Grosby & Grosby
[2008] FamCA 472
•25 June 2008
FAMILY COURT OF AUSTRALIA
| GROSBY & GROSBY | [2008] FamCA 472 |
| FAMILY LAW – CHILDREN – With whom a child lives – Relocation – Mother wishes to relocate with the two children from Hunter Valley to Sydney – Father opposes relocation – Father chose to have a very limited role in parenting of the children until he found out the mother had plans to move with the children to Sydney and he filed his Application – Mother permitted to relocate with the children to Sydney FAMILY LAW – CHILDREN – With whom a child lives – Family violence – Father has a history of abusing alcohol and using violence and other abuse in his dealings with people – History of abusive behaviour by the father towards others including the mother and her new partner – Controlling behaviour – Finding father is using proceedings to control mother and her partner CHILDREN – Parental responsibility – The children’s interests require that there be orders for each parent to have responsibility for day to day decisions about the children when they are in his or her care and otherwise the mother has sole parental responsibility – Finding children’s interests better served if they live further away from father |
| Family Law Act 1975 (Cth) |
| D and SV (2003) FLC ¶93-137 U and U (2002) FLC ¶93-112 |
| APPLICANT: | MR GROSBY |
| RESPONDENT: | MRS GROSBY |
| FILE NUMBER: | NCF | 637 | of | 2005 |
| DATE DELIVERED: | 25 June 2008 |
| PLACE DELIVERED: | Newcastle |
| PLACE HEARD: | Newcastle |
| JUDGMENT OF: | JUSTICE MULLANE |
| HEARING DATES: | 31 August, 20 & 21 December 2007 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr I. Duane |
| SOLICITOR FOR THE APPLICANT: | Mr Mark Evans |
| COUNSEL FOR THE RESPONDENT: | Mr J. Hamilton |
| SOLICITOR FOR THE RESPONDENT: | Cragg Braye & Thornton |
Orders
All previous orders regarding the parties children B born … December 1999 and T born … June 2002 are discharged.
The children are to live with the mother and she has permission for them to reside in Sydney.
The father has parental responsibility for decisions as to the day to day care, welfare and development when they spend time with him.
Otherwise the mother has sole parental responsibility.
The children are to spend time with the father as follows:
5.1for the first half of each summer school vacation commencing in an even numbered year and the second half of each summer school vacation commencing in an odd numbered year;
5.2 for the first half of each other school vacation;
5.3 for the 2nd, 6th, and 10th weekend of each school term; and5.4for the 4th and 8th weekend of each school term subject to the father giving the mother at least 14 days notice on each occasion by letter or e-mail.
Each of the parents must keep the other informed of his or her address and e-mail address and provide a telephone number at which the children may phone that parent.
If the parent has provided a landline telephone number under Order 6 then the other parent must ensure that the children phone that number between 7pm and 7.15pm on Sunday (other than weekends in 5.3 and 5.4 and the first and last day of any period in 5.1 or 5.2) if they are in the other’s care to communicate with the first parent and the other parent must ensure the children have privacy for the call.
If a parent has provided only a mobile telephone number under Order 6 then that parent must ensure that he or she telephones the children at the other parent’s home between 7pm and 7.15pm on Sunday (other than weekends in 5.3 and 5.4 and the first and last day of any period in 5.1 or 5.2) when the children are in the other parent’s care and the other parent must ensure the children are available to receive the call and have privacy for the conversation.
The time the children spend with the father is to be implemented as follows:
9.1 Under 5.1 & 5.2:
The mother is to ensure delivery of the children to the home of the maternal grandparents at N in the Hunter Valley and the father is to arrange collection of the children from there at 6pm on the first day of the period and arrange return of them to outside the mother’s home at D in Sydney by 6pm on the last day of the period;
9.2 Under 5.4:
The father is to collect the children from outside the mother’s home at D in Sydney at about 6pm on the Friday evening, spend the time with the children within a radius of 90 kilometres of D and arrange return of the children to outside the mother’s home by 6pm on the Sunday; and
9.3 Under 5.3:
The mother is to ensure the children are delivered to the home of the maternal grandparents at N in the Hunter Valley and the father is to ensure collection of the children from there at 6pm on the Friday evening and ensure return of the children to the same place by 6pm on the Sunday.Each party must promptly notify the other of:
10.1 either child becoming seriously ill;
10.2 either child being hospitalised; or
10.3 either child being involved in any accident requiring medical treatment.By consent each of the parties must sign all documents and do all things to enable the issue of a passport to each of the children.
By consent the passports must remain in the possession of the wife.
By consent in the event of either party wishing to travel internationally with the children that party must:
13.1provide to the other party not less than 28 days prior to the departure date, written notice of the intention to travel;
13.2provide to the other party not less than 7 days prior to the departure date a written itinerary including telephone number(s) on which the children may be contacted;
13.3if the party travelling is the father, the mother must provide the children’s passports to the husband not less than 28 days prior to the notified departure date and the father return the children’s passports to the mother within 28 days of the children’s return to Australia.
Each party has permission to relist for argument any current costs application by written request to the Registry Manager delivered within 28 days, and in default of such delivery, any such costs application is hereby dismissed.
These Orders incorporate and have attached to them a document setting out:
15.1the obligations that these Orders create;
15.2the consequences that may follow if a person contravenes an Order;
15.3the availability of programs to help people understand the responsibilities under parenting orders; and
15.4the availability and use of location and recovery orders to ensure that parenting orders are complied with.
Otherwise any outstanding applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Grosby & Grosby is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT NEWCASTLE |
FILE NUMBER: NCF637 of 2005
| MR GROSBY |
Applicant
And
| MRS GROSBY |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
B is 8 and T is nearly 6. They are the children of the parties and have lived their whole lives in N in the Hunter Valley.
The parents separated in August 2004. The mother has since formed a romantic relationship with Mr C. Their child E was born in July 2007.
In March 2006 Mr C was offered and accepted a management promotion to a position in Sydney and has since worked full time in Sydney.
In March 2006 the mother had sought the father’s agreement to her moving with the children to Sydney. He opposed the move and commenced these proceedings. He obtained interim orders restraining the mother from changing the children’s place of residence to any place more than 20 kilometres from N Post Office.
Since March 2006 the mother and Mr C have had 2 households; one in N and one in Sydney. They have travelled between them to be together and so that Mr C can spend time with the children.
Other complications are:
1)the father has a history of abusing alcohol and using violence and other abuse in his dealings with people; and,
2)the father until March 2006 chose to have a very limited role in the parenting of the children.
CREDIT OF THE APPLICANT FATHER
In his evidence in cross-examination, the father was often vague, uncertain and had poor recollection. He demonstrated, for example, a very poor recollection in relation to the history of the relationship and the periods for which they resided at various addresses.
In his affidavit of 22 March 2006 he swore that his sisters were living in the N area at that time. But in cross-examination it was put to him that the allegation was untrue. He answered that he was not sure. It was put to him that his sister was living in Western Australia when he swore that affidavit. He said he was uncertain. Later he said he believed she was living in Perth at the time.
He had sworn in an affidavit that the mother had not breast fed either child. When cross-examined about this, he said he was not sure. But he then conceded that she breast fed both of the children. His evidence in his affidavit to the contrary was untrue. When asked why he said that she did not breast feed either child, he said that he was “not sure”.
He grossly understated incidents of abusive behaviour by him towards others, including the mother. (Findings in that regard are set out in detail later.) He appeared to have very little empathy for, and very little insight into the perspective of the mother and others.
He falsely swore in his first affidavit that the children were not present during an incident of abusive behaviour by him in July 2005.
He falsely swore in the same affidavit that he had not breached a good behaviour bond, but the evidence established on the balance of probabilities that he did, by assaulting a man at a vineyard in October 2006.
He was unable to recall a lot of significant allegations that were made in the proceedings. He had difficulty understanding some fairly straight forward questions. He often answered questions by saying, “I can’t remember”. He appeared to have a very poor memory and very poor recollection.
In cross-examination the father testified that his sister gave him $30,000 in January 2007. He denied it was money she owed him. He denied that he owns a property in Western Australia with her. He said, “She gave it”. He testified that they together owned a property at N and he transferred it to her for $90,000. He said she did not pay him until he “purchased another property.” He said he did not know why there was a delay in the payment. He denied it was because there was an enquiry by the Child Support Agency.
He conceded twice that the transfer of his interest in the property to her was for a consideration of $95,000. But he did not receive any of that money from her at the time. Again he claimed it was a gift when she paid him $30,000, then he said, “Well, that’s the impression I had of it.” It was put to him that at the time of the transfer that upon him transferring his interest, she owed him $95,000 and replied, “I did not think that”. It was put to him that his sister still owed him $65,000 and he answered, “Not that I am aware of”.
In this part of the evidence the father gave false evidence that was transparently false. He was seeking to mislead the Court.
When it was put to the father in cross-examination that the mother would be “fairly unhappy” if the Court forces her to continue to live in N, his reply was, “I don’t know”. He also said he was “not sure” whether the mother loves Mr C. He denied that it would be “inconvenient” for Mr C to be driving from Sydney to N each night to stay overnight.
In this and other parts of his cross-examination, the father either denied or declined to adopt the propositions that were obviously true. When it was put to him that he does not like Mr C, he replied, “I don’t know how to answer that …Oh, I accept him …” But then he said that Mr C is the main reason for the breakdown of the parties’ marriage.
Overall the father was a very unimpressive witness. He did not appear to have a reliable recollection or a reliable memory. He also appeared to often give false evidence or be evasive in order to assist his case.
CREDIT OF THE RESPONDENT MOTHER
The mother in her evidence and cross-examination contrasted with the father. She was prepared to make concessions against her interest where warranted. She did not appear to have the same level of bitterness towards the father as he appears to have towards her. She was rarely evasive and mainly answered the questions directly. She occasionally volunteered unresponsive material or explanations.
The mother presented as a much more credible witness than the father.
BRIEF HISTORY
The parties commenced cohabitation in N in 1999 when the father was 21 and the mother 19. The mother was at that time already pregnant to the father.
B was born in December 1999.
In November 2000 the parties separated when the mother left the father and moved to reside with her parents. She took B with her and they resided with the maternal grandparents until about May 2001. The parties then reconciled and resumed cohabitation.
The parties were married at N in February 2002. The mother at that time was pregnant with the second child.
T was born in June 2002.
The final separation occurred in August 2004. While the father was attending work, the mother and the children left the home and took up residence with the maternal grandparents in their home at N.
In October 2004 the mother moved into a unit in N with the 2 children.
The mother formed a romantic relationship with Mr C. They had met in 2003 through their employment at a shop in N, where Mr C was the manager. After the parties separated, Mr C left his wife. He moved into a flat in the Newcastle area, where he and his wife had been cohabiting. The mother and Mr C started going out together. They did not cohabit. From October 2004 they saw each other frequently. Later he sometimes stayed overnight at her flat.
From October to November 2004, Mr C was working for his employer in the Hunter Valley managing the commissioning of a new shop. He accepted a promotion to Manager of the Hunter Valley shop. He and the mother still spent time together on weekends. The relationship developed further after December 2004. They were together more often after that and stayed together overnight 3 or 4 times per week. His flat had 2 bedrooms and he purchased furniture for the children to use when they stayed. They often took the children on outings together on weekends. They looked together for a block of land to purchase and looked at house designs. They took the children to Melbourne for a 5 day holiday together.
In about October 2005 the mother left the shop and took up full time employment with an electrical store.
In July 2005 there was an incident that led to criminal charges being laid against the father. After that incident his mother contacted the maternal grandparents and arranged a meeting to discuss the issue of the children spending time with the father. The father was at the meeting but the mother declined to attend because of events that had occurred. They had those discussions and thereafter the time the children spent with their father was implemented by him collecting the children from the home of the maternal grandparents at the start of the period and returning them there at the end of the period.
On about 13 March 2006 Mr C was offered a promotion to manage a shop in W, Sydney. He informed the mother of the promotion and of his wish to accept it and move to Sydney. The mother and Mr C discussed the issue during the Melbourne trip and agreed they both wanted to move to Sydney and take the children. The mother arranged for the father to be notified of her intention. She told her parents on 19 March, they informed the father’s parents and they told the father on 20 March.
On 27 March 2006 the father filed an Application in the Federal Magistrates Court seeking that the 2 children live with him and spend time with the mother. The mother filed her Response on 31 March. In it she sought orders for the children to continue to live with her, but that they be able to move to Sydney. She proposed that the children spend time with the father for half each school vacation and for half the weekends in school terms from Friday evening to Sunday afternoon (Monday if it is a public holiday). That would mean that he spent more time with them than he already was spending.
In her Response the mother also sought an order for the father to attend an “Anger Management or Behaviour Rehabilitation program”.
Interim orders were made by consent in March 2006 by the Federal Magistrates Court for the children to reside with the mother and spend time with the father. There was an order made on the father’s application restraining the mother from allowing the children to reside more than 20 kilometres from N Post Office and providing that in default the children would live with the father.
In November 2006, the father was given permanent full time employment with the employer where he had been working since 2004 as a casual.
Mr C’s promotion was to Manager of a shop at W in Sydney. In November 2006 the mother discovered that she was pregnant to Mr C. That month he was offered a further promotion. He accepted and took up the position as Manger of a shop in H in Sydney in December 2006. Since he took up the position at H, Mr C has rented accommodation in Sydney and driven between Sydney and N several times each week to be with the mother and the children on his days off and overnight on some nights each week.
The mother took leave from her employment for the birth of the baby. Mr C took leave and stayed with the mother and the children for a month in July 2007, during which time the child of the mother and Mr C, E, was born in July. Since then the mother has travelled to Sydney to stay with Mr C when the children are with the father, he has travelled to N to stay for weekends when she has them, and he has also driven to N to stay most week nights. Some time after E’s birth the mother returned to her employment but has worked only 1 day per week.
In February 2007 the father purchased a 3 bedroom house and granny flat in N.
An order was made for the preparation of a Family Report and the report writing task was allocated to Dr O, a psychologist in private practice, who prepares Family Reports for the Child Dispute Service of the Family Court. Dr O holds degrees of Bachelor of Arts (Hons), Master of Arts, Doctor of Philosophy, and Master of Psychology (Clinical). The last of the degrees was awarded to her in 1989. Her Masters Degree and doctorate are both in the area of psychology. She has practised as a psychologist since 1989. She has numerous professional memberships and has published numerous articles in refereed professional journals and books.
Dr O conducted the interviews for the Family Report on 2 April 2007 and the report was released on 16 April 2007. Dr O arrived at the following conclusions and recommendations:
Evaluation
101The writer has formed the opinion that [the father] is a committed father who wishes to maintain the relationship he currently has with the children, [B] and [T].
102The writer has also formed the opinion that [the mother] seeks to relocate to Sydney to begin a new phase of her life with her current partner, (Mr [C]), with whom she is expecting their first child together. It also appears to the writer that [the mother’s] priority is her new life with her partner rather than [B] and [T’s] - needs to maintain a close, loving relationship with the father, Mr [Grosby].
103It was also evident to the writer that neither [the mother] nor Mr [C] has considered the long-term ramifications of more than ten years of travel between Sydney and [N] each alternate weekend for either the children, or for themselves and their new family. It is undoubtedly the case that the travel demands would become unpalatable to them with the passage of time. It is also highly probable that [B] and [T] would find the years of travel demanding and intrusive. This would lead to an almost inevitable situation of the children's relationship with the father deteriorating over time.
104After hearing the positions of all of the adults concerned in this matter, it appeared to the writer that those who would most benefit from a relocation of the children to Sydney would be [the mother] and Mr [C]. It does not appear to the writer that [B] and [T] would benefit in any meaningful way. To the contrary, it appears that they would miss out on weekend sporting activities and social events such as birthday parties, socializing with friends when they are older, in order to comply with the orders.
105It appears that the mother's application to relocate has been essentially driven by Mr [C] promotion to a [management] position in Sydney. Given that neither the father nor the children benefit from Mr [C’s] promotion, it would seem to the writer unreasonable for the children's relationship with the father and the father's relationship with the children, to be at possible risk of deterioration in the event that the children relocate to Sydney.
106The writer formed the view from the interviews with the children and from the observations of the children with all of the adults, that it would be in their best interests for the current relationships that the children have with all of the adults in their lives to be preserved as far as is possible.
Recommendations
107It is recommended that the children, [B] (dob: […].12.99) and [T] (dob: […].6.02), live with the mother, [Mrs Grsoby] provided that she continues to live in the [N] area, and no more than 20 kilometres from the [N] Post Office.
108In the event that the mother decides to relocate to Sydney it is recommended that the children live with the father, [Mr Grosby].
109If the children continue to live with the mother, it is recommended that the children spend time with the father as per the consent orders of 31 March 2006 made in the Federal Magistrates Court of Australia at Newcastle.
110In addition, it is recommended that the father spend time with the children on the Friday, Saturday and Sunday nights that he currently does not have them and which fit his current work roster.
111If the mother relocates to Sydney it is recommended that the children spend time with the mother each alternate weekend.
112It is recommended that the children spend time with the father for half of each school holiday period.
113If the mother continues to live in [N] it is recommended that the children spend half of each Christmas Day with each of the parents.
114If the mother relocates to Sydney it is recommended that the children spend Christmas with the mother in even numbered years and with the father in odd numbered years.
115It is recommended that the children spend time with the appropriate parent on Mother's Day and Father's Day.
116It is recommended that if the children live in [N] that they spend part of their birthdays with each parent.
117If the children live in [N] it is recommended that the children spend time with each parent on each of the parent's birthdays.
118It is recommended that if the children reside in Sydney for more than three consecutive days at any time, that they be permitted to receive telephone calls from the father, by him initiating the phone call to a landline or to a mobile telephone.
After the release of the Family Report, on 2 May 2007 the father filed an amended application seeking an order that provided the mother resides within 20 kilometres of the N Post Office, the children reside with her and spend time with the father which would on his 28 day roster average 2 overnight stays per week. The application sought that in the alternative, if the mother decided to relocate to Sydney, then the children live with the father and spend time with the mother every second weekend from after school Friday to Sunday afternoon and for one half of each school holiday.
In July 2007, E, the child of the mother and Mr C was born.
The hearing commencing on 31 August 2007 and continued on 20 and 21 December 2007. Judgment was reserved.
THE CHILD B
B turned 8 last December. Mr C described him as “very bright”. Dr O said from her observations of B in April 2007, at age 7 years and 4 months, that he was “a reserved quiet boy”. The mother’s evidence in cross-examination is that B has been “quite sad”. She said that he does not have “a large number” of family and friends in the N area to whom he is close.
B attends N Public School and is in Year 3. The father’s evidence in March 2006 was that B was “progressing well at school where he has several friends amongst his peers”. The mother also testified that B is doing well at school and she conceded he has friends there.
B enjoys attending Joey Scouts, which he has been involved in since about April 2006. He also plays weekend rugby league and attends after school training. He goes to karate classes and also enjoys motor bike riding.
In March 2006 the mother’s evidence was that since the separation, B was telling her that he was being quizzed by his father about Mr C, when Mr C was present, and where Mr C went and what he did. She was still observing at that stage that “[B] is a little funny towards (Mr [C]) when he gets back from his Dad’s. [B] has said to me, ‘Dad said that if I like (Mr [C]) I’m not allowed to stay there any more’.”
The maternal grandmother has observed the children in the company of the mother and Mr C. She observed that Mr C is affectionate towards the children and very generous towards them. She observed them to be happy when they are in his company.
The maternal grandmother had also noticed that when B returned to her house after spending time with the father when she or the maternal grandfather started to speak to B, he would put his hands over his ears and say, “Dad asked me questions all the time”. B has also said to her, “Dad said if you like (Mr [C]) you can’t sleep”.
The maternal grandfather has observed that when B returns from his father’s care, he is “defiant and cheeky”. But his mood then changes very quickly back to normal.
In March 2006 when the mother, Mr C and the children went to Melbourne for 4 days for a holiday, in the car on the way down, B told his mother that his father says, “You’re fat”, and, “Dad said if I like (Mr [C]) I’m not allowed to stay there any more”.
In March 2006 the father testified in his affidavit that B was continuing to say to him on a regularly basis, “Daddy, I want to come and live with you”. The children also told their father at about that time, “When we go to (Mr [C’s]) place there is nothing to do and we get bored”. This is contrary to the evidence of the adults.
B has spoken positively to his maternal grandmother about his trips to Sydney. He has told her that he and T have pet rabbits at Mr C’s house which they care for. He said he enjoys going bike riding there and feeding ducks in the local park. Both the children have demonstrated enthusiasm when talking about Mr C’s niece with whom they play on occasions when they are in Sydney. They have both told their grandmother that they want to move to Sydney.
When small children are in the midst of a parental conflict about where they are to live, it is notorious that views expressed to either parent (or a supporter of the parent in the contest) supporting that parent’s proposal are unreliable and more likely to be a demonstration of loyalty to the parent than an expression of a true preference by the child.
When Dr O saw the children in April 2007, B told her he was happy at his school and he liked his school. He said he had lots of friends at his school. She reported that he understood there was a possibility that he and T might move to Sydney. He told her he liked N and Sydney. He said he liked Sydney because Luna Park is there and he could feed the ducks and because there is a big cycleway there. He was very positive about his father, saying that he loved him and that he would miss his father and his father would miss him if the children moved. He also told Dr O that he does not like the long drive to and from Sydney. He said he would not like it every second weekend.
Mr C’s evidence in his affidavit sworn 30 April 2007 is:
31. The children come down to Sydney every weekend that they are not with [the father]. I travel to [N] and pick them and [the mother] up on a Friday night and then I return them on a Sunday. It's too much now with [the mother] being pregnant for her to drive every weekend.
32. The children do not mind travelling. We have bought a DVD player for the car which they watch. We also frequently talk about school and the like.
33. The travel time to or from Sydney is generally 2-2 1/4 hours.
34. We stop at the Twin Servos for a drink. I get a coffee normally and a stretch and a toilet break. And then we are off again.
35. The children seem to handle the travel ok. Sometimes they don't like the travel but most of the time they don't mind.
Dr O did not observe either child interacting with either parent or others, except for any incidental observations of them in the waiting area between the interviews she conducted.
The mother concedes that both children are close to their father. In her oral evidence, Dr O testified that at the time of the report (April 2007), the children were “extremely close” to the father. She referred to “quality contact” between them and said that if the children moved to Sydney mid-week contact would not be possible and the children would “lose a lot of continuity and a sense of the father being involved in their lives”. She said, “He would be phased out of their lives”.
It is clear that the children’s main attachment is to their mother and that she is the person upon whom they are primarily dependent both physically and emotionally.
The maternal grandfather has had considerable involvement with the children. In addition to his involvement prior to the separation, his evidence is:
14.I say that since that time I have been involved in the contact change-over with the children as they are delivered to my home by [the mother] for collection by [the father] and they are returned by [the father] at the conclusion of contact to my home.
15.I say that at change over the children are happy to go with him and on return they sometimes appear a little quiet. I will ask them if everything is ok but generally there is no response and I don't press the matter any further. [B] will sometimes keep his head in his hands but other than those observations I say that the hand over of the children goes without any difficulties.
16.I say that while [the grandmother] and I were living at [R Street, N], I had an outside shed which I used as an office. [B] has said to me at some point in time, "Gramps, can I have an office too?" In response to that request I set up an office for [B] and if he was at my home, we would often spend time together in the shed.
17.After moving to our current address, I have set up an "office" in the downstairs garage which again, [B] has also had an office set up and where we often spend time together.
18.[B] enjoys pottering around and we often have a bit of a chat.
19.I say that [B] has said things to me like, "When we go to Sydney, I will be able to do that, won't I gramps?" My response to him is, "If you are allowed to go." I also have a pet quarrion. He has also said to me, "When I go to Sydney I might be able to get a bird like [that pet]"
The maternal grandmother has also been much involved with the children. In the period since 2006 she has often collected the children from school/ preschool and cared for them, on days when the mother has been at work.
Regarding the children’s relationship with Mr C, the maternal grandfather’s evidence is:
21.… [T] crawls all over him, sits on his shoulders and the like. [B] is similar in nature to my son and is not demonserative with his show of affections and is a little reserved. I say that [the children] both talk with excitement about things that they have done together with their mother and (Mr [C]) in Sydney and from my observations, both [T] and [B] are eager to move to Sydney although [B] appears to be concerned not to earn his father's displeasure by showing any loyalty to (Mr [C]).
Mr C said that by Christmas 2005 he had become close to the children. He said he was more involved in their daily activities and they occasionally went away with the children on weekends as a family. They sometimes went to Nelson Bay for the weekend, to Sydney to take the children to the zoo, or to the central coast for the weekend. He said in his affidavit of 30 April 2007 that the children “seem to be accepting me as a friend. I say that during 2005 at one stage [B] asked me if I was his step-Dad. I said to him after a short talk with (the mother), ‘Not really, not yet anyway.’ [B] said to me, ‘I asked my Dad and he said that there is no way that you will ever be my step-Dad’.”
The mother’s evidence is that:
41 I say that since [E’s] birth, [B] has appeared to be much closer to (Mr [C]). An example of that closeness is the other day when I was speaking to (Mr [C]) on the hands free telephone in the car and [T] and [B] were in the car with me, [B] called out to [Mr C] and said, “Are you coming up tonight?” [Mr C] said, “No I won’t be able to because I will be finishing too late”. [B] expressed disappointment by saying, “Oh, I wanted you to come up tonight.” I say that [B] is also very attached to [E]. I say that he will hold and cuddle her every time he gets the opportunity.
THE CHILD T
T will turn 6 next month. When Dr O saw her at 4 years 9 months, she described her as being, “more outgoing and talkative than [B]”. She said that T was happy to accompany her to the interview room.
T is in first class at N Public School. The mother’s evidence is that T has friends at school. In his affidavit sworn in April 2007, Mr C testified that “She is doing well with her tricky words that they have to do at this age. She is enjoying it. She is learning songs and comes home and sings songs.” Mr C helps her with her homework, although it is likely at her age that she has limited homework.
In the past the maternal grandmother used to take T to dancing classes each Tuesday but this has not continued.
The mother described T as “quite social” and popular with her friends. She said, however, that there is not “a large number of family and friends” in N to whom she is close.
The mother told T not to say such things. When T saw Dr O, she said she liked her school and had lots of friends.
Dr O also reported:
98 [T] gave contradictory answers about her feelings about the possible relocation to Sydney. She said she would like to live in Sydney and then in the next sentence said, "Dad doesn't want us to". She added that she would miss Dad.
99 When asked if she had told her Mum that she would miss her Dad, [T] said, "Yes - but Mum said you have to [move]". When asked why they "had to" move [T] said, "because Mum wants to live with [Mr C] When asked where she would prefer to live she said "[N]".
Dr O reported that T was positive about everybody in her family including both her parents and Mr C. She concluded:
100 The writer formed the impression from interviews and observations that the children have a very good relationship with all of the important adults in their lives and that it is important that these relationships be preserved.
On the trip in the car to Melbourne in March 2006 T said to Mr C, “My Dad said you’re a scumbag”. When the mother swore her affidavit of 24 August 2007, T was in the habit of asking her daily whether or not Mr C was coming to stay that night. She said that T appeared very attached to the baby, E, “although she will only hold her for a short period of a minute or so.”
THE FATHER’S BEHAVIOUR PROBLEMS
On 28 February 1998 the father (then 20) was at P Hotel in N. He was intoxicated. It was nearly closing time and security staff asked him to leave. He did not do so and eventually the security staff ejected him and his friend. Shortly after, at 3am, the hotel closed. One of the security staff was leaving to go home. He was in his car in the street. The father came to the car, placed his head through the driver’s window and head butted the man to the mouth, causing swelling to the mouth. The father asked the man to get out and fight him. The man ignored the father. The father then kicked the rear side driver’s door of the car. The man drove off.
The man subsequently saw Police in the street and reported the matter. He indicated the father, who was in view. The father fled into a nearby park. The Police did not find him, but later established that the father may have been the suspect. They interviewed him and he agreed to attend at P Hotel at times when the victim would be working, so that the victim might be able to determine whether he was the person responsible so as to avoid the need to participate in an identification parade. He was allowed to leave. He did not abide by the agreement. Subsequently his mother, when contacted by the Police, advised that he would not attend an identification line up. He was not charged with this assault.
The father was charged in July, 1998 with common assault. It was not the assault of February 1998. The charge was dealt with on 10 February 1999 in the Local Court. The offence was found proved but the charge was dismissed and he was ordered to attend on a Community Aid Panel. The evidence in these proceedings did not establish the details of the offence.
When the parties met in 1998 the mother was in year 12 at high school and 18. The father was 20, had left school in year 10, about 4 years before, and had worked as a driver of bulldozers, trucks and heavy machinery. It appears he had more life experience and was much more worldly than her, and it was not in that sense a relationship of equals. When they commenced cohabitation in early 1999, he was 21 and she was 19 and pregnant to him. She was vulnerable. The father did not treat it as a relationship of equals in terms of domestic chores and (later) parenting. He expected the mother to perform most of those.
On 10 January 1999 the father was leaving the P Hotel at about 12.45am. He was under the influence of alcohol. A man was sitting on the veranda of the hotel. He went over to the veranda, placed his arm over the man’s shoulder, and said, “Don’t worry, I’m only a bit drunk”. He then pushed the man’s face away with his hand with such force as to cause the man’s nose to bleed. The man reported the incident to the Police that day. He told them he wanted there to be a record of the incident, but he did not wish Police to take it further. Police took no action against the father.
On Sunday, 26 September 1999 at about 12.30am the father was at the R Hotel at N. The Police arrived and found him standing inside the front entrance with a number of security personnel, arguing with them. They had asked him to leave the premises, but he had refused. The Police asked him to leave then did a walk through the premises. When they were about to leave, they noticed that the father was still arguing with the security personnel. They asked the father to leave. He refused and argued with the Police. They asked him to leave 6 or 8 times. Each time he became more argumentative and continued refusing. He was moved from the doorway to the veranda of the hotel. He became argumentative and abusive towards security personnel. The Police directed him several more times to leave the premises. He refused and grabbed hold of a veranda post.
The Police arrested him and forcibly removed him from the post. They took him to the Police vehicle across the road. When they tried to place him in the rear of the vehicle, he placed his legs on 3 occasions out of the rear door, preventing them from closing the door. On 1 occasion he kicked the door open. Eventually the Police placed his legs in the rear in the cage, closed the door and conveyed him to the Police Station. There he refused to leave the vehicle. He had to be forcibly removed by the Police. The Police noted that he was well-affected by alcohol.
As a result of this incident, the father was convicted in the Local Court on 27 October 1999 with Resisting an Officer in the Execution of his Duty, and Failing to Leave Premises after Refusal of Entry. He was required to enter into a recognizance in the sum of $1,000 to be of good behaviour for 18 months and fined $500 with costs of $55.
B was born in December 1999. When the father collected the mother and B from the hospital, he was drunk. When he arrived home, he laid on the lounge and stayed there for the rest of the day and night. The maternal grandmother and the mother’s friends came to help her with the new baby.
On Christmas night 1999, the parties were at a function at the wife’s aunt’s home. When the mother was leaving to take B (who was then 3 weeks old) home, the father insisted on staying on.
Later, he arrived home drunk. The mother told him, “I’m sick of you coming home in this state all the time”, and he responded by saying, “If you don’t like it, get out of my house”. The mother refused to leave. He then telephoned the maternal grandmother and told her, “Come and get your slut of a daughter from my house”. The mother subsequently rang her parents. She told her father not to worry about coming. But they did. When they arrived, the father stood on the front veranda. He told them to “Fuck off”, and he called the maternal grandmother a “slut”.
He then got the baby out of bed. The mother was afraid he would drop the baby and asked him to give her the baby. He refused and kept swearing at everyone. The mother rang his parents and asked them to assist. They arrived with his sister. They asked the mother not to call the Police. Eventually the father gave the baby back to the mother. The mother took B and they spent the night with the maternal grandparents. But she returned to the father with B.
On 12 November 2000 the parties were to attend a party for friends’ engagement. The father went out with friends during the day. When he had not returned home and the mother was concerned, she called his mobile number. A female answered the phone and told her that he gone to a hotel. She continued to ring the mobile until he answered. He told her that she and the baby could go on their own as he was not going. She called on his parents on her way to the party and informed that he was at a hotel and sounded drunk. She was concerned he might get into trouble.
After the mother arrived home that night, the father had still not returned. She went to bed. She was informed the next morning that he had been arrested the previous night and his brother had gone to collect him that morning from the Police Station. The mother packed the bags for her and B and she and the baby stayed with her brother until the next day.
The evidence does not establish the details of the offences, but in respect of the incidents on 12 November 2000 the father was dealt with in the Local Court on 15 May 2001. He was convicted of common assault and placed on a bond of good behaviour for 2 years and required to accept the supervision of the NSW Probation & Parole Service. He was fined $500 and ordered to pay costs of $56. He was convicted of assaulting a Police Officer in the Execution of his Duty and placed on a bond to be of good behaviour for a period of 2 years and accept the supervision of the NSW Probation & Parole Service. He was also fined $400 and ordered to pay costs of $56. In respect of the offence of resisting or hindering a Police Office in the execution of his Duty, he was convicted, fined $400 and ordered to pay $56 Court Costs.
On New Years Day 2001 the parties had been constantly fighting because the father had been drinking heavily. The mother moved out and resided with her parents. The father subsequently told her that he had been attending Alcoholics Anonymous on the advice of his solicitors because of the charges he was facing. She subsequently resumed cohabiting with him in May 2001.
There was an incident at the R Hotel in March 2004. The parties were dancing and a friend of the mother’s was dancing with a Mr D. The father was looking over the mother’s shoulder. Suddenly he pushed the mother away and attacked Mr D. He punched Mr D in the face causing his eyebrow to split. People surrounded him and Mr D and tried to pull the father off Mr D. It appears the Police were not involved.
In about May 2004 they argued about his lack of assistance with the children’s care and household duties. He telephoned the maternal grandparents and told them, “Come and get your slut of a daughter and her kids out of the gutter as that’s where she will be. I am kicking them out.” The mother was upset. She began packing some things. He left. He then returned and threw her keycard at her. She had not known he had it. He said he had taken all the funds from her account, which comprised $80 being a fortnightly child tax benefit she had received. His behaviour was controlling and abusive of the mother.
Her father arrived shortly afterwards and asked the father to give the money back. The father refused. He demanded the mother give him the keys to the house. He told her, “When you need stuff for yourself or the kids, you can wait till I am home and I will allow you in to get it.” The wife took the children and moved to her parents’ place. She stayed there for about a week before returning. In the meantime he sent her text messages, and made telephone calls to her promising to change and to be of more assistance to her. But he refused her access to the house. Again his behaviour was controlling and abusive of the mother.
There was another incident about that time when the mother and the children were waiting to go shopping with the mother’s friend, when the father arrived home and asked the mother for sex. She was dressed and waiting to go out. She declined. He proceeded to pin her to the bed attempting to have sex. She kicked and screamed. The children were present. She kept saying to him, “The kids can see you”. But he persisted. Her girlfriend came to the door and shouted out “Hello”. The mother said, “Come in”. The father then released her. His behaviour was controlling and abusive of the mother.
In about mid-2004 the maternal grandmother received a telephone call from B. He said, “Nan, can you come and get us”. The grandmother heard the parties yelling and screaming in the background.
On 20 August 2004 the mother was with her brother and sister finalising plans for their mother’s 50th birthday party the following night. The father telephoned her and said, “Haven’t you made tea?” She replied, “I wasn’t home, you can get it this once”. He then abused her, so she ended the call. The mother left him the following night and took the children with her. They then resided with her parents. That was the final separation.
At about the end of August 2004, the father had a conversation with the mother when he asked her to return to him. She refused. He subsequently telephoned her and in the course of the conversation he told her that he wanted her to make a complaint to someone in the shop where Mr C worked, to say that he had been “preying” on her and she wanted him charged. She refused.
In August 2004 the father put the parties’ furniture, appliances and other objects from their home into storage. He did that without consulting the mother and his behaviour was controlling of her.
In September 2004 the father told the mother, “You needn’t think you are moving. I will have you stopped. I wouldn’t care if it was anyone else you were moving with, but as long as it is [Mr C] I will have you stopped. You and [Mr C] ruined my life, so I will ruin yours too.”
When the parties separated, the father had retained a new car the parties had recently bought. He allowed the wife to retain his old work utility, and she subsequently used it for her and the children.
In the afternoon of 27 September 2004 the father pulled the mother over when she was driving with the children. He demanded the keys for the utility she was driving. She refused. He lent in the window in front of the children yelling at her. He scratched at her hands trying to obtain the keys to the car. He swore at her. The mother got the children out of the car and stood with them on the side of the road. He then proceeded to lift the bonnet of her car and took a part from the engine. He intended to prevent the vehicle being driven.
The mother used her mobile phone to call her sister and her brother-in-law. The mother’s aunt arrived in her car. The mother’s brother-in-law arrived soon after. He told the father to fix the car. The father continued to abuse the mother and call her names in front of the children and the others present. His conduct on that occasion was controlling and abusive of the mother.
On 5 October 2004 he delivered the children back to her at 6am in the morning. He felt the bonnet of her utility and told her he was doing this to see if she had been driving the car anywhere that morning. He told her that she was not to drive the car out of the town. His statements and behaviour were controlling and abusive of her. He behaved in a similar way on other occasions.
On Monday, 25 October he came to her work and abused her in front of the staff members about her having a relationship with Mr C. He had been visiting her at work and harassing her. He had been phoning her telling her Mr C was a paedophile and he had been harassing her in other ways.
That afternoon when the mother delivered the children to his house, as she left, T ran to give her a kiss. The father told her not to kiss the mother as she probably had “hepatitis or something else”.
When he brought the children back to the mother at 8.30am the following morning, he told her that he was going to “Put a knife in [Mr C’s] ribs”. The wife threatened to obtain an Apprehended Violence Order. He said that if she did that he would be forced to leave his employment with a community organisation and he would have nothing, so he would not care who he hurt or what he did to Mr C. On her way to work that morning the wife went to the Police and made a complaint in support of an application for an Apprehended Violence Order.
In October 2004 or earlier she had approached the father to pay to replace the tyres on the utility, which were bald. He refused. Her father subsequently paid for new tyres to be fitted to the vehicle. The father did not contribute to the cost.
The father was served with the mother’s Application for an Apprehended Violence Order on Wednesday 27 October 2004. After he was served he went to her place of work and walked past her laughing at her. When she went to leave work that day the utility had been taken from the car park. After he took the vehicle, the father did some repairs on the vehicle and sold it. In cross-examination he denied that his behaviour in taking the vehicle was “mean”. It was clearly controlling and abusive behaviour.
From October 2004 the mother and the children were living in a unit. The mother told the father the unit had no air conditioning and was hot. She asked if she could have the parties’ air conditioning unit from storage. The father refused. In cross-examination he conceded that he was not using it. When it was put to him that it would have made the heat less oppressive for the mother and the children, he avoided the question. When asked why he did not let her have it, he replied, “She’d taken everything she needed”. On the balance of probabilities his refusal was controlling behaviour directed at the mother.
In about November 2004 Mr C had been to the N shopping centre. As he drove off, the father followed him in a motor vehicle. Mr C eventually pulled over to the side of the road and got out. The father stopped behind Mr C’s vehicle and then walked over to Mr C. He said, “You’ve got nothing to fear from me. If I wanted to hit you, I would have hit you by now. You have got more to fear from my brother and friends”.
Mr C said, “You have to do what you have to do”. The father then said that he would always be in Mr C’s life while ever Mr C had anything to do with the children and he would do everything in his power to stop Mr C from being with the children. He said that Mr C would never be able to replace him as a father. Mr C replied, “I can never be their father. They should be fortunate to have potentially 2 fathers and a good home.” The father replied, “We will see about that”. Mr C then drove off. The father’s behaviour was threatening and abusive towards Mr C.
On 1 December 2004 the father arrived at the child care centre. The grandmother was telephoned and arrived. The father had no child restraining seat in the vehicle but wanted to take T and B in the vehicle. T at the time was 2 years of age. Despite the grandmother’s objections, the father still drove off with the 2 children unrestrained, save for the adult seat belts in the vehicle. This conduct was controlling behaviour which subjected the children to unnecessary risk.
The father telephoned the mother on Tuesday, 1 February 2005. He told her that he did not want his children around her parents as they had raised “a fag for a son and a slut for a daughter”.
On more than one occasion prior to May 2005 the father collected the children for an overnight stay and then telephoned the mother less than 5 minutes later to discuss Mr C with her. She would hear the children crying in the background. After the call, he would return the children to her and leave. This was controlling behaviour towards the mother at the children’s expense.
On another occasion he came and asked to take the children to the park. The mother agreed. He then asked her if she was still in a relationship with Mr C. When she said he was, he then told her in the presence of the children, “I am not taking them”. This was controlling behaviour towards the mother at the children’s expense.
In May 2005 the mother and Mr C went out with some friends in N. The next day the father telephoned the mother. He said to her, “You are game to go out. Don’t ever go out in my town again. If you do I will have [Mr C] bashed.” The mother has since avoided going out in N with Mr C. She fears that the father will carry out his threats against Mr C. This was threatening and controlling behaviour.
The mother had requested the Child Support Agency to enforce the child support arrears payable by the father. On 8 July 2005 the father told an employee of the Child Support Agency that he would rather give up his job than pay child support. His refusal to pay child support was controlling of the mother.
There was an incident on 8 July 2005. Mr C was staying overnight at the mother’s unit. The children were also there. At about 1.45am the father went to the mother’s unit. He was intoxicated. He went there with the intention of causing trouble for her and Mr C, of frightening both of them, and to harm Mr C. When he arrived he banged loudly on the front door. The mother saw him from a window standing with his arms folded. She opened the door, but left the screen door shut and locked. She said, “What do you want?” He replied, “I want to talk to fuckwit”. He kept repeating this. He was screaming at the top of his voice. The mother shut the door and rang the Police.
Three of his friends arrived. They tried unsuccessfully to persuade him to leave. The mother telephoned her father and asked him to come. The father was yelling, “Tell him to come outside. What’s, he pissing his pants? Tell fuckwit to get out here.” The mother was frightened and shaking. She could smell liquor on the father even though she had not gone outside. She tried to telephone his parents to seek their assistance. Her father arrived. She observed the father “in my Dad’s face and poking at him”. She told the father that she had called the Police, hoping that he would leave, but he did not.
Two Police arrived and spoke with the father, the maternal grandfather and the mother. A Police Officer asked the father to leave a number of times. He refused. He turned his back on the Officer and spoke to the other Officer. The mother told the Police Officer that she wanted an Apprehended Violence Order against the father because she was frightened of him. The father was still swearing at the top of his voice and refusing to do what the Police Officers instructed him to do. They eventually walked him to the back of the Police van. He then resisted the Police. He was yelling and swearing and refusing to obey.
The Police record that when the Police Officers first arrived they heard the father swearing and trying to gain entry to the mother’s home. He was making allegations that Mr C was a paedophile and was interfering with his children. The Police considered that the father was heavily intoxicated. They said they found him unable to be reasoned with and asked him to leave the area several times. He told them, “They are my fucking kids and I will sort this shit out when I fucking feel like it.” They still tried to reason with him, but he continued to ignore them and kept trying to intimidate the mother and the Police. He said, “I’m not fucking going anywhere. I have not done anything wrong. She’s a fucking whore. I’m going to smash that cunt if he comes out here.” The Police considered that the mother was in fear of the father and visibly so. She was shaking and crying.
When the Police attempted to walk the father to the Police vehicle, he pulled violently away from the Police with his right arm. He said, “I’m not fucking going anywhere and youse cunts are not going to fucking make me.” He was then sprayed with capsicum spray. He then attempted to tackle Police and the Police slipped on the grass and both the father and 2 Police ended up on the ground. The father attempted to inflict pain on one of the Police Officers by trying to grab hold of and pinch the leg of the Officer. He continued to struggle violently and a second spray of capsicum spray was used in an attempt to restrain him. In the struggle one Officer was severely affected by capsicum spray and was unable to assist after that.
The maternal grandfather’s evidence was that when he arrived, the father told him, “My daughter told me that [Mr C] is picking on her. I know it’s true because [B] told me its true.” The maternal grandfather told him, “They’re only telling you what you’re putting in their head and they’re telling you what you want to hear to please you. [Mr C] is not hurting your children. I won’t allow it.” When the mother asked him to get off her property, the father said, “Tell the guy you’re rooting to come to the door because I want to see him.”
When another Police vehicle arrived with additional Officers, eventually they all put the father into the Police van. He was asked a number of times to comply with Police directions and calm down. He continued to yell at the top of his voice, “Fuck you pig cunts. I’ll do what I want. I want to sort out the shit with ex. Fuck off you cunts.” The police eventually got control of him and he was handcuffed at the rear. After he was hand-cuffed the father kept saying, “This is not fair. I have not fucking done anything wrong. That cunt’s a paedophile and I fucking want him charged too.” He still continued to resist Police as they tried to get him to the back of the Police truck. Eventually he was placed in the back of the truck and taken to the Police Station and charged.
At the Police Station in the cell he banged his head against the walls of the custody area. Because of his level of intoxication police did not interview him.
All matters arising from that incident were dealt with in the Local Court on 13 September 2005. He was convicted of using offensive language in or near a public place or school. He was fined $400 and ordered to pay costs of $65. He was convicted of stalking the mother with intent to cause fear or physical or mental harm and placed on a bond to be of good behaviour for 3 years, accept supervision by the Probation & Parole Service, and report daily by telephone. He was convicted of assaulting a Police Officer in the execution of his duty and sentenced to imprisonment for 4 months, such sentence to be suspended upon him entering into a bond and being of good behaviour for 4 months. He was convicted on 2 counts of resisting a Police Officer in the execution of the Officer’s duty and on both charges he was sentenced to imprisonment for 4 months, with the sentence suspended on condition he enter into a bond and be of good behaviour for 4 months.
As a result of the incident an Apprehended Violence Order was made on 26 July 2005 by the Local Court restricting the behaviour of the father for the purpose of protecting the mother. The orders restrained the father from any conduct intimidating the mother or any other person having a domestic relationship with her, stalking her, assaulting, molesting, harassing, threatening, or otherwise interfering with her, or entering any premises at which she is residing or working. There was also an order restraining him from approaching, contacting or telephoning the mother except for purposes of arranging contact with the children. The Orders were expressed to extend for a period of 2 years until 26 July 2007.
Generally the parents have not spoken to each other since the incident on 8 July 2005, and messages between them have been conveyed by the grandparents or the children, or their solicitors.
As part of his probation, the father was required to undertake anger management counselling and counselling for abuse of alcohol and use of other drugs. It is not clear when he commenced this, but the counselling was not completed until March 2006.
When the father commenced these proceedings in late March 2006 he had had only a very limited role in the children’s lives. Yet he sought in the application final orders for the children to live with him. That was a proposal that could not be considered a reasonable possibility. It is consistent, though, with an intention to control the mother and by the proceedings prevent her moving.
Similarly he sought and obtained an interim order restraining her from changing the children’s place of residence to a location outside a radius of 20 kilometres of the N Post Office. That would have prevented the mother, for example, moving with the children to …, about 30 minutes drive away, or G, which is closer. Given the limited involvement he had had with the children, that was an unnecessary and unreasonable restraint and was also motivated by his desire for control over the mother..
After the separation the father wanted the mother to reconcile. He did not pay the Child Support for the children as it fell due. But by July 2006 he owed $5,800 in arrears. The evidence establishes that he had the means to pay the Child Support monthly from his income. In answer to the question about why he did not pay the arrears when his sister gave him $30,000 in January 2007, he said, “Then I could not have bought the home” (referring to the house he bought in February 2007). He denied he bought the home to improve his prospects in this hearing. On the balance of probabilities he chose not to pay the child support as it fell due and his failure to pay the child support and failure to pay all the arrears until May 2007 or later (although he had the means) was controlling behaviour directed at the mother.
At about midnight on a night in July 2006, the father was at the L Hotel in N. The father was on the dance floor. Mr D was there and approached the father. Mr D asked the father, “Are you [B Grosby]?” The father replied, “No. My name is [C].” Mr D then punched the father in the face. The father was under the influence of alcohol at the time. He reported the matter to the Police.
In about October 2006, about 7 months after the father completed the anger management course and the drug and alcohol course, he was at a day function, “Jazz at the Vines”, at a vineyard. He had been drinking. He was with a group of people at the side of a bus waiting to get onto the bus to go home. It appears that a man took the father’s sun glasses from off the top of his hat. The father grabbed the man and pushed his head into the side of the bus. There is no evidence about any proceedings arising from the incident.
When asked how many drinks he had had, the father said that he did not recall. He said he had been drinking through the course of the day. He conceded that he had not “cut back” on his drinking that day. He conceded that at the time he was on a bond to be of good behaviour. Although the father at times denied he pushed the man’s head into the side of the bus, that was not his initial response when the proposition was put to him. That response was, “I don’t believe I pushed his head into the bus”. The finding on the balance of probabilities is that he did.
The father’s attendance at the drug and alcohol, and Anger Management Courses was not voluntary. No evidence was given by any counsellor who participated in this process or by any other professional as to the content of either course or the effectiveness for the father of either the anger management counselling or the alcohol and drugs counselling. There is no evidence as to whether the Anger Management Course addressed controlling behaviour and verbal abuse.
There is evidence that the father has been violent in October 2006 and has used controlling behaviour and other abusive behaviour since the course. His affidavits, his cross-examination, the evidence of others and independent records established that the father invariably understates the seriousness of incidents in which he has used control, violence or other abuse against others. This is so, notwithstanding that he has completed an anger management course. It was so in regards to what he told Dr O in interviews for the Family Report and his evidence in the hearing.
There were many situations where his behaviour would have caused any reasonable person to be fearful for his or her safety, but the father rejected out of hand the proposition that he caused the mother to fear for her safety and also rejected the proposition that if she was fearful, those fears were reasonable.
When asked in cross examination, the father agreed that violence is bad for children. When asked why, he replied “something I don’t want them growing up with”. His cross-examination revealed an appalling lack of empathy for the people who were the objects of his controlling, abusing or violent behaviour or witnessed it. He had very little insight.
Similarly, the father in cross-examination testified that “the main reason for the breakdown of the marriage” is Mr C. He did not acknowledge, and appeared to have no appreciation of, the magnitude of his behaviour problems during the cohabitation and how that contributed to the breakdown of the parties’ relationship.
The criminal records produced by the Police Department cover the period up to 15 August 2007 only. Without records to date, the Court does not accept the submission that the father has not been convicted of other offences involving violence or other abuse in the period since 15 August 2007.
The evidence establishes that in recent years the father has told people in N that Mr C is a paedophile, when the father has had no basis for such an allegation. He conceded saying at times to the maternal grandparents that they had “raised a fag for a son and a slut for a daughter”. He threatened to have Mr C “bashed” if he continued the relationship with the mother. He telephoned Mr C’s employer and made complaints about him. He said in the presence of the maternal grandmother that the mother and Mr C “have ruined my life, so I don’t care if I ruin their’s”. He told the maternal grandfather that in late 2004 or early 2005, “The fact that she is with [Mr C], they destroyed my life and I won’t stop till I destroy theirs”. He told the mother on one occasion that it would not worry him that she was seeing someone, but as long as she was seeing Mr C, he would make it “hard” for them.
In cross-examination the father conceded that during the cohabitation, if he went out he “got into fights”. He conceded that at times he promised the mother that he would stop drinking, but he did not.
The mother conceded that she witnessed his violence and aggression only when he was drunk. She conceded that he is “completely different” when sober. She also that when they were together he didn’t threaten or hurt her. Or either child. She conceded the proposition that she didn’t observe him to be abusive of either child and she didn’t expect he would be.
However, the evidence establishes that even when sober, the father used control, threats, put downs, name calling and other verbal abuse in his dealings with others. In cross-examination the mother conceded that the father had not been violent in the presence of the children. However, the evidence establishes that the children were in the home on 8 July 2005 during the father’s loud and obscene language, violence, threats, other abuse and other misbehaviour outside. The evidence also establishes that in the children’s presence he has used abuse other than violence, including threats, other verbal abuse and controlling behaviour towards the mother. The evidence also established that he attempted to rape her in about May 2004 when the children were present.
There is no expert evidence that if any of the father’s past behaviour problems continue, he will not indulge in such behaviour (including violence) in the presence or hearing of the children. There is no evidence of any professional as to any improvement in the father’s use of alcohol or his use of abuse in his dealings with other people. Generally the father does not acknowledge responsibility for much of his abusive behaviour. He minimises it and blames others or alcohol.
The husband has not since July 2005 abstained from alcohol. He continues to use alcohol. He has not voluntarily attended any program to address his alcohol problem. On the balance of probabilities he abused alcohol in October 2006, the day he assaulted a man. On the balance of probabilities he has abused alcohol on other occasions since he was placed on a good behaviour bond and given suspended gaol sentences.
In cross examination, Dr O said that when she interviewed the father in April 2007 “nothing in particular presented as anger / hostility.” But she said he “expressed some displeasure at what had happened.” She described him as “focussed on the children”.
In December, Ms W, who had been the father’s girlfriend since September testified the father “has not displayed any aggressive behaviour in my presence.” She said also that she had worked with him for a year and he had not displayed any such behaviour at work in that time.
There was no evidence of any person who has lived with the father for any period since March 2006 as to their observations of his use or non-use of alcohol or of abusive behaviour towards other people. Nor was there any evidence of any person close to him and supportive of him who has acknowledged the seriousness of his past alcohol use and abusive behaviour and given evidence that he or she has supported him, or will support him, to ensure he does not continue to abuse alcohol or use abusive behaviour in his dealings with others.
In his affidavit of 27 March 2006 the father disclosed hardly any information about his criminal history, and his incidents of violence and other abuse. He did not acknowledge in any serious way his alcohol abuse, reluctance and inadequacies in parenting or behaviour problems.
When interviewed by Dr O he did not make any acknowledgment or real disclosure of his history of such problems. He did not tell Dr O he was given suspended gaol sentences for two of the offences in July 2005.
The father also swore a 7 page affidavit on 2 May 2007. Although the mother had filed affidavits by herself and several other witnesses containing evidence of alleged incidents of the father’s abusive behaviour on numerous occasions, the father did not file any affidavit that addressed those very serious allegations or his behaviour problems generally.
The father did not in his affidavit evidence acknowledge his very serious behaviour problems nor did he testify that he had changed in regard to his alcohol use or his use of abusive behaviour. He did not give any oral evidence in chief or in re-examination acknowledging or accepting ownership of his past bad behaviour and alcohol abuse or testifying as to any change. His only such evidence came in cross-examination and was in all the circumstances very unconvincing.
PAST PARENTING
The mother breastfed B for the first 2 weeks after his birth in December 1999. She took maternity leave for 5 months. She returned to work as a night stacker working from 5.30pm to 11.30pm Monday to Friday.
The father was not prepared for parenting. B was in family day care while the mother was at work, even when the father was not attending paid work. She was responsible for taking him to or from family day care and also responsible for most of his care before and after her work. She did this in addition to cooking for the members of the household, preparing meals, washing clothes, cleaning etc.
The father played Rugby Union. He attended training 2 evenings per week and played on weekends. After a game or training session he often went drinking with mates. For 4 or more evenings per week he was not at home to assist with B’s care. The parties and B, or B and T, did not have family outings or activities, apart from activities with extended family or friends.
When the parties separated in November 2000 for about 6 months the mother had the care of B during that period. When they resumed cohabitation she continued to have the primary role in his care.
When T was born in June 2002 the mother breast fed her for about a month. She took maternity leave after the birth. Indeed, a month after T’s birth the father went to Queensland working. He was away from the children and the mother for 6 months and only returned to N to live with the mother and the children once for period of 2 ½ weeks and another occasion for 3-4 days. After 6 months he resigned his employment and returned to N.
Then the parties moved to the coast south of Newcastle to live with the paternal grandparents because the father had obtained employment with a firm near their home. When they resided with the father’s parents, the mother was confronted with the paternal grandmother’s attitude of not expecting the father to undertake any major role in the parenting of the children. When the mother asked him to do something for the children, the paternal grandmother would often intervene and say to the mother, “I’ll do it. Leave him alone.”, or, “It’s alright, I’ll do it.”
While they were living there, the father would often spend his spare time in his parents’ section of the home using their computer. He often went there and used the computer from after work until he went to bed. On one occasion she asked him to come upstairs and help her prepare the children for bed. He refused and continued to play the computer. His mother told her, “Leave him. I will come and help you”. The mother insisted that he should do it. He still refused. The mother then placed T on his lap at the computer, left and drove around the block. She was extremely angry. When she returned she found the father was still using the computer and the paternal grandmother was caring for T.
The Court accepts the mother’s evidence that after T’s birth, during the cohabitation if she wanted to go shopping, the usual conversation between her and the father was to the following effect:
“Father:Where are you going? Shopping? You’re taking the kids aren’t you?”
Mother:No, they can stay with you half an hour, can’t they?
Father:[B], [T], you’re going to your Nanny’s.”
When he had work, when he arrived home, he would take off his shoes. If the children approached him excitedly, he would say to them, “Get away, I’ve just got home from work”.
In about May 2003 the father was dismissed from his employment and the parties and the children returned to reside in N. The mother obtained work at a shop at N working from 9am to 3pm Monday to Friday. The children went to preschool or day care while the mother was at work, even though the father was not working. The father later returned to full time employment with a former employer. It appears the mother then reverted to working at night from 5.30pm to 11.30pm Monday to Friday. The father subsequently changed his employment and worked 3 days per week, which usually included weekends. He was then not available to assist with the care of the children on weekends either.
From about late 2003 or early 2004 he also obtained part time employment with a community organisation. He was on call and told Dr O that he was called out 2 or 3 times per week. He was not available for the children when he was attending such work. He also used being on call as an excuse to decline to take the children to the doctor or some other event if the mother was unable to do so, or to be responsible for supervising the children if the mother was at work or not available for some other reason.
The Court accepts the mother’s evidence that during the cohabitation the father never cooked any meals for the children or her, never prepared the children’s lunches or ironed their clothes.
On a work day he complained before work if she had not prepared his lunch. He complained bitterly if his work clothes were not ironed. He demanded that his dinner be cooked and clothes ironed and lunch made for the next day, even when the mother was working 5 days per week. If when he rose in the morning for work and discovered that his things had not been prepared, he would swear and slam doors and wake the mother and the children.
He did not assist in any way with cleaning, vacuuming, washing up or similar tasks. On some occasions if the mother was leaving for work and he was staying home for the day, she would ask him to hang out the washing, but when she returned from work, she would discover that he had not done so.
There were arguments about the father’s lack of assistance in the parenting of the children that led to the parents separating in August 2004. The mother and the children took up residence with the maternal grandparents again and the mother had most of the care of the children. The mother asked the father to have the children every second weekend, but he declined and said he was working every weekend.
Over the period of separation from August 2004 to July 2005 the father had the children overnight on only about 2 occasions per month. In an affidavit he alleged that after separation he had them one night per week and his relationship with them was close. At least for the period from separation until July 2005, both these propositions were untrue.
Then in July 2005 the father commenced a full time roster which allowed him to have 2 weekends off work every 4 weeks. The father still refused to have the children for those 2 weekends every 4 weeks. There was a proposal that the father have the children every second weekend, but he declined that offer because he wanted them only 1 weekend in 4 because he worked 2 weekends in every 4, and he said the other weekend was “like a 3 day weekend”, and, “I want that off so I can do things”. He said he wanted one weekend “for myself”. So he had the children for 1 weekend in 4.
Even then, it was agreed that he would return the children at 6pm on the Sunday, but he invariably returned them 2 hours early at 4pm.
However, in that period he also commenced having the children for overnight stays on some week nights.
In March 2006 when the mother and Mr C took the children to Melbourne for 4 days, it coincided with what would have been the children’s weekend with their father. The mother offered the father an additional 2 days of time with the children. The father declined the offer.
It was after that weekend that the mother and Mr C decided that the mother would move with the children to Sydney. The father was informed of this intention. The father after that filed his application. He sought an order for the children to reside with him. He sought interim orders for the children to have contact with him. The contact he sought though was for every second weekend in school terms and half school holidays, which in School terms was less time than they were already spending with him.
Interim orders were made by consent on 31 March 2006. They provided for the children to spend more time with the father than he had sought in his application. They provided for the children to be with the father in each 28 day roster for 1 weekend from Friday afternoon to Sunday afternoon, for a single mid-week day from end of school on the day before a rostered day off, and on other “mid-week days” (when the father was rostered off) from the end of school on the first day to the start of school on the last day. By that time T had commenced preschool 5 days per week. Thereafter he generally had them for on average about 2 overnight stays per week.
In Easter 2006 the father was working and he made arrangements for the paternal grandmother to come and stay with him in order to care for the children.
Some time after April 2006 the father enrolled B in Joey Scouts. The activity takes 1 hour each week and the father has attended and assisted at the activity.
In his affidavit of 2 May 2007 the father has set out extensive detail of his involvement with the children, particularly in the period from January 2007 to April 2007. The level for his involvement and support for the children in that period is wholly inconsistent with what has been his parenting history until he found out the mother’s plans to move from N to Sydney.
Also, from the separation in August 2004 until March 2006 the father was continuously in arrears with the Child Support. Between March 2006 and May 2007, or later in 2007, he paid all of the arrears and he has since paid all of the child support as it falls due.
In October 2007 the father resigned his part time job with the community organisation.
In the week the hearing was concluded in December 2007, the children were to be with the father, but in cross examination he said they were in northern New South Wales. Presumably he had arranged for them to be minded by his mother.
The evidence establishes the father has had very little involvement in the parenting of the children prior to the separation and that situation did not change much in the period between the separation and March 2006. Since March 2006 the father has been much more involved with his children. However, throughout the mother has always provided the large majority of the children’s care and she is the person with whom they have their strongest relationship. They are most dependent upon her for all of their needs.
The submission for the father is that since March 2006 he has demonstrated a new found, but admirable and genuine, commitment to the children and their interests. The submission for the mother is that his primary motivation in such demonstration is not the children’s interests, but his need to achieve revenge and control of the mother and Mr C through these proceedings, forcing the children and the mother to reside in the N District.
In Cross examination Dr O did not recall what route the mother took or upon what route she based her distance calculation and time estimate. The mother has provided specific detail of the route that she travelled. Eventually, Dr O said that she accepted, “I’m probably incorrect”, rather than the mother being wrong. Then she said that her finding that the mother’s estimate was unrealistic did not make any difference to her recommendations in the report.
The inadequacies in the report already discussed above are errors that, apart from anything else, would mean that Dr O’s conclusions and recommendations were defective because of inadequacies in the premises and reasoning processes.
But Dr O was not willing to concede any of the errors apart from the estimate of time for the travel. In cross-examination by counsel for the mother Dr O was very defensive. She was repeatedly evasive and repeatedly volunteered unresponsive material. She was unwilling to concede obvious inadequacies in her report that should have been made by any objective witness. It was lengthy cross-examination with questions having to be repeated because she was not answering. I had to caution her several times about avoiding questions and about the risk of appearing biased.
Of major concern to the Court is that Dr O seemed to have placed in the position where her report was prepared before much of the affidavit material and subpoenaed material was provided and she did not appear to have been able to have access to that material before the hearing. If she had, she would have had time to absorb the material and most of the embarrassment of the cross-examination could probably have been avoided.
Dr O’s assessment of the father as “a committed father who wishes to maintain the relationship he currently has with the children” could not be accepted. The evidence establishes that his commitment prior to March 2006 was very poor and his commitment since then is seriously qualified.
For nearly 6 ½ years prior to March 2006 his parenting role and attitudes to the responsibilities of parenthood were less than adequate and his relationship with the children was marred by a lack of enthusiasm and also his tendency to use abuse in his dealings with other people.
Dr O’s opinion that the father is “a committed father” cannot be relied upon insofar as she has not considered the very real issue of whether the father’s changed approach to parenting demonstrated since the commencement of the proceedings can be regarded as likely to continue, especially because of the contrast with his parenting approach prior to the commencement of the proceedings. There was a very important issue as to whether his change of behaviour in that regard is motivated largely by a desire to exercise control over the mother and prevent her leaving N. Dr O did not give that serious consideration.
Dr O’s findings as to the motivation of the mother and Mr C for moving to Sydney give no real consideration to the father’s history of abuse and violent behaviour and the effect of that on the mother and Mr C. That is because much of the material available to the Court was not available to her when she wrote the report.
The material Dr O relied upon in relation to the father’ use of alcohol (see paragraphs 36, 47, 48, 86 and 87 of Report) do not do justice to the serious problem he has had in that regard.
In terms of the value to the children of the time they spend with their father and their relationship with him, Dr O did not give any serious consideration to the likelihood or risk that the children would with him be exposed to violent or other abusive behaviour. She did not give consideration to the risk to the children of him undermining the mother and her parenting of them by controlling behaviour directed at her. Dr O did not take into account in her report that given the father’s circumstances, some or all of the time the children spent with him could occur in the Sydney district without any need for the children to do all the travel between Sydney and N. She did not seriously question the father about why, if the children moved to Sydney, he could not (or would not) move to be close to them.
Dr O did not accept, as the Court has, that the father’s involvement in the children’s care prior to the separation was minimal and he lacked commitment to them. This is a relevant matter in considering the benefit to the children of a relationship with him now, particularly on the issue of whether he is likely to continue what appears to be his present enthusiasm for parenting.
In all the circumstances the Court did not find Dr O’s opinion that the children’s interests would be best served by them remaining in N, could be relied upon. Nor her opinion as to the children residing with the father if the mother relocates to Sydney and her opinion as to what would be an appropriate time for the children to spend with the father if they reside with the mother.
In the circumstances the Court could not rely upon the recommendations of Dr O.
RELEVANT LAW
The objects of the children’s provisions of the Family Law Act, 1975 (Cth) are set out in Subsection 60B(1) which provides:
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Subsection 60B(2) of the Family Law Act provides:
(2) The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Subsection 60B(3) of the Family Law Act provides:
(3) For the purposes of subparagraph (2)(e), an Aboriginal child’s or Torres Strait Islander child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views; and
(ii) to develop a positive appreciation of that culture.
Section 60CA of the Family Law Act provides:
Child's best interests paramount consideration in making a parenting order
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration
Section 60CC of the Family Law Act provides:
Determining child’s best interests
(1) Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
Primary considerations
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
Additional considerations
(3) Additional considerations are:
(a) 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;
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant;
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j) any family violence involving the child or a member of the child’s family;
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
In U and U (2002) FLC93-112 the High Court was hearing an appeal from a decision of the Full Court of this Court dismissing an appeal by a mother from orders restraining her from changing the child’s place of residence from Wollongong to Mumbai, India. Both the parents were born in India and while the parties were separated the wife and the child lived in India between 1995-1998. The appeal was dismissed. Gummow and Callinan JJ (with whom Gleeson CJ, McHugh and Hayne JJ agreed) delivered the majority judgement. Gaudron and Kirby JJ dissented.
Hayne J, in agreeing with the majority added further comments and said:
175. When one parent (for whatever reason) wishes a child who is, or is to be, resident with that parent to move to a place distant from the other parent, it should not be assumed that that other parent cannot, or should not, contemplate moving to be near the child. There may be (and for all that is known, in this case there was) compelling reason for that other parent (here, the father) not to move, but it would ordinarily be expected that these reasons would be explored in evidence and the validity of any assumption that the other parent will not move would be examined. Just as, in this case, the mother was asked what she would do, if she could not have the child reside with her in India, so too it might have been expected that the father would be asked what he would do, if the mother were to have the child reside with her in India. Such questions should not be treated as mere forensic tests of parental devotion, to which only one answer is seen as being satisfactory proof of being a loving parent. Rather, they are no more than a prelude to a deeper inquiry about where the best interests of the child may lie and what arrangements will best serve those interests.
((2002) FLC93-112 at 89,103)Gaudron J also said:
35. Where, as in the present case, the paramount consideration is the child's best interests, it is not always appropriate that the issues be explored and the evidence revealed strictly in accordance with the adversarial procedures that apply in party-party litigation. That being so, it is noteworthy that in this case there was no consideration of the possibility that the father could return to India permanently to avail himself of frequent and regular contact with his daughter. The failure to explore that possibility, particularly given the father's origins, his professional qualifications and family contacts in India, seems to me to be explicable only on the basis of an assumption, inherently sexist, that a father's choice as to where he lives is beyond challenge in a way that a mother's is not.
((2002) FLC93-112 at 89,081)
In D and SV 30 FamLR 91, the Full Court (Nicholson CJ, Kay and Monteith JJ) decided an appeal where a mother appealed against orders which had the effect of prohibiting her from moving with the parties’ 3 sons from Melbourne to a locality near Geelong. Their Honours referred to dicta of the High court and the Full Court in other decisions. They stated:
It was essential that her Honour give consideration to how the best interests of the children could be advanced in this case. This did not confine her Honour to the competing proposals of the parties. Her Honour needed at least to turn her mind to whether alternate arrangements could be made to those being put forward by each of the parties that would meet all the criteria needed to determine what was best for these children.
((2003) 30FamLR91 at 95)
SUBSECTION 60CC(3) FINDINGS
The findings under subsection 60CC(3) are as follows:
a) Expressed views of the child
The children have expressed to a parent (or a person the child perceives as aligned with that parent in the contest as to where the children will live) enthusiasm about living with that parent or at the location that parent prefers. Those expressed wishes are unreliable as indications of the real wishes of the child and in the context of their exposure to the parental contest are more likely to be motivated by a need to demonstrate loyalty to that parent. Similarly, expressions to the father of disapproval of their activities in Sydney are not reliable. Nor are expressions of enthusiasm about Sydney made to the maternal grandparents.
But from Dr O’s evidence the Court accepts that B likes N and Sydney. He is happy at his school and enjoys his friendships there. He does not like the long car journeys between N and Sydney and he would not like travelling every second weekend. He fears that if he lives in Sydney he will see less of his father and will miss him.
Similarly the Court accepts that T likes school and her friends there. She would like to move to Sydney but knows her father does not want her to. She believes that if she moves she will miss her father.
Because of the age and immaturity of the children, their expressed views do not reflect any careful mature consideration of short and long term implications of the options. They are of limited weight.
b) The child’s relationships
For all of their lives the mother has provided most of their care. On the evidence she has always been their primary attachment.
The father’s involvement with them was on a much lesser level until about March 2006 and since then has been more than previously, but still a minor role compared to the mother’s.
The children’s next most important relationships are with each other, the maternal grandparents and Mr C.
On a lesser level are the children’s relationships with the paternal grandmother and baby E.
The children enjoy all the relationships. They are all positive and beneficial relationships subject only to the negative aspect of their relationship with the father constituted by his use of violence, control and other abuse in his dealings with others.
c)Willingness and ability of each parent to facilitate and encourage a close and continuing relationship between the child and the other parent
Subsection 60CC(4) provides:
4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
Until March 2006 the mother was more enthusiastic than the father about his participation in the children’s lives. He has shown more enthusiasm since then. But the Court accepts that his commitment is not genuine and is largely motivated by his wish to have revenge on the mother and Mr C by controlling the children and the mother through these proceedings.
His proposal in the orders sought by him until May 2007 did not recognise the significance to the children of their relationship with their mother, their need to be with her, and their interests in continuing that relationship.
d) Likely effect of any changes including any separation
If the children move to Sydney, they will suffer adverse consequences in terms of less time and less frequent time with the father. For example, if he sees them only each second weekend in school terms, that will average 2 days per fortnight instead of the current average of 4. They would miss him because for about the last 2 years they have been spending more time with him than that.
But those findings must be qualified because of the findings as to his motivation and qualified commitment to the children’s best interests. If the children and the mother continue to live in N, he will have achieved control of them. There is a very real risk that he will not then continue to see them as often as he has since March 2006 and will revert to the poor level of involvement he had before March 2006.
There are also positive effects of such a change:
a)the distance between the father in N and the mother and Mr C is likely to limit opportunities for the father to subject the mother, Mr C and the children to abuse (including control) and limit the opportunities for the father to expose the children to abuse by him of others; and
b)if the children (and the mother) are forced to remain in N, the mother and Mr C will be very unhappy. She and Mr C will be separated, at least for the short term and incur rental for 2 properties. Their capacity for financial support of the children will be reduced. If he obtains another job closer to N, it is likely to be for a lesser remuneration. It may involve leaving his present employer and the job satisfaction, and financial, promotional and educational opportunities he currently has.
A move to Sydney will also subject the children to disruption by way of change of school, change of extracurricular activities and separation from friends and other people they associate with in N. The time they spend with the father in N would still enable them to continue spending time with the extended paternal family. It would still be open to the mother to facilitate the children’s time and relationships with the maternal grandparents.
e)Difficulty and expense of spending time with and communicating with a parent and whether they will substantially affect the right to maintain personal relations and direct contact on a regular basis
This has already been discussed. If the children move to Sydney and the father stays in the Hunter Valley area, distance and the father’s roster could prevent the children spending as much time with the father in school terms and disadvantage them if more time with him were otherwise in their interests.
f)Capacity of each parent and any other person to provide for the child’s needs
The mother is more child focussed and committed to the children. She is more likely to give priority to the children’s interests than is the father.
The father has never undertaken the role of primary carer for the children. He has always given priority to his commitments to paid work. He has also given priority to his wish to remain in the Hunter Valley area, even if the children move to Sydney, and has not proposed or investigated what he might do in such a situation to spend more time with the children and to reduce the travel burden on them.
The father has exposed the children to the parental conflict. By questioning B about the mother, Mr C, and events in the mother’s home, and by disparaging remarks to the children about the mother and Mr C, he has involved the children in the conflict. He has given priority to the adult conflict over the children’s needs to be protected from exposure to it.
The father’s improved parenting capacity demonstrated since March 2006 is mainly motivated by his desire for revenge and control; not the interests of the children.
g) Maturity, sex, lifestyle and background of the child and of either parent, and any other characteristics of the child
The children have enjoyed growing up in a rural town with numerous members of their extended family.
They are young children who are less established in their school and likely to have less difficulty then older children, if they change school.
As a male child, B has a need for a close relationship with a suitable adult male role model. Because of his use of abuse in his dealings with others the father is not a suitable role model (this is discussed later). Mr C is suitable.
Attitude to the child and the responsibilities of parenthood
Subsection 60CC(4) provides:
4) Without limiting paragraphs (3)(c) and (i), the court must consider the extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a) has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child; and
(b) has facilitated, or failed to facilitate, the other parent:
(i) participating in making decisions about major long‑term issues in relation to the child; and
(ii) spending time with the child; and
(iii) communicating with the child; and
(c) has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
(4A) If the child’s parents have separated, the court must, in applying subsection (4), have regard, in particular, to events that have happened, and circumstances that have existed, since the separation occurred.
The father’s attitudes to the responsibility of parenting were totally inadequate until March 2006 and in some respects have continued to be so. He gives priority to his own needs over those of the children.
The mother’s proposal to move to Sydney is a reasonable one, when one takes into account the husband’s behaviour problems and the risk he poses to her, Mr C and the children. Overall, her proposal is not about giving priority to the needs of her and Mr C over those of the children. The children’s interests will be better served if they move to Sydney.
j) Any family violence
Abusive behaviour is not an attribute of a particular victim or a particular relationship. Abuse is an attribute of the perpetrator. It is a fact that some people use abuse in dealing with others, but most do not.
Children who spend time with an adult who uses abuse in his or her dealings with others are at an obvious risk of physical injury. Children, (some would say especially at certain stages such as “the terrible two’s” and adolescence) can test an adult carer’s patience as much as any argumentative or aggressive adult.
But spending time with an abusive adult involves other risks to children. One of those is the risk of psychological harm. Children can as a result of experiencing abuse or witnessing abuse of loved ones, suffer insecurity, apprehension, unhappiness, anxiety, fear, hypervigilence and terror.
Verbal abuse and put downs can especially diminish a child’s self esteem and self confidence, and that can cause long term damage. Generally, experiencing or witnessing abuse inhibits a child’s emotional development.
The worst danger that an abusive parent or carer presents to a child, however, is as a role model. The child can learn to use abuse in dealings with others, including those they love. It is a social disability that can destroy the most intimate relationships and bring the child into conflict with relatives, friends, other people they socialise with, the police and the law.
The role model of an abusive parent or carer puts a child at risk of adopting the role of an abuser or the role of an accommodating victim of abuse when they partner. Either way, it is a long term damaging legacy from the perpetrator.
The father’s use of abusive behaviour is a danger to both the children in several ways:
· Undermining the mother and Mr C by control, threats, intimidation, put downs, verbal abuse or physical violence and thereby impairing their parenting capacity;
· Exposing the children to his abuse of others; and
· Subjecting the children to abuse themselves.
k)Any family violence order that applies to a child or a member of the child’s family
There is no current order.
l)Whether it is preferable to make the order that would be least likely to lead to the initiation of further proceedings in relation to the child
The father’s controlling nature makes further proceedings likely in relation to the children, whether the children live in N or Sydney.
PRIMARY CONSIDERATIONS
The findings as to primary considerations under Subsection 60CC(2) are:
a)The benefit to the child of having a meaningful relationship with both of the child’s parents
The children will continue to have considerable benefits from their relationship with the mother. The benefits they would enjoy of an ongoing relationship with the father are qualified, particularly because of the danger his use of abusive behaviour is for the children and his lack of genuine commitment to them..
b) The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
This is the critical factor in the proceedings. It dictates that the children should not live with the father and their interests are better served if they live some distance from him and do not have weekly time with him.
PARENTAL RESPONSIBILITY
There is an issue as to parental responsibility.
Section 61DA of the Act provides:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
The mother seeks orders for each parent to have responsibility for day to day care of the children when they are in his or her care and otherwise the parties have “joint” parental responsibility. The father does not seek any order regarding parental responsibility. Under Section 61C each parent presently has parental responsibility for the children.
Because of the father’s controlling and other abusive behaviour it is not in the children’s interests that both parents have or share any parental responsibility. That would provide repeated opportunities for the father to seek to exercise control over the mother at the children’s expense.
The children’s interests require that there be orders for each parent to have responsibility for day to day decisions about the children when they are in his or her care and otherwise the mother to have sole parental responsibility.
OTHER CONCLUSIONS
The children should reside with the mother because she is their primary attachment, she has provided most of their care all their lives, she has a proven adequate parenting capacity when the father does not, she is likely to give more priority to the children’s needs and their interests, she has more insight into their needs particularly their emotional needs, she has better attitudes to the children and the responsibilities of parenting and the father is a person who uses abuse in his dealings with others. Also, the mother is more committed to the children.
Also it is contrary to the children’s interests for the father to be able to use the proceedings as a method of control over the mother and Mr C as it will encourage him to continue to seek to exert control over them.
The children’s interests are better served if the children and the mother are able to relocate to Sydney because:
· There will be fewer opportunities for the father to subject the mother and Mr C to control and other abuse;
· There is less likely to be an undermining of the mother as a person and in her role as the children’s mother and primary carer;
· There will be fewer opportunities for the father to expose or subject the children to his use of control, violence and other abuse;
· The father has a background of alcohol abuse and there is no evidence to establish that he has overcome it. On the contrary, he assaulted a man in October 2006 when he had been abusing alcohol; and,
· She is more likely to facilitate the children’s time and relationship with the other parent and more likely to protect the children from exposure to conflict between the father on the one hand and the mother or Mr C on the other.
The children’s interests are best served if their time with their father is half each school vacation and each second weekend in school terms. His use of abuse requires that for the children’s sake it be no more extensive.
It is contrary to the children’s interests for all their time with the father to occur in N thereby requiring the children to travel from Sydney to N to spend time with the father on every occasion i.e. about 24 return journeys per annum.
The father is a single man with no other children. He has 6 weeks annual leave and 14 days off work in every 28 day roster, including every second weekend. He is able to travel to Sydney to spend time with the children.
It is desirable for the children that the parents share the responsibility for transport to implement the children’s time with the father. The children’s interests are best served by:
· Spending time with the father for half each school vacation;
· Spending time with him for 5 weekends each school term (each second weekend);
· Having the school holiday time and 3 weekends per school term with the father in the N district; and
· Having 2 weekends per school term with the father in the Sydney area (i.e. the father doing the N/Sydney travel instead of them.)
The weekend periods are compatible with the father having a roster in school terms with every second weekend available. It may be necessary to sometimes do a swap with a fellow worker in order to have his free weekends coincide with the weekends he is to spend with the children.
The children’s interests are best served if:
· The weekends to be spent in the Sydney area are implemented by the father collecting the children from the mother’s residence at the start of the period and returning them there at the end of the period;
· The other weekend periods to be implemented by the father collecting the children from the home of the maternal grandparents in N at the start of the period and returning them there at the end of the period and the mother being responsible for their travel to and from N; and,
· The school holiday contact being implemented by the mother being responsible for delivery of the children to her parents’ home in N and the father being responsible for collecting them from there at the start of the period and returning them to outside the mother’s residence at D in Sydney at the end of the period.
It would be contrary to the children’s interests to have change-overs at a roadside café or service station because of the risk that the father might be abusive of the mother, Mr C or one of the maternal grandparents, or one of the parties might be delayed by traffic or other events and cause inconvenience to the other. It is also desirable that the father not have interactions with the mother or Mr C when he collects or returns the children.
Given the issues about the father’s commitment to the children there is a real risk he will not undertake travel to Sydney to spend time with the children there. Accordingly those weekends should be subject to him giving the wife written notice that he will facilitate the period.
The children’s interests require that there be a pattern of telephone communication with the “other” parent (other than on weekend periods with the father or the first or last day of any school holiday period with him) between 7pm and 7.15pm each Sunday. There should be orders to facilitate that.
It is in the children’s interests that there be an order requiring each parent to notify the other of any major health issue concerning either child.
It is also in their interests to make the consent orders proposed by the parties concerning passports and international travel.
______________________________
The Hon Justice Mullane
Date: 25 June 2008
Key Legal Topics
Areas of Law
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Family Law
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