GLEESON & GLEESON
[2013] FCCA 1932
•4 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| GLEESON & GLEESON | [2013] FCCA 1932 |
| Catchwords: FAMILY LAW – Parenting – spend time with arrangements – emotional abuse. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA, 67Z, 67ZBB, 68LA, 91B, pt. VII |
| Rice & Asplund (1979) FLC 90-725 Mabo v Queensland [1992] HCA 23 Mazorski & Albright [2007] FamCA 520 Deacon & Castle [2013] FCCA 691 U & U [2002] FLC 93-112 Jones v Dunkel (1959) 101 CLR 298 C & D (2005) FLC93-236 Elspeth v Peter [2006] FamCA 1385 Doyle & Doyle (1992) FLC 92-286 |
| Applicant: | MR GLEESON |
| Respondent: | MS GLEESON |
| File Number: | MLC 471 of 2009 |
| Judgment of: | Judge Harman |
| Hearing dates: | 3 & 4 October 2013 |
| Date of Last Submission: | 4 October 2013 |
| Delivered at: | Melbourne |
| Delivered on: | 4 October 2013 |
REPRESENTATION
| Counsel for the Applicant: | In person |
| Counsel for the Respondent: | In person |
| Solicitors for the Independent Children’s Lawyer: | Agricola Wunderlich & Associates |
ORDERS
That the children X and Y shall spend time with the father at times as agreed between the father and those children.
Then the Independent Children’s Lawyer shall forthwith provide to the children X and Y, the fathers contact details.
That within 48 hours of the date of these Orders, the mother and father shall sign all documents and do all acts necessary to enrol and participate in supervised time at Community West Children’s Contact Centre
That the child Z spend time with the father as follows:-
(a)on a supervised basis, for two hours each fortnight at Community West Children's Contact Centre on 8 occasions;
(b)thereafter the father spend time with Z for two hours each fortnight at the monitored but unsupervised room at Community West Children’s Contact Centre on 4 occasions;
(c)thereafter on an unsupervised basis from 2pm until 6pm (or such hours as the centre can accommodate for changeovers) each alternate Saturday on 4 occasions;
(d)thereafter on an unsupervised basis from 10am to 6pm (or such hours as the Centre can accommodate for changeovers) each alternate Saturday on 4 occasions;
(e)Thereafter on an unsupervised basis 10am Saturday until 6pm Sunday (or such hours for changeover as can be accommodated by the contact centre) on 8 occasions;
(f) Thereafter:
(i)each alternative weekend during school terms from the conclusion of school Friday or 3pm until the commencement of school Monday or 9am (extending to Tuesday in the event of a long weekend or pupil free day) such weekends to resume after each school holiday period on the first weekend of each school term;
(ii)One half of each school holiday period and being for the short holidays from the conclusion of school on the last day of term until 6pm on the middle Saturday and for the long (Christmas) holidays from the conclusion of school until 6pm Christmas Day in 2014 and each alternate year thereafter and from the conclusion of school until 6pm Christmas Eve in 2015 and each alternate year thereafter together with a period from 10am on 2 January until 6pm on 12 January in each year;
(iii) At other times as agreed between the parties
(g)For the purposes of all visits referred to in subparagraphs c) to f) above, changeover shall take place at Community West Children’s Contact Centre except for the changeover which takes place at Z’s school and in the event that changeovers cannot take place through the contact centre for any reason then changeover shall occur within the foyer of the Police Station most proximate to the father’s home.
(h)On any day when Z is to be collected from or returned to his school by the father, the mother shall be and is hereby restrained from being within 100 metres of the school at those times and on those days.
That pending the commencement of supervised visits at Community West Children’s Contact Centre and then pending the conclusion of the first supervised visit at the Centre, the mother take Z to counselling with Ms M and the father shall pay the cost of such counselling.
That the mother and father shall each be restrained from denigrating or undermining the other in the presence or hearing of the children.
That the mother and father each inform the other of any change of address or telephone number within 48 hours of such change of address or telephone number.
That the mother and father each inform the other of any serious injury or illness of the children or any of them within 24 hours of such serious injury or illness occurring.
The mother shall forthwith and within 72 hours of being advised by the Independent Children’s Lawyer of a psychologist nominated by them upon which the mother is to attend, she shall contact that psychologist and arrange and attend the first available and offered intake appointment and thereafter continue to attend appointments with that psychologist until such time as the psychologist discontinues service.
The Independent Children’s Lawyer shall provide to such psychologist as is nominated and upon which the mother shall attend, copies of the reasons for judgment delivered by me today together with copies of each of the expert reports prepared in these proceedings and as enumerated within the reasons given, together with a request that assistance be provided to the mother by way of general support and specifically to assist her in developing, maintaining and expressing a healthy and productive attitude towards the father consistent with her capacity to do so and past experience of him and to assist her with respect to her ability to support and encourage Z’s relationship with the father (as well as X and Y’s relationships with the father) and comply with orders made by the court as to Z’s time with the father.
The mother shall forthwith upon being advised of the psychologist nominated by the Independent Children’s Lawyer, arrange and attend an appointment with her general practitioner with a view to obtaining from him a referral to that psychologist and if at all possible, a mental health treatment plan so as to ensure that the appointments are funded through Medicare, if at all possible.
The Independent Children’s Lawyer shall forthwith make a notification to the Director General of the Department of Human Services (Victoria) and shall be at liberty to provide to the Director General copies of the reasons for judgment delivered by me today together with copies of each of the expert reports prepared in these proceedings and as enumerated within the reasons given and drawing the Director General’s attention to the findings made by me that the mother has emotionally abused the children and has thereby caused harm to them.
Each of the parties shall forthwith do all things, sign all documents, give all consents and authorities necessary to:
(a)ensure that each parent’s details are recorded with any school attended by X, Y and/or Z (or any school attended by them in the future) as both a parent and emergency contact parent, so as to allow and permit each parent to obtain such information and materials from the school as they may desire and to receive notice of and attend any events, including but not limited to, parent teacher interviews at the school and to which parents are invited or encouraged to attend;
(b)ensure any medical practitioner consulted by the children, X, Y and/or Z, is advised of and holds up-to-date contact details for each parent and to ensure that each is authorised to discuss with each parent any treatment provided to any of the children, any diagnosis or prognosis, advise of any medication recommended or prescribed or any treatment or therapy (and for the purpose of this order medical practitioner shall include and not be limited to general practitioners, psychologists, psychiatrists and counsellors); and
(c)to cause the other to be advised forthwith and thereafter at all relevant times of their address and contact telephone number and being a contact telephone number or numbers via which the children can be contacted whilst in the care of the other.
That all outstanding applications are dismissed and all issues are removed from the list of cases awaiting hearing.
That all material produced on subpoena shall, at the expiration of the appeal period and absent any appeal being filed, be returned to the person or agency producing same or, if so requested, securely destroyed.
IT IS NOTED that publication of this judgment under the pseudonym Gleeson & Gleeson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 471 of 2009
| MR GLEESON |
Applicant
And
| MS GLEESON |
Respondent
REASONS FOR JUDGMENT
These are proceedings relating to future care arrangements for three children:
X, born (omitted) 1996 and who is 17 years of age;
Y, born (omitted) 1998 and who is 15 years of age; and
Z, born (omitted) 2003 and who is 10 years of age.
The parties to the proceedings are the children’s parents, being their father, Mr Gleeson, who is the Applicant, and their mother, Ms Gleeson who is the Respondent.
The applications and material considered
The proceedings were commenced by Mr Gleeson by an Application filed 16 May 2012. By that Application, Mr Gleeson sought Orders that the parents have equal shared parental responsibility, that all three children live with each of the parents on a week about basis and such other Orders as the Court considered necessary and appropriate.
That position was maintained at the commencement of the trial although varied during the course thereof as I will discuss shortly.
By an Amended Response filed 12 September 2013, Ms Gleeson sought Orders in the following terms:
The Family Law Act 1975 section 71. It is to be noted that section 71 of the Family Law Act 1975 (Cth) is not part of Part VII of the Act and thus not relevant to the determination of these proceedings.
Parenting share custody - refused.
Force children to see father, Mr Gleeson, [and then sets out the names and ages of the children].
It was clarified with Ms Gleeson at the outset of the trial that the relief proposed by her in that document was not intended by her to suggest that there should be an Order for the children to spend time with or communicate with their father and that, if necessary, that they would be “forced” to do so. Ms Gleeson affirmed her position that she did not seek any Order which would see the children spending time or communicating with their father and opined that this would not be in the children’s best interests.
A Case Outline document incorporating a Minute of Orders Proposed was filed by the Independent Children’s Lawyer and marked as Exhibit ICL1. That document sets out a number of Orders proposed and incorporated herein:
1. That all previous orders be discharged.
2. That the mother [have] sole parental responsibility for the children X born (omitted) 1996, Y born (omitted) 1998 and Z born (omitted) 2003.
3. That the children live with the mother.
4. That the children X and Y spend time with the father at times as agreed between the father and the children.
5. Then the Independent Children’s Lawyer provide to the children X and Y, with the fathers contact details.
6. That within 48 hours of the date of these orders, the mother and father sign all documents and do all acts necessary to enrol and participate in supervised time at Community West Children’s Contact Centre.
7. That the child Z spend time with the father as follows:
(a) on a supervised basis, for two hours each fortnight at Community West Children’s Contact Centre on eight occasions (and therefore over a period of approximately 4 months);
(b) towards the end of the period of supervised visits, the father obtain a written report, at his expense, from the Community West Children’s Contact Centre and provide a copy to the mother;
(c) provided that the report from Community West Children’s Contact Centre is in position, then the father spend time with Z for two hours each fortnight monitored but unsupervised room at Community West Children’s Contact Centre on two occasions and then;
(d) on an unsupervised basis, from 2pm to 6pm each alternate Saturday with the father being at liberty to choose where such visits shall take place for two visits then;
(e) on an unsupervised basis from 10am to 6pm each alternate Saturday with the father being at liberty to choose where such visits shall take place, on 6 occasions (and therefore over a period of approximately 3 months) and then;
(f) on an unsupervised basis from 10am to 6pm each alternate Saturday and 10am to 6pm each alternate Sunday (on the same weekend) with the father being at liberty to choose where such visits take place on six occasions (and therefore over a period of approximately 3 months) and then;
(g) on an unsupervised basis, from 10am Saturday to 6pm Sunday each alternate weekend, with the father at liberty to choose where such visits take place, on six occasions (and therefore over a period of approximately 3 months) and then;
(h) on an unsupervised basis, from end of school Friday to 6pm Sunday each alternate weekend, with the father to be at liberty to choose where such visits take place thereafter;
(i) at other times as agreed between the parties;
(j) for the purpose of all visits referred to in subparagraphs c) to i) above, changeover shall take place at Community West Children’s Contact Centre except for the changeover which takes place at Z’s school.
8. That the mother uses her best endeavours to ensure that Z attends all visits referred to in paragraph 7 and that she encourages Z to attend all such visits.
9. That pending the commencement of supervised visits at Community West Children’s Contact Centre and then pending the conclusion of the first supervised visit at the Centre, the mother take Z to counselling with Ms M and the father pay the cost of such counselling.
10. That the mother and father be restrained from denigrating or undermining the other in the presence or hearing of the children.
11. That the mother and father each inform the other of any change of address or telephone number within 48 hours of such change of address or telephone number.
12. That the mother and father each inform the other of any serious injury or illness of the children or any of them within 24 hours of such serious injury or illness occurring.
The effect of those Orders, if made, is that the mother would have sole parental responsibility for the children, the children would live with their mother, the two oldest children, X and Y 17 and 15 years of age respectively, would spend time and communicate with their father at times and by means as agreed between them and their father and the youngest child, Z, 10 years of age, would spend time with his father in a regime of increasing time commencing with periods of two hours per fortnight at a supervised contact centre before progressing to monitored time at the contact centre, unsupervised time on a day only basis (and using the contact centre for changeovers) and then progressing to alternate weekend overnight time from Saturday to Sunday.
A number of Orders are sought by the Independent Children’s Lawyer regarding counselling and the like, portions of which have already commenced or at least, as the evidence would suggest, been attempted.
The father, during the course of the matter, indicated that he would consent to the Orders proposed by the Independent Children’s Lawyer although I made clear that his consent would not be taken as an abandonment of his primary position that the children’s best interests would be met by the Orders that he had originally proposed.
History of proceedings
The parties were first involved in litigation before this Court as a consequence of an Application filed by the father on 22 January 2009. Those proceedings are long concluded. However, that Application had sought Orders with respect to property adjustment only.
A Response to that Application had been filed by Ms Gleeson and which had sought Orders with respect to property adjustment as well as an Order that the children live with the wife and that she have sole parental responsibility for them.
An Order was proposed that the husband spend time with the children on a supervised basis at such times and upon such terms as the Court deemed to be in the children’s best interests.
Those proceedings, it would appear, came before the Court on 25 February 2009 and on a number of subsequent occasions, including attendance at a Conciliation Conference in April of 2009.
The matter was then listed for Final Hearing on 17 July 2009. It would appear that on that date a number of Orders were made the coversheet of same expressing them to be Interim Orders.
The file contains Reasons for Judgment and Orders made on that occasion. Following thereafter further Orders were made on 6 August 2009 which included superannuation splitting orders. Those Orders were in turn expressed as Interim Orders.
The proceedings were then before the Court on 7 December 2009 on which date the mother would appear to have proceeded to seek Orders in accordance with a Minute of Consent Orders. That minute provided that all prior parenting Orders be discharged, that the wife have sole parental responsibility for the children and that the children would live with the wife and finally provided “the time the children are to spend and communicate with the husband be reserved”.
Orders were made on 7 December 2009 and those Orders would appear to have concluded those proceedings. A transcript of the proceedings before the Court that day was taken out and is placed upon the Court file, but it is not referred to nor relied upon in evidence in this round of proceedings.
These proceedings, as I have indicated, were commenced by the Application filed by the father 16 May 2012. In these proceedings no Rice & Asplund (1979) FLC 90-725 issue has been raised by the mother or the Independent Children’s Lawyer.
Since institution, the matter has come before the Court on a number of occasions including on 25 July 2012 when the Order for the appointment of the Independent Children’s Lawyer was made.
A number of Interim Orders have been made in the course of the proceedings regarding:
(a)the participation of the children in therapeutic treatment as nominated by the Independent Children’s Lawyer;
(b)the provision of information by the parties and, in particular, by the mother to allow further inquiries to be made and material to be obtained;
(c)the psychiatric assessment of each of the parties;
(d)the preparation of a Family Report; and
(e)The children’s participation in further counselling services with a Ms M.
Ultimately, the proceedings have not been resolved notwithstanding the above five interventions. As a consequence, the proceedings were listed for hearing and have now proceeded to hearing.
At the hearing, each of the parties has appeared in person. Neither has had the benefit or assistance of counsel or legal representation and that is a factor that I will touch upon shortly.
Evidence considered
I have read and considered each of the documents filed by the parties together with a number of documents commissioned pursuant to either Part 15 of the Federal Circuit Court Rules or section 62G of the Family Law Act and/or filed by the Independent Children’s Lawyer as evidence in the Independent Children’s Lawyer’s case.
To avoid any doubt, the material considered by me has comprised:
(a)The father’s Initiating Application filed 16 May 2012.
(b)The father’s Affidavit sworn 15 May 2012, filed 16 May 2012.
(c)The father’s Affidavit sworn 20 July 2012, filed 7 August 2012.
(d)The father’s Affidavit sworn 20 September 2013, filed the same day.
(e)The mother’s Response filed 12 September 2013.
(f)The mother’s Affidavit sworn 26 June 2012, filed 28 June 2012.
(g)The mother’s Affidavit sworn or affirmed on 12 September 2013, filed the same day.
(h)A number of exhibits in the mother’s case comprising:
(i)M1, a letter from the father’s then attorneys to the mother;
(ii)M2 a document purporting to be a school assignment completed by the eldest child, X;
(iii)M3, a letter purporting to be written by the youngest child, Z, and
(iv)M4, material from a medical centre in the nature of a brief report with respect to each of the two eldest children, X and Y, and their present psychological state and treatment.
In the Independent Children’s Lawyer’s case, I have also received exhibit ICL1, the Minute of Order to which I have referred.
In addition to the above there are as indicated, a quantity of reports filed and relied upon in these proceedings. They comprise:
(a)An Affidavit by Ms B. That Affidavit was sworn on 27 November 2012, filed 29 November 2012. It annexes a brief assessment with respect to each of the three children.
(b)An Affidavit of Dr P, psychiatrist. That document is sworn 1 November 2012, filed 2 November 2012. It annexes two reports, being a psychiatric assessment of each of the parents.
(c)A section 11F report produced by Family Consultant, Ms G, following appointments on 16 July 2012.
(d)An Affidavit of Ms M, Social Work Consultant, affirmed 27 August 2013 and filed 2 September 2013.
(e)Lastly, a Family Report prepared by Ms P and dated 16 September 2013.
The above reports have been admitted into evidence without objection. No notice was given to any report writer that they were required for cross-examination. On that basis their evidence is admitted without objection.
The exception to the above arises with respect to the report of Ms P. Whilst it was clear that she had not been given notice that she was required and whilst I had initially indicated that on that basis she would not be required and her report would be admitted without objection, she was ultimately made available and cross-examined by the parties and the Independent Children’s Lawyer. That arose with respect to one aspect of her evidence, although no fetter upon her cross-examination other than relevance was imposed. Thus, each of the parties has had the opportunity to cross-examine her.
In addition to the above, Ms Gleeson has provided material which seeks to extensively answer that contained in the Report of Ms M and as annexed to her Affidavit.
The conduct of the proceedings
At the commencement of the trial, I sought to outline for the parties the matters which must be addressed consequent upon and consistent with Re F: Litigants in Person Guidelines (2001) 27 Fam LR 517. Throughout the trial I have sought to revisit those guidelines and aid the understanding of the parties as to the process, procedure and evidential rulings of the Court as much as possible.
I have no confidence that the address of such matters at the commencement of a trial are in any way effective in affording due process to self-represented litigants and especially so in the context of this case wherein:
a)The subject matter of the proceedings is of extreme importance to the parties and thus their emotional enmeshment in the matter must render it difficult if not impossible to be, at any level, detached and objective;
b)Each party is from a non-English speaking background and has, with no criticism of them, a less than perfect grasp of written and spoken English;
c)Much of the terminology used in the proceedings, legal terms as well as social science and psychology terms as used in the various expert reports, is foreign and inaccessible to them;
d)Neither has any prior knowledge or training in adversarial processes of Courts;
e)Each is from a (country omitted) background and from areas where a civil, inquisitorial system is the norm, in itself vastly different to the system operating in the determination of this dispute;
f)Each would, no doubt, (and I have no doubt), be extremely anxious and stressed by the mere attendance at Court let alone the need to cross-examine the other, be cross-examined by the other (especially when the mother raises, albeit subject to evidential issues, significant allegations of family violence) and address the Court representing as that does a significant power imbalance. With those stresses, the ability to absorb the brief advice given in accordance the Re F: Litigants in Person Guidelines is, at best, doubtful and indeed, throughout the matter it was clear that it had been neither absorbed nor understood.
I am conscious that address of the Re F: Litigants in Person Guidelines has done little to produce a level playing field. At best it moves the parties from the beaches of Normandy to the seawall where they remain, for the totality of the trial, pinned down by heavy fire, unable to either advance or retreat and occasionally offering enfilading fire with little or no effect.
From the perspective of the bench, there is little joy derived from this situation.
A vast body of case law exists acknowledging the role of counsel in ensuring the effective administration of justice and the appropriate conduct of proceedings. The absence of counsel for one or both parties, as in this case, is now a reality - a reality Courts such as this deal with on a daily basis.
The model of adversarial trial, developed over centuries and with the representation of parties by competent counsel being the norm is, perhaps poorly served to meet the needs of self-represented litigants such as appear in this case let alone serve the best interests of their children.
The Court, as a tribunal of fact, is poorly served when dependent upon the competent presentation and testing of evidence which does not come.
Decisions are made by the Court on the basis of application of Parliament’s law to the facts of a case as found. Those facts are, when evidence is poorly prepared or not prepared at all, as elusive as Lasseter’s Gold. And yet that is the Court’s task and burden.
Any systematic or institutional address of the model of adversarial justice adopted and applied by this Court is a matter for Parliament and the Appeal Courts. As a first instance trial Judge my role is to apply the law of the Commonwealth and that is what I shall continue to do. I simply raise these matters for the benefit of the parties to make clear my frustration in attempting to ascertain and make Orders consistent with their children’s best interests and my understanding of how difficult this process has been for them.
The collateral effect of the above difficulties is the onerous burden which then befalls the Independent Children’s Lawyer.
The duties of the Independent Children’s Lawyer are codified in section 68LA of the Family Law Act. Principal amongst those duties is the duty to “act impartially in dealings with the parties...” Thus, the Independent Children’s Lawyer cannot assist either party procedurally or substantially as this would infringe one of their principle duties.
The Independent Children’s Lawyer does have a significant role to play in evidence gathering and testing (see section 68LA(5)(c) of the Family Law Act). This duty has been abundantly discharged by the Independent Children’s Lawyer. Indeed, the efforts of the Independent Children’s Lawyer to assist the Court through the presentation and testing of evidence and thoughtful, detailed and considered submission have been Herculean and courageous. But for the work of the Independent Children’s Lawyer, I have no confidence that this case could have been concluded or concluded with any confidence or based upon any probative evidence.
I am conscious that increasingly the Court relies, in circumstances such as these, upon the Independent Children’s Lawyer (when one is even appointed or, if appointed, that appointment is able to be facilitated). This includes, often with willing good grace by the individual appointed, to delegate to the Independent Children’s Lawyer a role of “de facto case co-ordinator” or requesting that they attend to matters that are, in reality, the responsibility of the parties. That is unfair.
To seek to impose roles upon solicitors and counsel who are poorly paid and as in this case as regards counsel, appearing without instructor, is onerous and to be avoided.
A public perception has developed that legal practitioners are highly paid and unjustly so. Having regard to the amount of work performed by the Independent Children’s Lawyer in this case and indeed, most Independent Children’s Lawyers in most cases before the Court and acknowledging the remuneration provided, I suspect that the hourly rate received by the Independent Children’s Lawyer in this case and in many others is less than the Independent Children’s Lawyer’s secretary would be paid.
Sadly, circumstances including exigencies of funding and levels of self-representation have created these circumstances. However, it routinely means and in this case has meant, that the Independent Children’s Lawyer is required to perform significant work for minimal reward or for free and does so as a friend of the Court and as a demonstration of the commitment those appointed have to the interests of children and the protection of their interests. For that the Independent Children’s Lawyer and counsel for the Independent Children’s Lawyer have my sincere admiration and thanks.
I fear that the days when the system operates, as it does now, on good will and pure motive, are numbered.
The evidence of the parties
The father’s evidence
The father, in addition to his own Affidavit, filed an Affidavit by his current wife. At the outset of the trial, however, it was indicated that the Affidavit was not read and thus she was neither called, nor required for cross-examination and thus there is no evidence by her before the Court.
The only lay witnesses called in the proceedings are the mother and father.
The father, as the Applicant, was called and cross-examined first.
Whilst neither party has put any submission to the Court with respect to credit, I am satisfied that the father generally did his best to respond truthfully, although subject to a tendency to prevaricate and to be non-responsive but rather make statements from the witness box, sometimes tangentially and substantially connected with the question, but rarely the latter.
In any event, whilst that is a criticism fairly levelled, I am not satisfied that it was a deliberate attempt to avoid a response to questions put especially as many of the questions raised with him were difficult to comprehend as a question and/or required some interpretation and some discussion with the person asking same, (i.e. the mother) to ascertain that which was, in fact, being put to the father.
Overall, I am satisfied that the father, as indicated, did his best to be frank and truthful. That included both through his Affidavit and his cross-examination concessions made by him regarding past behaviour.
A significant issue raised in the proceedings relates to allegations that the father had, prior to the separation of these parties, which occurred some little time ago, consumed alcohol to excess on a regular, if not frequent or daily basis and following consumption of alcohol or even without, acted out violently towards the mother and the children or towards the mother in the presence of the children.
The father’s concessions do not go so far as to concede family violence on any significant or substantial basis. However, the father, to the extent that he was cross-examined about it, conceded that:
a)On one occasion he had grabbed the mother by the arm during an altercation;
b)There had been verbal and physical abuse between them;
c)On another occasion when the Police had been called, the day on which these parents separated, that there had been at least pushing and shoving of a table and/or couch;
d)He had drunk alcohol to excess on occasions during the marriage.
The father otherwise denied the balance of allegations with respect to physical violence.
The father made concessions that verbal altercations occurred regularly between he and the mother and that concession was later expanded to include a concession by him, (if it was not directly made, at least inferred), that he had regularly raised his voice to the mother, the children, or to the mother in the presence of the children and at times had used foul or offensive language.
That arose from cross-examination by the Independent Children's Lawyer and with respect to evidence by the father in his trial Affidavit. Within that Affidavit, at paragraph 2, the father stated:
I wish to state before the court that I unreservedly apologise for any emotional distress that I may caused my former wife, and especially to our children.
It continues in paragraph 3:
I would like the court to realise that I am a changed man, that I have seen the errors of my past life, and that I have sought to correct these wrongs.
I will return to those concessions and that which is referred to by Ms Gleeson on the topic (to which evidence Mr Gleeson effectively responds in those paragraphs) in the consideration of Ms Gleeson’s evidence.
During his cross-examination and indeed during Mr Gleeson’s cross-examination of Ms Gleeson, it became apparent that Mr Gleeson has some difficulty with English. That is not raised to cause him any embarrassment and certainly not to be critical of him. It is simply a fact which I accept must have made dealing with these proceedings and preparation therefore all the more difficult.
It is on that basis and an apprehension of that difficulty, that Mr Gleeson has had the assistance of his wife with him at all times whilst at the bar table conducting the proceedings, although she has been restrained from, without any need by the Court to direct it at any time, active participation in the proceedings. She has simply provided some comfort, support and assistance to Mr Gleeson, particularly organising his papers, if not his thoughts and assisting him with documents. It was clear and apparent whilst Mr Gleeson was in the witness box and a number of documents were put to him that such assistance was necessary.
Mr Gleeson was not cross-examined extensively, but to the extent that questions were put to him by Ms Gleeson, they have primarily focused around events on the date of separation of these parties, 10 May 2008, on which date the Police would appear to have attended on two occasions as well as events which occurred in 2002, prior to the birth of the youngest child, Z and a number of other broad suggestions put to him, the majority of which were denied.
It was suggested to the father:
Why would you say to the children that you would kill me?
The father denied that allegation and responded that he had never said anything of the sort nor made any such threat to the mother and certainly had never made any such threat to the children, for whom he professed love.
The versions of events given by the parties regarding what occurred on their date of separation is substantially at odds each with other. The mother suggests that there was significant violence on that day, including the father picking up and throwing at her a coffee table.
The father denies that allegation. The father suggests that he had come into the home at about 10pm and that he, the middle child Y and the wife were all present in the room. He suggests that when he came into the room the lights were switched off and the mother was sitting in the room. The father suggests the wife pushed him and that, he conceding that he was affected by alcohol, fell into the table and it was either moved or sent flying with the weight and force of his impact. The father suggests that he then turned on the light. There may or may not have been some scuffling. Y was present and distressed and a very short time later the Police arrived.
The mother’s version of that event is that the lights were on, all three children were in the room with the parties, that the father picked up the table and depending upon the document from which one takes the mother’s evidence, the table was thrown at her or threatened to be thrown at her and that all three children were highly and visibly distressed. That is a matter to which I will return and will consider in some detail by reference to the expert evidence.
At the conclusion of the father’s cross-examination, his evidence was not substantially interfered with and no basis was established by which I would seriously doubt much if any of his evidence. I am left, however, with the father’s concessions and thus I am satisfied that during the relationship:
a)The father drank heavily;
b)The father was at least verbally abusive of the mother during the relationship, irrespective of whether, as he has asserted, the mother, as it were, gave as good as she got in that department; and,
c)That there had been at least one incidence of grabbing the mother.
The mother’s evidence
Ms Gleeson, as the Respondent, was then called and cross-examined.
Ms Gleeson was somewhat evasive, non-responsive and at best tangential in response to any question put to her.
Ms Gleeson in her cross-examination repeatedly reaffirmed her position that what was in the children’s best interests is paramount, that being entirely consistent with the Court’s obligation pursuant to section 60CA of the Family Law Act.
The mother’s evidence contained significant conundrums and conflicts.
The mother asserted that she genuinely desired, as was put to her and she accepted, “in her heart and soul”, that the children have a relationship with their father. She indicated that she had never done anything to preclude or interfere with that relationship and never would. However, she was firm in the view that the children had no desire to have such a relationship and on each occasion that she had asked them, in terms, “Do you want to see your father?” none of the children had ever suggested a positive desire to do so and thus nothing had occurred.
The mother asserted that as evidence of this the father had telephoned on 20 occasions to speak with the child X before she suggests that X requested that his phone number be changed. The period of time over which the 20 calls were made is unclear. However, the father concedes that he had, on all but one of those occasions, had no success in speaking with X. The mother asserts that when the father did speak with X, that he had spoken with him briefly before X’s sister became upset, whether speaking to her father after X or in the background and the call was terminated.
The mother’s evidence is also difficult to reconcile with the facts and circumstances that are spoken to in each of the expert reports and in portions of the mother’s own evidence.
At paragraphs 17 and 18 of the mother’s first Affidavit, the mother refers to and describes circumstances with respect to separation on 10 May 2008. The mother suggests the father was drunk. That is conceded by the father. The mother suggests she was standing with Y beside the couch and that the father was in the middle of the living room. The mother then, in other portions of her Affidavit but not in that particular portion, refers to what she suggests happened.
That is particularly so as regards paragraph 16.5 of that Affidavit, wherein the mother suggests that a few months prior to their separation, the father and she had argued. The father had referred to her as a “fucking idiot”, the children had been scared and Y in particular was suggested to have been present and screaming, “Daddy, don't do it. Daddy, don't touch me.” The mother suggests she was too scared to enter the room, thus implying that she was not in the room, but sought to intervene. When she did so, it is suggested the father yelled at her, “You fucking idiot, I can do what I want with my daughter.”
That then becomes the basis of allegations raised by the mother in these proceedings regarding sexual abuse. She suggests that after that event:
Y said to me the husband was touching her, and she indicated with her hand near her vagina area. Y was at the time wearing clothes. The next day, I said to the husband that his behaviour was inappropriate and that he should not touch Y, and that he said he could touch her wherever he wanted. I did wait for investigation related to that incident.
At paragraph 27.1 of the first Affidavit, the mother suggests that an investigation occurred through organisations KASPRA, and PARKAS. The mother suggests in her material that whilst she does not choose to relate each and every event of violence and verbal abuse that occurred, (paragraph 15.1), that she was routinely spoken to in a “harsh and derogatory manner”. She suggests:
Often throughout the marriage, the husband would swear and use language in front of the children such as “fuck”, “get fucked”, “dick”, “bitch” and “cunt”.
She then makes clear that she does not choose to repeat every allegation, but suggests these events happened frequently in front of the children and in a tone of derision and anger. It continues in the next paragraph, 15.2:
Frequently throughout the course of the relationship, the husband would wake the children or myself in the middle of the night abusing them and calling them names, or abusing me and calling me names. Often the husband’s tirade of abuse would be whether or not I was unfaithful, and his language was such that he would yell in front of the children that, “I was fucking another man”.
The mother suggests, in similar terms, that violence occurred throughout the relationship. I will canvas that in more detail shortly.
At the time of separation it would appear that the father was arrested and there were intervention proceedings through a State Magistrates Court. Although no intervention order is presently in force, it would seem clear that one was in existence previously at least for a brief or interim period. The parties then effected a final separation.
Following the separation the evidence of the parties is consistent, one of the few areas where it is.
It is clear that the father spent some time with the children from separation in May 2008 and until September of 2009. However, the majority, if not all of that time, occurred by the father attending at the home of the maternal grandmother and seeing the children at that home and in the front yard thereof, whilst the mother and her mother were present inside, one or both and observing the father through the windows.
The father suggests that this time went well, subject to the restrictions imposed upon it, both as to duration, frequency and observation.
The mother is silent with respect to that time, although she suggests that the children have never enjoyed a good relationship with the father, presumably including and extending to those periods of time. During her cross-examination, the mother remained solid with respect to that position as to the father’s poor relationship with the children and the cessation of time in September 2009.
The mother was clear that time ceased not based upon the concerns that she had expressed in the Affidavit – allegations of family violence, drunken abuse and possible sexual abuse – but as the father had, on the last occasion the time occurred in September 2009, questioned Y about matters relating to the mother and particularly as to whether she was in a relationship with any person. That would appear to be a matter of great moment, hurt and distrust for the mother.
That is so, notwithstanding that by reference to the expert evidence and the reportage of the mother in interviews relating thereto, that it is quite clearly conceded by the mother that for a period of about a year after the separation of these parties that she had been in a relationship, albeit not on a full-time residential basis, with some person. As indicated to the mother during her cross-examination of the father, that fact or its existence is irrelevant to the determination to be made. However, the mother would appear to have taken great offence to the father having asked questions about a suggested relationship as well as the earlier suggestions that the father believed the mother had been engaged in adultery.
That is consistent with an issue raised by the father in his evidence and particularly when he was cross-examining the mother, to the effect of questioning whether he was in fact the father of all or any of the children. Some discussion occurred at that point and ultimately the father withdrew the question and the suggestion implied thereby and acknowledged that he had no doubt that he was the father of the children.
It is unfortunate that such matters are raised by any party in proceedings, particularly in the context of this matter when quite clearly the mother’s attitude towards the father, the level of trust in him and the like, is so diseased.
During cross-examination, particularly during the Independent Children's Lawyer’s cross-examination, the mother’s attitude towards the father was made clear.
The mother denied that she hates the father. She was unable to specify how she did, in fact, feel about him. She denied that she wished to impede, in any fashion, the children’s relationship with their father and indicated repeatedly that if the children wished to know their father or to see him or communicate with him that she would not oppose it.
It was clear that the mother has never taken any active step to support or encourage the relationship between the father and the children. That is so, notwithstanding that the mother asserts that she does so but is unable to provide any clear explanation or any clear example of how that is or could be so in light of the totality of evidence.
As regards the youngest child, Z attending with his father, or for that matter, attending counselling sessions with Ms M, a witness in the proceedings, the mother indicated, “I can’t force him.” The mother would appear to believe that forcing the child includes anything more than asking him if he wishes to do it. When a series of questions were put to the mother regarding such matters and other examples, particularly germane in light of case law dealing with the issue to which I will turn in due course, such as the child attending a dentist or school appointments, the mother’s response remained consistent throughout: “I can’t force him.”
Overall, I was left with a poor impression of the mother’s attitude towards the father and the mother’s attitude towards the father’s relationship with the children. Importantly, I was left with some real and significant issues regarding the mother’s credit generally. That particularly arose in the context of the evidence of the Family Report writer, Ms P. That was, in part, why Ms P was required to be available and was then available for cross-examination. I will deal with Ms P in detail shortly together with the other expert evidence.
However, before turning from the mother’s cross-examination and to give some explanation to my finding that the mother’s evidence lacks credit and credibility, I turn to paragraph 17 of the Report. That is a paragraph headed “Observations of the Children”. It reads:
The children separated from their mother to spend time with their father and his wife, Ms E. Ms Gleeson was reluctant to leave the wait[ing] area of the rooms as requested and later returned and had to be asked to leave a second time.
The balance of the paragraph I will address as part of a consideration of the expert evidence. It is that portion of the Report that is of great significance, particularly as the paragraph overall suggests that the interaction between the father and all three children was observed to be “gentle and polite” and “friendly and warm” until it is suggested “Ms Gleeson was heard in the wait area”, when the temperature in the room, as it were, decreased rapidly.
It had been put to the mother by the Independent Children's Lawyer that she had in fact returned during the period that the children were in the observation room with the father, his wife and Ms P.
Ms Gleeson had initially indicated that she returned twice. When it was sought to clarify whether this meant that she conceded that she had returned and again been asked to leave, she denied that that was so. She was indeed then insistent and as best as I can follow her evidence that:
a)She arrived with her mother and the children at 11.28am, having traversed some small distance – wherever it may have been from – to reach the report writer’s rooms in (omitted).
b)Her mother was thirsty and tired and she had asked to stay briefly purely to have a glass of water or for her mother to do so.
c)She had been dealt with rudely and in an abrupt fashion by Ms P and bundled out of the rooms, leaving them at 11.30am.
d)She then went with her mother to sit at a coffee shop across the street and from which she was able to see the building in which Ms P’s rooms are located.
e)She then saw the father and his wife “running from the building” shortly before 12.45pm and had contemporaneous or shortly prior thereto received a text messages from her son X and then her daughter Y, the first indicating that Z was upset, the second indicating that Y felt upset and unwell.
f)At 12.45pm, the mother and her mother returned to Ms P’s rooms for the first and only time since having left the children there some hour and a quarter earlier.
The version of Ms P in paragraph 17 is, on its face, entirely at odds with that evidence, thus it was clarified in her cross-examination.
Ms P indicated that she had sent an appointment letter to the mother making clear that whilst the children were being observed, no one would be allowed to wait in the waiting room of her office. The mother produced to the Court – although not ultimately tendered but I accept - the letter and envelope that had been forwarded to her which was suggested to have an incorrect postcode and as a consequence of which, was not received by her until after the appointment and a few days thereafter at that.
In any event, Ms P continued in her evidence that after sending the letter, she had phoned the mother, spoken with her, reiterated the matters raised in the letter – which I accept may well not have been received – and thus, the mother should have been under no misapprehension as to what was required.
Ms P indicated that upon arriving at her rooms, the mother and her mother had asked to wait for a few moments and have a drink and they were directed to the coffee shop downstairs and across the road for that purpose as they needed to leave so that the appointment could commence.
It was suggested that after some reluctance – justified or otherwise – that the mother left with her mother and the observation with the father, his wife and all three children in the room together with Ms P commenced.
Ms P then indicates – and she is unclear of the exact period – but between 10, 15 or 20 minutes after the observation commenced, the observation having taken in total 30 to 40 minutes that the mother returned and was heard by Ms P in the waiting room. She indicates that she briefly left the room to speak with the mother and again had her leave.
It is suggested by Ms P that it was that event – the returning – that is referred to in paragraph 17, which I will deal with in more detail shortly but to which I have referred to in summary above, (i.e., that after the mother returned and was heard in the waiting room, the children’s demeanour and that observed of the children’s demeanour towards and with their father changed substantially).
Ms P indicates that towards the end of the observation with the father, the children had again begun to settle and matters had begun to return to where they had been and as she had described being polite, friendly and warm and that the father and his wife then left, the children remained and that the mother then returned.
The mother, in her cross-examination of Ms P, had been far more focussed upon typographical errors in the Report than matters of substance, however, the mother did put to Ms P a suggestion that the mother, her mother and the children had continued to be observed after they had left Ms P’s room and whilst they were outside in (omitted). Ms P indicates that she did indeed speak briefly with X, the eldest child, when she had come out of her rooms some little time after the mother and the children had left and as she was going out to purchase lunch. Beyond that, nothing of great moment or significance was put to Ms P in cross-examination.
Ms P was firm, clear and insistent as to her version of events and the chronology thereof in relation to the interview on 21 August 2013. The father did not cross-examine Ms P at any length.
The evidence of the parties creates a number of issues and principally three:
a)Firstly, whether the Court is to accept the allegations of alcohol use and family violence levelled against the father and, if so, the impact they would have upon future arrangements;
b)Secondly, whether the Court is to accept the allegations of sexual abuse raised by the mother; and
c)Thirdly, the mother’s attitude towards the children’s relationship with their father and the reality of their relationship with their father.
At the conclusion of the evidence and in fact, following submissions and closure of the case, I was left with the distinct impression as to the relevance of Mr W’s quote:
Heaven has no rage like love to hatred turned, no hell a fury like a woman scorned.
I was left with the distinct impression and ultimately, I am satisfied for reasons that I will expand upon, that I can and should find that the mother has no active desire to see these children have any relationship with the father.
That is not to suggest that the basis of the determination of these proceedings is other than the children’s best interests and what Orders, if any, will further those interests. However, it is clear and apparent from the mother’s evidence and the lack of credit that I find attaches thereto, particularly as regards the latter but also the former of the above issues, that the mother’s attitude towards the father, based in reality wholly, partly, or not at all, is a significant issue in these children’s lives in the determination of the proceedings and indeed, in the children’s future, health and well-being.
The expert evidence
I do not propose to deal with the expert evidence separately to suggest that it has any greater status than the evidence of the parties. This is a trial by judicial determination not by expert. However, there is such a wealth of expert evidence in this case.
Evidence of Ms B
The first expert evidence to which I shall turn are reports prepared by Ms B, a Consultant Psychologist who has met with and interviewed each of the three children and produced a report with respect to them. Those interviews would appear to have occurred approximately 12 months ago, on 12 September 2012. Concerns are raised with respect to the emotional, if not psychological health of each of the three children.
What is clear from that material, however and which has relevance beyond the present emotional or psychological health of the children but impacting upon a number of the issues which I must determine are the recollections of the elder children.
These parties separated in 2008. What is clear and apparent as a consequence thereof is that at the time of separation, the eldest child X, was nearly 12 years old and Y was nearly 10 years old and Z was not yet five years of age - quite young however, not an infant.
X, the elder of the children is described as having:
...quite clear recollections of the time his father lived with the family. He says he remembers his father drinking and yelling a lot and hurting both himself and his mother: he states he cannot ever remember feeling comfortable in his father’s presence, and the dominant feeling towards his father both then and now, is fear. X stated he often stayed in his room to keep away from his father.
He stated he felt a considerable change in his feelings after the separation of his parents in that he did not feel scared, but happy and safe in his mother’s care. X describes a trauma like response to meeting his father unexpectedly at the Court last hearing [That relates to a report that was prepared in the earlier proceedings, but which has never been released to the parties and which is not being considered].
That meeting, unexpected or otherwise [why it would be unexpected is difficult to comprehend] is the only occasion prior to the preparation of reports in these proceedings that X had seen or communicated with his father between September 2009 and September 2012.
The Report continues:
He [X] states he felt quite “frozen” and scared and was overwhelmed by repeated thoughts as to why his father was there and what he might do. The state of hypervigilance has affected his memory of the meeting, and he cannot recall if his father spoke to him or what may have been said generally.
The concluding paragraph suggests:
X is very clear that he does not want to see his father and is worried that the court may decide otherwise.
An opinion is expressed with respect to that comment which is supportive of X’s position.
The Report with respect to Y similarly indicates:
Y has clear recollections of the time her father lived with the family. She stated that her father drank a lot of alcohol, started a lot of fights with her mother and was violent. Y said she sometimes tried to hide because her father’s anger made her scared, but most of the time, she stayed with her mother to try and protect her.
That is indeed a theme of all of the expert evidence as regards Y’s protective attitude towards her mother. The Report continues, “She saw her father punch and kick her mother, and punch her younger brother, Z.” It is to be noted that there is no other reference in any evidence including that of the mother suggesting that Z was ever punched by his father. The Report continues:
Y states her father yelled at her a lot and threatened to hit her. Y admitted she felt very uncomfortable around her father and disclosed that on a few occasions, her father had laid next to her in bed and tried to touch her inappropriately but her mother intervened.
Again, that is not entirely consistent if consistent at all, with the brief evidence given by the mother with respect to that issue.
It is then suggested in the concluding paragraph consistent with that reported of X:
Y is very clear that she does not want to see her father, and while Y appears a resilient young person, it is my opinion that to do so would create considerable anxiety and stress.
The Report with respect to Z is somewhat more equivocal, however it indicates:
Z is very attached to his mother and has a close relationship with his siblings, X and Y, and states that he likes his family and his home life. Z has few memories relating to his father but does remember two violent incidents; one where his father punched him in the stomach, and another involving his father threatening his mother. In describing the second incident, Z acted out a scene where his father held a small table over his head threatening to throw it, and then changed position to show his mother cowering and with a fearful expression on her face. Z stated that he thought his father wanted to kill his mother.
With respect to the above, again it is to be noted that Ms Gleeson’s evidence does not suggest that Z has ever been punched. She certainly makes that allegation regarding X and she suggests a concern that it had been threatened. Further, with respect to the incident involving the table, one presumes at separation in May 2008 the father’s evidence is that Z was simply not present. The mother suggests he was.
No other corroborative document is tendered to the Court to support either parent’s position, notwithstanding that material is produced to the Court by New South Wales Police.
The Report with respect to Z concludes:
Z feels safe and happy within the loving family he knows but becomes confused and stressed by the possibility of changes to “his family”. He has fearful early memories and perceives the distress within the family, in relation to his father.
That portion of the Report is particularly germane and taken up as a theme in the balance of reports prepared thereafter. It concludes:
At present Z is susceptible to trauma and it is important that he continues to feel safe and protected.
Indeed that is so. The issue is how if at all, the Court can make any Order that will allow that to be so for Z in light of the balance of the evidence.
Evidence of Dr P
Psychiatric Reports are prepared by Dr P with respect to each parent. Dr P has not been called for cross-examination. His material is summarised in other portions of the expert evidence but in any event:
a)Finds no evidence of mental illness or mental disturbance of either parent;
b)Suggests that one or both of the parents may have some form of personality disorder and with respect to Mr Gleeson, that this is typified by denial;
c)Finds with respect to Ms Gleeson at paragraph 10 of the Report relating to her, “…this woman appears to be a very appropriate custodial parent for her three children. She has a warm and caring personality. She does, however, have a very mild anxiety state, which is not surprising. This mild anxiety state shows itself basically as her feeling upset over her husband’s threats, and her having, it seems, headaches. Her current psychiatric state, however, is of a very mild degree and requires no treatment, although I suspect she did benefit from some counselling last year”.
The paragraph concludes with the caveat that the Court will hear the totality of evidence and would thus need to determine the veracity of a number of allegations made by the mother and in particular as delineated in that paragraph, suggestions of the father’s aggressive behaviour related to alcohol and “inappropriate behaviour sexually with regards to each of his three children”.
It is to be noted that Ms Gleeson's Affidavit evidence suggests inappropriate behaviour with respect to the two eldest children only, although during her cross-examination, one of the bases upon which she suggested that she had some opposition notwithstanding her assertion otherwise that she was not opposed to time between Z and his father being that she was concerned he would or may be abused.
Evidence of Ms G
The section 11F Report by Ms G was produced 16 July 2012, that is after each of the reports above regarding the children and parents respectively.
In that section 11F Report there is reference to Family Report interviews by Mr L regarding the prior hearing although its contents are not discussed. The Orders that were made at the conclusion of those proceedings are recited and issues in dispute are stated.
Under the heading Family Safety Factors the following is reported:
According to the mother, the father was verbally, physically and sexually abusive towards her during the marriage, and the children were exposed to the father’s regular verbal abuse. She reported the children had been sexually abused by the father, and had been exposed to physical assaults upon her. Upon the parents’ separation, the mother indicated the father picked up a coffee table and threw it around the room while he was under the influence of alcohol. The mother reported that the father had previously made threats to kill both her and the children, and she still remains fearful he may carry this out.
The mother’s Affidavit material is not entirely consistent with the above description as provided to the Family Consultant, particularly as to whether the table was picked up and threatened to be thrown or as is advised to the Family Consultant, thrown about the room.
With respect to the father, the following is reported:
The father confirmed he was regularly verbally abusive towards the mother and the children, often swearing at them and calling them derogatory names. The father indicated the verbal abuse between the parents was mutual, and he was regularly denigrated in the presence of the children by both the mother and her extended family. Upon the parents’ separation, the father reported the mother physically pushed him in the back, causing him to fall over a coffee table and his hand to go through the wall. He reported that he then picked up the table in anger and threw it in the living room.
Those versions of the events are all somewhat inconsistent with the version given by the parties on other occasions. It is also to be noted that the father concedes causing a hole to the wall and he provided a demonstration of the suggested action giving rise to same during his case. The mother has also given evidence that on one occasion, X, after speaking with his father on the telephone was so angry that he punched the wall. Her Affidavit material refers to him punching a couch. It is suggested that X is acting out behaviour modelled by his father.
An interview occurs with respect to each of the children and as reported by Ms G. With respect to Z, who is presented as “… a tall boy and otherwise with a mild speech impediment”, the following is opined:
Z has no memory of his parents living together, however, his mother has told him his father was very mean to her. Z has a positive memory of his father in a park, and he does not remember if this is pre or post separation. Despite having a limited memory of his father, Z is reluctant to spend time with him as he is scared his father might hurt him as his mother told him his father punched him in the stomach when he was two years old.
After discussing options regarding how Z could feel safe about meeting his father in the future, Z concluded, “I don’t want to see dad, as mum might kill herself.”
Y is interviewed and it is reported of her:
Y, during her interview, expressed concern regarding her mother’s emotional health. She believes her mother has been particularly stressed and has made many comments such as,
“They [the children]...mean the world to her.”
“She would have nothing if they [the children] lived with their father.”
“Without them [the children], she would have nothing to live for.”
Y expressed concern for her mother in the event they spend time with her father. According to Y, the mother has provided the children with all of the court documents to read and has discussed this with them. Y is aware her mother has received counselling for a number of years, however, she doesn’t believe this appears to be assisting her mother’s level of stress.
Y remembers her parents verbally fighting and confirmed her father regularly verbally abused both her mother and the children. Y also recalls situations where her father “was going to” hurt her mother. For example, she stated her father “was going to” push her mother down stairs. Her father was “going to” hit her mother.
There is some suggestion that, in light of her age at the time, Y may not remember things as specifically as might be.
Y indicated her father had inappropriately touched her and her brothers when they were all younger and she “remembers” her parents fighting over this. The Family Consultant did not ask specific questions regarding the details of the alleged abuse. The issue needs to be explored further.
When asked to consider what she would need to feel safe in her father’s presence, she was unable to identify any adult who would make her feel more secure, indicating she would not like to spend time with her father without the presence of her siblings. That is a position that the mother advances, that the children cannot and should not be separated at any time for any purpose including attending visits with their father even if for two hours a fortnight in the case of Z.
X was interviewed and the reportage of his interview commences with noting that it is unfortunate that the interview occurred on his sixteenth birthday. It otherwise reports with respect to X:
X’s overall presentation was particularly concerning. X’s current view of the world is particularly bleak, and he expressed he was unable to experience joy at either home or school. It is to be remembered that this is a 16 year old child. He expressed at being particularly stressed lately, and was concerned he had been recently “blacking out” or fainting at school. Like his siblings, X reported significant concerns in relation to his mother’s emotional health, and that these current Court events seem to have exacerbated this. Prior to his father initiating Court proceedings, X expressed his mother had been struggling with personal issues.
In her evidence and particularly in her submissions, the mother has put the position strongly and with some force that the children and each of them has deteriorated in their functioning particularly their emotional and mental health since these proceedings were commenced. The mother opined that that was on the basis that the children and each of them had significant fears that they would be made to see their father.
When the mother was challenged that there may be other bases for their concerns and present presentation, she adhered forcefully to the view that the only matter concerning the children was that they may be required to see their father or consider seeing their father and that this was the cause of any concerns with respect to any of them.
X and Y would appear to report completely different bases entirely related to their mother, rather than any issue with respect to their father.
X and Y did make clear to Ms G, as well as having made clear to Ms B, that they have specific recollections of their father’s violent action and his verbal abuse and drunkenness during the relationship. The father concedes those behaviours in the interview with Ms G. Thus, I am not suggesting a dismissal of the children’s positions. They clearly provide corroboration for the father’s errant behaviours in the relationship. Those behaviours which the father concedes and offers in paragraphs 2 and 3 of his Affidavit his apology for. However, they would have had some significant impact on these children no doubt, having been raised in that environment at least until they were the ages as described above.
Ms G otherwise indicates under the heading “The parents’ ability to meet the needs of the children”:
The mother during her interview was particularly distressed and at times bordered on hysterical. She repeated that she was fearful the father was going to kill her and the children, however, confirmed she had had minimal communication with the father over the past four years.
Indeed the communication would appear to have been a number of unanswered phone calls and one attendance at a Family Report interview and possibly one or two other attendances at Court when they were not required to communicate with each other. It continues:
She insisted it was up to the children whether or not they wished to re-establish a relationship with their father and state[d] approximately 8 to 10 times that she would not be able to make the children see their father. The mother made dramatic statements through her interview such as:
He will kill the children.
If the children see their father, they will end up drug addicts.
She did not wish the children to come into contact with the father’s wife (whom she has not met) as she believes the father’s wife will harm the children in order to hurt her because she is (country omitted).
During the mother’s interview, it quickly became apparent she was unable to separate her own strong negative views and wishes from the needs of the children. The mother’s presentation suggested that after 4 years she may still remain in a state of trauma following the parents’ separation which seems to be significantly affecting her parenting capacity.
Perhaps it is also important to be noted and remembered that each of X and Y are clear that they have concerns for their mother –something taken up and returned to in the remaining expert reports which will be considered shortly.
Under the heading “Summary and options for the future” the following is opined:
This assessment has highlighted concerns that the mother’s emotional health which according to the children has caused them significant anxiety even prior to the commencement of these legal proceedings. All three children are acutely aware their mother would be profoundly negatively affected if they were to re-establish a relationship with their father. As a result, the children are not emotionally free to consider this as an option in the future as they hold a belief this may cause their mother to kill herself. It is strongly suggested the mother attend a psychiatric assessment.
I propose to make Orders to require that. It has not been specifically addressed in submissions. However, it has clearly been an issue in dispute since the release of Ms G's Memorandum on 16 July 2012 or shortly thereafter. Thus, I am satisfied that there is due process afforded to all parties and particularly the mother regarding that recommendation and that whilst the parties have not submitted upon it is a matter deficient in their submission. The Memorandum continues:
All three children during their interview described a secluded and isolated existence focused upon meeting the day to day emotional needs of their mother. X in particular, appears to be suffering from symptoms of depression and requires some therapeutic intervention.
Indeed that has come to pass.
The mother’s Affidavit filed shortly prior to the hearing annexes a copy of a script provided for X now 17 years of age and having been prescribing 20mg per day dose of Lovan.
Exhibit M4, a psychological report with respect to X, would suggest that he is not coping or functioning emotionally at all. Similarly, a report with respect to Y suggests that her emotional state is deteriorating rapidly. The Memorandum otherwise concludes:
In the event the Court finds the father poses minimal risk to the children, it may be appropriate for the children to spend regular or significant time with their father in graduated stages in order to extend their family community networks and provide their mother with space to address her own personal issues.
It is to be noted that by the conclusion of the case no Order is pressed with respect to the elder children X and Y save for the Order as previously alluded to that they communicate and spend time with their father as arranged between they and their father. How practically that will occur is entirely unclear, but nothing more is sought nor do I propose to Order anything further.
Evidence of Ms M
Fourthly, the Court is provided with expert evidence by Ms M, Social Work Consultant.
Orders have been made for young Z to attend upon Ms M and she has sworn an Affidavit and provided a Report.
It would appear that five sessions of counselling between Z and Ms M have occurred or at least been attempted. I put it in those terms as it is clear that all but two of the five sessions occurred within the family motor vehicle rather than Ms M’s room and that on only one occasion was it possible for Z to actually be in Ms M’s office rather than the back of the mother’s car.
With respect to each of the sessions that occurred I propose to canvass them separately.
The first session is addressed in paragraphs 2 and 3 of the Report, the second session in paragraphs 4 to 9, the third session in paragraph 10, the fourth in paragraph 11 and the fifth session in paragraphs 12 and 13.
On the first presentation Z is described at paragraph 2 as:
Extremely stressed by the family dynamics. His presentation with the writer was dependent upon who attended the session with him. When he attended alone he was a little anxious but with encouragement engaged with the counsellor. When he presented with his sister, Y, Z’s behaviour regressed significantly. He became very clingy to his sister and reverted to baby talk and hiding from the writer.
Just to be remembered, this is a child now 10 years of age whether he had had his tenth birthday at the time of the appointments or not. It continues:
She, [Y], appeared to be very controlling over her brother.
It is to be remembered that both Y and the mother insist that if Z is to spend any time with the father that it must be in the company of his siblings. It is conceded by all indeed firmly asserted by the mother that it is impossible and entirely contrary to the best interests of the two elder children, X and Y to attend and thus I can only infer that it is consciously submitted that such a condition exist so as to ensure that time between Z and the father does not occur.
It is suggested that at the sessions that Y attended, that Z was either restrained from leaving or refused to leave the car as did Y.
It is suggested by Ms M that after the first session, the mother was asked not to bring Y but she did so on further occasions. All but two sessions were held in the car due to Z and Y’s refusal to come in the office.
X was interviewed in the office and Z attended at one session in the office.
The first counselling session as I indicated as described in paragraph 3. I incorporate the paragraph in its totality herein:
During the first allocated session, Z refused to attend the session. The Mother had brought all three children even though it was only a dedicated session for Z. The Mother was encouraged to intervene and bring Z into the office. She made several attempts but was very ineffectual. She claimed that Y would not let go of Z and she was unable to intervene.
What is clear and it is stark from that paragraph, is the suggestion that whilst the child would not leave the car or be compliant in any fashion, the mother “made several attempts but was very ineffectual” to gain his compliance.
The second session is described in paragraphs 4 to 9. This is the session where Z was actually presented into the office of Ms M. It commences by describing:
He was initially a little resistant but with encouragement left the car and came to the office.
It is remarkable that a complete stranger, Ms M who has met this child once and in stressful circumstances, is able to obtain his cooperation in leaving the mother and the mother’s car and come to her office but the mother is incapable of having him do so. That is so notwithstanding all of the comments referred to above and the mother’s evidence that he is a polite, obedient young boy who does as he is told. It would seem he does as he is told unless it has anything to do with the father.
It is suggested that Z engaged well during the session, was relaxed, polite and talkative, although the speech impediment noted by Ms G was also noted.
He indicated that he had a few friends at school and that he is socially confident. He drew a picture of his family comprising his brother, sister, himself and his mother and the family dog. He described that his elder brother X loved him and he loved his brother and that his brother looks out for him. He loved his sister although she was at times mean to him.
At paragraph 6 the following is related:
Z’s described a positive relationship with his mother, but from his account it appears the mother is not very attentive. Z described activities they engaged in together such as going shopping and “sometimes going to the movies.” He stated his mother does not stay at the movies and goes home to sleep. “Mum sleeps a lot”. He stated, “I don’t have time to read to mum, and I do a lot of my homework with my brother.” He commented “my mum eats, watches ‘Bold and Beautiful’ and goes to bed.”
This factor has changed since the amendments June 2012. Accordingly, I will consider both draftings to the extent that one may no longer be part of the Act but would still be permissibly considered. I note that subsection (m) permits the Court to consider “such other facts as are considered relevant” and I am satisfied that each drafting of the legislation would be relevant.
Under the present drafting, I must consider the extent to which each parent has taken or failed to take the opportunity to participate in decision-making, spending time or communicating with the child. The father cannot be criticised in that regard. He has taken every opportunity. He has simply not had many opportunities offered.
Prior to the amendments to the legislation, the partial wording of the present subsection (c) was contained in subsection (4) which provided that the Court could consider the extent to which a parent had not only taken the opportunity to participate, but the extent to which a parent had failed to facilitate or had impeded the opportunity to participate.
I am satisfied, for reasons I will make clear very shortly, that the mother has actively impeded and undermined any attempt to allow a relationship between the children – or any of them – and their father.
Subsection (c) had also previously provided that which had been referred to by many academics, erroneously and mistakenly so as “the friendly parent provision”.
The provision previously required a consideration of the extent to which a parent had demonstrated an attitude consistent with supporting and encouraging a relationship between the children and the other parent. That was never to suggest that a parent would be criticised for an absence of “friendliness” unless it was appropriate to do so. In circumstances for instance where there has been significant violence and alcohol abuse – as occurred in this case – there would be the need to consider the attitude within context and in all probability as protective.
If this case were being decided in 2008 the mother would have every right indeed I would expect her as a protective parent, to be oppositional to unsupervised time between the children and the father. However, it is 2013 and much has happened since 2008. I am not satisfied that I could be anything but critical of the mother.
A body of case law has been referred to in submissions by the Independent Children’s Lawyer regarding the implied obligations imposed by the making of an Order. There has been no Order for the children’s time with the father and thus the mother could not be criticised for failing to comply with an Order or demonstrating an inappropriate attitude towards the Court’s Orders.
However, I am satisfied that the dicta of their Honour’s Fogarty & Nygh JJ in Stevenson & Hughes remain highly relevant to the general attitude that one might assess.
In turning to Stevenson & Hughes, it is to be noted that the case involved a parent who proffered a defence to a contravention on the basis of “Catherine” – the child in those proceedings – “does not want to go and I am not going to force her if she does not want to go.” That is, but for the name of the child, identical to the mother’s evidence in these proceedings.
Nygh J indicated:
This is what I call the classical case which the Full Court dealt with in the marriage of Stravos, namely that there is an obligation cast upon the custodial parent to take reasonable steps to make the child available for access. It is not open to the custodial parent to do no more than bring the child to the front entrance and invite it to walk of its own accord to the access parent at the garden gate and to argue that if the child refuses all her obligations are satisfied by merely standing” – as I put it – “with folded arms behind the child doing nothing either to encourage the child to walk to the father or to discourage the child from remaining on the doorstep, and indeed, this situation is directly comparable to it. It is quite clear that such an approach is wrong and that the wife in those circumstances clearly was in breach of her obligations under the order.
What has changed since that opinion by the late Nygh J in 1993 is that section 60B of the Act now incorporates a specific right for a child – lest it be contrary to the child’s best interests – to have a relationship with both parents to spend time with both parents and to have both parents actively involved in the child’s life. Accordingly, as previously indicated the attitude evinced and acted upon by the mother at best ignores but more accurately denies those rights for these children.
Fogarty J offered a lengthy opinion upon the issue of implied obligations and I incorporate the relevant portions of that judgment commencing with the discussion by his Honour of that stated with approval by Moore J in the initial trial Court, and concluding with the penultimate paragraph thereof and as follows:
The third matter to which I should refer is to endorse specifically the analysis by Moore J of the issues involved in cases of this sort.
Section 112AB(l) provides in effect that where a person is bound by an order such as an access order, a breach may occur where that person makes no reasonable attempt to comply with the order. That is a statutory statement of the obligation but I thought that her Honour explained aspects of that in several passages of her judgment which I think should be reproduced. At p.8 of the Appeal Book her Honour said this:
“There is also implicit in every order for access an obligation imposed upon the custodian to take reasonable steps to do what they can to ensure that the stipulated contact occurs."
Then at pp.11 to 12 of the Appeal Book there is the following passage which, although lengthy, is worthy of being repeated and it is as follows:-
"I have already made reference to the implied obligation of the custodian to take reasonable steps to ensure that the access stipulated in an order takes place. Words and actions have meaning in context and affect. It is not a sufficient discharge of custodian's obligations, express or implied, to point to words and actions and to say, in effect: 'You see I tried. But the child does not want to go,' and thereafter to figuratively fold their arms as if that were an end of the matter
Theirs is an active role with an obligation to positively encourage access. It is not a discharge of their duty to set up access to fail. That is to say, it is not sufficient to make a token effort at compliance by the utterance of a few phrases which, in the main, are designed to impart to the child not positive encouragement to go on access, but to convey the burden on both the child and the custodian of compliance with the obligation."
Finally, her Honour, in relating those observations to the particular facts of this case said this:-
"..... the respondent has adopted on the occasions when those expressions have been used a passively obstructive stance inconsistent with her obligations under the order."
It is important that in cases of this sort custodians appreciate that they are not entitled to treat the other party as an enemy who are to be thwarted wherever possible either by active steps or by passive resistance. That matter was emphasised as early as 1984 in Stavros (1984) FLC 91-562, but I am afraid that the contrary attitude still appears to permeate the jurisdiction and the sooner that that misunderstanding is removed the better for everybody.
In the above passage, Justice Fogarty reaffirms the obligation upon a parent to take active steps to facilitate a relationship and not offer passive resistance.
The highest the mother’s evidence has come in these proceedings, as regards her attitude to the father, is that she unilaterally and of her own volition terminated the relationship between the father and the children in September 2009 because the father had asked Y questions about her mother.
The mother does not suggest in her evidence – although she was given the opportunity to do so – that the relationship was terminated as she feared for the children’s safety, was concerned for their emotional wellbeing or any other reason at all. The basis for the termination, the mother stated clearly was her disquiet that the father had asked about a relationship which question she perceived as suggestive that she was engaged in a relationship which pre-dated separation and thus, as she characterised it, was having “an affair”.
That disquiet is so notwithstanding that in Ms G's Memorandum in July 2012 the mother conceded that at that time she had been in a relationship. Why she would be so concerned that the father might have asked a question - albeit it might have been best if he had not – is not explicable.
The discussion of the above authorities was also taken up by Benjamin J in Elspeth v Peter [2006] FamCA 1385. His Honour, commencing at paragraph 24 compared the statutory and implicit obligations created by parenting orders and canvassed the opinions expressed by the late Nygh and Fogarty JJ to which I have just referred.
His Honour also concluded:
a)That those statements were still apposite of the current and re-drafted legislation; and
b)By adding his own statement which I quote herewith:
A parent has an obligation to ensure so far as possible compliance with the orders of the court where those orders reflect the court’s determination of what is in the child’s best interests.
In this particular case the trial judge had made it abundantly clear that discouraging the children from spending time with their father amounted to psychologically cruel, unacceptable and abusive behaviour towards these children.
Whilst there is no extant Order in this case and thus again, the mother cannot be criticised for failing to comply with an Order she can be criticised for failing to meet the child’s needs indeed the child’s rights.
I am also satisfied that the mother can be criticised for being psychologically cruel, unacceptably so and for being abusive towards the children through her actions.
Dawe J had also considered the implied obligations in C & D (2005) FLC93-236. Therein Her Honour assessed the mother’s evidence (at paragraph 59 of the judgment) wherein she described:
… the mother on occasions did not answer the question but gave a response which suited her cause. She appeared defensive until it became clear to her that it was not sufficient for her to merely take the child to the contact centre, this appeared to be the mother’s evidence namely that she had taken the child to the contact centre and therefore she was not in breach of the court order. Later, when cross-examination concentrated upon any encouragement she had given, the mother asserted that she had encouraged the child. I am not, however, convinced by her evidence that she did take any step to genuinely encourage the child to go on contact other than taking her to the contact centre and telling her, “Off you go.”
I refer to that assessment of the evidence by Her Honour as it has parallels in the mother’s evidence in this case. Firstly, her evidence as regards her suggested encouragement of the relationship, I found wholly wanting and disingenuous. Secondly, in her submissions the mother - I accept, seeing the writing on the wall as it were – changed her position to seek that any time between the father and Z be postponed for “just a few weeks” to see if things could improve with Z’s bedwetting and with all of the children’s psychological health having regard to their depression and anxiety.
Her Honour then also quoted the passages from Fogarty J’s most erudite discussion of implied obligations as incorporated above and including underlining of those passages which her Honour considered most apt and which I adopt also as follows:
That is to say an invitation can be made designed to persuade the child that this is something which the mother encourages or approves of, or it can be stated in a tone or in a manner which of its own suggests that this is your obligation under the order that mummy doesn’t really mind if you say no.
Her Honour concludes with the passage underlined:
The mother issued an invitation in a manner in which the child was given the option to refuse.
Her Honour also wisely commented, (at paragraphs 79 and 82) and which I adopt and incorporated herewith:
I agree that a contact order requires the custodial parent to take “An active role with an obligation to positively encourage access”[emphasis added]. This is not merely to be “a token effort” disguised to convey the burden of compliance. [emphasis added].
The mother has not used her position of authority over T to ensure that T does as she is told. At T’s age and in the circumstances and the history of this matter I am satisfied that if T was given the appropriate direction and positive encouragement by her mother she would have attended upon contact with her father.
In those circumstances and by reference to the previous drafting of the legislation and a consideration of the extent to which I can be satisfied that a parent possesses the capacity to appropriately support and encourage a relationship, I am satisfied in light of and adopting the evidence of the report writer that the mother lacks any insight into the benefit to these children of a relationship with their father. She has no reasonable basis upon which she would hold a fear notwithstanding that she asserted at one point that she was fearful Z would be abused if he saw his father at all.
The mother has no capacity to support or encourage the relationship. Whether that can be addressed through some psychological assistance which as I have indicated I propose to Order, will be seen. If it cannot, then I am concerned that:
a)The proceedings will return to this Court;
b)The child will continue to be emotionally abused by and through expression of the mother’s attitudes.
The extent to which a parent has fulfilled or failed to fulfil their obligation to maintain the child
This cannot be a valid criticism of the father. He meets his child support obligation, although he was criticised for not contributing towards various counselling expenses for the children. There is no evidence to suggest he is aware of them nor of any request been made of him other than through material filed with the Court.
During cross-examination the father indicated his preparedness to contribute to counselling expenses. However, there is no application before me and I do not propose to make any Order based on the father’s suggested consent.
Likely effect of a change in the child’s circumstance including separation from either parent or other children
That is a significant issue in light of paragraphs 36 and 38 of the Report. It is made clear that there is a benefit to Z of having a relationship with his father. The report writer opines that she is satisfied it is safe. I am also satisfied by reference to all of the evidence as above that a relationship between Z and his father is safe.
However, the above must be set against:
a)The impact upon X and Y of Z pursuing an entirely appropriately relationship with his father; and
b)The clear statement by the mother that she is powerless to cause attendance by Z.
On balance I am satisfied that the effect of change brought about by Z spending time and resuming a relationship with his father is beneficial and outweighs the detriments identified.
It is a matter for the mother to address her behaviours and her attitudes and how she expresses them to the children and if she were to do so the negative impact on the children would evaporate.
I must be conscious of how likely it is that change in the mother’s attitude will occur. I have no great confidence that it will occur but it is possible. It is also possible that there may be some intervention or coercion from the Department of Human Services that might aid in that regard and thus it is with reference to those factors that I accept on balance the change is beneficial.
I do not accept the mother’s submission that it would be of itself detrimental to Z to see his father or pursue any relationship with his father without his elder siblings also attending, particularly noting that:
a)The elder siblings have expressed their views and X, whilst I have real concerns as to the factors that have influenced or created his vision of reality for him now has a strong oppositional view; and
b)In only some months’ time any Order will be unenforceable with respect to X as he will be an adult.
I am also concerned as to the impact the elder siblings will have upon Z both emotionally and psychologically. Z is described as devolving to baby language and baby behaviour when his sister is distressed and that causes me real concern.
I am satisfied Z would be better removed from those behaviours when spending time with his father and having a break thus from the emotional abuse perpetrated upon him through those behaviours than to refuse him that opportunity.
Practical difficulty and expense
I will deal with this as part of 65DAA(5) of the Act.
Capacity of each of the parents to provide for the child’s needs, including emotional and intellectual needs
As would be apparent from the above, I have real concerns as to the capacity of each parent to provide for the children’s emotional and intellectual needs. In light of the relief that I am asked to Order, I make clear however, that I have less concern at this point regarding the father’s capacity to meet Z’s emotional needs.
Maturity, sex, lifestyle and background of the child
This child is 10 years of age. He has since the age of five, half of his life, lived in the emotional pressure cooker that his mother has placed him in through her inability to deal with and resolve her own issues. Her issues have thus become issues for her children. They are now paying for it, particularly X and Y, through visits with psychologists and in the case of X, psychotropic medication.
The mother should not take any comfort or pride from that. I do not believe for one moment that she will accept any statement made by me as to her culpability, in whole or in part and in all probability in part but substantially so for those circumstances. However that is my finding.
Z deserves the opportunity as the report writer and Ms M have each described to have a relationship with the father. The relationship has some benefit to him. Z recalls his father with some fondness.
Aboriginality
The child is not from an Aboriginal or Torres Strait Islander background.
The attitude to the child and responsibilities of parenthood demonstrated by each parent
I am satisfied that this is abundantly addressed above.
Family violence
Clearly I am satisfied that there has been family violence albeit far more limited than is asserted by the mother. That is consistent with accepting the father’s evidence, including frank and candid concessions made both to the report writer and in his own evidence.
I am satisfied that the counselling that the father has received, both through his church and of secular nature, has been of some assistance to him. Whilst he may still have some way to go in fully embracing and acknowledging his behaviour and its impact on these children and the mother, I am not satisfied that the impacts now demonstrated by the children and their mother are entirely at his hands or even substantially so.
Family violence orders
There are none.
Whether it is preferable to make the order that will least likely lead to the institution of future proceedings
Clearly the Order that would least likely lead to the institution of future proceedings would be the rejection of the father and the Independent Children’s Lawyer’s applications.
On the basis that I am satisfied that presently the mother has little insight into or ability to understand the importance of compliance with Orders or what is required of her in that regard (by reference to the passages from Stevenson & Hughes and others as set out above), I have a real concern that within a very short time these proceedings will return to Court with contravention or variation applications.
However my choice is twofold. Firstly, does that fact of itself obviate against the Orders I propose to make being in the child’s best interests? I am not satisfied it is so.
Clearly X has insightfully indicated that the deterioration in arrangements within their home has been exacerbated by the mother’s reaction to the father’s proceedings, not as the mother asserts by the father’s proceedings simpliciter or the children’s reaction to a probability or possibility of spending time with him. Their reaction has been to their mother’s anxiety.
However, X is also clear that those anxieties and reactions predated the proceedings. Thus I am satisfied that the mother’s heightened anxiety and emotional abuse of these children through her campaign against the father and her attempts to inculcate such opposition to and hatred of him is not directly connected to the proceedings, their prosecution or any Orders I might make. The mother has and will behave in this manner whether or not there is an application prosecuted or Orders made. If I were not so satisfied, I might arrive at a different position.
Secondly, I am satisfied that the Court should not be held hostage by a recalcitrant parent who simply says, “I will not comply, therefore the matter will return with contravention proceedings.” The mother chooses not to comply, chooses not to engage fully and appropriately with therapeutic assistance as already available to her and which will be mandated by the Orders that I will make, or as may be offered or indeed mandated by the Department of Human Services. That is a matter for her.
The mother’s behaviour may lead to contraventions. It may indeed lead to an application by the father for Z to come and live with him. However, the avoidance of future proceedings I am not satisfied, is a dispositive issue in these proceedings.
Other facts or circumstances
I incorporate herein section 65DAA(5), namely:
Reasonable practicality
(5) In determining..…whether it is reasonably practicable for a child to spend equal time, or substantial and significant time, with each of the child's parents, the court must have regard to:
(a) how far apart the parents live from each other; and
(b) the parents' current and future capacity to implement an arrangement for the child spending equal time, or substantial and significant time, with each of the parents; and
(c) the parents' current and future capacity to communicate with each other and resolve difficulties that might arise in implementing an arrangement of that kind; and
(d) the impact that an arrangement of that kind would have on the child; and
(e) such other matters as the court considers relevant.
These are the factors which one might suggest codify the present state of social science as to that which needs to exist to allow shared parenting to operate productively.
I am not satisfied that those factors would support any interference with the existing Order for parental responsibility. Indeed they would obviate against it.
Whilst these parents do not live a significant geographical distance apart they live in different worlds.
The mother’s view of reality, her perception of the father, indeed her perception of the world around her is somewhat at odds with a number of realities, particularly anything connected with the past history of these parties and their relationship with each other.
The parents’ current and future capacity to implement any arrangement is problematic particularly having regard to the above matters in relation to the mother’s insight and capacity to comply with Orders or understand or acknowledge the need or benefit to Z of a relationship with his father.
I am not satisfied that this would obviate against the parenting and time Orders I propose to make. I am satisfied that it would require that there be some brief period of supervision of time.
Supervision will serve a number of purposes. It may well provide some reassurance to Z and through him, X and Y, that harm is not being done. Secondly, it will allow objective record keeping so that any future dispute will be the subject of those records. Thirdly, it will allow persons and an agency seized with responsibility to ensure the child’s best interests are met and to oversee the commencement of the relationship.
I propose to make Orders as the Independent Children’s Lawyer proposes that changeovers continue to occur through the contact centre, at least until such time as contact changeovers can occur through the child’s school. The Independent Children’s Lawyer’s Minute of Order does not go so far as that however, I am satisfied that each party has had due process, has had the opportunity to make submissions in support of their case and it is to be remembered that ultimately the application by the father is for equal shared time. Accordingly, an extension from Friday to Sunday to Friday to Monday I am satisfied does not deny either party due process and falls within the bounds of the parameters of relief sought as set by the parties and by reference to U & U [2002] FLC 93-112.
The parties’ current and future capacity to communicate is non-existent. These parties have not been able to communicate I imagine for some little time before their separation, at least not in a healthy or productive way. Since at least September 2009 if not earlier, they have not been able to communicate or resolve difficulties at all.
The impact of the arrangements on the child I am satisfied is addressed above and I will not canvass it further.
Having regard to those matters and for those reasons I am satisfied that the Orders proposed by the Independent Children’s Lawyer by and large meet the child Z’s needs as well as can be accommodated in light of the atrocious circumstances that have been created for him and around him particularly by his mother.
I am satisfied that the best that can be done to meet the interests of the elder children X and Y is to make Orders as proposed, that they be provided with the father’s contact details forthwith and by the Independent Children’s Lawyer and that they then be at liberty should they wish to, to contact the father, make arrangements with him and see him or communicate with him as they wish.
The Independent Children’s Lawyer has proposed that the progression of time from initial visits at a supervised contact centre on eight occasions be subject to the provision of a report suggesting that time has been generally positive. I do not propose to make that Order. It will simply leave open the door for further dispute and for the mother to suggest that it has not been positive. It will in fact allow the mother to sabotage the arrangement to ensure that it is presented as other than positive and then point to the lack of positivity as the reason why:
a)It should progress; and
b)The matter should be reopened.
Otherwise the Minute of Orders proposed by the Independent Children’s Lawyer is entirely appropriate and accords with the matters that I have addressed in the above reasons.
I propose in addition and whilst an Order for sole parental responsibility shall continue, to make Orders that require that each parent do all things, sign all documents and give all consents and authorities necessary to achieve three ends:
a)Firstly the inclusion of both parents on any school enrolment record of any child and so that they are able to attend at the school, obtain all information and undertake any such consultation as they desire;
b)Secondly, for each parent’s details to be included with any medical practitioner, counsellor, psychologist or psychiatrist upon whom the children attend and so that each parent can consult and confer with such treater and obtain such information or reports as they desire; and
c)Thirdly, to require that each parent keep the other advised at all times of the residential address and contact number at which the children will be contactable whilst in that parent’s care.
As indicated, I also propose to make Orders for the mother to attend upon a psychologist and to receive specific assistance regarding her attitude towards the father and her ability to support and encourage the father’s relationship with Z and all three children.
The Orders made by me will allow the Independent Children’s Lawyer to nominate the psychologist and to provide to them copies of the reports produced in these proceedings to date together with my reasons. That will be accompanied by an Order for the mother to attend upon her General Practitioner to seek to obtain a referral to the psychologist nominated by the Independent Children’s Lawyer and with the sole view of seeking to limit cost in the event that it can be covered by Medicare through a mental health care plan or otherwise.
I also propose as indicated, to compel and require the Independent Children’s Lawyer to make a report or notification to the Department of Human Services through the provision of a copy of these reasons for judgment once settled and issued, as well as to provide copies of the reports produced in the proceedings.
It is particularly of concern that at least three well-qualified experts dealing with this family have noted concerns as to the emotional functioning of the mother and more importantly in the context of the Court’s obligations pursuant to section 60CA of the Act, the children and yet nothing has or can be done about that to date as it has been within the control of the mother.
I propose to wrest that control from her hands and place it with the Director-General of the Department of Human Services to take such steps as they wish.
Ms P had indicated that she had formed the view that she was entitled to and should perhaps make such a report but had declined to do so as she was not satisfied with proceedings pending before this Court that it would be acted upon or accepted. I am not concerned whether it is acted upon or accepted. I am concerned with discharging my obligations to ensure that the children’s best interests are met and protected and in those circumstances and noting the obligations imposed upon the Court by section 67ZBB to act promptly and expeditiously and to make Orders considered appropriate to ameliorate against children’s exposure to risk, I propose to make that Order of the Court’s own volition, albeit the parties have each had the opportunity to make submissions in opposition to it, should they have desired to do so. Each has remained silent.
I do not propose to make Orders one, two or three as proposed in the Independent Children’s Lawyer’s Minute of Orders being:
a)Order 1 – an Order which discharges all prior Orders;
b)Order 2 – an Order that the children live with their mother;
c)Order 3 – an Order that the question of the children’s time with their father be reserved.
I am satisfied that I need not do so.
I will make Orders in accordance with paragraphs 4, 5, 6, 7 and its subparagraphs and as amended, 9, 10, 11 and 12 of the Minute of Orders.
It will be apparent that I do not propose to make Order 8 of the Minute of Orders as proposed and for similar reasons as above. That Order as proposed, is an Order that the mother use her best endeavours to ensure that Z attends visits and encourages him to attend. That is an obligation imposed upon the mother by the making of an Order. It need not be repeated in the Orders.
The Court should be loath to make Orders that expose the Court and administration of justice to ridicule and in circumstances whereby I am satisfied that it is improbable that the mother will use her best endeavours or encourage Z to make such an Order would be a nonsense.
None of the above comments as to the Orders not made and not made by reference to the Independent Children’s Lawyer’s Minute of Orders are in any way a criticism of their proposal by the Independent Children’s Lawyer. It is entirely appropriate that they are proposed. However, those not made are not made for the reasons given.
Accordingly, I make Orders as follows.
IT IS NOTED that throughout this judgment the spelling of the child Y’s name has appeared with different spelling when quoting parts of the evidence. The spelling of the name as contained in the Initiating Application and Response are different and as such different spelling has been used throughout a number of the expert reports.
I certify that the preceding four hundred and forty-eight (448) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 17 March 2014
Key Legal Topics
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Family Law
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Procedural Fairness
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