Gates and Shellard
[2017] FCCA 269
•22 February 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GATES & SHELLARD | [2017] FCCA 269 |
| Catchwords: FAMILY LAW – Parenting – Father alleging parental alienation and seeking a change of residence for children aged almost 9 and 5 – mother alleging realistic estrangement between the father and the older child and proposing that the children continue to live with her and spend supervised time with the father four times a year for identity purposes. |
| Legislation: Family Law Act 1975 (Cth), ss.60CC, 61DA, 65Y |
| Applicant: | MR GATES |
| Respondent: | MS SHELLARD |
| File Number: | NCC 3175 of 2014 |
| Judgment of: | Judge Terry |
| Hearing dates: | 6, 7 and 8 February 2017 |
| Date of Last Submission: | 8 February 2017 |
| Delivered at: | Newcastle |
| Delivered on: | 22 February 2017 |
REPRESENTATION
| The Applicant: | In person |
| Counsel for the Respondent: | Mr Rugendyke |
| Solicitor Advocate for the Independent Children’s Lawyer: | Mr B Quinn |
| Solicitors for the Independent Children's Lawyer: | Intercept Law |
ORDERS
Subject to Order (2) the mother shall have sole parental responsibility for the children X born (omitted) 2008 and Y born (omitted) 2012 (“the children”).
The mother is restrained and an injunction is granted restraining her from:
(a)Changing the children’s names including their surnames; or
(b)Relocating the children’s place of residence from the (omitted)
without the consent of the father or an order of the court.
The mother shall promptly advise the father in writing (by text message, email or otherwise) of any decision she makes about a major long term issue concerning the children.
The children shall live with the mother.
The children shall spend time with the father on four (4) occasions each year as agreed between the parties but failing agreement during the first week of March, June, September and December each year supervised by a private supervision service on the (omitted) such as Big Brown House or Rekonnect.
The father shall be responsible for the costs of each supervised visit.
The father shall be responsible for organising the supervised visits and must advise the mother in writing (by text message, email or otherwise) no later than fourteen (14) days prior to the commencement of the visit of the name of the private supervision service who will be conducting the supervision and the place where the mother needs to drop off and collect the children.
The father is restrained and an injunction is granted restraining him from removing the children from any school, after school care facility or extra-curricular activity or from the care of any person in whose care the mother has placed them.
The father may send letter, gifts or cards to the children provided that they are sent at reasonable intervals and that the gifts are modest gifts of the nature given by the parties to the children during their relationship or post-separation period.
If either of the children wishes to respond to any letter, card or a gift sent by the father or wish to telephone the father the mother shall not unreasonably refuse to facilitate this occurring.
Each party shall keep the other advised of their residential address, and mobile and if they have one landline telephone number and shall advise the other party of any change to those details within seven (7) days of the change occurring.
Each party shall be entitled to obtain from the children’s school(s) copies of newsletters, reports, order forms for school photographs and other information normally provided to parents BUT unless the consent of the mother is sought and obtained the father shall not attend events at the children’s school(s) normally attended by parents.
Each party shall promptly notify the other if either of the children are involved in an accident or medical emergency requiring attendance at hospital or are diagnosed as suffering from a serious illness.
IT IS NOTED that publication of this judgment under the pseudonym Gates & Shellard is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 3175 of 2014
| MR GATES |
Applicant
And
| MS SHELLARD |
Respondent
REASONS FOR JUDGMENT
Introduction
X almost 9 and Y 5 live with their mother. Y is spending time with the father supervised at a contact centre but X refuses to attend the visits and has spent no time with the father since May 2016.
The father said that the mother had manipulated X into rejecting him and that things would go the same way with Y unless something was done. He sought an order for sole parental responsibility and proposed an immediate change of residence. He acknowledged that this would cause the children some short term distress but said that this was a small price to pay if it ensured that they had a good relationship with both their parents in the long term.
The father proposed that the children spend time with the mother as determined by the court. In the witness box he said that he felt that the children’s time with the mother would need to be supervised in the immediate future so that she did not continue to tell the children lies about him.
The mother proposed that the children live with her and spend supervised time with the father four times a year for recognition purposes. It was her case that X was realistically estranged from the father and that Y was becoming tentative about him. It was her case that because the father would not acknowledge fault and continued to blame her for the current situation the situation was irreparable.
The evidence
The father relied on his affidavit and the affidavits of his sister Ms E, his father Mr M and his partner Ms J.
The mother relied on her affidavit and the affidavit of Ms A, a psychologist who saw X between August 2014 and April 2016.
Also in evidence was a Limited Issues Family Report prepared on 15 July 2015 by Mr D, a family consultant, and a full Family Report prepared by Ms B, a Regulation 7 Family Consultant, following interviews in March 2016.
All of the witnesses were cross-examined.
I have considerable concerns about the father’s evidence because so often what he said about himself did not match with how he appeared as a result of evidence given not only by others but by him.
The father said that he was not an angry man or a bully who engaged in intimidating conduct and that the mother’s assertion that he threatened her with jail on 28 May 2014 was false because he was not the sort of person who would say something like that. However some of the evidence showed him in exactly that light. His own evidence about a recording he made of his son on 17 July 2015 and his admission that he threatened to call the police if Ms A’s receptionist did not get Ms A to immediately call him back (which he said was a perfectly understandable response) stand out.
The father said that he did not question and confront X about parenting matters but he seemed oblivious to the fact that his own evidence repeatedly contradicted that assertion, for example the evidence in paragraphs 151 and 157 of his affidavit, the evidence about the recording he made on 17 July 2015 and the content of an email he sent the mother in September 2014 set out in paragraph 15 below.
The father said that he did not make negative comments about the mother to the child and the following paragraph appeared in his affidavit:
I deny that at any stage during supervised visits I have said anything negative or inappropriate about the respondent to the children. I make a point of ensuring that my time with the children is positive time and the only thing I have ever said to the children about the respondent is “be good to your mum, see you soon.”[1]
[1] Father’s affidavit filed 30 November 2016 paragraph 293
It is very difficult to understand how in the light of the entries in the Big Brown House notes including the entry on 22 May 2016 when he is recorded as telling X that his bad behaviour was “all because of your bloody mother” and that the mother was putting things into his head and that he was not the one lying to X, he could justify giving such evidence in his affidavit.
It is clear from the father’s trial affidavit and it was clear to Mr D when he prepared the Limited Issues Family Report in July 2015 that the father is passionately convinced that he is a victim at the mother’s hands and the evidence he presented in his case showed that this had been his mindset ever since the parties previously civil parenting relationship broke down in May 2014.
The father annexed to his affidavit an email he sent the mother September 2014 after she informed him that X's GP had referred X to a psychologist because of bedwetting and anxiety. In the email the father said among other things as follows:
This is very concerning, as this has never happened before, only in the last 4 months which you have denied mine and X’s relationship and he has never had one on one time with me.[2]
[2] Father’s affidavit Exhibit HH
Also in September 2014 and shortly after X commenced seeing Ms A the father sent the mother an email which said as follows:
I asked X how his day was and he said he met a lady that only asked questions about me??? I then asked him did she talk about mummy or anything else and he said no. I then asked was it ok and he said sorry as mummy said I don’t have to tell you and I don’t want to talk about it???
What gives you the right to tell X not to tell me anything??
Once again proof of your manipulation and intent on destroying my relationship with the kids but most importantly your manipulation and lies to the kids!! which is deeply concerning. [3]
[3] Exhibit HH of the father’s affidavit.
Given the father’s long standing, passionate and fixed mindset that the mother is attempting to alienate the children from him I will need to bear in mind when considering his evidence the risk that he has interpreted events through the prism of these beliefs and given evidence only about things which support his beliefs.
There is also the risk of embellishment and this occurred in relation to the father’s evidence about Y’s fat lip. It is clear from the father’s affidavit that he did not believe the child when she told him that the injury was accidental. When challenged about this in oral evidence he said that the child had a fat lip which looked like a punch. This does not appear in his affidavit.
The paternal grandfather and paternal aunt strongly support the father. The paternal aunt said that she had been told that once she became a supervisor she should keep a record of things which happened during supervised visits but coincidentally all the information she recorded, often it would appear verbatim, was information which was negative about and critical of the mother. She made no critical comments about the father’s behaviour in her affidavit, not even of his behaviour in setting X up and recording him on 17 July 2015 which deserved strong condemnation.
When the paternal grandfather was asked about the recording in cross examination he said:
I thought (X) was happy to sit with the bigger boys and answer questions.
The paternal grandfather and the paternal aunt do not add an element of independent evidence to the case.
Mr D also considered that the mother approached the case from a passionate position that the problems were caused by the father. I have respect for his opinion but the distinction between the parents is that I am satisfied having heard all of the evidence that there is merit in some of the mother’s claims about the father.
I do bear in mind however that the mother’s own attitudes and personality make it quite possible that she also has either selectively reported evidence to fit with her beliefs about the cause of the current situation or has interpreted events through the prism of those beliefs. I also bear in mind that anything the mother reports the children to have said may for a variety of reasons be unreliable.
Background
The parties are both have (nationality omitted) heritage. They commenced cohabitation (omitted) 2007 when they were both about 34 and they have two children, X born on (omitted) 2008 who is almost 9 and Y born on (omitted) 2012 who is 5.
The parties initially lived in Sydney but moved to the (omitted) not long after X’s birth. The father commuted to Sydney for work. He worked about 65 hours per week and his work required some interstate and overseas travel. The mother ceased work just prior to X’s birth and thereafter did not work outside the home and was the children’s primary carer.
The father said that he was closely involved in the children’s care at night and often exclusively involved in their care on weekends. The mother disputed this but it is likely that the truth lies somewhere in the middle.
The parties separated on 18 November 2012 when X was 4 and Y 9 months old but for the next eighteen months they kept up a semblance in the children’s eyes of being together notwithstanding that they were separated. The mother and children remained in the former matrimonial home and the father was substantially at the house on weekends and during part of this period also came to the home after work several nights a week and did things such as putting the children to bed and reading them a story. The parties went on outings together with the children and also went on two family holidays.
The father complained in his trial affidavit that prior to separation the mother was controlling and verbally abusive to him, gave him a black eye when X was 18 months old after an argument in the car, gave him a bloody nose in March 2012 after an argument and scratched his face on the day of separation. He said that he went along with the charade that the relationship had not really ended because he felt that if he did not do so the mother would not let him see the children.
The mother denied perpetrating physical violence or behaving in a controlling way. She alleged in her trial affidavit that the father habitually engaged in bullying and intimidating behaviour toward her during the relationship.
Wherever the truth lies about these things, for 18 months the parties co-parented the children without incident. The arrangement was an easy way to deal with the difficulties inherent in a parent spending time with a very young baby and it no doubt suited the mother who harboured hopes of reconciliation. I consider it likely that it also suited the father. He came across throughout the proceedings as a forceful dogmatic person prepared to go to considerable lengths to get his own way and I do not accept that he was suborned into agreeing to an arrangement he disliked.
The parties’ relatively amicable relationship came to an end in May 2014 however.
On the weekend of 23/24/25 May 2014 the mother went away for the weekend and left both children with the father. It was the first occasion she had gone away overnight without the children and unfortunately while the children were with the father X fell and injured his arm. The father noted the injury but did not seek medical attention for him and on the following Monday morning after X spent a restless night the mother took X to the hospital and it turned out that his arm was broken.
The mother was upset on two counts: she felt that the only reason X had broken his arm was because the father left him unsupervised while he was engaged in a work activity and that he should have taken X to the hospital to check the arm out and didn’t.
Things simmered until 28 May 2014 when the parties had an argument in the garage at the former matrimonial home (or at least the mother said it was an argument; the father said it wasn’t an argument rather he was yelled at). The mother alleged that the father tried to push his way into the house and she called the police but nothing came of this.
After this incident the mother told the father that she did not want him coming to the house but would agree to him spending time with the children in a playground or park provided she was present. For a while this occurred. The father sometimes brought a work colleague Mr S and/or the paternal grandfather and paternal aunt and in due course he asked the mother if she would agree to him spending time with the children in her absence but with one of these people present and she agreed.
It is clear from the affidavits of the paternal grandfather and paternal aunt that from the outset the paternal family was strongly in the father’s camp and accepted assertions by him that the mother had mental health issues and was being unreasonable in her actions in relation to the children.
The parties had mediation in mid-2014 and an agreement was drawn up which provided for X to spend time with the father for a full alternate weekend and for Y to spend time with him during the day with overnight time to begin when she was 4. However the agreement never signed.
In August 2014 X's GP referred X to a psychologist, Ms A, with the reported problems being anxiety and bedwetting and X commenced seeing Ms A on 29 August 2014.
The father continued to see the children with members of his family present but there were numerous spats at changeovers.
On 3 December 2014 the father filed an application in this court seeking orders that the parties have equal shared parental responsibility and that the children live with the mother and spend time with him on alternate weekends and during school holidays.
The mother filed a response seeking that the children live with her, that she have sole parental responsibility and that the father spend time with the children supervised by the paternal aunt or paternal grandfather.
On 16 March 2015 interim orders were made for the children to live with the mother and spend time with the father supervised by the paternal grandfather or paternal aunt from 3.10 to 5.00pm on Monday and Tuesday and from 9.00am to 12 noon on Saturday.
The issues defined by the parties were the father’s allegations of manipulation and alienation and the mother’s concern that the father had parent capacity issues and that the children were reluctant to spend time with him. An order was made pursuant to s.11F of Family Law Act 1975 for a child inclusive child dispute conference to take place but X was ill on the day scheduled for that event and did not attend and as a result a Limited Issues Family Report was ordered.
The issue the family consultant was asked to consider was appropriate arrangements for the children to spend time with the father.
The limited issues report
The parties and children attended for interviews with Mr D on 15 July 2015.
Mr D noted that while the children were continuing to spend time with the father pursuant to the March 2015 orders:
The co-parenting relationship has deteriorated even further. The parents have very little direct communication and that is typically hostile with subsequent cross allegations and denials. Much of the communication is through lengthy and legalistic emails with various legal and other parties copied in. The parents have been in conflict about various injuries the children have sustained with allegations and denials. The parents have also been in conflict about X playing (hobby omitted) and about X’s (hobby omitted) (and subsequently Y’s as well) being changed by the mother to a day when X is in the father’s care. The parents have also been in conflict about the children spending time with paternal family while the father was overseas for ten days for orientation with his recent employment. The mother has recently made further assertions of alleged fraud by the father and reported those concerns to the police.[4]
[4] Paragraph 17 of the Limited Issues Family Report.
Mr D spoke to X, then 7, and noted that he had some knowledge of the parenting dispute. X told Mr D that he wasn’t ready for sleepovers at his father’s place yet and when Mr D probed him about this he said it was because about a month prior the father had thrown him to the wall and thrown him to the floor while he was spending time with the father at the paternal aunt’s house. He also said that the father had locked him in a room.
Mr D also reported as follows:
X explained that the father takes him into a room and questions him about the mother. X explained that he tells the father lies about the mother so that the father stops asking him questions and stops being angry/ doesn’t become angry. X was not able to give any examples of the lies that he told the father about the mother. When asked why the father would like it when X told him these (negative) things about the mother, X explained that it was because ‘he likes Mum getting upset and he likes me being on his team’. X advised that the father still asks him a lot of questions.[5]
[5] Paragraph 25 of the Limited Issues Family Report.
Y was not interviewed due to her age but during the observation session Y was excited to see her father and played with him. Mr D asked X (who was sitting with the mother) to join the session and he declined to do so.
Mr D referred in his report to notes prepared by Ms A in which X complained on a number of occasions that the father was pressuring him and questioning him about the mother which he found distressing. Ms A recorded that X told her that on 1 May 2015 the father took him into a bedroom and locked the door and questioned him about his sessions with Ms A and when he didn’t like X’s answers pushed his head to the floor.
At the end of his report Mr D noted that the father complained that the mother was controlling and was physically violent when she did not get her own way, was projecting her own failings onto him and was obsessed with defaming him and that she was pressuring the children not to express love for him and to reject him.
Mr D said that the mother asserted that the father was a sociopath who had a history of bullying and intimidating people. She maintained that the father had committed fraud and that she had been told that he was abusing drugs and alcohol.
Mr D was unable to come to any conclusion about whether the father had physically abused X, saying that it might be true, an exaggeration or a lie.
Mr D noted that the supervised arrangements were not working with the father asserting that they were unnecessary and reinforced to the children the mother’s message that he was someone to be feared and the mother asserting that the supervisors were turning a blind eye to the father’s behaviour and were hostile to her.
Mr D recommended that if the court considered that continued supervision was necessary then it be undertaken by an independent supervisor. He recommended that if the court did not consider that supervision was necessary the children should commence spending substantial and significant time with the father.
The recording made by the father two days after the report interviews
Even prior to the report interviews there was evidence to suggest that some at least of the mother’s claims about the father were not wildly fanciful and could have substance. The father was convicted of DUI in October 2014 and after X commenced seeing Ms A the father rang up her rooms and demanded to speak to her and when he was not immediately put through to Ms A told her receptionist that if Ms A didn’t call him he would ring the police.
Two days after the report interviews the father took an outrageous step which:
·Validated the mother’s claim that he was someone who engaged in bullying and intimidating behaviour.
·Gave colour of credibility to X’s claims that the father had been pressuring him and questioning him about the mother.
·Gave some colour of credibility to X’s claim that the father had taken him into a room and questioned him about his sessions with Ms A and pushed his head to the floor when he didn’t like the answers.
·Gave strong colour of credibility to the mother’s claim that the paternal family were not properly supervising the father’s time with the children.
(omitted) 2015 was the father’s birthday and on that day X went to the paternal aunt’s home to spend time with the father. The paternal aunt, the paternal grandfather and two young teenage cousins of X’s named L and J were at the home.
The father sat X down in the lounge room with the paternal grandfather, L and J sitting around him and proceeded to orchestrate and record a conversation. The paternal aunt, who was aware of what the father was intending to do, waited in an adjoining room with the door ajar.
The father began by subjecting X to a forceful expression of views that they were all Gates boys and that Gates boys did not tell lies. At this point the three other males dutifully chipped in at the father’s request to verify this. The father then asked the other three males if the father had ever hurt them and they each dutifully said no. The father then asked X why he had told lies to Mr D two days earlier and demanded that X confirm that he had lied when he said that the father had pushed him into a wall and pushed him to the floor. X obligingly and softly agreed that he had told lies.
My blood ran cold when I heard that recording.
At trial the father made no secret of what he had done and until the end of the trial clearly considered that it vindicated his claim that he had never physically harmed X.
Events after (omitted) 2015
The mother said in her trial affidavit that X had come home upset after this visit and told her that there had been a Gates meeting of “all the boys and men” and that he had been questioned about telling Mr D that his father had thrown him against the wall and against the floor.
She said that on a number of subsequent visits X came home complaining that his father kept questioning him about the issue and given what we now know I accept her evidence.
Other issues arose after this including an issue about X not wanting the father to attend a Father’s Day event at his school and an occasion where the father formed the view during a visit that X was telling lies and reprimanded him and X told the father that he was the liar.[6]
[6] Mother’s affidavit paragraph 106-111, father’s affidavit paragraph 185
The mother said that on 24 September 2015 X told her that the father had hit him on the head after he punched and broke the father’s laptop.
Shortly after this the mother ceased making the children available to spend time with the father and filed an application in a case seeking to have visits changed to supervised time at a contact centre.
On 30 November 2015 an order was made for time to be supervised by Big Brown House and for the parties to go onto a waiting list for time at (omitted) Contact Centre and time between the children and the father re-commenced.
In March 2016 a family report was prepared by Ms B. She could not decide where the truth lay in respect of the parties’ claims and counter-claims and did not make any definitive recommendations and ultimately the matter was listed for hearing.
It was the mother’s case that the supervised visits at Big Brown House did not go well. She said that X came home twice complaining that the father was trying to make him say that the father had never hurt him and trying to make him say that the father did not try and push the door in during the 24 May 2014 incident.
The Big Brown House visits were still occurring when Ms B prepared her report but on 8 May 2016 the visit was ended early after X punched and kicked the father. The next visit was uneventful but on 29 May 2016 there was a further incident where X punched and kicked the father and he has not spent time with the father since.
It was the father’s case that the visits with X did not go well and ultimately ceased because of the mother’s relentless campaign to alienate the children from him.
The father continues to see Y. Since 23 July 2016 these visits have occurred at the (omitted) Contact Centre.
The parties current circumstances
The father recently moved from the (omitted) to the northern beaches of Sydney to live with Ms J with whom he formed a relationship in mid-2016. Ms J has a daughter A who is the same age as Y.
Ms J seemed pleasant enough in the witness box and to her credit when the father played her the recording after they met she took a different view of it to the father but I have very limited information about her and she has not met the children. She supports the father and said that if the court ordered a change of residence she would do her best to make it work for the children.
The father works for a (employer omitted) company which sells its product to companies such as (omitted) and (omitted). He said that he worked from home but during cross-examination said that he was required to travel to the city and sometimes interstate for meetings. The father said that he had control over when the meetings took place.
The father said that if the children lived with him he would either enrol them at a local (omitted) school or at the local state primary school which A attends. The father said that he was now coaching (omitted) locally.
The paternal grandfather and paternal aunt continue to live on the (omitted).
The mother continues to live on the (omitted) with the children. Y started school this year and both children attend a local (omitted) school.
The mother has recently commenced working as a (occupation omitted), her occupation prior to X’s birth. She said that she fitted this around her child care responsibilities.
The maternal grandparents live near the mother on the (omitted) and the mother’s sister lives in Sydney.
The children’s best interests
Any orders I make about the children must be orders determined by treating their best interests as the paramount consideration and s. 60CC(2) and (3) of the Family Law Act 1975 contain the matters to which I must have regard in order to determine the children’s best interests.
The primary considerations in s.60CC(2) are the benefit to the children of having a meaningful relationship with each of their parents and the need to protect the children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.
S.60CC (3) contains the additional considerations which include the children’s views, the nature of their relationship with each of their parents, the capacity of each parent to provide for the needs of the children and whether family violence has occurred.
Sometimes it is preferable to make findings about the additional considerations and then return to the primary considerations and this is such as case.
The first additional consideration is any views expressed by the children and any factors (such as the children's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the children's views.
X told Ms B in March 2016 that he wanted to live with his mother and never see his father again. He said that if he had to see the father it would only be for 30 minutes and he didn’t like the beach because his father asked too many questions. He reiterated that his father had hurt him.
Not long after the family report was released X began refusing to go to the supervised visits and he has not seen the father for over seven months.
It was the father’s case that X was saying what the mother wanted/asked him to say.
X has acted on his views by ceasing to spend time with the father and his views have not emerged overnight; he refused to spend time with the father at the observation session in July 2015. I will have to take his views into account but he is not yet 9 and this is a high conflict parenting matter with allegations of alienation/alignment on the one hand and realistic estrangement on the other. I will not be able to determine the weight to be given to X’s views until I make findings about the remaining s.60CC(3) matters and the s.60CC(2) matters.
Y made negative comments about the father to Ms B and positive comments about the mother but did not express a view about parenting arrangements.
I must consider the nature of the relationship of the children with each of the children's parents and other persons (including any grandparent or other relative of the children).
The children have a good relationship with their mother. They spoke positively about her during both report interviews and were observed to have a mutually satisfactory interaction with her at both.
The mother has been the children’s primary carer throughout their life. There was no suggestion in either of the reports that she had an unhealthy, enmeshed, dependent relationship on her children.
It is very difficult to be sure about the nature of X’s relationship with the father. He refused to see him at the first family report interviews but did see him at the second interviews in March 2016 where he was observed to interact with him with ease and familiarity. Ms B observed that there was no sign of X being scared of his father. The Big Brown House notes contain many references to the father and X interacting well.
On the other hand both the father and the paternal aunt described X as being oppositional to the father during some of the visits which took place prior to time commencing at Big Brown House and not long after the family report interviews in March 2016, X refused to continue attending supervised visits after two very concerning incidents in which he punched and kicked the father.
X was 5 when the parties separated and there was limited evidence in the father’s affidavit about their relationship historically. The father worked long hours during the relationship. He did not give any evidence about his son as a person rather his affidavit was focused on complaints about the mother. In one throwaway comment during the hearing he said was that X had always been an anxious child.
The mother said that X generally enjoyed spending time with the father prior to May 2014.
The recording the father made two days after the interviews for the Limited Issues Family Report where X was set up and surrounded by four older males seriously calls into question the father’s capacity to prioritise X’s needs over his own and I have misgivings about the nature of the relationship between the father and X even prior to time ceasing. If it was a good relationship why did the father do this to his son?
X has not seen the father for seven months and currently has no relationship with him.
Y continues to see the father at the contact centre. There are many reports of her playing happily with him but also many reports of her resisting the father’s wish to kiss and hug her. Y sometimes makes critical comments to the father but there is no sign in the material of her becoming resistant to spending time with him.
At the time of the family report interviews with Ms B, X was willing to invite his cousins to his birthday party but during his individual interview he said that he did not want to see his cousins or paternal grandparents and that his cousins made him scared because they asked too many questions.
X told Ms B that he did not want to see his paternal cousins or paternal grandparents but Ms B observed X and Y to both relate well to the extended paternal family and said that while a close bond was not observed it did appear that there was a relationship there which could be developed.
The maternal grandparents attended the report interviews and Ms B said that from her observations the children had a satisfactory relationship with them. They did not give evidence at the trial.
I must consider the extent to which each parent has fulfilled, or failed to fulfil, the parents’ obligations to support maintain the children.
The father pays child support of $773.00 per month. No issue was raised in the mother’s material about any failure by the father to pay child support.
I must consider the extent to which each parent has taken or failed to take the opportunity to participate in making decisions about major long-term issues in the relation to the children, to spend time with the children and to communicate with the children.
This consideration does not assist me. Each parent has always been keen to spend time with and communicate with the children and be involved in decision making about them since separation.
I must consider the likely effect of any change in the children’s circumstances including the likely effect of their separation from either of their parents or any other children or person including any grandparent or other relative of the children with whom he or she has been living.
Both parents proposed a change.
The father proposed an immediate change of residence for the children and Ms B said as follows about this in her report:
The impact of the father’s proposal on the children will be that they will be removed from the mother’s household the only place they have known for the entirety of their lives. If the Court finds that the father is telling the truth and the children are being actively alienated from the father, then this course of action would help redress this imbalance and would restore the children’s relationship with the father. It would however, come at a significant cost to the children particularly X who has a well formed opinion that the father is abusive to him and to the mother. It would appear that Y is less aligned in this view and that her transition would still be difficult however may be of shorter duration. If the Court were to take this position it would be recommended that the children receive appropriate and long term psychological help to manage their distress. If however, the Court is unable to discern where the truth lies in this matter or that they believe the mother is telling the truth then the father’s proposal would be very damaging to the children and would place them at further risk of verbal and physical abuse from the father.[7]
[7] Paragraph 107 of the Family Report.
I will have to consider after making findings about the remaining s.60CC(3) matters and about the s.60CC(2) matters of whether making such a change is necessary to ensure that the children have a relationship with the father because the problem in the matter is the solely or predominantly road blocks put in place by the mother and if so whether the benefits of making such a change outweigh the detriments.
The mother also proposed a change. On her proposal Y would cease to see the father frequently and X would not resume regular time with him.
Under this proposal the children would not have any opportunity to have a meaningful relationship with the father. X might refuse to go to these limited visits and have no relationship with him at all and he would become nothing more than the equivalent of a distant uncle to Y.
In oral evidence Ms B outlined the possible negative outcomes for X of a continued rift with his father and of not having a father in his life.
The same comments apply to the mother’s proposal: I will need to make findings about the s.60CC(2) matters and the remaining s.60CC(3) matters before I can properly consider the likely effect of it on the children.
I must consider the practical difficulty and expense of the children spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
The mother lives on the (omitted) and the father in Sydney. Travel distance and traffic density means that time between the children and the parent they do not live with can only practically occur on weekends and during school holidays but this kind of distance does not prevent a parent attending events at the children’s school or extra-curricular activities on weekends if they choose to do so.
I must consider the capacity of each parent to provide for the needs of the children including their intellectual and emotional needs.
The father is an untested quantity as far as primary care of the children is concerned.
The father does not have much hands-on experience caring for the children on his own. During the relationship he worked very long hours and the mother was the primary carer. After separation and until May 2014 he mainly parented the children with the mother also present.
The mother was critical of the father over X’s broken arm in May 2014 not just because he was not supervising X when it occurred which could happen to anyone but because he did not seek medical treatment afterwards despite X favouring his other arm and complaining of pain, and Ms B questioned the father’s judgment arising out of his response when Y asked to touch a fan after the father lifted her up during the family report interviews. I do not accept the father’s assertion that Ms B misinterpreted this incident.
It was clear at the trial that the father had not turned his mind to the nuts and bolts of how he would care for the children if they lived with him. Simply saying his working hours are flexible tells me nothing.
The father is not the same responsive immersive parent as the mother. He might learn to become more responsive and effective if the children lived primarily with him but even if he didn’t it does not necessarily mean that the children would not be properly looked after on a day to day basis. Ms J impressed as a sensible sensitive person insofar as it is possible to judge those things from someone’s brief appearance in the witness box and the paternal grandfather and paternal aunt are strongly supportive of the father and would no doubt help him out.
However I also have to consider a parent’s capacity to provide for the emotional needs of the children and I have grave misgivings about the father’s capacity in this regard.
X complained to Ms A, Mr D and Ms B about the father questioning him and there is ample evidence that the father was in the habit of doing exactly that and doing it in a way which drew X into conflict and tried to get X onto his side and cause him to make complaints about his mother.
The father maintained in his affidavit that he didn’t do this but there was repeated evidence both in his own affidavit and elsewhere of him doing exactly that.
The father gave evidence about such an occasion which occurred in May 2015 and I set that evidence out in full both because it predates the recording incident by two months and because it is clear that the father is oblivious of what it says about the pressure he was placing on his son. That evidence is as follows:
During my visit with the children on 24 May 2015 when I collected the children from Ms Shellard, I also observed that X had marks on his face and what appeared to be the remains of a black eye. I said to X words to the effect:
What happened to your face buddy? Are you okay?
X responded with words to the effect:
Oh I was riding my skateboard and playing basketball and I tripped.
I said to X words to the effect:
Oh that’s no good. You don’t normally take skateboards to basketball.
X responded with words to the effect:
Oh yeah, a friend tripped me um whilst I was playing basketball.
I said to X words to the effect:
So there was no skateboard?
X then looked away. My sister Ms E was present supervising this visit. I observed my sister to look X in the eyes and say to him words to the effect:
Darling, if someone has done this to you, you know it is okay to tell us right?
X just lowered his head and did not reply.[8]
[8] Paragraph 151 of the father’s affidavit.
The incident where X was recorded on 17 July 2015 is truly appalling. At the end of the hearing the father said that he now regretted making the recording but this may only be because he has become aware of how it is viewed by others. He said as follows about the recording in his affidavit:
Without X’s knowledge, I was successful in recording a conversation that I had with X whereby X acknowledged that I had never thrown him up against a wall or a floor and that he had said these things as a result of promises made by Ms Shellard. I instructed my Solicitor to provide a copy of this recording to the Independent Children’s Lawyer, for his consideration. I can make this recording available to the court or the Family Consultant if required.[9]
[9] Paragraph 218 of the father’s affidavit.
The father also played it to Ms J after he commenced a relationship with her with a view to demonstrating that he was right and the mother was wrong.
Another concerning passage of evidence in the father’s affidavit was as follows:
On Sunday 20 September 2015, I spent time with the children supervised by my sister. During the course of my visit with the children, X had told a number of “white lies” to myself and his cousin. I had said to X, as a result of these white lies, words to the effect:
Come on X. You have to stop lying.
X had respondent words to the effect:
I don’t have to stop lying because you are a liar
I responded with words to the effect:
You know I am not a liar X. When have I ever lied to you?
X then said:
Der. That is why you and mum broke up.
I responded to X with words to the effect:
X I'm not going to talk about why we broke up but I can tell you one thing, I am not a liar.
This conversation took place when I had pulled up out the front of the respondent’s home at the conclusion of my time with the children. It was then that X got out of the car and I opened the door, gave him a hug and he ran down the driveway. I can recall that I said to X words to the effect:
Goodbye X.
X refused to turn around and kept walking down the driveway.[10]
[10] Paragraphs 183 and 184 of the father’s affidavit.
Another example of the father pressuring X and trying to get him on his side occurred at Big Brown House on 24 January 2016.
Not long prior to 24 January 2016 an incident occurred at a shopping centre between the mother and the paternal aunt. The mother felt that the paternal aunt tried to confront her. The paternal aunt felt that the mother tried to avoid her.
On 24 January, L and J attended the visit at Big Brown House and the notes record the following:
L said to X “how come we aren’t allowed to talk to you in the shops X?” X replied “I dunno.” L said “why did your mother pull Y away when she seen us?” X replied “no that’s not true. You’re (sic) mum ran into us with her trolley and wouldn’t let us past.” J said, “L doesn’t lie X. He always tells the truth.” The supervisor waited for Mr Gates to change the subject. Five minutes later X and L were still talking about it and the supervisor said “ok guys, maybe lets (sic) change the subject ok we don’t need to keep talking about it.” Mr Gates said ‘yeah guys that’s enough.” Mr Gates laid (sic) on the grass cuddling Y saying “my big birthday girl.”[11]
[11] Exhibit F – Big Brown House supervised contact report for 24 January 2016.
The father alleged at trial that he was focusing on Y at the time and did not hear the conversation. In light of the way he orchestrated the interview on 17 July 2015 at which L and J were also present I do not believe him.
There are also a number of references in the Big Brown House records to the father making comments (ostensibly quietly so the children could not hear him) in which he tried to make the supervisor aware that he was the party in the right and the mother was the party in the wrong.
There was abundant evidence that the father has a very marked incapacity to provide for the children’s emotional needs, has no empathy for the children or has no insight into how his strong need to prove that he is right is likely to harm the children. Mr D commented in July 2015 on the father’s strong need to prove that he was right and that need is clearly as strong as ever.
With time and counselling it is possible that the father might come to realise that he does not have a mortgage on the truth and that his children might always have their own beliefs about the past which differ from his. He might come to realise that children caught in a high conflict situation are likely to say things to please a parent even if they are not true and he might come to realise that forcing them to acknowledge that they have told lies about him at the behest of their mother will only result in them suffering pain and anxiety and possibly result in the having a poor relationship with both their parents in the future.
The father might come to realise those things with time and counselling but there is no sign of it happening at the moment and no guarantee that it will happen in the future. The father and his family will see a change of residence as a vindication of their beliefs about who is right and who is wrong in the current situation. There is a high likelihood that in the event of a change of residence the father will let his very strong need to be seen by his children as the parent who is right run rampant to the detriment of the children’s emotional well-being.
Another illustration of the father’s lack of empathy for the children is that he did not acknowledge anywhere in his evidence how difficult a change of residence would be for them and gave no evidence about any plans he had to help them adjust. When asked about this in cross examination he said in respect of Y:
I think she’s going to cope great, she’ll have a new sister.
Y has always lived with her mother. She loves her mother and her mother is caring for her well. It would be impossible for Y to understand why a change of residence had been ordered and why instead of being cared for by her mother she was now to be cared for by her father, his partner and members of his family and was only allowed to see her mother supervised. Ms B recognised that this would be extremely distressing for Y. It could dent her trust in adults and she might only emerge from it unscathed if the father had the empathy and parenting skills to help her adjust to the change. I am not convinced that he does.
X has also lived with his mother all his life and I strongly fear for X’s emotional well-being if he was suddenly told that his residence was to be changed.
The mother raised a concern in her affidavit about the father’s alcohol consumption. She alleged that he was a heavy drinker and that if he was affected by alcohol he would :
Scream more and stamp his feet and slam his hand on the bench or table.[12]
[12] Mother’s affidavit paragraph 23
The mother’s assertion to Mr D that the father sometimes engaged in bullying and intimidating behaviour was corroborated by the father’s behaviour shortly afterwards so I cannot simply assume that she has made false statements about the father’s alcohol consumption, and the father lost his licence for six months for DUI in about October 2014 which certainly does not lay to rest the issue of whether he has an alcohol problem. However no testing was carried out and there was little or no cross-examination about the issue and it is not open to me on the evidence to find that the father has an alcohol problem which may impact on his capacity to care for the children.
The mother is providing good day to day care for the children. The issue in the case is whether she also is failing to provide for the children’s emotional needs.
The father maintained that the mother had alienated X from him and would do the same with Y if something did not change but the issue of how and to what extent the mother’s attitude to the father and her actions have played into currently situation is complex.
The father alleged that the mother was controlling during the relationship and it was his case that she continued to be so after separation but this issue is complex in itself. As noted earlier I consider it likely that the arrangement that was in place in the first eighteen months after separation suited both parties, and while some of the mother’s actions after the broken arm incident suggest a desire to be in control her actions were also understandable. Y was only 2 ½ in May 2014 and it is natural that the broken arm incident would have shaken the mother’s confidence in the father. Then as family weighed in and conflict at changeover occurred each party felt that they had good reason to distrust the other.
Mr R, the clinical psychologist the parties saw in 2013, may have hit the nail on the head about the complex situation between the parties when he said as follows in a letter dated 4 March 2013:
We are working on Mr Gates being more assertive and Ms Shellard being more flexible in the ways she allows him into parental decision making. With his frequent long absences on business related matters Ms Shellard seems to have become a single parent in her thinking and behaviour toward the children. Mr Gates believes she is obsessive and controlling in her parenting behaviours and they have some distance to go in reconciling their very different approaches. [13]
[13] Exhibit L
The father said that the children had made remarks to him and his family since May 2014 which confirmed that the mother was putting negative ideas about him in their heads but I cannot place weight on this evidence. I cannot exclude the possibility that the father has selectively reported what has been said and even if he has not there is a considerable risk that the children might have said things to please him.
Ms B said that she asked Y who told her to tell the family consultant certain things and Y responded “Mum did” but I do not consider that weight can be placed on this response to a leading question.
I am not satisfied that the evidence establishes that the mother has sought to enlist the children on her side in the same way the father has clearly sought to enlist X but at the same time perhaps if she wanted to achieve that result she did not need to. She has always been their primary carer and if the children have felt the need to take sides because of the father’s aggressive behaviour and determination to be proved right it would have been natural for them to take the mother’s.
The mother is a very protective mother who may perhaps be inclined to be overprotective. She distrusts and dislikes the father and it is inevitable that the children will have picked up on this. They love the mother and she is caring for them well and some of the father’s behaviour to the children and to X in particular has been insensitive and overbearing.
A number of entries in the Big Brown House notes suggest that the children have now taken on a role of wanting to protect the mother. They both told the father that they did not want him to come to X's (hobby omitted) training because it stressed the mother if he attended.
The current situation might not have evolved if the mother had been a different person or the historical parenting of the children had been different but I am not convinced that the blame for the state of the father’s relationship with the children can be laid either solely or predominantly at the mother’s feet nor am I satisfied that she shows the same lack of capacity to provide for the children’s emotional needs as the father.
It was apparent from the affidavits of the paternal grandfather and paternal aunt that the father had repeatedly told them that the mother had mental health issues but there was no evidence that the mother had now or had ever had mental health issues which impacted on her capacity to care for the children.
Ms B, who like everyone involved in this matter struggled to understand how the current situation had come about and how it could be resolved, suggested that the court might be assisted if the mother had a mental health assessment to eliminate the possibility that she was suffering from:
Some form of paranoid delusion or other altered mental state[14]
[14] Family Report paragraph 118
The mother has never had such an assessment but there was absolutely nothing in the evidence to suggest that the mother suffered from such issues.
I must consider the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the children and of either of the children’s parents and any other characteristics of the children that the court thinks are relevant.
Ms B recommended that both children be referred to a child therapist because of what she considered to be their unacceptable level of awareness and stress associated with the parental conflict.
After the report was released the mother obtained a referral from a GP for this to occur but issues arose between the parties about how it was to be paid for and when trial affidavits were filed in November 2015 neither child was seeing a child therapist.
Relationships Australia recommended a program for X after his refusal to attend visits emerged.
The other relevant matter here is that the children are of (nationality omitted) heritage through their parents but this is not a relevant matter in terms of determining appropriate parenting arrangements for them.
I must consider any family violence involving the children or a member of the children’s family.
The father alleged that the mother was very controlling during the relationship and that the final separation followed an argument about whether he had correctly washed the children’s bathers.
He alleged that the mother was physically violent to him and would push him, punch him, head butt him and kick him and that she was physically abusive to him on a monthly basis.
He alleged that the mother was also verbally abusive, calling him a fucking useless nothing or a fucking piece of shit and saying that she wished he would die.
He alleged that when X was 18 months old the mother punched him in the eye with a closed fist when he was driving after an argument over whether he had purchased yoghurt. He alleged that he suffered a black eye.
He alleged that in March 2012 the mother head-butted him after an argument over the way he was stacking boxes in the garage and that his nose bled copiously. The father said that he had a photograph of his face after this incident but the annexure A he referred to clearly relates to the incident in November 2012.
The father alleged that on 17 November 2012 an argument occurred during which the mother kicked him and that on the following day during an argument she scratched his face. He attached a photograph to his affidavit showing a mark above his eye and scratches on the left side of his face. The father said that he reported the incident to the police but they told him that if he pursued a complaint they would arrest the mother and as she was still breastfeeding Y he decided to let the matter go.
The father said that he felt isolated from the support of family and friends for some periods during the marriage because the mother made it difficult for him to see them and would refuse to answer calls from his friends and family.
The mother did not address the issue of the black eye in her affidavit nor did she address the father’s general allegations about physical and verbal abuse although she denied to Ms B that she had physically abused the father. She said that there was an incident on the day of separation when the father cornered her, she ducked her head low to get under his arm and he bent down to block her and her head came up and hit the father’s forehead. She said that a vein above the father’s eye started bleeding. She did not admit scratching the father.
The mother alleged that the father told her after her head struck him that she was going to jail and would pay for what she had done and that X saw and heard this.
The mother alleged that the father was verbally abusive to her during the relationship and would yell that she was a control freak and crazy. She alleged that he used “intimidating and screaming” to get his own way and that this was worse when he had been drinking.
The father did not accept this description of himself and at trial referred to the notes of Mr R in which he is described as being defensive and reactive rather than assertive.
It is very difficult to be sure how serious and pervasive any aggressive, violent or unpleasant behaviour between the parties was during the relationship because everything is now clouded and coloured by the post-separation events. The mother annexed a number of cards to her affidavit in which the father said positive and pleasant things about her and for some time after separation the mother was keen to reconcile with the father which suggests that there must have been many positive things in their relationship.
I cannot be satisfied that the mother attempted to isolate the father from friends. The father accused her of being controlling about the way things were done around the house and given that the mother conceded that he called her a control freak during the relationship I accept that he did feel during the relationship that the mother was unreasonably trying to make him do things her way. Without further information about the issue however I cannot conclude that this was coercive and controlling family violence.
The mother’s account of what happened on the day of separation is as plausible as the father’s. She did not admit deliberately injuring him in March 2012 or giving him a black eye in 2008 and in the absence of concrete evidence supporting one version over the other, I am not prepared to accept the father’s evidence about these incidents in preference to the mother’s. The father gave contradictory evidence about other issues in his affidavit and another aspect of the matter is that people can sustain injuries accidentally.
On any view there were a number of very unpleasant arguments between the parties at or around the time of separation. The father sustained physical hurt in November 2012. The mother’s allegation that the father was sometimes loud and intimidating and that he threatened her with jail and tried to push his way into the house cannot lightly be dismissed because of other evidence such as his reaction when he was not immediately given an appointment by Ms A’s receptionist. I am reluctant however to make a definitive finding that either party committed acts of family violence. I do not consider that it will be helpful.
The other vexed issue in the case is X’s allegations about the father. He told Mr D and Ms A in 2015 and Ms B in 2016 that the father threw him against the wall and threw him to the floor and he raised this at intervals with the father during time supervised by Big Brown House.
The mother also reported that X told her on 28 September 2015 that he became angry because his father was saying bad things about her and that he punched the father’s laptop and broke it. He alleged that the father chased him and hit him on the head.
It is not open to me on the state of the evidence to find that the father assaulted X on either of these occasions. The only evidence about it is third party reports of things X has said. I cannot rule out the possibility that there has been some exaggeration or that something accidental occurred or even the possibility of complete fabrication by a child caught in a high conflict situation. However I also cannot rule out the possibility that there is some element of truth in what X has said, especially given the way he was treated at the Gates meeting.
It is clear from the Big Brown House notes that X is adamant that the father hurt him and is resentful and angry that the father will not admit it and it is very difficult to see how this situation can be resolved.
The father is adamant that he has not hurt X. He is not going to acknowledge that he did and Mr D said that it would be damaging for him to do so if the events did not in fact occur.
I cannot ask the mother to disbelieve X and lead him to a different mindset when other things X has said to the mother, most importantly about the “Gates meeting”, turned out to be true.
I also cannot discount the possibility that there is some truth in X’s allegations.
Perhaps a skilled therapist could help father and son by putting the allegations in a box and working on their relationship before re-approaching the matter but given the father’s intense need to be vindicated in respect of the allegations, demonstrated repeatedly in the evidence including in comments he made from time to time during the supervised visits, it is impossible to be optimistic that this would have any chance of success.
There is an unacceptable risk of family violence occurring between the father and X in the future while this situation remains unresolved. On 22 May 2016, the last occasion time took place between the father and X supervised by Big Brown House the supervisor said that he following occurred:
Mr Gates walked up to X and said “do you want an ice cream?” X walked away from Mr Gates and said “get away from me.” Mr Gates said “don’t speak to me like that ok.” X pushed his scooter away from himself and towards Mr Gates landing on the supervisor’s foot and walked away sitting on the wall. Mr Gates walked up to X and said “cut out the attitude mate. Your being rude and that’s not who you area.” X got up and punched Mr Gates in the face and said “fuck off.” X walked to the memorial and sat down. Mr Gates walked after X saying “you will treat me with respect. You may be angry mate but you will respect me I am your father.” The supervisor said “please lower your voice Mr Gates.” X yelled at Mr Gates saying “get the fuck away from me. You are a liar and I hate you, you fucking ass.” Mr Gates replied in a firm tone “stop speaking to me like that. This is your mother putting this in your head and I am sorry that you think that but I am not the one lying to you.” X punched Mr Gates in the face and kicked him in his private area. Mr Gates grabbed hold of X’s arms and said “you touch me again and you will be sorry. That hurts and I am your father. You do not touch me like that.” The supervisor said “ok that is enough now. Mr Gates let go of him and I think we will end it there ok.” Y said “but I still want my ice cream.” Mr Gates said “ok I will go and get you an ice cream and then you guys can go considering you both do not want to see me.” Mr Gates then said to X “this is all because of your bloody mother and you will learn the hard way to respect me.” The supervisor said to Mr Gates “Mr Gates stop now ok. You cannot speak to your children like that. This is the time to spend with them in a happy environment.” Mr Gates said “yeah happy. All this is a set up.”
I must consider the implications of any family violence orders but there have never any in this matter.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of their parents.
This does not help me as a separate consideration.
I must consider 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 children.
An order for a change of residence is most likely to lead to further proceedings. There is a high risk that the children will not settle. However an order such as the mother proposes could also lead to further proceedings if the father considers at a future time that he is able to demonstrate that things have changed and that it would benefit the children to spend more and different time with him.
I must consider any other fact or circumstance which the court thinks is relevant.
In his affidavit the father said as follows:
I verily believe that the respondent is trying to punish me for the breakdown of our marriage and for me not finalising the property aspect of my matter by not allowing me to spend time with the children. Annexed to this Affidavit and marked “JJ” is a copy of an email received 11 August 2014 from the respondent, whereby she indicated that she would not sign off on any parenting arrangement unless I agreed to property and superannuation at the same time. Being that no agreement has been reached in relation to property, I verily believe that as a result, Ms Shellard is punishing me by not allowing me to spend time with the children.[15]
[15] Paragraph 272 of the father’s affidavit.
I do not accept this as a general proposition. The mother does refer to financial matters in the email and to her wish for both the parenting and property matters to be finalised in one set of consent orders but the email does not contain a threat as such that if the father will not agree to the mother’s terms then she will not sign off on the parenting orders.
I must now return to the primary considerations which are:
(a)The benefit to the children of having a meaningful relationship with each of their parents and
(b)The need to protect the children from physical or psychological harm as a result of being subjected to or exposed to abuse neglect or family violence.
Things have reached the point where I query whether the mother has the capacity to promote and encourage a meaningful relationship between the father and the children. She continues to take X to the contact centre with Y allegedly in the hope that he will attend and she accepted a recommendation by Relationships Australia that X attend a course they recommended but there was no evidence that she was doing anything proactive to encourage X to take part in the visits.
I also consider however that given what happened on 29 May 2016 it would more likely be destructive for X than be helpful to him for the mother to press the issue of him attending the visits.
The father said that he had the capacity to promote a meaningful relationship between the children and the mother but I question that as well. I consider that there is a very strong likelihood that if the children lived primarily with the father he would be unwilling or unable to encourage them to spend time with the mother who he sees as responsible for all the problems in the matter.
I also need to consider s.60CC(2)(b) and s.60CC(2A) says that in applying the considerations in subsection (2) the court is to give greater weight to the considerations set out in paragraph (2)(b).
The father did not allege that the mother had ever hurt the children but said that because of what had happened to him he feared that this could occur in the future if the children crossed her. He also said that because of what had happened to him he feared that the mother might be verbally and physically abusive to other people in the children’s presence.
There is not a shred of evidence that the mother has ever been verbally or physically abusive to third parties and I do not accept that there is a risk of this occurring in the future. There is also not a shred of evidence that the mother has ever harmed or threatened the children and I do not accept that there is a risk of this happening in the future. The relationship between the mother and father was clearly unpleasant and fraught at times; it does not follow that this situation will exist between the mother and the children and the mother and third parties especially when no such thing has happened to date.
I cannot make a finding that the father has physically abused X but sadly I also cannot exclude that possibility given the events of 29 May 2016 and I have concerns about what might happen if X was forced to spend unsupervised time with the father.
Absent successful therapeutic intervention there is in my view an unacceptable risk of the children being exposed to family violence if I make the orders the father proposes, either because the father snaps or X snaps or both.
Parental Responsibility
Each parent sought an order for sole parental responsibility and Ms B recommended that the parents not share parental responsibility.
Pursuant to s.61DA of the Family Law Act 1975 I am required to apply a presumption that it is in the children’s best interests that the parents have equal shared parental responsibility for them absent a finding that one of the parents has engaged in abuse of the children or family violence.
Although it is possible that it occurred I am not prepared to find on the balance of probabilities that one of the parents engaged in family violence and although it is possible that it occurred I cannot find on the balance of probabilities that one of the parents has abused the children as abuse is defined in the Family Law Act 1975. The presumption therefore applies unless rebutted because to apply it would not be in the children’s best interests.
I share Ms B’s view that the parents’ relationship is so poor an order for equal shared or any form of shared parental responsibility would not work.
The father is hostile to the mother and has a strongly negative view of her and the mother dislikes and distrusts the father. They were not able to successfully negotiate the engagement of a therapist for X and Y after the family report was released despite the fact that both had a solicitor for most of the period after the release of the report. They are both convinced that the other parent is undermining them and there is a considerable risk of them both jockeying for position to have someone they perceive as being on their side or likely to be on their side chosen to counsel the children.
There is an unacceptable risk that they will not be able to consult with each other or agree about other issues concerning the children.
An order for sole parental responsibility must be made but it will have to be hedged about with some conditions to ensure that the parent who has it is not able to do things such as change the children’s surname or relocate with them without the other parent’s consent or an order of the court.
Conclusion
The court is faced in this case with two unpalatable options.
One is to make the orders sought by the mother, which will put an end for the immediate future at least to any chance of a meaningful relationship existing not only between the father and X but between the father and Y.
The other is to make the orders sought by the father, which will result in a dramatic and distressing change of residence for the children with a risk of family violence occurring between the father and X.
The Independent Children’s Lawyer said that there was a third option, making interim orders and requiring the family to attend therapy but this family have been in the court system for over two years and things have not improved over time rather they have become progressively worse. The positions of the mother, father and X are now so polarised that it is impossible to see family therapy imposed by court order leading to a solution.
Neither Mr D nor Ms B were able to come up with a definitive recommendation in this matter because they were unable to determine the root cause of the problem or determine whether the fault for the current situation lay primarily with one parent or the other.
I cannot be certain about the root cause of the problem but one possibility which strikes me as likely is that Mr R’s observation that due to the father’s absences during the relationship the mother “seems to have become a single parent in her thinking and behaviour toward the children” is correct and that due to their personalities the parents were never able to move on from that and establish a co-operative post-separation parenting alliance involving mutual respect and co-operation. To make matters worse, again probably due to the parties’ personalities, conflict and denigration perpetrated by both parties and their families emerged as the order of the day after the broken arm incident.
The children are caught in and heavily enmeshed in the conflict between their parents. X refuses to see the father and although Y continues to see him at the contact centre the notes indicate that she makes negative comments to him from time to time and resists being hugged and kissed. It is quite possible that if frequent supervised visits continue Y’s relationship with the father will deteriorate rather than improve. The father is quite right to say that continued supervision is conveying to Y that the father is someone to be feared and she already accepts X’s account of his father hurting him.
The solution the father sees to the problem is for me to order a change of residence but I do not accept that this would be in the children’s best interests.
If the father was an empathic insightful person who could be trusted to deal sensitively and appropriately with the children’s distress and if it was clear that the mother was the sole or main source of the problem and the father was better able to ensure that the children had a good relationship with both of their parents this might be worth considering but none of these things are so.
Although the mother may be part of the problem, I do not accept that she is the sole or main cause of it and the father is not an insightful and empathic person and does not have the capacity to assist the children to cope with a change of residence. He is also not capable of promoting a good relationship between the children and the mother. He is in denial about the way he talks about the mother to the children and his need to convince the children that the mother and not him is a liar is so strong that he is likely to ride roughshod over the children’s emotional needs if a change of residence is ordered.
There is no alternative but to order that the children remain living with the mother and that she has sole parental responsibility for them. I suspect that a point has been reached where the mother is unlikely to encourage a relationship between the children and the father if they express any reluctance to see him but I do not see her standing in the way of it if they express a wish to resume the relationship. The mother will provide the children with good day to day care and she is more capable of providing for the children’s emotional needs than the father albeit not perfect in this regard. It is the least damaging option for the children.
The issue then is what order should be made about the children spending time with the father.
Ms B recommended that if the court was unable to determine what had happened:
it may be beneficial for the children to live with the mother and spend supervised time with the father for a period of up to 3 months. That if this time is found to be without significant events that his time be changed to unsupervised and include overnights with X immediately and with Y after she commences school in 2017.[16]
[16] Family report paragraph 115
I cannot determine for certain what has happened but I cannot simply adopt Ms B’s proposal that time swiftly become unsupervised. I must consider the matter based on the evidence before me which includes evidence about the July 2015 recording which was unknown to Ms B, the evidence in the parties trial affidavits, information which emerged during cross-examination and information about events which have occurred since Ms B prepared her report including X ceasing to spend time with the father in May 2016.
I accept that long term supervised time is undesirable but I cannot make an order for unsupervised time. There is an unacceptable risk that there would be physical violence between the father and X if X attended and if he refused to attend then I would either be driving a wedge between the children if Y continued to be willing to attend or putting at risk Y’s time with the father because it is possible given the comments she makes from time to time at the contact centre that Y would in due course decide to throw in her lot with the mother and X and refuse to attend as well.
The mother proposed an order that the children spend time with the father four times a year at a contact centre.
How successful this will be is open to question. X may not attend and in the face of this Y may become reluctant. I may be faced with dealing with a contravention application in due course and time of this nature will not enhance the children’s relationship with the father even if it occurs.
It is however an order worth making because the father does have things to offer the children and it is preferable to preserve a link between the father and the children in case things turn around once the pressure is off everyone. The father does not have a criminal record absent the DUI conviction, he is productively employed, he has a large extended family and it would be highly regrettable if he had no future relationship with the children.
If this order is made and the parties and children are given a breathing space but the children are also given the opportunity to see the father and the father is able to reflect on the damage done by his intense need to demonstrate to the children that he is right and the mother is wrong and adopt a different approach with the children then there is some possibility of a relationship being reignited in the future. Ms B thought so. Speaking of X she said as follows:
If he knows the other parent holds him in their mind and doesn’t blame him he may be able to reconcile.
For all of the above reasons the orders of the court will be as set out at the beginning of this judgment.
In his affidavit the father said that he sought an order that the children’s names be placed on the Watch List. He did not give any reason for this other than that the mother was born overseas.
The mother was born in (country omitted) and migrated to Australia as an adult. Her parents and sister followed her to Australia. The father did not suggest that the mother had ever threatened to leave Australia with the children or had even suggested taking them overseas.
The mother will be able to obtain passports for the children without he father’s consent but s.65Y (2) of the Family Law Act 1975 may nevertheless prevent her taking the children overseas without the father’s consent. If the mother does wish to travel in the future then Watch List order or not and sole parental responsibility order or not she may need to obtain the father’s consent but she did not ask me to make an order concerning travel.
I do not intend to make a Watch List order because the necessity for it has not been demonstrated.
I certify that the preceding two hundred and thirty five (235) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 22 February 2017
Key Legal Topics
Areas of Law
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Family Law
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Statutory Interpretation
Legal Concepts
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Injunction
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