the parent is involved in such things as taking a child to school and doing homework.
The court turns to section 60CC, is it in the best interests of these children that there be substantial and significant time? It is the view of the court the answer is yes, it is, but we need to do some things with the children before such an arrangement might take place. It is the view of the court that it is reasonably practicable. The parties live close enough to one another. The parties can facilitate it. The parties can communicate sufficiently to overcome issues that might arise in implementing an arrangement of equal time.
But the impact on the children only for the very, very immediate moment is probably somewhat detrimental in that the children need or at least X needs to re-establish a relationship with her father through some form of therapy so she can extract herself from the arguments, disagreements or dysfunctional relationship the mother and the father enjoy. She needs to be removed from that remembering she is simply just a child.
It is the view of the court that with some counselling and perhaps a six month period, the children, and in particular X, can start to spend substantial and significant time which will really mean something along the lines of each alternate weekend Friday to Monday and a night every week. But until that counselling has effect after perhaps a six month period it should be less with an arrangement of alternate weekend Friday to Monday and then increase to the overnight on a Wednesday after the counselling takes place and the relationship might be what the court describes as normalised.
So having regards to all the evidence, having regards to those matters set out on the legislative pathway, having considered section 60CC(2)(a) and (b), (3)(a) through to (m), section 61DA, section 65DAA and otherwise part VII of the Family Law Act 1975, the court makes the following orders.
I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of Judge Myers
Date: 31 March 2016
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