Goodson and Staples

[2018] FamCA 931

FAMILY COURT OF AUSTRALIA

GOODSON & STAPLES [2018] FamCA 931

FAMILY LAW – CHILDREN – with whom a child spends time – best interests – where there have been previous final orders made – where the children are ordered to live with the mother – where the primary issues for determination are the time and communication the children spend time with the father - where the children are ordered to spend limited supervised time with the father until the youngest child completes primary school – where time is ordered thereafter as agreed between the parties – where the children have fortnightly telephone contact with the father - where the mother has overall provided a positive parenting environment - where the children have been heavily immersed in the parental dispute by the father - where family reports have provided an insight into the emotional patterns and development of the children over the course of proceedings – where a JIRT investigation occurred and the father never informed the mother – where there is a need to protect the children from further psychological harm - where the children have been exposed to significant emotional manipulation by the father in relation to his own health and welfare – where the father is unable to focus on what is in the best interests of the children - where the children’s views are  taken into account but not simply implemented due to the pressure placed upon the children by the father to make certain statements and comments – where the children need to have a meaningful relationship with the father within a safe environment.

FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – where the presumption of equal shared parental responsibility is rebutted – where the mother is given sole parental responsibility – where there is a complete lack of communication and trust between the parties – where the mother must advise the father of the long-term decisions she has made.

FAMILY LAW – CHILDREN – PRACTICE AND PROCEDURE – where proceedings were commenced in the Federal Circuit Court and transferred to the Family Court of Australia – where proceedings were transferred due complexities within the proceedings.

Family Law Act 1975 (Cth), s 60CC

APPLICANT: Mr Goodson

RESPONDENT: Ms Staples

INDEPENDENT CHILDREN’S LAWYER: Foat Roberts Lawyers

FILE NUMBER: PAC 3159 of 2010

DATE DELIVERED: 16 November 2018

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Cleary J

HEARING DATE: 27-28 March 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

THE APPLICANT: Self-Represented

COUNSEL FOR THE RESPONDENT: Ms Ticehurst

SOLICITOR FOR THE RESPONDENT: Todd Street Lawyer

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Gorton

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Foat Roberts Lawyers

Orders

1. That all prior parenting orders made in this Court in relation to X born … 2006 and Y born … 2009 (“the children”) are discharged.

2. That the mother have sole parental responsibility for the children.

3. That the mother advise the father in writing (which includes electronic communication such as text and email) of decisions taken by her in relation to the long term issues of parental responsibility such as enrolment in high school, religious instruction and specialist medical treatment.

4. That the children live with the mother.

5. That the children spend time with the father as follows:

   5.1Until the younger child has completed primary school or December 2020, whichever is the later:

   5.1.1On a supervised basis for not less than two hours on the first Saturday of each of February, April, June, August, Oct and December with supervision provided by B Group, C Group, D Group or similar service agreed in writing, commencing December 2018;

   5.1.2At such other and or additional times agreed between the parties;

   5.1.3In the event that the father fails on any occasion, without prior explanation to the mother, to attend to spend time with the children Order 5.1.1 is discharged permanently.

   5.2Thereafter time between the children and the father shall be as agreed in writing between the parties and in the event that there is no agreement no time shall be spent.

6. Whilst ever the children are spending time with the father pursuant to these orders then the children shall have telephone communication with the father, with the father to initiate the call:

   (a)Once per fortnight,  for a period of up to 15 minutes, combined time for both children;

   (b)On Christmas Day; on each of the children’s birthdays, on Father’s Day and on the father’s birthday.

7. That each party is restrained from denigrating the other party or any member of that party’s family and household in the presence or hearing of the children or permitting the children, or either of them, to remain the presence of any third party doing so.

8. That the father is restrained from informing the children, or either of them, of or discussing with them any serious or life threatening condition he might suffer except in circumstances where he has provided to the mother, medical documentation of the precise medical condition affecting him, before any such informing or discussion with the children takes place.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Goodson & Staples has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: PAC3159/2010

Mr Goodson

Applicant

And

Ms Staples

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

Introduction

1. These are parenting applications in respect of two children X and Y, boys aged almost 12 and nine years respectively at date of trial.

2. The applicant is the father Mr Goodson, aged 55 years.

3. The respondent is the mother Ms Staples, aged 40 years.

4. The parties began living together in 2003.

5. At that time the mother was 26 and the father 40.

6. The father had a son Mr E then aged seven years. That child was not a member of the household.

7. The mother had two children, an infant daughter Z, a few months old, and a son, Mr F, aged eight years. Both children were living with her.

8. In 2005 the parties married. In 2006 and 2009 the two subject children were born.

9. In 2009/2010 Mr F, who had a diagnosis of autism, was the subject of proceedings in the Children’s Court and placed in the care of the Director General to age 18.

10. Early in 2010, when the younger child Y was less than six months old, the parties separated. The children have lived substantially with the mother since separation.

11. The parties divorced in September 2011.

History of Relevant Events

1. On 28 June 2010 the mother filed the first parenting application in the Federal Circuit Court. Several sets of interim orders followed.

2. On 27 July 2012, in the Federal Circuit Court, the parties consented to final orders confirming arrangements for the care of the children, then aged six and three years. The orders provided for equal shared parental responsibility; that the children (including Z by then aged nine) live with the mother and spend time with the father on alternate weekends, half school holidays and other special times.

3. Following these orders there was a period of instability for the children.

4. From 2013 the mother at times did not deliver the children for contact. Changeovers were a logistical problem, the father insisted on a changeover point other than at the place nominated in the orders in the orders. Sometimes the father did not arrive to collect the children. Telephone communication for the children with the father did not always take place.

5. In 2013 the father had successful surgery for removal of a benign tumour in the brain.[1]

   [1] Exhibit 4

6. In April 2014 the mother’s child Z ceased spending time with the father. She was then aged 11 years. The basis for her decision according to the mother was two complaints. First that she was regularly left with a young neighbour of the father. Second that the father made negative comments to her about the mother and asked about what the mother was doing: “It’s constant and all of the time.”[2]

   [2]Affidavit of mother filed 20/03/2018, par 10

7. In November 2014 X ran away from his mother’s home to the father’s and was permitted to stay there for a period. X was worried about the father. The mother did not agree to making that arrangement final.

8. On 25 June 2015, three years after the 2012 consent orders, the father filed an Initiating Application in the Federal Circuit Court proposing a change of residence for all children to him.

9. The mother filed a timely response proposing that the children continue to live with her but spend reduced time with the father, shorter weekends but still half school holidays and for special times.

10. At that time, in 2015, both parents were still proposing that they share parental responsibility equally.

11. On 19 August 2015 the matter was transferred from the Parramatta registry to the Newcastle registry of the Federal Circuit Court.

Limited Issues Report - 5 February 2016

1. On 8 December 2015 a Limited Issues Report was ordered which was released early the following year. The recommendations in that report revealed concerns about both households. Restraints on corporal punishment and exposing the children to adult information were suggested.[3]

   [3] Family Report dated 05/02/2016, pars 81 and 82

Family Report - 1 August 2016

1. On 11 February 2016 a Family Report was then ordered in the FCC with a request that the report be delivered by 15 September 2016.

2. The interviews took place on 20 July 2016 and the report was released 10 days later.

3. The report included a comprehensive review of historical matters.

4. Of particular relevance was an event recorded in records produced by the Department of Family and Community Services of a JIRT investigation in 2010. X (aged four) disclosed sexual abuse by Mr E (then aged 14). JIRT engaged with the father, he being Mr E’s father, but not the mother. The parties had recently separated. The allegations were not substantiated. There was a referral for counselling.

5. The Family Consultant asked the mother about this incident. She denied any knowledge of it.

6. The Family Consultant asked the father about the incident. He responded in a contradictory way, by first stating that he could not recall the incident or any intervention by JIRT and then, when he was told that the mother had been shocked to hear about it, said, “I’m certain she was told.”[4]

   [4] Family Report dated 01/08/2016, paras 56 and 57

7. It must be the case that the father was aware of the JIRT investigation as the records indicate. That he failed to tell the mother anything about it, is a matter of significance whether or not abuse allegations were substantiated.

8. The report is replete with allegations of wrongdoing by each parent against the other. Interviews with the children revealed abundant evidence of their immersion in the parental dispute. The Family Consultant expressed a concern for X’s mental health “…if he continues to endure the degree of stress he is currently experiencing”.[5]

   [5] Family Report dated 01/08/2016, par 79

Interim orders suspending contact – 9 August 2016

1. On 9 August 2016 time for the children with the father was suspended pending a place becoming available at a contact centre for supervised visits.

2. Provision was made for X to undertake counselling/therapy:

   …noting that [X] seems emotionally debilitated around the issue of his father suffering a brain tumour and his need to look after and protect the father.[6]

   [6] Order 10 of orders made in the Federal Circuit Court on 9/8/2016

3. The parties were directed to attend a Child Inclusive Conference and the children were directed to attend for interview for a further Limited Issues Report on “their wellbeing and views”.

Family Report – 11 November 2016

1. On 9 November 2016 the children were interviewed and a report issued two days later.

2. The Family Consultant evaluated the situation. She concluded that the presentation and state of mind of the children had greatly improved. Her opinion was that the then current interim orders, suspending time, were assisting the children.

Transfer to this Court

1. On 21 November 2016 the proceedings were transferred to this Court on the basis of “likely length of trial and complexities in the proceedings”.

2. On 31 January 2017 the mother filed an Amended Response. For the first time she sought sole parental responsibility. In addition to residence with her, the mother proposed four short supervised visits per year for the children with the father, and fortnightly telephone contact.

3. On 8 February 2017 the matter was set down for trial for five days commencing Monday 16 October 2017.

4. In April 2017 the father began spending time with the children at the M Contact Centre pursuant to the August 2016 orders.

5. On 4 September 2017 the mother filed her trial affidavit. The father had not filed any affidavit material.

6. On 6 September 2017 the legal representatives for the father filed a Notice of Ceasing to Act.

Application to adjourn

1. On 12 October 2017, two working days before the trial, the father filed an Application in a Case, supported by an affidavit of himself. The documents had been prepared by his solicitor but were signed and filed by the father.

2. The orders sought were for vacation of the October 2017 trial dates in order for an appeal against the withdrawal of his grant of Legal Aid to be determined by the Legal Aid Commission.

3. Further in that application, orders were sought for discharge of current orders, and for the mother to have sole parental responsibility and residence.

4. The father proposed time for the children with himself on alternate Saturdays, and on Boxing Day and Australia Day for nine hours (9.00 am to 6.00 pm) on each occasion. Restraints on conduct, including on his own conduct were proposed.

5. The application for adjournment was heard on what would have been the first day of trial. The application was granted over the firm opposition of the mother.

Further trial dates

1. On 15 December 2017 the matter came back before me to consider allocation of fresh trial dates.

2. The father was present at Court and was represented by his former solicitor, who came to assist him despite the continuing absence of Legal Aid funding.

3. On that occasion I asked if the father still conceded sole parental responsibility and residence to the mother. I received confirmation that he did. On that basis the matter was allocated trial dates [3 days] in March 2018. The parties were directed to file affidavits by 16 February 2018.

4. The Court noted that in the event the appeal by the father to Legal Aid was unsuccessful then the father would have to come to terms with the fact the he would be obliged to represent himself at trial.

5. The father through his solicitor acknowledged that fact.

6. In February 2018 the father made direct contact with the Court to seek a further adjournment. All parties were advised that the Court expected the matter to proceed on the allocated dates.

7. On 21 March 2018 the mother filed an Application in a Case seeking leave to rely on her affidavit filed out of time [20 March 2018].

The Trial

1. On 27 March 2018 the trial commenced and concluded within two days.

2. The mother was granted leave to rely on her affidavit

3. The father represented himself at trial. He came to Court utterly unprepared.

4. He had not filed a trial affidavit.

5. On his own evidence he had not read the following documents:

   a)Three reports prepared by a Family Consultant in February, August and November 2016;

   b)The affidavit of the mother filed 20 March 2018;

   c)The report from a psychologist consulted by him in 2017. The report had been annexed to his own affidavit of 12 October 2017 filed in support of an adjournment of the October 2017 trial dates.[7]

   [7] Exhibit 3

6. On the first day the father asserted that he was unaware of having conceded sole parental responsibility and residence of the children to the mother. He wanted the children to live with him.

7. I did not accept that the father was ignorant of, or had forgotten, his own formal position.

8. I conclude that the father was indifferent to the reality of his position when he referred to “wanting residence”, but he knew what the ambit of the trial was.

Evidence

1. The documents relied on in respect of the application were as follows: 

   The applicant father –Mr Goodson

   (a)Initiating Application filed 25/06/2015, superseded by Application in a Case filed 12/10/2017;

   NO Trial affidavits;

   (b)Affidavit of the father sworn 25/06/2015 - filed in the Federal Circuit Court;

   (c)Affidavit of the father in support of adjournment filed 12/10/2017;[8]

   [8] Exhibit 3

   The respondent mother – Ms Staples

   (d)Amended Response filed 31/01/2017;

   (e)Affidavit of the mother filed 20/03/2018;

   Reports

   (f)Limited Issues Report dated 05/02/2016;

   (g)Family Report dated 01/08/2016;

   (h)Family Report dated 11/11 2016.

The Law

1. The objects of the Family Law Act 1975 (Cth) (“the Act”) in relation to parenting orders are to ensure that:

   a)Children have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests;

   b)Children are protected from physical and psychological harm;

   c)Children receive adequate and proper parenting to help them achieve their full potential; and

   d)Parents fulfil their duties and meet their responsibilities concerning the care welfare and development of their children.

2. These are applications for parenting orders pursuant to s 64B (2) of the Act. In deciding whether to make a particular parenting order in relation to a child, a court must have regard to the best interests of the child as the paramount consideration. The way a court determines what is in a child’s best interests is by considering the matters set out in s 60CC(2) and (3) of the Act.

3. There is also a presumption when making a parenting order; that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption may be rebutted by evidence that equal sharing of parental responsibility would not be in the best interests of the child in question.

4. I have contemplated the issues of parental responsibility, residence, time to be spent and communication between child and parent as well as any other specific issues.

5. I have considered the mandatory factors and conclude that the following matters are relevant to the best interests of these children.

Parental Responsibility

1. The matter proceeded on the basis of a concession by the father that the mother should have sole parental responsibility.

2. In circumstances where there is minimal communication between the parents and most attempts at communication, even electronic, fail, it is an appropriate concession for the father to have made.

3. Even if the father had not made the concession, sole responsibility to the mother would likely have been the outcome given that the children live with her and that there is an extremely poor relationship between the parents.

4. In this case the issues for determination are time and communication for the children with the father.

Primary Considerations

The benefit to the child of having a meaningful relationship with both of the child’s parents

1. The children have a meaningful relationship with each of their parents.

2. The children have lived with their mother since separation in 2010 and are dependent on her to meet their needs which she has done as best she can, consistent with competing demands of her other children and her former partner Mr G.

1. The children have lately enjoyed supervised time with their father. He has hurt them emotionally in the past by being critical of their mother and by burdening them with concerns over his own physical and mental health.

2. In a supervised setting where a neutral party can steer conversations away from unhelpful topics the children have enjoyed playing games, laughing joking with the father and eating together.[9]  

The need to protect the child from physical or psychological harm or from being subjected or exposed to abuse or family violence

[9] Exhibit 6

1. In 2017, in a report prepared by a psychologist engaged by the father, the psychologist says this in relation to the father having presented to her the issue of his brain tumour in a concerning and potentially life threatening manner, contrary to the report of his neurosurgeon, “…I hypothesis that at this point, much of Mr Goodson’s self-concept is dependent on his poor physical health status.”[10]

   [10] Exhibit 3

2. This hypothesis was consistent with psychometric testing undertaken by the psychologist:[11]

   Further to this [discussion of somatic complaints], people who score similarly to [Mr Goodson] tend to hold a self-image that is largely influenced by a belief that they are handicapped by poor health. This is largely consistent with [Mr Goodson’s] presentation throughout assessment, with frequent mentions of his health concerns, however this pattern of response indicates that whilst [Mr Goodson] may be truly experiencing health problems, he will have a tendency to exaggerate or inflate their impact on his daily functions.

   [11] Exhibit 3

3. Combined with a personality style described by the psychologist as tending to be egocentric and showing a lack of empathy the father, in my view, represents a demonstrated risk of burdening and worrying his children about his health and welfare.

Additional Considerations

Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the Court thinks are relevant to the weight it should give to the child’s views

1. Unhappily the children were interviewed and observed three times during the course of 2016 for observation and report by a Family Consultant. One benefit of these three reports is that the Family Consultant came to know and was able to interpret the reactions of the children over the 10 month period.

First Report – 5 February 2016

1. X is reported to have understood that he was obliged to say certain things in the interview.

2. X then proceeded to pour out a string of complaints about his mother, some of which were very clearly exaggerated, for example, “I never get fed at mum’s, I only eat at school”,[12] “He [the father] gave us everything we wanted but mum never gave us anything we wanted”,[13] and “Nothing is good at mum’s, except the Lego box but it’s all dad’s money spent on the Lego.” The child then added, “mum buys me nothing, my [d]ad buys me all my clothes.”[14]

   [12] Family Report dated 5/02/2016, par 44

   [13] Family Report dated 5/02/2016, par 48

   [14] Family Report dated 5/02/2016, par 51

3. X was adamant that he wanted to live with his father, “When asked what it would be like for him if the Judge decided he should stay living with the mother, X said ‘It would be hard because we’ll have all the negative in our life … we hardly get to see him [the father]” he said that the father told him that he would do ‘everything in his power to get us in a safe place’, he said that if he stayed living with the mother ‘it would be horrible for us boys, dad will never be happy, only when he sees us will he be happy’.”[15]

   [15] Family Report dated 5/02/2016, par 57

4. X expressed relief at the completion of the interview and “indicated that the father held expectations of him to report specific things and he felt relieved to have completed the task.”[16]

   [16] Family Report dated 5/02/2016, par 42

5. Y then aged six and a half years, likewise complained about the mother and her household, that his mother “hurts us, does weird things like take us to see [Mr G] [the mother’s partner], she smacks us with her hand and so does [Mr G] very hard, that the mother hurts our feelings when she gets angry with us.”[17]  However when asked what he would do if the judge believed that he should stay living with the mother, Y said, in a reportedly matter of fact way, “I would stay with her”.

   [17] Family Report dated 5/02/2016, par 64

6. The children were at that time aged nine and six. X has been diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”) and Oppositional Defiant Disorder (“ODD”). He is currently medicated and receives assistance from a teacher’s aide at school.

7. Subpoenaed information indicated to the Family Consultant that X’s learning was impaired and that he exhibited a range of problematic behaviours at school. Records indicated that the school had a view that the decline in his behaviour may have been the result of psycho-social stresses within the family.

8. The observation and interview of the children makes it completely clear that they both, but X to a greater extent, felt under considerable pressure to complain about their mother and report positively about their father as a result of encouragement to do so by their father. This is a form of emotional abuse and accordingly, I do not take their expressed views into account.

Second Report - 1 August 2016

1. In August 2016 for a Family Report X was observed to be “…highly exaggerated and fanciful at times; revealing what appeared to be a coping mechanism for [X] in dealing with his psychological distress.”[18]

   [18] Family Report dated 1/08/2016, par 67

2. The child reported to the Family Consultant that his father had told him that he [the father] was happy about what he [X] had told the Family Consultant previously.

3. X said he believed that his mother thinks he is a naughty son and the father thinks he is a good son. He was also able to say that he believed that his mother did not like his father but when asked if the father liked the mother, X said “Noooooooo, not one bit, my dad hates my mum”. When asked how he knew that X said, “because he told me”.[19]

   [19] Family Report dated 1/08/2016, para 69

4. There were again repeated and frankly unbelievable complaints about the mother, that the mother had belted him and smacked him over the head, had used a knife to threaten him, had threatened that she would have her partner’s dog onto him.

5. During that interview X was inordinately distressed about the fact that the father had a brain tumour. He repeatedly returned to the topic during interview, describing how sick and incapacitated the father was. He is reported to express intense concern for the father becoming highly distressed when talking about the issues, “I am really worried about my dad since he’s had the brain tumour. I’ve been so concerned about him. He’s trying, he’s saving up to have a big operation. If he doesn’t have the operation he won’t be able to walk, or work again.”[20]

   [20] Family Report dated 1/08/2016, par 75

6. X is reported to have sobbed at times through the interview about his concern for the father and he strongly expressed a wish to live with him in order to be able to help him, “I want to live with him because I want to help him out a lot. If I didn’t live with him he would have a hell of a lot of troubles … he will fall and won’t be able to get up.”[21]

   [21] Family Report dated 1/08/2016, par 77

7. It is an agreed fact that by the time of these interviews, the father’s benign tumour in his brain had been removed. The report of the father’s own neurosurgeon, Dr J is as follows:

   [Mr Goodson] has seen me since 2013 with regards to a non-functioning pituitary macro-adenoma. He underwent successful surgery in 2013 and has had follow up scans. The condition is considered treated. There is no further compression. This condition does not cause cognitive or behavioural impairment and there are no neurological symptoms. Last two follows scans have shown a slight growth however this is asymptomatic and no plans have been made for surgery at this stage. Should there be any further growth, surgery would be recommended again. This does not affect any of his cognitive or behavioural functions or ability to care for himself at work.[22]

   [22] Exhibit 4

8. It must be the case that the father knew from the date of surgery in 2013 that the tumour had been benign and its removal had left him with no impairment. There is no reason to think that the mother would have frightened the child with the prospect of the father’s incapacity. It must be the case that the father had not reassured the child, that he had been sick and was now well and was suffering from no consequence. It is an act of emotional cruelty to have allowed X go on believing that his father was seriously ill and needed assistance to function on a day by day basis.

Third report - 11 November 2016

1. The observations of the children in this report were markedly different.

2. X was observed to be more relaxed and settled. He was able to talk about his emotions without becoming overwhelmed by them.

3. He was noted to demonstrate “a greater ability to listen, focus and regulate his emotions and behaviour throughout the process.”[23]

   [23] Family Report dated 11/11/2016, par 11

4. Y too was reported to be “noticeably more relaxed and talkative.”[24]

   [24] Family Report dated 11/11/2016, par 24

5. The child knew that his parents had been to see a judge who had decided that he and his brother should not see their father. He commented that his father had told him that his mother was “trying to keep him and X away from him ‘as long as possible.”[25]

   [25] Family Report dated 11/11/2016, par 25

6. X also related to the Family Consultant what his father had told him on the phone about why he was not spending time with him:

   …’cause you guys think he’s lying and telling us things…dad told me (this) on the phone. He says mum’s done this to make sure we can’t see him.[26]

   [26] Family Report dated 11/11/2016, par 14

7. Both children expressed sadness about not seeing the father and a wish to resume spending time with him. In X’s case his primary motivation for seeing the father was “to help him”, although he was assessed to no longer be overwhelmed by feelings of responsibility for his father.

8. X felt worried about his father especially on the phone when he heard the father “moan and groan” and “cough a lot.”[27]

   [27] Family Report dated 11/11/2016, par 19

9. The other significant change was that the X spoke positively about the mother and did not refer to past allegations.

10. In short, the children were happier, more settled within themselves, and well reconciled to their new situation of not seeing the father, although were missing him.

The nature of the relationship of the child with each of their parents and other persons (including any grandparent or other relative of the child)

1. The children have a close loving relationship with their mother, their sister Z (15) and H (six), the mother’s child with her former partner Mr G. They remain on good terms with Mr G.

2. They are close to their maternal grandparents. They regularly have dinner with them, spend weekends and holidays together.

3. They also enjoy a relationship with Mr F the mother’s young adult son who is a regular visitor to the household.

The extent to which each of the child’s parents has fulfilled or failed to fulfil the parent’s obligations to maintain the child

1. The only evidence about financial support was from the mother. Since the father has been on Centrelink benefits he has contributed $3.75 per week per child. Accordingly the mother has been entirely responsible for providing for the children with assistance from Centrelink benefits, and perhaps in the past her partner.

The likely effect of any changes in the child’s circumstances including the likely effect on the child of any separation from either of his or her parents, or any other child or other person

1. Suspension of time with the father after August 2016 lead to a remarkable improvement for both children in their emotional stability and their behaviour and application at school.

2. A return to spending unsupervised time represents a real and substantial risk that the father will undermine the children’s relationship with their mother, destabilise them emotionally and disrupt their steady progress at school.

3. The children would like to spend time with their father but are not mature enough to understand how his behaviour and personality affected them. X in particular was vulnerable to feeling responsible for his father’s health and welfare.

4. To please their father both children criticised their mother and railed against her to the Family Consultant.

5. The children have enjoyed and benefitted from supervised time with their father in a contact centre.

The practical difficulty and expense of a child spending time with and communicating with a parent

1. Spending time in a contact centre is an emotionally safe way for the children to maintain their relationship with the father. However for the future it should be at a level consistent with maintaining the connection, not for graduated transition to unsupervised time.

2. Further a contact centre becomes much less appropriate as children move into adolescence. For that reason the orders will cover the period until the younger child has finished primary school or December 2020. By then the older child will be 14. Thereafter if there is to be further time, supervised or unsupervised, that will only be because the parents have agreed about that. If they are unable to agree no face to face time will occur.

3. Communicating with the father by phone has been problematic. The father has used the opportunity to criticise and blame the mother and to convey especially to X that he is struggling with poor health.

4. However some telephone contact, fortnightly as proposed by the mother, will re-assure the children and allow them to tell the father about important events in their lives. They are now old enough and sufficiently self-confident to politely end the conversation if the father reverts to old patterns of criticism and complaint.

The capacity of the child’s parents and any other person to provide for the needs of the child, including emotional and intellectual needs

1. The mother does have the capacity to meet the needs of the children. In the past, for almost seven years, the mother supported the relationship between the children and the father in the face of hostility and undermining by the father. The evidence suggests that the mother may have under-estimated the adverse impact on the children of the behaviour of the father.[28]

   [28] Family Report dated 1/8/2016, par 45

2. The mother was, in the opinion of the Family Consultant, able to provide a generally positive parenting environment. I accept that opinion. I note that after three months of not seeing their father there was no sign in observations of the children that the mother had exposed them to criticism of the father.

3. The father has an impaired capacity to meet the needs of the children. For psychological reasons he has presented himself to the children as mortally ill when he was not. He perceives himself as having been victimised by others in business and in relationships. He complains about his lot and criticises others to the children. He uses the children to meet his apparent need to be pitied and looked after.

4. It is an imposition on them. The children should be confident that their father would be looking after them.

5. Another consideration is the tendency of the father to share his feelings and ideas about the parental dispute in the Court with the children. For instance he told both children that the mother was trying to keep them away from him. That was after the August 2016 orders where time was suspended by the Court.

6. Both parties were restrained by injunction from discussing the Court proceedings with the children.[29]

   [29] Order 9 of orders made in the Federal Court of Australia Orders on 9/8/2016

7. It seems unlikely that the father would restrain himself or comply with restraining orders in future.

8. I am reinforced in this view by X reporting that his father had told him over the telephone that the father was “not allowed to talk about his health because he is not allowed to worry him.”[30]

   [30] Family Report dated 11/11/2016, par 19

9. Such a manipulation of the child’s feelings intentional or not must damage emotional stability.

The maturity, sex, lifestyle and background of the child and either of their parents and any other characteristics of the child that the court thinks are relevant

1. The children are two boys in Year 6 and Year 4. In 2019, X will start high school.

2. As a young child X was diagnosed with ADHD and ODD. He takes medication which is effective but needs careful management. His appetite is adversely affected, so food is most appealing to him in the evening when the medication diminishes in his system. His mother has focused on substantial nourishing meals at night. He does best when life is steady and predictable.

The attitude to the child, and to the responsibility of parenthood, demonstrated by each of the child’s parents

1. The father has been out of the paid workforce for ten years. The medical evidence does not support a finding that he would be unable to work. The psychological evidence suggests that a return to work is unlikely without support.

2. The mother has five children, including the two subject children, ranging in age from now 23 to six years. The age and stage of those children means the mother has not re-entered the paid workforce.

3. One of the things the father could do is provide more financial support for the two subject children.

4. He could apologise to the mother for not having told her about the JIRT investigation into Mr E’s alleged conduct with four year old X in 2010.

5. If he did such things and acknowledged the mother’s care of the children as part of a close sibling group, there could be some chance of a restoration of trust.

Conclusion

1. The inescapable fact of this case is that the emotional well-being of the two children improved immensely after they stopped spending time with the father in August 2016.

2. Eight months later when they began supervised time in a contact centre the children enjoyed time with their father in a safe setting.

3. The father loves the children and wants them in his life. He can provide fun and companionship for them and show interest in their lives.

4. In balancing the risk of emotional harm from the father against the benefit of maintaining a relationship with him, the orders provide for two years of supervised visits every second month and fortnightly telephone calls.

5. If that regime occurs and is successful, the mother, after consultation with the children, would likely agree to some expansion of time, even restoration of unsupervised time.

6. However if the father reacts with resentment which he does not conceal from the children, if he criticises the mother to the children and blames her for the outcome of these proceedings then the opportunity for the children to fully restore their relationship with him through their teenage years will be lost.

7. In that event the children will make their own decision about their father as each turns 18 years.

8. Orders are made accordingly.

I certify that the preceding one hundred and forty-three (143) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cleary delivered on 16 November 2018.

Associate:

Date:  16 November 2018