HANSEN & SHEEHAN
[2016] FCCA 2526
•30 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HANSEN & SHEEHAN | [2016] FCCA 2526 |
| Catchwords: FAMILY LAW – Parenting Orders in relation to two young girls – caustic parenting relationship – very large geographical distances between residences of parents – Father has significant anger management issues – Mother has significant lack of insight into the needs of the children to spend time with their Father – very significant [ameliorating] role to be played by Father’s new Wife in relation to communication, travel and communication – Mother significantly limited the Father’s time with the children – history of domestic violence. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1)(a) & (b), 60B(2); 60CA; 60CC(2)(a) and (b); 60CC(3)(ca), (e), (f) & (d), 65DAA(2) and (3) |
| Cases cited: McCall v Clark (2009) 41 Fam LR 483 Sigley v Evor (2011) 44 Fam LR 439 Vigano v Desmond (2013) 47 Fam LR 552 |
| Applicant: | MS HANSEN |
| Respondent: | MR SHEEHAN |
| File Number: | CAC 933 of 2013 |
| Judgment of: | Judge Neville |
| Hearing dates: | 3 and 4 March 2016 |
| Date of Last Submission: | 11 April 2016 |
| Delivered at: | Canberra |
| Delivered on: | 30 September 2016 |
REPRESENTATION
| Solicitor/Advocate for the Applicant: | Ms K Hardie |
| Solicitors for the Applicant: | Kelly Hardie Solicitors |
| Counsel for the Respondent: | Self represented |
| Solicitors for the Respondent: |
| Counsel for the Independent Children’s Lawyer: | Mr C Wilson |
| Solicitors for the Independent Children’s Lawyer: | Friedlieb Byrne |
ON A FINAL BASIS, THE COURT ORDERS THAT:
The Mother and Father have equal shared parental responsibility for the care, welfare and development of the children X (born (omitted) 2006) and Y (born (omitted) 2010) (the children), on the condition that all parental responsibility communication is conducted between the Mother and Ms L.
The children live with the Mother.
Unless agreed otherwise in writing, the children are to spend time with the Father for the first weekend of the month for four months from 8:00am Saturday until 4:00pm Sunday. To clarify, these weekends are to occur as follows:
(a)Noting the first weekend of October commences on 1 October 2016, for October 2016 the children shall spend time with the Father on the second weekend, being 8 October 2016.
(b)The weekend of 5 November 2016
(c)The weekend of 3 December 2016
(d)Noting the first weekend of January 2017 is on New Year’s Eve, for January 2017 the children shall spend time with the Father on the Second Weekend of January 2017 being the weekend of 7 January 2017.
Unless agreed otherwise in writing, commencing February 2017, the children are to spend each alternate weekend with their Father, being the first and third weekends of the month. To clarify, the February 2017 weekends will be:
(a)4 February 2017; and
(b)18 February 2017.
From February 2017 onwards, the children shall spend time with their Father as follows:
(a)For one half of each of the term school holiday period as agreed, and in default of agreement:
(i)for the first half in odd years commencing from 8am the first Saturday after the conclusion of school and concluding at 4pm on the middle Saturday of the holiday period; and
(ii)the second half in even years commencing from 8am on the middle Saturday of the holiday period and concluding at 4pm on the Saturday before the commencement of the school term.
(b)If Father’s day falls on a weekend when the children are not already spending time with the Father, from 8am on the Saturday before Father’s day until 4:00 p.m. on Father’s day;
(c)By telephone, Skype or Facetime if available between 6pm each Monday Thursday and Saturday with the Father to instigate such time and the Mother to ensure the children have access to a phone that is fully charged and has credit;
(d)Such further and other times as may be agreed in writing between the parties.
The Father’s time with the children be suspended:
(a)If Mother’s day falls on a weekend when the children are to be spending time with the Father.
Whilst the children are spending time with the Father in accordance with Order 5(a) above the Mother be at liberty to have telephone, Skype or Facetime if available between 6pm each Monday, Thursday and Saturday with the Mother to instigate such time and the Father to ensure the children have access to a phone that is fully charged and has credit.
For the purposes of changeover the Father's wife and agent, Ms L, will collect the children from the Coles Express Service Centre, (omitted), (omitted) at the commencement of each period and the Mother will collect the children from Ms L at the conclusion of each period from outside the (omitted) Police Station, unless otherwise agreed in writing between the parties.
(a)The Father will not be present at changeover.
(b)Each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
Both parents are restrained from coming within 50 metres of each other at any time and in any situation, including school or sporting events.
In the event of childhood illness or emergency the parent with whom the child or children are with, contact the other parent as soon as possible to inform them.
Each of the parties, their servants and agents be hereby restrained by injunction from:
(a)Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and
(b)Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them, and from permitting any other person to do so.
Both parents be permitted to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
Each party is at liberty to attend at the said children's school for the purposes of any function or activity normally attended by parents.
The Mother purchase and the parties use a communication book and record, for the information of the other, issues that are limited to the children’s care and that the communication book accompany the children between the parents’ homes.
These Orders are intended to take precedence over any Domestic Violence orders.
THE COURT FURTHER ORDERS THAT:
Both parties are to notify the Court within 21 days to advise whether the property aspect is to proceed, and if so, whether it should be transferred to the Dubbo circuit of the Court.
IT IS NOTED that publication of this judgment under the pseudonym Hansen & Sheehan is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 933 of 2013
| MS HANSEN |
Applicant
And
MR SHEEHAN
Respondent
REASONS FOR JUDGMENT
Introduction
This parenting matter concerns two delightful young girls, X (aged 10) and Y (aged 6), who love their Dad immensely. They live with their Mother.
Whatever the statutory requirements to which the Court must have regard, the issues that must be addressed in this matter are (a) the immense logistical problems given the large geographical distance between the residences of parents in country New South Wales, (b) the Father’s extreme difficulty in controlling his outrage and frustration at what he sees as the Mother’s constant obstruction to spending regular and significant time with his daughters, and (c) the Mother’s unfortunately impressive capacity to thwart the Father’s time with the girls.
The Father seeks to have the girls live with him. In large measure this is doubtless because of the very long history of his time with them being blocked or seriously impeded. In his evidence, he said that the Mother has in fact been systematically alienating the children from him, but he also acknowledged that the children [still] have a good and loving relationship with him.[1] A difficulty with the Father’s proposed course to change residence is that the girls have always lived with their Mother as their primary carer.
[1] See Transcript (3rd March 2016) pp.67 - 68. Hereafter “T” followed by the page number.
I have already mentioned the large physical distance between the households of the parties. The Father lives in (omitted); the Mother lives in (omitted). The distance between these two country centres is between 260 and 320 kilometres, depending on the route taken. The driving time between them is between 3 and 3½ hours. This factor looms large in the Court’s consideration of relevant matters.[2]
[2] See s.60CC(3)(e) of the Family Law Act 1975 (“the Act”).
On the current evidence, it is difficult for the Court realistically to consider a change in residence for the children from the Mother to the Father. The central dilemma for the Court is whether the Mother will facilitate the children’s time with their Father. There is no dispute that she has been and remains the children’s primary carer. The history of the completely combative parenting relationship is well set out, fortunately in summary form, in the Independent Children’s Lawyer’s (“the ICL”) chronology, which is set out later in these reasons.
The key to the resolution of the issues before the Court actually rests, unfortunately less with the parties whose limitations and history gives little confidence of reasonable co-parenting capacity, but more so with the impressive capabilities of Ms L. She is both a calming and restraining influence on the Father and also a person of significant ability to juggle many related demands. Thus, provided she is able to do the changeovers, as she indicated that she was prepared to undertake, with either Ms Hansen or her quite diffident partner Mr T, there is a very significant chance that the children’s time with their Father will be able to proceed quite well. The converse is also likely to be true, namely, without Ms L’s able assistance the “time with” arrangements will continue to be extremely fraught simply because the parties cannot get along at all.
For the reasons that follow, the children will remain living with their Mother and spend regular time with their Father. There is a proviso: if there is any incident that approaches in any way the levels of obstruction recounted later in these reasons (e.g. the Mother turning up at special occasions of the children’s time with their Father, without warning or without the written approval of the Father), subject to evidence and submissions there would have to be a reasonably high likelihood of a change in residence for the children.
Orders Sought on behalf of the Applicant Mother
The Mother’s Proposed Minute of Order was annexed to her Written Submissions emailed to Chambers on 14 March 2016. The Orders Sought by the Mother were as follows:
1. All previous Order are discharged in relation to the children X (“X”) born (omitted) 2006 and Y (“Y”) born (omitted) 2010 (“the children”).
2. The children live with the Mother.
3. That the Mother have sole parental responsibility for the care, welfare and development of the children, with the Mother undertaking to inform the Father of all significant matters relating to children as they occur. This includes but is not limited to the children’s medical issues and education.
4. That the children spend time and communicate with the Father as follows:
4.1 During each school term on the first, fourth and seventh weekend including Father’s Day weekend commencing Term 2 of 2016 from 8:00 am Saturday to 4:00 pm Sunday (excluding Mother’s Day weekend).
4.2 Commencing June / July school holiday period 2016 for one half of each school holiday period, the first week in even numbered years commencing in 2016 on the first Saturday at 8:00 am after the conclusion of school and concluding the middle Saturday of the holiday period at 4:00 pm and the second week in odd years commencing in 2017 on the middle Saturday of the school holiday period at 4:00 pm and concluding at 4:00 pm the Saturday before the commencement of the school term.
5. In relation to the operation of Order 4 the Mother or her agent will provide the children to the Father’s agent Ms L at the commencement of the Father’s time at a place agreed to by both parties in writing within the township of (omitted) but failing agreement at the Mother’s residence in (omitted) and the Father’s agent Ms L will return the children to the Mother or her agent at the conclusion of the Father’s time at (omitted) Interrelate Contact Services Centre or if closed at the (omitted) Police Station. If the children are collected at the Mother’s residence the Mother undertakes to remain at the front door of the house and the Father’s agent Ms L is to remain at her car and not enter the Mother’s property.
6. That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within seven (7) days of such change.
7. That in the event of childhood illness or emergency the parent with whom the child or children are with, contact the other parent forthwith to inform them.
8. That each of the parties, their servants and agents be hereby restrained by injunction from:
8.1 Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and
8.2 Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them, and from permitting any other person to do so.
9. That both parents be permitted to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
10. That each party is at liberty to attend at the said children's school for the purposes of any function or activity normally attended by parents.
11. That each party be at liberty to have telephone communication (or SKYPE / Facetime if the parties have the facilities) with the children between 6:00 pm to 6:30 pm on every Monday, Thursday and Saturday when the children are not in their care, with the parent who is spending time with the children to ensure the children have access to a phone which is fully charged and are able to take the phone call in private and in a quiet place.
12. That the parties establish and use a communication book and record, for the information of the other, issues that are limited to the children’s care and that the communication journal accompany the children between the parents’ homes.
13. That pursuant to Sections 62B and 65DA of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist the parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
Orders Sought by the Respondent Father
The Father’s Final Orders Sought were filed with the Court on 11 February 2016. I note that only the Father has sought any Final Orders in relation to property.
The Father’s Final Orders Sought are as follows:
1. That all previous orders be discharged
2. The parents have equal shared parental responsibility for the children X born (omitted) and Y born (omitted) 2010.
3. The children shall live with the FATHER MR SHEEHAN & his wife MS L at their current address (omitted)
4. The children's time with the MOTHER MS HANSEN shall be:
4.1 X and Y will spend every second weekend with MS HANSEN unsupervised. Ms Hansen will collect the children at Interrelate in (omitted) no later than 5pm on a Friday, for the children to exchange hands, and return them again at 5pm on Sunday at Interrelate (omitted).
4.2 During the school holiday period the children will spend half the school holidays with their father Mr Sheehan and the other half with Ms Hansen. Mr Sheehan will bring the children to (omitted) Interrelate in order to facilitate the change over by no later than 5pm and pick them up again on their return from Interrelate (omitted) by 5pm.
4.3 The children will spend every second Christmas and Easter with their mother. This will include half of the school holidays. Mr Sheehan will bring the children to (omitted) Interrelate in order to facilitate a change over by no later than 5pm. Ms Hansen is to collect the children from (omitted) Interrelate and return them to (omitted) Interrelate by 5pm on the final day of the holiday.
4.4 The children will spend every father's day weekend with their father and every mother's day weekend with Ms Hansen. Ms Hansen will collect the children from (omitted) Interrelate by 5pm on the Friday in order to facilitate the changeover and return them up by 5pm Sunday at interrelate (omitted).
5. Each parent shall be at liberty to have telephone communication / SKYPE / FACETIME with the children on Christmas Day and Easter Sunday between 10am - 11am.
6. Each parent and other family members shall be at liberty to attend school, sporting or extra-curricular events to which the children are attending regardless of who the children are living with or spending time with. Note: Ms Hansen is not at liberty to have Mr Sheehan charged with breach of AVO should he wish to attend any of these events and Ms Hansen will not discourage, criticise or denigrate Mr Sheehan or any of his family members. Mr Sheehan will be at liberty to speak with his children without fear of being charged with breach of AVO. Mr Sheehan will not engage in any conversation with Ms Hansen or any of her family members apart from the children. The children will be allowed to freely speak to their father without fear bought on by Ms Hansen.
7. Each parent is authorised to obtain information as would normally be available to a parent from any professional body or organisation that holds information about the children, including but not limited to doctors, schools, hospitals, sporting associations etc.
8. Each parent shall notify the other on the day of attending any doctors or hospital visit for any reason and provide any details associated with the visit.
9. Each parent shall notify the other of any medical, allied health professional, school or any other such appointment at the earliest opportunity but not less than 24 hours prior to the appointment.
10. An order be made that these family court [sic] orders will take place or override any existing AVO
11. There will be no contact between Mr Sheehan and Ms Hansen in the event of any emergency, Ms L will be the contact person for Ms Hansen. All other correspondence will be via Ms Hansen's Solicitor. The contact number for Ms L will be provided once the orders have been finalised.
12. The court makes an order for Ms Hansen to undergo intensive counselling/Therapy to help her come to terms with the fact X & Y have every right and need to have a happy balanced life by having regular and meaningful contact with both sides of their family, and to help her realise the long term effects that parental alienation from a loving parent that has been a significant part of their lives can have on such small innocent children.
13. If Ms Hansen fails to comply with these orders in any way that a recovery order be issued immediately and without question.
Property Matters;
l. That Ms Hansen's Application to include property matters be dispensed with, Given that Ms Hansen has a financial interest in at least two properties in (omitted) ,Combined with her high Disposable income, she may well have more to lose than Gain by pursuing such Action.
2. Given Mr Sheehan will be Responsible for X & Y's Expenses whilst in his care, Ms Hansen is to be Responsible for her own Cost & Expenses relating to the Collection & Return of X & Y from interrelate in (omitted).
Orders Sought by the Independent Children’s Lawyer
The Independent Children’s Lawyer’s (“the ICL”) proposed Orders were contained within her Written Submissions received in Chambers via email on 14th March 2016.
Those Orders sought were as follows:
1. That the mother have sole parental responsibility for the care, welfare and development of the children X (born (omitted) 2006) and Y (born (omitted) 2010) (the children).
2. That the children live with the mother.
3. That the children spend time and communicate with the father as follows:
(a) During school term:
(i) The third weekend of each month from 8am Saturday 4pm Sunday or 5pm Monday day if Monday is a non school day;
(b) For one half of each of the term school holiday period as agreed, and in default of agreement:
(i) for the first half in odd years commencing from 8am the first Saturday after the conclusion of school and concluding at 4pm on the middle Saturday of the holiday period; and
(ii) the second half in even years commencing from 8am on the middle Saturday of the holiday period and concluding at 4pm on the Saturday before the commencement of the school term.
(c) If Father’s day falls on a weekend when the children are not already spending time with the father, from 8am on the Saturday before Father’s day until 4:00 p.m. on Father’s day;
(d) By telephone, Skype or Facetime if available between 6pm each Monday Thursday and Saturday with the father to instigate such time and the mother to ensure the children have access to a phone that is fully charged and has credit;
(e) Such further and other times as may be agreed between the parties.
4. That the father’s time with the children be suspended:
(a) If Mother’s day falls on a weekend when the children are to be spending time with the father.
5. That whilst the children are spending time with the father in accordance with Order 3(b) above the mother be at liberty to have telephone, Skype or Facetime if available between 6pm each Monday, Thursday and Saturday with the mother to instigate such time and the father to ensure the children have access to a phone that is fully charged and has credit.
6. That for the purposes of changeover the father's wife and agent, Ms L, will collect the children from the Coles Express Service Centre, (omitted) at the commencement of each period and the mother will collect the children from Ms L at the conclusion of each period from outside the (omitted) Police Station.
7. The father will not be present at changeover.
8. That each parent keep the other informed of their current residential address, mobile and landline telephone numbers and any available email addresses and advise the other parent of any change thereto within 7 days of such change.
9. That in the event of childhood illness or emergency the parent with whom the child or children are with, contact the other parent as soon as possible to inform them.
10. That each of the parties, their servants and agents be hereby restrained by injunction from:
(a) Abusing, insulting, belittling, rebuking, or otherwise denigrating the other party and
(b) Discussing these proceedings or the contents of any documents filed in or intended for use in these proceedings to, with or in the presence or hearing of the children, or any of them, and from permitting any other person to do so.
11. That both parents be permitted to liaise directly with the children's school and sporting bodies to receive school notices, information, newsletters, school reports, school photographs and any other necessary information about the children’s progress.
12. That each party is at liberty to attend at the said children's school for the purposes of any function or activity normally attended by parents.
13. That the mother purchase and the parties use a communication book and record, for the information of the other, issues that are limited to the children’s care and that the communication book accompany the children between the parents’ homes.
It should also be recorded that during the hearing it was put to both parties the proposal that the time-with arrangement for the children to spend with their Father might commence with one weekend per month, and after a period of time, move to each alternate weekend. The Mother indicated that she thought a proposal like this could work and be satisfactory.[3]
[3] See Transcript (3rd March 2016) pp.32 – 33.
The ICL’s Chronology
The following detailed chronology outlines most of the signal events that have involved the parties, especially in recent times. Subject to what is said shortly, the chronology provides a convenient and essentially complete factual background – summarised of course – of the dispute that is currently before the Court. The chronology is as follows (emphasis in the original document):[4]
[4] As will be apparent from the chronology itself, there has been not insignificant involvement between the police and the Father. A more formal record of such encounters was set out in a tender bundle that included records from NSW Police and NSW Department of Corrective Services. This bundle became exhibit B.
| DATE | EVENT | SOURCE |
| (omitted) 1972 | Father's date of birth | Father's affidavit sworn 22 August 2013 (para 2) |
| (omitted) 1978 | Ms L's date of birth | |
| (omitted) 1980 | Mr R’s date of birth | Mr R’s affidavit affirmed 3 August 2015 (para 5) |
| (omitted) 1984 | Mother's date of birth | Mother's affidavit sworn 31 July 2015 (para 2) |
| October/November 1990 | Father charged and convicted - offensive language | Subpoenaed material NSW Police Force |
| March/April 1993 | Father charged and convicted- offensive language | Subpoenaed material NSW Police Force |
| 8 May 1993 5 July 1993 | Father charged and convicted - Malicious Damage | Subpoenaed material NSW Police Force |
| 1994? | Father's son, Mr C born | Mother's affidavit 31 July 2015 (para 16) |
| March/April 1996 | Father charged and convicted - mid range PCA | Subpoenaed material NSW Police Force |
| (omitted) 1996 | Father's son, Mr I born | Mother's affidavit 31 July 2015 (para 16) |
| December 1996/January 1997 | Father charged and convicted - offensive language | Subpoenaed material NSW Police Force |
| 30 December 1996/2 April 1997 | Father charged and convicted - breach AVO | Subpoenaed material NSW Police Force |
| 22 February 1997/17 July 1997 | Father charged and convicted - assault and resist police and drive whilst disqualified | Subpoenaed material NSW Police Force |
| 29 March 1998/14 May 1997 | Father charged and convicted - use of offensive language in/near public place/school | Subpoenaed material NSW Police Force |
| 10 November 1999/14 April 2000 | Father charged and convicted - common assault | Subpoenaed material NSW Police Force |
| 26 November 1999/14 April 2000 | Father charged and convicted - contravention ADVO | Subpoenaed material NSW Police Force |
| 14 April 2000/ 14May 2000 | Father charged and convicted - common assault, contravene ADVO, commit act of cruelty upon an animal | Subpoenaed material NSW Police Force |
| 13 January 2001 - 29 June 2001 | Father charged - Contravene AVO and assault with act of indecency Contravene DVO Father convicted - Breach DVO and common assault Contravene DVO Contravene DVO (3 counts) | Subpoenaed material NSW Police Force |
| 5 August 2003/14 May 2004 | Father charged and convicted - Wilfully obstruct officer in execution of duty, assault and resist police officer, offensive language | Subpoenaed material NSW Police Force |
| 21 September 2003 | Father charged - Contravene DVO | Subpoenaed material NSW Police Force |
| 9 October 2003/28 January 2004 | Father charged and convicted - Larceny (3 counts) | Subpoenaed material NSW Police Force |
| 2 April 2004 | Father charged and convicted - Drive unsafely loaded vehicle causing death/injury/damage | Subpoenaed material NSW Police Force |
| (omitted) 2004 | Parties commence their relationship | Mother's affidavit sworn 27 June 2013 (para 6) |
| 28 August 2004/11 March 2005 and 18 May 2005 | Father charged and convicted - Common assault/Maliciously wound | Subpoenaed material NSW Police Force |
| (omitted) 2006 | Child X born | |
| (omitted) 2010 | Child Y born | |
| June 2010 | Mother starts working at the (employer omitted) in (omitted). Father ceases working as a (occupation omitted) and commences (omitted) business so that he would have the flexibility to care for the children when the mother was at work | Father's affidavit 22 August 2013 (para 22) |
| 1 October 2012 | Mr R charged - drive whilst under the influence of alcohol or other drugs; Drive vehicle recklessly/furiously or speed/manner dangerous; Exceed speed 45km/h estimated - disqualification 6 months. | Subpoenaed material NSW Police Force |
| 7 October 2012 | Father charged - common assault | Subpoenaed material NSW Police Force |
| November 2012 | Mother moves in with her mother at (omitted). The Father and the children remain living in (omitted). Mother says she stayed with her mother because she had decided to leave the father. Children were with the mother. | Father's affidavit 22 August 2013 (para 29) Mother's affidavit 31 July 2015 (para 47) |
| December 2012 | Parties separate | |
| January 2013 | Father obtains work in (omitted). Children live with the mother | Father's affidavit 22 August 2013 (para 31) |
| 7 February 2013 | Father convicted - common assault | |
| (omitted) 2013 | Father returns to (omitted) to unsuccessfully see X for her birthday. | Father's affidavit 22 August 2013 (para 34) |
| 2013 | Mother's relationship with Mr R commences | Affidavit of Mr R affirmed 3 August 2015. |
| 11 February 2013 | Incident at McDonald's (omitted) involving the father, the mother and Y | Mother's affidavit sworn 27 June 2013 |
| 11 February 2013 | Father charged - use carriage service to menace/harass/offend destroy or damage property | Subpoenaed material NSW Police Force |
| 28 February 2013 | ADVO Final Order. Mother and children named as Protected Persons | Mother's affidavit sworn 27 June 2013 (annexure A) |
| 6 June 2013 | Father collects children for contact visit. Refuses to return, initially Y and then X to the mother's care on advice from Police after children allege they have been exposed to sexual abuse at the mother's house. The father contacts Child Welfare Authorities alleging children have been exposed to sexual abuse at the mother's home. | NSW Police Force COPS entry Father's affidavit 22 August 2013 (paras 37 - 41) |
| 9 June 2013 | X attends school and returns to the mother's care. Y is retained by the father. Father is contacted by the mother to return Y but the father refuses. | NSW Police Force COPS entry |
| 20 June 2013 | The father collects X for the weekend. Mother "hopes" X will be able to convince the father to return Y after the weekend. | NSW Police Force COPS entries |
| 23 June 2013 | Children are not returned to the mother. X says to the father "I don't want to go back. I am being picked on and Mum and Mr R keep hitting me. I want to stay here with you." | Father's affidavit 22 August 2013 (para 48) |
| 24 June 2013 | Police contact the father who confirms he will not return the children. The father is informed he is in breach of the ADVO. Father says the children need protecting. "You will have to come and shoot me before I'll hand them back." | Subpoenaed material NSW Police Force |
| 27 June 2013 | Children are located at the paternal grandmother's home and the mother collects the children from her. | Mother's affidavit |
| 27 June 2013 | Father charged - contravene prohibition/restriction in ADVO | Subpoenaed material NSW Police Force |
| 1 July 2013 | Mother's initiating application filed · a recovery order for the children · That the children live with the mother. · that the father's time with the children be suspended. Final orders sought: · That the children live with the mother; · That the mother have sole parental responsibility for the children. | CCP |
| 2 July 2013 | First mention | CCP |
| 12 July 2013 | Police interview Mr T (alleged victim) in relation to allegations of indecent assault made by the father involving Mr T and Ms N, the babysitter. No disclosure made by Mr T. No evidence found to support the allegation. No further action taken. | NSW Police Force COPS entries |
| 31 July 2013 | Directions made for father to file response material. | CCP |
| 22 August 2013 | Father's response material filed seeking interim orders: · The children live with the mother; · Joint parental responsibility; · The children spend time with the father alternate weekends, half school holidays, and special days Final Orders: · the children live with the father; · father have sole PR; · the children spend time with the mother alternate weekends, half school holidays, special days. | CCP |
| 30 August 2013 | Appointment of ICL | CCP |
| 5 September 2013 | Parties attend Child Inclusive Conference with Family Consultant Ms W. "The parental relationship is characterised by hostility and conflict and from the allegations of both parents, alarming levels of violence and other behaviours that place children at high risk physically, emotionally and psychologically." (para 24) | Family Consultant Memorandum to Court 6 September 2013 |
| 18 October 2013 | Directions hearing. | CCP |
| 14 November 2013 | Father attends Interrelate and completes intake assessment; letter of invitation sent to Mother from Interrelate | Subpoenaed material from Interrelate (omitted) |
| 1 December 2013 | Mother attends former family home in (omitted) with the children to collect belongings. There is graffiti on the walls. Photos and possessions belonging to the children have been damaged. | Mother's affidavit 9 December 2013 (paras 8 to 12) |
| 11 December 2013 | Directions hearing | CCP |
| 30 January 2014 | Father convicted - common assault and destroy/damage property | Subpoena material from NSW Police Force |
| 7 March 2014 | Supervised visit at Children's Contact Service (omitted) | Subpoenaed material from CCS (omitted) |
| 17 March 2014 | Father files Application in a Case seeking orders for DNA Parentage Testing of the children. | Application in a case |
| 19 March 2014 | DNA Parentage testing ordered on Father's application | CCP |
| 23 March 2014 | Father commences appointments with Ms J, Registered Psychologist. Appointments are ongoing with regular fortnightly to monthly consultations. | Subpoenaed material Probation and Parole Enquiries made by ICL |
| 4 April 2014 | Supervised visit at Children's Contact Service (omitted) | Subpoenaed material Family Relationship Centre (omitted) |
| 2 May 2014 | Supervised visit at Children's Contact Service (omitted) | Subpoenaed material Family Relationship Centre (omitted) |
| 20 May 2014 | Father's solicitor withdraws | Notice of Withdrawal as Lawyer |
| 21 May 2014 | Interim Orders made for father to spend time with the children, such time to be supervised | Orders 21 May 2014 |
| 30 May 2014 | Supervised visit at Children's Contact Service (omitted) | Subpoenaed material Family Relationship Centre (omitted) |
| 27 June 2014 | Supervised visit at Children's Contact Service (omitted) | Subpoenaed material Family Relationship Centre (omitted) |
| 29 June 2014 | Supervised visit at Children's Contact Service (omitted) | Subpoenaed material Family Relationship Centre (omitted) |
| 13 July 2014 | Supervised visit at Children's Contact Service (omitted) | Subpoenaed material Family Relationship Centre (omitted) |
| 16 July 2014 | Further Interim Orders made for father to spend supervised time with the children each alternate weekend between (omitted) and in (omitted). Family report ordered. | Orders 16 July 2014 |
| 22 July - 21 September 2014 | Extensive negotiations to make arrangements for the children to attend the father's wedding and all necessary pre-wedding events | Correspondence between mother's solicitor, father and ICL |
| 27 July 2014 | Supervised visit at Children's Contact Service (omitted) | Subpoenaed material Family Relationship Centre (omitted) |
| 4 August 2014 | Mother completes intake assessment at Interrelate (omitted) | Subpoenaed material Interrelate (omitted) |
| 10 August 2014 | Supervised visit at Children's Contact Service (omitted) | Subpoenaed material Family Relationship Centre (omitted) |
| 24 August 2014 | Father's visit with children at Interrelate (omitted) | Subpoenaed material Interrelate (omitted) |
| 7 September 2014 | Supervised visit at Children's Contact Service (omitted) | Subpoenaed material Family Relationship Centre (omitted) |
| 21 September 2014 | Father's visit with children at Interrelate (omitted) | Subpoenaed material Interrelate (omitted) |
| 2 October 2014 | Orders made for the children to attend the Father's wedding. | Subpoenaed material Family Relationship Centre (omitted) |
| 5 October 2014 | Supervised visit at Children's Contact Service (omitted) | Subpoenaed material Family Relationship Centre (omitted) |
| 18 October 2014 | Children attend (omitted) for dress and ring fittings for father's upcoming wedding as agreed. | Subpoenaed material from Interrelate (omitted) |
| 21 October 2014 | Mother's Amended Initiating Application filed | Amended Initiating Application |
| (omitted) 2014 | Father and Ms L marry | |
| November 2014 | Mother and her partner take the children to (omitted), New South Wales for a family holiday. Parties and children are on the same (omitted) cruise boat. | Mother's affidavit 31 July 2015 (para 79) NSW Police Force and NSW Probation and Parole Service subpoenaed material |
| 16 November 2014 | Supervised visit at Children's Contact Service (omitted) | Subpoenaed material Family Relationship Centre (omitted) |
| 22 November 2014 | Father charged - Contravene ADVO | Subpoenaed material NSW Police Force |
| 30 November 2014 | Supervised visit at Children's Contact Service (omitted) | Subpoenaed material Family Relationship Centre (omitted) |
| 17 December 2014 | Father informs Children's Contact Service in (omitted) that he is unsure if visit will go ahead as "lawyers have requested the visit be at (omitted)." | Subpoenaed material Family Relationship Centre. |
| 18 December 2014 | Contravene Prohibition/Restriction in ADVO (Call Up) - Imprisonment 9 months commencing 18 December 2014 concluding 17 September 2015 non parole period with conditions: 1 month commencing 18 December 2014 concluding 17 January 2015 release subject to supervision by the Probation and Parole Service for such period as that service deems necessary and undertake any treatment or program recommended by the Service. | Subpoenaed material NSW Police Force |
| 18 December 2014 | Final ADVO issued for a period of 5 years naming mother as person in need of protection | Final ADVO |
| 19 December 2014 | Children's Contact Centre, (omitted) notes that "visit cancelled due to incarceration.." of father. | Subpoenaed material Family Relationship Centre. |
| 17 January 2015 | Father released from jail | Subpoenaed material NSW Police Force |
| 2 February 2015 | Breach of AVO dismissed | Subpoena material NSW Police Force |
| 4 February 2015 | Father tells Children's Contact service that he "doesn't feel safe attending visits at any Centre." Feels that the mother "had me charged with breaching the AVO." Visits will not be going ahead. | Subpoenaed material Family Relationship Centre |
| 20 February 2015 | Email received from father advising he will not attend proposed conference with Family Consultant because of his concern about possibly breaching ADVO. | Email from father dated 20 February 2015 |
| 21 February 2015 | Email to parties from ICL confirming changed arrangements for the conference with the Family Consultant addressing the father's concerns about possible breach of ADVO | Email from ICL to parties 21 February 2015 |
| 24 February 2015 | Mention and directions. Listed for final hearing | CCP |
| 25 February 2015 | Father's conference with Family Consultant. Father does not attend. | |
| 2 March 2015 | Email to parties confirming new arrangements for conferencing with the Family Consultant on 17 March 2015. | Email 2 March 2015 |
| 3 March 2015 | Email from father advising he will not attend the conference with the Family Consultant because of his concerns about possible breach of ADVO | Email 3 March 2015 |
| 4 March 2015 | Subpoena Objection filed by father listed for hearing. | CCP |
| 6 March 2015 | Children's Contact Centre (omitted) confirms that "due to inactivity of your case file, your file will now be closed." | Subpoenaed material from Family Relationship Centre |
| 17 March 2015 | Mother and children's conference with Family Consultant. Mother and children attend. | |
| 8 April 2015 | Father's conference with Family Consultant. Father does not attend. | Email 8 April 2015 |
| 7 July 2015 | Interrelate in (omitted) Co-ordinator has not had contact with either party since December 2014. | Subpoenaed material from Interrelate (omitted) |
| (omitted) 2015 | Father and Ms L's daughter, A, born | |
| 10 August 2015 | Family Report of Ms S released. Notes no interview with father. Recommendations: · The parties attend a co-parenting after separation course. · That the children see their father on a supervised basis if and when Mr Sheehan wants to avail himself of the opportunity to see them. | Orders 10 August 2015 |
| 25 August 2015 | First day of final hearing | No appearance by father |
| 26 August 2015 | Second day of final hearing | Interim consent orders |
| 3 September 2015 | Written submissions filed regarding the discrete issue of the location of the children's contact with the father. | |
| 25 September 2015 | Interim Orders in relation to the location of the children's contact with the father | |
| 9 December 2015 | Father and his family attend with Ms S so an addendum to the Family Report can be prepared. | Orders 26 August 2015 |
| 19 January 2016 | Supplementary Family Report dated 17 January 2016 released. | Orders 19 January 2016 |
Evidence of the Parties
It is sufficient to note only a few matters from the parties’ evidence, plus some additional observations from one of the early [short] family reports. This is so not least because there is no dispute that the parties’ relationship is viscerally poor. Put another way: the parties despise each other utterly, for different reasons to be sure. Against that reality, in my view, only a few matters need to be canvassed from the evidence.
In February 2013, there was an incident at a McDonald’s Restaurant in (omitted). As recounted by the Mother (her affidavit, filed 1st July 2013: pars.4-7), the Mother said that her partner was assaulted by the Father. This, she deposed, led to the Father being charged with assault (the assault said to have taken place in front of X). This led, among other things, to there being issued an apprehended domestic violence Order with the Mother and the two children listed as protected persons.
In September 2013, a short form memorandum was prepared by a family consultant. At par.24 of that memo the family consultant said: “The parental relationship is characterised by hostility and conflict and from the allegations of both parents, alarming levels of violence and other behaviours that place the children at high risk physically, emotionally and psychologically.”
Over a not insignificant period of time, Orders were in place for the Father’s time to be supervised, either at a contact centre in (omitted), or in (omitted).
Between July and September 2014, there were ongoing discussions, and Court-events, in relation to the children attending (a) the Father’s forthcoming wedding, and (b) because the children were to be part of the bridal party, for them to attend various shoe and clothes fittings. To say that these negotiations were difficult, even from the Court’s perspective, would be a gross understatement. On one occasion for the children’s fittings, the Mother felt it necessary to attend. On another occasion, the Mother felt it necessary to contact the police when the Father took the children to lunch after these Court-ordered dress fittings. Such matters, in my view, showed a remarkable lack of insight. The parties being in close proximity to each other is inherently dangerous. One would have to be completely nonsensical not to see the risks that would inevitably flow from the course adopted by the Mother in turning up to such an event. But she did it nonetheless.[5]
[5] Among other places, see the discussion with the Mother at T 36 – 37.
However, the “gold-standard” of astonishing behaviour took place on the Father’s honeymoon, following his wedding in (omitted) 2014, which, fortunately, the children attended. The photographs provided to the Court of this occasion testify to how thrilled (and beautiful) the children looked on, and enjoyed, this special day.
After the wedding, the Father and his new Wife went to the (omitted) of New South Wales for their post-nuptial vacation. They went on board a boat to do some (omitted). Lo and behold, the Mother, her partner and the children were on the same boat. One might ask, rhetorically of course: “What are the chances of such a “coincidence”?[6] There was some verbal to-ing and fro-ing on the boat between the parties. The accounts of the parties differ somewhat – unsurprisingly.
[6] Among other places, see the discussion with the Mother, T 17 – 19 & 29 – 31, and otherwise, for example, with Ms L at T 127 – 130. As I note elsewhere, I prefer the account of Ms L to that of Ms Hansen.
In any event, as a result of this coincidental maritime engagement, the Mother had the Father charged for breach of an ADVO. The Local Court that heard the matter in December 2014, in the light of the breach and some other matters, ultimately sentenced the Father to a term of imprisonment for this breach. Doubtless the incarceration was (among other things) to enable the Father to consider the blessing of his new marriage; an unforgettable honeymoon to be sure, especially since he was sentenced for a period of incarceration for 9 months, together with certain other provisions for parole and the like. And as an additional bonus to remember the occasion, a final ADVO of five years’ duration was imposed on the Father. In the result, I understand that he actually served time in prison of about one month or so.
This ADVO was the reason, on the Father’s evidence, why he did not attend upon Ms S for the preparation of a family report, and for him not attending the contact centre in (omitted) for a period of time.
In August 2015, the Father’s youngest child, another daughter (A), was born to his Wife, Ms Sheehan.
By way of general observation of the parties over a significant period of time and during the trial, the proclivities and difficulties that beset these parents was again patently obvious. This includes the difficulty of the Father to control his frustrations in relation to the Mother in almost all circumstances. At the same time, the Mother does very little, in my view, to avoid taking any course other than that which will, or is very likely to, provoke Mr Sheehan.
Mr Sheehan, whatever the genuinely helpful and ameliorating influence his Wife brings to bear on his impulse control, remains a quite angry and disgruntled Father who will, I am certain, always fight (in every sense of the term) for time with the children.[7]
[7] See, for example, the Father’s evidence that, certainly in the past when he drank significantly, he got into quite a bit of trouble including his inability to control his anger. T 95 – 97. He also confirmed that he was, and often still is, distrustful of others. T 98. In this regard, his major distrustfulness is directed to the Mother, who he believes will not make any Orders for the children to spend with their Father work. T 85.
Ms Hansen was, in my view, a very poor witness. In my clear view, her anxiety in relation to the Father, up to a point, has some historical basis but otherwise her angst appeared to me to be significantly confected. Her demeanour in Court, and her response to evidence given during the hearing, was somewhat scoffing and gave no relevant indication of any fear or anxiety.[8] Put another [related] way, she clearly knows how to “push Mr Sheehan’s buttons”, and has done so almost with utter disregard for the consequences. At the same time, as I have said, the Father has very poor impulse control, but is now at least excellently aided in every respect by his thoughtful and remarkably serene Wife, Ms L.[9]
[8] Among other places, see T 20.
[9] The Father confirmed that the 5 year ADVO in place makes changeovers, where he is in attendance, very difficult. T 81.
I might note here that Mr Sheehan confirmed that only in late 2014 was he diagnosed with depression for which he now takes medication.[10] He also said, quite candidly, that he formerly drank to excess on a regular basis. This fuelled, he said, his very poor temperament including his volatility and anger. He also confirmed that he has had no alcohol since 2012.[11] He also confirmed that “a lot has changed in his life”, which – again – was primarily a reference to the life-changing event of Ms L coming into the Father’s life.
[10] See T 100 – 101.
[11] See, for example, T 27 – 28 & 96 – 101.
The Mother did at least, reasonably fairly, confirm that she thought the children were not at risk in the Father’s household, albeit after much questioning and many alternative scenarios put to her by the Court and by the ICL.[12]
[12] T 78.
There was conflict between the evidence of Ms Hansen and her partner, Mr T. Perhaps not much actually turns on it. In her evidence, Ms Hansen said that Mr T would attend changeovers on her behalf. In his evidence, contrary to what his partner, Ms Hansen said in her evidence, Mr T said he would not look after changeovers or prefer not to be involved in them.
In the course of cross-examination I suggested to Ms Hansen that the children might spend with the Father once per month initially before moving to every second weekend, notwithstanding the large amounts of travel involved. She confirmed that she could make such an arrangement work.[13] She also said that Ms L doing changeovers would assist, either in (omitted) or (omitted) in a public place.[14]
[13] T 33.
[14] T 21.
To the degree that it is relevant, in any circumstance where there is any conflict in the evidentiary accounts between Ms Hansen and that of Ms L, I strongly prefer the account of Ms L.
It is time to turn to the family reports. Ultimately, on different occasions, both parties and the children attended upon Ms S for the preparation of a full family report – albeit in two parts.[15]
[15] There are, in fact, two reports from Ms S: one dated 17th January 2016; the other, dated 9th August 2015. Both reports were admitted into evidence and became Exhibit A. The reports are considered later in these reasons.
The First Report of Ms S: August 2015
Not only for comparative purposes, but more generally, it is as well to set out in full the contents of the first report of the family consultant, which was as follows:
a) Ms Hansen and Mr Sheehan lived together for nearly 8 years, separating in 2012. There are two children of the relationship, X (d.o.b. (omitted) 2006), now aged nine and Y (d.o.b. (omitted) 2010), now aged five.
b) Ms Hansen has a new partner, Mr R and Mr Sheehan remarried in 2014. Hs wife’s name is Ms L.
1) When I commented to Ms Hansen that the interviews for this matter had been difficult to organize, Ms Hansen explained why her ex-partner, Mr Sheehan refused to attend the first interviews that were scheduled at the same time as her. Ms Hansen said she went on holidays to (omitted), some five hours away with her partner, her children and all the family. They had been planning this for four months. When they were in (omitted) , they went on a boat to (omitted) and then Mr Sheehan and his wife walked onto the boat. They were on their honeymoon apparently. It was in August or September last year.
2) According to Ms Hansen, Mr Sheehan’s wife sat down beside them and said hello to the children, X and Y. X was shocked, went white and started crying. The significance of the event was that Mr Sheehan breached an Apprehended Violence Order (AVO) and so he was now going to Court. Ms Hansen said she advised Mr Sheehan’s wife to get off the boat because Mr Sheehan was going to breach his AVO. Mr Sheehan’s wife went down to tell him to get off the boat but Ms Hansen said he ignored this and he came right outside beside them. Apparently Mr Sheehan thought the AVO ran out on the 14th of the month but it did not actually ran out until the 29th. At the time of interview in March, Ms Hansen said Mr Sheehan has to face Court on 1 April 2015 and has already done a month in jail over Christmas for domestic violence.
3) By way of history, Ms Hansen said she and Mr Sheehan lived together for nearly eight years. Ms Hansen decided to separate because of domestic violence. She moved out with the children to (omitted), taking nothing with her. Ms Hansen said she told Mr Sheehan that he needed to get help when he told her someone else was watching what he was doing. According to Ms Hansen, Mr Sheehan started beating her with his hands when Y was about a year old. Ms Hansen said that initially she was not aware of the numerous pub fights Mr Sheehan was involved in. She reported that Mr Sheehan has had 28 charges of assault made against him. Ms Hansen said that Mr Sheehan hit her when he drank which was “majority of the time”, around once a week. She recalled one occasion when he threw a large bottle at the kitchen wall.
4) When they were together as a family, in Ms Hansen’s opinion, even X knew what to say to keep her father happy; she lied to him to keep him calm and that was when Ms Hansen thought that it was time for them to leave. X was only four years old at that time. Ms Hansen did not seek medical attention when Mr Sheehan hit her. Even when she had bruises around her chest, she would still go to work at the (employer omitted) in (omitted). She told me a nurse she consulted advised her not to report the violence she was experiencing because if he wrote down what she told him, she might lose the children over it. Ms Hansen said no one knew what went on, not even her family. She thought that “Everyone has problems, they do not need to know mine” and put a “different face on” when she got to her workplace. There was a little violence in her childhood between her parents, who separated when she was 16.
5) Nowadays Ms Hansen told me she was frightened of Mr Sheehan. She commented “He can flip at any stage”. As soon as she left Mr Sheehan, Ms Hansen took out an AVO. She said that to him “An AVO is just a piece of paper. He has broken it numerous times”.
6) Three months after they separated, Ms Hansen said she was sitting in McDonald’s with Y and her partner, Mr T (they were just friends then) and Mr T’s daughter when Mr Sheehan came in and took Y. X was at school at the time. At this stage, Ms Hansen said Mr Sheehan was not seeing the children because he had not asked to spend time with them.
7) During this incident, Mr Sheehan also wanted to fight Mr T. Ms Hansen told Mr T that it was not worth it and to go and sit in the car and lock it. Ms Hansen could not leave because Mr Sheehan had Y. Ms Hansen asked Mr Sheehan to give Y back to her. She alleged he basically threw Y at her and then he got a large coke and tipped it all over them. No one in McDonald’s called the police. Ms Hansen stood with Y at the doorway because Mr Sheehan wanted to beat up Mr T but he pushed her and Y away. According to Ms Hansen, Mr Sheehan then approached the car where Mr T was sitting in and started banging on the windows telling him to get out and fight him, but Ms Hansen intervened. Mr Sheehan then took her sunglasses off her head, broke them and then walked away like nothing happened. Y did not speak for nearly a day after that incident. She was two when that happened. After this, Ms Hansen said Mr Sheehan repeatedly breached the AVO. He rang and texted Ms Hansen, calling her a “fat whore”.
8) While they were living together, Ms Hansen paid for their rent and everything else even if Mr Sheehan was working. Because Mr Sheehan had not paid his tax for 13 years, Ms Hansen said his child support obligation had not been assessed and she did not receive any money from him. She alleged Mr Sheehan was working and that he had recently bought his wife a new car.
9) Even though he did not make any formal application about seeing the children, Ms Hansen said Mr Sheehan kept hounding her so she gave in and they made a one-off agreement that Mr Sheehan picked X up one Friday afternoon and dropped her back on the Sunday. Y, the youngest, did not want to go to see him at all.
10) One time when Y eventually went with X to be with Mr Sheehan, he would not bring them back. According to Ms Hansen, her ex-partner made false allegations to the police in Young against their babysitter and Ms Hansen and Mr T. The allegations included that the babysitter was putting peanut butter on her nipples and making the children lick it off. Ms Hansen said Mr Sheehan also alleged Mr T was putting peanut butter on her backside and licking it off in front of the children. Ms Hansen said she had the police at her house every day for a fortnight and that her family’s house was searched for illegal weapons. Mr Sheehan also accused Ms Hansen of buying drugs with her sister’s Medicare card and that she was stealing from her work, (employer omitted).
11) Ms Hansen said the police were starting to kick Mr Sheehan out from the (omitted) Police Station because he kept making so many allegations against her. While Mr Sheehan was in Court for the incident in McDonald’s, Ms Hansen went to his mother’s house to get the children back. The children were with Mr Sheehan for about a week. After the allegations Mr Sheehan made, Ms Hansen said the police told her to dismiss the babysitter, until the Juvenile Investigation Response Team (JIRT) sorted the matter. X was interviewed by the police.
12) In Ms Hansen’s opinion, Mr Sheehan was “a mental case”. Sometime after they split up, Ms Hansen said Mr Sheehan was diagnosed with having a “split personality”. According to Ms Hansen even if he was not drunk, Mr Sheehan could “still flip it”. She was not aware that he is using any non-prescription substances around the time of interview. Ms Hansen claimed “You can’t reason with him, if it’s authority, he won’t do it. That’s what put him in jail”. Mr Sheehan went to jail from 16 December to 16 January because he did not attend a Domestic Violence course ordered by the court. She understood he attended two sessions but did not go back again. The course was part of his 12 month good behaviour bond and nine month suspended sentence following the McDonald’s incident and he was jailed after he failed to attend it. Ms Hansen said Mr Sheehan was due attend Court again on 1 April for the breach of AVO during the boat incident.
13) When Mr Sheehan left her brother’s house, he trashed the house and wrote highly offensive remarks about Ms Hansen. Ms Hansen claimed Mr Sheehan also defaced a family photograph they had on the wall.
14) I heard from Ms Hansen that Mr Sheehan has two sons from a previous relationship aged 16 and 19. Ms Hansen kept in contact with them to maintain a relationship with X and Y. Ms Hansen advised Mr I, Mr Sheehan’s 19 year old son, had put an AVO against his own father for violence and that he had previously made charges against his father for assault. Ms Hansen alleged Mr Sheehan assaulted his son in front of her and X and indeed that she had to break the incident up.
15) Currently Ms Hansen said Mr Sheehan was allowed to have supervised visits with the children at Relationships Australia once a fortnight on a Friday. Ms Hansen said the visits were supposed to be once a fortnight in (omitted) and once a fortnight in (omitted). Ms Hansen had to drive considerable distances for the visits with no financial support from Mr Sheehan. Ms Hansen said that it has been a long time since Mr Sheehan’s last visit with the children. She thought he stopped them after the incident at (omitted).
16) Ms Hansen recollected Mr Sheehan wanted the children for Christmas, but she refused to drive to (omitted) to facilitate this. Ms Hansen had difficulty remembering the sequence of events. She did not think the children had seen their father this year. In response to my query regarding whether the children were missing their father, Ms Hansen told me that when they were in the bathroom at Woolworths just before coming to my office, Y said, “I don’t want to go see my Dad and locked the door”. Ms Hansen thought that X would like to see her father but did not want to leave the Contact Centre because she was wary of Mr Sheehan after what she had seen previously.
17) According to Ms Hansen, Mr Sheehan was now applying for full custody of the children. Ms Hansen thought that Mr Sheehan was thinking that if he could not reason with her then it was her problem. In Ms Hansen’s opinion, Mr Sheehan aimed to make Ms Hansen look so bad in Court that she would be put on charges. Ms Hansen pointed out that during the boat incident in (omitted), X wanted to jump off the boat when they saw their father and his wife, despite being in the middle of the sea.
18) In terms of what time she thought the children should spend with their father currently, Ms Hansen did not think Mr Sheehan was trustworthy enough to take the children for a whole weekend and she did not know anything about his wife, except that she was pregnant. Ms Hansen alleged Ms L had laughed at her in Court the other day when Mr Sheehan was sent to jail and said Mr Sheehan did not realise the problem she was likely to have as well. Ms Hansen said she had not told the girls that their father went to jail because the girls did not need to know about this.
19) In response to my query, Ms Hansen told me she was now living with her new partner, Mr T and that they have been together for two years now. When she first met Mr T, Ms Hansen said she struggled because he was too nice. Ms Hansen told me she and Mr T have Mr T’s two children, B and C living with them and that the children are aged 8 and 6. Ms Hansen explained Mr T has full custody of them because their mother does not really want them. Ms Hansen added X and Y got along pretty well with B and C and Ms Hansen jokingly said “It gets a bit hectic”.
20) Ms Hansen thought that Mr Sheehan wanted her and Mr T to fight over the money situation, given their legal fees and costs involved in transporting the children for contact purposes. She speculated Mr Sheehan would consider he had won if she and Mr T fought over money and she ended up alone. Candidly, Ms Hansen confirmed that the financial situation had been a strain on her relationship with Mr T. When asked about the stresses Mr Sheehan had put in her new relationship, Ms Hansen said that everything has been pretty good and her new partner understood her situation. She went on to say that Mr Sheehan, “dragged us through hell and back, and still continues to be difficult”. Ms Hansen claimed that every affidavit that Mr Sheehan had written was a lie.
21) To her credit, Ms Hansen did not think Mr Sheehan should be completely denied time with the children. Ms Hansen told me that the children did not look for their father. Ms Hansen went on to say that X was quite straightforward about her wishes but that Y was quite shy and probably would not talk to me.
22) Ms Hansen told me X was repeating Year 1. According to Ms Hansen when she was with Mr Sheehan, because she had to go to work very early in the morning, he was supposed to put her on the bus to go to school, but had difficulty doing so and she would not go to school. Alternatively Ms Hansen said she would have to get the children up at 4 AM and take them to her sister’s house, so her sister could take them to school. If she had to pick the children up after school, Ms Hansen said she would not get home until 7 PM and that Mr Sheehan would be sitting drinking beer, waiting for her to cook dinner. He was not working himself at this time.
23) Despite his behavior, Ms Hansen noted that in every email he had written, Mr Sheehan appeared to blame her. She said she was too distressed to read them. According to Ms Hansen, Mr Sheehan had trouble getting legal representation because he was abusive to his lawyers and after the local police woman asked him to leave the police station, had wanted to put charges on her. Ms Hansen mentioned that one time Mr Sheehan went into a coffee shop and was asked to get out. Ms Hansen said that Mr Sheehan abused everyone.
24) Ms Hansen did not have any mental health issues or any family history of mental health issues. She told me that currently she did not drink alcohol and she never used non-prescription drugs. Ms Hansen became upset when she discussed the pressure Mr Sheehan had put her under. She said that there was nothing she could do through all of this. Ms Hansen also said that Mr Sheehan’s family members could not deal with him or tell him what to do. She told me that her own parents were supporting her.
25) Ms Hansen said that Mr Sheehan could probably take the children but she was not sure when Mr Sheehan would bring them back. Ms Hansen said Mr Sheehan’s ex-wife had to get many recovery orders to get her sons returned. Often she would drive the boys back to the police station and their mother would have to come to get them.
26) In Ms Hansen’s opinion, Mr Sheehan thought he could make her jealous of his wife. She said she certainly did not care that he had remarried. Ms Hansen went on to say they had two children together and wondered why Mr Sheehan could not just “grow up and get on with it”. Ms Hansen mentioned that the Court gave her a five-year AVO that Mr Sheehan was disputing, despite having already broken it three times.
27) Ms Hansen also mentioned that the police told her to put in security cameras because they thought that Mr Sheehan would come and get her. Ms Hansen told me that she had to go to public places to feel safe and she went through stages that she would not sleep because of her fears about what Mr Sheehan wanted do. Ms Hansen stated that Mr Sheehan wanted his wife to supervise the children however Ms Hansen felt that Mr Sheehan’s wife would not be able to handle her husband. She alleged her solicitor has had to “kick him out of” her office.
28) In November last year, Mr Sheehan wanted the children to attend his wedding. Ms Hansen said her sister suggested that she drive the children over to (omitted) and stay the night with the children. The children did not want to go but the Judge said they had to do so. They suggested that Ms Hansen drove the children over and Mr Sheehan’s mother came and got the children and then they could go back to her overnight. She also mentioned that Mr Sheehan would not pay for the motel room or her travel expenses. Blaming her, at one stage Mr Sheehan cancelled his wedding because he did not want to pay Ms Hansen “a dollar” to travel to the town where he was going to get married. Eventually Ms Hansen said Mr Sheehan’s sister came and got the children for the wedding. However she was late returning them. Ms Hansen told me that even the dress fitting was a hassle and that even though only his mother was supposed to attend, Mr Sheehan attended as well and took the children out to lunch. She then had to wait around for two hours while Mr Sheehan had his formal visit with the children, even though he had already spent most of the day with them.
29) Ms Hansen also said that Mr Sheehan wanted a DNA test for their daughter Y. She also mentioned that Mr Sheehan has a criminal record and he was on parole now after being caught drink driving. Mr Sheehan has pleaded not guilty for breaching the AVO by being on the boat in (omitted) at the same time as she was. The matter was to be heard on 1 April. Ms Hansen was at a loss regarding what to suggest to the court regarding the children seeing their father. She noted X was missing a (hobby omitted) activity she really enjoyed when she had to go to see her father. Ms Hansen was stressed by the emails her solicitor continued to receive from Mr Sheehan, in which he continued allegations about sexual abuse even though the police had considered there was no substance to them.
30) Despite some minor validity concerns, Ms Hansen’s test results at Attachment 1 showed no signs of psychopathology or reasons for concern.
CHILDREN AND THEIR RELATIONSHIPS
The children and their mother
31) Both girls related to their mother in an affectionate manner. They happily chatted about what they had bought shopping with their stepfather during their mother’s interview.
X
32) I asked X if she knew why she had to come and talk to me to which she responded “Not really”. After I pushed for further, she said she had no idea. After I explained to X why she had to talk to me and asked her again if she knew what she would like to do in terms of seeing her father, she replied “Not really”. X said that they had not seen him since last year. When I asked her why, she answered “I don’t know”. When I asked X why her parents separated, she told me that she did not know. She told me that her parents did not really argue very much nowadays.
33) When I asked her how she felt about not seeing her father, X responded “Well like in the middle”. X told me that her father did not ring her up.
34) X and I chatted about her father’s wedding last year in which she was a bridesmaid with her stepsister, D, who was her father’s wife’s daughter. X described her dress, said her sister was the flower girl, and described the role of her other brothers and sisters in the wedding. X laughed when she said that it was really funny when they had to dance.
35) X told me she has only had one visit with her father since the wedding. She said that she used to see her father at Relationships Australia. When I asked her what it was like, X responded “Yeah we could play with toys”, play games and go outside. She told me the Contact Centre had a lot of toys.
36) When I asked X if she missed seeing her father, she responded “I don’t really care”. She said that she did not like it when they have to go and see her father, particularly if she had a (hobby omitted) event on and all her friends were going to it. X explained she played a team (hobby omitted) game, called (omitted). X told me that she liked (hobby omitted) and I commented that she must be a (hobby omitted). I asked her what her (hobby omitted) was called. She replied “(omitted)”. X chatted about the game she played.
37) X said that they were moving into a house with only two bedrooms with six of them which they were going to renovate. Regarding school when I asked her if she has any friends at school, X listed many friends by name.
38) In relation to her grandparents, X told me her maternal grandmother lived near them. X chatted about her aunt’s house, advising me they had a pool. X told me she could swim 50m breaststroke and 50m backstroke in the Olympic pool.
39) X told me she only thought about her father sometimes when she was not doing anything. X said she could not remember having to go to talk to the police. When I asked her if anything worried her about her mother or father, X said she did not know. X told me she did not sleep over at her father’s and did not know if she would like to.
40) X’s test results at Attachment 2 indicated that she was positively involved with both of her parents and with Mr R, deriving her feelings of self-worth from her perceptions of their regard for her. She was confident they all loved her and loved them all in return. Unusually she directed almost all the negative items to Y, demonstrating very intense sibling rivalry. On a common measure of children’s anxiety, it was reassuring that X scored in the normal range.
Y
41) When I asked Y if she knew why she had come to talk to me, she did not answer. After I explained, Y shook her head when I asked her if she saw her father much at the moment. She did not respond when I asked her if she wanted to see her father.
42) Y told me she had been doing “Nothing” before her interview and that she had not been shopping (I understood she had been). Y told me her (hobby omitted) was called “(omitted)”. She told me she could (hobby omitted) by herself. We chatted about (hobby omitted).
43) When she saw her father at the Contact Centre, Y told me they did not do very much before saying they did puzzles and painting and drawing. She told me they did a lot of different things at preschool, where she has only one friend called (omitted).
44) Y was too young to complete the formal assessment tasks.
EVALUATION
45) The usefulness of this report is hampered by Mr Sheehan having refused to attend the three interviews offered to him. This refusal did not bode well for his ability to co-operate with the efforts of the Court and the Contact Centre and indeed of his ex-partner to facilitate him seeing his children.
46) From the documentation provided, I learned that in June 2013, Mr Sheehan retained possession of both children because of concerns that they were being both physically abused by their mother and Mr T and sexually abused by a babysitter and one of Mr T’s children. The matter was referred to JIRT but no action was taken. Making such allegations indicates Mr Sheehan’s profound lack of trust in his ex-partner and her ability to care for and protect their children. No care concerns were evident to me in Ms Hansen’s history and presentation or in the girls’ reports of their fulfilling life with her.
47) The documentation provided by the police also detailed Mr Sheehan’s extensive criminal record from 1993 to 2013 it included many offences against people and was obviously concerning. Mr T’s record only noted driving offences.
48) There was nothing in my contact with Ms Hansen and her children to suggest that Mr Sheehan should have anything other than supervised contact. His children did not express any strong wish to see him at all. It was reassuring that X did not present as an anxious child in her test results. I did not get the impression that Ms Hansen was deliberately opposing the children spending time with their father but rather that she was concerned about their safety and well-being should they do so.
49) Children exposed to domestic violence are undoubtedly likely to be anxious children. These children deserve the right to enjoy their childhood without undue stress and it is to be hoped their father can come to recognise this and to gradually demonstrate his parenting capacity by initially attending supervised visits and by addressing his hostile attitude to his ex-partner. If Mr Sheehan could come to see how self-defeating his antagonism to his ex-partner, to her lawyer, and to the ICL is, perhaps in time he and the children could again enjoy time to get and eventually move towards unsupervised time.
RECOMMENDATIONS
50) That both parties attend a co-parenting after separation course.
51) That the children can see their father on a supervised basis if and when Mr Sheehan again wants to avail himself of the opportunity to see them.
A somewhat different, but still reasonably consistent, assessment was undertaken by the same family consultant a few months later, which resulted in her January 2016 report. In terms, that report provided as follows (emphasis added):
1) Mr Sheehan attended the report interview in a timely manner, accompanied by his wife Ms L and her three daughters. He told me that he and Ms L also had a four month old baby, A. Mr Sheehan lived in (omitted). Mr Sheehan told me he married Ms L on (omitted) 2014. They were in a relationship for a couple of years before they got married.
2) In terms of his dispute with Ms Hansen, Mr Sheehan alleged Ms Hansen was doing her best to alienate him from their children. He described his relationship with Ms Hansen as having been a casual one. He told me that they had X and that Ms Hansen would bring X to visit him and drop her off into his care for a week or two. At the time, Mr Sheehan said Ms Hansen was living at (omitted) at her mother’s and that he was out (employment omitted) for about 10 years in total. He said he was (employment omitted) all around the state and that Ms Hansen would come and visit for a while and then go away again. He said he might not hear from her for a month or so and then she would come back and visit him again.
3) Mr Sheehan said X’s birth was certainly not planned, particularly because he and her mother were not in a full time committed relationship. Subsequently, Mr Sheehan said they had Y, also unplanned. Mr Sheehan commented that he was not blaming the problems 100% on Ms Hansen, arguing that her solicitor had a lot to do with the problems.
4) After they separated, Mr Sheehan said the children actually lived with him in a house at (omitted) for about six months. He estimated Ms Hansen only came to see the children perhaps one night a week. Mr Sheehan said he was looking after the children by himself. He said sometimes they would go to see his mother at (omitted).
5) Mr Sheehan told me he was sent to jail last Christmas for a month and explained that this had resulted from several events. He was explaining this as a way of advising why he did not attend his interview with me in February this year. He told me that there had been an incident at McDonald’s when he had inadvertently ran across Ms Hansen and the children. At the time, he had not seen the children for a month or so because he had been away working.
6) When he entered McDonald’s, Mr Sheehan said that Y who was only about two, yelled out “Daddy!” and ran to him. Mr Sheehan said he saw Ms Hansen sitting in the corner of the playroom holding hands with a man. He said he had thought that she had another boyfriend but she had always denied it to him. By this time, Mr Sheehan said he and Ms Hansen had had a series of arguments and he was sick of her and was just trying to keep away from her. He was unsure whether they were still in a relationship or not. He said that obviously she had moved on. About six months before, Mr Sheehan said Ms Hansen had denied she was involved with the other man.
7) Mr Sheehan said Y came and sat on his knee and Ms Hansen came over and tried to drag Y off him. He said this resulted in “a push and shove”, that he threw a cup of coke at Ms Hansen and that when Ms Hansen had dropped her sunglasses, he stood on them and broke them. As they were leaving the restaurant, Mr Sheehan said the argument dragged out into the carpark and subsequently, Mr Sheehan said he sent Ms Hansen some text messages telling her what he thought of her. This resulted in him being charged and having to go to Court. Mr Sheehan said he was given a 12 months suspended sentence. Apart from the incident at McDonald’s, Mr Sheehan said there had never been any violence between him and Ms Hansen. Mr Sheehan said he regretted the incident at McDonald’s.
8) As part of his sentence, Mr Sheehan told me that he had to be under the direction of probation and parole. He also had to complete a Domestic Violence Course. By this time, Mr Sheehan said he had moved to (omitted).
9) Mr Sheehan said that Ms Hansen had really tried to stop the girls from coming to his wedding. He said that eventually they did attend. Mr Sheehan said that the Judge had ordered that they should do so. He said that the Judge also ordered that the children were to be made available in (omitted) for any dress fittings required. He said that he had to go back to Court twice to get the children made available for dress fittings.
10) When they got married, Mr Sheehan told me that he and his wife went away (omitted). He said by chance, they ended up at (omitted). He said they had not planned to go there but he took Ms L there to show her where he used to live. He added that they also visited his father’s grave. Mr Sheehan said they had planned to go to (omitted) but changed their minds and stayed in (omitted).
11) The next day on a whim, Mr Sheehan said they went on a (omitted) trip. He said they were heading out to the ocean when he realised Ms Hansen and the children were on the boat. Mr Sheehan asserted that this was a complete coincidence and commented that he wished he could be as lucky with the lotto. When they were on the boat, Mr Sheehan said that he did not speak to Ms Hansen or even look at her, but said he was convicted because he said hello and goodbye and “I love you” to the girls. He said when he walked up the stairs, Y was sitting at the top of the stairs. He said he had greeted his daughter saying “Hello Y, what are you doing here?” Mr Sheehan said he looked over at X but said Ms Hansen was holding her in her arms tightly in a back corner of the boat. At the time, Mr Sheehan said he thought the AVO had actually expired but said it did not expire until a week later. Mr Sheehan said the incident was so trivial because had it happened a week later, the AVO would have expired and nothing could have been done.
12) As a result of this incident, Mr Sheehan said he was charged with breaching the AVO, convicted and given another 12 months good behaviour bond. Mr Sheehan added that Ms Hansen also had him charged for breaching the AVO when he attended the children’s dress fittings. He said the Judge had indicated that he was allowed to do so but had not included this in the Order.
13) According to Mr Sheehan, Ms Hansen had friends in the police at (omitted). Because he missed a couple of classes for the Domestic Violence Course, and the parole officer had breached him. Mr Sheehan said he went to Court on the last day of Court on 18 December 2015 and the Judge decided to make an example of him. He said he was unrepresented because he and Ms L had spent all their money on their wedding. Some work he had scheduled in (omitted) had been cancelled as well. Mr Sheehan told me that he was self-employed in his own (omitted) business. Because he was sentenced on the last day of Court for the year, Mr Sheehan said he had no opportunity to appeal his sentence. At the time, Mr Sheehan said Ms L was pregnant with A and was hysterical. He said she visited him every weekend. Mr Sheehan assured me he had never been jailed before.
14) Nowadays, Mr Sheehan said he would like to see the children every fortnight. He was supposed to see them at the local (omitted) Contact Centre, some five hours’ drive from (omitted). In Mr Sheehan’s opinion, Ms Hansen wanted his contact to be in (omitted) because it was better shopping for her. He said she would be able to go shopping after she dropped the children to him. Actually Mr Sheehan said that (omitted), where Ms Hansen lived, was halfway between (omitted) and (omitted) and that he had to drive past her house to get to (omitted) to see the children.
15) In August last year when they last went to Court, Mr Sheehan said that because he had not seen the girls since (omitted) 2014 for his wedding, the Judge made orders that they had to recommence visits at the Contact Centre. He said this arrangement was supposed to continue until the final hearing in March 2016. Until the end of 2015, Mr Sheehan explained that the order was that he was to have visits with the children at the (omitted) Contact Centre. He said each visit was to be for two hours a fortnight. From the beginning of 2016, Mr Sheehan understood that he was to be allowed to collect the children from Interrelate in (omitted) and have them for the day. He explained that this was a Contact Centre. His understanding was that Ms Hansen would be required to take the children to (omitted) for contact purposes.
16) Since August however, Mr Sheehan said they had only had two visits. He said on a number of occasions, including for the last visit on 21 November, Ms Hansen would ring up at the last minute and cancel the visit. He said she would say that she could not make it for whatever reason. However, when the centre staff rang her within two weeks to reschedule, Ms Hansen would then delay scheduling another visit for about six weeks. He said she would agree to a weekend “far in the future” but when it came to that weekend, she would ring up and cancel. Mr Sheehan said in total he had only seen the children twice this year.
17) Now, Mr Sheehan said that he just wanted to see his children and argued that the children just wanted to see him. Mr Sheehan said there was no Contact Centre in (omitted) and none halfway between them at (omitted). He said they either had to use the (omitted) or (omitted) Centres. Because of the charges that had already been laid against him, Mr Sheehan said his parole office advised him not to go anywhere near Ms Hansen. Accordingly, he did not attend the interviews with me, because he feared breaching the DVO. He said he was also advised not to attend Interrelate. Mr Sheehan said he had written to the ICL and to me outlining his concerns. He said the parole officer had advised him to have the matter relisted in Court to obtain an exemption clause for contact purposes.
18) Mr Sheehan told me he wanted to see his children “for whatever I can get”, ideally once a fortnight. Last time they went to Court, Mr Sheehan said he had proposed that he should see the children every second weekend and for half of school holidays. He also wanted special occasion contact and argued his proposal was not unreasonable.
19) In response to my query, Mr Sheehan told me that his children had met Ms L’s children and said that they got along well together. He said they had only met on two occasions, once at the wedding and once at the last visit in (omitted), some six or eight weeks ago. This last visit was supervised at Interrelate in (omitted). By the time of that visit, Mr Sheehan said he had not seen the children for almost 12 months but reported that they ran up and jumped all over him.
20) Mr Sheehan complained the staff at the (omitted) Contact Centre had been difficult to deal with, insisting, for example, that he drove down just to fill in some paperwork, around a distance of some 10 hours, despite him having filled in the paperwork previously. Apparently, the paperwork could not be sent from (omitted) to (omitted) and he was supposed to complete the same paperwork all over again. Because the paperwork was not completed, Mr Sheehan said they actually missed a visit. He queried why the centre could not have emailed the paperwork to him.
21) Mr Sheehan denied allegations by Ms Hansen that he had been sent to jail for drink-driving. He said he no longer drank alcohol. Mr Sheehan said he had drunk alcohol previously but noted he had not been booked for drink-driving since he was 20. By the time of interview, he said he had not drank alcohol for about four years. Mr Sheehan told me Ms L did not drink alcohol either. He did not use any other non-prescription substances. Mr Sheehan said he did not deny that he used to be a heavy drinker but said he no longer was.
22) Since she had the baby, Mr Sheehan told me that Ms L was home with the children. He said Ms L’s children lived full time with their mother and him and that they had not seen their father for three or four years. He explained this man lived in Western Australia and said that even when he had lived with his ex-wife and family, he had a fly-in fly-out job and did not have much of a relationship with his children. There were allegations that he had abused his children in the past. Mr Sheehan said Ms L’s girls remained fearful of their father.
23) When I asked Mr Sheehan why the girls should see him, he responded that they had a very close relationship with each other and said that they had always had this because they had spent a lot of time together. Mr Sheehan believed the girls still wanted to come and see him. In the event he was allowed to take the children out for the day in (omitted), Mr Sheehan said he would engage in various activities such as taking them to the zoo, out to lunch and a lot of other activities. He told me he liked living in (omitted) much better than in (omitted) where he used to live.
24) When he was sent to jail, Mr Sheehan said Ms Hansen was able to obtain a five year AVO. He said that until this expired, he was restricted in terms of coming into contact with Ms Hansen. He said this AVO was because of the dress making incident and the incident on the (omitted) boat. Because the AVO was in place for five years, Mr Sheehan understood that all the changeovers had to be at Interrelate. He said Ms Hansen had actually wanted the changeovers to be at (omitted) Police Station but both he and the ICL had agreed that this would be too traumatic for the children.
25) Mr Sheehan commented that it was unfortunate that Ms Hansen would have to do all the traveling for the next five years, but said that as a consequence of charges laid against him, he had to go to jail for a month and spend a lot of money on legal fees.
26) Mr Sheehan argued that Ms Hansen and her partner were earning a good wage from her work at the (employer omitted) and yet she expected him to pay all her costs for driving to (omitted) for contact purposes. He complained that all the times he had to drive to (omitted), nobody had paid his expenses which included staying in motels and fuel. Mr Sheehan paid child support. He then amended this to say he had not paid for a long time but had recently started paying again. He had given the Judge an undertaking that he would start to meet his commitments. Once the AVO was expired, Mr Sheehan said he was quite happy to do all the traveling to pick the children up. If he went near Ms Hansen now, Mr Sheehan said he would end up back in jail. If the children were allowed to spend time with him, Mr Sheehan said they would get to know his side of the family. He said his mother did recently see the girls.
27) Unless the children came on the day of interview, Mr Sheehan said he would not see them for Christmas. He said 21 November had been the last scheduled visit before Christmas but this was cancelled. He said that Ms L and the girls had bought his daughters some Christmas presents. He said they were all disappointed when the visit did not go ahead but had brought the presents with them on the day of interviews with me. Mr Sheehan said the Contact Centre had no more vacancies for visits before Christmas. Mr Sheehan said there were no more visits scheduled at present. He had understood the woman from Interrelate was going to talk to Ms Hansen to try to schedule a visit but said she had not got back to him.
28) According to Mr Sheehan, Ms Hansen had lied throughout the whole Court process. He said she had done this to suit herself and to alienate him from the children and vice versa.
29) Mr Sheehan’s test results at Attachment 1 showed no signs of psychopathology or reasons for concern.
CHILDREN AND THEIR RELATIONSHIPS
Mr Sheehan and Ms L and the Children
30) Before X and Y arrived, Mr Sheehan’s stepdaughter E happily sat on his knee. Another stepdaughter, D told me that it was her ninth birthday that day. Ms L chatted about the baby and the girls took turns in nursing her. I heard that the baby was doing well. After the interview, Mr Sheehan said they were going to visit his aunt and grandfather who lived in (omitted).
31) In response to my query about how she felt about Mr Sheehan’s daughters, Ms L enthusiastically commented “They’re beautiful.” She said that she had not had very much to do with them as yet. She said that every time she had had anything to do with them, it had always been very positive. Ms L volunteered she was seeing a psychologist herself in (omitted) and had been seeking advice about how to best relate to her stepdaughters. Ms L volunteered that she did not push the girls. She described X as always very forthcoming and said the girls voluntarily came to her.
32) The maternal grandmother brought X and Y to the observation session. Both Mr Sheehan and Ms L greeted them warmly and while the girls were a little reserved at first, they soon relaxed. Ms L immediately asked them if they wanted to nurse the baby and X willingly did so. Ms L asked Y how she was and Mr Sheehan noted that Y was always very quiet.
33) Ms L said the girls had met A before, at the last contact visit in (omitted). Ms L asked X if she would like to give the baby a bottle when the baby began to cry. Ms L commented on how much she liked Y’s t-shirt which had horses on it and matching shorts. All the girls were beautifully dressed. Ms L asked Y what her doll’s name was and learned that the doll was called (omitted). Mr Sheehan told his daughters that it was D’s birthday that day. Ms L noted that D was the same age as X. X volunteered that it had been her stepbrother Mr T’s birthday the previous (omitted). I learned Mr T was her mother’s partner’s son.
34) Ms L asked all the girls to pose for a photograph with their father. She told me how their large family photograph last year was used as a display photo on the (omitted) Mall. She said when they returned to the mall this year, the Santa recognised them from the previous year and from the photograph.
35) Ms L’s daughters were very keen to give X and Y their Christmas presents. Ms L said to Y that they knew she was due to start big school the following year and accordingly, had bought her a lovely backpack as well as lots of other stationery. The children’s presents all came from the (omitted) Shop and they were clearly excited about them. Ms L told Y that she was all set for big school with a bag, a lunch box, pencil case and other items. Y was clearly very pleased with her presents. X was similarly well equipped. Instead of a school bag, X was given a flashing table lamp. X’s presents were all purple and Y’s were all pink to prevent them getting mixed up. X was also given some pyjamas with horses on which she really obviously liked. Ms L explained she bought colour coded items for her own daughters.
36) Mr Sheehan wrote an invisible message on a piece of paper with one of the girls’ new pens. He actually wrote “I love you”, which could be illuminated with a light on the end of the pen.
37) The little girls all impressed as very pleasant and polite children, asked to go to the toilet and for a drink in an appropriate manner. They chatted about when they were due to finish school. The girls were all very chatty. X was particularly chatty.
38) Ms L took some more photos. They all spent time trying to make the baby smile. Mr Sheehan started talking to the girls about their (hobby omitted). Ms L joined in, showing interest in what (hobbies omitted). A discussion ensued about how tall X was for her age. They compared her to D who was much smaller. A lot of laughter ensued as all the children discussed how tall they were.
39) Excitedly, Ms L asked the girls to guess who had come to stay with them the previous week. She said it had been their older half-brother, Mr C. She said they had all had a lovely time together. Mr Sheehan told me that Mr C was 16 and was just finishing Year 10 at school. Ms L was firm with the girls when they climbed on the furniture or misbehaved during the interview. They certainly listened to her and responded well when she asked them to behave. She asked them to climb down from the window ledge, and the girls readily obeyed. The room was very small for all of us. The girls started to draw.
40) X said she would be in Year 4 at school next year. They all chatted about when they finished school for the year. X told us about the awards she had got at school this year and Mr and Mrs Sheehan praised her warmly. They started to chat about their (hobbies omitted) and I learned Mr Sheehan and Ms L (hobby omitted) as well. They then showed me a photograph of a large blow up Santa they had just put up outside their house.
41) In the event her daughters were naughty, Ms L told me that she usually withheld things from them. She told me that they might be grounded or get given chores. She said she did not need to smack them. She said when the children were grounded or were told they could not (hobbies omitted), have treats or any ice blocks, they did listen.
42) Causing much laughter, X told a funny story about how her father had looked when he had cut his jeans into shorts. Ms L then asked Y if she would like to hold the baby. Y was pleased to do so. Ms L took more photos. The baby looked very relaxed lying on Y’s knee. Ms L praised X’s drawing. X then chatted about going to the (omitted) for a school excursion. She told everybody how she stayed the night at the zoo. Mr Sheehan showed interest in what animals X had seen. She delighted in chatting about the zoo. The children all laughed at Ms L’s efforts to draw.
43) Ms L asked the girls what they were doing for Christmas and X advised they were going up to (omitted) for a little while. This was to see their stepfather’s relations. She chatted about her stepsiblings on her mother’s side and told us that they all got along well together. Causing much laughter, Y commented that she could bash Mr T down. We all chatted about (hobbies omitted) and I learned Mr Sheehan and Ms L insisted on the children wearing helmets.
44) Mr Sheehan appropriately cautioned one of the little girls to be careful of the light cord. When I advised the family that the children’s grandmother had returned to collect them, D commented that she wanted the girls to stay. They all farewelled each other in an affectionate manner and Mr Sheehan said to the girls that he hoped that they had a good Christmas. The girls cuddled everybody goodbye. Mr Sheehan commented that he hoped they got some good presents. The girls left without undue fuss. They quickly packed up their presents before they did so. In farewell, Mr Sheehan said to each girl “See you darling, I love you.” Both he and Ms L told the children to have a good Christmas and the children left without undue fuss.
EVALUATION
45) This additional report should be read in conjunction with my previous report dated 9 August 2015.
46) Despite the infrequency of his visits with the children, the girls appeared happy to see their father and a very enjoyable visit was held under my supervision. Both Mr Sheehan and Ms L were very pleasant and engaged with the children and Ms L was a particular strength. Arguably Ms L has assisted Mr Sheehan to mellow and become more cooperative. His test results suggest this. Indeed Mr Sheehan can only be considered as being his own worst enemy. His resistant attitude to me was consistent with his attitude to other authority figures such as the Probation and Parole Service. Indeed Mr J from that service in his report dated 28 October 2014, when commenting on Mr Sheehan’s unsatisfactory response to the service’s supervision, concluded that “he has demonstrated what can only be described as behaviours that are indicative of an individual with an overdeveloped sense of entitlement coupled with an apparent limited sense of responsibility”.
47) Other documentation such as Mr Sheehan's Pre-Sentence Report dated 22 January 2014 noted his difficulty dealing with conflict, commenting “notwithstanding, it is apparent that the offender is unable to manage his personal and domestic conflict in the appropriate or lawful manner”. Unfortunately, Mr Sheehan did not cooperate in attending a domestic violence course. Prior to this, in his report dated 22 November 2013, Dr B concluded “Mr Sheehan has a limited capacity to understand himself or his cycle of aggressive behaviour. His past history demonstrates his lack of maturity to cope with intimate relationships or to deal effectively with confrontation or conflict. … Mr Sheehan has a limited capacity to calm himself down or to self regulate his anger”.
48) The relevance of these observations to Mr Sheehan having contact with his children must now be considered. Protective factors are the very supportive, helpful role of Ms L, the increasing age of the girls as well as any supervision provided. The risks are that as history and my own experience of Mr Sheehan suggests, he will not abide by the directions of authority figures such as the Court or Contact Centre staff. Mr Sheehan has not had unsupervised time with the girls, and in my opinion, at least handovers will have to be supervised for the foreseeable future. At some later stage if reliable, uneventful visits take place, Ms L could do the handovers as well as supervise contact visits. The need for a supervisory role at handovers is to minimise the opportunity for any conflict between the parties and the need during visits is to minimise the opportunity for Mr Sheehan to say anything denigratory about their mother to his daughters or indeed to get into any direct conflict with them as they become older and more assertive.
49) The difficulty of making orders for the children to see their father in this matter is also compounded by the distances involved. The parties roughly live almost 3 hours apart and any supervised contact or supervised handovers could either take place in (omitted) or (omitted). Ms Hansen would have to travel about 3 hours each way to (omitted) or nearly 2 hours each way to (omitted), while Mr Sheehan would have to travel 4½ hours each way to (omitted).
50) The distance involved and the history of this matter mitigate against Mr Sheehan having very frequent time with his daughters. Overly onerous travel arrangements will not enhance Ms Hansen’s cooperation.
RECOMMENDATIONS
51) That both parties attend a co-parenting after separation course.
52) If the purpose of contact is for the girls to maintain a relationship with their father and develop a relationship with their half-brother, stepmother and stepsiblings, bimonthly visits might have to suffice, alternating between (omitted) and (omitted) Contact Centres if they can accommodate this.
53) After a year of regular, uneventful visits, a graduated regime should commence whereby for the first six months, Mr Sheehan can take the girls out for the day once every two months in (omitted) and once every two months in (omitted) with changeovers at the respective centres. After this, hopefully the parties could progress to alternating changeovers between (omitted) and (omitted) with consideration being given to overnight visits.
Submissions on behalf of the Independent Children’s Lawyer
The ICL’s Written Submissions were received in Chambers via email on 14 March 2016 and are set out in full below:
Determining what is in the children’s best interests (s60CC(1))
1. Primary considerations
s60CC(2)(a) benefit to the children of a meaningful relationship with both parents; and
s60CC(2)(b) the need to protect the children from physical or psychological harm by being subjected or exposed to abuse, neglect or family violence.
s60CC(2A) if there is any inconsistency in applying (2)(a) and (2)(b) the court is required to give greater weight to 2(b).
Children's Relationship with Mr Sheehan
1. Orders were made for the father to spend time with the children supervised and those visits took place, generally without incident. These supervised visits allowed the children to establish and maintain a relationship with their father in a safe environment. Despite not seeing or having any contact with the children for over 12 months, at Mr Sheehan's choice, the Family Consultant notes at paragraph 50 of her supplementary report dated 17 January 2016 that 'the girls appeared happy to see their father and a very enjoyable visit was held under my supervision.'
Parental Relationship
2. The parental relationship has been characterised by instances of domestic violence, particularly post separation, and there is extreme distrust and acrimony between the parties.
3. There is no communication between them about the children and this is not, in my submission, likely to change. At the moment, the relationship between Mr Sheehan and Ms Hansen could at best be described as toxic.
4. It is very important that the parties have as little contact as possible to ensure that the children are not exposed to the parental hostility.
5. In her most recent report, the Family Report Writer (Ms S) observed and expressed the view that there is a risk Mr Sheehan 'will not abide by the directions of authority figures' and that 'handovers will have to be supervised.....to minimise the opportunity for any conflict between the parties' (paragraph 52).
Children's Living Arrangements
6. Ms Hansen proposes that the children live with her and spend time with Mr Sheehan as set out in her amended application.
7. Mr Sheehan proposes that the children live with him and spend time with Ms Hansen as set out in the document titled “Final Orders"” that was filed with the Court on 11 February 2016.
8. The children have been living with Ms Hansen since separation. There can be no doubt that Ms Hansen is the children's primary emotional attachment.
9. The children have been spending time with Mr Sheehan, on and off, since March 2014. That time has been supervised at either the (omitted) Children's Contact Centre or Interrelate in (omitted).
10. In cross examination the Family Consultant was of the view that Mr Sheehan's application for the children to live with him was not appropriate. She was concerned that the children's time with Mr Sheehan had been very limited and the bond between him and the children was not well established. Ms S expressed the view that the children's primary attachment was to their mother and that there was no reason to alter the current arrangement.
11. I have very little confidence that if the children were to live with Mr Sheehan that he would actively promote or encourage the children's relationship with Ms Hansen.
12. For these reasons I do not support Mr Sheehan's application for the children to live with him.
Time
13. Ms Hansen no longer presses her application for Mr Sheehan's time with the children to be supervised. In evidence Ms Hansen said this was because of the financial cost of proceedings to date and also because she had some comfort from the comments of Ms S about how the children reacted to Mr Sheehan when they met in December 2015.
14. In her most recent report at paragraph 52, Ms S notes certain protective factors in place being the 'very supportive, helpful role of Ms L and... the increasing age of the girls ......'
15. In that same report Ms S recommends bimonthly visits between the children and Mr Sheehan. When the proposed arrangements were put to her in cross examination Ms S's primary concern was about the distance the children would have to travel on a regular basis and about the possible conflict between the parties at changeover.
Distance
16. The parties live nearly three hours from each other. This is, in my submission, a significant amount of travel for children aged 10 and 6 years respectively, particularly on a regular basis. For this reason alone it is my proposal that the time the children spend with Mr Sheehan during the school term occur once a month.
Possible conflict at changeover
17. During the final hearing it was clear from her evidence that Ms L is fully aware of the tension between Mr Sheehan and Ms Hansen. She was asked if she could assist with changeovers to minimise any possible conflict and she gave evidence that she would 'have no problem with that.' Although she has daily the care of four other young children, Ms L gave evidence that she would be able to facilitate changeovers so that the children could spend time with their father.
18. When this was put to Ms S she indicated that she was 'reassured' that Ms L would possibly be involved at changeovers. Ms S notes in her most recent report at paragraph 50 that Ms L 'was a particular strength' during the interview process and suggested that she may have 'assisted Mr Sheehan to mellow and become more co-operative.'
19. In my submission Ms L's evidence was child focused and reasonable and reflected an understanding of the relationship between Mr Sheehan and Ms Hansen. It is my view that Ms L should facilitate changeovers and so that the children are not subjected to any potential conflict.
20. Mr Sheehan should not be in attendance.
Parental responsibility
21. The parties' relationship reflects a history of domestic violence.
22. Their relationship is, at best, toxic.
23. There is no co-parenting relationship or level of communication between Ms Hansen and Mr Sheehan in so far as it relates to the children. In my submission this is not likely to change significantly into the future, or at all.
24. Assuming the children remain living with the mother, then it is my view that she should be given sole parental responsibility for the children.
Additional Considerations:
(a) Any views expressed by the child –
I last met with the children on 10 February 2015 prior to the initial final hearing in August 2015. X was nine years of age and Y was five years old. Neither girl wished to express a view one way or the other.
(b) The nature of the relationship of the child with parents and others –
Given the ages of the children and the fact that they have been living with the mother primarily since separation it is submitted that the mother is the children’s primary emotional attachment.
In the Family Report dated 17 January 2016, however, Ms S notes that 'Despite the infrequency of his visits with the children, the girls appeared happy to see their father and a very enjoyable visit was held under my supervision.' (Page 20 Paragraph 50). She goes on to note that 'Ms Sheehan was a particular strength.'
(c) The extent to which each parent has taken, or failed to take, the opportunity:
(i) To participate in making decisions about major long-term issues in relation to the child – the parties are unable to communicate with each other about any matters affecting the children. It is my submission that this situation is unlikely to change at all into the future.
(ii) To spend time with the children – The father started spending supervised time with the children at the (omitted) Children's Contact Service in March 2014. Visits continued monthly until July 2014 when visits were increased to fortnightly, alternating between (omitted) and (omitted).
There was no further contact with either (omitted) or (omitted) Contact Service by Mr Sheehan from December 2015 and the respective Services' files were closed. Between September 2015 and March 2016 there were a couple of visits between the children and Mr Sheehan that took place in (omitted). Mr Sheehan did not complete the intake requirements of the (omitted) Service.
On my enquiries the children have not spent time with Mr Sheehan since the final hearing in March 2016 despite Ms Hansen engaging with the (omitted) Service.
(d) Likely effects of changing current circumstances – The girls have a burgeoning relationship with their father. They have a half-sister, A, and three step-sisters. From evidence given by Mr Sheehan, Ms L and the Family Report, the children get on well and regular time with Mr Sheehan will allow these relationships to strengthen and grow.
(e) Practical difficulty and expense of child spending time with father – The parties live three hours drive from each other. Both parents are able to drive the distance to facilitate changeovers.
(f) Capacity of each parent to provide for children’s needs – The children have been living with the mother since separation. Despite early exposure to instances of domestic violence involving their parents, the children are, in my submission, well adjusted and doing well in accordance with their ages.
The father has sought treatment from Ms J, Psychologist although in his evidence stated that he has not consulted her since December 2015. Mr Sheehan gave evidence that he no longer consumes alcohol and it is clear that Ms L provides much needed and ongoing stability. However, Mr Sheehan is unable to control his animosity towards Ms Hansen and displays a lack of insight into the effect that this would have on the children if they were to live with him. The father’s attitude towards the mother indicates that he does not understand the children’s need to have a meaningful relationship with her.
(g) The maturity, sex, lifestyle and background of the child - not applicable.
(h) If the child is an Aboriginal child or a Torres Strait Islander child - not applicable.
(i) The attitude to the children and to the responsibilities of parenthood demonstrated by the parents – There is no doubt the father cares for the children although his application for the children to live with him shows, in my submission, a lack of insight into their needs.
The mother has been the main provider for the children since separation.
(j) Any family violence involving the child or a member of the child’s family - I refer to the submissions above and to the documents tendered to the Court and marked Exhibit B.
(l) Whether it would be preferable to make an order that is least likely to lead to further proceedings – In my view it is likely that there will be ongoing litigation in relation to this matter although if the children are to spend regular unsupervised time with their father this might be avoided.
(m) Any other fact or circumstance that the court thinks is relevant - Ms S expresses the view that Mr Sheehan 'will not abide by the directions of authority figures such as the Court or Contact Centre Staff' (para 52). It is my view, and it is supported by the evidence and Mr Sheehan's actions to date, that if Mr Sheehan doesn't agree with or like an order then he likely will not comply with it.
There are concerns expressed by Ms S about Mr Sheehan denigrating Ms Hansen to the children and also a concern about how he will react to the girls as they 'get older and more assertive'. At the moment Ms L is considered to be a protective factor and although she presented as child focused, her overwhelming loyalty was to Mr Sheehan.
Consideration & Disposition
The following discussion of the evidence and the legislative scaffold is informed by reference to Brown J’s regularly cited comments in Mazorski v Albright in relation to the twin pillars of Part VII of the Family Law Act 1975 (“the Act”),[19] namely, subject to any relevant statutory refinement, the children of a relationship should have, to the degree that it is in their best interests to do so, a meaningful relationship with both parents, and equally, the children of the relationship should be protected from any relevant risk or harm.[20]
[19] Mazorski v Albright (2008) 37 Fam LR 515.
[20] I note that her Honour’s comments have been subsequently endorsed by various Full Court decisions, such as McCall v Clark (2009) 41 Fam LR 483 and Sigley v Evor (2011) 44 Fam LR 439.
In Mazorski v Albright at [3] – [6], her Honour said:
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s.60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the Court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the Court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the Court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the Court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
...
[199] Section 65DAA (2) – (4) is intended to ensure that the Courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationship with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
In the discussion that follows, I should be taken to follow the list of considerations, essentially in s.60CC(3), sequentially unless otherwise specified. I should also note the important comments of May and Thackray JJ in Mulvany v Lane at [76] and [77] (emphasis in original):[21]
[76] It is important to recognise that the miscellany of “considerations” contained in s.60CC(2) and (3) is no more than a means to an end. Self evidently, they are only matters to be considered. Of course, we accept they are of great importance, being the factors identified by Parliament as those the Court must take into account (when they are relevant). However, they must be applied in a manner consistent with the overarching imperative of securing the outcome most likely to promote the child’s best interests.
[77] It needs also to be remembered that the importance of each s.60CC factor will vary from case to case. Whilst the list of considerations is lengthy, no list could ever encompass all the matters that experience demonstrates could be of relevance…
[21] Mulvany v Lane (2009) 41 Fam LR 418.
Having regard to the ages of the children, the best indication of their “views” came from their warm interaction with their Father (and other siblings), and Ms L, when all were seen by Ms S. All these matters are set out in Ms S’s second report, dated 17th January 2016 (part of Exhibit A).
In my view, it is important to record that there is a good and close relationship between the children and each of their parents. It is essential that these meaningful relationships need to be fostered and protected. Likewise, it is important to record that, in my view, there is no relevant risk to the children spending time with their Father. They clearly love him and enjoy spending time with him (and their young siblings). The relationship with the siblings, as noted below, is a very significant consideration for the Court.
The same matters are relevant to the relationship that the children have with Mr Sheehan and the other members of his household. I do not understand it to be contested that the children have lived primarily with their Mother and that they have a good and close relationship with her. Their primary attachment is with Ms Hansen.[22]
[22] See s.60CC(3)(b).
There have certainly been difficulties – to understate the issues – in relation to Mr Sheehan spending time with the children. Sometimes, this has been due to matters of logistics and geographical distance; at other times, Mr Sheehan has not helped his cause by an attitude of some belligerence and frustration that arises out of him not spending regular time with the children. Moreover, the caustic relationship between the parents has not assisted anyone.
I do not understand there to be any relevant evidence in relation to the children not being adequately provided for – by either parent – accepting that the nature of the provision of care for the children has been, to date, very different in each household because of the circumstances, notably with Mr Sheehan’s time being regularly supervised. Such considerations are relevant not only to s.60CC(3)(ca) but also sub-paragraph (f).
Having regard to the children’s primary attachment with the Mother, at this stage it is likely to be detrimental to their best interests if their primary residence was to be changed. That said, the longer the current contest between their parents continues, the greater damage there is likely to be to the children and their relationship with both parents.
Related to the matters embraced by s.60CC(3)(d), and set out in the preceding paragraph, are the sibling relationships in the Father’s household. In my view, these are very significant matters to which insufficient regard has been given throughout the trial. These sibling relationships received more “passing” reference rather than, in my view, more detailed attention. It is very likely that the relationships between X and Y, on the one hand and D, F, E and baby A, will grow in significance and importance. Indeed, Ms S noted how engaged the children were with each other, not least between X and her baby sister, A.
Although it has been raised multiple times already in these reasons, the considerations set out in s.60CC(3)(e) in relation to “practical difficulty and expense” are extremely critical matters here having regard to the geography involved. I will not repeat what has been set out earlier other than to note again the very large physical distances involved, and consequent significant amounts of time that will be spent in cars travelling between the two residences. The Court cannot do anything about matters of geography and time other than to note the likely impact on children and parents of such travel.
In relation to the matters embraced by s.60CC(3)(g), among other things, it seems to me (as already noted) that the sibling relationships between all the sisters, to which I have referred above, will increasingly be a source of significant moment in the lives of each of them, individually and collectively.
In relation to the attitudes of each of the parents, as set out in s.60CC(3)(i), towards the responsibilities of parenthood, there are deficiencies on both sides, albeit of different kinds. As noted in the material, the Father has been prone to be hot-headed and unable regularly to restrain his emotional and anger responses out of frustration at not being able to spend time with his children. But I also note the impressive letter of support from the Principal of the school where D, F and E attend.[23] That letter speaks glowingly of the care and attention paid to the children, and the active engagement of Mr Sheehan and Ms L with the school. Such recommendations speak of their capacity to provide significant care and attention to their children.
[23] See “Attachment 2D” to Mr Sheehan’s affidavit, filed 11th February 2016.
The Mother has shown little insight at times into the need of the children to spend time with their Father and has seemingly gone to great lengths to thwart it, including leading up to the Father’s wedding to Ms L. And lest it need to be emphasised, her actions in “breaching” the Father whilst he was on his honeymoon for being on a boat (omitted) was both farcical and astonishing. The consequences for the Father and his family were utterly disproportionate to the offence, noting that nothing would have happened if she had acted responsibly at the time. The whole event, from the start of the boat trip to the Father’s incarceration, was appalling.
In relation to matters of family violence, and Orders in relation to same, I have already noted the Father is the subject of an ADVO, and that he has spent time in prison, among other things, for breach of such Orders. I have noted earlier in these reasons the Father’s oral evidence that he has now abstained from drinking for 3 years or thereabouts and that, as a result (among other things) he is quite a changed person. On his evidence, his violent outbursts were largely related to his inebriation. The Father acknowledged how unpleasant a character he was when he was drinking.
Also as previously noted, the Court is satisfied that, especially with the ongoing assistance of his Wife, Ms L, and the Father’s continued abstinence from alcohol, the children will be in a safe and happy environment. Further to this, the quite glowing reports attached to the Father’s trial affidavit from the school of the children who reside with him all attest to the genuinely mature, engaging and supportive home environment provided by the Father and his Wife.
While the Mother has consistently objected to the children spending unsupervised time with their Father, she conceded in the course of her cross-examination that supervision was now not necessary, and that if Ms L facilitated change-overs, she would not have to see or to come into contact with the Father. Such a concession suggests that either Ms Hansen’s fears about the safety of the children have now evaporated or at least abated, and or that the fear that she had was more a projection of her own disquiet and hatred for Mr Sheehan.
Generally, I note that in the family report, Ms S observed that the environment between the Father and his Wife, and all the children, was “loving, warm and calm with no suggestion of fear or anxiety at spending time with their Father.”
The Orders that the Court proposes are, in my view, not only in the children’s best interests but also they are the least likely to lead to further litigation in relation to the children. The Orders are, of course, predicated upon both parents acting responsibly. They are predicated upon the children spending very regular time with their Father and their siblings. They are also predicated upon the very heavy burden placed upon the shoulders of Ms L to ensure that (a) the parents do not come in to contact with each other at all, and (b) the burden of so much travelling/driving does not take and undue toll on everyone, especially the bust household of the Father. Everyone, including the Court, is in the debt of Ms L.
In relation to other matters, notwithstanding the utterly fraught and fractious parenting relationship, again because of the soothing and practical presence of Ms L, in my view, an Order for equal shared parental responsibility should be made. This is clearly on the understanding that Ms L’s ameliorating influence will remain just that – a source of reasons and calm on the long-unsettled parenting relationship between the parties. I simply suggest if not request that all communication regarding the children and arrangements for them only be between Ms Hansen and Ms L. To state the obvious: direct communication between the parties is unlikely to end well. And for completeness, the obverse Order – for sole parental responsibility – is not in the children’s best interests because the Court could not be confident that it would not be abused at some time to the detriment of all.
With such an Order being made, it brings in to play, s.65DAA. The terms of this section may be dealt with almost summarily in the current matter because of the immense logistical issues involved, which bring into sharp focus the matters set out in s.65DAA(5). “Reasonable practicality” as contemplated by that sub-section is not what comes to mind when the parents live in (omitted) and (omitted) respectively – a distance of approximately 280 kilometres and a drive of some 3 hours (one way), or thereabouts. Those issues preclude an equal time arrangement, and equally “substantial and significant time”, as comprehended by s.65DAA(2).
I should also formally record that the Father should not attend any changeovers, and also that both parties are restrained from coming within 50 metres of each other. Put more generally but also specifically, the less the parties can have to do with each other, the better. Again it falls to Ms L being the “saviour” for the parties and for all the children.
Other than the specific comments and Orders to which I have referred, with some slight amendment, the Orders as proposed by the ICL should be made.
The other amendment of some moment is a transition in the “time-with” arrangements, so that they will start off once per month, then after four months, the children will spend time each alternate weekend with their Father, and half school holidays.
Finally, although I have stated it many times, I should also note, and urge the parties to consider, the following admonition or instruction by the Full Court, which is particularly apt in the current matter. In Cullen, Strauss J (as part of a Full Bench otherwise comprising Watson SJ and Bell J) said (at Fam LR p.48):[24]
There are few greater evils in family law than recurring litigation about custody and access. It is detrimental to the child, particularly so if he is old enough to appreciate that his parents are in legal conflict. It saps the mental, emotional and financial resources of the parties. It taxes the resources of the court and of the community.
[24] Marriage of Cullen (1981) 8 Fam LR 35; (1981) FLC ¶91-113.
It is apposite to put on the record that, subject to evidence and submissions, if there is anything untoward of the kind that has occurred in recent years, such as in relation to the boat incident, or the obstruction that took place regarding the children’s dress fittings for the Father’s wedding, there may well be a strong case for a change in residence. Put another way, the Orders that are now being put in place need to work – for everyone’s sake.
For the sake of completeness, these Orders are intended to take precedence over any Orders or conditions in relation to them regarding domestic violence.
I would not object to changeovers alternating between the towns of both parties, so as to share the burden of driving. However, I do not propose to make such an Order. In the absence of agreement in writing between the parties, the current Orders shall prevail.
I note that the Father has only spent very limited time with the children this year. This is detrimental to the relationship with their Father, not to mention all the other members of his household. Accordingly, the “time with” arrangements for the Father and the children must commence immediately, and all the adults involved are to ensure that the interests of the children take precedence over anything else, including personal convenience.
I should further note that there remain property proceedings on foot between the parties. The Mother seeks that this aspect of the matter should be transferred to the Dubbo circuit of the Court, where, she says, a conciliation conference should take place.
The Husband maintains that there are no assets to distribute, certainly on his side, and that because of her income, there is a risk that the Wife would/could “lose” more by pursuing the property proceedings.
Now that the parenting matter has been determined, both parties are to notify the Court within 21 days to advise whether the property aspect is to proceed, and if so, whether it should be transferred to the Dubbo circuit of the Court.
I certify that the preceding seventy-four (74) paragraphs are a true copy of the reasons for judgment of Judge Neville
Date: 30th September 2016
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