Hadcraft and Hadcraft
[2020] FCCA 836
•16 April 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HADCRAFT & HADCRAFT | [2020] FCCA 836 |
| Catchwords: FAMILY LAW – Parenting – Whether the mother has committed family violence– whether the mother has unduly influenced the children’s relationship with the father - whether the father has committed family violence – whether the father’s alcohol consumption is in excess to effect his ability to parent – whether the current arrangement will lead to the children having no relationship with their father - whether there should be a change of residence and a 90 day moratorium should be implemented. |
| Legislation: Family Law Act 1975 (Cth), ss.4, 4AB, 60B, 60CA, 60CC, 61DA, 65 DAA Evidence Act 1995 (Cth) s.140 |
| Cases cited: Amador & Amador [2009] FamCAFC 196 Blinko & Blinko [2015] FamCAFC 146 |
| Applicant: | MS HADCRAFT |
| Respondent: | MR HADCRAFT |
| File Number: | BRC 2275 of 2018 |
| Judgment of: | Judge Middleton |
| Hearing dates: | 26 & 27 August 2019 and 22 & 23 & 24 January 2020 |
| Date of Last Submission: | 19 February 2020 |
| Delivered at: | Brisbane |
| Delivered on: | 16 April 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Nielson |
| Solicitors for the Applicant: | Callaghan Legal |
| Counsel for the Respondent: | Ms McLennan |
| Solicitors for the Respondent | Hardings Gulhane Solicitors |
| Counsel for the Independent Children’s Lawyer | Ms Pendergast |
| Solicitors for the Independent Children’s Lawyer | Legal Aid Queensland |
ORDERS
That all previous orders and parenting plans be discharged.
That the father Mr Hadcraft (the father) have sole parental responsibility for the major long-term issues for the children X born in 2005 and Y born in 2007 (the children).
That the children live with the father.
For the purposes of facilitating the changeover from the mothers to the father’s care-:
(a)The mother will deliver the children to the father at 3.00pm on the day these orders are made AND in the event the children are not delivered at 3.00pm in accordance with these orders a recovery order will be made immediately upon the father or his lawyer notifying chambers in writing
(b)The mother is restrained from collecting the children from school, or causing anyone on her behalf to do so, except as permitted by these orders;
(c)The father’s legal representatives will cause a copy of these orders to be emailed forthwith to the children’s school.
That the father will contact child dispute services, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane by no later than 10.00am on Friday 17 April 2020 to arrange for a family consultant to explain these orders to the children via whatsoever means the senior family consultant child dispute services deems appropriate having regard to the current COVID 19 pandemic. The family consultant has liberty to inspect the court file and in particular these orders and these reasons for judgement.
That Ms Hadcraft (the mother) will have no time or communication with the children for a period of 3 months from the date of this order (the moratorium).
That the father and the mother will do all things necessary to ensure that the children have no time or communicate with their older siblings, Ms B and Ms C during the moratorium.
The father will do all things reasonably necessary to arrange for the children, the father and mother to engage with the Family Bridges program.
The cost of the family bridges program will be shared equally by the mother and father.
The mother will do all things reasonably necessary to attend upon Ms D for the purpose of engaging in therapeutic counselling to assist her in identifying behaviours that are detrimental to the children and learning strategies to ensure that those behaviours do not continue into the future.
That the mother and father have liberty to provide the following documents to any mental health practitioner or therapist that they may consult for the benefit of the children:
(a)Affidavit of Ms E filed 7 September 2018;
(b)Family report of Ms E dated 3 June 2019;
(c)Affidavit of Dr F filed 8 February 2019;
(d)Affidavit of Dr G filed 7 August 2019.
During the moratorium the father will provide the mother with a weekly written update about the children and their activities via email as recommended by the Family Bridges program.
At the conclusion of the moratorium the children will be reintroduced to the mother and their siblings and spend time with and communicate with them as recommended by the coordinator of the Family Bridges program Mr H.
In the event the family bridges program can no longer be utilised after a period of 3 months then the father will do all things reasonably necessary to cause the children to attend upon Ms J from K Pty Ltd (the therapist), and if Ms J is unavailable, such other therapeutic services as may be determined by the father, for the purpose of preparing the mother and the children for the reintroduction of the children’s time and communication with the mother and their siblings.
Upon the successful completion of the reintroduction of the children to the mother and siblings the children will spend time with the mother as follows:
(a)For a period of 2 months, from 9:00am until 5:00pm each Sunday;
(b)Thereafter, for a period of 2 months, each alternate weekend from after school Friday until the commencement of school on Monday;
(c)Thereafter, each alternate weekend during school terms from after school Thursday, or 3:00pm if not a school day, to commencement of school Monday, or 9:00am if not a school day; and
(d)For the first half of the children’s school holidays in even-numbered years in the second half in odd-numbered years and
(i)When a parent’s time falls in the first half of the holidays, from after school on the day the school term finishes and conclude at 5:00pm on the date calculated to be half of the holidays;
(ii)When a parent’s time falls in the second half of the holidays, from 5:00pm on the date calculated to represent half of the holidays when spending time shall end at 9:00am on the day the school term recommences;
(iii)School holidays shall be deemed to commence at close of school on the day the school term finishes and conclude at 9:00am on the day the children returned to school and the number of nights in each school holiday period is to be used to calculate one half of the school holiday period and if there is an uneven number of nights the mother shall retain the additional night
(e)The mother and the father will arrange weekend time when necessary to ensure that the children spend the weekend upon which Father’s Day falls with the father and the weekend upon which Mother’s Day falls with the mother;
(f)After the conclusion of the moratorium and the mother has been successfully reintroduced to the children the children will have telephone, email and text communication with the parent they are not spending time with at all reasonable times as they may request, but including telephone communication at 6:00pm each Wednesday on each child’s birthday, with the parent they are spending time with to initiate the call.
The father will, within 7 days of the date of these orders provide the children’s school and their sports coaches with copies of the following documents in order that children’s teachers and coaches are informed about the changes taking place in the children’s lives, and in order that they may offer the children such support as they deem appropriate during the process:
(a)These orders,
(b)The reasons for judgement
Changeover shall occur whenever possible at school but otherwise at the McDonald’s family restaurant nearest the home of the parent receiving the children
Neither parent will denigrate the other or their family to, or in front of, or within the hearing of, the children and shall direct third parties to refrain from denigrating either party or their family to, or in front of, or within hearing of, the children, and failing their compliance with such a direction to remove the children from that environment immediately
During the time the children are with either parent that parent shall:
(a)Respect the privacy of the other parent not question the children about personal life of the other parent; and
(b)Speak of the other parent respectfully.
the parties shall keep each other informed of the children’s doctors, health care and other treatment providers and authorise those practitioners to provide the other parent with information that they are lawfully able to provide about the children and this order shall serve as such authority (once the moratorium is over)
Each parent shall inform the other parent as soon as reasonably practicable of any medical condition, significant health issue or significant illness suffered by the children and authorise any treating medical practitioner to release the children’s medical information to the other parent.
The parties shall keep the other informed of any school, educational facility or extracurricular activity provider and authorise those providers to provide the other parent with information that they are lawfully able to provide about the children and the option to purchase for photographs, and this order shall serve such authority.
If there is a cost associated with the provision of any information or document under these orders from the children’s doctors, health care and other treatment providers or school, educational facility or extracurricular activity provider expense shall be borne by the parent requesting information.
Each parent shall keep the other parent informed at all times of the contact mobile number and email address.
Subject to the conditions imposed upon by the children’s schools/extracurricular activity providers, and in the mother’s case, after the moratorium period and the therapy pursuant to these orders, these orders authorise both parents to attend school functions and extracurricular activities which parents ordinarily attend, including but not limited to carnivals, sports days, fêtes, concerts, plays and parent/interviews.
IT IS NOTED that publication of this judgment under the pseudonym Hadcraft & Hadcraft is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 2275 of 2018
| MS HADCRAFT |
Applicant
And
| MR HADCRAFT |
Respondent
REASONS FOR JUDGMENT
BACKGROUND
This is an application brought by the mother concerning parenting arrangements for X born in 2005 (14) and Y born in 2007 (12).
The mother and father were married in 1985, separated under the same roof in December 2015 and on 24 July 2017 the mother moved out of the former matrimonial home.
On 13 February 2018 a protection order was made in favour of the mother for a period of 5 years expiring on 13 February 2023. The order was made by consent and names the children is protected persons.
The mother is aged 53 and the father is age 55 and since separation the children have lived predominantly with their mother.
There are two adult children of the relationship, Ms B born in 1990 (Ms B) and Ms C born in 1994 (Ms C). Both of the adult children provided affidavits in support of the mother and were cross-examined.
Prior to separation the parties worked from home, the mother is a professional and the father in his own business. The parties shared the care of the children and family duties relating to the children.
Once the mother had left the former matrimonial home the children initially spent time with their father on alternate weekends. This continued for approximately 2 months.
On 6 September 2017 the mother caused her solicitor’s to write to the father and suggest that the children spend time with the father between 9:00AM and 5:00PM Saturday and Sunday each alternate weekend. The children spent time with their father in this arrangement from 16 September 2017.
In July 2018 the father advised the mother that he could not spend time with the children on his usual weekend as he was going to be on an overseas holiday.
The father alleges that the mother thereafter stopped the children spending time with their father because she was upset that he had travelled overseas with a new girlfriend.
The mother alleges that the children were reluctant to spend time with the father from approximately Christmas of 2017 and that when the father did not see them for two weekends in a row she could not convince them to see their father again.
As will be seen the overseas holiday that the father enjoyed was the catalyst for the ongoing harm that the children have suffered.
The father alleges that the mother has influenced the children against spending time with him and that as a result the relationship he now has with the children is very strained and the only way that relationship could be repaired is if the children live with him and there is a moratorium in place preventing the children from spending time with and communicating with the mother and their adult siblings for three months before they are reintroduced to their mother and adult siblings with the benefit of therapeutic counselling.
The mother alleges that the children have experienced abuse, violence and the father’s excessive drinking over many years, indeed dating back to the 1990s before the children subject to this application were born, and as a result they are frightened to spend time with the father.
THE ISSUES
The issues for determination are as follows:
a)Whether the mother has unduly influenced the children resulting in the children having a fractured relationship with their father;
b)Whether the father has engaged in family violence and excessive alcohol consumption over a long period of time which has caused the children to be fearful of him;
c)Parental responsibility;
d)With whom the children should live;
e)How much time the children should spend with the non-resident parent;
f)Whether there is a need for a moratorium;
g)In the event a moratorium is ordered how should the children be reintroduced to their mother and adult siblings; and
THE MATERIAL
The mother relied upon a case outline filed on 21 August 2019 and on page 11 at paragraph C lists the material she proffered as evidence.
The father relied upon his case outline filed on 21 August 2019 and on page 4 at paragraph C lists the material he proffered as evidence.
The Independent Children’s Lawyer (ICL) relied upon her case outline filed on 19 August 2019 and on page 6 at paragraph D lists the documents she wished to rely upon.
During the course of the trial there were 20 exhibits tendered into evidence.
The trial was heard on 26 and 27 August 2019, 22, 23 and 24 January 2020.
THE ORDERS SOUGHT
At the commencement of the trial the mother sought orders as set out in her case outline. Those orders provided for the children to live with the mother and spend supervised time with the father for a period of 4 hours between 10:00AM and 2:00PM each alternate Saturday.
In the mother’s written submissions filed after the close of proceedings on 12 February 2020 the mother’s position had changed. In those orders the mother seeks that the children live with her and spend time with the father each Sunday from 9:00AM until 5:00PM and at all other times as may be arranged between the mother and father without the need for supervision.
The mother sought an order for equal shared parental responsibility both at the commencement of the trial and at the close of proceedings.
The orders the father sought remained consistent from the commencement of the trial until the conclusion of the trial. In short the father sought an order for sole parental responsibility, that the children live with him, that there be a moratorium for a period of three months from the date of the order preventing the children from communicating with the mother and that the children thereafter be reintroduced to the mother with the assistance of a therapeutic counsellor. Furthermore the father sought an order that the children and he attended upon the Family Bridges program during the moratorium.
The final set of orders sought by the father can be found at exhibit B to the father’s written submissions filed on 12 February 2020.
The orders proposed by the ICL are found at page 11 of the written submissions filed on 13 February 2020.
Those orders proposed that the children live with the father, that he have sole parental responsibility for the children, that there be a three month moratorium during which the children be prevented from spending time with and communicating with the mother and the two adult siblings and that the children and father attend upon a provider of the Family Bridges program.
THE LAW
As this is a parenting application Part VII of the Family Law Act 1975(Cth) (“the Act”) applies. It is the children’s best interests that is my paramount consideration.[1]
[1] Family Law Act 1975 (Cth) s 60CA.
Informed by the provisions of section 60B of the Act I must make orders that are in the best interests of the children.
In determining what is in the best interests of the children I must consider the matters set out in subsections (2) and (3) of section 60CC.
The parents are in dispute with regards to parental responsibility and in those circumstances I must consider the provisions of section 61DA of the Act.
In the event that I make an order for equal shared parental responsibility the provisions of section 65DAA are thereby triggered. In the event I make an order for sole parental responsibility section 65DAA is not triggered and I may make such parenting order as I think proper.[2]
[2] Ibid s 65D(1).
Both parents allege that the other is an unacceptable risk to the children as a result of exposing them to family violence.
Family violence is defined in section 4AB of the Act and it means “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful.”
Examples of family violence are found at section 4AB(2) and include, relevantly, intentionally causing death or injury to an animal, an assault, and preventing the family member from making or keeping connections with his or her family, friends or culture.
The mother alleges that the father has committed assaults upon the children and has caused injury to family pets.
The father alleges that the mother is preventing the children from keeping connections with their family, namely the father and paternal side of the family.
With respect to allegations of assault and harm to family pets it is important to remember that a party need not complain to relevant authorities or prove medical examinations in order to satisfy a court that there was family violence.[3]
[3] Amador & Amador [2009] FamCAFC 196.
The allegations raised by both parents are serious and the consequences of a finding in support of those allegations are significant. Both parents seek to limit the children’s time with the other parent and the benefit of the children spending time with both parents post separation provided it is safe to do so cannot be understated.
In the full court decision of in K v B [1994] FamCA 171 Justice Kay commented on the importance of children maintaining an ongoing relationship with both parents where she said:
“Much of the psychological literature and research claims that it is almost impossible to overstate the importance to the child of the maintenance of an on-going relationship with their non-custodial parent; Wallerstein and Kelly (Surviving The Breakup: How Children and Parents Cope With Divorce New York, 1980); Hess and Camara (``Post-Divorce Family Relationships as Mediating Factors in the Consequences of Divorce for Children'' (1979) 35(4) Journal of Social Issues 79); Weisman (``On Access After Parental Separation'' 36 RFL (3d) 35, 1992); Maidment (Child Custody and Divorce London, 1984); Kalter (Growing Up With Divorce: Helping Your Child Avoid Immediate and Late Emotional Problems New York, 1990). The major study by Wallerstein and Kelly demonstrates how access can offset helplessness often felt by children during divorce. Access is also a major contributing factor in the mental well-being of the child as children generally view the loss of contact with their parent as an abandonment; Wallerstein and Kelly (1980); Kalter (1990). There is a clear connection between denial of access and anger, unhappiness, depression, low self-esteem and poor academic performance in children who are deprived the company of their non-custodial parent; Wallerstein and Kelly (1980).
Other research indicates that a child learns what it is to be an adult of their gender through contact with their parent of the same sex; Hodges (Intervention for Children of Divorce; Custody, Access, and Psychotherapy New York, 1986). Furthermore, research points to children's concept of ``self'' as dependent partly on their understanding of who their parents are; Hodges (1986); Maidment (1984).
In a recent Australian study by Margaret McDonald (Children's Perception of Access and their Adjustment in the Post-Separation Period (Research Report No. 9) Family Court of Australia, Office of the Chief Executive, 1990) it was concluded that the overwhelming majority of children enjoyed access times and indicated their strong desire to visit the non-custodial parent and to maintain a close relationship with them.”
The High Court in M & M (1988) FLC 91-979 said this at 77,080:
“In deciding what order it should make the Court will give very great weight to the importance of maintaining parental ties, not so much because parents have a right to custody or access, but because it is prima facie in a child's interests to maintain the filial relationship with both parents...''
Of course since those decisions section 60B has been inserted into the Act which gives further significance to the importance for children to have the benefit of a meaningful relationship with both of their parents to the maximum extent consistent with their best interests.
I am of the view that a meaningful relationship with both parents is a fundamental right for children and is the cornerstone of well-balanced psychological development in children.
Abuse is defined in section 4 of the Act and includes, relevantly “causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subject to, or exposed to, family violence.”
Justice Kay also made comment about abuse in K v B where she said:
“Sexual abuse is insidious. Its effects are far-reaching. Violence in the home can be equally insidious. Psychological or emotional abuse can have equally deleterious effects. Our society accepts a plurality of conduct and a plurality of attitude. It does its best to ensure the existence of certain minimal standards, and consistent with the maintenance of a relationship between parent and child, to ensure that parents do meet those minimum standards”.
I concur with Justice Kay I too am of the view that all forms of abuse are insidious and can cause serious and significant harm to children that has the potential to affect their entire lives.
In my view where a finding is made that the children are being exposed to family violence and or abuse there needs to be a circuit breaker in the form of an order that will prevent ongoing significant harm to children if the evidence shows that the perpetrator has very limited or no insight into their own behaviours.
It follows from the discussion above that depriving the children from one parent is an extremely serious step to take and one which must only be made where there is a finding of unacceptable risk.
The standard of proof in civil proceedings is proof on the balance of probabilities. It has been held that the more serious the allegation the greater degree of certainty required in relation to making a finding.[4]
[4] Amador & Amador [2009] FamCAFC 196, Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66 and see s. 140 of the Evidence Act 1995 (Cth).
In distilling those principles I am of the view that I must only make the orders that either parent seeks if I am satisfied that there is an unacceptable risk of harm to the children and in deciding that I must bear in mind the gravity of the allegations and the serious consequences that flow from such a finding.
I mention serious consequences because both parties seek an order that severely restricts the time the children will be spending with the other parent. Furthermore I must apply the authority as set out in Blinko & Blinko [2015] FamCAFC 146 where the full court affirmed the following statement of principle:
“If a Court is satisfied that a parent represents an unacceptable risk of harm to a child, then unless that risk is able to be sufficiently managed or ameliorated by, for instance, supervision of any time or communication between the parent and the child, the best interests of the child may require an order prohibiting that parent from spending time or communicating with the child..”
It is important also to note that the father seeks a moratorium and that I should only order a moratorium to ameliorate the risk of harm to the children.[5]
DISCUSSION
[5] Goldman & Goldman [2018] FamCAFC 65.
Primary considerations
It is generally accepted the children will benefit from having a meaningful relationship with both parents. Indeed there is a legislative intent that children have a meaningful relationship with both parents provided it is safe to do so.
It is an agreed fact that these children have the benefit of both of the parents being involved in every aspect of their day-to-day life up until July 2017.
No evidence was offered to support the notion that the children had a difficult relationship with their father prior to July 2017. Indeed the evidence supports a finding that until the mother left the former matrimonial home she was more than happy for the children to spend time with their father without any suggestion that they needed to be protected from him.
The evidence in its entirety supports a finding that the children have an extremely close bond with their mother. The evidence also supports a finding that the mother has exposed the children to aspects of the parental conflict.
The children currently have a very strained relationship with their father. He accepts that they are currently unwilling to spend time with him however he says this unwillingness has been brought about by the mother’s influence on them.
I must weigh the evidence as at the date of the hearing and determine how if it is in the children’s best interests orders can be framed to ensure those children have a meaningful relationship with both parents.[6]
[6] McCall & Clark [2009] FamCAFC 92 para 11(c) “”the prospective approach”.
Whilst evidence of the present relationship between the children is relevant[7] if I were to exclusively apply what the full court called “the present relationship approach”[8] it would limit the opportunity to make appropriate orders where, as in this case, a significant relationship has changed.
[7] Family Law Act1975 (Cth) s 60CC(3)(d).
[8] McCall & Clark [2009] FamCAFC 92 para 11(c)
In the circumstances of this case and having regard to the evidence which will be discussed further, I am satisfied that greater emphasis must be placed on the children’s relationship with their father prior to July 2017.
I am satisfied for the reasons that follow that the children will benefit from having a meaningful relationship with both of their parents and that in order to achieve that end result a serious step must be taken.
Of course when considering the matters in section 60CC(2) I must give greater weight to the consideration set out in subparagraph (2)(b). (s.60CC(2A).
Family Violence committed by the father?
In the mother’s trial affidavit filed on 15 July 2019 at paragraphs 24 to 27 under the heading “domestic abuse in the home” the mother sets out her allegations relating to the father’s alleged abuse.
The mother says that the father was drinking heavily in the latter part of the marriage and that this resulted in family violence erupting in the home on a regular basis. She says that none of the family violence was reported to the police nor did she feel comfortable in confiding with friends or colleagues.
The mother says in order to protect herself from that violence she would go into her bedroom and that from time to time the children would join her in there.
The mother sets out two incidents of alleged family violence which she says occurred. The first on 17 April 2017 where the father allegedly yelled at Y and threw a remote control at his head and the second occurring on 20 May 2017 where the mother alleged that the father yelled at X and threw her nail polish in the kitchen sink smashing it.
That is the extent of the family violence alleged in the mother’s trial affidavit. It is important to note at this juncture that there was no evidence provided concerning acts of family violence alleged to have been committed upon the adult children when they were younger. Indeed it is the case that when those children were young the father was the stay-at-home parent and the mother worked full-time.
In the mother’s affidavit filed 12 August 2019 the mother does not provide any detail in relation to the long-standing abuse she alleges occurred within the family.
The mother does however state that the children stopped seeing their father after she found out that the father did not see the children on two occasions because he had travelled overseas with his new girlfriend. The mother continues at paragraph 8 of that affidavit saying “I do not have an issue with him moving on but I found it very distasteful that he would put this ahead of spending time with his children and that he would not be truthful with the children.”
This is important because when the two adult children gave evidence they too complained of the father going on an overseas holiday with his girlfriend and not being truthful with the children. With regards to how the father was not being truthful the adult children explained that he was not being truthful because he had told the two younger children that they were the most important people to him where in fact he put his overseas holiday with his new girlfriend ahead of spending time with them.
As time went on the mother’s allegations of family violence increased exponentially. Throughout the mother’s oral testimony it was clear that the mother had fixed views in relation to the father that he is and was always abusive.
During the interview with Ms E (the report writer) the mother informed the report writer that the children returned from spending time with the father in tears because of his “anger and abuse and their fear”. The family consultant said the mother gave no examples.[9]
[9] paragraph 19 of the affidavit filed 7 September 2018.
The mother reported to the report writer that the father drank between eight to ten beers on a daily basis for many years including when the adult children were young. The mother reported that the father would threaten to smash iPads in front of the children. She said the children took to locking themselves in the spare room with a small television for entertainment to avoid the father’s abuse. She claimed the father would hit them and yell at them. Again the mother offered no specifics in relation to those claims.
The mother reported to the report writer that the father was physically abusive towards her and again gave no specific example of physical violence but generalised saying “he would push us into walls.”
The mother continued by reporting that the father had been abusive towards friends of X including one of their fathers. The mother called no evidence from any person alleged to have been abused by the father in X’s friend group.
The report writer in the second report dated 3 June 2019 at paragraph 42 sets out that the mother was invited by the report writer to ask her any questions concerning family violence due to her remarks about the lack of specifics given in the initial family report and that the mother was encouraged to explain her experience further or give some examples.
The mother was unable to give any specifics but added that there was sexual abuse and that it occurred behind closed doors.
During the mother’s interview with Dr G when asked why the children were not spending time with their father the mother explained that the children were spending time with the father every second weekend for four hours on Saturday and Sunday but that “they were coming home very upset, saying that he was saying nasty things to them about me and their sisters.” The mother went on to say that the father was always very abusive and that the children were telling her that he was yelling at them and saying nasty things.
The mother alleged that the father had recently stalked her and the children after a football game. She also alleged that X had told her that the father had started driving past her school.
On pages 27 to 28 of Dr G’s report the mother describes the family violence that she alleges in more detail and adds further allegations of the father driving motor vehicles whilst drunk driving, financially controlling the mother, always hitting all members of the family including kicking the two older girls.
The mother informed Dr G that the father “continually sent abusive emails” and that he was charged. In reality the father sent an email concerning arrangements for the children and was charged with a breach of the temporary protection order.
At page 29 of the doctor’s report the mother goes on to say that she had read the subpoenaed material and it revealed that the father was suicidal. The mother then suggested that the father may take the children’s lives and that he had arrived at one of the children’s training sessions and tried to “coax the child to him.”
Supervised time was arranged through a supervised contact service known as Contact Service L. Supervised contact occurred between 11 July 2019 and 18 August 2019. Ms M provided an affidavit sworn 26 August 2019 which enclosed the notes of that supervised time.
During the intake the mother is reported as saying that the father was very controlling, that his physical abuse was carried out behind a closed bedroom door, the mother and children were forced to flee the home in response to the father’s abuse, the father’s drinking was getting out of control, the father always yelled and screamed at the children, she was in fear of her personal safety, in fear of the safety of the children and feared the father would abduct the children.
The mother is also reported to have said that the father did not have a relationship with the two adult children Ms B and Ms C, that he hated animals and that Ms B remembered her father yelling and screaming at Ms C and kicking Ms C from one end of the hallway to the other saying “he would boot her down the hallway”, there were always bruises visible on Ms C and that Ms C would always stand up to her father and as a result he would “boot her down the corridor.”
The mother also was reported to have told Contact Service L that he had kicked the pet dog a “million times” and that she was unaware of any of the abuse endured by the older children until 2017. She is reported to have told Contact Service L that when she would come home from work Ms B would tell her that Ms C got kicked again and that she would see bruises on Ms C and when she asked the father he would say she is just accident-prone.
The mother told Contact Service L the father was not interested in the children and he had not even asked to see them. The mother explained that the children had not had contact with their father since July 2018 when he went on an overseas holiday with his girlfriend on the weekend he was supposed to have the children for four hours and after that they refuse to go and see him.
The mother is also reported to have raised the fact that the father would check on X three times a night when the children stayed overnight with him. When asked whether she thought there was any sexual abuse the mother said “I don’t think so.”
The mother is reported to have said that the father was happy when the weekend time stopped because he was having wild parties every weekend and the mother had seen photos where “there are alcohol bottles everywhere and twelve women.” The mother also said the children complained of seeing women’s clothing everywhere in the house.
After one visit the mother reported to the supervisors that the father had kicked her when she was eight months pregnant with X and that she entered into early labour.
She told the supervisors that she was covered in bruises while she gave birth and that the kick put a hole in the embryonic sack and that is what caused the premature birth. When asked why the medical staff did not see the bruises the mother informed the supervisors that the father did not leave her side and that he kept pulling the sheets up and told the nurses that she was very shy.
The mother made reports to Department of Child Safety and the Queensland Police Service from September 2017 until July 2019. In exhibit 1 there is a record of the mother reporting to Department of Child Safety Youth and Woman (the Department) on 14 September 2017 that the children were so scared that X had told her she wanted to kill herself if she is made to have contact with her father.
In the outcome report dated 14 July 2019 the Department “decided that there is no information to suggest the children were seriously injured and whilst there may have been a level of impact significant harm cannot be determined at this time. No information to suggest the father is perpetrating violence or physical abuse during the 4 hours of contact he has with the children.” The Department therefore made a child concern report.
On Pages 22 to 27 of exhibit 1 is a copy of the affidavit of the mother filed in support of her protection order application. A reading of that affidavit reveals that the mother raised some incidents of the father yelling at the children, that he drank excessive amounts of alcohol that he drove whilst drunk and that he threw a remote-control at his son. Curiously the mother does not report that the father beat her so violently that he tore the embryonic sack when she was pregnant with X or that she was covered in bruises during the birth of X and he hid that from the medical staff.
The Mother’s Oral Evidence
The mother was cross-examined and after hearing her evidence and watching her in the witness box I am absolutely convinced that the mother is a manipulative liar who was hell-bent on attempting to persuade me that the children should not spend time with their father.
One of the untruths the mother told the court was that she did not stop the children from seeing Ms N because her notes could not be used for court purposes. Exhibit 5 is a letter dated 8 July 2019 from Ms N where she clearly states that she was closing the file because the mother had informed her that her solicitor had stated she cannot use those notes for court proceedings.
The mother also gave evidence that she did not tell Contact Service L that she wanted to do a phone intake because she was fearful that the father would abduct the children. The Contact Service L notes clearly reveal the mother said that to them.
The mother gave evidence that she saw the father kicking Ms C and that she ran and picked her up to console her. That is completely different to what she told Contact Service L in that she told the service that she was informed by Ms B that Ms C had been kicked.
The mother gave oral evidence that the father had kicked her in the stomach when she was pregnant with X because he did not want to have another baby. She said she only remembered that incident and therefore informed Contact Service L after she had started seeing her counsellor in February 2019.
I find that aspect of the mother’s evidence most troubling. If the mother is to be believed I am to accept that the father kicked her with such force that he brought on a pregnancy, tearing a hole in the embryonic sack and thereafter hiding significant bruising on the mother during the birth. That would be one of the most traumatic experiences a person could suffer in their life.
I do not accept that the mother only remembered that incident after speaking to a psychologist. I am of the view that the mother continually escalated her reports of domestic violence in an attempt to justify her actions in withholding the children from the father and failing to actively support a relationship with him.
Furthermore, after I made some comments about the bruising the mother said she had and how I found it remarkable that none of the medical team saw the bruising, particularly after no doubt finding that the embryonic sac was torn, the mother attempted to introduce new evidence on the 22 January relating to the time it takes for bruises to appear.
The evidence was objected to and was not allowed. I found the attempted introduction of that evidence remarkable because the mother had said earlier that she was “covered in Bruises” and the new evidence suggested that she had no bruising at the time of the birth.
The attempted introduction of that evidence was a glaring example of how the mother would double down on her lies or attempt to manipulate her evidence if she thought it necessary to do so.
Despite the mother telling various authorities including psychologists and police that she saw the father throw a remote-control at Y’s head she conceded in cross-examination that she did not see that at all but rather heard the father yelling, heard a remote smashing on the floor and seeing Y crying and run to his room.
When taken to the reports from Contact Service L, Dr G’s or the report writer and shown what she had informed them with regards to many allegations the mother simply denied that she had said that or in the alternative said that they had reported incorrectly. Indeed the mother even suggested that I have recorded her evidence incorrectly when I recorded that the mother had answered that she “did not think of it” when asked why she did not encourage the children to send a Christmas card to the father.
The mother says that she is scared of the father and yet one of the orders she seeks is for the father to collect the children from her home at the commencement of time and deliver the children back to her home at the conclusion of time.
In preparation for the trial the mother made a point of ensuring that the ICL had redacted details of her address from any of the notes tendered in the subpoena bundle. I am satisfied that the mother was attempting to portray fear of the father in circumstances where she really has no fear of him.
The allegations raised by the mother in the main relate to the father drinking excessive amounts of alcohol and as a result losing his temper and acting out violently. Indeed the mother gave evidence under cross-examination that if the father was not drinking he was not a risk to the children.
The father acknowledged that he was drinking to excess as the relationship between he and the mother began to unravel. After reading the first family report the report writer subsequently wrote that the father’s evidence is that he realised he needed to reduce his consumption of alcohol.
The father was ordered to undertake random CDT testing. Exhibit 2 comprises the test results. Those results reveal that when the father had his first CDT test on 20 November 2018 the results indicated excessive consumption of alcohol. The father was tested eight further times and each test provided the result that showed either there was no alcohol present in the father or if there was alcohol present it was within the normal range. As a result of reviewing those tests I am satisfied that the father does not consume alcohol to excess.
The mother doubts the accuracy of the tests and she believes that the father has found a way to cheat on the tests.
When I consider the totality of the evidence regarding allegations of family violence levelled at the father by the mother I am not satisfied that the father poses an unacceptable risk of harm to the children.
The Adult Children’s Allegations
Ms C provided an affidavit on 15 July 2019. Ms C left home when she was 18 and at that time X would have been 6 and Y would have been 4. Her evidence is that since 2016 she has had limited contact with the father.
Ms C says that she saw X heavily backhanded by the father across X’s chest and includes in that allegation that the father has martial arts training, a black belt and “he can really hurt people.” She also alleges that she had observed on numerous times that when Y was in trouble the father would hit him violently rather than talk to him to discipline him.
Her allegations include that she was struck on the back of the head on one occasion and that he showed no empathy towards her when she was 15 and she had an infection in her stomach. She also alleges that the father drinks excessively. Importantly there is no evidence from her about having been kicked down the hallway and being covered in bruises.
Ms C was cross-examined and she found it incredibly hard to give any evidence that portrayed her father in a positive light. She indicated that she had stopped talking to her father after he went on holidays with his girlfriend and missed spending time with the children.
Ms C also provided a character reference for her mother which contains her concerns regarding the father.[10] The character reference does not contain any reference to having seen the children violently struck by the father or any reference to the alleged assault perpetrated upon her by the father. Ms C gave evidence that she had not spoken to her father since 2018 but that she speaks to the mother and the children every second day.
[10] exhibit 2 of the affidavit of the mother filed 3 September 2018
When it was put to Ms C that the mother had said the father was the primary carer for all of the children she initially said he was not but then said “well he was at home but he wouldn’t take us to our tap dancing classes.” She also said that he was “loosely caring” and that he was more of a supervisor than a loving parent.
Ms C also gave evidence that she had discussed with her mother how the father might have cheated on the alcohol tests and that she believed the father had. Despite not having a relationship with her father for some four years at the time of trial and having not spoken to him since 2018 Ms C was firmly of the belief that the father was an alcoholic.
Ms C also gave evidence that she discusses the father’s drinking with X and that she believes it is appropriate that X be cautious around the father.
Ms C was asked whether she remembered the father kicking her when she was young and the family was living in Town O and she gave evidence that she did in fact remember that incident. Her evidence was that the father was wearing steel capped boots and that he kicked her from behind and hit her on the cheek of her buttocks and she stumbled forward. She said the father did not kick again after that.
Ms C’s evidence was that she had been violently assaulted, that she saw Y violently assaulted on more than two occasions but that she only put two allegations in her affidavit. She said that the children’s safety was her primary concern but remarkably that she has not reported any of those incidents to the police or other relevant authority since leaving home.
Ms C agreed that she had ended her relationship with her father over a lie in that he said that X and Y were the most important people to him but he went on an overseas holiday with his girlfriend instead of seeing them on one occasion.
I found Ms C’s evidence remarkable. I did not believe her at all and I am satisfied that she gave that evidence to support her mother rather than gave the evidence truthfully. It was clear to me that Ms C found it very difficult to give that evidence particularly in circumstances where her father was sitting approximately three metres away and at times crying uncontrollably.
I place no weight on the evidence of Ms C.
Ms B’s evidence
Ms B also provided an affidavit sworn on 15 July 2019. Her evidence is that the father drank to excess and that she saw her sister Ms C being kicked down the hall. Her evidence is that the father would threaten the children by saying that he would throw out toys or treasured possessions. Ms B gives evidence that she left home when she was 18 and went to live with the maternal grandparents in Sydney where she has remained having built “a beautiful life”.
Her evidence is that the father is manipulative and tends to fake interest in things and that she has not had contact with him since prior to the separation.
Ms B alleges that she witnessed her father kicking her dog so viciously that the “dog’s eyes were bleeding” and that he refused to let the dog be treated by a vet. She did not say how the dog subsequently survived without veterinary assistance.
The evidence continues that she speaks to X on the telephone and X is at times upset and crying because she wants to go home to her mother.
On 20 August 2018 Ms B wrote directly to Judge Spelleken[11] Once again in this earlier report to the court there is no evidence of the incredibly traumatic experience of watching her dog be kicked so viciously that it bled through the eyes or of having witnessed her younger sister kicked down the hall.
[11] exhibit H2 (1) of the affidavit of the mother filed 3rd of September 2018.
Ms B was cross-examined and she accepted that when she left the family unit X was 3 years old and Y was 7 months old and that she had remained in New South Wales ever since. Her evidence is that she knows that the father has continued to be rude to the mother as a result of phone calls she has had with the mother.
Ms B also found it very difficult to say anything positive about the father. Her evidence was that the father had never been supportive of her however when asked whether he had discussed careers with her she said she believes so and when it was put to her that the father had arranged a job opportunity with Mr P, she recalled that and said “yes he taught me what I didn’t want to know”.
Ms B accepted that the father had paid for her university and that he she had been supported through that. When it was put to her that the father had in fact taken her to a hobby club she said” yes he had to”.
Ms B agreed that she speaks to her mother at least once a week and to X every second day. She says she encourages the children to spend time with the father. When asked if she had so much concern why would she encourage that relationship she replied “I’m petrified, he hits them, neglects them, throws things at them and doesn’t feed them.” Her evidence was unpersuasive and it made no sense at all.
Her evidence about the alleged kicking of her sister down the hall was inconsistent with Ms C’s evidence, for example Ms C had the father wearing steel capped boots, Ms B had the father wearing nothing on his feet. Her evidence included that Ms C was kicked on more than one occasion that she was kicked in the legs that she had fallen forward uncontrollably hitting her face. She said she told her mother when she got home from work.
Ms B was also very uncomfortable giving her evidence. She was asked by the Independent Children’s Lawyer’s counsel whether she felt she had been backed into a corner and she said that she did.
When asked whether she loved her father there was a very long pause and then she said “yes.” She was asked why she had written to Judge Spelleken and she said she had done so through the mother’s lawyer.
I found Ms B’s evidence untrustworthy it was clear to me that she was there to support her mother at whatever cost including the cost of misleading the court if necessary.
When Dr F was cross-examined she was asked how probable was that the two older children who had left many years ago could be influenced by the mother and she gave evidence that it was still probable that the two older children had become aligned with the mother as a result of the mother’s influence.
Having assessed all of the evidence in relation to the allegations raised about the father committing acts of family violence and as a result being an unacceptable risk to the two younger children I am not satisfied that he is an unacceptable risk nor am I satisfied that the children need to be protected from him for any reason.
Has the mother unduly influenced the children – perpetrated family violence
I am satisfied that the father is an honest historian who was struggling to understand why his children were rejecting him so forcefully. It was only after he was made aware of the potential for alienation that he began to explore that as a possible reason for the children’s reactions.
I am also satisfied that the father initially downplayed his alcohol consumption however when he was informed by an expert that his alcohol consumption was at a dangerous level he took appropriate steps to bring that under control and I am satisfied that he continues to do so.
Where ever the mother’s and father’s evidence is in conflict I am satisfied that I should prefer the father’s evidence over that of the mother and I do so.
There were four experts called to provide evidence in relation to the family dynamic of this family. The report writer compiled two reports, Dr F provided one report, Dr G provided a report and Ms M provided a report relating to the supervised time at Contact Service L.
In her first report Ms E stated that she was very concerned about the welfare of the two children who were clearly struggling under the weight of the pressures placed upon them and who were at that time embroiled in their parents parenting dispute.[12] Furthermore Ms E was of the view that there were suggestions that the mother was not capable of properly fostering the children’s relationship with the father.[13]
[12] First report dated 6 September 2018 at para 90.
[13] Ibid para 91
At paragraph 98 of that same report the report writer says “to put it simply the children’s reactions impresses disproportionate and the reports impresses heavily influenced by their loyalty to the mother. Observations of the children appear to confirm this situation as various hallmarks indicating the effects of what is controversially considered alienation were detected in this assessment.” The report writer ultimately opines that the children appear to be affected by what she terms “alienating behaviours by the mother.”
Dr F in her affidavit filed 8 February 2019 says this:
“Ms Hadcraft is not in any way supportive of a relationship between the children and Mr Hadcraft and feels strongly the children would benefit more from no contact at all ever. Ms Hadcraft is also resentful of the process encouraged by court and although does bring the children to appointments, is not engaging in the idea of what it is for or why it is important and is also highly resistant and angry at having to attend. I find Ms Hadcraft’s manner passive aggressive, for example wanting reports of sessions if the children met with Mr Hadcraft, bringing photographs but resentful of notice given and time taken to bring them along, resentful of appointments times and the inconvenience, despite my rearranging and offering appointments outside clinic times to accommodate her, and questioning my professional integrity. The therapeutic relationship has therefore been flawed from the beginning”
.Dr F was engaged as a result of a court order to attempt to reunite this family through therapeutic counselling. Clearly she was of the view that the mother was undermining her role and was disingenuous in her engagement in the process.
Dr F sets out her opinion in relation to the children’s response as follows:
“I do have an opinion regarding the barriers to the children’s memories, and thus in turn to the resistance to engage with him at any level. My certainty is limited due to time constraints, but I most likely opinion is heavily influenced by Ms Hadcraft and the children’s fear of the loss of her loyalty, love and care if they do not take aside. Given the level of hostility from their mother towards Mr Hadcraft , it would be difficult to hold any love for the other parent without feeling disloyal, and so positive memories are disregarded and a strong narrative of the bad is held dominant above all others. This enables reasonable well-being and functioning within a hostile situation. I would hope that Ms Hadcraft could find a therapist who would be able to raise awareness of the damage of hostile parents on children and regardless of allegations find a way for some applicability for the children’s sake. Without this it is unlikely these children will have the permission to access more positive feelings for their father, which I feel are there but immensely guarded against otherwise there wouldn’t have been the conflict clearly visible in the sessions.”
Dr G’s in his report exhibited to his affidavit filed on 7 August 2019 says:
“If the mother was seeking to deliberately alienate the children from the father, or continue to make false allegations to which the children are being exposed to, with the aim of depriving the children a meaningful relationship with the father, there would be similarly concern about the welfare of the children in the supervised care of the mother.”
“The mother’s lack of acknowledgement of the expertise of others, with respect to the best interests of the children in the current dispute, as well as lack of acknowledgement of her own role in the current dispute is somewhat concerning, and may also suggest some narcissistic traits are present with the mother, although again it should be noted that no such traits are evident on cross-sectional assessment of myself.”
Having found that the mother was deliberately fabricating evidence in an attempt to portray the father in a bad light I accept the hypothesis of Dr G’s as outlined above.
In the notes exhibited to Ms M’s affidavit sworn 26 August 2019 it is noted that the supervisors have a number of concerns including a concern for the well-being of the children and their emotional health, a concern that the mother engages in behaviour that undermines the supervised contact service, a concern that the mother discusses adult issues in the presence and hearing of the children, concern relating to the mother’s lack of insight into how her own behaviours impact children’s perspective of their father and a concern relating to the mother’s apparent inability to implement the necessary changes in her behaviour to support the children’s relationship with the father. The notes also reveal a concern raised by the supervisors of the mothers fixed false beliefs some of which have been adopted by X and a concern relating to the mother reinforcing harmful messages to the children for example the father does not love the children, the father is a liar, the father is not safe and the father is always drunk.
In her final report dated 3 June 2019, Ms E recommends that consideration be given to a change of residence and a three-month moratorium of the mother’s time with the children. This recommendation is based on her subsequent interview with the mother and reading of updated material which confirmed her initial opinion that the mother was actively engaging in undermining the children’s relationship with their father.
Dr G was cross-examined and he gave evidence that he would find it very surprising that the mother’s abdomen was not examined during childbirth and said it would be extraordinary to deliver a child without seeing the abdomen.
He was asked about the capacity for the mother to change and he said that he was always optimistic about change however the best predictor of future behaviour is past behaviour and he was of the view that the mother would find it quite difficult to change.
When Ms M was cross-examined I had some concerns about her evidence as it was clear to me that she had formed the view that the mother was frustrating the time between the children and the father and as a result some of the evidence was biased in favour of the father. For example the notes indicate that the mother was unsupportive and uncaring of Y during one handover session where the supervisors took Y to his mother’s place of employment. The video of that interaction was played and it was clear that the mother was indeed attentive to Y and did appear to be caring for him. Ms M gave evidence that there was more video footage available that would support her memory of that incident. I was not shown any further footage that would support the evidence of Ms M on this point.
Apart from that anomaly I was otherwise impressed with this witness’ evidence. No doubt she became frustrated with the mother as a result of the mothers interaction with her service but nevertheless her evidence in relation to the checks and balances with regards to the observational notes impressed me and allowed me to form the view that those observational notes were in the main accurate.
In cross examination the report writer confirmed her opinion that the mother had been engaging in behaviours which undermined the children’s relationship with their father. The report writer was taken to the more recent events in order to be brought up to speed with regards to the evidence and she did not alter her opinion.
After considering all the evidence of the experts and having the benefit of hearing them provide oral evidence under cross examination, I am satisfied that there is overwhelming evidence to make a finding that the mother has been engaging in behaviours that have caused these children to align with her, affected their relationship with their father and adversely prevented them from enjoying their relationship with both parents.
Clearly in light of that finding the mother has engaged in family violence as defined in the Act.
The evidence also establishes that the children have been receiving psychological intervention as a result of their difficulties in coping with their current situation. I am of the view that their current difficulty in coping with their situation is directly related to the mother and their siblings overbearing influence on them.
In my view the evidence also supports a finding that these children have been abused by their mother as a result of being exposed to that family violence. A number of experts have provided evidence that they are concerned that the children are suffering from trauma which given its ordinary definition could only amount to significant psychological harm and therefore fall within the definition of abuse within the Act.
OTHER CONSIDERATIONS
Both children expressed a clear view that they wish to live with their mother and spend no time with their father.
Notwithstanding that both children are of an age where their views are generally given considerable weight, I must consider their views in light of the findings I have made with regards to the mother’s and adult siblings undue influence over those children.
In short I cannot trust that the views expressed by the children are expressed as a result of their own beliefs. I am of the firm view that the children’s expressed wishes are as a result of their complete alignment to their mother due to her actions in interfering with their relationship with their father. They have not been given permission to have a relationship with their father.
I am concerned that the children’s relationship with both of their parents has been adversely impacted upon by the mother and adult sibling’s tireless influence over them.
I have no doubt that the children have a close relationship with their mother and adult siblings however that relationship has been heavily influenced as a result of their inability to have a relationship with their father. I am of the view that the relationship the children have with their mother and siblings is distorted as a result. I am also satisfied that these relationships are unhealthy for the children.
There is evidence to suggest that the children do want to have a relationship with their father. The report writer noted this as did the supervisors at Contact Service L and Dr F. Clearly the children believe if they reject their father this will please their mother and accordingly they reject him. Again the relationship between the children and their father has become distorted as a result of the overbearing influence of the mother and siblings.
The mother attempted to satisfy the court that the father was not meeting his obligations to maintain the children. I am satisfied the father is meeting his obligations to maintain the children.
I have no doubt that there will be a short term negative impact on the children as a result of the orders I have made. They will no doubt initially resist their father and without therapeutic assistance from qualified counsellors the result could be devastating.
The father sought an order that he and the children engage in the Family Bridges program at a cost of some $20-$30,000. I am satisfied the father and mother can meet those costs and I am also satisfied that the bridging program will provide the children with the necessary support they need in order to understand that it is permissible to have a relationship with both their mother and father. Indeed after the moratorium has passed the program will extend to involve the mother so that she may be reintegrated into the family unit with appropriate therapeutic assistance.
The mother gave evidence that she was willing to engage with Ms D so that she may gain insight into her behaviours and learn strategies to assist her in refraining from those behaviours in the future.
I am of the view that the mother should indeed engage with Ms D and that when she does pursuant to the orders I have made this will mitigate against any long-term harm being caused to the children.
There was some concern regarding the father’s capacity to parent the children. I held this concern as a result of the father’s evidence that he was receiving counselling from Q Counselling to assist him in dealing with the children’s behaviours when they spend time with him. His evidence was that they have provided him with strategies but that none of them worked.
The evidence supports a finding that up until separation the father had a good relationship with these two children and furthermore that he was the primary carer for them. The mother left the children in his care while she worked and had no difficulty during the relationship it seems in having the father care for the children on a regular and consistent basis. I do not accept the mother’s evidence when she says the father was violently abusive and negligent.
Ultimately I formed the view that the father’s parenting skills had been compromised as a result of the mother’s interference. The orders I have made will prevent the mother from interfering with the children’s relationship with their father for 90 days and this will allow him, with the support of the Family Bridges program, to parent the children adequately.
I have grave concerns with regards to the mother’s capacity to meet the needs of the children in particular their emotional needs. She has been repeatedly advised that her actions were causing harm to her children and she has resisted all attempts to repair the children’s relationship with their father notwithstanding that she says it is an important relationship and experts were telling her that the children would be harmed if that relationship was not repaired.
The mother has a significant lack of insight into how her own behaviours have caused harm to these children.
The mother says she is willing to engage with Ms D to learn new skills so that she can understand the impact of her behaviours and change her ways. It is hoped the mother does in fact engage with Ms D and learns new ways. If she does I am confident that Ms D will be able to assist the mother to learn new skills so that she can meet the emotional needs of her children after the moratorium has occurred.
Both of these children are mature and intelligent. Their school reports for the period from 2013 through 2018 reveal that they are hard-working and courteous members of the school community. Their results indicate that they are intelligent as they reveal excellent academic records.
The mother attempted to argue that the children have become more settled at school since she separated from the father and remove them from the alleged extreme abuse. The school records do not support the mother’s argument.
Those records give me confidence that the children will be able to cope with a change in their residence and in not seeing their mother and siblings or speaking with them for a period of time. I am satisfied that the moratorium will permit the children to relax and rest and enjoy the relationship with their father. The report writer is also confident that the children will cope with this change.
The father’s actions throughout these proceedings satisfies me that he has an excellent attitude towards his children and more importantly towards his responsibilities as a parent. He has engaged in every recommended course and has also addressed his alcohol consumption. Furthermore he is seeking additional assistance through a Q Counselling Service in an attempt to have a positive influence over the children.
Conversely the mother failed to undergo the parenting course until the last moment and she has not sought out assistance to address the issues that were being raised about her behaviours from all of the experts. She has placed her needs and her views over the best interests of her children and she needs to properly address this before moving forward.
It is in fact the family violence perpetrated by the mother that has caused so much disruption to these children’s lives and it is for this reason that there must be a significant change for them.
I know that there is a protection order in place that protects the mother and the children however I note that that order was made by consent without admission at a time when the father’s capacity to argue against the allegations was significantly impaired as a result of his loss of relationship with his children and the grief he was feeling at the time.
The report writer was asked to comment on the advantages and disadvantages if the children were to remain living in the same care arrangement that they were living in at the time of trial. She gave evidence that the obvious advantage was that the children would be least disrupted and they would maintain their primary residence with the mother, somebody with whom they expressed a wish to live.
The disadvantages included the children may disengage completely with the father or that the father might find it too hard and disengage from the children. She was of the view that the children would experience ongoing stress perhaps to the degree of trauma in an accumulative effect over a period of time if they were repeatedly doing something on a regular basis that is uncomfortable for them as they cannot enjoy living in both domains.
The report writer gave evidence that for these two children even though at the time she was giving evidence the children were 14 and 12 that it was still possible for them to form a positive relationship with their father if they were to live with him and have the assistance of significant therapeutic counselling.[14]
[14] page 33 and 34 of the transcript dated 24 January 2020.
The report writer was of the view that if I found that the older children were aligned with the mother and influencing the younger children then a moratorium prohibiting the children spending time with or communicating with those older children was supported.
The report writer was of the view that if the children were to reside with the father that he should continue with his counselling that he is receiving from Q Counselling as she considered that to be a significant protective factor for the children.
Importantly when asked whether there was a risk of these children running away if they were placed with their father because they had previously during an argument gone to the neighbours, the report writer gave evidence that she was satisfied that it was unlikely they would because during the last few visits in January 2020 when the children were in conflict with their father they had not run away and furthermore it also supports the notion that they are not too far gone and that they are prepared to tolerate being in the father’s company.
The report writer was able to give evidence in relation to her experience of the family bridges program and she was very supportive of that program indicating that it allowed for both parents to be involved in the program and that this gave the best opportunity for a program such as this to be successful for a family in this situation.
At the conclusion of the evidence I had formed the view that the children’s relationship with their father had been significantly impacted upon by the mother and the older siblings to its detriment.
I was also satisfied that the children were of a level of maturity and intelligence that they could cope with the significant change to the living arrangements and that they would respond very well to the therapeutic intervention without the negative influence from their mother and siblings.
Furthermore I am satisfied that if the current arrangement continues these children will either continue to suffer significant trauma or completely disengage with their father to their detriment.
Having made those findings I am satisfied that it is in the children’s best interests for me to make an order for them to live with their father along with further orders that will support not only their emotional well-being but the emotional well-being of their mother and father for their benefit.
PARENTAL RESPONSIBILITY
The mother seeks an order for equal shared parental responsibility and the father seeks an order for sole parental responsibility in his favour.
There is a presumption in favour of equal shared parental responsibility as set out in section 61DA(1) of the Act. That presumption does not apply if I am satisfied that a parent has engaged in abuse or family violence.
I have made a finding that the mother has engaged in family violence and abuse, in those circumstances the presumption does not apply.
The evidence also supports a finding that the parent’s co-parenting relationship is extremely strained at this point in time. The mother does not trust the father and says she is fearful of him and believes him to be a liar, manipulator and a danger to the children.
The father also gave evidence that he did not trust the mother, that he has a poor view of her, that she has undermined his relationship with the children and that her behaviour will continue to cause emotional harm for the children.
In those circumstances an order for equal shared parental responsibility is counterintuitive and certainly not in the best interests of the children.
For these reasons I am satisfied that the orders I have made are orders that best meet the children’s needs.
I certify that the preceding two hundred and five (205) paragraphs are a true copy of the reasons for judgment of Judge Middleton
Date: 16 April 2020
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Remedies
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Procedural Fairness
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