Gorman and Huffman (No 2)
[2015] FamCA 411
•2 June 2015
FAMILY COURT OF AUSTRALIA
| GORMAN & HUFFMAN (NO. 2) | [2015] FamCA 411 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Stay of proceedings – Principles in respect of stays considered – where risk that the appeal may be rendered nugatory – where preliminary assessment of prospects of success on appeal – where pre-judgment parenting arrangements were unsatisfactory – best interests of the children. |
| Aldridge & Keaton [2009] FamCAFC 106 |
| APPLICANT: | Ms Gorman |
| RESPONDENT: | Mr Huffman |
| INDEPENDENT CHILDREN’S LAWYER: | Mr Naidovski |
| FILE NUMBER: | PAC | 3882 | of | 2011 |
| DATE DELIVERED: | 2 June 2015 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Parramatta |
| JUDGMENT OF: | Hannam J |
| HEARING DATE: | 29 May 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Connor |
| SOLICITOR FOR THE APPLICANT: | Martin Street Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Maddox |
| SOLICITOR FOR THE RESPONDENT: | Caldwell Martin Cox |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Wearne |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Naidovski of Legal Aid NSW |
Orders
The mother’s Application in a Case dated 29 April 2015 is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Gorman & Huffman has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT PARRAMATTA |
FILE NUMBER: PAC 3882 of 2011
| Ms Gorman |
Applicant
And
| Mr Huffman |
Respondent
REASONS FOR JUDGMENT
Introduction & Background
History of the Proceedings
In an Application in a Case dated 29 April 2015 the Respondent wife/mother seeks that parenting and property Orders made on the same date be stayed pending an appeal.
The orders under appeal relate to parenting and property proceedings following the breakdown of an 11 year relationship in which the parties had three children. The application for stay of the property orders has been dealt with. This judgment concerns the application for stay of parenting orders only.
The proceedings were originally commenced in the Federal Circuit Court in August 2011, and on 22 August 2012, the proceedings were listed for trial in that Court but were subsequently transferred to the Family Court.
The proceedings before me were heard over 12 days in October and December 2014 and January 2015.
From the date of separation, up until the date judgment was delivered on 29 April 2015 the children were living with their mother and spending time with their father, either pursuant to court orders or an arrangement agreed to by the parents.
It was a significant issue in the trial before me that commencing in about late August 2012 the children made complaints to their mother, concerning alleged abuse by their father and his wife in the paternal home when the children were spending time with their father. The issue of the children’s complaints and the allegations against the father and members of his household, including expert evidence from a psychiatrist, Dr K, were dealt with at length in my Reasons for Judgment (see paragraphs [149] –[178] and [187]-[222]). There was specific consideration of the correlation between the children’s complaints and the proceedings.
Final submissions in relation to parenting orders were made on 11 December 2014. Final submissions in relation to property were made on 30 January 2014 and judgment was reserved on that date.
Events following adjournment
Each of the parents filed an affidavit in relation to the events that occurred during the period in which judgment was reserved. The following facts are uncontested.
The children spent time with their father according to interim orders then in place from after school Friday until Sunday afternoon each alternate weekend during the period in which judgment was reserved.
On the weekend of Friday 13 March to Sunday 15 March the children spent time with their father. The father took the children to spend a night with him at his parents’ home on the Saturday night of that weekend. The father says that the children were restless and unsettled during this weekend but it was otherwise uneventful.
In an affidavit filed on 29 April 2015, the mother said that when the children were dropped off at 4 pm on Sunday 15 March and she queried the children about their weekend, the parties’ daughters S, who is seven, and Z, who is four, complained that their father had hit them.
The mother then says in her affidavit that at about 4 pm the following day she noticed a bruise on Z’s thigh. The mother relates a conversation between herself and the children in which Z said that the bruise was as a result of being hit by the father and other allegations were made that the father had also choked the child L. The mother said that she telephoned a solicitor who was providing advice in relation to family law matters who advised her to call the police immediately and report it. The mother reported the incident to police who attended the following night at around 9 pm and interviewed the children and photographed Z’s leg.
The incident was also reported to the Department of Family and Community Services.
On 26 March 2015 the children were interviewed by police and the mother provided a statement to police on the same day. A provisional Apprehended Domestic Violence Order (ADVO) was made by police for the protection of the children against the father.
On 2 April 2015 a police application for an ADVO was listed before the Local Court. The police withdrew the application on that date.
On 27 April 2015 I made orders in chambers listing the matter for the delivery of reserved judgment at 10 am on Wednesday, 29 April 2015. I also made an order that the mother was to present the children to the senior family consultant of the child dispute services by 9:30 am on 29 April.
On 29 April 2015, prior to the proceedings commencing, the mother attempted unsuccessfully to file an Application in a Case in which she sought orders that the judgment, yet to be delivered, be stayed, that the children remain in the care of the mother until further order and injunctive orders be made against the father for the protection of the mother and children.
Upon my arrival in court and immediately prior to delivering judgment the mother’s then legal representative sought to (in his words) “lodge an application to re-open”. I proceeded to deliver judgment and indicated that I would deal with any Application in a Case once it was filed at an appropriate time.
The orders made on 29 April 2015 resulted in the children living with their father and spending no time with their mother for a period of 12 months, after which they are to spend supervised time with their mother six times per year. The children left the Court in the company of the father.
Following the delivery of judgment the mother’s counsel referred to an urgent application for a stay of the orders relating to the children but at that stage an appeal had not been lodged. An appeal was subsequently lodged and the application for stay was listed before me on 12 May 2015 for hearing of that application. For the reasons given in an ex tempore judgment on that day the stay application was adjourned and orders were made under s 69ZW requesting information from the NSW Police and the Department of Family and Community Services in relation to the mother’s allegation concerning the events on the weekend of 13-15 March 2015.
The stay application was heard on 29 May 2015.
The Law to be Applied & Discussion
The law as to the general principles applicable to a stay pending appeal is well settled.
In Cape & Cape[1] in which the Full Court considered orders permitting a mother to relocate to Germany, and the refusal to stay the relocation orders pending the appeal, the Full Court referred to the approach taken by Crisford J, the First Instance Judge, as accurately relying upon the statement of principles set out by the Full Court in Tranh & Long (No. 2)[2]. These principles are the same as those referred to by the Full Court in Aldridge &Keaton[3].
[1] [2013] FamCAFC 114
[2] [2008] FamCAFC 194
[3] [2009] FamCAFC 106
The principles from Trahn & Long (No. 2) (supra) or Aldridge & Keaton (supra), which were described as accurately governing the determination of a stay application concerning a child are[4]:-
[4] Ibid at [21]
·the mere filing of an appeal is insufficient to ground a stay;
·the onus to establish a proper basis for the stay is on the applicant for the stay – however it is not necessary for the applicant to demonstrate “special” or “exceptional” circumstances;
·a person who has obtained a judgment is entitled to the benefit of that judgment;
·the person who has obtained a judgment is entitled to presume the judgment is correct;
·the bona fides of the applicant;
·a stay may be granted on terms that are fair to all parties – this may involve a court weighing the balance of convenience and the competing rights of the parties;
·a weighing of the risk that an appeal may be rendered nugatory if a stay is not granted – this will be a substantial factor in determining whether it will be appropriate to grant the stay;
·some preliminary assessment of the strength of the proposed appeal – whether the appellant has an arguable case;
·the desirability of limiting the frequency of any change in a child’s living arrangements;
·the period of time in which the appeal can be heard and whether existing satisfactory arrangements may support the granting of a stay for a short period of time; and
·the best interests of the children the subject of the proceedings are a significant consideration.
I will now consider the factors relevant in this case.
The bona fides of the applicant
It was submitted by the Independent Children’s Lawyer (ICL) that there may be some cause to question the bona fides of the mother. However, as I understand it, this does not relate strictly to the mother’s bona fides in lodging the appeal but relates more to the mother’s conduct after the contact weekend of 13-15 March 2015, the way in which she sought to pursue her concerns by making a complaint to police rather than applying to reopen the hearing and the way in which she sought to rely upon the evidence relating to that incident in the orders she now seeks in this application.
I am not of the view that the mother is not acting bona fide in appealing against the parenting orders as a challenge to them is completely consistent with the stance she has taken at all times in the proceedings. However, I have some concerns about her bona fides in seeking not only a stay of the proceedings (which would result in the children living with her and spending defined time with their father), but also seeking that the children live with her, that there be no order for the father’s time with the children and an order by way of injunction that the father have no contact with the mother or the children. In seeking orders in these terms the mother is in effect re-agitating the contested matters in the hearing in advance of the appeal. Orders in these terms pending appeal would not only stay the orders appealed against, but place the mother in a more advantageous position than she was in prior to the judgment.
Balancing the parties’ competing rights – whether a stay should be granted on terms fair to all parties
As indicated, the orders sought by the mother go beyond a stay of the orders appealed against, as the mother seeks that no orders be made for the father to spend time with the children pending appeal. In the course of submissions however, the mother’s counsel conceded that the Court may grant a stay on any terms that the Court regards as appropriate in the circumstances and, as I understand it, was urging the Court to simply stay the orders and return to the pre-judgment status quo.
The effect of a stay of the parenting orders would result in the children returning to live with their mother and spending time with the father on alternate weekends. Aside from having real concerns about whether the father would in fact spend time with the children even if the orders are made (which is dealt with later in these Reasons) considerable unfairness to the father would also occur. The orders in question were made following a protracted hearing over many months in terms that he had sought for almost three years.
The parenting arrangement that resulted from the orders appealed against, which will continue if the stay is not granted, is that the mother, who was the children’s primary carer, will spend no time with the children for a year and then very limited time thereafter. There is no doubt that this arrangement will have a profound impact on the mother, a matter anticipated in paragraph [337] of the judgment. Although the mother would experience significant hardship which she may perceive as “unfair” it is not possible in this matter to craft a stay order that would be perceived as fair to all parties as the parent’s positions are so diametrically opposed and because the rights of the parents in this matter are not the only relevant rights to be considered.
It is submitted on behalf of the mother that she would be prepared to submit to conditions such as supervision, and oversight if the children were to come back into her care pending appeal and in the Application in a Case she also proposes an alternate order that the children be cared for by the mother’s aunt and her husband, Mr and Mrs F, or by the mother’s friends Mr and Mrs C, who were witnesses in the proceedings. So far as suggested supervision is concerned I am of the view that this would not be an approach that would appropriately address fairness to the parties, nor is it a proposal safeguarding the welfare of the children having regard to paragraphs [292]-[295] of my judgment. In my view, it is also likewise inappropriate and not in best interests of the children for orders to be made that the care of the children be given to the mother’s aunt and husband about whom nothing is known and who did not feature in the proceedings, or to Mr and Mrs Cope. In my view, it would be completely inappropriate and contrary to the children’s best interests to place them with totally new carers which would involve further significant disruption for them in order to address issues of fairness to the parents.
Whether there is a risk that the appeal may be rendered nugatory if a stay is not granted
In my view, in this case the greatest risk in relation to the outcome of the appeal is that it may be rendered nugatory if a stay is granted rather than if it is not granted.
It was the unchallenged opinion of Dr K that each of the children has an attachment relationship with their mother. I also accepted the evidence of Dr K that the children have a capacity for “compulsively compliant behaviour…[and] are likely to adapt well behaviourally to any such change [in their living circumstances] made in an absolute way”. This would suggest that if the mother’s appeal were successful the children would be likely to adapt again to living with her, being the parent to whom they have a significant attachment relationship.
In the affidavit of 6 May 2015 relied upon by the mother in the stay application, the mother says that she fears that if the children remain in the father’s care without any contact that they will be “alienated” from her and her relationship with them be “severely damaged”. As I understand the submissions on behalf of the mother, she contends that there would be no possibility of the children successfully returning to her care. There was no evidence concerning alienation in the trial nor in relation to the impact of lengthy separation from the mother upon the children’s relationship with her. Although undoubtedly the separation will be experienced as a loss for the children, there is insufficient evidence to conclude that in the event that the appeal were successful the children would not satisfactory successfully return to the care of their mother given their capacity for adaptation and that relationship with the mother is a mostly secure attachment relationship.
On the other hand, there was significant evidence concerning the likely impact on the children’s relationship with their father if they were to continue living with their mother. This issue is also dealt with at length in the judgment. A paragraph [276] I said the following
Dr [K] remained of the view under cross-examination that it is highly likely that if the children lived mostly with their mother it would not be “feasible or constructive in the longer term for the children to have regular time with the father”. In this context he reiterated his evidence concerning the children’s alignment with the mother and their “need to lock in with their mother’s stance”. Part of this stance is to reject the father to meet the mother’s needs. The doctor felt that it was not reasonable for the children to be placed in the position of being taken to spend time with their father but refusing to do so, which he described when it happened in the past as “this sort of theatre of driving down there and needing to refuse”. He said that it was not tenable and would be problematic for the children and their relationship with their father if the children were required under orders to spend time with him. He felt that if the mother’s proposal were to be implemented under orders, it would “likely … lead to the children not having a relationship with their father”.
In these circumstances, in my view there is a real risk that if the children are to return to residing with the mother with orders that they spend time with their father and the mother’s appeal is dismissed that the relationship with the father would be irreparably damaged.
As noted, the mother seeks additional or alternative orders that the children live with her and no provision be made for spending time with their father. In my judgment I accepted Dr K’s opinion that if the children were to live with their mother they would manage better with an absolute separation from their father as it is a feature of the mother’s relationship with them that they are “required” to rejected to their father (see paragraph [320]). In my view if this were to occur for the entire period pending appeal it would not be possible for the children to successfully transition back into the care of their father.
A preliminary assessment of the strengths of the appeal
Although in the course of submissions made on behalf of the mother there were a number of references to redrafting or finally settling the grounds of appeal, I must consider those grounds that are contained the mother’s Notice of Appeal filed on 1 May 2015.
There are seven grounds of appeal which relate to the parenting orders.
Grounds 1.1, 1.5, 1.6 and 1.7 each complain of a failure to attach appropriate weight to particular aspects of evidence. In a long line of authority including House v The King[5] and the Gronow v Gronow[6], appellant courts are slow to overturn a primary judge’s discretionary decision on grounds which only involve conflicting assessments of the matters of weight. In Aldridge & Keaton[7] the Full Court approved of the trial judge setting “out an appeal court’s reluctance to overturn a first instance decision on grounds which only involved conflicting assessments of matters of weight.”
[5] (1936) 55 CLR 499
[6] (1979) 144 CLR 513
[7] [2009] FamCAFC 106 at [24]
Each of the grounds of appeal with respect to the parenting orders also complain that my failure to give appropriate weight to certain matters of evidence is “manifestly inadequate and was not just and equitable”. It is difficult to see how concepts of manifest inadequacy and justice and equity have any relevance in an appeal concerning parenting orders.
Ground 1.2 complains that the trial judge “in her discretion on 29 April 2015, objected to the Appellant’s Application to admit fresh evidence in relation to the endangerment of [the children] (my emphasis)” which is said to be “manifestly inadequate” and “not just and equitable”. To understand the meaning of this ground of appeal as indicated earlier in these Reasons, it is to be remembered that on 29 April 2015, prior to delivering judgment (which is the reason the matter had been listed on that day), the mother’s then counsel attempted to “lodge an application to re-open”. However, the only application that had been unsuccessfully sought to be filed earlier that day was an Application in a Case seeking a stay on the judgment yet to be delivered, orders that the children “remain in the care of the mother” and an injunction restraining the father from coming into contact with the mother or the children. The Application in a Case subsequently filed and relied on sought orders in the same terms with the alternative order that the children be placed in the care of other family members or family friends. No application to re-open the proceedings has been filed and the only reference to re-opening the case was in the interchange between myself and the mother’s counsel moments before I delivered judgment in the matter. After indicating that the matter had been listed for judgment to be delivered, counsel said “…is Your Honour refusing my application to – to lodge an application to re-open?”.
After delivering judgment, other matters were dealt with and, as indicated, no other reference was made to an application to re-open. Subsequently it became apparent that the mother sought to file an affidavit dealing with events on the weekend of 13-15 March 2015, which I understand is the evidence which the mother sought to be considered by the Court. The parties consented to this affidavit being considered by the Court for the purposes of the stay application. That affidavit, together with documents produced to the Court under s 69ZW were considered by me on this application as sought by the mother and are dealt with later in this judgment. In these circumstances it is not clear whether the mother will pursue this ground of appeal. In any event, having regard to when the alleged incident of concern occurred (13-15 March) and the circumstances in which the mother sought to have it considered six weeks later, on the day the matter had been listed for judgment, leave may not have been granted to re-open the case even if that application had been properly made.
Ground 1.3 complains that I failed to “apply section 60CC of the Family Law Act in relation to the Applicant mother having a meaningful relationship” which it is said “is manifestly inadequate and not just and equitable”. The issue of the mother’s meaningful relationship is dealt with in paragraph [270]-[274] of the judgment.
Ground 1.4 complains that I failed to apply s 60CC(3) in relation to the children’s half-sibling, T, and “extended family”. The child T and the mother’s partner Mr X are dealt with in paragraphs [305] and [347] of the judgment.
It appears that the nub of all but one of the mother’s grounds of appeal rely on matters of weight given to particular evidence. In addition there is the issue of the application to admit fresh evidence. Although I am of the view that there was no such application before me this is also a discretionary matter and the evidence that the mother wished to be considered and the way in which she sought for it to be treated did in fact occur in the stay proceedings. In my view, in all of the circumstances, especially having regard to the appeal court’s reluctance to deal with discretionary matters, the appeal has poor prospects of success.
The desirability of limiting the frequency of any change in children’s living arrangements and whether the existing arrangements are satisfactory.
The mother placed considerable weight on the line of authorities relating to maintenance of the status quo, although in this case, as the orders were effective immediately the mother is seeking to return to the status quo prior to the implementation of the current living arrangements.
In respect of maintaining the status quo, a number of cases, starting with Clemett & Clemett[8], refer to the desirability for the frequency of any changes in custodial arrangements relating to the child being limited as much as possible. In that case, Nygh J said at 76,175:
If the appeal appears to be based on substantial grounds and is not a mere delaying tactic, if it can be dealt with within a reasonable time and the present circumstances of the child are satisfactory, it will be appropriate to grant a stay of proceedings for at least a short period of time.
[8] (1981) FLC 91-013
Subsequent cases, including the Full Court decision of CSN & JBN[9], make it clear that in order for the Court to attach weight to the status quo, the aspect of the circumstances of the child being satisfactory is critical.
[9] (1998) FamCA 176
Even if it is the case, as argued by the mother, and which I accept is correct, that the status quo to be considered is the status quo prior to the making of the orders, an examination of whether those circumstances (that is prior to the judgment) must be made to determine whether they are “satisfactory”. In Aldridge & Keaton (supra) at [36], the Court said
In K & B [2006] FamCA 848; (2006) FLC 93-288 the Full Court dismissed a stay appeal where it found that the arrangements which existed for the particular child at the time of trial were not satisfactory, and therefore the maintenance of the status quo pending the determination of the substantive appeal was not in the child’s best interests. The Full Court, at paragraph 32, explained why in a parenting appeal, the granting of a stay to maintain a “status quo” is not always appropriate, or the best interests of a child may dictate refusal of a stay as appropriate. Their Honours said:
The granting or refusal of a stay involves an exercise of discretion by a trial Judge. Whilst such discretion must be exercised judicially, in cases involving children, we accept that from time to time circumstances in existence at the date of the orders, or which occur from the date of orders until the hearing of a stay application, may be very relevant matters to be considered in the exercise of discretion in determining whether or not to grant a stay. The interests of children would not be promoted by an inflexible requirement or presumption in every case to maintain the status quo prior to the making of orders the subject of the stay application, and to ignore unsatisfactory arrangements at the time of the orders, or significant events which have occurred after the making of those orders.
In my view the arrangements for the children at the time the orders were made were unsatisfactory for a number of reasons. It is also in my view not a correct assessment put on behalf of the mother in this application that the ICL and the father clearly regarded those circumstances as satisfactory as on 11 December 2014 neither sought to change the status quo through interim orders. As previously indicated in this matter, the positions of the parties have been diametrically opposed since late 2012. It has been the father’s case for this entire period that there are serious concerns about the mother’s capacity as a parent, her willingness and ability to facilitate and encourage a continuing relationship with the children and him and most importantly the need to protect the children from harm in the mother’s household. He has throughout this period contended that the concerns are so great so as require a dramatic change as sought in his orders. This was clearly supported in quite emphatic submissions put by the ICL at the close of the case.
The issues of harm to the children in the mother’s household are dealt with at length between paragraphs [278] to [297] of the judgment. While a number of the issues of concern relate to matters which are not likely to emerge until the future when the children individuate, there were other significant matters of immediate concern arising from the mother’s personality pathology.
There were also particular concerns about the children’s rejection of the valued relationship with the father and the invention of untrue negative stories about him. This is dealt with in paragraphs [304]-[308], [311]-[313] and [322]-[323].
It is also clear in the judgment that I found a correlation between the children’s complaints and the proceedings. Dr K was so concerned about the mother involving the children in a partisan way in the proceedings to meet her own emotional needs that he had recommended that the father cease spending time with the children from the date of the release of his report in June 2014 until the hearing to “protect [the children] from needing to take a role in partisan conflict”. In paragraph [54] of the judgment I referred to an incident on the weekend of 29-31 August 2014 when I found that the child L said to his father “I want you to treat me bad. Then I can go home and tell mum the bad things you do to me because she wants to tell the court”. This prompted the father to advise that he would not spend time with the children between that date and the hearing. The hearing then proceeded for a number of dates in October 2014 and orders were made by consent for the children to once again spend time with the father every alternate weekend. During this period, and a couple of weeks of prior to the resumption of the hearing on 23 November 2014 the children complained about having been harmed by the father’s wife during the previous weekend when the children spent time with their father. An Apprehended Violence Order (AVO) was made against the father’s wife for L’s protection which was subsequently revoked and the police were ordered to pay Mrs H’s costs. At the hearing I was not satisfied that the father’s wife had harmed the children or that there was any unacceptable risk of harm to the children in the father’s household.
Prior to judgment being delivered, on the basis of the mother’s affidavit it is apparent that the children made another complaint in strikingly similar terms against the father. Once again the mother reported the complaint to the police and initially a provisional ADVO was made for the protection of the children, which was also subsequently not continued. This ADVO matter was not pursued by the police, nor was the father charged. In my view, there is a very real risk that the children will continue to make complaints about the father if they are returned to the mother, as they understand that is their role when living with their mother, to devalue the relationship with the father to meet her psychological needs. This is another of the most unsatisfactory features of that parenting arrangement.
The period of time in which the appeal can be heard
The second issue to be considered in relation to the maintenance of the status quo (or in this case, the return to pre-judgment status quo) is the time at which the appeal will be heard.
With the consent of the parties, I made enquiries of the appeals registry. If the matter is expedited as a result of such an application which is to be heard tomorrow, and the matter is given the greatest amount of expedition, it could be heard in approximately two months’ time. Otherwise, even with expedition, the matter would be listed towards the end of August or the beginning of September, that is, in approximately three months’ time. If the matter is not expedited then it would be heard within 12-18 months from the date of filing of the appeal books. Such a date has not yet been fixed.
The best interests of the children
The final matter to consider is the best interests of the children, the subject of the proceedings. This is a particularly weighty factor and relied on by both parties.
To a considerable extent this has been dealt with when considering whether the pre-judgment status quo was “satisfactory”. However, the main focus of that consideration was whether the circumstances in the mother’s household were satisfactory, whereas the mother in her stay application places considerable weight on the circumstances in the father’s home. In particular, she contends that the incident during the weekend of 13-15 March 2015 when the children were spending time with their father raises real concerns about the children’s safety in the care of the father. As indicated earlier, there is a striking similarity between the children’s complaints on this occasion and on previous occasions, and once again the complaints coincide with a significant event in the proceedings, that is the then upcoming final judgment. The children’s complaints at this time are not unexpected and are entirely consistent with their complaints throughout the proceedings. Although evidence concerning this incident has not been tested by cross-examination, these complaints appear to be a repetition of the children’s “familiar narrative” of abuse in the father’s home and are consistent with Dr K’s opinion, which I accepted in the judgment, concerning the children’s “need to be make allegations against the father in order to understand their life circumstances”. Once again, in my view, the timing and the context of the most recent allegations indicate that they are unreliable. My assessment of the complaints against the father, which is dealt with in paragraphs [187]-[222] is equally applicable here in relation to this latest complaint.
The majority of my lengthy judgment in the matter concerns a consideration of the evidence regarding the best interests of the children. Although I accepted Dr K’s opinion, I did not make the more extreme orders that he ultimately proposed that there be no face-to-face contact between the children and their mother. I found that the mother was a perpetrator of significant and serious family violence, that she has a personality dysfunction and that there is an unacceptable risk of harm to the children if they were to continue to live with their mother. I considered the nature of the children’s relationships with each parent and accepted the evidence that the rejection by the children of their valued relationship with their father resulted from the demands of the child-mother relationship not the child-father relationship. I formed the opinion that the father has, and is likely to facilitate and encourage a continuing relationship between the children and their mother and that the mother had been unwilling to support the children’s relationship with their father and had taken active and continuing steps to disrupt it. I also gave particularly close consideration to the likely effect of change in the children’s circumstances, which has been referred to earlier in these Reasons, and to the capacities of each of the parents. The greatest concern about the mother’s capacity related to her shortcomings in meeting the children’s emotional and psychological needs arising principally from her perpetration of family violence and personality dysfunction. Each of the other relevant best interest factors were considered.
Having regard to all of these matters, my preliminary assessment of the strengths of the appeal and the risks to the children should they return to the unsatisfactory circumstances in the mother’s home, I am of the view that it is in the best interests of the children to remain in their current living arrangement and for the parenting arrangements under the orders appealed against to continue. Having regard to all of the foregoing, the application for stay and other additional orders sought is dismissed.
I certify that the preceding sixty one (61) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 2 June 2015
Legal Associate:
Date: 2 June 2015
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