Hadfield and Harris
[2012] FMCAfam 2
•24 February 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HADFIELD & HARRIS | [2012] FMCAfam 2 |
| FAMILY LAW – Parenting – two children aged nine and seven years – children previously living with each of their parents pursuant to a 9:5 arrangement in favour of the wife – husband alleges the children are at physical risk when in the care of the wife – husband’s allegations found to be without foundation – wife alleges children are at emotional and psychological risk when in the care of the husband – husband’s behaviour and actions found to give rise to emotional and psychological risk to the children and to severely negatively impact upon the wife’s capacity to parent – orders made for the wife to have sole parental responsibility for the children, for the children to live with her and spend no time with the husband. |
| Family Law Act 1975, ss.60B, 60CA, 60CC, 61DA, 65DAA Commonwealth Evidence Act 1995, s.140 |
| Rice and Asplund (1978) 6 Fam LR 570 Goode & Goode (2006) FLC 93-286 McCall & Clark [2009] FamCAFC 92 |
| Applicant: | MS HADFIELD |
| Respondent: | MR HARRIS |
| File Number: | MLC 8871 of 2008 |
| Judgment of: | Bender FM |
| Hearing dates: | 16, 17 & 18 November 2011 and 5 & 6 December 2011 |
| Date of Last Submission: | 6 December 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 24 February 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Arnold |
| Solicitors for the Applicant: | Rochelle Belcher |
| Counsel for the Respondent: | In person |
| Solicitors for the Respondent: | In person |
| Counsel for the Independent Children’s Lawyer: | Ms Brennan |
| Solicitors for the Independent Children’s Lawyer: | Mr W |
ORDERS
All previous parenting orders be discharged.
The wife have sole parental responsibility for the children X born (omitted) 2002 (“X”) and Y born (omitted) 2004 (“Y”).
X and Y live with the wife.
X and Y spend no time with the husband and communication between X and Y and the husband be solely as provided for in these orders.
The husband be at liberty to send X and Y letters, cards and gifts PROVIDED THAT such items are sent by ordinary pre-paid post addressed to either of X and/or Y to their residential address.
The wife shall be at liberty to read correspondence sent by the husband to X and Y pursuant to order 5 herein and she shall be at liberty to not provide the correspondence to X and/or Y if it is critical of her, her family or the environment in which X and Y are being brought up, or, in her absolute discretion she considers it to be otherwise inappropriate.
The husband be and is by himself restrained from:
(a)approaching within 100 metres of the wife, X and Y;
(b)attending at or within 500 metres of X and Y’s school/s;
(c)attending at or within 500 metres of the residence of the wife and X and Y;
(d)attending at or within 500 metres of the wife’s place of work; and
(e)emailing or otherwise communicating with the wife save as provided for in these orders.
The wife authorise any school/s attended by X and Y to forward to the husband, at the husband’s expense, copies of all school reports, school photograph order forms and newsletters usually provided to parents.
The wife be authorised to provide a copy of this order to the Principal/s of X and Y’s school/s and to any of X and/or Y’s treating medical practitioners.
The wife advise the husband in writing by email of any serious illness or injury suffered by either of X and/or Y and authorise X and Y’s treating medical practitioners to speak directly with the husband.
The wife is authorised and permitted to apply for and receive an Australian passport for X and Y without first obtaining the written consent of the husband.
The wife be permitted to take X and Y out of the Commonwealth of Australia without first obtaining the consent of the husband.
The Independent Children’s Lawyer shall meet with X and Y to explain the orders to them within 14 days of the date of this order and the wife shall do all things necessary to make X and Y available to meet with the Independent Children’s Lawyer pursuant to this order.
IT IS NOTED that publication of this judgment under the pseudonym Hadfield & Harris is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 8871 of 2008
| MS HADFIELD |
Applicant
And
| MR HARRIS |
Respondent
REASONS FOR JUDGMENT
Introduction
This difficult, complex and very sad matter relating to the living arrangements for the parties’ children X born (omitted) 2002 (“X”) and Y born (omitted) 2004 (“Y”) is before me for the third time since final orders were made by consent on 19 February 2009.
The February 2009 final consent orders provided for the parties to have equal shared parental responsibility for X and Y and for X and Y to live with the wife for nine days and the husband for five days in each fortnight, as well as from after school to 7.00 pm each alternate Thursday. The orders also provided for a sharing of school holidays and special occasions.
On 3 July 2009, the husband’s Contravention Application and Application for X and Y to live with him came before me. I dismissed the husband’s Application for a change of residence on the basis of the doctrine set out in Rice and Asplund (1978) 6 Fam LR 570, that being it was not in X and Y’s best interests to re-ventilate their living arrangements as there had been no substantial change in their circumstances since the February 2009 orders were made.
In relation to the husband’s Contravention Application, I found that the alleged contraventions arose from ambiguities in the original consent orders which the parties had been unable to resolve between themselves because of their complete inability to communicate.
Accordingly, the Contravention Application was dismissed but the February 2009 orders were “fine tuned” by me in an endeavour to remove any ambiguities in those orders and minimise the potential for dispute between the parties as to the living arrangements for X and Y.
On 11 January 2011, the wife filed an Initiating Application seeking that the February 2009 orders for X and Y’s living arrangements be discharged, that she have sole parental responsibility for X and Y, that they live with her and spend alternate weekends with the husband and there continue to be a sharing of holidays and special occasions.
On 2 November 2011, the wife filed an Amended Initiating Application in which she seeks orders that she have sole parental responsibility for X and Y, that they live with her and that there be no order made for the husband to spend time with the children.
In her Amended Application, the wife also seeks orders that any time the husband spend with X and Y in the future be conditional upon him attending for psychiatric treatment with a psychiatrist nominated by the Independent Children’s Lawyer and there being a determination by that independent psychiatrist that the husband’s:
“psychological functioning is no longer disturbed and out of balance and that his insights have evolved such that the risk to the children and the Applicant (the wife) is removed.”
The wife also seeks orders that X and Y’s passports be renewed without the need for the husband’s consent and that she be permitted to travel overseas with X and Y.
The husband is seeking orders that he have sole parental responsibility for X and Y in relation to medical matters, that X and Y live with each parent on a week about basis with changeover each Thursday after school and for a sharing of school holidays and special days.
The husband is also seeking orders that X and Y attend
(omitted) School for their secondary education, that they not be left in the care of individuals with known psychiatric disorders, that there be no verbal communication between the parties and all communication be via text message or email, that at changeover neither party be within five metres of the other, that the children not spend more than two weeks without seeing each parent and that until such time as X is 12 years of age, the children not be left without adult supervision for longer than 10 minutes.
The Independent Children’s Lawyer proposed that the court make orders in the following terms:
1.That all previous parenting orders be discharged.
2.The mother have sole parental responsibility for the children X born (omitted) and Y born (omitted).
3.The children live with the mother.
4.Subject to compliance by the husband with order 8 herein, the children spend time and communicate with the father as follows:
(a)on 18/12/11 from 11am to 3pm
(b)on 25/12/11 from 4pm to 8pm
(c)on 1/1/12 from 11am to 3pm and each alternate Sunday thereafter.
5.That for the purposes of changeover the father collect the children from the paternal grandparents home at the commencement of time and the mother collect them from the paternal grandparents home at the conclusion.
6.In the event that changeover cannot occur at the home of the paternal grandparents then the parties utilize a contact centre to effect changeover.
7.In the event that changeover occurs at the home of the paternal grandparents, the mother shall remain in her motor vehicle during all changeovers and the father shall remain inside the home during all changeovers.
8.The father shall continue treatment with Dr K and for this purpose:
(a)he shall comply with all reasonable requests as to treatment, of Dr K
(b)make arrangements with Dr K for a comprehensive treatment plan
(c)authorise Dr K to liaise with the ICL
(d)request Dr K provide a report as to therapeutic progress and prognosis prior to the further hearing.
9. The father be and is hereby restrained from:
(a)denigrating the mother in the presence or hearing of the children or knowingly allowing any other person to do so
(b)discussing these proceedings with the children.
10.The mother and the father attend upon Dr E or such other psychiatrist as may be nominated by the ICL, for a further psychiatric review prior to the further hearing.
11.That in the event the psychiatric review referred to in paragraph 10 herein is to be completed by a psychiatrist other than Dr E, the ICL be at liberty to forward to that psychiatrist the affidavits of Mr P sworn 19/6/11 and 31/10/11 and the reports of Dr E dated 19/9/11 and of Dr K dated 27/10/11.
12.These proceedings be otherwise adjourned to _______ for Directions.
Background
The wife was born on (omitted) 1965 and is 46 years of age. She is employed on a part-time basis as a (omitted). She has not
re-partnered though she has an ongoing friendship with Mr K.
The husband was born on (omitted) 1964 and is 47 years of age. He is self employed as an (omitted). He has not re-partnered.
The parties commenced cohabitation in April 1996 and married on
31 October 1998. They separated in September 2008. They remained separated under the one roof until October 2008 when, by court order, the husband vacated the former matrimonial home.
As noted, there have been three Applications for final orders in relation to the living arrangements for X and Y.
The wife first filed an Initiating Application on 29 September 2008. At that time the parties were separated under the one roof and she was seeking an urgent interim order that she have sole use and occupation of the former matrimonial home, for X and Y to live with her and spend time with the husband from after school Friday to before school Tuesday each alternate week.
When the matter came before me on 8 October 2008, I made orders for X and Y to remain in the former matrimonial home and for the husband to care for the children from after school Friday to before school Tuesday each alternate week and for them to be otherwise cared for by the wife. Whichever of the parties was not caring for X and Y was to vacate the former matrimonial home. The matter was otherwise adjourned to 24 October 2008.
When the matter came before me on 24 October 2008, I made orders for the husband to vacate the former matrimonial home by
28 October 2008 and thereafter for X and Y to live with the husband from after school Thursday to before school Tuesday and each alternate week thereafter, for half holidays and special occasions and to otherwise live with the wife. The matter was otherwise adjourned for final hearing on 19 February 2009.
It was apparent from the parties’ affidavit material filed in relation to the first proceedings that their relationship has always been difficult, volatile and conflicted. This became more so when the parties were separated under the one roof between September 2007 and October 2008. The wife claimed the husband was volatile, moody, intimidating and threatening and cited incidences of physical and emotional abuse. The husband denied such allegations and in turn accused the wife of mental instability, volatility, manipulation and of lying to obtain the court orders she sought.
In preparation for the final hearing of the matter, the parties, X and Y attended Mr P who prepared a Family Report dated 28 January 2009. In his conclusions contained on pages nine and 10 of his Report, Mr P made the following observations:
“Mr Harris & Ms Hadfield are very different people and this difference presents almost immediately upon meeting with them. Each of them describe this difference from their own perspective, but the perception of Mr Harris as being more analytic and Ms Hadfield being more emotional, certainly depicts this difference in an easy and obvious manner.
The last eighteen months of the relationship prior to separation from both the account of Mr Harris & Ms Hadfield sounds to have been extremely strained, relationships tenuous and conflict high…
This description of them and their personalities needs to be embedded within what has been a long history of quite dysfunctional conflict, tension and an extremely uneasy relationship. I am certain that Mr Harris & Ms Hadfield living separated under the one roof was a very destructive experience for all concerned, and that the ill feeling and the fallout from this time continues. In this regard, the ongoing tensions and the conflict and the lack of resolution augers poorly for a truly shared parental relationship, even though Mr Harris & Ms Hadfield might parent functionally well by parenting in parallel.”
Mr P observed X and Y to have a warm and easy relationship with both of their parents and was in no doubt that:
“both parents should be actively and substantially involved in their day to day lives and decision making.”
Because of the poor parental relationship, Mr P did not support a shared care arrangement (the husband’s proposal) for X and Y, but recommended that the then existing arrangement whereby X and Y lived nine nights with their mother and five nights with their father in each fortnight continue.
As noted earlier in this judgment, at the final hearing of the matter on 19 February 2009 the parties resolved both parenting and property matters, and final orders were made by consent. The orders essentially provided for a 9:5 care regime for X and Y in favour of the wife and for the wife to retain the former matrimonial home.
On 21 May 2009, the husband filed a Contravention Application. On 26 May 2009, the husband filed an urgent ex parte Application seeking residence of X and Y on the basis that X had told him that the wife’s mother, who was caring for X and Y, had left Y unattended in the bath, that Y had fallen asleep and she, X, had had to pull Y out of the bath.
The matter came before O’Sullivan FM on 2 June 2009 and His Honour made an interim order that neither parent leave X and Y unsupervised in the bathroom and otherwise adjourned all Applications, including the husband’s Contravention Application, before me for an interim hearing on 3 July 2009.
The wife filed a Response to the husband’s Application in which she sought that the husband’s Application be dismissed and clarification of the school holiday arrangements in the final orders because of differences between the parties as to their interpretation of the orders.
It was apparent, from the affidavit material filed by the parties, that there had been no improvement in their relationship and that, if anything, it had worsened. There was no proper communication between the parties, a high level of mistrust and, as Mr P had noted in his Report, no true parental relationship.
The manner in which the Applications were dealt with by me on
3 July 2009 has been set out in paragraphs 3 to 5 of this judgment and won’t be repeated here.
After 3 July 2009, X and Y lived with their parents in accordance with the orders that were made on 19 February 2009 and “fine tuned” on 3 July 2009.
As set out in paragraphs 6 to 9 of this judgment, the matter is now before this court by way of the wife’s Initiating Application filed
11 January 2011.
The wife’s Initiating Application was first listed before me on
15 March 2011. On that date, orders were made for the matter to be listed for final hearing on 27 July 2011 and for the preparation of an Updated Family Report by Mr P.
On 27 July 2011, given the recommendations contained in the Updated Family Report of Mr P, the final hearing was vacated and orders made for the parties to be psychiatrically assessed by Dr E. Further, an order was made for the appointment of an Independent Children’s Lawyer for X and Y.
On 23 August 2011, the husband filed an urgent Application in a Case seeking a suspension of the parenting orders, for X and Y to live with him and for their time with the wife to be suspended. This Application was listed before me on 4 October 2011.
In support of his Application, the husband’s affidavit set out his ongoing concerns about the wife’s negligent care of X and Y, culminating in an incident whereby X was alleged to have threatened Y with a knife whilst left unsupervised in the wife’s care. The husband’s concerns about the wife’s care of X and Y will be explored in full detail later in this judgment.
The husband also sought a number of orders relating to the conduct of the proceedings.
Under the existing orders, X and Y were due to be returned to the wife on 23 August 2011. Because of his concerns as to their welfare, the husband overheld X and Y.
On 24 August 2011, the wife filed an Application in a Case in which she sought that X and Y be immediately returned to her care and that the husband’s time with X and Y be suspended.
The wife’s Application in a Case came before Whelan FM on
25 August 2011. Her Honour ordered the husband to return X and Y to the wife at 5.00 pm that day at (omitted) Police Station.
Her Honour ordered that X and Y’s time with the husband be suspended until 1 September 2011. Her Honour also ordered that X and Y attend upon Mr P for a further Updated Family Report.
The matter next came before Whelan FM on 9 September 2011. Her Honour made orders to ensure the previously ordered psychiatric assessments of the parties were completed and placed before the court no later than 3 October 2011. Her Honour otherwise adjourned the parties’ Applications in a Case to me on 4 October 2011.
The parties competing Applications in a Case came before me on
4 October 2011 and I delivered my judgment in relation to those matters on 10 October 2011.
In relation to the husband’s Applications as to the conduct of the matter, it is of relevance that they be summarised here as they are indicative of the husband’s approach to this litigation and to the professionals with whom he does not agree or who he perceives as not performing their professional duties in a manner he sees as appropriate.
The husband sought the following orders in relation to the conduct of the proceedings:
· Application to set aside the Family Reports of Mr P and have an alternate psychologist, Ms B, appointed to prepare a Family Report for the purposes of the final hearing
· Application to have Mr W removed as the Independent Children’s Lawyer
· Application that there be an order for therapeutic counselling for X and Y
· Application for disclosure by the wife of the name of a psychologist the wife took X to in or around August 2011
· Application for disclosure by the wife of the address of Mr K to enable him to be served with a subpoena by Mr Harris
· Application for an order that Y be taken to his local General Practitioner to be assessed and, if so determined, referred for speech therapy
· Application for an order restraining legal Counsel from intimidating communication in relation to the payment of costs
· Application for the wife to disclose the identity of the individual who allegedly attended upon her in relation to her parenting when X was present
· Application for an order for the release of all communications between the wife and/or Rochelle Belcher and the (omitted) Child Care Co-operative
None of the orders, as were sought by the husband, were made by me. The reasons for this can be ascertained from my judgment of
10 October 2011 and will not be repeated here.
In his Application in a Case filed 23 August 2011, the husband also sought an order that I be removed from hearing the matter and that it be placed before a Federal Magistrate of more years experience. When the matter proceeded before me on 4 October 2011, the husband withdrew that aspect of his Application, explaining that he had been under a misapprehension I was “avoiding” hearing his urgent Application because of its’ complexity. When he attended the court to file his Application, he was advised I was unavailable. He indicated he subsequently discovered I was overseas and not avoiding a difficult case.
I accepted the husband’s withdrawal of this aspect of his Application unreservedly.
In relation to the parties’ competing Applications that on an interim basis the current parenting orders be suspended and that X and Y live with them, I set out the competing submissions of the parties’ and the Independent Children’s Lawyer in paragraphs 55 to 71 of my judgment of 10 October 2011. Whilst lengthy, I will repeat them here as they clearly set out the crux of the matter before this court.
55.In his Application in a Case filed on 23 August 2011,
Mr Harris sought orders that the current arrangements for X and Y be suspended, that both children live in his care on a full time basis and they spend time with their mother only under supervision.
56.When the matter proceeded before me on 4 October 2011, Mr Harris indicated he was no longer seeking orders that the mother's time be supervised but he did not otherwise have a specific proposal as to what time X and Y should spend with their mother.
57.The wife, in her Application in a Case filed on
24 August 2011, seeks orders that the husband's time with X and Y be suspended until further order.
58.It is Mr Harris' evidence that X and Y are at risk in their mother's care. He submitted that he has warned the court, the Department of Human Services, the Police and the report writer of this risk and to date his concerns have all fallen on deaf ears. It is his evidence that X and Y are left alone in their mother's care, that they are in a highly anxious state and there is a high level of conflict between the children that the wife cannot manage.
59.The husband makes specific reference to a recent incident where X allegedly threatened Y with a knife when the wife was out running, which in turn was followed by an incident where he had to take a knife off Y.
60.Mr Harris also referred the court to an abusive letter X wrote to Y and a picture X drew as confirming the highly combative state that currently exists between the children.
61.Mr Harris also has long standing concerns in relation to the severe lice problems that X and Y have suffered from. He holds the strong view that this problem goes untreated when X and Y are in their mother's care.
62.It is his submission that he is the better placed parent to provide X and Y with the care, supervision and nurturing that is needed to ensure that they are properly looked after.
63.It is the wife's submission that the husband's obsession that she is unfit to care for X and Y means they are being subjected to unremitting pressure from their father, such that their psychological wellbeing is placed at risk.
64.It was submitted on behalf of the wife that Mr Harris continues to expose X and Y to his unremitting negative views of their mother and it is his behaviours that have caused the very high level of distress and the behaviours that the children are now exhibiting. It was argued that his recent behaviour in withholding X and Y from their mother, taking them out of school and having them with him at court whilst he filed the applications that are before me, is indicative of his inability to shield X and Y from his beliefs.
65.Counsel for the wife submitted that there was a real risk that as the final hearing approaches, the husband’s behaviours in involving X and Y and incessantly questioning them about their mother and what happens in her household will only get worse, and that the court must have concerns as to how much more the husband will involve them in the court processes.
66.It was submitted on behalf of the wife that the court had to weigh the benefit to X and Y in having time with their father against the real risk of harm and psychological damage to them if they were to spend time with him, especially in the lead up to the final hearing. The wife’s Counsel submitted that the court must take a cautious approach, and if there is to be time between the husband and X and Y between now and the final hearing, any such time should be supervised.
67.The Independent Children’s Lawyer supported the wife’s application that the husband’s time be suspended. He indicated the contents of the psychiatric report of
Dr E and of the reports of Mr P greatly disturbed him and that whilst these reports are clearly untested, it was very apparent that X and Y “need a break” from the unrelenting pressure they are being subjected to by the husband.
68.The Independent Children’s Lawyer expressed concerns that, despite the husband’s denials, the husband is subjecting X and Y to unrelenting questioning about their time in their mother’s home. The Independent Children’s Lawyer expressed concerns that the husband had attended court today with further Applications, documents and pictures. He expressed the strong view that X and Y do not need to be further involved in these proceedings and that the husband will continue to do so and that this behaviour would escalate and worsen over the next six weeks, as the final hearing date approached.
69.The Independent Children’s Lawyer submitted that whilst no time between X and Y and their father for the next six weeks would be regrettable, it was to these children’s benefit that they be afforded six weeks respite from the pressure and conflict to which they are currently being exposed.
70.The Independent Children’s Lawyer indicated that both the experts had absolutely no concerns about X and Y being in their mother’s care and that he too had no concerns about X and Y being in their mother’s sole care.
71.Finally, the Independent Children’s Lawyer did not support any supervised time between X and Y and the husband. It was his strong view that X and Y need a complete break from the parental conflict.
Having considered the relevant factors under section 60cc of the Family Law Act 1975 (“the Act”) in order to determine, as is required under section 60ca of the Act, the best interests of X and Y, I made orders on 10 October 2011 that the time that X and Y live with the husband pursuant to the orders made on 19 February 2009 and 3 July 2009 be suspended until further order.
I also made an order restraining the husband from attending at or being within 500 metres of X and Y’s school, the wife’s residence and the wife’s place of work.
The Evidence
The Wife’s Evidence
The wife relied upon her affidavits filed 20 December 2010,
10 March 2011, 23 August 2011, her two affidavits filed
25 August 2011 and 30 October 2011. She also gave extensive viva voce evidence at the final hearing of this matter.
In support of her Application, the wife relied upon the evidence contained in the following affidavits filed on her behalf:
·Ms Hadfield (her mother) sworn 20 December 2010 and filed 15 March 2011;
·Mr Hadfield (her father) sworn 20 December 2010 and filed 15 March 2011;
·
Ms S (neighbour) sworn 24 March 2011 and filed
28 March 2011;
·Ms K (transcript of evidence of defended Intervention Order hearing before the Sunshine Magistrates Court on 28 & 29 March 2011) sworn 12 July 2011 and filed 20 July 2011;
·Ms F (friend) sworn 21 October 2011 and filed 31 October 2011; and
·Ms M (friend) sworn 24 October 2011 and filed 27 October 2011.
The wife also issued subpoenae for Y’s classroom teachers Ms R and Ms E to give evidence. Both Ms R and Ms E gave viva voce evidence at the final hearing.
The husband advised the court that he did not require the wife’s mother Ms Hadfield, Ms K who transcribed the evidence in the State Magistrates Court or Ms F for cross-examination.
At the final hearing of the matter, the wife’s Counsel advised the court that Ms S was unavailable to give evidence and that his client was no longer relying upon her affidavit filed 28 March 2011.
Mr Hadfield the wife’s father and Ms M, a friend of the wife, gave viva voce evidence at the final hearing of this matter.
The Wife
The wife is seeking orders that she have sole parental responsibility for X and Y, that they live with her and spend no time with the husband until such time as the husband attends for psychiatric treatment and there is a determination by an independent psychiatrist that the husband’s psychological functioning is no longer disturbed and out of balance, and that his insights have evolved such that the risk to X and Y and the wife are removed.
It is the wife’s evidence that her relationship with the husband has always been a difficult one. She described him during the course of the marriage as someone with a very rigid personality, and very strong views who did not accept or accommodate any opinion that differed from his own. She describes a relationship where she was subject to intense intimidation, both verbal and emotional, at the hands of the husband who would physically and emotionally withdraw when his views were disagreed with.
It was the wife’s evidence that in the period that the parties were separated under the one roof, there were two instances of physical abuse by the husband where he pushed and shoved her, as well as an incident where he assaulted her father.
It was the wife’s evidence that since the parties physically separated, she has been the subject of constant and increasingly vitriolic attacks in relation to her parenting capacity from the husband. She reports a litany of complaints from him about the most minor of incidences and that any reasonable explanation or denial of those complaints are not accepted by the husband, who accuses her of being a negligent mother, of being manipulative, of being a compulsive liar and of placing the children at risk whilst in her care.
It is the wife’s evidence that the husband has reported her to the Police, the Department of Human Services, the children’s school, the children’s kindergarten and daycare centres, to Centrelink, to the Child Support Agency and has continuously taken his concerns to friends and acquaintances.
It was the wife’s evidence that she has been the recipient of continuous, abusive and demeaning emails from the husband over a period of almost two years. The wife annexed to her affidavit sworn 22 December 2010 and filed 11 January 2011 a selection of the hundreds of emails received by her from the husband between 19 November 2009 and 29 October 2010 in relation to her alleged poor parenting and in particular to what can best be described as the husband’s obsession about X and Y having lice in their hair and his belief that the failure for this problem to be eradicated arose from the wife’s failure to properly treat this issue.
It is tempting to include those emails in this judgment in their entirety in order to demonstrate their frequency and vitriole. However they run to hundreds of pages and accordingly a snapshot of a sequence of the husband’s emails to the wife that is illustrative of the tenor of his email communication is set out below:
26 August 2010
Ms Hadfield,
Re Lice
Why is it that there is continuously available evidence of lice in X & Y's (sic) hair on returning to my care for 6 months now and using the same methods and treatment I do not find lice when the kids leave my care?
On the off chance that you have bothered to check [or apply effective treatment to] your children for lice last time they were in your supposed care, you might have noticed that both had lice – still. Y more so than X. Given your repeated lack of adequate treatment, you can now be proud of the fact that both your children have developed scabs from lice whilst in your presence [not care]. Check Y – top, left, rear. That is appalling and inexcusable. Had you read and acted on what has previously been provided to you, this would not be occurring.
i.e. daily treatment with conditioner [leaving in hair] on the days not treating with insecticidal treatments.
You might also consider drying your children’s hair with 2 fluffy towels – one light in colour and one dark in colour. If you bothered to do this and check you would find lice trapped in the towels even after combing. [Although there is doubt around wether (sic) you have even made the effort to comb the kids hair – especially when I can on pickup spot lice in their hair.]
Using 2 coloured towels will help you to identify lice of opposing colour to the towels.
Ms Hadfield – whilst recognising by your own admissions that you were sacked as a (omitted) on multiple occasions, perhaps there is still hope that you could follow some basic health care procedures.
Given that in marriage you did not listen to good advise (sic) from myself, I am under no illusion that you will come to your senses in divorce. Accordingly I have provided the kids school with a sample of the lice taken from the kids hair on their being in the care of myself over the last 5 day period. Noting live lice were in this sample, as such proving their recent removal.
The school advised, a health care professional will be appointed to assist with treatment/education. Perhaps you could listen and act on the advice you receive if you hear the same advice from others.
You can be extremely proud that this is a rare event not needed for other parents. i.e. other parents are able to resolve the issue – what is your excuse?
Whilst acknowledging that all lice can not be eliminated overnight, however if I ever again see more than 10 adult lice on either of the kids at any time they shall not be returned to you until such time as they are cleared of lice and that you are able to demonstrate an ability to manage lice should there be a reinfection. I shall seek to have court orders discharged later as required.
Note you may wish to count the lice in the sample handed to the school – the kids lice count has exceeded that threshold by ~ 3 times on this occasion. i.e. the worst level of infection since returning to my care during the school holidays.
Re Handover
The children shall be at the school disco for you to pickup at 7:30pm.
Re Call Return
Kids attempted to return your call last Sunday – however you were not home.
Regards
From a competent parent
27 August 2010
Don’t bother to provide thanks [albeit no doubt not meant sincerely] just pay some attention to the needs of your children for a change and do like a normal parent and produce a basic outcome – i.e. assist in getting rid of the lice.
Perhaps you could redirect your character lacking efforts at denigration to actually doing something productive like combing your children’s hair.
That way you might actually notice the scabs or the skin in Y's hair. Would you like the photos of his hair – on coming into my care yesterday?
29 August 2010
1)Are the pickup and after school arrangements for your children appropriate when in your alleged care? You wouldn’t be feeding your daughter with words again would you?
2)Do you really think it is appropriate to expose your children to the people that you do? E.g to the sleepovers of someone who is schizophrenic with a violent past. As if the outcomes of (omitted) were not enough. People who commit suicide?
3)Re Quit Nits – seem to remember you received medical advice after noting this treatment was ineffective months ago. Wouldn’t it be wise to listen to medical advice then follow it? i.e. can you figure out why the kids father can get the lice out of hair and stop the kids from developing head scabs but the mother won’t (not can’t)?
4)Haven’t you forgotten to apologise for your actions re X’s birthday. – I’m sorry I forgot, of course you would not know how to. Perhaps you missed your calling, your kids welfare would have been more secure had you become a lawyer. But even better still just stop the denigration and manipulation.
5)Re call of 22/8 – yes fax was on that day – no you have not dialled the wrong number – just listened to your message on the phone today.
6)What class of individual tells here (sic) daughter to get off the phone, after your daughter checks with you as to which phone to use, then has the phone intended for use engaged. (Answer the same class of individual who abuses her own son the night before when he needs to speak to his father.) Of course you would not try to minimize the time your children can be in contact with their father would you or be attempting to discourage ringing? As I said before Ms Hadfield the clock is ticking and the bell tolling. Time will see the chickens come home to roost. It would seem you are oblivious to the constant requests of your son for more Dad time or your daughters comments – Any idea what you might have done in recent weeks for cause an escalation here????? Does the night of your daughter’s birthday give you a clue? Note others have also noted the resulting change in her behaviour over this time too. Proud of yourself are you Ms Hadfield?
7)Also forgot to mention – next year instead of preventing your daughter from going to (omitted) birthday party, perhaps it would be better if I took her, that way X & (omitted) contact is not disrupted as a result of your actions.
8)Also what class of individual then does not return a call both when emailed and SMSed. - Answer the same sort that has blocked calls from the father to the children for 1 year +. Grow up Ms Hadfield.
9)Perhaps it would be pertinent to turn up to X’s gym class, whilst the children are occupied, we could publicly discuss the relative quality of care – of course I can bring pictures to show the other parents too. That way they can see the facts for themselves. But don’t you think it would be better if you woke up to yourself and actually put some effort into treating your kids heads? [But be in no doubt I will not hesitate to publicly shaming you if that is what it takes to get you to act appropriately. How many copies to pictures and other material do you think I should make in preparation?]
10)Re children’s health to communicate, please call on 0402187879. Why waste breathe when you already have all the solutions required in writing [which you can read slowly & multiple times if needed until you get the message]. All that needs happen is you read and do as you have already been advised. Besides it has been noted by many that your auditory input and verbal output is not the best. [Even your mother has made comment of this – just in case she has forgotten it was right around the time she said ‘All I want to do is have a normal relationship with my daughter’.] She is not the only person to have noted this of you. By way of another example recall how for 6-12 months when your kids were young how you needed my translation of what you (sic) children were saying to you. Combined with the fact that I confess to not suffering fools lightly and become impatient in their presence it is probably best that you just [re]read all relevant information slowly at a pact you can absorb. That way at least the lice issue can be dealt with. With regard to the psychological stress you have put your kids under by your actions, as per previous correspondence I shall seek the counsel of an expert and relay the message to you accordingly. Re Y's mouth – yes I have been treating this too. Are there any other kids health issues to be addressed? When is their next trip to the dentist?
2 September 2010
Ms Hadfield,
A decent parent does not use her 8 year old daughter to ask if/where her father is working. It is so obvious that this is the case, when it is the first question X asks on seeing me [again]. (Just in case you don’t realise that is not the normal behaviour of an 8 year old girl.) Further it is not normal for an 8 year old girl unprompted to be shouting in public that her father is blaming her mother for ‘the kids having lice’. Note the shouting actually preceded the question. Both of which were observed by others. A decent parent would not engage in behaviours that deliberately involve their children. But please you just go on denying the reality of what you are doing and don’t give a thought for the impact you are having on your children.
It is events like these that only reemphasise the need for the kids to get to a psychologist to assist in the repair the damage done. Accordingly please sign the consent form ASAP.
Then of course there is the fact that both X & Y are extremely clingy on coming into my care. This is far more than a variation in parenting styles.
Also X advises of Y being angry and asking of you ‘why are you being so angry with me’?
X has regressed to being in tears and asking for / needing Dad time immediately on entering the house – despite having her friends / other kids present.
These are far from the normal actions of two healthy kids.
Do you have even the slightest preconception of what the kids are going through? Could you possibly put your kids needs over and above your own, by ceasing to manipulate them?
Have you given any thought to the impact of your blocking the kids from having phone contact with myself?
Have you given any thought as to why X needed to talk to me last week?
Have you given any thought as to why X in tears in my arms today says without being prompted ‘that she is like this when at mums too’?
Have you given any thought as to why Y has separation anxiety re my leaving when at the kids disco at school?
Have you given any thought as to why Y’s first questions when on the phone to me are around when he comes to Dads place for another 5 days. ‘and 5 days and 5 days and 5 days and 5 days’ as he said.
Have you given any thought as to why Y was wanting to keep talking to me when you took the phone off him. Do you think a decent parent does that followed by your comments to him at the time?
Have you given any thought as to why he constantly asks to stay here, week after week?. i.e. not return to you? This is far more than gender identity.
Hopefully you will realise the gravity of your actions prior to further damage being done to your kids.
Please give consideration to the kids being in my sole custody until you can get your act together and learn how to act appropriately.
The Bell Tolls once more.
Signed A Decent Parent
Mr Harris
It was the wife’s evidence that the husband has been physically and verbally aggressive towards her in public places, particularly during 2010.
It was her evidence that at the hearing of her Divorce Application before Registrar Price in the Federal Magistrates Court on
23 March 2010, the husband verbally abused her and amongst other things told Registrar Price that the wife had taught X to
“tongue-kiss”, that a friend of the wife had taught X to punch and accused the wife of being a liar.
It is the wife’s evidence that on 17 July 2010, X’s birthday, the husband arrived to pick up X and Y at 11.00 am, some one hour later than the orders provided. It was the wife’s evidence that when the husband arrived, X and Y were playing in the front yard. When the husband arrived, she asked X and Y to go inside to get their shoes and jumpers on so that they could go with their father.
It was the wife’s evidence that the husband became very aggressive and agitated, waving his arms aggressively and yelling loudly in front of the neighbours:
“look what she has done to them.”
It was the wife’s evidence that when the children came outside, he stayed five minutes outside the home with both children draped around him rather than leaving quietly and diffusing the situation.
It was the wife’s evidence that later that evening, she held a birthday party for X at a restaurant in (omitted) to which a number of other children were invited. It was her evidence that the husband arrived uninvited during the evening. It was her evidence that in order to keep a pleasant atmosphere for X on her birthday, she invited the husband to join them for a meal but that he refused to do so. Instead the husband sat in a different part of the restaurant and spoke to X for 10 minutes before leaving. She said this was very upsetting and disturbing for X, as well as for herself.
It was the wife’s evidence that on 22 October 2010, she collected Y from the husband at the (omitted) Reserve in (omitted). At changeover, the husband accused the wife in a loud voice of poor parenting, waved his arms around and behaved in an aggressive and intimidating manner. It was the wife’s evidence that Y became very distressed at this interaction between his parents. It was the wife’s evidence that this interaction was observed by another lady in the park who came up to the husband and said to him:
“You are an arsehole.”
It was the wife’s evidence that after this incident at the (omitted) Reserve and given the continuous litany of abusive emails that she was receiving from the husband, she made Application for an Intervention Order to the Sunshine Magistrates Court. An Interim Intervention Order was made which injuncted the husband from being able to enter into the former matrimonial home or come within five metres of the wife.
The wife’s Intervention Order Application proceeded to a defended hearing before Magistrate Cure on 28 & 29 March 2011.
The wife placed into evidence before this court an affidavit of Ms K, the proprietor of the business registered as (omitted). Annexed to Ms K’s affidavit was a transcript of the evidence heard and the rulings of Her Honour arising from the defended proceedings in the Sunshine Magistrates Court on 28 & 29 March 2011.
Her Honour had before her evidence of the emails from the husband to the wife, some of which have been reproduced in this judgment.
In addition, Her Honour heard evidence in relation to two alleged incidences of physical aggression by the husband. The first related to an incident where the wife alleged the husband had pushed her. The second related to an alleged incident of violence by the husband towards the wife’s father Mr Hadfield which took place on 29 July 2010 outside the wife’s home. This incident will be touched on further in this judgment when discussing the evidence of the wife’s father.
The husband vigorously refuted the allegations made by him in relation to these incidences when the matter was before the Magistrates Court.
Having heard two days of evidence from the parties and from the wife’s father, Her Honour made the following findings:
“Having looked at the exhibit of the witness statement of Ms Hadfield, which is a voluminous document containing 30 or so copies, copies of 30 or so emails or letters sent by the respondent to her and to her family and to her solicitor. I find those communications, notwithstanding the undertaking given by the respondent to the court in December 2008, to be belittling, degrading, harassing, threatening. They’re venomous, they are appalling communications. It is quite clear that he goes well beyond the concept of communicating re the child’s needs, and again in court I’ve seen the venom with which he deals with his ex partner. He referred to her yesterday as a swine. He referred to her today in cross-examination to Mr G as your little friend or that person and it’s concerning almost to an alarming degree just how his conduct towards his ex partner seems to have escalated. I don’t know whether he has always behaved in this manner towards her but it is unacceptable in the extreme and I am very concerned about it and I will be imposing an order that prohibits absolutely any contact with her other than the barest minimum required.
I accept the version given by Ms Hadfield and her father,
Mr Hadfield, with respect to the events on two occasions involving physical aggression towards them but I note that that’s on the balance of probabilities. What concerns me most is the lack of insight that Mr Harris has into his conduct. The lack of acceptance he has of the impact his behaviour has on others, and ultimately, he may pay a very dear price with his children’s wellbeing by thinking he is acting in their interests when it is certainly not in their interests to alienate and denigrate the other people in their lives. And, it is a particularly harmful course of conduct.”
The wife sought to have X and Y included in any Intervention Order made. Her Honour acceded to that Application as she was satisfied that the children, as well as the wife, were being exposed to the husband’s family violence.
Her Honour then made an order that an Intervention Order issue that prevented the husband from coming within 500 metres of the wife’s place of residence, her place of employment and the children’s school. Her Honour ordered that such Intervention Order remain in place for a period of eight years. Her Honour ordered that the husband pay the wife’s costs of one day of the defended hearing.
Her Honour also ordered that all changeovers between the parties in relation to X and Y were to take place at the (omitted) Police Station.
The husband appealed the orders made by Magistrate Cure. On
5 August 2011, the County Court varied the Intervention Order so that the period for the Intervention Order was reduced to two years, the children were removed as protected persons and restricted the husband from attending the former matrimonial home only.
It was the wife’s evidence that because of financial constraints, she was self-represented at the appeal and that much of the evidence that had been placed before the Magistrate at the Sunshine Magistrates Court was not put before the County Court.
The Independent Children’s Lawyer questioned the wife about the impact on her of the variation of the Intervention Order by the County Court. It was the wife’s evidence that after Magistrate Cure first made the Intervention Order she felt she had a period of peace, her adrenaline came down and she started to sleep better.
It was the wife’s evidence that the husband said in both the Magistrates Court and again in the County Courtroom, after what he perceived to be a successful appeal, that he was not going to stop. It was the wife’s evidence that she genuinely believes this is how the husband feels and that he will continue to pursue his belief of her and her alleged poor parenting unremittingly. It was her evidence that with the removal of the restrictions in relation to the husband being able to attend X and Y’s school, the husband attended at the school on at least three occasions when the children were in her care and that accordingly:
“I became hyper-vigilant again. It affected my sleep. I was shaking – like, after that court case, I had five blankets, a doona and a hot water bottle, but it has had a physical affect on me.”
It is the wife’s evidence that the husband’s campaign of complaint about the quality of her parenting to external third bodies has been unrelenting. In paragraph 135 of the wife’s affidavit sworn
22 December 2010 and filed 11 January 2011, she describes it in the following terms:
135.I feel that there is a constant storm around the children and I created by our dealings with the Respondent and I feel I am always in defence mode. The school, crèche, other parents, kindergarten, Department of Human Services, Child Support Agency, Social Administrative Appeals Tribunal, Family Assistance Office, General Practitioners have all somehow been involved in active approaches by the Respondent to complain, and discredit and what I believe is an intense uncontrollable and unfounded anxiety about the care of his children founded in a belief that I abuse the children.
It is the wife’s evidence that the husband’s belief that she is an unfit parent, his continuous criticisms of her, his continuous complaints about her to the relevant authorities, including the Department of Human Services, the Police and the children’s school, have left her in a continued state of heightened anxiety and of hyper vigilance. It was her evidence that this has severely impacted her parenting to the very real detriment of X and Y.
It is the wife’s evidence that the husband’s behaviour is also impacting negatively on X and Y. It was her evidence that after X and Y returned to her care after spending time with the husband in the second term school holidays in 2011, there was a marked deterioration in their behaviour. She described an increase in tantrums from both children, major issues with Y at school in him acting out and being inattentive, X insisting on sleeping in the wife’s bed or in her bedroom and X telling her that she was scared of changeovers with her father.
It is the wife’s evidence that she genuinely believes that X and Y are subjected to intense pressure from the husband to disclose events that occur in her household and that any small incident reported by them is blown out of all proportion by the husband such that X and Y become embroiled in the husband’s beliefs of her inadequacies. This results in them being questioned by workers from the Department of Human Services, by their teachers and by other third parties.
It was the wife’s evidence that since the orders of 10 October 2011 were made, suspending the time that X and Y live with their father, there has been a marked improvement in X and Y’s behaviour and emotional equanimity.
The wife described X as more settled and secure. X is now sleeping in her own room and is described as laughing more often and being more positive and cheeky in a nice way.
The wife described Y as having displayed disturbing behaviour for most of the third term of 2011, being clingy or swearing at her including calling her “a fucking idiot”. Since October 2011, the wife describes Y as more settled, less stressed and more secure. She also gave evidence that Y’s participation in learning and his behaviour at school has improved measurably, something that both his teachers have commented on positively to her.
When cross-examined by the Independent Children’s Lawyer in relation to the relationship between X and Y, it was the wife’s evidence that it was much better since they had stopped spending time with their father.
When asked to describe their relationship, the wife’s evidence was as follows:
“If either one has gone away to (omitted), the other one really misses the other one and really wants them to come back which I think is nice. X, when we’re doing reading and that at home, and she’s always wanting to help Y and sets him out little exercises and things to do. They have, I think, healthy sibling rivalry. They’re quite competitive and I think, you know, they – it has been difficult, too, for X because Y has had so many tantrums and been moody, it’s quite stressful for her. But, as we’ve – I think it has better. The last couple of weeks has been – I can’t describe to you how substantially different our lives have been – substantially different because their behaviour is so much better. They love each other, you know.”
In the wife’s affidavit sworn 30 October 2011 and filed
2 November 2011, the wife deposes as follows:
70.That the actions of the Respondent have taken their toll on me. I fear to believe that I can have peace and be a parent without the continued and negative interference of the Respondent. The impact has been significant upon me.
71.I do not believe that the Respondent will ever give up his pursuit of me and to seek sole custody of the children.
The Independent Children’s Lawyers asked the wife to explain this more fully. It was the wife’s evidence as follows:
“I think the parent that I want to be – when you’re in an abusive situation continuously, your, like, sleep, for example… Like, these children need a lot of parenting from what they’ve been through and they need – and I need to be free of abuse to give and be totally in the moment with what’s going on for Y and X, and I've been able to do that. I have been able to do that. I feel much better about myself the last six weeks because, under some situations where the kids have had a quarrel or whatever, I'm able to go in and deal with them in a way that they need to be dealt with, and it doesn’t go for as long, there’s a better outcome and everyone is back to where they need to be faster, and, when you’re actually dealing with another party that’s attacking all the time, you don’t know when it comes out, what it’s going to be, it’s exhausting… I think I've got greater capacity to parent more positively without abuse, basically, in a more, you know, consistent way.”
In paragraph 72 of the wife’s affidavit sworn 30 October 2011 and filed 2 November 2011, the wife deposed as follows:
72.I fear the children’s emotional wellbeing. Not only due to a fear that any time with the Respondent will be (sic) involve the questioning of them in regards to me and thus continue the stress they currently experience but that the Respondent’s mental state will at some point impact directly on them. That is that his own desire to prove himself right and the bitterness in which he does so seek to prove same will rebound on the children should they seek to challenge him or if he perceives that he is not winning.
When asked to expand on that, the wife gave the following example:
“So, X wanted the phone, she wanted to call me, but he doesn’t want any contact. So, for her to survive in her house, she has either got become a very suppressed and submissive person, okay, to survive. Her other alternative is to act out and become rebellious.”
In relation to the husband, the wife agreed that the children love their father and that they have good times with him. She gave evidence that since the children had stopped spending time with their father, Y in particular had told her that he was missing him and wanted to see him again.
It was the wife’s evidence that she believes the husband is unable to alter his behaviours and will continue to involve the children in his intense dislike of her and his very low opinions of her capacities as a parent. It was her evidence as follows:
“I think – my perception is there’s a lot of anger and things that get emanated from Mr Harris. I think he is really angry. Unfortunately, I think he just literally just hates my guts, and that that’s hard for him to contain… I don’t believe he has the capacity to hide how he actually feels about the other carer. I also believe that, when children see one of the other parents under threat, they become hyper-vigilant and anxious for that parent and I think that’s what happens in our situation.”
It was the wife’s evidence that she had initially thought limiting the husband’s time with the children to alternate weekends and having sole parental responsibility for the children would enable her to deal with all the relevant authorities with minimal interference from the husband. However, it was her evidence that she now regards this as hopelessly optimistic and that for she, X and Y to be able to live a happy and normal life, the children’s time with the husband needs to be suspended until such time as he genuinely addresses his behaviours and is able to show that he has developed the requisite insight into those behaviours and their impact on the children such that he is able to change the way that he behaves.
Mr Hadfield
Mr Hadfield is the wife’s father. He swore an affidavit on
20 December 2010 which was filed on 15 March 2011. Mr Hadfield also gave viva voce evidence at the final hearing of this matter.
It was Mr Hadfield’s evidence that on 27 July 2010, the wife asked her to be at her home when X and Y were returned by the husband at the end of their time with him. It was his evidence that the wife had been working in (omitted) that day and would not be returning until after the conclusion of the children’s time with their father.
It was Mr Hadfield’s evidence that a friend of the wife’s, Mr K, was in the home with him at that time.
It was Mr Hadfield’s evidence that at approximately 7.00 pm he went to the front of the house and stood on the footpath waiting for the husband and the children to arrive. It was his evidence that the husband pulled up in his car a couple of houses down from the wife’s home and that when the husband got out of the car he was holding his phone appearing to take photographs of the vehicles parked in the street.
It was his evidence that the husband approached him in an agitated and aggressive manner, that he was verbally abusive to him, nearly poked him in the eye and then proceeded to push him in the chest so that he fell over.
It was Mr Hadfield’s evidence that X pleaded with her father, saying “Dad, stop it, for once in your life, take notice of me" and that Y was crying.
It was his evidence that he and the children then went into the house and the husband left.
The Independent Children’s Lawyer questioned Mr Hadfield in relation to correspondence received by he and his wife from the husband dated 20 June 2010.
In particular, the Independent Children’s Lawyer referred to the following passages contained in that correspondence:
“Further so there is not the need for repeated correspondence between ourselves I bring to your attention matters related to last Christmas. Prior to the children being in (omitted) the kids indicated there would be an extended family gathering. My concern here relates to those who may be present in addition to your immediate family. Under most normal circumstances, I expect your combined judgements would not see the exposure of my children to less desirable elements of your extended family. And again, so you do not misconstrue these words, I do give you credit under normal circumstances for having the common sense not to allow these individuals near my children.
However, my concern remains, as it cannot be denied that from time to time there are substantial abnormal lapses in judgement, reasoning and common sense by yourselves and your daughter.
Accordingly, I ask that you provide an assurance that my children will never be exposed to anyone with a criminal record whilst in your care. This definitely includes any sex offender or prostitute to which of you are related. Again to emphasise the positive, I believe that in normal circumstances you would not allow these people near my children, not withstanding as above I seek your assurance that there shall never be contact between these people and my children.”
It was Mr Hadfield’s evidence that for both he and his wife, this correspondence was shattering and that he had never seen anything like it in his life. It was his evidence that it distressed both himself and his wife to the degree that they both lost sleep.
Ms M
Ms M is a friend of the wife. She swore an affidavit on
24 October 2011 which was filed on 27 October 2011. She also gave viva voce evidence at the final hearing of this matter.
It was Ms M’s evidence that she had been a friend of the wife for some nine years and that she has children of a similar age to that of the parties’ children in these proceedings.
It was her evidence that on 17 July 2010, she was attending a birthday celebration for X at the (omitted) Restaurant in (omitted) with her two daughters.
It was Ms M’s evidence that the husband arrived sometime into the birthday party and that he was invited by the wife to join the gathering to have something to eat. It was her evidence that the wife spoke in a pleasant tone, but that the husband did not respond or talk to either the wife or herself, but rather removed X to a different part of the restaurant where he spoke to her for some 10 to 15 minutes before departing.
It was Ms M’s evidence that at no time did she hear the wife raise her voice to the husband during this encounter.
Ms R
Ms R is one of Y's Grade One teachers in 2011.
Ms R was subpoenaed by the wife to give evidence at the final hearing of this matter.
It was Ms R’s evidence that she works on a 0.5 basis at (omitted) Primary School, teaching three days in one week and two days in the following week.
It was Ms R’s evidence that Y started off the year performing below average, particularly in reading and writing, and that this had continued throughout the year. It was her evidence that Y has always had trouble focussing and keeping on task, but at the end of Term Two 2011, she noticed a very big difference in his application to his work.
It was her evidence that Y became very anxious and very emotional, and that he was having real trouble focussing on his learning. She described his attitude as negative, particularly towards reading, and that it was very hard to get him to engage in and finish his work.
It was Ms R’s evidence that since the commencement of Term Four 2011, Y has been much more focussed. She described Y as more settled and more relaxed, and getting more work done. She said she has seen a much more positive attitude to writing, though he still has a problem with reading.
In terms of Y’s behaviour, Ms R’s evidence was that his behaviour deteriorated as the year went on and that he showed some oppositional behaviour. She described him as a very sad and emotional boy who lacked resilience.
Ms R described an improvement in Y’s behaviours since the commencement of Term Four 2011, in that he looks a much more relaxed and happy boy. She described him as smiling and that other members of staff have mentioned how Y looks more relaxed, happy and smiling, and that he is even cracking jokes. Ms R indicated that he was not as emotional and that where as previously he tended to overreact to situations and become rather “sooky” in his behaviour, that this has abated.
Ms R was asked whether she had observed any teasing by X of Y whilst they were at school. It was her evidence that she didn’t think that teasing between X and Y was an issue, and that it was just part of the day to day “argy bargy” of being in a family. It was her evidence that the teasing between X and Y was minimal and no more than any other siblings in the school community.
When specifically questioned, it was Ms R’s recollection that she could only recall two instances of there being any real issues between X and Y, and on both those occasions it was Y who was the initial protagonist and that an argument had escalated from there.
Ms R was questioned if she had a view as to whether Y required speech therapy, as this had been a matter raised by the husband in the interim proceedings before the court.
xIt was Ms R’s evidence that Y has a slight lisp, which is quite common in children of his age, and that they often grow out of it. It was her evidence that children at this age lose their teeth which can give them that lisp. It was her evidence that she didn’t think Y had a serious speech impediment.
Mr R was asked in relation to the issue of lice for children in primary school. It was her evidence that whilst teachers are not allowed to actually check the children’s heads for lice, they do see live head lice crawling over a child’s head and when that happens they ring the parents and ask that the affected child be picked up from school. It was also her evidence that as teachers they often see children scratching their heads and will tell the children they need to get their heads checked. It was Ms R’s evidence that in Grade One in particular, head lice is a very common occurrence. The children sit next to each other and their heads are touching which causes the lice to spread though the classroom. It was Ms R’s evidence that lice infestation in young children has been an ongoing issue in every school across the State for a very long time.
Ms R did not comment that Y had any greater issues with lice than other pupils in her class.
Ms R was asked whether she had ever had any issue with how Y presented to school in terms of there being holes in his shoes or dressed in the incorrect school uniform. It was her evidence that she could not recall any issues of this type in relation to Y.
Ms R was asked about the possibility of counselling for Y. It was Ms R’s evidence that whilst she thought that Y might benefit from having someone independent that he could confide in, she did not think Y needed psychological counselling. She indicated that little boys often don’t like sitting and talking and eyeballing someone. She indicated that she was not sure if Y had a counsellor that he would engage with that counsellor and that there was every chance he may just clam up and not be a willing participant.
xIt was Ms R’s evidence that Y has had and continues to have real difficulties with separation anxiety when dropped by either of his parents at school. It was her evidence there had been some slight improvement since the commencement of the Term Four 2011 but it was still an issue that needed to be worked on.
Ms E
Ms E is also Y's Grade One teacher with a similar 0.5 loading to Ms R.
Ms E was also subpoenaed by the wife to give evidence at the final hearing of this matter.
It was Ms E’s evidence that towards the end of Term Two 2011, Y’s behaviour deteriorated. She described him as anxious, with low self-esteem, low confidence, that he was stressed and “a bit frazzled”.
It was Ms E’s evidence that during this period, he was complaining of tummy aches and tooth aches.
It was Ms E’s evidence that in Term Four 2011 there had been an improvement in Y’s behaviour. She described his body language as changing so that instead of being hunched over and tense, he was holding himself better. Ms E described Y as making a few more jokes and that she had been able to use humour with him to bring him out of a situation where he might be upset. She described him as a much happier boy though, like all children of his age, there are good times of the day and bad times of the day, particularly when he gets tired towards the end of the afternoon.
It was Ms E’s evidence that there had been no complaints by Y of tummy ache or tooth ache in Term Four 2011. She understood however that in relation to his tooth aches, Y had extensive problems that had been addressed by dental intervention.
xIt was Ms E’s evidence that there had been no outbursts of anger from Y in Term Four 2011, whereas previously if someone had said something to him he didn’t like there might be an abrupt word or maybe even a push.
Ms E confirmed that Y is performing at below expected educational levels in relation to reading and writing, and that he was just a little bit behind in maths. She confirmed that she and Ms R had recently reintroduced some one-on-one reading interventions to assist Y in this area.
Ms E was questioned in relation to the husband’s attendance at the school with Y on the morning of 23 August 2011.
It was Ms E’s evidence that on that morning, Y’s class was performing at the school assembly and that she was very busy organising her class for that performance.
It was her evidence that the husband approached her in something of an agitated manner asking to speak to her urgently some five minutes before the assembly was due to start. Ms E indicated that she asked the husband if he would remain behind until she had got her class through the assembly, but that he insisted upon speaking to her immediately.
It was Ms E’s evidence that because of the husband’s insistence, she had to leave the children in the hall and go into a side room to speak to him as it wasn’t a discussion she wished to have in a public area. It was her evidence that Y was with the husband during the entirety of his discussion with her.
It was Ms E’s evidence that she explained to the husband that she did not have the time to commit to dealing with the problem, and again asked him to stay behind after the assembly so that she could give it her appropriate attention. It was her evidence that she was able to get the attention of an Assistant Principal, who then proceeded to deal with the matter directly with the husband and that she was then able to return to the assembly and to the appropriate management of her students.
It was Ms E’s evidence that she did not notice any particularly different behaviour from Y on that day, and that he did not raise the incident between himself and X with her.
Ms E also confirmed in her evidence that Y had separation anxiety when leaving either of his parents in the mornings, but that she too had noticed some slight improvement in this regard in Term Four 2011.
The Husband’s Evidence
The husband relied upon his affidavits filed 13 March 2011,
27 June 2011, 24 August 2011, 4 October 2011 and 8 November 2011. The husband also gave lengthy viva voce evidence at the final hearing of this matter.
In support of his case, the husband relied upon the evidence contained in the following affidavits filed on his behalf:
·Mr M (omitted) friend sworn and filed 25 August 2011;
·
Ms D (friend) sworn 6 November 2011 and filed
8 November 2011;
·Mr Harris and Mrs Harris (husband’s parents) sworn 7 November 2011 and filed 8 November 2011;
·Ms S (friend) sworn and filed 10 November 2011;
·
(omitted) (friend) sworn 8 November 2011 and filed
10 November 2011;
·
Mr H (friend) sworn 8 November 2011 and filed
10 November 2011; and
·Dr K (husband’s psychologist) sworn 9 November 2011 and filed 10 November 2011.
The husband advised the court at the commencement of the hearing he had subpoenaed Dr S, the psychiatrist the wife attended in 2004, to give evidence at the final hearing. Having viewed Dr S’s file in relation to the wife, which he had also subpoenaed, the husband advised the court during the running of the matter that he would not be calling Dr S.
Counsel for the wife and the Independent Children’s Lawyer advised the court that they only wished to cross-examine the husband’s parents and Dr K and that they otherwise did not challenge the contents of the affidavits of the witnesses relied upon by the husband.
Accordingly, the husband’s parents and Dr K gave viva voce evidence at the final hearing of the matter.
The Husband
The husband is seeking orders that he have sole parental responsibility for any decisions in relation to medical treatment for X and Y, that X and Y live with each of the parties on a week about basis, that there be a sharing of school holidays and special occasions, and a number of specific orders, the details of which have already been set out earlier in this judgment.
It is the husband’s evidence that the children, and Y in particular, wish to spend more time with him than the February 2009 orders provided for prior to their suspension.
The husband holds a genuine belief that X and Y are at risk in the care of the wife and that since separation there have been a number of serious and ongoing incidences of neglect and harm to X and Y whilst they have been in the wife’s care.
Given the importance placed by the husband on these alleged incidents of neglect or abuse by the wife or by others when X and Y were in her care, I intend to deal with each of them in turn. I will also detail the wife’s response to each of these allegations.
Lice Infestation:
It is the husband’s evidence that X and Y have both been continuously plagued by lice in their hair since the beginning of 2010.
It is the husband’s evidence that whilst he accepts it is common for young school aged children to have issues with lice, the level of X and Y’s infestation is greatly in excess of that normally experienced by young children or experienced by any of the other children at X and Y’s school.
It is the husband’s evidence that the inability to eradicate X and Y’s lice infestation is as a direct result of the wife failing to properly treat X and Y for lice when they are in her care.
It was the husband’s evidence that he has endeavoured to assist the wife in the proper treatment of X and Y’s lice. In paragraph 148 of the husband’s affidavit sworn and filed on 11 March 2011, the husband deposes as follows:
“Ms Hadfield has received from myself lice insecticidal treatments, hair conditioner, a two rowed lice comb, electronic combs, thin cotton gloves (to prevent the children from scratching their heads at night), information from the health department and other lice related information from myself on the topic of lice as the children have continued to enter my care in an unacceptable state. My children have advised that Ms Hadfield has not utilised the treatments suggested to effect…”
When questioned as to his treatment of X and Y’s lice problem, it was the husband’s evidence that upon X and Y arriving at his home each Thursday, he immediately inspects their heads for lice and in the event that he observes any lice or eggs, he rushes the children into the bath to wash the lice from their hair and applies the appropriate treatment to their heads, whether it be the use of an insecticidal lice treatment, the use of a conditioner and towel, the use of combs or other recommended treatment.
It was the husband’s evidence that both X and Y’s infestation has been so extreme that they have both had scabs on their heads. It was his evidence that he has photographed the children’s heads to show the severity of the infestation. In addition, he has retained samples of the lice that have been removed by him from their heads. He did not produce these photographs or samples to the court in his evidence.
The husband agreed that he had attended at X and Y’s school with the photographs he took of their lice infestation as well as samples of lice he had removed from X and Y to illustrate the severity of the infestation and his concerns as to the level of care being provided by the wife in relation to its treatment.
The husband also agreed that he had taken up with the school their failure to comply with Department of Education policy that in the event the school was aware of a child having a lice infestation, a “green notice” should be sent home to the parents of all children in the class so that they would be alerted to the necessity to check their own children in the case of the lice having spread throughout the classroom.
When challenged as to whether he had become somewhat obsessed about X and Y’s lice problems and was therefore somewhat hyper vigilant and over-sensitised to this issue, the husband conceded that he does not like lice but was adamant in his belief that the level of infestation experienced by X and Y greatly exceeded that of other children and that he would continue to monitor them accordingly.
The quantity and tone of the emails sent by the husband to the wife in relation to the lice issue has been set out previously in this judgment and will not be repeated again.
In paragraph 143 of the husband’s affidavit sworn and filed
11 March 2011, the husband in responding to the wife’s affidavit sworn 22 December 2010 in which she deposed that the husband had repeatedly sent harassing and abusive emails to both herself and third parties in relation to his concerns about the children’s lice issue stated as follows:
143.LGH110) LGH claims repeated and obsessive and abusive correspondence concerning the care of the children. It is her lack of care of the children that is abusive. The emails are many and have been served as a means of documenting the circumstances and the lack of care provided by Ms Hadfield. The children were constantly coming into my care over a 2 week cycle with lice and nits at varying stages of maturity for an entire school year. Only to be treated with effective result, leaving my care without lice, only to return for the next fortnight with lice again.
It is the wife’s evidence that she has treated X and Y’s lice in accordance with the requirements of best practice. It was her evidence that she takes the children having lice in her stride and accepts that given their ages, there will be re-infestation which has to be managed if and when it occurs.
It was the wife’s evidence that because of the constant harassment by the husband about this issue, she attended the children’s school and spoke to the school principal on 26 August 2010. The school principal advised her that she did not think X or Y’s lice infestations were any greater than those experienced by other children within the school.
It was the wife’s evidence that she also took X and Y to see her General Practitioner and the maternal and child health nurse who re-affirmed with the wife that her care and treatment of the children’s lice was appropriate and accorded with best practice.
Children left in the care of persons with psychiatric illness:
It was the husband’s evidence that the wife had left X and Y in the sole care of a gentleman by the name of Mr A, who he understands to be a person who is in receipt of a permanent psychiatric disability pension.
It was the husband’s evidence that he does not believe it is appropriate that X and Y should be cared for by Mr A given his mental illness.
It is the wife’s evidence that Mr A is a longstanding family friend, being the brother of one of her girlfriends. It was her evidence that she is unaware of the current state of Mr A’s mental health, but that when he was in his late teens, she was advised by his sister that he had suffered psychotic episodes as a result of his then overuse of marijuana.
It was the wife’s evidence that this occurred some 20 or more years ago and that Mr A no longer uses drugs.
The wife described Mr A as a kind and gentle man, who she believed did not pose a risk to the children. It was her evidence however that Mr A is an infrequent visitor to her home as he does not live in Melbourne and that neither of X or Y have ever been left in his sole care.
X taught to tongue-kiss:
It is the husband’s evidence that the wife taught X to tongue-kiss at the very young age of seven years and that such behaviour is grossly inappropriate for a child so young.
It is the wife’s evidence that she has no idea what the husband is talking about. She indicated that X sometimes gives very “sloppy kisses” as she is an affectionate and loving child, and that otherwise the husband’s allegation is completely groundless.
The wife has had the children, and X in particular, taught to punch:
It is the husband’s evidence that the wife has had X and Y taught to punch, and that X has used this skill to punch Y in the stomach.
It was the husband’s evidence that enquiries with his children revealed that they had learnt this skill from a friend of their mother’s called “(omitted )” of Property S (which is adjacent to Property M where the wife and children live). The husband indicated that he had not been able to locate “(omitted ” to date.
(ii) the likely impact any proposed parenting order under this Part will have on that right;
Not relevant.
Section 60cc 3(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
Both the husband and the wife in this matter are loving, devoted parents.
The husband genuinely believes that his actions and behaviours result from his conviction that as a parent he must protect his children from what he perceives to be their negligent care when with the wife.
The husband makes no apology about the manner in which he pursues those he believes have failed to properly respond to his concerns about the risks to his children and it was quite clear that he will continue to pursue all avenues to ensure anything he perceives as putting his children’s safety and well-being at risk is properly addressed.
That in so doing the husband is causing X and Y enormous distress and harm completely escapes him.
That in so aggressively and bullishly pursuing his cause, he ostracises the very people that he is seeking assist him also seems to escape him.
That his behaviour towards the wife in his unrelenting abuse, denigration and disdain of her has caused her severe mental distress, which in turn has impacted on her capacity to properly be available to X and Y also completely escapes him.
As Mr P so succinctly puts it, the husband “just doesn’t get it”.
Accordingly, in his endeavours to fulfil what he sees are the responsibilities of parenthood, the husband is in reality demonstrating the exact opposite to what is the appropriate manner in which to fulfil those responsibilities.
The wife has properly met the responsibilities of parenthood and is a caring and concerned mother who has and is parenting her children positively in the face of what has been an unrelenting attack upon her, both as a parent and as an individual.
Section 60cc 3(j) any family violence involving the child or a member of the child’s family
The allegations of physical violence perpetrated by the husband against the wife and the wife’s father have already been set out in this judgment.
The complete denial of those allegations by the husband are also well noted.
In the defended Intervention Order proceedings before Magistrate Cure in the State Court in March 2011, Her Honour made a finding on the balance of probabilities, that she accepted that those incidences of physical violence did occur as alleged by the wife and her father.
The husband’s continuous stream of emails forwarded to the wife in relation to the lice issues and in relation to other matters pertaining to the wife’s parenting have been set out previously in this judgment.
Her Honour Magistrate Cure, in the defended Intervention Order hearing, referred to the husband’s emails as shocking, as showing an utter disregard for the wife, that the husband had harassed the wife to the point of ridiculous and the emails as being harassing, intimidating, threatening, belittling, degrading and insulting, demonstrating considerable vented anger.
When Mr P was being cross-examined by the husband, there was a discussion between he and the husband in relation to the contents of the emails sent by the husband to the wife. The husband conceded that he did not deny that:
“those emails were sharp.”
Mr P’s response was:
“But they weren’t sharp, you know. Mate, they were horrible. They were terrible. They were terrible.”
I agree wholeheartedly with the descriptions of the emails sent by the husband to the wife given by both Her Honour Magistrate Cure and
Mr P. The email communication, the manner in which the husband gave his evidence and cross-examined the wife and the expert witnesses was a form of written and verbal violence, the likes of which this court rarely sees in such an overt fashion.
I am also satisfied that the children have been exposed to the husband’s violence towards the wife and that as such they too have been the victims of his family violence.
Section 60cc 3(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
As has been well noted in this judgment, in March 2011 the Sunshine Magistrates Court ordered an Intervention Order for the protection of the wife and the children against the husband for a period of eight years.
On appeal, the County Court reduced that Intervention Order to two years and removed the children from the Order.
However, as noted by Mr P, an Intervention Order for two years is a very serious thing and is indicative of the concerns that court had in relation to the husband’s behaviours.
Section 60cc 3(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
Whilst the court ideally seeks to make an order that will finalise all proceedings before the parties in relation to the arrangements for their children, this is not always the best way forward if the court is satisfied that it would not be in the children’s best interests to do so.
The proposal of the Independent Children’s Lawyer, and the wife’s proposal, are both predicated on there being a suspension of the husband’s time with X and Y until such time as the husband satisfies the court that he has undertaken therapeutic intervention such that he develops the insight into his behaviours and their impact on X and Y, and on the wife and then acts upon the insights he has developed to change those behaviours.
The husband’s proposal is for a shared care arrangement in circumstances where a similar arrangement to date has resulted in two further court proceedings since the making of those orders.
It is therefore apparent in this matter that any orders of this court at this time are unlikely to finalise matters for X and Y.
Section 60cc 3(m) any other fact or circumstance that the court thinks is relevant
It was the Independent Children’s Lawyer’s submission that this was a matter where the presumption for equal shared parental responsibility had been rebutted. It was argued this was because of the violence perpetrated by the husband against the wife and because of the very clear evidence of the inability of these parties to communicate given the husband’s continuous harassment of the wife and the husband’s own clear evidence that he will not countenance any direct communication with the wife or the wife being in his personal space.
In those circumstances, it was the Independent Children’s Lawyer’s very strong submission that the court should make an order that the wife have sole parental responsibility for X and Y.
When considering the primary considerations under section 60cc(2) of the Act, it was submitted on behalf of the Independent Children’s Lawyer that the need to protect X and Y from the psychological damage they are experiencing as a result of their exposure to the husband’s unrelenting campaign of abuse against the wife, the impact that that abuse is having on the wife’s capacity to parent, and in particular the risk that her functioning will suffer further and her parenting will suffer if she continues to be exposed to such abuse outweighs the benefit of X and Y having a meaningful relationship with both their parents at this time. It was accordingly the Independent Children’s Lawyer’s submission that time between the husband and the children must cease unless the husband was able to demonstrate the capacity to desist from his current damaging behaviour.
Having considered the relevant factors pursuant to section 60cc of the Act, it was the Independent Children’s Lawyer’s submission that the proposed minute sought by him balances the risk to the children and to the wife of psychological harm with the children’s need to have a meaningful relationship with their father.
It should be noted that the minute of proposed orders initially submitted by the Independent Children’s Lawyer was predicated on the Independent Children’s Lawyer’s belief that the husband was committed to ongoing therapeutic intervention with Dr K. However, when the husband had concluded his closing, in which he made it abundantly clear that he was not committed to engaging in a structured therapeutic regime with Dr K, the Independent Children’s Lawyer amended the proposed orders sought so that any time that the children were to spend with the husband was subject to him complying with an order to attend upon Dr K, including complying with a comprehensive treatment plan.
The husband commenced his closing submissions to the court with the following statement:
“The ICL’s forgetting who she’s working for, Magistrate, I think she’s working for Ms Hadfield. I would suggest to you that account of evidence is exceptionally biased and twists a lot of the words. I accept and I acknowledge the criticism of me where it has been relevant but I would suggest that account grossly twists any form of objective reality… I am just stunned to hear the level of twistedness of those words. I do not accept them one bit, okay.”
In his closing, the husband rejected the evidence and opinions of
Mr P and Dr E.
In his closing, the husband made the following statement:
“When you’ve got a department of DHS that’s overloaded, who don’t listen to what I say and misspell a person’s surname, go off on a wild tangent, “No, no, Mr Harris is lying; this guy hasn’t got a - this guy hasn’t got a psychiatric history” et cetera, of course, I’m going to push hard with these people, particularly when I’m seeing these issues happen again and again and again. So it’s not an ongoing campaign, it’s just as the issues come up making sure they’re presented and people actually follow through as they’re supposed to do. So if that’s an issue of external locus of control and me abrogating responsibility and then having an ongoing campaign well, go he. I mean, I’m at that point there as I highlighted to Mr P the testing I did about three years ago suggested I had an internal locus of control so, I’m sorry, I look at your experts and say, “Gee, they try to do a lot in a short period of time.” But I think once one of them gets it wrong and they trust the view of that one person then the next person leverages that and we get a circumstance which is just out of control.”
It was very apparent from the husband’s closing that he maintained his belief that the children had been inappropriately and negligently cared for by the wife and that such an inappropriate level of care would continue into the future.
It was also apparent from the husband’s closing that he rejected any allegations that he lacked insight into the impact of his behaviours on the children and the wife, and questioned why the experts had not contemplated the impact of the wife’s behaviours on the children and whether that would explain their current behavioural difficulties.
The husband made no apology for the manner in which he dealt with those who did not accept his concerns and unapologetically told the court:
“When I see facts that people are ignoring which, to my mind, seems significant and they’re just brushing over them then yes, I will push through with people.”
The husband was quite clear in his evidence that if I were to make orders other than as sought by him, then he would appeal the decision.
Conclusion
In paragraph 42 of his Report dated 26 May 2011, Mr P succinctly summarised this matter in the following terms:
42.The allegations and the counter allegations in this dispute are extreme. Further testing of evidence and psychiatric assessment might help clarify to what extent Mr Harris’ presentation is a function of a genuinely concerned and motivated parent seeking to reasonably protect his children, or the behaviour of a seriously personality disordered parent, obsessed and preoccupied with a set of beliefs that have no foundation in fact, and who uses the Court as a stage upon which to have his narcissistic beliefs enacted. A similar process may also help reveal to what extent
Ms Hadfield is a genuinely caring, concerned parent, motivated by the best interests of her children, doing the best she can to protect them from an unrelenting, insightless attack upon her and her parenting, and the negative impact of such a process upon the children. It may also reveal that she is neglectful, derelict in her parenting and unable to elevate the children’s needs ahead of her own.
The evidence has now been tested, the court has had the opportunity to see and listen to the parties in order to be able to clarify which of the two scenarios as described by Mr P reflect the realities for X and Y.
I have made a finding that the wife is not neglectful or derelict in her parenting of X and Y, and that the many instances of neglect and abuse alleged by the husband had not occurred or that there was a sensible explanation for the events to which the husband alleges negligence or sinister motives.
It is also very apparent to this court that the husband, whilst genuinely holding the belief that X and Y are neglected by the wife and are at risk of harm in her care and that all his actions are in order to protect them, is completely incapable of accepting this court’s finding or the finding of the Department, the experts and the school to the contrary.
Further, I am satisfied that, most sadly, the husband does not have the requisite insight and empathy to accept or recognise the impact that his unrelenting pursuit of the wife and his continuous involvement and aggravation of external agencies has on the wife and on his children.
The husband was at pains to try and explain to this court that his is a difficult and sometimes abrasive personality which, when placed in an adversarial situation, responds somewhat belligerently and argumentatively, without consideration as to the impact his responses have on those with whom he is dealing. This, to some degree, was confirmed in the evidence given by his treating psychologist,
Dr K.
The husband challenged the opinions of the experts, Mr P and Dr E, that he lacked empathy and insight into the impact of his behaviours. He argued that whilst he accepted some responsibility for the difficulties and challenging behaviours that X and Y have recently exhibited, he questioned why those behaviours and difficulties weren’t equally the responsibility of the wife given her negligent care of them.
The husband’s evidence, demeanour and language about and towards the wife were deeply disturbing. He was unremittingly negative about her, calling her manipulative, a liar and a negligent and self-obsessed parent, who is unable to properly care for her children or put their needs ahead of her own.
The husband showed no remorse for the impact his behaviours had on the wife, both during the hearing of the matter and in the context of the concerns raised by both Mr P and Dr E.
Whilst paying lip service to the necessity to put the past behind him and to focus on the future and engendering a positive parenting relationship with the wife, it was apparent from his evidence, his demeanour in the witness box and his closing submissions, that the husband was not capable of or accepting of any necessity to do just that. He consistently harped back to past examples of alleged poor parenting by the wife and was absolutely clear in his evidence that if there was even a sniff of what he perceived to be poor parenting by the wife in the future, the cycle of complaint, unrelenting criticism and of referral to external third agencies would recommence and continue unremittingly.
The evidence of Dr E as to the extent of the impact on the wife of her constant exposure to the husband’s behaviour was most disturbing. He diagnosed the wife as suffering from Post Traumatic Stress Disorder as a result of that exposure and described it as the most severe case of Post Traumatic Stress Disorder that he had seen in the context of a matrimonial matter in his considerable experience.
Similarly, Mr P expressed major concern about the impact on the wife of her exposure to the husband’s relentless abuse and, in turn, the impact that had on her capacity to parent X and Y, and the effect of that in respect to the quality of care that they could receive from her.
The observations, assessments and concerns of the experts are held also by me.
There is no doubt that X and Y love their father and, in the ideal world, want to spend considerable and substantial time with him.
This, however, is very much balanced by the impact that his unremitting negativity towards the wife is having on them.
The Reports prepared by Mr P, between May 2011 and September 2011, document X’s ever-increasing distress. In the final short Addendum to his Report dated 27 September 2011,
Mr P notes his:
“overwhelming concern that she is being severely, negatively impacted by the conflict between her parents and in particular the negativity felt from her father in relation to her mother.”
Mr P notes X’s unhappiness to be palpable and the high levels of distress she has arising from her father’s negativity towards her mother.
Mr P was not quite prepared to voice a recommendation that there be an order made that X and Y spend no time with the husband, it was my clear impression of his evidence that such an order was well and truly within an appropriate exercise of this courts’ discretion when considering X and Y’s best interests.
Dr E was very very clear about his concerns in relation to the impact of the husband’s behaviour on X and Y, and he did not resile from his opinion stated in his Report that the husband:
“represents a risk to the children and it is my respectful submission that the Court may need to protect them from their father.”
The clear and objective evidence before the court in relation to the impact on X and Y of a suspension of their time with their father was that from Y’s school teachers. Their evidence of the immediate and measurable improvement in Y’s demeanour and levels of happiness following the suspension of time with the husband was illuminating. They described a young boy whose entire body posture relaxed, who was joking and laughing, and who was engaging in his learning for the first time in many many months.
The wife’s evidence that the suspension of orders for X and Y to spend time with their father had allowed her to be the parent that she wanted to be and that X and Y needed her to be was also compelling.
Whilst it was Mr P’s evidence that it was possible for X and Y to have shown the same response to a cessation of time if the situation had been reversed and X and Y placed in their father’s sole care such that they were removed from the intensity of the conflict between their parents, this evidence was countered by Mr P’s opinion that an order in those terms would have, in all probability, led to an alienation of X and Y from their mother.
It is the Independent Children’s Lawyer’s view that an alleviation of the negative impact on the emotional and psychological wellbeing of X and Y, and on the wife and her capacity to parent X and Y can be achieved by limiting the time that X and Y spend with the husband to four hours a fortnight, on an interim basis, whilst the husband engages in a comprehensive treatment plan with his treating psychologist to enable him to address the issues that are currently preventing him from understanding the impact of his behaviours on both his children and his former wife.
I do not agree with the Independent Children’s Lawyer in this regard.
I am of the view that, most sadly in this matter, the risks to X and Y’s emotional well-being and the impact on the wife’s capacity to parent them arising from the abuse at the hands of the husband is such that even such limited time would enable the husband to continue his ongoing campaign of abuse against the wife.
This is perhaps best borne out by his evidence that under the previous regime of time when X and Y were with him for four hours from 3.30 pm to 7.30 pm each alternate Thursday, he would more often than not upon their arrival inspect them for lice and throw them into the bath in the event he was concerned that any such lice were in existence.
xAccordingly, in these circumstances, I have formed the view that the risk to X and Y of spending time with their father is so great that it outweighs the benefit of an ongoing meaningful relationship with their father at this time.
The husband is a fundamentally good person. Save for two isolated incidents, I am satisfied he is not a physically violent man. He does not, and never has, used illicit substances and he is someone who only drinks very lightly and very occasionally. He is a highly educated man who holds positions of real responsibility within the realms of his professional expertise in IT. He is an active and productive member of his community.
The husband loves his children and has, on many levels, been a committed and caring father.
The husband has so much to offer X and Y, and it would be to their good if he was able to be an integral part of their lives. Sadly, given my findings in this matter, this is not something he is able to do at this point in time.
It is the fervently held wish of this court that the husband will realise the necessity to address the issues that have been identified in this matter so that he can resume an important role in his children’s lives in the future. For this reason orders will be made that the husband have liberty to make further Application in relation to spending time with X and Y upon production of proof to this court that through the appropriate therapeutic intervention he has addressed the behaviours that have given rise to his time with X and Y being suspended.
As noted previously in this judgment, this is clearly a matter where the presumption of equal shared parental responsibility has been rebutted, and that an order should be made that the parent with whom X and Y are primarily living should have sole parental responsibility. Accordingly, an order will be made that the wife have sole parental responsibility for X and Y.
xMr P’s evidence on the impact of X and Y spending no time with the husband was very limited. However, I am fully aware that the consequences of the loss of that relationship with X and Y can be wide ranging and significant, and can impact on their emotional and social development, and impact on them and their relationships as they grow older. Accordingly, it will be imperative that the wife put in place the appropriate counselling supports for X and Y to assist them in managing an understanding of why they are not currently spending time with their father.
I will also make an order that the Independent Children’s Lawyer meet with X and Y to explain the orders to them.
Even though the husband will not be spending time with X and Y, I am of the view that it is in their best interests that he be able to forward appropriate gifts and cards to X and Y, with the wife to be authorised to screen such gifts and cards as to their appropriateness for the children.
Whilst the wife seeks this court make an order that any time that X and Y spend with the husband be predicated on him engaging in effective ongoing therapeutic psychiatric treatment such that his insights and empathy have evolved so that he no longer poses a psychological risk to X and Y and the wife, I am of the view that such an order is not necessary.
The onus will be on the husband to prepare any further Application upon appropriate grounds and he must understand he would have to place before the court all relevant evidence to satisfy the court that he has achieved the necessary changes so that he no longer posed a risk to X and Y, including evidence he has fully engaged in the appropriate psychiatric therapeutic interventions.
xFinally, the wife seeks an order that passports issue for X and Y, to enable her to be able to travel with them, including taking them on holidays overseas. It was her evidence, which I accept, that the husband has failed to cooperate with her in renewing X and Y’s passports. I am satisfied in the circumstances that it is appropriate that such an order be made.
I certify that the preceding six hundred and seventy-three (673) paragraphs are a true copy of the reasons for judgment of Bender FM
Date: 24 February 2012
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