Geston and Geston - [2012] FMCAfam 460

FEDERAL MAGISTRATES COURT OF AUSTRALIA

GESTON & GESTON

[2012] FMCAfam 460

FAMILY LAW – Parenting orders – boys aged 12 and nearly 11 – proposal by Independent Children's Lawyer and father that children spend no time and not communicate with mother – mother's deep antipathy for father – mother denigrating father to and in presence of children – mother hitting and pinching children – dysfunctional relationship between mother and children – psychological abuse of children by mother continuing under supervised time arrangement – children expressing strong and consistent wish not to spend time with mother.

Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA

MRR v GR [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424

Applicant:

MS GESTON

Respondent:

MR GESTON

File Number:

PAC 6051 of 2008

Judgment of:

Halligan FM

Hearing dates:

18, 19, 20 April 2012

Date of Last Submission:

20 April 2012

Delivered at:

Dubbo

Delivered on:

20 April 2012

REPRESENTATION

Applicant:

Ms Geston In Person

Respondent:

Mr Geston In Person

Solicitor for the Independent Children’s Lawyer :

Ms Hafey

ORDERS

I make orders in accordance with the Independent Children’s Lawyer’s Minute of Proposed Orders marked Exhibit G subject to inserting, at the end of paragraph 7, after the word “invited”:
“provided that:
(i)she does not denigrate the father or discuss issues between the parties with any person attending the interviews or events;
(ii)she does not attempt to persuade the children to spend time with or communicate with her.”
Otherwise I dismiss all outstanding applications.

IT IS NOTED that publication of this judgment under the pseudonym Geston & Geston is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT DUBBO

PAC 6051 of 2008

MS GESTON

Applicant

And

MR GESTON

Respondent

REASONS FOR JUDGMENT

These are contested parenting proceedings between the parents of two boys aged 12 and almost 11.
The applicant mother is seeking orders that the children live with her, that the parents have equal shared parental responsibility, and, as she indicated at the commencement of the hearing, that the children spend time with the father for two periods of two hours each week.
The father was initially seeking orders that the children live with him, that the parents have equal shared parental responsibility, and that the children have limited supervised time with the mother, supervised by a named person in relation to whom there was no evidence that they continued to be available to supervise or were willing to supervise in the future and from whom no affidavit evidence had been obtained.
However, ultimately, on hearing the position adopted by the Independent Children’s Lawyer in final submissions, the father has now abandoned, in effect, those parts of his application inconsistent with the Independent Children’s Lawyer’s position and supports the orders proposed by the Independent Children’s Lawyer.
Those proposals are that all prior parenting orders in relation to the children be discharged, that the father have sole parental responsibility for the children, that the children live with the father, and that the children not spend time or communicate with the mother subject to certain further provisions, including that the father ensure that the children have the mother’s contact telephone number, that he take all reasonable steps to ensure that the children are able to phone the mother if they wish, that he not take any steps to prevent the children initiating communication with the mother, that he take all reasonable steps to ensure that the mother is given copies of the children’s sportings draws, that the mother be entitled to attend the sporting events provided she does not denigrate the father or discuss the issues between the parties with any person attending the event and does not attempt to persuade the children to spend time or communicate with her, and that he facilitate any reasonable request by the children, or either of them, to spend time with the mother.
There were further provisions in relation to seeking to ensure that the mother would receive regular information about the children’s progress at school, their health, six-monthly photographs, and that the mother be entitled, subject to any directions from the children’s school, to attend parent teacher interviews and other school events to which all parents are invited.
When I queried with the Independent Children’s Lawyer whether that was otherwise consistent with her proposals about the mother attending sporting events under paragraph 4 of the proposed order, the Independent Children’s Lawyer indicated that she would propose that the provision about attending parent teacher interviews and other school events ought to be subject to similar conditions attaching to the mother attending sporting events.
Otherwise the Independent Children’s Lawyer proposed that the father keep the mother informed of any serious medical issues concerning the children, authorise medical practitioners attended by the children to provide information to the mother about diagnosis and prognosis, and to let the mother know of any medical emergency affecting the children as soon as practical. The Independent Children's Lawyer proposed an order that each party keep the other informed of current address and contact telephone numbers.
The Independent Children’s Lawyer further proposed orders restraining each parent from physically disciplining the children or allowing any other person to do so; denigrating the other or members of the other’s extended families in the presence or hearing of the children or allowing any other person to do so; and from discussing the proceedings, the issues in them, the issues raised in the Family Report or the orders made in the proceedings in the presence or hearing of the children.
Finally, the Independent Children’s Lawyer proposed that the mother be restrained from attending at the children’s home without express invitation from the father; attending the children’s schools other than in accordance with the orders; initiating any telephone communication with the children either by voice or text; and using any means to attempt to persuade the children or either of them to spend time or live with her.
The mother clearly opposes these orders.
By way of background, the mother is 51, having been born [in] 1960 in the Philippines. The father [was born in 1957].
The parties married [in] 1996. They have separated. When they separated appears to be a matter of great contention in the mother’s view and matters concerning this are clearly matters that cause her great distress and anxiety and, in fact, cause her to hold great anger towards the father, she feeling that she has been cheated and betrayed.
I note that the mother’s application initiating these proceedings for parenting orders, which she verified as containing true information on her oath, says that the parties separated in August 2007. That is exactly when the father says they did. However, much of the mother’s evidence is directed to asserting the father fraudulently misrepresented to Centrelink, for social security purposes apparently, and to this Court in the divorce application, that the parties had separated in August 2007.
Whether or not the parties separated in August 2007 - and it is unnecessary for me to decide - it is common ground that the parties remained living in the same residence until early 2009 when the father left the home, apparently taking the children with him unilaterally.
Those children are [X], born [in] 1999 and [Y], born [in] 2001.
These proceedings were initiated in the [L] Local Court and subsequently transferred to this Court. On 12 February 2010, interim consent parenting orders were made by [L] Local Court. In broad terms, they provided that the children would live with the father and spend time with the mother each Monday and Tuesday afternoon, between 4 pm and 6 pm and each Sunday between 9 am and 11 am, supervised by a person named as Ms B.
There is an affidavit that the father relied upon sworn in the name of Ms B. When she was called for cross-examination she indicated that in fact her name is Ms G and it may be as a result of her domestic situation, living in a de facto relationship, that there may have been some confusion in relation to her last name.
On 5 April 2011, after the proceedings had been transferred to this court and after Ms B/G was unable or unwilling to further supervise the mother’s time, further interim parenting orders were made by consent, again providing for the children to live with the father. These orders provided for equal shared parental responsibility, the prior order being silent about parental responsibility, and provided for the mother to have supervised time with the children for two hours on two afternoons per week and for four hours each weekend, on days as agreed between the parties and failing agreement for two hours each Monday and Friday from after school and from 10 am to 2 pm Sundays.
These orders identified a Ms C as supervisor but there is no evidence before me from Ms C.
Both parties have participated in this final hearing unrepresented. However, both parties, at different times in these proceedings, have had legal representation. In fact, the father’s solicitors remain on the record for him. All his affidavits appear to have been prepared with legal assistance.
The mother's first affidavit at the institution of the proceedings was prepared with the assistance of a lawyer. The second and far longer and more detailed, albeit very repetitive, affidavit, was prepared by the mother herself. The evidence in the father’s case really provides no information to the Court about the care arrangements for these children before about Christmas 2009, on which he has been entirely silent.
In relation to the mother’s longer affidavit, I note that English is not the mother’s native tongue and that this, together with the mother’s understandable distress and anguish at having had only very limited and supervised time with these children since Christmas 2009, as well as her deep-seated feelings of betrayal by the father, have resulted in both her affidavit evidence that she prepared herself and her oral evidence in cross-examination, being often repetitive and confusing or otherwise difficult to understand.
In assessing the evidence, I have attempted to make appropriate allowances for these considerations and I have done my best to understand what it is that the mother is seeking to convey to the Court.
It is clear that the mother asserted that during the party’s cohabitation, she was the children’s primary carer with assistance from the father. She did not elaborate on the nature of her care was or the extent of the father’s assistance. But this evidence was un-contradicted in any way nor was she challenged on it in cross-examination at any point, and I accept it.
Bearing in mind the mother’s often repeated complaints that the father fraudulently misrepresented when the parties had separated, and despite the mother adopting exactly the same date under oath in her own application, I will treat this assertion as to her primary care of the children as continuing until the parties ceased to reside in the same premises, that is until early 2009.
The parties initially lived in [area omitted] Sydney. A police record was put into evidence by the Independent Children’s Lawyer of an incident on 8 August 2002. This record indicates that on that date the police attended the party’s home. The police record of the background that was given to them, although it is not indicated whether it was given by either or both of the parents, or by somebody else for that matter, is that the mother disciplined one of the children, both of them were then under three, with a slap on the bottom.
On learning of this, it is suggested that the father pushed the mother and the mother pushed him back and poked him repeatedly in the chest. The father, in response, then pushed the mother to the ground and she sustained a lump on her head and a bruised knee. The police record suggests that the parties were then having difficulties with work-related stress and parenting the children and that neither parent wished the police to take any action.
Neither parent referred to this incident in their evidence-in-chief. The mother was cross-examined about it but could not remember the incident and denied slapping one of the children and denied any incident of mutual pushing and shoving between the parties. This record was not put to the father in cross-examination. In those circumstances I am not prepared to make a finding against either party in relation to anything recorded in this particular police record.
The mother asserts that the father pressured her to agree to move from [area omitted] Sydney to the [L]-[B] area so that he could take up a transfer in his employment to be based in [L]. She asserts that the father committed to buying a property in [B] without consulting her, and that this property cost more than the value of their property in [omitted] Sydney at a time when they were struggling financially. She further asserts that the father wasted family funds on race horse and greyhound syndicates, on gambling, and on trips that he took alone to Thailand. She asserts that ultimately the party’s home in [B] was sold and the father became bankrupt.
As best I can determine from the mother’s evidence, the timing of these events seems to be that the parties moved to [B] in about May of 2003. The father was paying money for racing syndicates, at least between 2004 and 2006. He went to Thailand in 2003, 2004 and 2005. The property in [B] was sold in early 2007, when the parties moved to rented premises in [L] and I infer that it is more likely than not that the father’s bankruptcy commenced in about August 2007.
The mother further asserted that she received a letter from Centrelink advising her that she owed nearly $3,000. It is unclear when she first got notice of this debt but it must have been before 4 October 2007 when the mother entered into an agreement with Centrelink to repay the debt at $40 a fortnight. The mother asserted that she knew nothing of money paid or received from Centrelink and did not know why she had this debt. She asserted that the father then told her, in light of this debt, that she should join with him in falsely representing to Centrelink that they were separated under one roof. This was apparently to assist in some way in repaying the debt to Centrelink.
The mother said that the father moved into a separate bedroom in case Centrelink came to check if they were in fact living separately. She asserted that the father did this, despite also asserting that the man she said had suggested this particular method of fraud to the father had told him not to worry because Centrelink do not check on the living arrangements by home visits. This inconsistency was neither explained nor put to the mother for explanation in cross-examination. I am not critical of anyone for that being the case. As I understand it, the mother said that despite the father moving into a separate bedroom, the parties were not separated. However, I repeat, the mother’s statement verified as true by her on her oath in her application for these parenting orders, is that the parties were then separated.
The mother said that in about October/November 2008, she signed a document as to the care arrangements for the children. She said that she signed this document in circumstances where she was tired and needed to leave the home to go to her employment. She said at this stage the father produced the document and insistently and repeatedly asked her to sign it, and she ultimately did.
The document asserts that both parties had sought legal advice before signing it. The mother said she did not have any legal advice before signing the document. The father in cross-examination about this said that the mother told him that she did have legal advice before signing the document. He prepared the document. He said he sought legal advice about it. The document says on its face that the parties had agreed that the father would be the sole care giver for the children; that he would meet all their financial and other needs; that neither party would seek any financial assistance from the other for the children; that the mother may see the children at any time by phoning the father and arranging a time; and that the mother may take the children for up to a week during the school holidays.
At this time the father worked full time as a shift worker. The parties continued to live under the one roof. An agreement that a full time shift worker would be the children’s sole carer to the exclusion of their mother, who lived in the same premises, is to say the least, bizarre. As, in fact, is a provision that the mother would ring the father to arrange an appointment to see the children she was then living with.
This document on its face is so inherently ridiculous and improbable that I am left to wonder the circumstances under which, and the purposes for which, it was entered into. But ultimately I am unable to answer that question because to attempt to do so would be mere speculation.
In the circumstances that I am faced with in this particular case, especially when the father himself did not seek in his case, at any point, to rely on this particular document or otherwise to give any evidence as to the parenting arrangements for these children before

26 December 2009, in light of, as I have already indicated, the mother’s unchallenged and un-contradicted evidence that she was the primary carer of these children while the parties, as I regard it, were in the same premises, I am satisfied that the mother was the primary carer of these children until early 2009 and I am not satisfied that this document records the actual care arrangements for the children at any time.
The mother complained as I understand it, that the father continued his misrepresentation of when the parties separated when he applied for a divorce. A divorce order was in fact pronounced on 9 February 2009 and became final on 10 March 2009. The order was made very shortly after the father moved out of the home. It seems he moved out after filing the application for the divorce. The mother acknowledges as I understand it, being served with the divorce application. Again, as I understand her evidence, however, she says that the father told her she could throw it in the rubbish. She does not say whether she did. However, the mother clearly did have this document.
She did not file a response to it, disputing the father’s assertions about separation. She did not attend Court when the application was listed for hearing. The divorce application proceeded and was granted, undefended by the mother and unchallenged in any way by her.
In my view, it is not necessary for me to make any specific findings about the mother’s complaints about the father’s suggested misrepresentation of the fact of separation. However I will make some comment about it because it is clearly a matter of such overburdening importance to the mother that it completely overshadowed the presentation of her case and as I will come to, it completely dominates her interaction, not only with the father, but with her sons as well, to their great detriment.
Whether or not the parties separated at the time the father asserts - and the mother herself swears to be true in her application but otherwise says is not true - is something that I cannot decide on the evidence before me. As I say, there is considerable evidence to suggest that the parties were separated at the time asserted by the father. I certainly accept that if what the mother asserts, that is, that occupying separate bedrooms was not because the marital relationship had broken down but because the father was seeking to give verisimilitude to his false assertion of a separation under the one roof, then that certainly would not indicate that the marriage relationship had broken down. And that is the mother’s contention.

But what the mother asserts the father did is a criminal offence. To falsely misrepresent facts to Centrelink for the purpose of gaining a government benefit is a crime. Before I could make a finding that that is what happened, even on the civil standard as applies in this case, I would have to have very clear evidence, and I certainly do not have it in this case. It is simply not open to the Court to doubt the father’s assertions as to the separation date in light of the circumstances that the mother asserts led to the suggested misrepresentation of it, the fact that it would be a criminal offence if it were so, and the fact that the mother herself uses exactly the same date in her application.
But I repeat, for present purposes, the actual date of separation is not relevant. What is relevant is the mother’s abiding, deep-seated sense of betrayal by the father and her abiding need, as represented clearly before me on day one, to obtain some form of retribution against him.
As I said, the father moved out of the home in early 2009 and took the boys with him. This appears to have been when the mother was at work and without any forewarning. From early 2009 to mid 2009 there is no evidence as to whether or not the children spent any time or communicated with the mother.
In mid 2009 the parties attended a Legal Aid mediation conference. While no agreement was then reached, the parties nonetheless commenced what the mother described as an equal time shared care arrangement, although it is not entirely clear to me that this was in fact equal time. There is some significance in my being cautious in accepting the mother’s description of something as equal time, because she described at various stages her proposals that the children live with her and have four hours a week with the father as equal time. Be that as it may, it seems clear that there was, if not equal time, something approximating it and it seems that whatever the arrangement was, both parties regarded it as broadly equal.
On 26 December 2009, the children were living with the mother under this parenting arrangement. There is no issue that the father came to the mother’s home and that the boys left with him and were not subsequently returned by him to the mother. There is a dispute between the parents about some of the circumstances surrounding this occurrence.
However, it is common ground between the parties that
a)the father attended the mother’s home;
b)when he arrived at the mother’s house, both boys were distressed and crying;
c)the mother told [Y] not to open the door to the father as it was the boys’ time with her;
d)[Y] nonetheless went to the door, opened it and ran out and got into the father’s car, greatly distressed; and
e)[X] ran out the side door and also got into the father’s car, greatly distressed.
The mother says that the boys had wanted to go to their father’s to play the Wii game console that he had at his home, and were upset when she would not let them do it.
The father said that he received a phone call from [Y], crying, asking the father to come and get him. He heard the mother’s voice in the background say: “Don’t call your Daddy, I’ve done nothing wrong”, after which the line went dead. He says as a result of that he attended the mother’s home.
I have to say that the level of distress that it is common ground both these boys were then displaying, in my view is not adequately explained by the mother’s assertion that it was as a result of frustration at not being permitted to go to their father’s to play on a computer games console.
The mother sought to suggest that the boys’ fairly extreme reaction was simply normal for boys. I do not accept that that is so. I do not accept that it is appropriate, other than perhaps for a child who is prone to tantrums, and even then it might not be termed appropriate, but rather typical behaviour. There is no evidence that these children are prone to extreme tantrums and I am therefore not satisfied at the mother’s explanation, a fairly benign one, as to why these boys were so distressed.
On 13 January 2010, the father’s evidence is that [X] told him that a bruise on his leg that the father had observed when the child came into his care the preceding Boxing Day, but which was still evident, had been caused by the mother hitting him. The father notified the Department of Community Services. He took [X] to a doctor who said he would make a mandatory notification of abuse, and at the doctor’s suggestion he took the boys to the police.
The police COPS record of the attendance at the police station by the father and the boys on 17 January 2010 indicates that the police were told that the mother had hit the children on the face and forehead a few weeks ago and one of the children reported the mother had pinched him on the face and arms leaving bruises. The father gave no evidence of having seen such bruises on the children. The police record also indicates that the children told the police they were scared to go back to the mother’s house and they did not wish to live with her.
The police record indicates that the children participated in an electronically recorded interview. The father said that this was in his absence. No record of that interview was put into evidence before me. I therefore do not know whether what the children told the police in the father’s absence was consistent with what they told the police in his presence.
The mother said that she was unaware of the boys making these complaints to the police and, as I understand it, denies the content of the allegation against her.
As mentioned, on 12 February 2010, the mother having then promptly instituted parenting proceedings, there were interim consent parenting orders in the Local Court, providing for the mother’s time with the children to be supervised by Ms B/G. It seems that the designated supervisor supervised the mother’s time until February 2011 and, after that, was no longer available or prepared to supervise time.
Ms G swore an affidavit in the father’s case and was cross-examined. She said that the mother was unreliable in attending for her time with the children but acknowledged that she understood the mother worked casually and could be called to work on short notice. Her complaint seemed not so much to be the unreliability of the mother attending, but rather the fact that the mother would not give her warning or advice of her inability to attend. She said that the mother often arrived late or left early.
She said that on 21 March 2010, the mother took [X]’s mobile phone from him and began writing down the phone numbers of relatives stored on it. She intervened and took the phone back from the mother. She said the mother shouted loudly that she, Ms G, was a “traitor” and did not know how to look after children as she never had any herself. She said the mother left and the boys appeared very upset. This incident occurred in a park in the town where the parties and the children live.
Ms G was not, as I understand it, seriously challenged in relation to this incident. Rather, the extent of the cross-examination about this seemed to be an attempt by the mother to justify what she did and I accept that it occurred as described by Ms G. Given that that the children had been in the primary care of the mother until early 2009 and, at least from mid-2009 until Boxing Day 2009, had been in a shared care arrangement, and given further that the mother had then not seen the children until the interim consent orders were made in February 2010, under which she was to have only quite limited and supervised time with them, that the way the mother chose to use her time on this occasion was to remove the boy’s telephone and start writing down numbers from it, rather than to engage constructively and positively with her sons, is concerning, and is simply a cameo illustration of the interaction between the mother and these boys and of the reasons, as I will come to it, for the very negative and, in my view, harmful, relationship that exists between these boys and their mother.
Ms G said that on 4 April 2010, during a supervised visit, the mother cut [X]’s toenails in public in a mall in the town where the parties and the children live, having forcibly removed his shoes to do so. The mother denied forcibly removing [X]’s shoes and socks, and said she helped him take off his shoes and socks. [X] was then 10 years old. Ms G was cross-examined about this. She denied that the mother merely helped [X] take off his shoes. She said the mother was holding [X] at the knee and the foot, while [X] was trying to take his foot away.
Ms G said that, when the boys objected to the mother cutting their nails, she herself had suggested to the boys that if the mother wanted to cut their nails, perhaps they should let her, but the boys continued to object. She said contrary to the mother’s assertion, there were members of the public around in this public place and [X] was upset and crying and after the mother did this, she told the mother that her actions were inappropriate.
I accept Ms G’s version of this event over the mother’s version, where it differs. The mother offered no explanation why it was necessary to assist her 10 year old son to take off his shoes and why he could not do it himself if, in fact, he was cooperating, as the mother suggested, in what the mother was attempting to do.
The mere fact that the mother needed to involve herself for [X]’s shoes to be removed, satisfies me that the boy was not cooperating with what the mother wanted him to do. I am satisfied that both boys were resistant to this, were embarrassed by it, and that the mother was totally blind to their distress and embarrassment, simply being intent on doing what she wanted to do.
I note that the mother described this – cutting the boys’ nails - as simply a normal interaction that a mother would have with a child. I accept that, in more appropriate circumstances and at a more appropriate time, it would be quite normal for a parent to cut a child’s nails. The mother seemed oblivious to the inappropriateness of the time and place where she chose to do this. She seemed oblivious to the fact that this was meant to be an opportunity for her to have a positive and rewarding interaction, both for herself and her children, in circumstances where her time with them was very limited and was supervised.
It is a tragedy, in fact, that the mother sees her ways of interacting with her sons to be limited to providing physical care for them, rather than doing things which the children might accept and interpret as showing an emotional attachment and involvement with them and nurturing them in an emotional sense. This again is a cameo illustration of a primary problem I perceive in this case.
On 28 June 2010, when the father collected the boys after spending time with the mother, Ms G said that the mother would not allow the father to close the door and leave and verbally abused the father in front of the children, who were crying.
The father described a similar incident and I accept that it occurred and I accept that it is an example of the mother’s inability to separate out her deep resentment and anger towards the father and her desire, continually, to hammer home to him his doing wrong to her, totally blinding her to the needs of her sons, to the point where I am satisfied she has consistently and persistently emotionally abused them by her conduct.
Ms G said, and I accept, that the mother usually used her time with the children to criticize the father and ask the children to pass hateful messages to the father. She said the mother rarely asked the boys about their sport or schooling.
Following Ms G ceasing to be available to supervise, as I have said, further interim orders were made on 5 April 2011 providing for Ms C to supervise. It seems that she withdrew from participation as a supervisor after a relatively short period.
Thereafter, the parties seemed to have come to a mutual agreement that they would facilitate the mother spending time with the boys after school, at their school, supervised by their school principal, who apparently agreed to undertake this task. I accept that the school principal, although she is not a witness, was more than likely driven by a desire to do right by her students, and I do not criticise her in any way for taking on this role. But as the mother herself emphasised strongly and repeatedly, it was inappropriate in many senses for the school principal to have to become involved in the way that she did.
As I say, the school principal was not called as a witness and I have no evidence as to how the mother’s time has gone with the children since the school principal has been supervising. The time with the children seems to have continued for a time this year, even though [X] commenced at high school. The high school he attends is in the same town and it seems that the practice arose of the father picking up [X] after school, ringing the primary school to see if the mother had attended or would be attending to spend time and, if so, delivering [X] to the primary school to spend time with the mother or, if not, collecting [Y] and taking him home.
The father indicated that there were a number of occasions when the mother did not attend. His evidence is, that the mother has not attended to have supervised time with the children at the school for at least the last month. This evidence is not challenged and I have heard nothing inconsistent with it, and therefore I accept it.
The mother strongly disputed the need for her time to be supervised and she just as strongly asserted that it was, as I have just said, an unreasonable imposition on the principal to expect her to continue supervising. I accept that it is inappropriate, in many senses, to have her continue as supervisor but, in any event, whether it be appropriate or not, I am unable to consider making any order for ongoing supervision by the principal because of the very reason that she is not a witness. I do not know whether she is willing and able to continue to offer her services as a supervisor, either at the school or elsewhere.
The father, at the present times, continues to live in rented premises in [L] with the children. He is in full-time shift work. Until last December, he relied on various friends to assist him in the care of the children when he was at work and that included at night.
However, last December, the children’s paternal grandmother moved to live with the father and the boys and she now assists the father to care for the children, including when the father is at work. The paternal grandmother suffers unspecified chronic health problems and has done so for some time. She saw a psychologist in the past for depression. I observed the grandmother enter the court to go into the witness box and leave the court when cross-examination was finished. She used a walking stick and she walked slowly and with a quite pronounced limp.
It is apparent that the paternal grandmother is considerably less physically active and agile than either of the parents. The mother seemed to emphasise this as a reason why the grandmother was not appropriate, as I infer, to be involved in the care of the children to a significant extent.
However, whilst she may not be as physically active and agile as either of the parents, I do not accept that she is not able to appropriately care for the children when the father is not present or to assist him in the care of them when he is. I note the ages of the children, 10, almost 11 and 12. They are clearly not babes in arms. They do not have to be lifted up and carried. They would be able to do many things for themselves, for example, change their shoes. In those circumstances, I do not accept that the care of these children would be a physically demanding task, certainly not one beyond the paternal grandmother, and I accept that she is physically capable of doing what is required to assist in the care of the children.
The mother continues to live in the former matrimonial home. She is in casual employment. There is no evidence as to whether or not there is any normal pattern to her work hours and if so what it is, and it is entirely unclear to me what her work hours over any given period might be. There is no evidence before me if she is called to work and the children are home, as to what care arrangements she would propose for the children living with her. In fact, the mother would seem to be quite socially isolated. She made it very clear in her evidence that she never wanted to move to the [B]/[L] area and does not like living in [L].
In fact, it is unclear whether the mother intends to remain living in [L] or whether she might move to [B]. I therefore do not know with any certainty what the mother’s actual care arrangements for these children would be. But the children’s welfare falls to be determined in this case by far more fundamental issues concerning their welfare than that, and I will not take it any further.
I note that I have already said that [X] is now in High School but both of the boys are at school in [L]. They appear to be well settled in the town. They are both involved in sport and in fact [Y] is in a district representative team.
A Family Report was prepared in this matter in October 2010. I admitted it into evidence, even though the author of the Family Report tragically has since died and was therefore unavailable for cross-examination. It is therefore necessary for me to determine what weight, if any, I should place upon the content of the Family Report.
I am ultimately satisfied I should place quite considerable weight on certain parts of that report.
In my view the critical part of the report is that which deals with the interviews with the children and the observations of the children with each of the parents, and opinions expressed in the report flowing from those facts. Of course, neither party was present during the Family Consultant’s interviews with the children and could give no independent evidence of what the children said to the Family Consultant.
However, there appears to be no issue that, consistent with what the boys told the Family Consultant, and consistent with the COPS entry from early 2010, that neither wishes to live with the mother. There is however, an issue why this is so. The mother is suggesting that the father has turned the boys against her, just as she claims he said he would if she claimed child support from him or if she collected a share of his superannuation.
However, the only evidence the mother could give of any action by the father to actually turn the boys against her was an allegation that the father told the boys they should not talk to any Filipino and that Thai girls are better. She said that by this, the father was including her. As I said, she was born in the Philippines.
I am not satisfied on this evidence, and there was no more than this, that the father has attempted or in fact has turned the boys against the mother.
But even if he had, the mother could suggest no strategies for overcoming the boys’ rejection of her, other than to say that her time with them should progress slowly. But she sought a move immediately to full time care with her and the boys only spending four hours a week with the father. I am concerned, in fact, that it is not the father who, as the mother alleged, has turned the children against her, but in fact it is the mother herself who has turned the children against her, albeit unintentionally.
I note that one of the difficulties here, and I have alluded to it already, is the mother’s vengeful attitude towards the father and I am concerned that the mother has used these children vengefully against him, not the other way round. At the commencement of the hearing when I asked the mother what orders she sought, and when she proposed that the boys spend two periods of two hours each per week with their father, she added and I quote, “So that the father can taste his own medicine”.

When I challenged the mother about this, she denied that she was seeking to limit the father’s time with the children as revenge for her only having limited supervised time since 2010. But she did not offer any satisfactory alternative explanation of her statement, and I am satisfied that the mother is driven by a desire to punish, or to have revenge on the father in proposing such limited time for the boys with the father. I am satisfied that this is an illustration of her being totally blind or blinded to what her sons actually need, and therefore her total inability to meet their needs.
The Family Report described the boys’ interaction with each parent in starkly different terms. With the mother the boys were described as avoidant, not communicating with the mother with any enthusiasm, avoiding eye contact and their behaviour was described as regressive, restless and disorganised and they were described as unable to focus on an activity for a reasonable period of time.
With the father the boys were described as highly cooperative, seeking to include the father in their activities, communicating with him easily and continuously, making good eye contact. They were described as responsive to his wishes and able to concentrate on task.
In cross-examination the mother said the description of her interaction with the boys was inaccurate. However, when the reported observations at paragraphs 41 to 46 of the Family Report were put to the mother line by line, she agreed with it all except that she denied that the boys ignored her and she could not remember [Y] keeping his back to her. Otherwise, she said that the reported interaction, which she said was accurately reported, was usual behaviour for the boys in their interaction with her.
Since the mother agreed with almost all of the reported interaction between her and the children and said that it was normal and typical, I accept the opinions in the Family Report at paragraphs 56 to 58 that are based upon it. I accept the boys’ statements as reported in the Family Report, they being consistent with views that are otherwise in the evidence before me and I accept the Family Consultant’s opinions at paragraphs 53 to 55.
In the circumstances, I therefore accept and place significant weight on these parts of the Family Report. I note that in any event, these parts of the Family Report are consistent with other evidence before me.
The orders that I am asked to make are parenting orders. In determining what orders should be made, the children’s best interests are the paramount consideration (Family Law Act 1975, s.60CA). In determining where those best interests lie, the court must have regard to the provisions of section 60CC of the Family Law Act, and those considerations must be assessed and weighed having regard to the objects and principle section, section 60B.
When making a parenting order, section 61DA of the Family Law Act provides that the court, subject to subsection (2), must apply a rebuttable presumption, as it is termed, that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. By subsection (2), the rebuttable presumption does not arise if the court, amongst other things, is satisfied the children have been, or are at risk of being, exposed to abuse, neglect or family violence.
The presumption, if it does arise, may be rebutted if the court is satisfied that application of the presumption would not be in the children’s best interests.
If the court is satisfied an equal shared parental responsibility should be made, then under Section 65DAA and in accordance with the guidance provided by the High Court in MRR v GR, [2010] HCA 4, (2010) 42 Fam LR 531, (2010) FLC 93-424, the court must first consider the children spending equal time with each parent, and if it does not make that order, must consider the children spending substantial and significant time with each parent.
Ultimately, and for the reasons that I will now elaborate, I am satisfied that I should make the orders proposed by the Independent Children’s Lawyer as being in the best interests of the children, that is, that the children live with the father, that he have sole parental responsibility for them, and that the mother not have contact or communication with the children unless they themselves first seek it.
I will deal with the primary considerations and then the additional ones that I consider to be relevant. In dealing with the additional considerations, I will not deal with them seriatim as they appear in the Act, but rather I will seek to deal with them in a sequential fashion as I think flows in my assessment of them.
The first of the primary considerations is the benefit to the children of having a meaningful relationship with both parents. The two key words there are benefit and meaningful. Something may be meaningful for a variety of reasons and purposes. Something may be meaningful to someone because of its profound negative connotations, or it may be meaningful because of profound positive ones.
Clearly the use of the word benefit indicates that the way in which relationships between the children and the parents should be regarded is from their beneficial aspects, not their detrimental ones, and this renders this particular consideration problematic in the extreme in this case. I am satisfied that the children currently have an extremely poor and negative relationship with their mother. It is significant to them, but for all the wrong reasons. It is significant to them in a way which does not benefit them. The question here really is, is there any option open to the court on the evidence whereby the Court can make orders that could lead to the children benefitting from a relationship with the mother that is meaningful to them in a positive sense, or whether the evidence indicates that at least for the foreseeable future, their relationship with their mother will continue to be significant for all the wrong reasons. That can only be determined after considering some of the additional considerations.
The second of the primary considerations is the need to protect children from exposure to abuse, neglect, or family violence. No notice of abuse or family violence has been lodged by either party in these proceedings. I have already indicated that I am not prepared to make any findings of family violence, or for that matter abuse, flowing from the police record from 2002.
It was submitted to me by the Independent Children’s Lawyer that I should be satisfied that the mother has pinched, slapped and hit these children. I am so satisfied. It was further submitted that on that basis that I should be satisfied there has been family violence. I am not so satisfied.
Family violence under the Family Law Act is a defined term (see s.4(1)). Unless it amounts to sexual abuse under the definition, it must be a criminal offence. It is not apparent to me on the evidence that the slapping, hitting or pinching would necessarily be a criminal offence. I am satisfied that it may well be, if it resulted in the infliction of actual harm upon either of the children, and there is evidence to suggest that the children reported pinching leaving bruises, including on the face, and there is the evidence of the bruise to [X]’s leg that lead to the father taking the boys to the police after reporting the matter to DoCS and taking [X] to a doctor.
The exact circumstances under which it is suggested that this bruise was inflicted were never elaborated before me. To make the finding urged on me, I have to be satisfied, albeit on the balance of probabilities but bearing in mind the seriousness of the finding, that the mother’s actions amounted to a criminal assault. Because of lack of any specificity or clarity in the evidence, and because of the failure of the father to put to the mother in cross-examination specific matters going to these bruisings, and for that matter because he himself gave no evidence of ever observing any bruising on the faces of either child consistent with what the boys are said to have told the police, I am simply not satisfied that it was elevated to the level of a criminal offence, and therefore I am not satisfied it amounted to child abuse.
Nor am I satisfied that this amounted to family violence. But I am satisfied that this and other matters did amount to neglect of the children.
Turning then to the additional considerations, as I have indicated the children have consistently now for some time been expressing a strong aversion to living with the mother and an extreme reluctance and aversion to spending time with her. They are at an age now where the Court should give significant weight to their views, unless good reason is show otherwise. I am satisfied that the children have good reason to be fearful of the mother and to be reluctant to spend time with her. I am satisfied that I should give those views very considerable weight.
I am satisfied that these children have a good, warm and loving relationship with their father. I am satisfied that their relationship with their mother is quite dysfunctional. It is quite a negative one, driven by fear and on the mother’s side I am concerned that she has proven herself unable or incapable of engaging in any positive emotional sense with these children.
I am concerned therefore, that in their relationship with their mother, these children are not being emotionally and psychologically nurtured through that relationship. I am concerned in fact that it is exactly the opposite - that they are being emotionally and psychologically harmed through it.
I am satisfied the children have a good relationship with the paternal grandmother and benefit from having her present.
The children’s relationships with any other extended family on either their maternal or paternal side, is rather more difficult to assess. I am satisfied that they would potentially benefit from an ability to have a positive relationship with their whole extended family. I will return to that shortly.
In relation to the ability of each of these parents to meet the children’s needs, that is their parenting capacity, I am satisfied that the father, although as the Independent Children’s Lawyer said, he has demonstrated a somewhat superficial or shallow appreciation of some of the children’s needs, is able broadly to meet their needs. I am concerned that the mother’s capacity to meet these children’s needs is extremely limited because of her lack of appreciation of what they are.
The mother appears unable to understand the boys need not to be exposed to her bitter anger towards the father and I am concerned that she seems to be totally oblivious to the caustic effect on the boys of exposing them to it. The mother seems unable to engage the boys in any constructive way. Certainly, the mother can and has helped the children with homework and is punctilious in attending to their personal hygiene, but as I have already said, she is that to an extent that completely overshadows all else and has resulted in trauma and deep embarrassment to the boys.
The effect of changing the children’s parenting arrangements is, in light of the foregoing in my mind, the most profound consideration in this case. If I were to order, as the mother seeks, that the children live with her and spend four hours per week with their father, it would have a very serious adverse effect upon them. The Independent Children’s Lawyer in my view was not unreasonably exaggerating when she suggested that it would be catastrophic for them.
On the other hand, leaving the children with the father will leave the children in a settled environment where they are doing quite well, where they have a warm, respectful and co-operative relationship with their father.
To leave the children with the father with no contact at all with the mother will be a change for these children from what they have experienced since February or March 2010. Certainly the time that they have had with the mother has been sporadic. It has not been consistent, and when it has occurred, it has, in my view, involved emotional abuse of these children. But stopping all time with the mother will cut off any prospect of these children having a relationship, whatever it might be, with their mother.
I am satisfied that it will also, in effect, cut off any significant prospect of these children having any meaningful involvement with their extended maternal family, despite what the father attempted to say in the witness-box. Therefore I am satisfied it will cut them off completely from their Filipino heritage which, of course, is a significant part of their heritage, just as significant as their Australian born father’s heritage.
However, I am satisfied that the adverse effects on these children of spending even supervised time with the mother are greater than the adverse effects on these children of not spending any time with their mother.
One way in which time might be spent, of course, might be through supervised time. That raises the additional consideration of the practical difficulty and expense, apart from anything else, of spending time. There is no proposal before the Court which would enable the Court to order supervision by an identified person. Supervised time in that sense is therefore not a viable option.
If the mother were to have time with the children at a contact centre, it would entail very lengthy and protracted travel for both the parents and the children. Quite apart from the expense, I am concerned that the effect on the children of very lengthy travel to spend quite limited time with their mother, where I am satisfied that that time would still likely be dominated by the mother seeking to criticise and denigrate the father to these children, is something that would not be in these children’s best interests.
So far as the other additional considerations are concerned, I am not satisfied that they are particularly significant, if relevant at all, in this particular case. I observe that I am satisfied that the father was justified in removing the children from the mother’s care on Boxing Day 2009 and should not be criticised for not thereafter facilitating the children having more involvement with their mother. The father has complied with both the letter and the spirit of the interim orders, including facilitating the mother’s time when Ms C withdrew as a supervisor by agreeing to supervision by the school principal.
While AVO proceedings were commenced at one point against the mother, it seems that those proceedings concluded on the basis of the mother offering an undertaking to the court and it would seem, in any event, that those AVO proceedings arose because of the father’s concern at what he regarded as harassment by the mother through numerous telephone calls and text message which he found abusive.
So far as the question, firstly, of parental responsibility is concerned and section 61DA, I am satisfied that it is not in the children’s best interests for there to be equal shared parental responsibility, even though both parties initially proposed it. I am satisfied that these parties cannot constructively communicate at all. They are not able to communicate in a child-focused way. They are not able to negotiate issues concerning decision-making on the upbringing of these children.
I am concerned that to make an order for equal shared parental responsibility will simply provide the mother with another platform upon which she can continue her criticism of the father. That is not productive of any benefit to the children and in those circumstances I am not satisfied that it is in their best interests that there be equal shared parental responsibility. I accept the submission by the Independent Children’s Lawyer that in fact the parent with whom the children live should have sole parental responsibility, and that will be the father.
I am satisfied it is in the children’s best interests that they live with the father. As I have said I am satisfied that the father is much better able than the mother to appreciate and to meet these children’s needs in every respect. I am concerned that to live with the mother would expose these children to significant emotional abuse. It will also expose them to neglect should the mother’s use inappropriate physical discipline on the children. I am satisfied that their developmental needs and their needs for nurturing will not be met and cannot be met by the mother.
I am further satisfied for these reasons that the children should not spend any time or communicate with the mother. I am satisfied that even on a supervised basis, this will simply involve further emotional abuse of these children by being exposed to the mother’s perturbation with the father.
In summary, my concerns about the mother and basis for my orders are-
a)the mother pinching, slapping and hitting the children, inferentially as a method of discipline;
b)the mother locking the father and the paternal grandmother out of the bathroom when she was bathing both the boys when both boys were crying loudly;
c)the mother saying that the boys crying loudly while she and they were locked in the bathroom was simply normal behaviour for boys;
d)the boys being extremely distressed and running away from the mother on 26 December 2009 and the mother saying this was normal behaviour when the boys had simply been refused permission, according to her, to go to the father’s to play on a computer game consol;
e)the mother denigrating the father to the boys, including in front of the contact supervisor;
f)the mother verbally abusing the father in front of the boys to their obvious great distress;
g)the mother using her very limited supervised time with these boys to take [X]’s mobile phone and copy numbers from it
h)the mother using her very limited supervised time with these boys to forcibly remove [X]’s shoes and socks and cut his toenails in public over [X]’s objection, to his great distress and obvious embarrassment;
i)the mother using her very limited supervised time with these boys to denigrate the father to the boys and to not engage constructively with the boys;
j)the boys’ avoidant behaviour of the mother when observed with the mother by the Family Consultant;
k)the lack of any demonstrable warmth or other positives in the interaction between the boys and their mother, in contrast to the warm and cooperative relationship demonstrated between the father and the boys;
l)the boys’ consistent rejection of living with their mother;
m)the boys’ expression of fear of being with their mother;
n)the mother’s often expressed and deep anger and antipathy towards the father for what she sees as his betrayal of her;
o)The mother's total lack of impulse control or sense of what is appropriate, including what she has exposed the boys to and what she says is normal when the boys are extremely distressed;
p)the concern that the mother, if with the children, will continue to denigrate the father to them and fail to engage positively or constructively with them, and will again use physical discipline on them;
q)considering the boys’ current rejection of the mother and the highly dysfunctional interaction between her and the boys, a concern that ordering time with the mother may simply deepen and more strongly entrench the boys’ rejection of the mother;
r)a concern that the lack of a positive nurturing relationship between the mother and these boys - that is, a meaningful relationship from which they can benefit - will be detrimental to them;
s)a concern, however, that at present and in the foreseeable future, the mother is not capable of engaging in a positive nurturing relationship with the boys; and
t)the hope that if there is no contact now, with time, and as the boys get older and more mature and may be better able to deal with the negative aspects of the mother’s behaviour, they may ultimately seek her out and seek to resume a relationship with her, but nonetheless tempered by concern that to try to force them now to re-engage with the mother may result in the boys’ rejection of her being irremediable.

It is an extreme step for the Court to order a child spend no time with a parent. It should be the step of last resort. Denying a child a relationship with a parent may, itself, cause a child very significant long-term harm. Where, as here, the mother has continued to be emotionally abusive of these children and to expose them to a risk of psychological harm, even when her time has been supervised, and to appear to be totally oblivious to what she is doing and the effect her actions have on these children, I am satisfied that this extreme step is necessary in this case to protect these children from even greater harm than flows from denying them an opportunity at present of a relationship with their mother.

I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for judgment of Halligan FM

Date: 17 May 2012