FREIBERG & FREIBERG
[2020] FCCA 198
•7 February 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| FREIBERG & FREIBERG | [2020] FCCA 198 |
| Catchwords: FAMILY LAW – Parenting – whether a now 13 year old child, whose mother alleges long term and ongoing family violence perpetrated by the father, ought to be forced to spend time with his mother in circumstances where she is alleged to have serious substance abuse and mental health issues. |
| Legislation: Family Law Act 1975 (Cth), ss.4AB, 60B, 60CC, 61DA, 65DAC, 102NA |
| Cases cited: Mazorski v Albright [2007] FamCA 520 |
| Applicant: | MR FREIBERG |
| Respondent: | MS FREIBERG |
| File Number: | MLC 6292 of 2017 |
| Judgment of: | Judge Small |
| Hearing date: | 20 May 2019 |
| Date of Last Submission: | 21 May 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 7 February 2020 |
REPRESENTATION
| Counsel for the Applicant: | Ms Jenkins |
| Solicitors for the Applicant: | M & K Lawyers Group Pty Ltd |
| Counsel for the Respondent: | The mother in person |
| Solicitors for the Respondent: | None |
| Counsel for the Independent Children's Lawyer: | Mr Arnold |
| Solicitors for the Independent Children's Lawyer: | Victoria Legal Aid |
ORDERS
All previous parenting orders in relation to the child X born in 2006 (“the child”) are hereby discharged.
The father shall have sole parental responsibility for the child.
In the exercise of his sole parental responsibility:
(a)as soon as the father becomes aware of a major issue in relation to the child’s care, welfare and development which requires a decision, he shall raise the issue with the mother;
(b)the father shall communicate with the mother in writing, via ordinary post, email or text message, and state concisely the matter requiring decision, his proposed course of action, and a timeframe within which a response is sought from the mother;
(c)the mother shall respond in a timely manner; and
(d)the father shall take the mother’s response, if any, into account and shall inform the mother of his decision within 7 days.
The child shall live with the father.
The child shall spend time with the mother pursuant to his wishes and in such circumstances as he shall prescribe.
The mother is hereby restrained from imbibing, ingesting or being under the influence of alcohol for 24 hours prior to and during all times when the child is in her care.
The parties are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family or household in the presence or hearing of the child, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the presence or hearing of the child, save to explain any changes in his living arrangements to him as a result of these Orders, and from allowing him to remain in the presence or hearing of any third party who is engaging in such conduct;
(c)allowing the child to read, have read to him, or otherwise access any part of the Court’s Reasons for Judgment in this matter.
Each party shall notify the other as soon as practicable in the event of the child suffering any serious illness or injury while he is in their respective care and each shall authorise any medical or dental practitioner who treats the child to communicate and consult with the other parent.
Each party shall advise the other of any medication prescribed for the child while in their respective care, including the dosage and frequency prescribed, and each shall ensure that such medication travels between their houses with the child, and that any such medication is taken in accordance with its prescription.
The father shall authorise any school or extra-curricular activity in which the child is enrolled to provide to the mother, at her expense, all information, notices, photographs, reports and like materials, and she shall be named as a contact person in the records of such school or organisation in the event of any emergency involving the child.
The Order of Judge Small, dated 25 July 2017, appointing the Independent Children’s Lawyer is discharged.
IT IS NOTED that publication of this judgment under the pseudonym Freiberg & Freiberg is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6292 of 2017
| MR FREIBERG |
Applicant
And
| MS FREIBERG |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a particularly sad parenting dispute between Mr Freiberg (“Mr Freiberg” or “the father”) and Ms Freiberg (“Ms Freiberg” or “the mother”).
There is one child of the parties’ marriage who is under 18 years old, namely X born in 2006 (“X” or “the child”).
X currently lives with his father, and at the time of trial had spent no time with his mother for some ten months. He had attended two sessions of reportable counselling with his mother, in June and October 2018, but the October appointment was the only time they had been together since about July 2018.
Before that time, X had been spending time with Ms Freiberg twice a week during the day with his maternal aunt being in substantial attendance.
X has three older siblings who are no longer subject to this the jurisdiction as they have attained the age of 18 years: Mr A, who is now almost 26; Mr B, who is 23; and Ms C, who is 21.
At the time of trial, Ms C and X were living with their father in the family home in Suburb D. Mr B and Mr A were living independently, although they had been working in their father’s business, as had Ms C, since before these proceedings began up until shortly before the final hearing.
The father seeks sole parental responsibility for X, for X to live with him, and to spend time with his mother in accordance with his wishes. He seeks further orders restraining the mother from consuming, ingesting or using alcohol for twenty-four hours immediately prior to and during all time she spends with X.
The mother seeks Orders that would permit her to spend time with X, although it is possible that she also seeks a 50/50 shared care arrangement.
The Independent Children’s Lawyer seeks orders that would see the mother enter rehabilitation treatment for alcohol abuse before attending therapeutic counselling with X. The Independent Children’s Lawyer does not recommend that time between X and his mother recommence until Ms Freiberg has shown that she is alcohol-free and receiving specialised treatment.
I note that Interim Orders, in the following terms, were made on 22 May 2019, after the trial had been completed:
1.Upon the Mother providing to the Independent Children’s Lawyer evidence that:
a. She has been completely abstinent from alcohol use for a period of not less than 3 months; and
b. She has been appropriately engaged in a specialist alcohol therapy for a period of not less than 3 months (and she shall advise the Independent Children’s Lawyer of the contact details of that specialist alcohol therapist and the Independent Children’s Lawyer shall be at liberty to provide to the therapist a copy of the psychiatric report of Dr E in relation to the Mother and the medical exhibits tendered at trial);
the Independent Children’s Lawyer shall arrange for the Mother and the child X born in 2006 (“X”) to attend upon Ms F or such other counsellor as the Independent Children’s Lawyer might nominate for therapeutic counselling and the Mother and Father shall do all such acts and things necessary to ensure that both the Mother and X engage in that counselling until Ms Freiberg decides that it is no longer necessary.
2.The father shall pay the costs of the therapeutic counselling with Ms F for the Mother and X.
3.The Independent Children’s Lawyer shall advise the Court when/if the therapeutic counselling begins and, if necessary, if it ceases prior to judgment being delivered in this matter.
The Independent Children’s Lawyer has advised the Court that Ms Freiberg had not confirmed her compliance with those orders at the time of writing.
The issues to be decided in this case are:
A.Whether the parties should retain equal shared parental responsibility for X, or whether the father should have sole parental responsibility for him.
B.With whom should X live?
C.Should X spend time with his Mother, and if so, under what circumstances?
Background
Mr Freiberg is 52 years of age, having been born in 1967. At the time of trial, Mr Freiberg told the court that his business had collapsed and he was unemployed. Apart from what he described as a “heart scare” in 2018, he is in good health.
Ms Freiberg is 48 years of age, having been born in 1971. She works as a health care worker. She lives with epilepsy and takes medication for that condition, as well as medication for anxiety and insomnia.
The parties met through friends when Ms Freiberg was 13 years old. Their relationship commenced when Ms Freiberg was 18 and Mr Freiberg was 22.
The parties married in 1991.
They separated first in late 2004, but reconciled in 2005.
As stated above, there are four children of the marriage, only one of whom, X, is still subject to the jurisdiction of this Court.
The parties finally separated on 13 April 2017 and divorced on 5 August 2018.
These proceedings were issued by the father on 27 June 2017 in relation to parenting issues only.
The mother filed her Response on 7 July 2017, and she also sought orders only in relation to parenting issues.
On 21 December 2017 the mother filed an Amended Response to Initiating Application seeking both parenting and property orders.
Final property Orders were made by consent in this matter on 10 August 2018, and I will return to the circumstances under which they were made later in these Reasons.
Final Hearing in relation to the parenting dispute commenced on 20 May 2019 and ran for two days.
The father and the Independent Children’s Lawyer were represented by counsel, and the mother was self-represented.
Witnesses were the father, the mother, and the paternal grandfather Mr G (“Mr G”), and all underwent cross-examination.
Two witnesses who had filed Affidavits and were required for cross-examination did not attend the court, they being Ms H, the mother’s clinical psychologist (“Ms H”), and Ms J, the paternal grandmother.
At the conclusion of the trial I made the above orders, and otherwise reserved my decision.
Issues and Evidence
It is not possible to refer to every fact and/or matter raised in the trial of these proceedings and nor is it necessary to do so. The parties should understand that I have had regard to the whole of the evidence, including my notes and the transcript of the trial, and the demeanour of the parties at trial, and if I have not referred to a particular fact or matter it does not mean that I have not considered it.
Issue A: Whether the parties should retain equal shared parental responsibility for the child?
An order for parenting responsibility is a Parenting Order and the law in relation to Parenting Orders is found in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
S.60B sets out the objects and principles of Part VII and I set them out here for the benefit of the parties.
Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
S.65DAC of the Act sets out the effect of a parenting order that provides for shared parental responsibility as follows and again, I set out the provisions of that section here for the parties’ benefit:
(1) This section applies if, under a parenting order:
(a) 2 or more persons are to share parental responsibility for a child; and
(b) the exercise of that parental responsibility involves making a decision about a major long‑term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3) The order is taken to require each of those persons:
(a) to consult the other person in relation to the decision to be made about that issue; and
(b) to make a genuine effort to come to a joint decision about that issue.
(4) To avoid doubt, this section does not require any other person to establish, before acting on a decision about the child communicated by one of those persons, that the decision has been made jointly.
Section 61DA(1) of the Act states that, when making a parenting order, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 61DA(2) states that the presumption does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in abuse of the child or family violence.
Section 61DA(4) states that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to equally share parental responsibility for that child.
There is more than enough evidence from both parties in this case to satisfy the Court that both engaged in family violence either during or after the marriage. I will return to the issue of family violence in more detail later in these Reasons.
In those circumstances, the presumption of equal shared parental responsibility does not apply.
I must therefore decide whether it is in X’s best interests for his father to have sole parental responsibility for making decisions about major issues such as where X lives and goes to school, what kind of medical treatment he should have, whether he can travel overseas, or whether he should follow a particular religion or no religion at all.
When a Court is deciding which orders to make in a child’s best interests, Section 60CC of the Act sets out 16 factors or considerations the Court must take into account before making such an Order, and I will address each of those in turn.
There are two primary considerations set out in s.60CC(2) as follows:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
The meaning of the term “meaningful relationship” has been addressed in several cases that have come before this court and the Family Court of Australia.
In an oft quoted passage from the judgment of Brown J in Mazorski v Albright [2007] FamCA 520, Her Honour said at paragraph 26:
A meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
That is, the meaningfulness of a relationship between a child and his/her parents is measured by the quality of the time spent and not by the amount of time.
In Tait & Dinsmore [2007] FamCA 1383, Cronin J said, at paragraph 170:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate with others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
In this case, if what the mother says about the father’s persistent and continuing family violence is true, he is not providing a positive role model to his son about “the privileges and responsibility which will devolve upon (him) as (a) parent”.
If what the father says about the mother’s alcohol consumption is true, then she is not “lead(ing) by example about self-discipline”.
It cannot be said that the mother had a “meaningful” relationship with X at the time of trial. She had not seen him since the last time she and he attended upon Ms F for reportable counselling in October 2018, and even then, that encounter could hardly be said to have been one to enhance the meaningfulness of their relationship.
X’s relationship with his father can be said to be meaningful, although I have some reservations about Mr Freiberg’s benefit to X as a role model because of the family violence allegations to which I will return later in these Reasons.
Then there is the need to protect a child from harm, and that is perhaps the crux of this whole case.
Both parents allege that X is at risk of harm in the care of the other.
The father says that the mother is an alcoholic who has no insight into her condition and no will to stop drinking. He says that her increasingly chaotic behaviour in the year before trial, including several instances where police were required to intervene, and multiple attendances at and/or admissions to psychiatric facilities, mean that she is unable to provide a safe environment for X, or to make decisions about his welfare.
He therefore seeks an order that he be solely responsible for making parenting decisions about X’s care, welfare and development.
The mother denies that she has a drinking problem, and it is her case that the father has subjected her to decades of both subtle and overt family violence, including physical, psychological, emotional, sexual, and financial abuse, and coercive and controlling behaviour. She says she suffered continual abuse during the marriage, and that much of the violence was perpetrated while the children were in the house.
It is her evidence that the stress of living with that family violence, especially in the almost two years between the filing of the father’s initiating application and the date of trial, has caused her mental health to collapse, and that it is that stress, and not any excessive alcohol consumption on her part, that has been the cause of all her troubles.
It was her consistent evidence throughout the proceedings that she had not had any alcohol when she was spending time with X in the early stages of these proceedings, and she points to the fact that every breathalyser test to which she was subjected pursuant to the orders of this Court at those times produced a clear result.
Mr Freiberg says that the father has poisoned X against her, and that that process is merely another step in his perpetration of family violence against her.
She says that X is at risk of emotional abuse in his father’s care because of the subtlety in the way he perpetrates that violence against her.
Again, I will return to the issue of family violence later in these Reasons.
S. 60CC (2A) states that when a court is applying the considerations set out in subsection (2), it must give greater weight to the consideration set out in paragraph (2)(b). In other words, the Court must give more weight to the need to protect a child from harm than to the benefit to the child of a meaningful relationship with each parent.
I will therefore need to craft orders which, if possible, will allow X’s relationships with his father and mother to develop in a meaningful way while keeping him safe.
S.60CC(3) then sets out 14 “Additional considerations” as follows:
(3) Additional considerations are:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
X’s views, as reported to the Independent Children’s Lawyer, the family reporter Ms K (“Ms K”), and the therapeutic counsellor Ms F (“ Ms F”), are clear.
He is embarrassed by his mother’s behaviour when she has been drinking, and he wants her to stop drinking before he is prepared to spend further time with her.
He also told Ms F that he wants his father to stop involving him in adult issues, saying he would like his father to “stop talking to me like I’m Mr L” (Mr L is a family friend).
X said further, “…I’m only 11. I shouldn’t have to deal with all this…”. That is an insightful statement from an 11 year old, as he then was, and he is right.
He is now 13 and his views carry considerably more weight than they had when he was younger. However, they are not determinative on their own, and the Court must consider many other issues.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
These proceedings began in late June 2017 and a Final Hearing took place on 20 and 21 May 2019.
In November 2017, the parties attended upon Ms K (“Ms K”) for the purposes of the preparation of a family report.
In that report, Ms K, who was not required for cross-examination at trial, states the following:
77. X and his mother greeted one another with warmth and in a relaxed manner. Ms Freiberg affectionately referred to X as “bud” and this seemed to be a familiar term of endearment. They made good and strong eye contact with one another and X appeared confident in his mother’s presence.
And later:
88. Observation of Ms Freiberg with X was indicative of a caring and attuned mother, who clearly knew X’s preferences and patterns of behaviour. This is likely indicative that she has played a significant role in his care and taken an interest in X’s broadest needs. This accords with Mr Freiberg’s description of Ms Freiberg as “a beautiful mother”, for the majority of their relationship, and with Ms Freiberg’s historical role as primary caregiver. Equally, X responded to his mother with warmth and confidence, indicative of a high-quality relationship between the two.
89. X would, however, appear to be grieving the previous relationship be shared with his mother. Not only has his time with her been severely restricted, but the previous role Ms Freiberg filled, as reliable nurturer and caregiver, has also changed. The reasons for these changes are disputed between the parents.
X told Ms K that he was worried about his mother’s drinking and her well-being, and is described as “adopting a protective stance toward her”.
That was in mid-November 2017, when 11 year old X was spending time with his mother on two occasions per week during the day and with the substantial attendance of his maternal aunt.
By the time X spoke to the Independent Children’s Lawyer in preparation for trial, some 18 months later, his relationship with his mother had almost entirely collapsed. He was not seeing her or communicating with her at all, and he was angry that she was not prepared to stop drinking in order to spend time with him.
Ms K describes X’s relationship with his father in the following terms:
80. When Mr Freiberg entered the room, he and X greeted one another in a relaxed manner.
[…]
83. As was noted in the observation between X and his mother, X interacted with his father in a relaxed and confident manner. He appeared to enjoy his father’s company and they demonstrated a similar, cheeky sense of humour.
X also described his father as being “grumpy” some of the time, and that he felt “bad” at those times, while his mother was “upset, sad and seems tired”.
Both parents and X told Ms K that they believed it would be beneficial to X to spend more time with his mother, although the parents were in dispute about how that should happen.
As already stated, Ms K was not required for cross-examination at trial, and therefore her evidence, while fixed in time at 18 months prior to trial, has not been challenged.
It is very clear to the court that the previous warm, loving and nurturing relationship shared by X and his mother has essentially been destroyed, whether by the father’s poisoning of that relationship, as claimed by the mother, or by the mother’s inability to prioritise her relationship with X over her wish to keep drinking alcohol, as claimed by the father.
Of course, the reason for the collapse of that very important relationship may encompass both parties’ claims.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
During the marriage, the parties were able to make joint decisions about major long-term issues in relation to X’s care, welfare and development.
Since separation, the decision about where X lives was initially made jointly, and he lived with his mother for the first couple of months after separation, until the decision made unilaterally by Mr Freiberg to withhold X in his care after the mother was taken to hospital following an epileptic seizure.
Since then, it would appear that while there have been few recent major long-term issues arising in relation to X’s care, Ms Freiberg has not had the opportunity to be involved in any such decisions.
Again, Ms Freiberg claims that that situation is the result of Mr Freiberg excluding her from any such involvement in those decisions, while Mr Freiberg says that Ms Freiberg’s alcohol consumption and mental ill-health have meant that it was not appropriate for her to be so involved.
There is also a question mark over whether Ms Freiberg has taken every opportunity to spend time and communicate with X since he began to live with his father.
There have been a few times when Ms Freiberg has cancelled her time with X, she says because of illness, although she did spend time with him on most occasions ordered, and she certainly attended upon Ms F to spend time with X in therapeutic counselling.
Mr Freiberg appears to have taken the opportunity to spend as much time with X as his work obligations allow.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Since separation, the father has supported X financially with little or no contribution from the mother. That is not surprising, given that the father has had a significant income, at least up until shortly before trial, while the mother’s income has been sporadic and significantly less.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
X has been separated from his mother since mid-2018, about 18 months ago.
At the time of trial, the Independent Children’s Lawyer reported that X was angry with his mother, and at the same time grieving for the mother he felt he had lost.
The Orders I made at that time required Ms Freiberg to undertake alcohol rehabilitation counselling. There is no evidence or information before the court to indicate that she has done so.
On 30 October 2019, my Chambers received an email from the Independent Children’s Lawyer stating that she had not received any information from the mother in relation to whether she had complied with the orders of 21 May 2019.
When contacted by Chambers during the writing of this judgment, the Independent Children’s Lawyer advised that she had had no contact with the mother since sending her email on 30 October 2019.
Were I to make orders for X to spend time with her, without Ms Freiberg first having taken steps to reassure X that she is no longer drinking or getting into trouble with the police, it is likely that further, and even irreparable damage might be done to their relationship.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
The parties live in fairly close proximity to each other and there is no practical difficulty or expense associated with X spending time and communicating both parents.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
All evidence about Ms Freiberg’s parenting capacity until the final few years of the marriage is nothing short of glowing.
Even Mr Freiberg said at trial that his wife had been “a beautiful mother” until she began to drink excessively in the last years of the relationship.
However, at the time of trial, it was clear that the mother’s parental capacity had been severely compromised.
In a psychiatric assessment report in relation to Ms Freiberg dated 28 November 2017, only a month after Ms K had interviewed the family for the family report, Dr E states as follows under the heading “Summary”:
In this examiner’s opinion, there appears to be a significant likelihood that her alcohol problem has been more severe than she acknowledges, not just because of the reports from Mr Freiberg and the family, but because of her acknowledged levels of consumption and alcohol-related behaviours, as well as the initial defensiveness and underreporting during the early stages of the interview.
Furthermore, as an experienced medical practitioner, it appears significantly likely that Ms Freiberg has underreported her alcohol consumption to her neurologist, psychologist, and general practitioner, and that her grand mal seizures over the past two years may well have been related to her alcohol consumption.
At trial Ms Freiberg was adamant that Dr E had been wrong in his assessment because Mr Freiberg, who also underwent a psychiatric assessment with Dr E, had told him lies about her alcohol consumption.
Nevertheless, Dr E states that:
At examination, despite the above-mentioned issues related to alcohol, Ms Freiberg presented as a reasonably pleasant and plausible individual who demonstrated reasonably caring, insightful and committed attitudes with regard to parenting responsibilities and arrangements.
She did not demonstrate any major cognitive deficits or signs of mental illness at interview, leaving aside her agitation, tearfulness and above-mentioned grief, as well as the lack of openness and insight with regard to alcohol.
During the two years of these proceedings, the mother has attended at or been taken to the Emergency Department at M Hospital on multiple occasions, where she had been assessed in relation to her mental and neurological health. On more than one of those occasions she had been brought to the hospital by the police pursuant to s.351 of the Mental Health Act 2014 (Vic) (“the Mental Health Act”).
On 9 September 2018 she was held overnight in the Emergency Department for observation and assessment, and, she conceded at trial, she would have been prevented from leaving the hospital and placed on an Assessment Order under the Mental Health Act had she attempted to leave. Nevertheless, she was discharged on the following morning, albeit that under the heading “Impression” on her file’s progress notes, the document states: “major depressive disorder”; “suicidal ideation in the context of intoxication with alcohol and relationship conflict with partner” and “alcohol use disorder”.
That Emergency Department admission occurred after her sometime partner, Mr N (“Mr N”), had called the police after Ms Freiberg had attempted to harm herself during an argument with him. The hospital record indicates that she told hospital staff she had had “a few drinks this afternoon”.
Ms Freiberg had also been taken to the M Hospital and the O Hospital after suffering epileptic seizures.
The Discharge Summary from M Hospital Emergency Department dated 16 January 2018 stated that the incident which had brought Ms Freiberg to the hospital on that occasion was “likely seizure secondary to medication non-compliance, etOH and common cold and emotional stress”. I understand that “etOH” refers to alcohol.
Some of those incidents were the result of the police being called to physical disputes between her and Mr N.
At 10:00p.m. on 28 March 2019, about two months before trial, Ms Freiberg was placed on an Assessment Order under the Mental Health Act after presenting at M Hospital Emergency Department.
Documents tendered to the court at trial described her on that night as: “distressed + ++; loud aggressive; made statements of intent to suicide; would not give consent; resisted attempts by family and friends to contain her”.
On 2 April 2019, Ms Freiberg and her father, Mr G, attended a follow-up appointment with a health professional from the M Hospital Community Assessment and Treatment Team (“the CAT Team”).
According to the hospital’s records, that appointment was made after Mr G had telephoned the hospital expressing concern about his daughter because she had been “coming home intoxicated and that they are struggling to cope with her”.
The Mental Health Community Progress E-Note from that appointment states that Ms Freiberg was “strongly recommended to engage with a Drug and Alcohol Service which she declined to (sic) stating she can stop drinking whenever she wanted but does not wish to stop currently”.
She “declined offer of further input by CATT stating there is nothing CATT can help with and that she only came today as her father made her come”.
I note that both Ms Freiberg and her father gave evidence at trial that that appointment had lasted only ten minutes or so, and that the health professional had not been particularly interested in advising about treatment because Ms Freiberg was already seeing a psychologist.
Ms Freiberg’s evidence at trial was in a similar vein to her presentation at M Hospital on 2 April 2019: she was quite emotionally labile and erratic; she said she did not have a problem with alcohol; and that everything that had happened to her was the fault of her abusive husband.
At first blush, that statement reveals a marked lack of insight into her current predicament – that is, that her son does not wish to see her until she has stopped drinking.
As I said to her at trial, even if I believe every word she says about the abuse she has suffered and continues to suffer at the hands of the father, I still need to be satisfied that, on balance, she retains a capacity to parent X which would ensure that he is safe.
On the basis of all the above evidence, it is difficult to be so satisfied when Ms Freiberg cannot see her own part in the diminished nature of that capacity, and in particular, when she cannot see or accept the damage her drinking has done to her relationship with her son.
As far as Mr Freiberg is concerned, he clearly has the capacity to provide for X’s material needs in the sense that X is well sheltered, fed, clothed, and educated.
There is also evidence that he is sensitive to X’s emotional needs in that he has arranged counselling for him and professes a genuine concern for his wellbeing.
However, the Court has some concerns about the way X is being raised by his father, those concerns mainly being to do with his father’s attitude to women and the way he conducts relationships.
I will return to that issue later in these Reasons.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
There is abundant evidence before the Court to say that the mother lacks maturity, despite her age, and that her lifestyle, which sometimes includes the consumption of large amounts of alcohol, presentations at hospital emergency departments, and trouble with the police, including criminal charges, is evidence of that lack of maturity.
She persists in her view that she does not have a problem with alcohol in the face of clear evidence to the contrary, and appears to have done nothing between the time of trial and the time of writing to ameliorate the risk she poses to X because of that lifestyle.
Mr Freiberg presents as a mature man, although evidence about his coercive and controlling behaviour and family violence in general are not shown in his presentation.
X is a now 13-year-old boy. He shows considerable insight into the position he finds himself in, and is able to clearly express his concerns about both parents.
When the 13-year-old is the most insightful person in the family, it is indicative of the maturity (or lack of maturity) of the parents.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
There is no evidence that X has any Aboriginal or Torres Strait Islander heritage.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
The stark fact that X’s mother cannot stop drinking, despite its consequences being a major factor in the destruction of her relationship with him, displays an attitude to X that is dismissive and irresponsible.
Her behaviour towards X when she has come into contact with him after she has been drinking, does not convince the Court that she is currently a responsible parent.
Ms F’s report of the therapeutic counselling sessions between X and his mother in late 2018 describe a mother intent on having X understand her position, while refusing to listen to what he had to say.
Ms Freiberg professes to love X dearly, but her simple inability to change her lifestyle and accept the help offered to her, must be seen as indicative of her current attitude to X and to her parental responsibilities.
That is not to diminish in any way the fact that Ms Freiberg was X’s primary carer for the first ten years or so of his life, and that she performed all the tasks of an involved, loving and committed mother.
The father, on first presentation, appears to have a very positive attitude to X and to his responsibilities as a parent, and it is true that he has cared for X and attempted to protect him from his mother’s alcohol-related behaviour as much as possible.
However, there have been occasions when he has abused X’s mother either in person or by text message since the date of separation, and there is some evidence to show that X has been present on at least some of those occasions. That behaviour indicates a father who is insensitive to or uncaring about his son’s emotional and psychological needs.
(j) any family violence involving the child or a member of the child’s family;
The allegations of family violence made by the mother against the father permeate every part of these proceedings.
Those allegations have been consistent throughout the two years of the proceedings, and Ms Freiberg has never faltered in her descriptions of that abuse.
It is her case overall that she has been subjected to more than 20 years of verbal, physical, social, emotional, psychological, sexual and financial abuse by Mr Freiberg.
She says that overall Mr Freiberg is a manipulative, controlling and coercive man who could change from being a warm supportive husband to a violent abuser in the blink of an eye.
It is her evidence that throughout the marriage and afterwards, she had dealt with her husband’s behaviour by being compliant with his wishes, even when doing so caused her significant emotional and psychological distress.
She says that it was not until her psychologist told her that what she was describing was controlling and coercive behaviour and other forms of family violence, that she realised the true nature of her relationship with the father.
The mother alleges physical violence in the form of punching, hitting, spitting, hair pulling, smothering and choking, and she has particularised specific instances of that abuse in her Affidavit material.
In her initial Affidavit affirmed 29 June 2017 and filed 7 July 2017, Ms Freiberg states, at paragraph 3:
There have been multiple incidents of family violence perpetrated by the other party (hereafter called the “Father”) against myself and the children. Due to the trauma that I have suffered over the years and that I relive every time I acknowledge these events, I still have trouble expressing myself and being comfortable in revealing all of the information. I am currently attending a psychologist to assist me in disclosing the details of the abuse to my lawyer and I seek that I be excused from giving full particulars at this time.
After she had filed that Affidavit, the father complained that she had not particularised any of the incidents of family violence she alleges in that Affidavit.
In response, the mother deposes that all the children have all been exposed to their father’s violence, and it is her view that their behaviour and aligning themselves with him “is done out of fear and a need to be accepted by him[1]”.
[1] The affidavit of Ms Freiberg sworn and filed 24 July 2017 (“the mother’s second Affidavit”) at paragraph 19
She goes on to say, at paragraph 20 of her Affidavit, sworn and filed 24 July 2017 (“the mother’s second Affidavit”) :
The father is a very controlling and manipulative man. During the relationship he monitored everything that I did and regularly went through my phone. He has been very violent to me over the years and has made it very difficult for me to find the courage to leave. The father has also drawn the adult children into our disputes so much so that I feel that I am constantly defending myself to them even though the father is misleading them and not being truthful.
In describing the parties’ first separation in 2004, the mother states as follows, at paragraph 21 of her second Affidavit:
In (sic) or about 2004, the Father and I were at home. The Father had been going through my phone when he found one of his friend’s phone numbers in my phone. I had been speaking with this friend, Mr P, to organise a birthday surprise for the Father. We began arguing and the Father became aggressive towards me. He became physically violent and grabbed me around the neck. I moved out of the matrimonial home on that night. I was very scared about how the aggressive the father had become. […] I attended the Suburb Q police station and an Interim Intervention Order was made on 13 September 2004.
It is Ms Freiberg’s evidence that even after she had obtained an Interim Intervention Order against the father, he continued to harass her to return to the marriage, and would become aggressive if she did not acquiesce to his wishes.
She specifies the following incidents:
· on or about 6 December 2004, the father became aggressive when they were discussing arrangements for the children, and when she hung up on him, he sent her an aggressive text message.
· On or about 21 December 2004, she had seen the father standing in her driveway in contravention of his Intervention Order, and she had called the police, believing the father’s actions to have been “designed to intimidate me”.
· On or about 8 January 2005, the father had swerved at her and attempted to run her car off the road while Ms C was in the car with her.
· On the same day, the father had blocked her car and verbally abused her so that she felt “very scared and intimidated”.
· On one occasion at changeover in a park in Suburb D, the father had said to Mr A and Mr B, then eight and ten years old: “Come on boys let’s not waste any more time on this filthy slut”.
· On another occasion in mid-January 2005, she had been visiting a friend when the father had entered through the back door unannounced and begun verbally abusing her, calling her names such as “slut”. Ms Freiberg states: “I do not remember the exact words spoken but at this time he also made threats to my life”.
· On 6 February 2005, Ms Freiberg had again been visiting the same friend in Suburb D when they heard a noise at the front of her friend’s house, and saw the father standing on a vacant block opposite the house staring at them. It is her evidence that she had called the police but that the father had left by the time they arrived.
The mother deposes that the father had harassed her to withdraw her Intervention Order and the evidence supporting it, and that the continual harassment and intimidation, together with the fact that she then had three young children and could not support herself financially without Mr Freiberg’s assistance, caused her to move back into the family home in or about March 2005.
It is her evidence, in paragraph 31 of her second Affidavit, that the violence “recommenced almost immediately”, and that “(t)his period of time was probably the most violence (sic) the father had ever been as he was determined to make me pay for leaving him. The father would take me to the bedroom and go on and on at me for hours verbally and physically abusing me. This included spitting at me, slapping, punching, strangling me and holding a pillow over my face so that I could not breathe”.
Although she was qualified as a health care worker, she says that she gave up health care work to work in the family business because the father “had always complained that I did not support him”.
At paragraph 35 of her second Affidavit, the mother states as follows:
I say that the father has been abusive on so many occasions it would be impossible for me to detail each incident. The father does not feel any remorse for the abuse that he has dished out and any time I have tried to speak to him about his behaviour he has told me that I deserved it and if he had to, he would do it again.
In her Affidavit sworn 2 October and filed 11 October 2017 (“the mother’s third affidavit”), the mother provides further examples of the father’s intimidating and controlling behaviour.
She says that she believes that the father himself, or others at his instigation, are keeping her under surveillance and monitoring her every move.
She says that text messages received from her adult children indicate that they know where she is and what she is doing. For instance, the mother says that on 25 September 2017, Ms C sent her a text message asking why her car was parked on the street rather than in her garage.
On another occasion, Mr B sent her text messages criticising her spending after opening a bank statement addressed to her which had been sent to the family home.
In addition, Ms Freiberg says that she hears “a car revving its engine on the street outside my unit complex approximately 4 times a week and I recognise the sound as being the same as the Father’s car”.
It is her evidence that when the father discovered that she was seeing Mr N, she received abusive text messages from Ms C and Mr B about that relationship.
It is Ms Freiberg’s belief that “the Father’s behaviour in continuing to stalk me is designed to inflict as much trauma and stress on me as possible”.
There are two more subtle examples of the kind of behaviour the mother alleges, each of which is incredibly insidious and damaging to her self-esteem.
First, it is the mother’s evidence that the father convinced her, over time, that she had been sexually abused by her father. She says he used that “fact” to restrict her access to her family and to keep the children from them. Ms Freiberg denies that she was ever abused by her father, and that it was only Mr Freiberg’s bullying and derogatory comments about her family that caused her “to comply, albeit under protest, in an attempt to keep the peace”.
The process of denying a person’s lived reality, and convincing that person that their experience is false, is called “gaslighting”, and it is highly detrimental to that person’s mental health.
Second, Ms Freiberg’s evidence is that later in the marriage, her husband wished to expand their sexual practices to include third parties. She says he organised appointments with both male and female escorts, and while she admits that she took part in those practices, she says that she did so against her will, and only in an attempt to please Mr Freiberg.
She conceded at trial that she had even organised some of the appointments herself, but said that that was part of her compliance behaviour in the face of Mr Freiberg’s abuse and demanding behaviour. She said she thought that if she pleased Mr Freiberg, her life would be easier.
It was at this time, says the mother, that she began to drink alcohol more than she had before. She said that the father would ply her with alcohol so that she would consent to threesomes, and that she would drink to excess in order to deal with an experience that she found humiliating and degrading.
It is her evidence that the father insisted that she continue participating in these practices, despite knowing that she was only able to do so after drinking considerable amounts of alcohol, and that if she did not agree, or she did not show that she was “enjoying it”, he would become angry. Ms Freiberg says that by then, she had “come to a point in our relationship where I would do just about anything to keep the father happy”.
The mother says that after the parties’ final separation, which, she says was at the forcible instigation of the father, “the family violence continued with the father continuing to exert control over me and my decisions relating to X”.
She says that the father’s paying for her rented apartment for six months after separation, and his purchasing of white goods and other furniture for her, was simply another method through which he could maintain his control over her. She said she would have preferred him to give her the money so that she could choose her own household appliances and furniture.
I note at this point that under the Act, Mr Freiberg was obliged to support his wife financially if she was unable to do so herself and he had the means to support her. That he did so was the fulfilment of that legal obligation, and should not be seen as a favour to Ms Freiberg.
Ms Freiberg says that there have been several times since separation when she has thought of returning to the marriage for the sake of the children and because of the financial security it offered her, but says that with the help of her lawyer and her psychologist she has “come to realise that I cannot live with the father any-more (sic) and that I must be strong to protect X”.
Further, it is the mother’s evidence that the father has used these proceedings, both those in relation to parenting and those for property settlement, to further engage in the coercive and controlling behaviour that she says characterised their marital relationship.
For instance, it is her evidence that Mr Freiberg never made full and frank disclosure about his financial affairs, and that during the first half of 2018 he pressured her to sign a minute of consent orders in relation to property matters.
The only comment I make in relation to that allegation is that when the parties presented a minute of final consent orders in relation to their property dispute to Judge Bender for approval during a hearing conducted by telephone on 10 August 2018, Her Honour felt moved to add the following as Notations to those Orders:
A.Ms Freiberg was advised that there is a potential risk of there being no assets if the husband doesn’t pay (i.e. he has mortgaged property such insufficient equity (sic) to meet outstanding payments).
B.Ms Freiberg contends that she is aware of the risk and indicated that she trusts the husband and sought the Court make the proposed orders.
I note in passing, in relation to that issue, that Ms Freiberg issued enforcement proceedings in relation to property matters on 6 November 2019, and that final orders were made by consent in those proceedings on 28 November 2019. I did not hear that application, and am not aware of the details of its substance or outcome.
Overall, the father denies perpetrating a continued pattern of family violence against the mother.
It was his evidence initially that he thought the marriage was a happy one until the mother began to drink to excess in its last few years. Only after some uncomfortable cross-examination by Ms Freiberg and the Independent Children’s Lawyer did he concede that the marriage had not been the happy one he had described earlier.
It is not in dispute that he and Ms Freiberg engaged in sexual encounters with third parties, essentially in the terms described by the mother, during the last few years of the marriage.
It is Mr Freiberg’s evidence that the mother’s participation in those encounters was entirely consensual, and that while she did drink to excess at those times, he believed she was enjoying herself.
I note that it is perfectly possible for two people to experience the same event and remember it in very different ways, and that it is also possible for people to consent to engaging in certain behaviours against their will.
When interviewed by Dr E in November 2017, Mr Freiberg admitted that he had slapped his wife “when she played up” and he confirmed that fact at trial.
I find that a particularly chilling piece of evidence.
However, he denies that he engaged in a pattern of behaviour where he would take her to the bedroom and yell and scream at her while physically abusing her.
I note that the paternal grandmother, Ms J, affirmed an Affidavit in support of the mother on 4 May 2018, that affidavit being filed on 7 May 2018.
In that affidavit, Ms J, after alleging that her son was “teaching his children to lie”, deposes as follows at paragraphs 13 to 15:
13. During my time at their home, Mr Freiberg would never hit Ms Freiberg or abuse her in front of me. Mr Freiberg would say to Ms Freiberg “go to the bedroom”. I have witnessed him say this to Ms Freiberg many time (sic) over the years, probably more than 50 times over the years. Then he would scream and yell at her, I could hear his raised voice.
14. Sometimes Ms Freiberg came out of the room crying and upset. Most of the time she did not tell me what had happened in the bedroom, but she would say words like “I can’t go on” and “I can’t do this anymore” and I would say “yes you can”.
15. I could not go to the police about what was happening because I knew Ms Freiberg would never let me. I have seen Mr Freiberg program Ms Freiberg over the years, I have heard him constantly tell Ms Freiberg how useless and stupid she is. Ms Freiberg told me that Mr Freiberg spat at her many times.
Later in her affidavit, after denying her son’s evidence that he had been beaten by his father on a regular basis during his childhood, Ms J states as follows:
23. There are two sides to Mr Freiberg’s personality, it is like he has a split personality. At times he is okay but if he does not get his own way he becomes quite nasty.
24. Mr Freiberg has verbally abused me and attempted to control and manipulate me. Mr Freiberg wanted to buy a house in Suburb D. He wanted me to sell my house and move into his house in Suburb D. I did not want to do this because I have to think of my other two sons, Mr R and Mr S. Mr Freiberg has no power over me as I do not need or want his money.
25. I have not had much to do with Mr Freiberg lately because he has been very abusive towards me. To be honest, Mr Freiberg scares me at times.
26. It was not just Ms Freiberg that Mr Freiberg would abuse, he would take Mr A to the study and yell at him for a couple of hours or more and tell him that he was “stupid like his mum.” I heard him say to Mr A many times that he is “just like your stupid mother.”
Ms J says that she does not like saying such negative things about her son, but that “he can be totally out of control or charming”.
Ms J was required for cross-examination at trial but did not make herself available for that cross examination other than by telephone. The father’s counsel objected to her evidence being given by that means and she did not, in the end, give any oral evidence upon which she could be cross-examined. In those circumstances her evidence has considerably less weight than it might otherwise have had, although I do not disregard it altogether.
Ms H, the mother’s clinical psychologist, wrote a report for the Court and it was filed, annexed to an Affidavit affirmed and filed on 7 May 2018.
Ms H, who first saw the mother in 2015, and who acknowledges that she has never met Mr Freiberg, deposes as follows:
Ms Freiberg (sic) has demonstrated to be a consistent storyteller during her counselling appointments. She appeared initially reluctant to engage in storytelling regarding the alleged history of abuse, and this would fit with a woman who is fearful of retribution for acknowledging her concerns. As time has progressed Ms Freiberg has consistently spoken of alleged acts of family violence perpetrated across the time span for counselling engagement. The writer acknowledges that she has not known Ms Freiberg across the bulk of her marriage. However her presentation and counselling is of an emotionally damaged woman, with low levels of self-esteem and self-worth. It is hypothesised that such a presentation would be representative of the history of family violence consistent with her reports.
Ms H was also required for cross-examination, but the Court was informed that she would not be appearing as it was not her practice to appear in courts, despite having filed an Affidavit. Again, that fact diminishes the value of her evidence, although it does not extinguish it altogether.
The maternal grandfather, Mr G, also filed an Affidavit and he did make himself available for cross-examination at trial.
However, counsel for the father took objection to parts of Mr G’s Affidavit, and parts were struck out as being hearsay or irrelevant to the issues to be determined.
Counsel for the father also attempted to have any historical evidence of family violence excluded. However, given that the mother’s case is that she suffered violence at the hands of the father throughout the marriage and into the post separation period, and that it is the effect of the whole of that violence that has caused her mental health difficulties, I found that evidence relevant and declined to strike it out.
Mr G confirmed that he and his son-in-law had been friends at times during the marriage, and that he had worked for Mr Freiberg’s firm for a period of time, even being taken to the Country T by Mr Freiberg on a business trip.
When asked about his evidence that he had heard the father yelling at the mother multiple times during the marriage, Mr G said:
His way he spoke to Ms Freiberg right throughout their marriage was always down-talking and always putting her down, but may I also hastily add that Mr Freiberg has very much a split personality. On occasions you couldn’t meet a nicer bloke, and on other occasions watch out.
He said he had not interfered in his daughter’s marriage because while he had reason for concern about the way she was treated, he did not take any action “because that action may worsen the situation”.
He confirmed his affidavit evidence of visiting the parties during the marriage and experiencing the father abusing the mother, describing one occasion where his daughter and the father had gone into their bedroom, as follows:
For one hour we heard nothing but yelling and screaming coming basically from Mr Freiberg the whole time, whereupon I just said to my wife – I said I think the best thing we can do is go home. They’re obviously having a domestic. Am I going to do – go and beat the door down and interfere? We can’t. We had to leave. But I wasn’t happy with it.
When he was challenged about his statement that his daughter had had no say in the way the father manipulated the adult children of the marriage by buying them expensive gifts and paying them considerably more than workers of their experience and qualifications would normally receive, the following exchange took place:
Counsel for the father: Well, you don’t know that, do you?
Mr G: I do. I know the way she was treated. I know the way she was called “boofhead”, “you can’t fix stupid”, and put down at every opportunity, belittled in front of her family.
I found Mr G to be a credible, forthright and compelling witness, and I accept his evidence in relation to what he saw occurring between his daughter and the father throughout the marriage and beyond.
The maternal grandmother, Ms U, also filed an affidavit in support of her daughter in these proceedings, but was not required for cross-examination. Her evidence therefore stands unchallenged.
In her Affidavit, Ms U describes behaviour going back to 1991, just after the parties were married, when the mother disclosed to her that the father had “hit her in the back” after she had questioned the way he was trying to train their dog. As a result, Ms U says that the mother “could hardly walk” when she saw her on Mother’s Day 1991.
Ms U confirms her husband’s evidence as set out in paragraph 192 above. She then deposes, at paragraph 9 of her affidavit:
I have witnessed Mr Freiberg berating Ms Freiberg on many occasions with seemingly no regard for whomever is watching. This has occurred during the entire length of their marriage. On occasions I have raised my concerns about this with Ms Freiberg however she often brushed off and kept very much to herself. Ms Freiberg would often say ‘everything is ok mum, it’s ok’.
Not surprisingly, Mr Freiberg denies that he perpetrated any such pattern of behaviour, saying at first that he believed his was a happy marriage until the last few years when the mother began to drink to excess.
That flies in the face of the undisputed evidence of the parties having separated for several months in 2004-2005 and Ms Freiberg obtaining an Intervention Order against him at that time.
It also contradicts Mr Freiberg’s own evidence that he had slapped Ms Freiberg’s face on a few occasions during the marriage “when she played up”. When he was giving that evidence at trial, despite his written and verbal evidence that he did not find that behaviour acceptable, I gained the impression that he does not see that behaviour as other than normal and totally acceptable.
Even if that were the only allegation of family violence against him, his casual language and demeanour in describing that behaviour gives the Court great concern about his attitude to his former wife, and to women in general.
I note that if the trial of this matter had taken place after 10 September 2019, amendments to the Act would have ensured that Ms Freiberg was represented by counsel under the new s.102NA. However, as the law stood on 20 May 2019, she was forced to cross-examine the father personally, and the Court was informed that she was not challenging expert evidence which was detrimental to her case because she did not have the confidence to cross-examine expert witnesses.
I take that situation into account when I consider the allegations of family violence made by the mother against the father.
At trial, the mother asked the father about an incident which occurred outside a restaurant in Suburb D on 9 September 2018. As a result of that incident, the mother was charged and pleaded guilty to a charge of assault, but in this Court, it was her affidavit evidence that the altercation had been started when Mr Freiberg had said to her, as she walked past the restaurant, “Hey you, this is your son, do you remember him?” She says that she then walked over to talk to X, whereupon the father said to her, “You are nothing but a slut and a whore, go away”. She says that she did become “emotionally upset” but denies attempting to hurt Mr Freiberg.
Under cross-examination at trial, Ms Freiberg denied that she had been drunk or out of control on that evening, although her recollection about events after she left the restaurant was “all very foggy in my head”.
The father’s version of the same incident was that he had seen the mother walking past the restaurant, and that he had called out, “Hello. Do you want to say hello to your son?” He said that she had approached X, “very heavily intoxicated”, that she had been “very aggressive”, and that he had asked her to leave numerous times.
In addition, it was Mr Freiberg’s evidence that X had said to his mother, “Mum, you’re drunk. Please leave.”
Both parties were adamant that closed-circuit television (“CCTV”) footage of the incident, obtained under subpoena, would vindicate them, and a USB stick containing that CCTV footage was entered into evidence.
I have viewed that footage, which contains only vision and no sound and lasts about ten minutes, and it shows Mr Freiberg and X sitting at a table in a restaurant in the top left-hand corner of the screen. X looks rather bored, and Mr Freiberg, who cannot be entirely seen, appears to be using his phone.
Ms Freiberg and another woman walk past the restaurant and then turn around, obviously responding to someone saying something.
Ms Freiberg enters the restaurant and approaches X, standing close, bent towards him, but between him and the camera so that X’s face cannot be seen. She remains in that posture, close to X’s face and obviously talking, for quite a few seconds, and then approaches Mr Freiberg, but because of the placement of the camera, he can only be seen from the table down and Ms Freiberg can only be seen from the rear.
Ms Freiberg becomes emotionally distressed, and after confronting Mr Freiberg and speaking to him, while pointing at X for a few seconds, she leaves the restaurant before coming back and again saying something to Mr Freiberg and X. X remains impassive and says something to his mother.
The mother remains upset and leaves the restaurant in tears with the woman accompanying her trying to get her to leave the premises altogether.
The mother then has a conversation with the restaurant manager who has been called presumably because of the noise. During that conversation, the mother becomes even more upset and volatile and the other woman physically restrains her before leading her away.
When the mother has gone, Mr Freiberg takes his phone, makes a call and moves out of the camera’s vision. He remains so for a full four minutes or so before coming back, making another call during which he appears to be quite animated, again moving out of sight for a minute or so, before re-entering the restaurant, whereupon the footage ends.
Because there is no sound on the footage, it is impossible to know what was said between the parties or between X and his mother. The only thing obvious is that Ms Freiberg reacts to a call, and comes into the restaurant and talks to X and Mr Freiberg before becoming increasingly emotional until she is crying and very upset.
At the end of her time before the camera, the mother appeared to be speaking loudly, gesturing rather wildly, and she was in tears.
Some sort of mild scuffle appeared to take place when she came back into the restaurant the second time, but it is impossible to say exactly what happened at that time.
The footage would support both and neither party’s version of events that evening. What was very clear was X’s discomfort after his mother had spoken to him, and the encounter was clearly not a positive one for him.
Under further cross-examination, while accepting that he had had arguments with his older sons, Mr Freiberg denied that he had ever punched or physically hurt either of them.
Given the mother’s detailed and compelling description of him throwing a desk across a room during an argument with Mr B, and of him grabbing Mr A by the neck, closing his fist and punching him directly on the nose, I am somewhat sceptical about that evidence.
That is particularly so, when the father admitted under cross-examination that he had slapped Ms C’s face during an argument with her. He said that he had apologised to Ms C, and that it had not been acceptable for him to have slapped her, but I gained the impression that he was not particularly concerned that he had done so, and I note that that was the second time he had conceded that he had slapped the face of a woman in his family.
Overall, when I take into account all allegations about Mr Freiberg’s behaviour towards the mother of his children over many years, I find it more probable than not that that behaviour constituted family violence as defined in s.4AB of the Act.
However, it is also clear from the evidence that when intoxicated, Ms Freiberg has behaved in an abusive manner which would also fall under the definition set out in s.4AB.
For instance, as a result of the incident on 9 September 2018, she pleaded guilty to two counts of unlawful assault, contravening a Family Violence Intervention Order, and throwing a missile with intent to injure.
When asked under cross-examination about pleading guilty to those charges, Ms Freiberg said:
If I did, I did. I would have been advised to do that and I did it. I did not stab my husband. I did not hit him or throw a fork at him.
When counsel sought to clarify that she had “pleaded guilty to things you didn’t do because you were advised to do it; is that correct? That’s your evidence?”, Ms Freiberg replied, “I guess so”.
It was her evidence that she had not been intoxicated on that occasion, but that she had drunk two or three glasses of wine.
I note that after she left the restaurant on the evening of 9 September 2018, Ms Freiberg went to Mr N’s home, and after drinking more alcohol with him, there was an altercation/incident which resulted in Mr N calling an ambulance. She was then admitted to hospital overnight, and the hospital records refer to her still appearing to be intoxicated at 1:24a.m. the next morning.
There is also evidence that she has sent abusive text messages to the father and to her son Mr B, although she denied that at trial.
Some of those messages are annexed to the father’s affidavit material, and there are many which are abusive in nature.
I therefore find that both parties have engaged in behaviours that can be called family violence, although I find that the father’s behaviour, particularly his “gaslighting” and coercive and controlling behaviour, were more insidious than the behaviour of the mother, and I note that the father’s evidence at trial was that he was not afraid of Ms Freiberg, while her evidence was that she remains afraid of him.
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
The first Intervention Order issued between these parties was on 13 September 2004, at the time of their first separation.
Documents produced under subpoena by Victoria Police show that the father was reported to have breached that Order on four occasions between 5 December 2004 and 5 February 2005.
As a result of those reports, Mr Freiberg was charged with five offences: Breach Intervention Order; Make Threat to Kill; Unlawfully on Premises/Precinct; Harass Witness; and Unlawful Assault.
On 17 May 2005, which I note is after the parties had reconciled, Mr Freiberg was found guilty without conviction of Breach Intervention Order, and the remaining four charges were withdrawn.
The Intervention Order itself appears to have been withdrawn when the parties reconciled.
The parties then lived together until their final separation in April 2017.
As a result of the mother attending Suburb Q Police Station on 9 June 2017, Victoria Police made an application for a Family Violence Intervention Order against the father, naming both the mother and X as Affected Family Members.
On 15 June 2017, the father was interviewed by police after being accused of stalking the mother, but the matter did not proceed as it was considered that there was insufficient evidence.
At the first mention of that Victoria Police application on 19 June 2017, a limited Interim Intervention Order was made naming X as the Affected Family Member, while a full Interim Intervention Order was granted in relation to the mother.
On 31 July 2017, on the application of Victoria Police made on 24 July 2017, the Intervention Order was tightened and made final by consent without admissions after Mr Freiberg was alleged to have breached the original order.
On 9 August 2017, there was an incident at changeover, which took place at Suburb Q Police Station, which resulted in the father being charged with breaching the Intervention Order.
The father was also charged with a breach of the Interim Intervention Order following an incident on 23 July 2017 when he and the mother met unexpectedly at V Shopping Centre. When the police attempted to interview him about that charge, Mr Freiberg is reported to have stated that he did not wish to participate and would “leave it to his lawyers to sort out because it was so petty”.
On 2 November 2017, the father attended the Dandenong Magistrates Court to answer two charges of acting contrary to an Intervention Order with intent to cause harm or fear.
On the first charge, he was found guilty without conviction, and fined $2000 with $119 statutory costs.
On the second charge, he was found guilty without conviction, and was ordered to pay $500 into the Court Fund. In addition, Mr Freiberg was ordered to complete “an accredited Men’s Behaviour Change Program and an accredited Relationships Program” and to provide evidence to the Court by 30 November 2018 that he had done so. That matter was otherwise adjourned to 31 May 2019, after the completion of the final hearing in the current matter, and the Court is unaware of the final outcome of those proceedings.
On 12 December 2017, a further charge of breaching the Intervention Order was withdrawn.
There were further reports of the father breaching the Intervention Order in early 2018, but those reports were not progressed because the mother failed to attend an interview with the police, or to respond to follow-up telephone calls and texts to make a formal statement.
After the incident on 9 September 2018, Victoria Police applied for, and on 20 September 2018 obtained, a Final Intervention Order against the mother, with the father and X listed as Affected Family Members. The documents produced under subpoena show that Victoria Police were concerned for “the welfare of the AFM and the child due to the escalation in violence and presence of mental health and substance abuse”.
The mother was charged with three offences after the incident on 9 September 2018: Discharge Missile to Cause Injury; Assault with Instrument; and Unlawful Assault.
Between 3 November 2018 and March 2019, the mother was charged with multiple breaches of the Intervention Order against her, including two charges of Persistent Breach of an Intervention Order.
It is clear from the documents provided by Victoria Police that on the very next day after the Intervention Order had been served upon her, the mother had attempted to persuade her adult children to ask the father to drop the criminal charges, that in itself becoming one of the breach allegations.
While the mother pleaded guilty to several charges relating to breaches of her Intervention Order, it was her evidence, in her Affidavit affirmed and filed on 16 May 2019, that “the breeches (sic) were minor and simply an oversight of my awareness of the conditions of the order”. Given that she had been the Affected Family Member in previous Intervention Orders against the father, and had reported him to the police for similar breaches of his Intervention Order, I find that evidence somewhat ingenuous.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
It is always preferable, in my view, that orders made after a full trial are to be final orders.
In this case, X is now 13 years old, he has not seen his mother for about 18 months save for two sessions of therapeutic counselling in 2018, and he deserves certainty in relation to his living and care arrangements.
His mother does not seem to have addressed any of the issues which concern the Court about her capacity to provide a positive parenting role model for him, and in those circumstances, it is unlikely that she will be able to pursue any further litigation in relation to X until he does so.
(m) any other fact or circumstance that the court thinks is relevant.
I note that the mother lives with epilepsy, and that she has had several grand mal seizures in the past few years. She denies that those seizures have been brought on by alcohol consumption, and even denies that she has been told that there is a link between her alcohol habits and her seizures. That is clearly not the case, as the medical evidence subpoenaed for trial shows that she has been told that alcohol is contraindicated for people taking the medications prescribed to her for her epilepsy.
Her inability to control her drinking habits has not only destroyed her relationship with her son, it has led her to be reckless in terms of her own neurological health.
It is true that children can learn how to deal with a parent who is experiencing an epileptic seizure, and that such an event is not always traumatic for them. However, in a case like this, where X is well aware of his mother’s drinking, and he is also aware of the connection between her drinking habits and her epileptic seizures, her recklessness cannot help but give him the impression that his mother does not care about either herself or him.
Decision: Issue A
In all the above circumstances, where the Court has serious concerns about the mother’s ability to make decisions about X other than that she wishes to spend time with him, and in circumstances where she appears unwilling to address those concerns, I find it is in X’s best interests for his father to have sole parental responsibility for making major decisions about his life. He is the parent with whom X lives, and there come times in every child’s life when decisions have to be made, sometimes urgently.
It is not in X’s best interests for his mother to have to make those decisions while she continues to drink and her mental health is compromised.
However, I will craft Orders so that Mr Freiberg is obliged to seek out and consider the mother’s views before making any such decisions.
Issue B: Where should X live?
X had lived with his mother for his whole life, even after his parents’ separation, until his father refused to return him from a weekend with him in June 2017.
That is, he had spent his first ten or so years either solely or primarily in his mother’s care.
After his parents’ separation in April 2017, X lived for several months with his mother and Ms C in a rental property acquired for them and paid by the father, before Ms C returned to her father’s home complaining that she was being used as a carer for her then 10-year-old brother.
X then lived with his mother, and spent regular and frequent time with his father, for a further few months until his father withheld him and issued these proceedings in June 2017.
X did not then see his mother until Orders were made in August 2017 for him to spend time with Ms Freiberg for two periods of daytime only each week, and that time was supervised by Ms Freiberg’s sister, Ms W (“the maternal aunt”).
X has not seen his mother, other than in the context of two counselling sessions, since July 2018.
I have already set out the evidence in relation to Ms Freiberg’s capacity to look after X.
Decision B:
On the evidence before the Court, given X’s age, maturity and views, and his mother’s compromised capacity to look after him, I cannot find it to be in his best interests to return to his mother’s care full time.
He has lived with his father for 2½ years at the time of writing, and has spent no time with his mother, save for one session of reportable counselling, since mid-2018.
Further, at the time of trial, Ms Freiberg was living with her parents, and there was no evidence about the circumstances or facilities available for X at that accommodation.
Ms Freiberg will need to make significant changes in her life before a Court could consider her as the resident parent of a teenager, although it must be said that it was not clear at trial that she wished for X to live with her. She seemed much more interested in reviving what had been a close, nurturing and loving relationship until mid-2017, and it was not clear whether that meant living with him or merely spending time with him.
Issue C: Should X spend time with his Mother, and if so, what conditions should be imposed?
Ms Freiberg desperately wants to have a relationship with her youngest son that is as close as possible to the very close and loving relationship witnessed by Ms K in her Family Report prepared in late 2017.
Unfortunately, that relationship has now been fractured to the point where X has no trust in his mother and does not wish to see her.
The father seeks Orders that X spends time with his mother according to his wishes.
The Independent Children’s Lawyer supports that proposal.
Decision C:
In all the circumstances of this case, I cannot find that it is in X’s best interests to be forced to spend time with his mother against his will.
Therefore, I will make the Orders sought by the father and the Independent Children’s Lawyer.
That is, X will see his mother according to his wishes, and if he does decide he wants to see her, she will be restrained from drinking alcohol for 24 hours prior to and during all time she spends with him.
That is not to say that the Court has no concerns about Mr Freiberg. I have found him to have perpetrated persistent and pernicious family violence against the mother, and I do have concerns about the view of women X will grow up with and be exposed to.
That is a risk to X’s emotional health, but in all the circumstances of the case, it is not an unacceptable risk.
Conclusion
I said at the beginning of this judgment that this is a particularly sad case.
That is because a close, loving, nurturing relationship between a boy and his mother has been destroyed by the mother’s inability to remain sober, and her refusal to seek the intensive assistance she needs in order to do so.
Why she began drinking to excess in the last years of the marriage can only be inferred from the evidence.
Ms Freiberg blames the family violence she endured at the hands of the father over many years, and it is plausible that she might have attempted to escape that abuse through the sedative power of alcohol.
I note also that there appears to be a contemporaneity between the parties becoming involved in threesomes and other sexual practices, and the mother’s increased and problematic drinking.
Nevertheless, whatever the cause, Ms Freiberg’s current capacity to parent X is such that he is at an unacceptable risk of harm in her care, and until she comes to terms with that reality, and the reality that he will not see her until she addresses that issue, it is likely that she will remain estranged from all her children.
I certify that the preceding two hundred and ninety-four (294) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 7 February 2020
Key Legal Topics
Areas of Law
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Family Law
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Negligence & Tort
Legal Concepts
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Duty of Care
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Injunction
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Natural Justice
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Procedural Fairness
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Remedies
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