HICKORY & NESS

[2012] FamCA 815

FAMILY COURT OF AUSTRALIA

HICKORY & NESS [2012] FamCA 815

FAMILY LAW – CHILDREN – With whom a child lives – With whom a child spends time – Parental responsibility – Where the Father has a temper which has caused the children concern – Where the Father has assaulted one of the children – Where the Father has shown signs of aggression and bullying towards the Mother and to some extent, the children – Where there was an altercation between the parties in front of the children – Where there is little chance of reasonable communication between the parties – Where the Father has convictions of indecent exposure and indecent treatment of a child – Mother to have sole parental responsibility – Children to live with Mother – Children to spend alternate weekend time with Father

APPLICANT:

Ms Hickory

RESPONDENT: Mr Ness

INDEPENDENT CHILDREN’S LAWYER: Mr Purcell, Solicitor

FILE NUMBER: TVC 880 of 2008

DATE DELIVERED: 21 September 2012

PLACE DELIVERED: Brisbane

PLACE HEARD: Mackay

JUDGMENT OF: Bell J

HEARING DATE:

5 July to 6 July 2012 and

3 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Moore of Counsel appearing for the Applicant Mother

SOLICITOR FOR THE APPLICANT: Legal Aid Queensland

COUNSEL FOR THE RESPONDENT: The Respondent Father appearing in person

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Fellows of Counsel appearing for the Independent Children’s Lawyer

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Purcell Taylor Lawyers

Orders

1. The children, P born … February, 2000 and R born … May 2002, live with the Mother.

2. The Mother have sole parental responsibility of the children.

3. The Father spend time with the children each alternate weekend from immediately after school on Friday until the commencement of school on Monday morning and for one half of all school holidays.

4. Pursuant to s 62B and s 65DA(2), 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 parties to adjust to and comply with an order, are set out in the document entitled “Parenting orders – obligations, consequences and who can help”, a copy of which is annexed to these Orders.

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: TVC880/2008

Ms Hickory

Applicant

And

Mr Ness

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. This is an application of the part of Ms Hickory, hereinafter referred to as the Mother for parenting orders in relation to two children from her relationship with the Father, Mr Ness.

2. The Mother, in a previous relationship gave birth to two children and they being M who was born in July 1982 and L born in July 1990.

3. The parties met in 1994 and commenced a de facto relationship and from such relationship two children were born they being P born in February 2000 and R born in May 2002.

4. The parties continued to cohabite until October 2005 when they separated under the one roof and the Mother moved to K in December 2005.

5. Thereafter the Father had alternate weekends with the children and some school holidays in 2005/2006.

6. A reconciliation was attempted in 2007, but failed.

7. On 20 April 2008, the Father assaulted P with an object and he is charged with assault. 

8. In March 2009 the Father was found guilty of assault occasioning bodily harm and whilst no conviction was entered, he was fined an amount of $900.00.  In relation to the assault, as part of the bail application it was ordered that the Father spend only supervised contact with the children.  Which he did for a considerable period, with such contact taking place at the K Children’s Contact Centre for two hours per fortnight.

9. In December 2009 after a child dispute conference an agreement was made whereby the Father was to have some unsupervised visits with the children on each alternate Saturdays and Sundays for four hours each day.  This regime commenced in or about the month of February 2010.

10. In or about the month of June 2010, the Mother and the Father again negotiated a parenting plan for the children to be alternate weekends from Friday 4.00 pm until Sunday 4.00 pm.  This is increased in or about the month of August to 4.00 pm Friday until 8.00 am Monday.

11. A consent order was made on the 27 January 2011 in which it was agreed that the Father was to have alternate weekends between 4.00 pm Friday until 8.00 am Monday and half the school holidays.  This Order was made by Federal Magistrate Willis.

12. Thereafter the Order was complied with, but in the month of March 2011, an agreement was entered into between the parties whereby the children’s time was to be shared equally on a seven/seven basis.  This commenced on or about the 21 March 2011.

13. In or about the month of May 2011, a most unfortunate incident took place at the school between the Mother and the Father.  Thereafter it is alleged by the Father, that the parties had been able to negotiate various matters in relation to the welfare of the children.

14. The above is only a brief précis of all that has taken place between these parties and I am of the view that it is necessary for me to consider the objections made by the Father to Mr H, a family consultant who was employed to do a family report and who has done three.

15. The Father complains bitterly as to the attitude of the family consultant to himself.  He was of the view that the family consultant came to a conclusion on his first visit without reading any of the material of the Father, that he was disinterested in the Father’s view and that as a general result thereof on the first occasion the Father felt forced to exclude the family consultant from his residence.

16. The family consultant has made various allegations concerning the attitude of the Father towards, not only himself, but in particular to the Mother, and his general demeanour of bullying, loudness and difficult manner.

17. Mr H created two subsequent reports and in the reports he comes to the view that the children’s welfare would be best advanced by the Mother having sole parental responsibility for the children and that the Father’s time be reduced to each alternate weekend.  It appears to me that the primary concern for this is the fear that the children have of the Father’s temper, particularly P.

18. The Father has as I have said, objected to the expertise of the Mr H, and to his bias.  He particularly refers to what I have already referred to, he indicates that when a young female was coming to his room, that Mr H was of the view that being a university student she would be, “seeking a free meal anyway”.  This was M, the daughter of the Mother from a previous relationship.

19. M has filed an affidavit in this Court and sets out therein what she considers took place in relation to her incidents in which it is first of all indicated by the Father that he has no memory of what took place, he being a sleep walker and he generally denies the allegations of M.  The Father refers quite fully to this in his affidavit filed 14 May 2009.

20. Whilst it was raised by him, it appears to me as though the affidavit to which he refers (see paragraph 87 of the affidavit of M sworn on the

    
    

    10 December 2008).  It does not appear to have been read and consequently I do not know what the contents of such affidavit were, save that what has been raised by the Father, at paragraphs 87 etc of his affidavit filed 14 May 2009.

21. This raises the matter of the Father being convicted on two occasions of offences:

    1.indecent exposure, which he indicates that he was urinating in the presence of some people and secondly;

    2.indecent treatment of a female child under the age of 16 years of age.

22. The wilful exposure offence was committed on 4 August 1985.  The Father was charged for the wilful exposure to a child under the age of 16 years of age in  April 1993.

23. The only evidence that I have, put forward by the Queensland Police, is documents which as I read his criminal history, has only been up until

    
    

    8 December 2008.  I expressed surprise during the trial that in fact there was not more up to date evidence in relation to his criminal history.  I can only infer that nothing has happened since that time (see Exhibit 1, Queensland Police Service subpoenaed documentation).

24. In relation to the indecent treatment of a child conviction, the Queensland Police crime report of this offence (see Exhibit 1, Queensland Police Service subpoenaed documentation) is set out as follows:

    NODUS OPERANDI DETAILS

    It is alleged that the suspect has approached the complainant from behind and squeezed the left cheek of her bottom with his hand. The complainant then moved away from the suspect to avoid any further contact. A short time later the suspect against (sic) approached the complainant and then rubbed his groin against her from behind. He also again squeezed her bottom with his hand. Whilst touching the complainant it was alleged the suspect said to the complainant “ You’ve developed nicely ”. The complainant said “ I’ve really got to go now ”. The suspect said words to the effect of “ Keep it a secret ”. The complainant said “ I don’t think so ”. The suspect said “ What do you mean? ” The complainant then left the premises.

    OFFICERS REPORT

    …

    Police spoke to the complainant who states that between the stated times she went to her friend’s house. On arriving she was met at the door by her friend’s younger sister and the suspect who also resides at the residence. (It is believed that he is either the step-father or the mother’s boyfriend). The complainant was then invited inside. The complainant then went out to a cubby house with the friend at which time the suspect approached the complainant and touched her on the bottom. A short time later they went back inside the residence at which time the suspect rubbed himself up against the complainant as per the MO…

25. The Mother states in her affidavit filed 19 June 2012 at [272]:

    …[the father] told us that the girl from [T] had come to visit while we were out, and had had a look at the house, and left in a bit of a huff…”

26. After the police had arrived and told the Mother that the girl had pressed charges, the Mother asked the Father about the incident. She states in her affidavit filed 19 June 2012 at [276] and [277]:

    …he said that the girl was lying, that she was just trying to get attention. The police told me that [the father] took her into a room to show her, and he was blocking her way out of the room, and pressed himself against her and made a comment to the effect that she was growing up a pretty girl…

    …

    [The father] told me he pleaded guilty, and I couldn’t understand why. I asked him why, and he told me that it was so that the victim didn’t have to give evidence before a judge, and to get a more lenient sentence…

27. What was said to the Mother by the Father was not in accordance with the crime report. The Father has also told his new wife a story regarding this offence which is inconsistent with the crime report.

28. The assault which took place on P looms large in my view in relation to P’s subsequent attitude as alleged by not only Mr H, but in particular by the Mother towards the Father.

29. This seems to have come about as a result of the Father attempting to teach P time.  His version is that P was finding it difficult, he became frustrated and he accidently hit P with the object, causing injuries.  He was unaware that the face of the object was glass rather than perspex.  He demonstrated how this took place in the witness box.

30. It is quite clear on the evidence before me and taking into consideration the views that I have of the Father’s temper which I will discuss at a later stage, that he lost control and hit his son with this object, a large object as I understand, causing injuries to the boy. 

31. The Father was charged with an offence, as appears in Exhibit 1 and insisted on pleading not guilty.  This necessitated the child P giving evidence in Court.  He indicates that this was not his fault and that in fact the prosecution could have gone about it in another way and it would not have been necessary for the child to give evidence.

32. This is surprising in so far in the indecent exposure to a child, a girl, he, as he says, acting under some form of duress pleaded guilty to first of all preclude the possibility of his going to jail and secondly to avoid any embarrassment to the child giving evidence.  That child was at least 15 years of age.  His son was only eight or thereabouts at the time of his having to be put into the witness box to give evidence.

33. A worst thing as far as I am concerned is pressure was brought to bear upon P to not tell the truth to the police.  The Father concedes that this was the case and I am of the opinion that that in itself is a particularly bad role model for the child as well as putting enormous pressure upon the child.

34. I do not consider that the Father acted in the best interests of the child in that case, he himself seems to concede that he did the wrong thing and that he has felt guilt symptoms since then.

35. Mr H’s reports have indicated that P, and to a lesser extent R, is a feared of his father’s temper.  I must say at this stage, as I indicated to the Father on the first day of the trial, that his conduct in cross examination of the Mother was such as to support the views put forward by Mr H and in particular at paragraph 48 of his first report of 13 August 2009, he states:

    48.[The father] acknowledges that his behaviour within the family prior to separation was full of conflict, aggression and constant arguments.

    He of course says that this was not his fault.

    When it was suggested to him that [the mother] had described him as a bully, [the father] acknowledged that might have been correct.

    But he goes on to say that the father states he has gained significant insights into his past and present behaviour by virtue of his attending a church based six week anger management course and that his main issue appears to be his dislike of confrontation and allowing the pressure to build.  

36. Mr H expresses some concern about this since at the self same paragraph he said that:

    …[the father] did not talk of any other insights into his aggressive behaviour and that his explanation, that of disliking confrontation, is not borne out by the description of [the mother], the children or himself.  If [the father] is serious about addressing his previous behaviours he would need to undertake in-depth psychological counselling and be motivated to acknowledge and change his behaviours.”

37. On the first day of the trial, which lasted for three days, the Father exhibited exactly the same type of conduct.  He was bullying, he was loud, he spoke over people, he was heckling, and I believe I said on one occasion that his conduct was not advancing his case one jot.  His whole attitude supported not only the statements made by Mr H, but also the complaints of the Mother and to a lesser extent to the complaints of the child P, exhibited to the Mother and to Mr H.

38. I found the Father’s conduct on the first day of trial distasteful and it did nothing else but supported my view of the evidence of the Mother, and that of Mr H.

39. I have said on many occasions in the past, that the attitude of the parties to the trial and their presentation at trial can in fact be the best evidence, and in my view this conduct of the Father was such that.  It was the best evidence and supported the contentions to which I have hereinbefore referred.

40. I do not know what happened, but subsequent to the first day of trial, the Father exhibited a much more reasonable and calm attitude towards the continuation of the trial.  I must say that his conduct really concerned me on the first day of trial.

41. How has this conduct as I have referred exhibited itself?  In particular I refer to the incident where the father hit Patrick with an object and the incident which took place at the children’s school in  May 2011.  At this time the Father had alternate weekend contact with the children and he was to pick the children up.  On the morning of this day he and the Mother saw each other and the Mother intended to discuss with (she gave evidence) the Father the fact of P’s fear of him.  It did not eventuate on that morning and she indicated that she would return that afternoon.  The Father at this stage indicated that the Mother showed him no respect and that it was his time to have the children and that he did not want her attend.  The Mother did attend and thereafter, and I am not quite sure whose fault it was, but a confrontation took place in front of the children in which the Mother was assaulted by the Father, he himself says he was assaulted by the Mother.  As I have said it was an absolutely disgusting exhibition by two parents in front of their children who even the Father conceded, were at the end of this confrontation, weeping and crying uncontrollably.

42. The Father of course emphasised that he was the innocent party and that he used a “commanding voice” (the Father’s words) to stop the Mother carrying on in what he considered to be an uncontrolled attitude towards him.  I do not accept that the Mother was the sole protagonist in this disgraceful exhibition.

43. What else supports the view that the Father is a bully?

44. The Mother was residing in a home which was owned by the Father and had been used, as I understand it, as a rental property prior to her coming to K.  The Mother came to K, commenced to reside in the property and rent was being paid by her.  As said by the Father it was originally $200 per week, but the Mother increased it to $250. 

45. After another argument between the parties, the Mother ceased paying rent because she said there was an agreement between the parties as to the transfer of the Father’s interest in the property to her and she stopped paying rent in an endeavour, as she says, to have him comply with such agreement.  The Father endeavoured to bring into force and effect the Rent Tribunal in order to exclude the Mother from the premises.  The Father notes that subsequent to this, P on one occasion, indicated to him that Mummy was going to be kicked out of the house and that he was doing it.  He immediately indicated that he did not intend this to happen and that he withdrew such application.

46. Notwithstanding he may have withdrawn the application, there was such a threat over the head of the Mother that in fact the children became aware of such threat, and they recognised that in effect they would be ejected into the street, if in fact the Father succeeded.

47. The Father has been paying child support which is at this stage some $900 and he is quite incensed and indicated that to the Court in one of his loud cross examination pieces on the first day of trial, that the Mother was using part of these amounts of money towards mortgage instalments upon the house which she received as and by way of property settlement. 

48. The Father exhibited quite a deal of concern that the moneys which he was paying for the support of the children were being used to pay, or partly pay, for the mortgage instalments. 

49. He at the relevant time was earning approximately $120,000 to $140,000 per year.  The Mother was working at two jobs and was receiving something less than $30,000 per year.  The children had to have a roof over their head as I indicated to him and the child support assessment would include, one would have thought, some moneys towards the children having a roof over their head.  I was not impressed with his view of the Mother and the manner in which he cross examined her on this piece of evidence.

50. I do not believe it is necessary for me to go through every chapter and verse in this unfortunate saga, but I am more than satisfied on the evidence before me that the Father has exhibited signs of bullying, overbearing and loud threatening behaviour to the Mother and to a lesser extent, towards the children.  His temper appears to me to be virtually ungovernable, although in this trial he appeared to be able to settle down for the last two days.

1. Mr H is of the view that the child P, in particular, is a feared of his father’s temper and I can understand why after seeing his exhibition of his temper on the first day of trial.

2. Since I am satisfied that the Father has these tendencies, I can see that it would not be in the best interests of the children for them to be exposed for any length of time with their Father.

3. However, the first matter that I have to decide is whether or not there should be joint parental responsibility.  The Father has put forward a case, where he says, that since about March of 2011, the parties have been able to agree on various things in relation to the children’s welfare.  He points in particular to the communication book and the various matters in relation to R’s religious upbringing and the enrolment of P at a high school for next year.

4. There may have been, as I have seen in the evidence put before me, some endeavours on the part of the Father to be reasonable in his dealings with the Mother.  However, the matter which really concerned me was the evidence put to the Mother by the Father about the March incident.  The Mother up until then had given the impression, as far as I could say from my years of experience, of being in effect downtrodden, beaten and really unable to adequately protect herself from the Father.  However, when the Father suggested that she was the prime person responsible for this disaster in front of the school, she immediately leapt to the defence of P and she impressed me as being a mother who would do anything to protect her child from what she considers, inappropriate behaviour by the Father of that child. 

5. She impressed me then and has impressed me since.  But, I emphasise that I am of the view that she did have a generally downtrodden, overborne demeanour in the witness box.

6. Since I am of the opinion that there would be little or no chance of there continuing to be reasonable communication between the parties, the Father does complain that the Mother is lacking in communication, it would be unwise and inappropriate for joint parental responsibility to be found and I believe the hurdle has been overcome. 

7. Since that has been overcome, I have now to consider the provisions of s 60CC in relation to these children. 

8. The Mother concedes that the Father has played a role in the children’s upbringing and in particular insofar as their education is concerned.  I am concerned for the Father in a way in that, if in fact, the continued regime, which was by consent I emphasise, it was not in accordance with any order of the Court for equal time continues, that the Father’s relationship with the children and in particular P, may become lessened because of their fear of him, which fear I can justifiably understand. 

9. Insofar as s 60CC(2)(b) is concerned, the children in my opinion have been exposed to physical and psychological harm.  Physical insofar as P is concerned, in that it was an unacceptable attack upon a boy of eight years old by the Father and I do not accept any of his explanations in relation to it.  It is quite clear in my view as I have said before, that it was just a lack of control by the Father and he will have to wear it in more ways than one in future.

10. The arguments and fights to which I have hereinbefore referred have not been isolated incidences, they have happened on frequent occasions.  Even the Father concedes that there were arguments between himself and the Mother prior to separation and subsequent thereto.

11. The Father’s attitude towards the Mother has reacted in a psychological way upon the children in my view.  He treats the Mother with contempt and he considers that she lacks respect for him and may I say in passing, respect cannot be demanded it must be earned. 

12. I am more than satisfied that the Father’s temper is such that it does cause the children concern and I am of the view that physical as well as psychological harm has been perpetrated by the Father’s conduct towards both children.

13. Insofar as the children’s views are concerned, they have made it quite clear to Mr H. 

14. Whilst the Father has in fact objected to the disinterestedness of Mr H and whilst I do agree with the Father that Mr H’s throw away line of the child “would seek a feed anywhere”, was not professional.  I do not believe that anything in his reports indicate to me that he has prejudged the matter to such an extent that the Father would be disadvantaged and/or prejudiced.

15. Mr H has raised, quite properly, on the interviews that he has had with the children, that the children are of the view that they enjoy the time with their father, but they feel pressurised and stressed after a few days.  I believe that the views expressed in Mr H’s three reports are entitled to be taken into consideration, whilst I am not bound by them, the children are of an age that they should be able to have their wishes expressed to the Court and given consideration, which I do so.

16. Insofar as s 60CC(3)(c) is concerned, it is quite amazing in all of the circumstances that the Mother has encouraged and continues to encourage the children to spend time with the Father, where I would have thought that his general attitude towards the Mother was such that she would find it very difficult to encourage them, but she does so. 

17. Insofar as s 60CC(4) is concerned, I have to consider those matters which are set out therein.  It is the Father’s contention that since at least March of last year, the parties have been able to participate in making decisions about major long term issues.  I would say that that is generally correct, and I refer particularly to the communication book and I have taken into consideration those matters which have been place since the separation of the parties as required to do so by s 60CC(4)(a).

18. Generally, as I have said, I accept the evidence of the Mother.  She gave her evidence in a much more restrained and controlled fashion.  She did not in any way divert from her evidence and she has put forward what I consider to be an overwhelming argument, that in this case, the children’s welfare required the time limited with their father be restricted and consequently I will order that the children live with the Mother, the Mother have sole parental responsibility of the children and that there be contact by the Father with the children on each alternate weekend from immediately after school on Friday until the commencement of school Monday morning and for one half of all school holidays.

I certify that the preceding sixty-eight (68) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell delivered on 21 September 2012.

Associate: 

Date: 21 September 2012