Gillard & Gillard
[2015] FamCAFC 169
•4 September 2015
FAMILY COURT OF AUSTRALIA
| GILLARD & GILLARD | [2015] FamCAFC 169 |
| FAMILY LAW – APPEAL – CHILDREN – Where father appeals against final parenting orders – Where the majority of the grounds of appeal challenge the weight which the primary judge gave to various factors – Where the primary judge was satisfied that the father engaged in a pattern of emotionally abusive behaviour which undermined the children’s relationships with the mother – Family violence – Where the dynamic of abuse which existed prior to separation continued but in a different form after separation – Where it was in all respects insidious and warranted the strong criticisms made by the primary judge – Where the orders made by the primary judge were largely consistent with expert recommendations and were designed to maintain the children’s relationship with both parents and minimise the risk of harm – Where the orders for the children to live with the mother and have limited time with the father were contrary to a child’s strongly stated views – Approach to treatment of children’s views discussed – Where no error demonstrated – Appeal dismissed. FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Application to adduce further evidence –Where the admission of such evidence would be manifestly unfair to the respondent and would impermissibly blur the distinction between original and appellate jurisdiction – Application dismissed. FAMILY LAW – COSTS – Where the appellant was wholly unsuccessful – Costs ordered. |
| Family Law Act 1975 (Cth): ss 4AB, 60CC, 65DA(1) |
| Harrison and Woollard (1995) FLC 92-598 Maldera & Orbel (2014) FLC 93-602 R v R (Children’s wishes) (2002) FLC 93-108 Rollings & Rollings (2009) 230 FLR 396 |
| APPELLANT: | Mr Gillard |
| RESPONDENT: | Ms Gillard |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Soliman |
| FILE NUMBER: | PAC | 383 | of | 2008 |
| APPEAL NUMBER: | EA | 14 | of | 2015 |
| DATE DELIVERED: | 4 September 2015 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Bryant CJ, Ryan and Kent JJ |
| HEARING DATE: | 1 May 2015 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 23 January 2015 |
| LOWER COURT MNC: | [2015] FamCA 18 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Mr Jackson |
| SOLICITOR FOR THE APPELLANT: | Rachel Stubbs & Associates |
| COUNSEL FOR THE RESPONDENT: | Ms Saw |
| SOLICITOR FOR THE RESPONDENT: | Law Society of New South Wales |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Dart |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW, Parramatta |
Orders
The Application in an Appeal filed on 1 May 2015 be dismissed.
The appeal be dismissed.
The appellant father pay the respondent mother’s costs of and in relation to the appeal (but not the Application in an Appeal) within twenty eight (28) days of agreement or assessment of the quantum of costs.
The appellant father pay the Independent Children’s Lawyer’s costs of the appeal (but not the Application in an Appeal) within twenty eight (28) days of agreement or assessment of the quantum of costs.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gilliard & Gilliard has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 14 of 2015
File Number: PAC 383 of 2008
| Mr Gillard |
Appellant
And
| Ms Gillard |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
By Amended Notice of Appeal filed on 15 April 2015, Mr Gillard (“the father”) appeals against final parenting and other orders made by Johnston J on 23 January 2015 pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”). The orders concern his and Ms Gillard’s (“the mother”) children; L who was born in 2002 and twins, B and S who were born in 2005.
The orders provide that the children live with the mother and that she has sole parental responsibility. After three months during which there would be no contact between the children and the father, provision is made for a gradual reinstatement of contact which, after six months of supervised time at a contact centre, will become unsupervised and culminate in their spending time together for six hours once a month. Otherwise, there is a suite of orders designed to facilitate these primary orders and ensure that the children are physically and emotionally safe.
As the nature of the orders would suggest, this case concerned significant issues in relation to the welfare of the children and how the court should treat a child’s stated desire about his or her living arrangements when the court is satisfied giving effect to those views would be inimical to the child’s
well-being.
To put the orders in context, it needs to be understood that L was five and a half years of age and the twins were two and a half years of age when their parents separated. From that time and with little respite, the children have lived in the shadow of constant parental disputation and litigation about them.
The twins have always resided with the mother. L did too until, in August 2012 and contrary to final orders, the father failed to return him to the mother. From that time, the children saw very little of the parent with whom they did not reside; indeed no more than occasional glimpses or interaction at school. The lack of parental contact caused collateral damage to contact between the children with them inexplicably only permitted to spend time together under the supervision of a third party.
It follows that the orders under consideration made significant changes to the children’s lives. Of particular focus in this appeal is his Honour’s decision to return the child L to the mother’s care, contrary to that child’s persistent opposition, and to limit in a most significant way the amount of time the children would spend with the father. In making the orders which he did, the primary judge rejected the central plank of the father’s case that the mother was physically abusive and neglectful of the children in favour of her case that the father was emotionally abusive towards her and the children and persistently undermined their relationships.
The central elements of the orders made by the primary judge are consistent with the opinion and recommendations of Dr K (“the expert”), who is a consultant child, adolescent and family psychiatrist and appointed as the court’s expert to investigate and report on the family. The gravamen of his evidence is tidily summarised at [308] of his report:
The advice below is based on my assessment that the father-children relationships have been and are emotionally abusive, that there is a pattern of significant family violence perpetrated by the father against the mother and secondarily the children, that the mother is the parent most capable of providing for the children’s needs, and that the mother and children require protection at least for a few years from the coercive and undermining influence of the father.
(Expert’s report dated 8 March 2013, p 31)
So that it is clear from the outset, the expert’s reference to family violence is to a pattern of coercive and disrespectful behaviour perpetrated against a partner or children. It does not necessarily imply physical violence.
Before his Honour, an Independent Children’s Lawyer (“ICL”) appointed to represent the children’s interests, submitted that the expert’s evidence should be afforded significant weight and that it was in the best interests of the children for orders to be made consistent with the expert’s opinion and recommendations. Although his Honour accepted the arguments advanced by the ICL, he was not persuaded that there should be a nine month embargo on face to face contact and ordered that time between the children and the father resume much sooner.
As to the rationale for the limitation on the amount of time that the children would have with the father, it is clear that the primary judge accepted the expert’s recommendation they have very little contact with him at least until they are 16 years of age so as to protect:
…[T]he mother, children, mother-children relationships and mother’s household from paternal intrusion and coercion, so that they can heal and overcome the emotional and developmental damage that the mother and children have already experienced. It also reflects a desire to maintain a thread of connection with the father, which can be a starting point for the children to venture back into more frequent contact once the children are established in late adolescence or early adulthood.
(Expert’s report dated 8 March 2013, p 32 [314])
We must also consider an application by the ICL to adduce further evidence in the appeal.
It is the position of the ICL that none of the challenges raised by the father are made out and that each of the contentious findings made by the primary judge was open to him. However, the ICL argues that irrespective of the lack of merits in the grounds of appeal because of the regrettable period between the hearing and judgment, the orders should be set aside and the proceedings remitted for rehearing by a different judge. It is to this issue that the application to adduce further evidence is directed.
The father supports the application to adduce further evidence.
The mother resists the appeal and seeks to uphold the orders. In relation to the application to adduce further evidence she says it should be dismissed.
Brief chronology
So as to give this appeal context, it is useful to set out some key events in chronological order.
The father was born in 1968 and the mother was born in 1975.
They were married in 1998 which is when they commenced living together.
The child L was born in 2002.
The twins, B and S were born in 2005.
The parties separated in early 2008 at which time the mother and children moved into a refuge.
From separation, the children spent time with the father each alternate weekend and for a period on Wednesday evenings.
Final parenting orders were made in the Federal Magistrates Court (now Federal Circuit Court) on 9 August 2010. The orders were made after a defended hearing albeit a number were made by consent. The orders provided that the children live with the mother and spend time with the father each alternate weekend from Thursday after school until the commencement of school on Monday and half the school holidays. Notwithstanding the father’s opposition, an order was made that the mother have sole parental responsibility.
The children spent time with the father in accordance with the orders.
In mid 2010, L told the father, his teacher and school principal that he had been hit and punched by the mother and she pulled his ears. As the father had from 2008, but in relation to other alleged instances of child abuse and neglect by the mother, he made further notifications to child protection and allied health professionals about these matters. Although the father did not make each notification, he was responsible for a sufficiently large number such that his complaint behaviour was seen as part of a pattern of emotionally abusive behaviour towards the mother and children.
In any event, L was due to finish a weekend with the father and after school on Monday, 6 August 2012 he was to return to the mother. On the way to school on Monday morning, L told the father he was afraid of the mother and did not want to live with her. Consequently he did not attend school that day, thereby preventing his planned collection by the mother. L has lived with the father ever since.
Almost immediately, the mother filed an application for a recovery order in the then Federal Magistrates Court. Her application was opposed by the father and was heard on 20 August 2012. The mother’s application failed and on that day interim orders were made to the effect that L live with the father, the twins continue to live with the mother and for the children to have telephone contact twice weekly with the parent with whom they were not residing. We do not understand why provision was not made for at least supervised time for the children with the relevant parent and it is with regret that we record that the children did not spend time with the parent with whom they do not reside until February 2015, a period of some two and a half years.
In September 2012 the parties agreed that the children should see each other and arrangements were put in place for them to have two hours together once a week under supervision by third parties. This arrangement was formalised by interim orders made on 5 November 2012. For the most part, the children have seen each other in accordance with the orders as well as at school.
As was earlier referred to, the expert was appointed to prepare a report in relation to the family. At the time of the expert’s interviews in late 2012, L was nine years and eleven months of age and the twins were seven years and three months of age. The expert’s report, which is dated 8 March 2013, was released to the parties on 8 April 2013. It is useful we now set out the expert’s recommendations for final orders:
309.That the mother have sole parental responsibility for the children.
310.That the children live with the mother
311.That the mother keep the father informed of matters with regard to the children’s education and medical matters.
312.That the mother be able to relocate away from the current area of residence, within Australia, if she so wishes, so long as she informs the father of new contact details.
313.That the children have very limited contact with the father at least until early adolescence and preferably until age 16, at which time the children be given choice under the guidance of the mother to have increased contact with the father if they so wish.
314.This limited contact reflects the priority of protecting the mother, children, mother-children relationships and mother’s household from paternal intrusion and coercion, so that they can heal and overcome the emotional and developmental damage that the mother and children have already experienced. It also reflects a desire to maintain a thread of connection with the father, which can be a starting point for the children to venture back into more frequent contact once the children are established in late adolescence or early adulthood.
315.That the children have weekly telephone contact with the father, with the mother or an adult delegate of the mother present, and the father on speakerphone. The content of contact is to be sharing of news and well wishes, and relevant advice and instruction (such as the father encouraging the child to study for a test, or giving advice about soccer training) not interrogation of or critique of either household, or comments about or appeals regarding residence and contact. That the mother or adult delegate be able to cut short the contact call if it ventures beyond the agreed scope. That the mother or delegate be given the opportunity to be the one who makes the call to the father, which allows her some control over the process, sends a clear message to the children that she is supporting and facilitating contact, and would allow her to have a silent number if she wished.
316.That the children have ongoing but limited contact with the father, for example:
316.1For 2 years from the time of orders, bimonthly supervised contact for two hours at a contact centre (with the father able to bring paternal extended family also), and the children able to receive and send birthday, Christmas and father’s day gifts. The father not to attend the school or sporting events of the children’s.
316.2That contact centre staff be made aware of stipulations about the scope of contact and the areas of interrogation or judgement into which the father is not to venture, and be empowered to and expected to cut short contact if the father moves outside that scope.
316.3From the 2 year point, for a further year, monthly half day unsupervised contact with the father, with transfer from mother to father at an agreed place, and return to the mother at the contact centre.
316.4From the 3 year point, until [L] is 16 (the twins will be 13 ½), monthly full day contact with the father, with both handovers at an agreed place which could be either party’s home if both are happy with this. That during this period, the mother is able to initiate re-application for the return to her to occur at the contact centre, if she judges that this process has again become problematic.
316.5From when [L] is 16 (and the twins about 13 ½) the father able to attend sporting events if this attendance is sought by the children, and the mother judges that the extension of such an invitation is appropriate.
316.6From when each child reaches the age of 16, the above contact, and any additional which the child may wish and the mother may deign appropriate.
317.Orders include a personal protection order for the mother, and children. That this order clearly state that the father is not to contact the children or mother or mother’s household outside of the stipulated contact times. That any even apparently “minor” breach of such an order be treated seriously by the court, with a view to change to “no contact” if the father is not able to respect such an order.
(Expert’s report dated 8 March 2013, pp 32-33)
Recommendations were also made for the mother to engage a therapist for her and the children and for the father to engage in therapy with a therapist skilled “in assisting perpetrators of family violence and children and families recovering from family violence and/or emotional abuse”. Orders which would ensure that the children were not exposed to derogatory comments about their parents and corporal punishment were also recommended.
In May 2013 the mother agreed to an undertaking that she would not speak to the child L at school. It will be recalled that L and the twins attended the same school and thus, even if the mother saw her eldest child she was not permitted to speak to him. It is noteworthy, that not long beforehand, the telephone number that the mother used to speak to L was disconnected and the calls she made to him went unanswered.
The hearing before his Honour commenced on 8 October 2013 and, when it did not finish in the allocated time, was completed on 23 December 2013.
Before Christmas 2014 his Honour’s associate informed the parties’ solicitors and the ICL that he would publish his reasons for judgment on 23 January 2015. As his Honour explained at [78] he “… thought that this would provide sufficient time for any party who wished to make an application for leave to
re-open their case to do so.” In the absence of an application to re-open the evidence, on the given date, his Honour published his reasons for judgment and made the orders.
Because L was not returned to the mother’s care, on 28 January 2015 she filed an application for a recovery order. The next day the father filed an application for a stay of the orders pending appeal. On 6 February 2015 his Honour granted a stay subject to conditions which included:
·All three children spend time together with the mother under supervision for three hours each fortnight;
·All three children spend time together with the father under supervision for three hours each fortnight;
·Twice weekly telephone contact between the children and the parent with whom they do not live.
The children have spent time with their parents in accordance with the conditions attached to the stay order.
The primary judge’s reasons
The primary judge commenced his reasons for judgment by setting out the orders sought by the parties and the ICL. Both parties were considered to be generally truthful, albeit aspects of each party’s evidence were not accepted. For example, the primary judge was satisfied that the mother understated the extent to which she used physical discipline on the children and pinched her son’s ears. Nonetheless, his Honour was satisfied that where the parties’ evidence conflicted, the mother’s evidence was to be preferred. Specific reference was made to the father’s denial of controlling behaviour towards the mother and children and an ugly incident in October 2005 when the father verbally abused and physically attacked the mother in the presence of the children. The incident was sufficiently unpleasant that a member of the public contacted police who duly attended.
After his Honour summarised the thrust of the submissions, including those of counsel for the ICL in favour of orders that the mother have sole parental responsibility and that all three children live with her and thereafter have very limited time with the father, the allegations of family violence, which were identified as a key issue, were discussed. Because it is relevant to the grounds of appeal, as his Honour did, it is appropriate we set now out the definition of family violence found in s 4AB of the Act.
4AB(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful.
4AB(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member's family, of his or her liberty.
Sub-sections 4AB(3) and (4) of the Act set out how a child might be exposed to family violence as follows:
4AB(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
4AB(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)overhearing threats of death or personal injury by a member of the child's family towards another member of the child's family; or
(b)seeing or hearing an assault of a member of the child's family by another member of the child's family; or
(c)comforting or providing assistance to a member of the child's family who has been assaulted by another member of the child's family; or
(d)cleaning up a site after a member of the child's family has intentionally damaged property of another member of the child's family; or
(e)being present when police or ambulance officers attend an incident involving the assault of a member of the child's family by another member of the child's family.
(Emphasis as per the Act)
Commencing at [152] to [166] inclusive, the primary judge made findings in relation to the mother’s allegations of family violence inflicted on her and the children prior to separation. The first incident occurred on 1 October 2005 and the last in December 2007. It is unnecessary that we detail each incident and sufficient that we mention two, which provide the flavour of his Honour’s findings. They are:
161.The mother said that in approximately August 2007 the father was telling her to leave the home. She said that one morning [the child B] asked for some juice. She said that when she was about to give him a cup of juice the father grabbed her wrist, took the cup of juice and poured it over her and yelled “Get the fuck out of this house.”. She said that he then threw her clothes into the backyard and started to push her outside.
and:
165.The mother said that in approximately December 2007 the father said to her “Get down on your knees and apologise.” The mother said she asked why and that [L] said “Dad, leave Mum alone.”. She said the father then said “You’re upsetting the boy you fucking cunt”. She said he then yelled repeatedly “Get the fuck out of this house” then said to [L] “Don’t worry Mum isn’t going to live here anymore.”. She said that the father again told her to leave the home.
On the basis of the primary judge’s analysis of the facts as well as the observations he made of the parties during cross-examination, on the topic of family violence his Honour had “no hesitation” in preferring the mother’s evidence (at [167]).
At [168] the primary judge summarised those findings which established that the mother had been the subject of “… pushing, yelling, swearing, demeaning, threatening, coercive and controlling behaviour as well as repeated derogatory taunts by the father”. The father’s behaviour accorded with the definition of “family violence” contained in the Act and, because the children were present during a number of incidents, they had been exposed to family violence perpetrated by the father.
His Honour then discussed the expert’s evidence that there was an entrenched pattern of family violence perpetrated by the father. This was particularised as “… coercive behaviour by the father towards the mother” [173] and “… quite severe emotional abuse despite the absence of significant physical abuse” [175]. Examples of coercive behaviour identified at [242]–[256] of the expert’s report were accepted as such, as was the expert’s evidence that:
… after separation the father’s relentless criticism of the mother to multiple professionals and in whatever forum he could find, including in settings where the mother had a presence as a parent such as the school and swimming school, has represented ongoing emotional abuse.
The expert’s evidence that the father demonstrated attitudes and behaviours typical of perpetrators of family violence was also accepted. Those behaviours being, “… entitlement, control, superiority, possessiveness, manipulativeness, contradictory statements and behaviours, externalisation of responsibility, denial, minimisation and victim-blaming and confusion of love and abuse.” [171]. Examples of the father behaving in this manner were given by the expert and included what he termed “clinging” behaviour with the children.
At [178] the primary judge referred to two forms of “clinging” which the expert said were emotionally abusive of the children. We understand this to be reference to paragraphs 123 to 137 and 143 to 145 of the expert’s report. His Honour considered this was important evidence and so as to enable an appreciation of its full import, those paragraphs are set out below:
123.The mother was about to go home with the twins, before I conducted a brief final interview with the father. I came out with the mother to the waiting room. The father stood and came around in front of [the child S], who was sitting in a chair. The father said, “I have to go now”. [S]’s body tensed a little, her arms briefly gripped the chair, her neck stiffened, and she looked down and forwards. When the father’s arms then came down to pick her up, she loosened her grip on the chair. The father lifted her up high, such that his face was at her face level, her legs were around his body and arms around his neck, and his arms were holding her up. She coyly bent her neck in and to the side of the father. The father was squeezing her body quite tightly, and she appeared tense but submitting to his positioning of her. He was kissing her head and saying comforting words. He was leaning in to kiss her, at which times he would whisper in her ear, then leaning back to engage her with his eyes, at which times she would avert her eyes downwards in a coy pose, then he would lean in again. She gave her father very little eye contact.
124.The father spoke expressions of endearment such as “I love you”, references to future reconnection with words such as “I’ll talk to you soon”, and expressions of security or hope in future tense such as “It’ll be OK” or “It’ll work out.” He made no expressions of security or hope in the present, and no mention of connection to the mother.
125.[S] appeared tense and emotionally inhibited. She appeared pensive rather than distressed. She spoke less than the father and in response to his words, with brief generalised expressions such as “I love you, dad”.
126.The father as the process continued was speaking a more intense, at times higher-pitched voice, and his eyes were glassed over with tears. As the father’s emotional expression heightened, [S] appeared to move further into an emotionally inhibited state, with stiffening of limbs, a stillness of facial expression, and more determined aversion of gaze. She maintained a body posture and words incongruous with that emotionally inhibited state, in that her arms remained wrapped around the father, and she continued to say words such as “I love you”. She became a little more behaviourally disorganised, and her head at times jerked back or away from the father, then she would disguise this movement with a coy turn of cheek for a kiss.
127.This process continued for some time, as I stood and watched, and as the mother stood with her bags in one hand and [the child B] standing next to her, waiting to leave. The father appeared to enter further and further into his experience with [S], and did not at all respond to [S]’s increasingly emotionally inhibited nonverbal cues, or the mother’s initial nonverbal cues that it was time to leave. There was no verbal or non-verbal signal that suggested that this process might spontaneously conclude.
128.After a while [perhaps 2 to 3 minutes from the time that the father picked the child up], the mother came around to the side of the father and child. The father shifted a little to keep his back more towards her. The mother then [perhaps 30 seconds later] began giving some verbal cues, such as “OK, time to go now”. In response to these cues, the father appeared to lean further into his physical and verbal engagement with the child. The child continued to play her role, and did not look towards the mother. Once again, there was no signal that suggested that this process might spontaneously conclude, and in fact, the process appeared to intensify with the mother’s signals.
129.After further time [perhaps by now about 3 to 5 minutes total], the mother said in a more definite voice words such as “Right, [S], it’s time to go”, and leant around the father to untangle the child from him. The father held on a little. The child appeared to become further inhibited, such that what ensued resulted from the relative contributions of the two adults, without agency from the child.
130.Once the child entered the mother’s arms, her body appeared to soften, and she accepted being placed on the ground standing, but close to the mother. She did not appear distressed. I cannot recall the nature of the father’s farewell to [B], but it did not match the intensity of the above, and did not involve the mother needing to intervene to end it.
131.At that stage, I invited the father into the room for my concluding interview. The children were settled, with the mother, preparing to depart.
132.The father entered the room with me. His presentation was a mix of pathos and self-affirmation. He said, “that scene…just shows”. I asked him what he felt the scene had shown. He said, “The love the children and me share (pause) it’s breaking them. It’s not good for them (pause) for their long-term psychology … As [S] said, she’s not allowed to talk to me” [The father had actually told me this information, not [S]].
133.The father then told me that whilst I had been conducting my final interview with the mother, the father had been preparing [S]. “I told her, ‘when mum comes out, you’ve gotta go back to mum’. She was saying, ‘No, dad please, I miss you’”.
134.In my view, it is likely that this witnessed transition from father to mother had many of the features of the transitions of [L] from the father’s to the mother’s care in the mother’s driveway, and the father’s to the school’s care on the days that the child was to go to the mother. The description of handovers in the driveway by the mother’s neighbour [Ms EE] in her affidavit, and of the dropoff to school by the parent [MK] in her affidavit, and of the report to Community Services from the school on 20th October 2011 referenced in the Magellan Report that the father was “in [L’s] ear, holding onto him” are likely largely accurate, in terms of the father’s “clinging” [my word].
135.The father reports in his affidavit of 25th September 2012, saying to the children at handovers, “I will see you soon”, “you’ll be alright” and “You’ll be OK, everything is fine, you’ll be safe at school”. These “words of comfort” are of a similar selective nature to those spoken to [S] discussed above.
136.Just as [S] had a peak of discomfort and intensity during this transition, which was the culmination of a buildup of preparatory conversation with the father, [L] experienced such a peak each morning he was to transition to the mother’s care, which resulted in him presenting as red-eyed and sad at school, and which served to underline the superiority and exclusivity of the father-child relationship.
137.In my view, the father has sought to multiply the frequency of such experiences through his many appearances at sporting events or at school, bringing enticements such as the new puppy. In doing so, he has also sought an audience for what he described to me as a “scene” that “just shows…the love that [the father] and the children share”. It is possible that he has no insight into the discomfort and awkwardness that this would cause the mother, but I think it more likely that he is aware of this, and actively seeks to shame her in comparison with what he perceives to be his own self-evidence special place as the focus of the children’s affection.
…
142.So, the children and father are involved in two forms of clinging.
143.The first occurs when the father and child are involved in an interaction with a third party involving issues related to both parents, and involves the child clinging away from the mother to the father in order to meet the father’s need for this overt display of loyal and dependent love.
144.The second occurs when the father must hand the child over to the mother’s care, and involves the father clinging to the child.
145.In both of these instances, the child is taking a parentified and pseuodomature role in the relationship, with a focus on the father’s needs.
(Expert’s report dated 8 March 2013 pp 11-13)
His Honour gave close attention to the challenges to the expert’s opinion mounted by counsel for the father. In particular, the experts’ reliance on the father’s complaints about the mother to police, child welfare agencies, schools and the like but apparent disregard of complaints she made to police about the father. His Honour agreed with the expert that there was no comparability between the nature and volume of the complaints made by the father compared to the three which the mother made. One of the complaints made by the mother was treated as an honest mistake and the other two were viewed as defensive and combative in response to his. It was significant the complaints made by the mother did not form “part of a pattern of coercion and disrespect.” [182].
These distinguishing features having been established, the primary judge was satisfied that the expert’s opinion about the existence of family violence had not been undermined by cross-examination and his evidence on that topic accepted and afforded weight, which it was.
Under the heading “The Father’s Complaints Against the Mother and Events Leading to [L] Refusing to Return to his Mother’s Care” the primary judge recorded many of the complaints, but far from all, which the father made about the mother’s alleged neglect and abuse of the children. Apart from the sheer volume of complaints, it was notable that by mid-2010 L began to say he had been hit and punched by the mother and she pulled his ears. L continued to say this during 2011 to other people as well as the father. L’s allegations about the mother, culminated with him saying she punched him in the stomach. He made similar statements to the paternal grandparents and school principal. On the advice of a medical practitioner, the father contacted police and in late 2011, a Provisional Apprehended Domestic Violence Order (“ADVO”) was issued for the protection of L from the mother. The application for an ADVO was dismissed in December 2011.
Although his Honour did not specifically mention it, because he accepted the expert’s evidence in relation to family violence, in relation to the allegations by L that he was punched by the mother he was satisfied that the police notes record that on 25 November 2011 when taken to the police station by the father, L was “shy and reluctant to talk until encouraged by the father”. Subsequently on 28 December 2011, when formally interviewed L was:
shy and non-communicative when with the father, then when seen alone, opened up, and gave a history that the mother spoke meanly when she disciplined him, that he had been pulled by the ear to his bedroom twice, and that she had not otherwise smacked or hit him.
(Expert report at [150])
In the months that followed L continued to tell the father and others he was scared of the mother and that she hit him and pulled his ears. He threatened to kill himself in February 2012.
While in the father’s care, on 2 August 2012, L awoke distressed and wrote a note that said “No school tomorrow I sick in the stomach and very, very scared, please help.” In the days which followed those same sentiments were expressed to a variety of people including, on 6 August 2012 to the school principal following which the father contacted a variety of agencies, including police and the Department of Community Services. He took L to a police station and a doctor. Notwithstanding the doctor’s advice the child was too anxious to attend school for the following week, the father attempted to have him attend. It was two weeks later that L actually attended school and, although he saw the mother there he went home with the father.
The primary judge then set out the law which governs applications for parenting orders. Because there is no ground of appeal which challenges his Honour’s statement of the law it need not be discussed and we will continue our analysis of his Honour’s findings.
As a consequence of the primary judge’s findings concerning the existence of family violence, he was satisfied the presumption in favour of equal shared parental responsibility (s 65DAA(1) of the Act) did not apply. However, his Honour went on to address a submission by counsel for the father that
notwithstanding the parties’ inability to communicate about the children, it would be in their best interests for their parents to have equal shared parental responsibility. The unquestionably poor relationship between the parties, the absence of any reason to hope that the conflict between them would abate and their poor communication meant that an order for sole parental responsibility would be in the best interests of the children.
Section 60CC(2) and (3) considerations were then discussed. In relation to the children’s views, the expert’s evidence was accepted. Namely, L initially said that he wanted to continue to live with the father and “never” see or spend time with his mother. However, after seeing the mother with the expert, L was far less certain about not spending time with her in the future and indicated he felt “…pulled in two directions and felt ‘grey’ rather than ‘black or white’ about the issues and that a part of him would want to see his mother.” (at [256]). It is clear that his Honour saw evidence of L’s ambivalence towards his mother when L surprised her at school with a mother’s day gift.
The expert was unable to ascertain B’s views but when pressed S said she would like an equal time living arrangement and, failing that, additional time with the father. In relation to the children’s views his Honour accepted the expert’s opinion that:
… the children’s preference for the father over the mother should be treated with some caution because of the father’s long standing [in my view, emotionally abusive] intrusion into the children’s relational space over this issue.
(Expert’s report dated 7 March 2013 p 30 [299])
The nature of the children’s relationship with each of their parents was discussed in detail. His Honour accepted the expert’s evidence that the children are attached to the father and that in many ways he is an excellent parent which is how the children regard him. However, day to day parenting aside, it is the father’s inability to meet the children’s emotional and interpersonal needs which so troubled the expert and his Honour and which was the pivotal difference in the parties’ parenting capacity. The primary judge referred again to the “clinging” and went on to accept that this was but one of numerous examples of the children being expected to take on “…parentified and pseudomature role in the [father – child] relationship, with a focus on the father’s needs” (at [267]).
The children were also attached to the mother who has a “strong, positive relationship” with them albeit L’s relationship with her had been temporarily disrupted. In contrast to the “clinging” behaviour when with the father, his Honour accepted that in the observation session with the expert, “… the children appeared ‘light’ and free in their sense of self and able to engage with the toys and with each other” whilst simultaneously maintaining a connection with the mother and she with them. The expert opined and his Honour was satisfied that the children’s relationships with the mother included the ability for the children to also enjoy the father.
As to other important relationships, as a sibling group, the children engaged warmly with each other and it was in their interests to be raised together. This was one of the few matters upon which there was agreement.
This segued into discussion of the likely effect of changing the children’s living arrangements, including the twins leaving the mother’s primary care and L being removed from the father’s care. Again, his Honour gave weight to the expert’s opinion and on the basis of that evidence, he was satisfied all three children would adapt to orders which changed where they lived. Just as the children had been able to adapt to the changes brought about in August 2012, they would adapt to whatever living arrangement was ordered. However, the larger question was the potential toll of separation and adaptation. In this regard, his Honour was satisfied the father would undermine the children’s relationships with the mother and if they were to live with him and spend less time with her, those relationships would be lost. As his Honour explained:
284. [The expert] said that as [L] has done since August 2012, all three children would adapt to separation from their mother. He said that in order to adapt to the security of their father’s home the children would need to move consistently into role, providing for the father’s needs by appreciating his parenting and the relief of their past sufferings with the mother. He said that it would be likely over time that the children would incorporate this negative perception of their mother into their thinking which would place them at risk of a long term disruption of the mother/child bond. He said that the children would receive excellent day to day attention to their pragmatic needs from their father but he would be concerned that they would be at risk of depression and disrupted adolescent individuation related to grief at loss of connection with their mother, and to the burden of parentification. [The expert] said that in some ways the children would feel a relief of the simplicity of living only with their father and being relieved of the need to manage the father’s needs during changeovers.
On the other hand, L would be distressed if he was removed from the father’s primary care and, all three children would react with sadness and grief at the loss of the positive aspects of their relationship with their father and paternal grandparents. However, the mother was found to be a sufficiently competent parent that she would be able to assist the children deal with separation from the father and to support and facilitate them maintaining their relationships with him. Although phrased slightly differently, on the basis of the expert’s evidence his Honour was satisfied that if the children were to live primarily with the mother and have little time with the father, they would adapt, be freed from the burden of meeting their father’s emotional needs and be able to maintain some form of relationship with him. Whereas, although the children would adapt to being separated from the mother and to having little contact with her, they would be burdened with responsibility for their father’s emotional well-being, at risk of depression and their relationship with the mother would be lost.
His Honour went on to consider evidence from the expert and the assistant principal at the children’s school in relation to the father’s evidence that the mother had been physically abusive and neglectful of the children. The assistant principal established that at school they showed no signs of neglect and the mother was seen to be warm and not aggressive with them. However, based on evidence given by a neighbour of the mother, “Ms HH”, and the expert’s discussion with the mother about discipline, his Honour was satisfied the mother did yell at the children and had pinched their ears. It was the expert’s opinion that the mother ought to attend family therapy to achieve a better discipline strategy.
By way of contrast, the primary judge made further findings about the father’s unnecessary and inappropriate complaints to agencies and doctors and his lack of insight into the effect this behaviour had on the mother and children. The assistant principal’s evidence established that the father was attentive to the children at school and he was not aggressive towards them. Although L was doing well at school, the assistant principal said he was “just sad looking”.
Otherwise, the primary judge repeated his and the expert’s concerns about the father’s inability to meet the children’s emotional and developmental needs and accepted the evidence given by a neighbour of the mother’s, “Ms EE”, about the father’s “clinging” at change over. His Honour found:
307.This behaviour on the part of the father has been the subject of observation by numerous persons including some at the children’s school. Also the mother’s neighbour [Ms EE] had observed the father lingering with [L] in his arms at changeover. She said that she had observed that the father does not proceed to kiss [L] goodbye or release him for some 10 – 15 minutes unnecessarily delaying the changeover. She said that [L] becomes distressed and emotionally upset the longer his father holds on to him.
His Honour drew these findings together and concluded that it was in the best interests of the children that they live together and with the mother. Mindful that L would be distressed at being removed from his father and returned to the mother his Honour explained that the mother and child would need therapeutic assistance to manage the child’s transition back into her care and steps would need to be taken to make it impossible for the father to undermine the children’s relationship with her.
This dovetailed with his Honour’s consideration of the amount of time the children should spend with the father and his decision to curtail it and ensure that the orders did not enable the father to “wedge” more time. Because the mother and children would need “a settling down period for the new arrangements” it was necessary there be a period when the children did not see the father at all, and thereafter sufficient time with the father to preserve the children’s relationship with him and to not “break the thread of connection” to adulthood. The apparent alignment of the father with his parents concerning the children’s situation meant that they should see the children with their son but not independently.
Grounds of appeal
The numerous grounds of appeal can be distilled into five discreet topics; namely, error in relation to the effect of separating L from the father (grounds 1, 2, 11 and 12), giving insufficient weight to L and S’s views (grounds 3 and 4), making findings contrary to the evidence in relation to the parties ability to support the children’s relationships with their other parent (grounds 5 and 7), errors in relation to family violence (grounds 6, 8, 9, 10 and 10A) and in relation to restrictions on the children’s time with the father (grounds 13, 14, 15 and 16).
Before we discuss the grounds of appeal, it is important to record that on each of the many occasions on which counsel for the father submitted there was no evidential foundation for a particular finding or conclusion, counsel went on to concede that there was. This happened too often and in every instance resulted in a submission that his Honour ought to have given greater weight to other evidence or for reasons neither articulated at first instance or on appeal, to reject the evidence. In a similar vein, there was a repeated refrain from counsel for the father to the effect that evidence given by the expert about his discussions with the father and observations about him should not have been accepted unless the father was cross-examined on the point. Although the factual proposition that the father had not been questioned on the relevant points did not withstand scrutiny, if the father wished to challenge this evidence, it was incumbent on him to do so in chief and for any such challenge to be raised before the primary judge. Needless to say the chasm between the actual evidence and his Honour’s findings, on the one hand, and wrong assertions as to the evidence which underpinned most of the grounds of appeal, on the other, seriously compromised the father’s appeal. Lest it be misunderstood, we do not suggest a differently framed appeal had any greater prospects of success.
Otherwise, as we embark on our consideration of the grounds of appeal, it needs to be understood that even in cases of undue delay in decision making the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself (Rollings & Rollings (2009) 230 FLR 396).
Separating L from the father (grounds 1, 2, 11 and 12)
These grounds assert that the primary judge erred by not giving sufficient weight to the nature of L’s relationship with his father (ground 1), the impact of change upon L as a consequence of the orders made (grounds 2 and 12) and that his reasons for removing L from his father’s care were insufficient (ground 11).
In support of the challenge raised by ground 1, counsel for the father sought to establish that it was not open to the primary judge to accept the expert’s opinion concerning the nature of L’s relationship with the father. In addition that notwithstanding those aspects of L’s relationship with the father which so troubled the expert and his Honour, greater weight should have been given to the fact that from August 2012 L was well looked after and happy in the father’s exclusive care. As we have already explained the primary judge was well aware of the length of time L had been in the father’s care and that L said he was happy.
There can be no doubt that it was open to the primary judge to find that the children’s relationships with the father, including L, are complex with the focus of these relationships being on the children meeting their father’s needs. And that the children, including L, have a parentified and pseudo-mature role in their relationships with him. Critical to his Honour’s assessment of the nature of the children’s relationship, including L, with the father was that the father’s need for affirmation from the children was sufficiently intense to amount to emotional abuse. His Honour accepted the expert’s evidence that because of what the children experienced with the father, their relationships with their mother and capacity for healthy future intimate relationships was compromised. It was particularly significant that L was already demonstrating some of his father’s “emotionally manipulative and coercive patterns of relating”.
His Honour was entitled to accept the expert’s opinion about the significance of the “clinging” behaviour and to treat that as an exemplar of the children clinging “on cue” to meet the father’s need for a special and exclusive role in their lives [265]. After all, the expert witnessed this behaviour firsthand. Just as the submission that the expert’s opinion about the clinging behaviour and its significance were “both devoid of any evidential foundation” must be rejected, so must the submission “…there was no basis given for the opinion presented by [the expert] that the father had ‘significant [functional] deficits’ in intimate relationships”. As his Honour said, at [262], this opinion is underpinned by the expert’s analysis of the manner in which the father related to the mother and in the father’s relationship with the children.
As we have already explained, his Honour was satisfied that the father engaged in a pattern of family violence towards the mother and made findings consistent with the expert’s opinion that she had been subjected to quite severe emotional abuse by the father. Reference need only be made to his Honour’s findings at [162] and [165] to establish the point. In short, the submission that there was no evidence and no basis given by the expert for his opinions about the troubling aspects of L’s relationship with the father does not withstand scrutiny.
As we have already mentioned his Honour carefully balanced these troubling aspects of L’s relationship with his father against positive aspects such as the father being in many ways an excellent parent. This was no one sided exercise in relation to which it is apparent that his Honour gave careful consideration to the entirety of L’s relationship with his father, not merely those which underpin these grounds. In light of these findings about the nature of L’s relationship with the father, we do not accept that his Honour erred by failing to give greater weight to the fact that L had been in the father’s exclusive care from late 2012. In an appeal concerned with an error of law and particularly in parenting cases determined after a defended hearing, weight challenges require an appellant to demonstrate that the trial judge was plainly wrong. That has not been done.
Again, the challenges raised by grounds 2 and 12 concern weight, in this instance, by not giving sufficient weight to the impact upon L of the orders. By ground 2, in relation to the effect on L of leaving his father’s care and by ground 12 the effect of having so little time with him.
The submissions focussed on his Honour’s findings at [256] and what is said to be his Honour’s misstatement of L’s views. In that paragraph, his Honour discussed evidence given by the expert concerning his discussions with L about what L wanted. The argument being, that his Honour misunderstood L’s stated ambivalence about seeing his mother as being ambivalence about with whom he would live. As counsel for the father correctly pointed out, L maintained an unwavering desire to continue to live with his father and any suggestion of ambivalence in that regard would be wrong. However, his Honour did not misstate the evidence or find that L’s initially stated preference to live with the father waivered. We do not accept that his Honour’s words “… and that a part of [L] would want to see his mother” could possibly support an inference that his Honour found L was ambivalent about where he wanted to live. Even considered in isolation the words used by his Honour show he fully understood that L’s ambivalence was solely referable to the question of seeing her. Nothing to which we were taken could suggest otherwise and as we shall shortly discuss, his Honour was acutely aware that the orders he would go on to make were contrary to what L wanted.
As counsel for the father acknowledged, the primary judge gave careful attention to the effect of changing the children’s circumstances in the manner he did. This issue was specifically addressed at [281]-[289] of the reasons for judgment with the sentiments there expressed replicated at other points in the reasons. No challenge is made to his Honour’s findings that L would experience sadness and grief at the loss of contact with his father, with the focus rather being on his Honour’s findings that the mother had the capacity to assist L to adapt to that loss.
Pivotal to this challenge is the finding at [270] that L has an “attachment relationship” with the mother. This finding is said not to be open and is inconsistent with the fact that L chose to leave the mother’s care. However, counsel’s submissions in support of ground 2 do not reflect the reasons. At [271], the primary judge carefully distinguished between what was presently a strong and positive relationship between the mother and the twins on the one hand with, on the other, L’s previously strong and positive relationship with her which had, since August 2012, been temporarily disrupted. It was the mother’s history of having previously met L’s needs, L’s prior attachment and that she is a capable parent who is attuned to the children’s needs, which meant that she was able to help L cope with his anticipated feelings of grief and loss. These findings were undoubtedly available. Of course, his Honour went on to order family therapy to bolster the mother’s capacity to assist L to adapt and for the same reason crafted the time arrangements to give them time to settle down.
Once it is accepted, as we do, that the primary judge was able to make the strong findings about the unhealthy aspects of the children’s relationships with the father and the damaging consequences for them if his influence was to continue, the case as mounted by the ICL for there to be a dramatic change in L’s circumstances was very strong. Yet his Honour was careful to ensure he carefully measured the momentum for change against the distress which he accepted this would cause L. In no small part, it is that distress which drove his Honour’s decision to make orders which enabled the children to have at least some time with the father and to not sever their connection [360].
Grounds 2 and 12 are not made out.
It would be apparent that contrary to the challenge raised by ground 11, we are satisfied that the primary judge explained why orders were made for L to return to the mother’s care and to have such little time with the father. In a similar vein, the notion that his Honour erred by failing to consider the imposition of an injunction as a preferable method to address the risks which the father posed to the children cannot be maintained. First, the challenge fails to come to grips with the magnitude and gravity of the risk. Secondly, his Honour was clearly concerned that the father had not heeded Federal Magistrate Burchett’s exhortation to “calm down” [337]. And if more was needed, his Honour went on to impose a series of injunctions of the type envisaged by ground 11 but plainly he was not satisfied that the injunctions alone provided an adequate solution to the difficulties the father posed to the children’s long term interests. This ground is not made out.
The children’s views (grounds 3 and 4)
Again, these are weight challenges. By ground 3 it is argued that his Honour gave insufficient weight to L’s view in favour of not being separated from his father. Ground 4 asserts insufficient weight was given to S’s view in favour of equal time.
There is an obvious nexus between grounds 2 and 12 and ground 3. To a considerable degree, the submissions made in support of ground 3 rely on the misinterpretation of his Honour’s findings at [256]. This has already been discussed and, for the reasons we have already set out, we are satisfied that his Honour clearly turned his mind to the weight which it would be appropriate for him to give to L’s stated views.
As counsel for the father agreed, it is not and never has been the case that a judge in his Honour’s position is obliged to make orders consistent with a child’s stated views (Harrison and Woollard (1995) FLC 92-598; Maldera & Orbel (2014) FLC 93-602). It is well settled that a trial judge is obliged to consider the weight which should be given to any stated views. And that a range of factors may affect the weight given, beyond simply the age and level of maturity of the child. In other words, context is critical and thus, for example, a child who might be too afraid of a parent to express a view contrary to that held by the parent, is protected by the court’s obligation to understand the rationale for a child’s view and consider how giving effect to that view fits with the child’s best interests (R v R (Children’s wishes) (2002) FLC 93-108). This is precisely what his Honour did. It can be seen in his Honour’s discussion of s 60CC(3)(a) (views) and his acceptance of the expert’s evidence that the children’s preference for the father should be treated with some caution because of the father’s emotionally abusive behaviour. Of course, as was pointed out by counsel for the ICL, in mounting a case for equal time, the father acknowledged that L’s long term interests should carry greater weight than the child’s views.
Considered in this manner, it can be seen that the challenge is reliant upon the finest of distinctions about where the weight line could be permissibly drawn. The factors which his Honour took into account in giving L’s views the weight which he did were unarguably relevant and thus this ground cannot succeed.
Ground 4 does not do justice to his Honour’s findings concerning S’s views. In relation to S’s views, his Honour found (at [258]) “…[S] was not sure whether she would like to make the decision and was glad that she did not have to do so. He said that if she had to decide she would live with her parents ‘half and half’. He said that she was not able to elaborate why”.
Having misstated his Honour’s findings, the challenge is underpinned by the erroneous assertion “…there is no evidence that points to any occasion or any circumstance when the Father could have in any way influenced [S]” (counsel for father’s written submissions, [38]). Reference need only be made to the clinging episode played out in the presence of the expert to demonstrate that the submission cannot be maintained. The submission also ignores entirely his Honour’s findings about the pervasive and prolonged emotionally abusive conduct by the father prior to August 2012.
Error in the manner alleged has not been established.
Ability to promote the children’s relationships (grounds 5 and 7)
The focus of these grounds is on his Honour’s findings concerning the parties’ willingness and ability to promote the children’s relationship with their other parent. The challenge raised by ground 5 is that his Honour erred in giving no weight to evidence the mother failed to promote a relationship between the twins and their father. Ground 7 concerns his Honour’s findings on this topic about the father.
As we understand the submission, it is to the effect that because after August 2012 the mother did not facilitate regular contact between the twins and the father, herself made three complaints about the father to authorities and could think of nothing positive to say to the children about him or his parents, she would not promote a relationship between the children and the father. In other words, his Honour could not validly differentiate between the father retaining L in August 2012 and thereafter not facilitating contact with the mother, his complaints to child welfare agencies and her similar conduct. As we have already explained, these issues were specifically considered and his Honour was satisfied there was no comparability between the nature and volume of the complaints made by the father compared to the mother’s three. Hers, unlike his, did not form part of a pattern of coercion and disrespect.
We do not accept that it was necessarily open to his Honour to criticise the mother’s failure to facilitate contact between the twins and the father after August 2012 or promote their relationship by, for example, assisting the children to send cards at Christmas and on birthdays. Albeit counsel for the father argued at first instance he should do so. In our view, the following matters firmly stood in the way of his Honour being able to criticise the mother in the manner sought:
a)contact between the children and the other parent came to an end because the father withheld L contrary to orders;
b)orders were then made which did not facilitate time between the children and their other parent;
c)in February 2013 the expert recommended there be no contact for a prolonged period between the twins and the father; and
d)prior to August 2012, the mother facilitated extensive contact between all the children and the father.
It is not essential for a trial judge to address every submission and to discuss every fact. When the asserted overlooked submission is considered in light of these facts and his Honour’s comprehensive reasons, we do not accept that it was necessary for it to be specifically addressed.
As to ground 7, it is argued that the following facts meant it was impossible for his Honour to conclude that the father would not be able to promote the children’s relationship with the mother:
·the expert’s opinions are unsupported by the evidence;
·the father said he would promote the children’s relationship with the mother;
·the father praised aspects of the mother’s parenting;
·he took L to see Ms R so as to facilitate L’s relationship with the mother;
·he had completed a parenting program and attended counselling; and
·there were no signs the children’s views had been influenced by the father.
Unfortunately it is necessary to repeat our earlier remarks to the effect that his Honour was entitled to accept the evidence given by the expert, including in relation to this issue. Once that evidence was accepted, the findings impugned by this ground were undoubtedly open.
Family violence (grounds 6, 8, 9, 10 and 10A)
The challenges raised by these grounds are that his Honour erred:
·It was not consistent to make a finding that the father was engaged in ongoing emotional abuse (ground 6);
·By making findings of family violence as that term is defined in the Act (ground 8);
·In accepting the opinion of the expert (ground 9);
·In the alternative in giving too much weight to the expert’s opinion that the father had engaged in family violence (ground 10); and
·In failing to properly evaluate the magnitude of the risk of harm compared with the benefits the children would gain from having a close relationship with the father (ground 10A).
Because we were unable to understand the challenge raised by ground 6, counsel for the father was invited to explain it. We were informed that the ground was incomplete and it was intended to challenge his Honour’s finding that the father engaged in ongoing emotional abuse of the mother. After submissions were made on that point, counsel for the father informed us that the challenge concerned the children and not the mother. The ground having been, in effect, amended for a second time, no submissions were made in support of it and it need not be considered.
Turning then to the remaining family violence grounds, the first thing that must be said is that the definition in the Act accommodates behaviour other than physical violence. Family violence can be established by a single event and through a pattern of behaviour. Counsel conceded the point. Here there was evidence of both.
Counsel diligently sought to distinguish the father’s behaviour prior to August 2010 (when prior parenting orders were made) and the father’s conduct since then and in so doing challenge the expert’s opinion that there existed a pattern of family violence. That the approach adopted cannot withstand scrutiny is easily demonstrated.
Counsel for the father first sought to argue there was no evidence of physical violence. We have earlier referred to an ugly incident that took place in 2005 and in relation to which a member of the public contacted police. It was then argued the antiquity of this occurrence meant it was irrelevant. His Honour did not agree and nor do we. That incident alone refutes the contention there was no physical violence which the father inflicted on the mother. Reference need only be made to his Honour’s finding at [161], [162] and [165] to establish there was more than one incident of physical violence discussed by his Honour.
It was simply wrong of counsel for the father to say that his Honour failed to acknowledge that the father denied the mother’s allegations and that he did not take a “position” about the father’s credit. One needs only to read [149]-[184] of his Honour’s reasons to see how frequently the father’s denials were acknowledged and at [167] for specific credit findings.
It would be apparent that we reject the submission that his Honour subverted his views to those of the expert and are satisfied that his Honour carefully considered the expert’s evidence, as well as the other relevant evidence.
The challenges raised by these grounds demonstrate an almost total failure to appreciate that his Honour identified a pattern of abusive behaviour, albeit its indicia changed. That the indicia changed is a question of opportunity not substance. The point being that whereas, as prior to separation, the father had the opportunity to physically mistreat the mother and to abuse and belittle her, after separation she was less accessible and thus he needed to find other ways of controlling and belittling her. To a great extent he did this by undermining her relationships with the children and subjected her to a campaign of disrespect and humiliation by making complaints to agencies. In other words, the dynamic of abuse which existed prior to separation continued but in a different form after separation. It was in all respects insidious and warranted the strong criticisms made by his Honour and the expert.
As to ground 10A, counsel for the father relied on the written submissions which do no more than restate the challenge. This is probably because the matters which might have been addressed under this ground are raised in various other challenges made to his Honour’s orders. As none of those challenges will succeed, this ground must also fail.
Limitation on the children’s time with the father (grounds 13, 14, 15 and 16)
The challenges raised by these grounds are focused on the constraints imposed on the father’s time with the children. The various grounds assert error by the primary judge in that:
·he failed to give adequate reasons for supervision for six months (ground 13);
·he failed to give adequate reasons for not ordering overnight time (ground 14);
·Order 14 (which restrains the father from attending the children’s school) was made in the absence of evidence (ground 15); and
·he gave inadequate reasons for Order 14 (ground 16).
The argument advanced in support of ground 13 is to the effect that [364] of his Honour’s reasons provides an insufficient foundation for the supervised time order and, it would seem, the other restrictions challenged by grounds 14, 15 and 16. At [364], the primary judge addressed the expert’s recommendation for a period of no contact and then supervised contact for two hours each two months. His Honour explained at [365] why he agreed with the notion that there would need to be a settling down period for the new arrangements and that the period of no contact would enable family therapy to commence and assist, particularly the mother and children, to settle into the new arrangements. Of course, his Honour’s reasons for supervision and the restrictions on the children’s time with the father are far more extensive than [364]. We agree with counsel for the mother and ICL that his Honour’s finding at [359] in particular is relevant to these grounds. That paragraph is set out below:
[The expert] expressed his view that there should be real limits placed on the amount of time the children spend with their father. He thought that the fact that the father has not been able to comply with the orders of the Federal Magistrates Court demonstrates that the father is very likely to use whatever time he has with the children to “wedge” more time with them and there is a danger that if the time is not limited then all the old dynamics involved in the children behaving in a manner to fulfil the father’s needs would resume which would have the risk of undermining the children’s relationship with their mother. He said that this would be emotionally abusive.
There can be no doubt that his Honour accepted the opinion of the expert that absent “real limits” on the amount of time the children would spend with the father and the circumstances under which it was spent, they were exposed to an unacceptable risk of emotionally abusive behaviour. Thus his Honour went on to craft a carefully calibrated set of orders designed to manage that risk as best as possible and to preserve the children’s relationship with the father.
When his Honour’s reasons are read as a whole, it is plain that he was satisfied that these carefully calibrated arrangements lie at the boundary of appropriate time and circumstances. In other words, with the support of family therapy, a period during which there was no contact and then supervised contact, even if the father engaged in emotionally abusive behaviour with the children, the damage caused to them and in their relationship with the mother could be sustained without causing irreparable damage.
As to the remaining grounds, it is true that the primary judge did not specifically explain why it was that Order 14 was required. However, that order has an obvious connection to the importance his Honour placed on the need for “real limits” on the amount of time the children would spend with the father and to not give the father an opportunity to “wedge” more time with them.
There is no merit in these grounds.
Application in an appeal
Error having not been established, it is thus necessary to consider the application by the ICL to introduce further evidence in the appeal. The evidence sought to be introduced is contained in an affidavit of the ICL sworn on 28 April 2015.
The primary purpose of the affidavit is to place before us copies of the mother’s Application in a Case filed on 28 January 2015 for a recovery order to have the child L placed in her care and her affidavit in support. Also, an affidavit by the father filed on 29 January 2015 to stay his Honour’s orders and his affidavit in support of that application. Otherwise, the affidavit details the outcome of those applications reflected in interim consent orders made on 6 February 2015. That those applications and the interim orders were made, were placed before us as agreed facts. Beyond that, the mother objected to us receiving the father’s affidavit filed 29 January 2015; the contents of which we were informed are contentious and if admitted would prompt a response.
It is common ground that the application to adduce further evidence in the appeal was only served on the respondent mother the day prior to the appeal hearing. That material had been in the possession of the ICL since 6 February 2015 and related to events in January 2015. No explanation was provided by the ICL for failure to file the application to adduce further evidence in a timely way. Not only would it be manifestly unfair to the respondent to admit this evidence, it is the type of evidence which, in this case, would impermissibly blur the distinction between original and appellate jurisdiction. The application will be dismissed.
Conclusion & Costs
It follows that the appeal will be dismissed.
It was conceded by the father that if the appeal was dismissed he should pay the costs of the respondent mother and the ICL. Orders will be made accordingly.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court (Bryant CJ, Ryan & Kent JJ) delivered on 4 September 2015.
Associate:
Date: 4 September 2015
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