Higginson-Swann and Higginson-Swann
[2008] FamCA 245
•8 April 2008
FAMILY COURT OF AUSTRALIA
| HIGGINSON-SWANN & HIGGINSON-SWANN | [2008] FamCA 245 |
| FAMILY LAW – CHILDREN - Best interests |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mrs Higginson-Swann |
| RESPONDENT: | Mr Higginson-Swann |
| INDEPENDENT CHILDREN’S LAWYER: | Hamish Cumming Family Lawyers |
| FILE NUMBER: | SYF | 2176 | of | 2004 |
| DATE DELIVERED: | 8 April 2008 |
| PLACE DELIVERED: | Parramatta |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Justice Le Poer Trench |
| HEARING DATE: | 28 – 31 May 2007 1 April 2008 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Gould |
| SOLICITOR FOR THE APPLICANT: | Wight & Strickland |
| COUNSEL FOR THE RESPONDENT: | In Person |
| SOLICITOR FOR THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Boyle |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Hamish Cumming Family Lawyers |
Orders
All prior orders relating to the children are discharged.
The children:
(a) J (a son) born … born March 1996
(b) M (a son) born … born May 1997 and
(c) O (a daughter) born … November 1998
live with the father.
To this end the mother is to ensure the return of J to the father’s care immediately unless the father indicates otherwise in writing to her.
The father is to have sole parental responsibility for the children.
Prior to making any long term decision in relation to the welfare of any of the children the father is to consult with the mother with a view to obtaining her views on such matter.
The children spend time with the mother at times agreed to between the parties.
The mother is not to remove any of the children from the father’s care without his specific agreement allowing her to do so.
In the event of a dispute between the parties in relation to the time the children are to spend with the mother the father is to determine the dispute by deciding the duration and the terms of the time the children spend with the mother.
The parties are to use e-mail for communication wherever possible. In case of an emergency they are to use telephone communication.
The father is to use his best endeavours to have the children move to a situation where they spend some regular weekend time with their mother, some regular weekday time with their mother and some school holiday time with their mother. The father is further to try and ensure the children have the opportunity to participate in special occasions with the mother such as their birthdays, her birthday, Christmas, Easter and other occasions of significance to the mother’s family.
The father is to ensure that the mother receives copies of the children’s school reports and news letters from their school in a timely manner. He is to ensure the mother is advised of special occasions for all or any of the children such as concerts, sporting events and the like where she may attend and participate in those activities with the children even if that be as a spectator only.
It is recommended that the parties and the children continue to attend upon and accept the guidance of the UNIFAM organisation.
Pursuant to s65DA(2) and s62B, 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 adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Higginson-Swann is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYF 2176 of 2004
| Mrs Higginson-Swann |
Applicant
And
| Mr Higginson-Swann |
Respondent
REASONS FOR JUDGMENT
Introduction
J (born in March 1996), M (born in May 1997) and O (born in November 1998) are the children of the parties. They have experienced a traumatic and unsettled life at least since their parents’ separation. Their behaviour has in some cases been extreme. All the evidence suggests the children have been substantially caught up in the conflict between their parents. The parents’ ability to place the children’s interests ahead of their own is limited. The decision to be made in this case really is reduced to considering the living circumstances of the children which might best shield them from the parental conflict and allow them to have a meaningful relationship with each of their parents. It is with great regret that I predict the children will be seriously scarred by their parents’ inability to create a conflict free, cooperative, shared parenting arrangement for them. Sadly I conclude that the parents do not show a capacity to change things dramatically for the children.
The Issues
The issues which emerged as the principal issues in dispute between the parties were as follows:-
a)Has the father alienated the children in their relationship with the mother?
b)Does the mother have the parenting capacity to control the children whilst they are in her care? (this to include a consideration of discipline in each parties’ house).
c)What is the capacity of the parties to be able to communicate at a level which would allow them to properly participate in an equal shared parental responsibility order?
d)Has the father failed to act responsibly in relation to the children’s school attendance?
e)Do the parties have the capacity to successfully manage an equal shared responsibility order?
f)Will the father be able to provide continuity of housing for the children into the future if they principally live with him?
g)What are the parties’ proposals for the future schooling of the children?
h)How will each parent support the children?
Background Facts
The father was born in 1958 and the mother in 1965.
The father had previously been married and has two children from that relationship. C (a son) was born in 1987 and T (a daughter) in 1989.
The father separated from his former wife in 1993.
There are some aspects of the separation between the father and his previous wife which may have relevance to the dispute between the parties in this case.
Towards the end of 1994 the father and mother commenced their relationship.
The parents were married in September 1995.
In December 1995 C and T last spent time with their mother. C and T lived with the parties and the mother effectively became the mother to C and T.
At about the end of 2003 the parties separated.
In January 2004 the mother removed the children from the former matrimonial home.
In February 2004 interim orders were made for the children to live with the mother and spend alternate weekends with their father. For a short period of time in March 2004 the interim orders were suspended following a report from Dr A, psychiatrist.
In August 2005 a hearing was conducted over 3 days before Justice Rowlands. Orders were made on 25th November 2005. These were interim orders only.
In September and October 2005 there have been a series of incidents involving the children J and M being defiant of their mother and running away from her home.
On the 27th October 2005 Rowlands J made interim orders for J to live with his father.
On 25th November 2005 Rowlands J made interim orders providing for the children to live with their mother and to spend alternate weekends with their father. Psychotherapy was ordered and a report requested. Those orders further injuncted the mother from using corporal punishment with any of the children. The mother was further ordered to undertake parenting or like counselling to assist her in child management techniques.
In January 2006 Ms H commenced therapy with the family.
In February 2006 J and M moved to live with their father.
On the 14th December 2006 I ordered the parties file their affidavits addressing the following topics:
Each party file and serve an affidavit which should address:
a)housing
b)schooling
c)supervision of children before and after school
d)health – general practitioner; do the children have any particular health concerns at the moment?
e)proposals about how the changeovers between each parent will take place
f)communication between the parents in relation to the children’s needs/activities
g)financial support of children
h)ongoing therapy for children and parties
i)capacity of each parent to provide for the children’s physical and emotional development and wellbeing
j)the method proposed to be used by each parent to discipline the children and any complaint/concern either parent has in relation to discipline of the children by the other parent or persons caring for the children on behalf of the other parent during the last two years.
In late January 2007 J moved to live with his mother following agreement between the parents. J was then to repeat year 6 at N School.
In February 2007 the parents commenced therapy with Unifam. In April 2007 the children commenced to attend at Unifam.
In April 2007 O told her father she was frightened of her mother. The father took O to see Dr W, psychiatrist.
In May O refused to return to her mother’s house and further refused school attendance.
In March 2007 J refused to return to his mother’s house and has remained living with father.
On the 1st June 2007 I made the following orders as interim orders:-
IT IS ORDERED THAT:
Interim Orders
1. Pending close of business on Monday, 25 June 2007:
1.All prior orders relating to the children are suspended.
2.The children:
•[J] born […] March 1996
•[M] born […] May 1997 and
•[O] born […] November 1998
are to live with the father, […].
3.The children spend time with the mother […] at times agreed to between the parties.
4.In the event of a dispute between the parties the father is to determine the dispute by deciding the duration and the terms of the time the children spend with the mother.
5.All communication between the parties is to be by either email or a communication book except in an emergency and each parent is to keep a hard copy of any email correspondence and produce it to the Court on 25 June 2007.
6. Each party is to keep a diary which notes:
a.the time the children have spent with them during the operation of this order
b.any positive aspects of any interaction between the parties during the operation of this order.
c.any positive aspects of the children’s behaviour and interaction with the parent.
d.any matters of concern relating to the children’s behaviour or conversations.
e.any matters of concern relating to parental interaction.
7.Each party to bring to the court on 25 June 2007 a copy of their diaries as kept pursuant to these Orders together with copies of correspondence and/or the communication book that has been created for the purposes of these Orders for the purpose of producing it to His Honour.
8.Leave be granted to the Independent Children’s Lawyer to provide to the appropriate officer of Unifam a copy of the Orders made today.
On the 26th June 2007 the mother filed an “Application in a Case”. She sought orders in relation to O. She filed a supporting affidavit. In that affidavit the following further important background facts were disclosed.
a)On the 18th June 2007 the father enrolled O in a new school, namely S School. This occurred without the prior approval of the mother.
b)On the 2nd June 2007 the children were with the mother. J and O were aggressive and rude to their mother. J assaulted his mother. The children broke their toys and destroyed a plant. The children (principally J) assaulted his mother with the plant. The children took themselves to their father’s place by train.
c)On the 7th June J stayed with his mother. O refused to stay with her mother and swore at her mother.
d)On the 15th June 2007 J stayed overnight with his mother. On that occasion J assaulted his mother causing bruising to her.
Each of the parents has filed in Court a minute of order which they seek. The mother seeks orders for the children to live with her and spend time with their father on alternate weekends and during school holidays. She sought other orders as well. The father sought orders for the children to live with him and spend time with their mother on alternate weekends and during school holidays. He also sought other orders.
The Independent Children's Lawyer filed a “Minute of Order”. She suggested orders which provided for the parties to have equal shared parental responsibility for the children. She also suggested the children live with the parties equally on a fourteen day cycle. Other orders were suggested.
The reasons of Justice Rowlands delivered the 25th November 2005 were exhibited as W9 in the hearing before me. These reasons provided some background to the dispute before me.
Ms F prepared two Family Reports for the Court. The first was dated 15th December 2005 and the second dated 4th November 2006. She did not give any oral evidence in the case. Her report was really superseded by the report of Ms H.
On 12th December 2006 Ms H signed an affidavit annexing a “Therapy Report”. I will refer to the evidence of this witness later in these reasons.
Each of the parents identified the affidavit evidence upon which they relied at the commencement of the hearing and gave oral evidence in the hearing.
The hearing was conducted as a Less Adversarial hearing.
The hearing of the parenting case was conducted over a number of days in May and June 2007. The property matter required some close management and was finally determined in March 2008. On the 1st April 2008 the parties provided updating evidence about the children.
Credit
The Mother
The mother for the most part gave her evidence in a straightforward and apparently honest manner. She appeared to me to be attempting to cooperate with the questioner and provide helpful information to the court. For most of her evidence there was nothing about her presentation in the witness box or the content of her evidence which suggested to me she was being deliberately dishonest. To the extent that I have not accepted the mother’s evidence I have referred to it specifically in these reasons.
The Father
Like the mother, the father appeared to give his evidence in an honest manner. He had a tendency to be verbose in his answers to questions; however, I did not think this was some form of evasion of the question as opposed to the manner in which the fathers’ thought processes worked.
Relevant Law
Legal Principles
The principles governing this case are set out in the Family Law Act 1975 (Cth). In deciding whether to make a particular parenting order I must regard the best interests of the child as the paramount consideration (see section 60CA). In determining what is in the child's best interests, I must consider certain matters under section 60CC. Those matters are the "primary considerations" and the "additional considerations" set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the child's best interests being treated as paramount (see section 60CG).
I will also be guided by section 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it. I here set out the provisions of section 60B:
FAMILY LAW ACT 1975 - SECT 60B
Objects of Part and principles underlying it
(1) The objects of this Part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2) The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
(3) For the purposes of subparagraph (2)(e), an Aboriginal child's or Torres Strait Islander child's right to enjoy his or her Aboriginal or Torres Strait Islander culture includes the right:
(a) to maintain a connection with that culture; and
(b) to have the support, opportunity and encouragement necessary:
(i) to explore the full extent of that culture, consistent with the child's age and developmental level and the child's views; and
(ii) to develop a positive appreciation of that culture.
I am required to consider matters set out under section 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I will in these reasons deal with those matters.
Section 61DA(1) requires that: “… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.”
Subsection (4) provides as follows: “…The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.”
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent where the court is proposing to make an order that the child's parents are to have equal shared parental responsibility.
The Evidence
Ms H swore an affidavit on the 12th December 2006. Attached to that affidavit was her report. It is important to note that Ms H was engaged as a therapist and not an investigator. She set out her extensive contact with the family in her report.
In relation to the children’s views Ms H reports that initially J was very clear in his stated wish to live with his father and not see his mother. This position has changed. He was seeing his mother regularly by December 2006. He had difficulty expressing a view in December 2006 as to where he would like to live. His emotional maturity is considered by Ms H to be below that normally seen in a boy his age.
For M, Ms H reports that he clearly states he wishes to remain living with his father. He appears ambivalent about spending time with his mother. Ms H says it would not be safe to place great weight on any expression by M that he does not wish to spend time with his mother.
O is reported by Ms H to have been quite contented living with her mother during the earlier part of 2006. In the latter stages of the year she stated that she would like to spend more time with her father and her sister T. Ms H says that O seems to be influenced by recent events and also which parent brings her to the therapy session. O also appears to have an extensive knowledge of adult concepts such as “parental alienation”.
Ms H was asked to report on the relationship between each child and each parent. She said for “[J’s] relationship with his mother” initially in February 2006 each reported high levels of conflict. Each said they did not feel safe in the company of the other. In early therapy J reported he hated his mother. Towards the end of the 2006 year there was a change in the relationship between J and his mother. He had agreed to spend time with her. Ms H says that although there is a long way to go the relationship had improved significantly.
The relationship between J and his father was described by Ms H with some caution. J rated his relationship with his father as better than 10 out of 10 and his relationship with his mother as less than zero out of 10. Information provided by the father and later J indicated that life is not “all roses” for J in his father’s care. Ms H set out her concern for J’s emotional health and described some of the concerns she had arising from her therapy sessions with him. She concluded there are multifaceted causes of J’s current emotional state.
Ms H considered the relationship between M and his mother. She said M reported not liking his mother. He did not want to spend time with her. M was convinced his mother did not believe him in relation to certain matters. Ms H said of the relationship between M and his father “[M] appears to be very connected to his father.” There is an aspect of concern in the relationship in that Ms H is concerned that M appears to have taken on his father’s issues and frustrations. This she says can lead to a “parentified child”.
Ms H said that O appeared to have a close relationship with her mother. She expressed a wish to spend more time with her father; however, was apparently comfortable with living with her mother. She said that O was aware of her mother’s concern that she would lose her relationship with O if O spent too much time with the father.
O was assessed to have a close relationship with her father. She enjoyed spending time with him. O reported that at times her father gets “fed up” with her mother and at times he is “really upset” by the mother.
The relationship between the children and their older siblings C and T was reported on by Ms H. She said the relationships between the children are very important relationships within the family. In recent times C has spent less time with the family. She made comment on the relationship between T and O. She said T was a very important person to O. She said that O is acutely aware of T’s negative view of the mother. This is a matter of concern. This might add to O’s loyalty problems where she is forced to choose between the family groups.
Ms H was asked to report on the ability of the parties to facilitate a continuing relationship between the children and the other parent. In considering this she reported that the mother had expressed concerns that the father is alienating the children from her.
Ms H concluded that:
“Neither parent has demonstrated the ability to manage their concerns about the other parent in a way that is sensitive to the position of the children.
For example, [the mother’s] unmanaged fear that the father is alienating the children from her, is not a neutral or positive message about the children’s father. This can further position children in terms of loyalty, create an environment of mistrust within family relationships and can keep children stuck in the arena of conflict.
Alternatively, [the father’s] sense of frustration and helplessness when dealing with [the mother], gives a clear message to the children that their mother is a problem. This message would no doubt counteract any verbal encouragement the children may hear to spend time with their mother.
Within both these examples, the message that both parents demonstrate in regards to their attitude about the other parent would clearly counteract or contradict the verbal messages that both parents report saying to their children eg “you should be spending time with mum” or “it’s important that you have a relationship with dad”.
When in interview with me, both parents present a conditional idea of the importance of the other parent having a close and continuing relationship with the other parent. Neither parent has specified why they feel the other parent can contribute in an important and positive way to the lives of the children. Their angst with each other is a major block to them being able to accept the other parents’ importance in the children’s lives and further development.
Under the heading “Likely effect of any changes in the children’s current circumstances …” Ms H reports as follows:-
“These three children have endured three years of great turbulence, and have bounced between their parents’ issues for a significant part of their young lives. When in February this year the children went from living with their mother, to the current arrangements (at the time it was agreed by both parties to be a short term plan until a more permanent arrangement was decided), I urged both parents to carefully consider what the future arrangements would be for the children, in order to prevent further unnecessary disturbance and change for the children.
At this point in time, I do not feel there has been adequate shift in the fundamental issues driving the difficulties in this family, particularly the children, which is their exposure to the ongoing problems in the parental relationship. Until there is some resolution of this, any change in the children’s circumstances may result in more turbulence for them, what is vital, if the parents commit to and genuinely undertake this work, is that all three children spend time with both parents on a regular, frequent basis, and that both parents make this happen, without reverting to letting the children negotiate this with their parent/s.
Any complete separation or ‘cut-off’ from either parent, is likely to be extremely detrimental in the long term for these children. Both parents offer and provide to these children important things in their relationships and development, but neither exclusively fulfils everything the children need to thrive emotionally and psychologically, it is important that the children hear and see demonstrated by BOTH parents a genuine commitment that they will be involved in the children’s lives and that the other parent will also be present in the children’s lives.
Similarly, [the children] should be able to trust that their relationship with their older siblings [C] and [T] are respected and are acknowledged as important. Every effort should be made to ensure that these relationships are considered in future arrangements, regardless of which household the children live in/ spend time in.”
Ms H concluded that neither of the parents was fulfilling the emotional needs of the children. This was because of the ongoing toxic nature of the parental relationship.
The parents were the subject of some criticism from Ms H. She said:
“Both parents continue to operate from a position of suspicion of the other parent, make assumptions about the other parent’s motivations and behaviour and this clearly spills out into their parenting of the children.”
Ms H had suggested a form of “parallel parenting” however, she said this had not worked. She did have praise for the parents in their individual efforts to meet the parenting challenges the children provide to each parent.
The future mental health of each of the children is a matter of great concern according to Ms H. She said:
“There is an urgent need for the [Higginson-Swann] children to be protected from further behaviours from the parties which impact on the vulnerabilities of these children.”
Ms H went further in her to report to say that a decision about who the children live with will not change the prospective poor outlook for the children’s emotional development. There needs to be a fundamental change in the parenting alliance in order to save these children.
Ongoing therapy through the UNIFAM “Keeping Contact Program” was recommended and further “Connect Kids” for the children.
Ms H gave oral evidence.
Ms H said each parent has problems with limit setting for all of the children.
She confirmed her view that O has a very close relationship with T. She had spoken to the mother about O spending more time with T and had recommended that happen; however, the mother did not facilitate this and the father was not in a position to do so as O was living predominantly with the mother.
Ms H said that although she saw the parents and children for 8 months she did not feel she had made any real progress for the family. She said she considered the failure was due to the dynamic at work between the parents. She said it is very difficult to break and both are responsible for keeping it going.
Ms H was asked about the mother’s concern that the father had alienated the children from her. Ms H said that alienation is an ingredient however it is not the full explanation for the current circumstances of the children. She said there is entrenched conflict. “Each parent feels a victim and each feels the other is alienating the children”. “Each parent made negative statements to me about the other parent in the presence of the children.” The mother contributes to the dynamic through her “sense of fear the father is going to take the children away from her.”
During the course of her oral evidence I asked Ms H about the options which could be explored for the children in living with their parents. She said splitting the children was an option; however, it would not be the first option. If there was to be a split then the court could consider placing the boys principally in the care of the father and O principally in the care of the mother. She said “parallel parenting” could work if the parties were prepared to commit to it. This option in the light of her other evidence would be unlikely to obtain parental commitment. The third option was for the children to live with one parent “and have limited strictly supervised time with the other parent.”
Ms H was asked about the relationship between T and C and their mother following the separation of the father from those children’s mother. She was aware that T and C had seen very little of their mother after the separation of the parents. She was unable to comment on that situation and whether it reflected badly on the father as she had not investigated the circumstances.
Ms H said that if M remained living with his father it was likely he would become more strongly connected to his father and be anti his mother.
A number of facts were put to Ms H about the father’s living circumstances for the children such as no hot showers, dirty disorganised living spaces and rental of $42,000 owing. She was asked whether, if true, this would raise concerns for her about the father’s state of mental health and ability to properly parent the children. She said “yes”.
Two Family Reports were tendered in the hearing. Both were prepared by Ms F. She did not give oral evidence in the hearing.
The first report was dated 15th February 2005 and the second 4th November 2005. The reports were somewhat antiquated at the date of the hearing, however, were useful to detail history and earlier concerns of a professional in relation to the children.
Some matters I have noted from the report are as follows
(Paragraph 9) “Apart from his involvement in rugby and little athletics, the mother described the father as only being peripherally involved with the children during the marriage. She said that this was one of her main reasons for separating. She thought that separation would result in a better relationship between the children and their father because he would then be responsible for caring for them.”
(Paragraph 35) “All of these children present as if they have been exposed to the parental dispute by both parents. All of them recounted the events that occurred on the day that the father was removed from the home by police. These events appear to have been dramatic and upsetting. Counsellor believes that the subject children perceive this event as being a crucial factor in their separation from their brother and sister. In addition, there are indications that the subject children have been involved in the parental dispute by the father and [T] and [C].”
(Paragraph 37) “[J] appeared to be close to both of his parents, although he appeared to be more positive about his mother than his father.”
(Paragraph 41) “[The mother], while presenting the father as having alienated [C] and [T] from their mother, seems to have accepted and aligned herself with the father’s view of their natural mother, and in this way has become complicit in the process.”
(Paragraph 43) “Counsellor believes that there are risks of alienation in this family unless the parents are able to deal more constructively with each other.”
The father spoke to the Family Consultant about his concerns that the mother had used excessive force in physically chastising J prior to the separation. He also told her of his previous marriage to C and T’s mother. When he commenced his relationship with C and T’s mother she had two very young children from a prior relationship. Those two children did not see their father and so the father became the father figure for them. Following the separation all four children lived with the father for a short time and then the older two moved to live with their mother. The father did not see those children after that time nor did those children see T or C.
C was very negative about the mother. He said she abused J, treated T and himself as her personal slaves and she did nothing herself in the house. She employed people to do a great deal of the domestic chores. Both T and C were very critical of the way the mother removed the children from the former matrimonial home at the point of separation.
In the November 2005 report the Family Consultant was asked to assess whether J was being alienated or abused. In an interview J described the events of 22nd October 2005 where he alleged his mother had held his head face down on a bed while she smacked him. When she released him he “saw sparkles”. J had run away from his mothers’ house and telephoned his father. The following matters I note in that report:
(Paragraph 9) “There were a number of characteristics within [J’s] narrative and within other discussion during the interview that are hallmarks of an alienated child. These include a degree of rigidity about his thinking about his mother and father: he now conceptualises his mother as all bad and idealises his father.”
(Paragraph 12) “In conclusion, it appears that there are alienation processes occurring in this case.”
The Mother’s Evidence
The mother relied on an affidavit sworn 14th February 2007. She also relied on a Financial Statement sworn 12th December 2006 and an affidavit dealing principally with property sworn 24th May 2007. There was an affidavit of the mother’s father sworn 24th May 2007. An affidavit of the mother filed in Court on 26th June 2007 became exhibit W7 in the proceedings. She also relied on portions of earlier affidavits which were collectively marked as exhibit H8.
The matters which were the subject of dispute between the parties were canvassed extensively in the cross-examination of the parties. I have read the affidavit evidence of the mother however, I conclude the best and most helpful evidence before the court arose out of her oral evidence and I will refer to that evidence hereafter.
The mother gave oral evidence. The matters I particularly noted from her oral evidence are as follows.
The mother confirmed that J’s behaviour following separation deteriorated towards her. In 2004 he was rude to the mother and swore at her. In 2005 he hit the mother with a stick. His behaviour deteriorated over 2005.
J’s poor behaviour with the mother was not a new phenomenon which emerged following separation. The mother confirmed that there were problems between herself and J prior to separation. The problem from the mother’s perspective was that it was difficult for her to control his behaviour.
The mother confirmed that she had problems with J as a small child. In 2000, she saw people at the Hospital in relation to J. At that time, she was concerned about his social skills and his behaviour. He was aggressive at preschool. The preschool authority suggested to the mother that she do the “PPP” course. At that time the mother felt that she was not supported by the father in her care of J. She was at home full time and the father was working full time. The mother said there were times when the father and she had been able to work out an agreement in terms of disciplining J. This, of course, was prior to separation. She confirmed that the parties were able to develop a common approach.
In 2005 the mother went back to the “PPP” course. Again this was about J. She had a consultation with the administrators of that course.
The mother confirmed that J is still aggressive today. She confirmed her statement that J has hurt M physically. She confirmed that in 2005 J was aggressive at school. In 2007 she was aware of one problem/ incident involving J and aggression at school. The principal had spoken to her about this. At the time of the incident J was living with the mother. She did not speak to J about the incident. She thought he was settling into school at the time and she thought that if there was another problem the school would call her. She did not speak to the father about this incident either. At the end of January 2007 J commenced to live with the mother. The mother and father had agreed that J should repeat his year in a new school. It was agreed that the school should be N School. The mother confirmed that the agreement was reached without conflict or argument between she and the father. She confirmed that there have been other agreements between she and the father about the children, although she couldn’t specifically remember them. These agreements have been able to be reached post-separation.
In March 2007, the mother said, J moved to live with the father. This occurred at J’s instigation. He simply took himself off to live with his father. He did not speak to his mother first about changing residence. At the time, the mother and J were in conflict and she was “giving him consequence of his behaviour”. The mother had determined that J had to pay half the cost of two books he had ripped up. He had torn the books while in a temper.
The mother confirmed that in 2007 she was using strategies to discipline J and largely, she felt that they worked. On the particular occasion in March 2007 they had not worked. The mother described the strategies she used. She would say to J, “I’m surprised you did that. I’m sure you are confused about what’s happening to Dad and I. Can I give you a hug?’ Then I might say, ‘if you didn’t want to hug me, then we’ll have five minutes time out. Then we’ll have a hug’”. If J is aggressive, the mother has a time out and she talks to him about his aggression. She says that sometimes it works.
Since March 2007 when J has been living with his father, the mother confirmed he has spent weekend visits with her. On some occasions, J likes to come for the day only rather than overnight. The mother confirmed that since March 2007, there have been occasions when she has had difficulty in disciplining J. This last occurred when he had refused to get into her car. That was about six weeks prior to the hearing.
The mother described the incident. She said J had refused to get into the car. M and O were there. It was on a Saturday or a Sunday. It was at N. J refused to get into the car. M became frustrated and rode off to his father’s house. She said she followed M part of the way. The mother confirmed she delivered J and O to the father’s house. The mother was asked why she had done that, as it was not the conclusion of her weekend. She said “I think [J] said he might have wanted to go there. It was like [J] and [M] were joining forces against me.”
The mother confirmed that the Orders made by Justice Rowlands have played very little role in determining where the children live. She said that until she did the “PPP” course, she had experienced difficulty in managing J and M when they become disruptive. She finds that the strategies she had learnt at the “PPP” course worked reasonably well for J but not for M. She confirmed that M swears at her and is physically aggressive to her. M’s physical aggression commenced in 2005. On that occasion both M and J had attacked the mother with sticks. She thought it was about October 2005 when that occurred.
The mother agreed that M has done well at school, and that prior to 2006 M had not had a behavioural problem at school. His behaviour at W Primary School has deteriorated. The mother said that the week before the hearing she had spoken to the principal at the school. He said that M at the school camp was climbing out of the window and throwing stones at a snake. He said that he didn’t behave well. She had not spoken to the father about this, and she had not spoken to M about it.
The mother said that at the current time she found it very difficult to discipline M. She felt that M was totally polarised from her: “He’s looking for his Dad 95% of the time and 5% to me”. The mother said that she does try to discipline M but he doesn’t comply with time out.
I asked the mother whether she had any of the children in a one-off situation this year. She confirmed that she had J for a weekend by himself and she said it was fantastic.
The mother was asked about the incident involving M and the school picnic in 2006. The facts of this incident as recalled by the father are set out at paragraphs 49 and 218 to 236 of the fathers affidavit sworn 27th February 2007. She said that the woman she was speaking to was O’s best friend’s grandmother, Miss Y. She confirmed that there was a conversation with Miss Y when M was nearby. Miss Y had said to M, “Respect your mother”. She confirmed that the father was there on that occasion and she was chasing O who was running away from her. She confirmed that M had come with his father and that after the event both J and M went home with their father. The mother said that the version of the facts provided by M is incorrect. The mother confirmed it is possible she did say something to Miss Y at the time about the father and she confirmed that she remembered saying she was having difficulty getting O to come home with her. She did not think it was possible that M could overhear the conversation with Miss Y. She had no other explanation for M’s behaviour on that occasion. She confirmed that since that occasion she has spoken to M and told him, “Look [M], that just didn’t happen.” As noted later I do accept that a conversation did occur more in keeping with that reported by M to his father than that recalled by the mother. I also accept the father’s version of this event as set out in his affidavit. I do not accept the evidence of the mother on this point. I also conclude that in relation to this matter the mother has misstated the truth.
The mother confirmed that in relation to O, until this year, her behaviour has been the easiest to manage. Apart from one occasion in 2005, she has not until 2007 taken herself to her father’s house. In 2005 she had walked with her brothers to her father’s house.
The mother confirmed that since April 2007, O’s behaviour has become much worse towards her. O has said to her, “You can’t tell me what to do.”
The mother said that on 10 March 2007, there had been an incident between she and J at O’s ballet or on the way home. J had squirted sunscreen on his mother. He had drawn on the dashboard of the car. He told the mother she was controlling. He said to her, “You are wrecking Dad, [C] and [T’s] lives. They all hate you. You lie in Court all the time. I wish you were dead.” The mother said she was unable to control J’s behaviour on that occasion. The incident ended with J walking to his father’s house. The incident had lasted about two hours. O was present for most of that time. The mother denied that she had said at any time to J, “You’ve got mental problems.” She confirmed that she has said to J, “You need to talk to someone who can assist you.” She confirmed that J then asked her, “Are you saying I have mental problems?” However, she said in reply to that question, “No.” The mother said that J’s behaviour was out of control on that occasion. She did not call for assistance. She spoke to the father later that day when he came back with J in the afternoon. She raised with the father that J had ripped two books and he should pay half the costs. The father said that in his opinion, J should pay the whole of the cost. He also told her that in his opinion J should live with him until things settled down and the mother agreed with this.
The incident on the 10th March 2007 took up a considerable amount of time in the giving of oral evidence. The mother said that when the father was present at her house there was a disagreement between she and J. She confirmed that J had denied everything that she had alleged against him. She denied that she and J were arguing although she said that J often raised his voice. She denied she said, “I don’t want you here”. She denied she said to the father, “It would be better if he was with you until he learns to behave”. She denied she restricted J taking any items with him to his father’s place. In relation to this incident I prefer the evidence of the father and I accept the conversations as recited in this paragraph did occur. When this evidence was being given by the mother I discerned a degree of discomfort which was mainly not seen in the way the mother gave her evidence.
The mother was asked about O’s involvement on that day. She was asked, “Have you heard [O] say to [J], “You have mental problems. You should be in hospital”?” She replied, “Yes.” She said she heard that after the 10th March 2007. It occurred at a time when J and O were having an altercation. She said that J reacted angrily. The mother denied that she had ever said to J that she thought he had mental problems or that she thought he should be in a hospital. She confirmed that O asked her whether J was going to hospital in 2007. As stated later I do accept that the words used by the mother in her conversation with J at about this time left him with the clear understanding that she thought he had “mental problems” and that he needed medical treatment for those problems.
The mother agreed that on the 29th April 2007 M had run away from her home. The mother denied that she had said to M (as alleged by the father) on that occasion “I am only your mother, you treat me like shit. Why don’t I just go off and kill myself because no one would care?” She confirmed that she did say other things to M on that occasion. She said on that occasion M had wanted to go back to his father’s place and she had said, “No, you can’t”. She confirmed that on that day O had also said that she wanted to go back to her father’s place. The mother confirmed that on that day she said to the children “What would happen if I was in a car accident and got killed?” She said O responded by giving her a hug and was crying. The mother confirmed that she was crying on that occasion. Again, as in the earlier determinations about conflict between the mother’s version of what she said to the children and what they reported her saying, I accept that the words the mother used left the children with the clear understanding that she was talking about “killing herself”.
It was put to the mother that she had said to O “Dad will alienate you”. She denied this. She said that she spoke to the children on the 7th February 2007 and she said to them “I am really worried there may be a time when I won’t see you anymore.” She had repeated that to O on the evening of the school picnic incident in 2006.
The mother confirmed that she had told the school counsellor at W School that she was not to speak to the children without the mother’s permission. She said this because Ms H had said that the children should only be seen with her. The mother confirmed that none of the children had seen Ms H during 2007. She confirmed that the father had spoken to her and wanted O to speak to the school counsellor this year. She said that she didn’t think that O would benefit by seeing the school counsellor.
The mother confirmed that on 11th May 2007 O went to her father’s house without warning. She said that at about 3:45pm she had received a telephone call from the father telling her that O was with him. The mother had told the father that she expected him to drive O back to her house. She confirmed that the father wanted to talk to her about O but she said, “No, it is simple. Just bring her home”. She confirmed that she had rung the police. She confirmed that the police had spoken to the father from her house. She had hoped and intended that the police would be able to collect O from her father’s house and bring her to the mother’s house. She considered that such an action would be traumatic for O and also for J and M. She confirmed that on other occasions she had called the police. She agreed that it had never really helped the situation. She had no answer for why she chose to use the police again on this occasion.
O stayed with her father until the 16th May 2007. Then she went back to her father on the 22nd May. The mother had last seen O on the Friday before the Court hearing. On that occasion she had seen her at her father’s house. She said O was quite cold towards her. She had seen her on the following Sunday at football and she said that O was even colder. She confirmed that the father was not close in proximity when she had spoken to O on that occasion.
The mother agreed that she had asked her father to discipline the children. She had rung him and asked him to come to the house and help her. The last time this had happened was a couple of months before the hearing.
The mother said that the children have complained about their grandfather’s discipline of them since May of 2005. She confirmed that he had raised his voice to J but denied he had yelled at him. She denied the grandfather had hit J with a shoe.
The mother confirmed that she had sent the children to a small toilet room for time out. She confirmed that J had complained that his grandfather shouts at him and had hit him. He had last complained to her about two years ago.
The mother was asked about her application which sought that all children live with her and spend time on the weekends with the father. She said that there would possibly be some difficulty with those Orders.
She was asked about her attendance at Unifam and she said that the children were attending “Connect kids”.
The mother said that she believed the father was actively undermining her relationship with the children. She believed that he did the same in respect of C and T. She agreed that she had spoken to other people about her concerns in this area over the phone. She did not believe that the children would have heard her speaking about those matters. She said that she blamed the father for all of the circumstances of the children and when she was asked whether she had any share of the blame for the children’s current circumstances she replied “yes”. She said she did not use strategies as well as she should have.
The mother was asked what she said to the children when she took them to the father’s in 2006. She said “If that is what they really want to do then they can live with their father. I said I thought things would be really good between Dad and I we are really going to try and work things out.” She agreed that the statement to the children had a ring of finality about it.
The mother was asked about the positives which the father had to offer the children and she was able to identify quite a considerable number of benefits which would flow to the children from being in their father’s care. She was critical of the father in some respects.
Asked about C and T and their relationship with their own natural mother, she was asked what she had done to encourage C and T to have a relationship with their mother. She replied, “I encourage them to call and write to their mum”. She was asked “Did you and the father have any disagreement about [T] and [C] and their relationship with their mother?” To which she replied: “No”. She did assert that there was dispute about lack of contact between T and C and their mother.
The mother confirmed that she saw T in 2005 and she saw her at a time when the other children were not present she said this was to protect T so that the father wouldn’t know that T had been seen with her. The last time she had seen T at her request was in 2005. It concluded when she told T she would have to advise the Court that she had seen her.
The mother was asked what she thought of a proposal for J and M to live with the father and O to live with her. She replied “It could work.”
She was asked questions by the father about discipline of the children. She said that prior to the separation she had seen the father smack the children approximately two to three times per week and she confirmed that she smacked the children approximately two times a week. The father put to the mother that he at no time smacked the children two to three times a week. He put to the mother that at the most he would have smacked the children on one occasion per month. The mother denied both those assertions.
The mother confirmed that on the 7th February 2006 she delivered all three children to live with the father. She also confirmed that since that time on approximately one occasion each month she has returned the children to the father from time they were spending with her earlier than had been agreed.
The mother confirmed that on the 10th November 2006 she had called the father and asked him to come and collect J and M at 6:45pm. She confirmed she had said “[J] and [M] have been vandalising my house.” She also confirmed that she had told the father “The boys need stronger discipline from you.”
The mother confirmed that in 2005 she experienced escalating problems with each of the children. She further confirmed that she did not seek any professional assistance at all in relation to the children in that year.
The Evidence of the mother’s father
The mother’s father provided an affidavit and also gave oral evidence. He confirmed he had been asked to assist the mother with discipline of the children. He was last asked in 2006. He was asked whether he had physically chastised the children. In relation to J he said that he had shaken him. He was playing up with his mother, hitting her and “I shook him and said “Don’t do that.””
He denied he had hit J with a shoe. He denied that he had been in the small room in the house while J was having time out. He denied he had physically chastised any of the other children. He has not seen M for a long time. He saw O when she went on a holiday with them. It was at Easter time 2006.
The Father’s Evidence
The father relied on the following affidavits: Affidavit sworn by the father on the 27th February 2007. Affidavit filed in Court on 28th May 2007. Financial Statement filed 28th February 2007. An affidavit of the father’s filed in court on the 26th June 2007 became exhibit H9 in the proceedings.
The matters which were the subject of dispute between the parties were canvassed extensively in the cross-examination of the parties. I have read the affidavit evidence of the father; however, I conclude the best and most helpful evidence before the court arose out of his oral evidence and I will refer to that evidence hereafter.
The affidavit evidence served a very useful purpose in providing details of each parties’ concerns about the identified topics which the affidavits addressed.
The father gave oral evidence. He confirmed that during the last six months he had taken J to see a General Practitioner at B about a heart condition. He did this because he said J often puts his hand on his chest and said he could feel his heart beating. He understands that there is nothing wrong with J’s heart.
The father said he was last treated for depression in early February 2007 by Dr W. He saw Dr W because he realised he was not well. Dr W had told him that he was clinically depressed. He was prescribed medication. Since that time he has been seeing Dr W weekly. The weekly visits continued until March 2007 and then became fortnightly and in the three weeks leading up to the hearing became weekly again. Prior to 2007 the father had not received treatment for depression. He said that in January 2004 about the date of separation he had seen a psychiatrist, Dr N, however no medication was prescribed. He had visited Dr N between February 2004 and May 2004. Dr N had provided a letter to his solicitors saying that he was not fit to give instructions in the litigation. That letter was in about March 2004. He confirmed that the letter said that he was suffering from anxiety and depression at a moderate level. The father confirmed that he was mentally unwell and unable to think clearly or make any decisions.
The father confirmed that there was a further letter from Dr N dated the 23rd March 2004.
The father ceased seeing Dr N in June 2004. At that time he had been referred to Dr W a “relationship specialist”. The father confirmed that the first time he had seen Dr W was at the beginning of 2007.
The father said that from mid 2006 onwards he was not feeling well.
On the 14th March 2007 the father moved out of his premises in H Street. At that time he owed $40, 000 in rent and school fees. The house had been sold by the father to X School. C had attended X School in 2006.
T finished her schooling in 2006 and during 2007 she was working part time. She anticipates taking up study in 2008 and she may move to regional New South Wales to attend University.
The father confirmed that the hot water ceased operating in H Street in about November 2006. Thereafter there was no hot water. The hot water service required a payment of $3000 to replace and the father did not have the money.
The father said that during 2005 and onwards he had difficulty keeping the house clean. He said that the house got a cleaning every two to three weeks.
The father agreed that in the second half of the 2006 year he experienced difficulty with J and M attending school. He said there was a higher incidence of absenteeism from school. He said this was largely due to the children being upset. It was put to the father that J was absent from school for 22 days in the second half of 2006. The father did not think it was 22 days. He confirmed that some of the days which J was absent were due to attendance at Ms H. It was put to the father that O had 8 days absent and M 18 days absent. He did not think that M was absent for 18 days. Again this related to the second half of the 2006 school year. The father said he was concerned about the children not attending school however he said that they were particularly upset at the time and J was quite traumatised.
The father was asked about O missing school and he confirmed that part of the reason that O refused to go to school was because of a concern that her mother would remove her from school.
The father was asked whether he had given any thought to how O might get to spend some time with her mother. He said he thought it should happen as soon as possible and that it could happen with the assistance of Unifam.
The father said that he had told all three children that it was important to him that they all live together. He said he wanted them to have a good relationship with each of their mother and father.
The father was asked what Orders he would be seeking and he replied “None. I would hope the Independent Children’s Lawyer will put something forward.” He said he would like to see all children continue with therapy and all children living together. He thought the children should live with him. He said he could provide more stability in the parenting than the mother. He thought that the mother needed to communicate better with the children and with himself. He believed that they could all work together.
The father said that in his opinion the mother had been physically abusive of J up until the age of about 5 years. He said that in relation to M the mother had hit him with a wooden spoon. He was not opposed per se to smacking as a means of discipline.
The father confirmed that he had spoken to T after he read in the mother’s affidavit that she had been seeing the mother without telling him. He denied that he was angry although he confirmed he did say to T that he was disappointed that she felt she couldn’t tell him about it. The father confirmed that at the current time both C and T have no relationship with the mother and hold a poor view of her. He agreed that the children would be aware of T and C’s view about their mother.
When challenged about the children’s ability to hold positive views of their mother in the father’s household, the father said that the children do speak positively about their mother from time to time. He gave an example form the last weekend before the trial when J had told him he enjoyed his time with his mother on the weekend. M had also told him that he enjoyed the time that he spent with his mother for O’s birthday and also during the school holiday. He said that O has not said positive things about her mother since the 29th April but prior to that time she did certainly have positive things to say about her mother. The father was able to identify a number of positive aspects that the mother offers to the children.
In answer to questions from the mother’s counsel the father said that he had last worked at the end of 2003. He said that he has not worked largely because of the circumstances with the children but also to some extent because he had suffered from depression. The father said that in the future he proposed to do contract or consulting work. He proposed to put his resume with employment agencies and approach businesses. The father appeared confident that he would be able to find work in the future.
The father was asked on how many occasions during the last five months J has seen his mother to which he replied more than five.
The father confirmed that T and C do play some role in the day to day care of the children. He said that T does some of the cooking. The father was asked about the lack of contact between T and C and their mother. The father said that at the time of separation T and C’s mother had left him to set up a relationship with another man. All four children remained living with him, namely, T, C, R and A. R and A were children of T and C’s mother from a former relationship. The father said that following the separation R had made an allegation that he had sexually abused her. She moved to live with her mother. Some time later A complained that he had also been abused. He moved to live with his mother. These allegations were denied by the father. Following the allegations the father said he ceased to ensure that contact continued. He said that T has subsequently spent time with her mother in Perth. The father confirmed that following R and A’s leaving the household there was only one occasion when he saw them again.
The father confirmed that he had been served with a creditor’s petition issued from the Bankruptcy Court. I have since been advised that the father is now a bankrupt.
The father confirmed that his driver’s license had lapsed because he was unaware it had expired and he had not received a renewal notice. He also confirmed that his car was unregistered for a week again because he had not received a renewal notice. He said that in his current premises he is up to date with the rent and he is being financially assisted by his brother.
The father denied that he had a silent telephone number so that the mother could not call children. He also confirmed that the children did not see their mother last mother’s day. He said short of physical force he could not have arranged for the children to spend that time with their mother. When asked about the time the children would be able to spend with their mother if they would be able to live with their father he said that he thought he might experience some difficulty in the short term with convincing the children to go on overnight contact with their mother.
The matter came back before me on Tuesday 26th June 2007. On that occasion the father gave further evidence and he was questioned by the Independent Children’s Lawyer. The father was asked about O. He agreed that prior to May 2007 O’s behaviour was the best of the three children. He was asked about the difficulty he had experienced in having O attend school from the 28th May through to the 7th June.
As mentioned earlier, the father changed O’s school. He chose a school which was not the same school attended by J. He was asked why. He said because J’s school was some 20 kilometres away from his home. He agreed that this meant that all three children were at different schools. He did not think that was a problem.
The father said that since the 1st June 2007 J has spent most overnight periods organised for time with his mother at his mother’s house. He said that O had stayed for one overnight period and that was on the previous weekend. M had one overnight with his mother since the May hearing. On the weekend prior to the 26th June all three children had stayed with the mother from 7pm Saturday until 8pm on Sunday. The father said that he had been actively working with the children towards this position. He said that O had reported having a good time with the mother on that occasion. The father had suggested to O that perhaps she could consider spending some time alone with her mother and O did not appear resistant to that suggestion. The father said that two weekends before the 26th June he had planned for all three children to spend an overnight on Saturday with the mother. On that night O refused. He said J stayed Friday night with his mother. There were emails between the parties on Saturday and eventually the father took M and O to the mother’s house about 1:20pm. He said the mother sent O back with him and he did not understand why that was.
Under questioning from the mother’s Counsel the father said O’s school was approximately 100 metres from his house. The father acknowledged that both the mother and the child representative were opposed to the change of school for O however he proceeded to change the school. The father said in relation to his campaign to have O spend overnight time with her mother that he felt he was being successful. He said there should have been two more nights and two more afternoons; however, the mother had rejected his proposal.
The father was asked about his decision to change schools for O. He confirmed that he had indicated to the mother that he wanted O to stay at the W school, however he said that she was insistent on wanting to get away from things being said about her at the W school.
The father said that he was very confident that in the future he would be able to have the children spend time with the mother. He said that there have been many positive actions he has seen in the children since the 1st June 2007 towards their mother. He said that O was very upset with what had been said to her at the W public school. She seemed to have the view also that if she went to her mother’s house she would not be able to return to the father’s house. The children he believes now feel that the mother and father are communicating well. The children appear to have accepted that things are different between the parents now. In relation to M he said that since November last year (2007) he had only spent overnight contact with his mother on one occasion. However last weekend he spent two nights with her. M and O seem more settled. J is now spending time with his mother in the face of a history of resisting.
In relation to the changed position between the parties and their communication the father said that on Saturday following the Orders being made in May all three children spent time with the mother. He said all three children left the mother’s house and he received a message from the mother that they had disappeared. He spoke to the mother and he said “We work together in finding the children.” “She invited me back to her house. She wanted to show me what the children had been doing.” The father went on to say that each of the three children apologised to the mother in his presence. “This was not something that was ordered we were simply sitting together and they apologised.” He said further when the parties had been talking there had not been any angry or negative words.
On the 26th June the mother gave oral evidence. She said that on the 7th June 2007 she suggested to O that she would call L and have her come over. She said that O was angry with her mother because of that suggestion. Notwithstanding that reaction from O the mother agreed she called L by telephone and suggested to O that she talk to her. When asked why she had done this the mother said “[O] told me she was being bullied at that time. The night before I had seen [L] and [O] together and they were normal.”
The mother confirmed that on the 16th June she had asked the father if she could spend time with O on her own. She confirmed that J had stayed overnight with her on Friday the 15th June. She agreed that on Saturday the 16th June the father took O and M to her house. She further agreed that on that occasion when they arrived she said she didn’t want O to stay. She was asked why. She said that she had asked O if she could spend time with her alone and that O had turned around and went back to the father.
The mother confirmed that the weekend immediately before the 26th June 2007 she had all three children staying with her. She was asked if there were any problems. She said “[O] refused to brush her hair. She decided to walk off to her dad’s. She was quite rude to me. She came back of her own accord and some hours later she apologised.” The mother was asked if there were any problems with J. She said “He swore at me. He used rude language.” She said that J and M share a room. “I said who was to share the trundle bed. [J] swore at me. [M] and [J] were fighting.” “[M] punched me as well. I ended up letting [M] sleep in the top bed. I said for [J] to sleep in my bed. He was going call Dad but I said there was no need to do that this is only about going to bed.” She confirmed that this is the first time since last year that M had spent more than two consecutive nights at her house.
In answer to some questions from me the mother said that J becomes immune to her influence. She described a situation at her new house where the children had been involved in vandalism with plants in the carport area and with table tennis bats. She said J had hit her with a palm plant. She thought it was part of a game at first but also it caused damage to her new home. She said that on the 15th June 2007 J had thrown a heavy canister at her. She said J was upset because he had his hair cut and he didn’t like it. Also he wanted M to come over but didn’t know when he was coming. “He became frustrated and he threw the canister at me.” She said she resolved the situation by telling him that M was coming over. J then apologised and he cleaned up the mess.
I asked the mother whether she could identify any positive aspects on improvements in respect of the relationship between the parents since they were last at Court in May 2007. She said “that from the 1st June the communication has started by email. We spoke together with the children. A positive was that Granny made us both a cup of tea. It was like old times. [the father’s] tone of voice was respectful of me. He asked me to give some Gatorade to [M] at [M’s] rugby.” I asked the mother whether there had been any improvement in her relationship with the children and she said “that [M] had given her a kiss last night. When I was dropping the kids back [J] said, “Could I stay with you overnight?”” I asked the mother if she thought there were there any matters of concern in respect to the children and she said “[O] has said to [M], “Are you going to come to [S School] as well?””
The mother told me that if O was residing with her she would like O to go back to the W school. If that could not be achieved she would leave her at S public school or look to moving her to J’s school or possibly T school.
Marked as exhibit W8 is a book of Diary, Communication Book copies and Email Communications between the parties following the orders I made on the 1st June 2007. I have read all those documents. They corroborate the evidence given by the parties on the 26th June 2007 before me. They also illustrate an ongoing level of conflict between the parties, albeit that there appears to be a softening in the parental conflict. The parents do appear to be trying to focus on the children and do appear to be wanting to change their relationship for the better.
Update Evidence Of The Parties On 1st April 2008
On the 1st April 2008 the mother gave further evidence.
The mother told me that J was now living with her. She said that J had commenced living with her on the 11th March 2008. She said that she had picked him up from the father’s house after J had rung her and requested that she collect him. She said a couple of days later the father had told her that he thought she should be the main carer for J.
The mother said that from the 11th March 2008 until the 29th March 2008 there had been no contact between J and his father.
J told his mother that the reason he wanted to live with her was that if he does not behave at his father’s house, or if he does not say things that O and M say about their mother (bad mouthing) then the father glares at him and he gets angry.
The father’s evidence about this incident is as follows.
The problems started in the Christmas school holidays. M was excluded from a holiday on which the mother took the other two children. The mother told me that she had been taken by her parents for a holiday to the Central Coast of NSW. M had asked his mother could he go on the holiday and she had told him he did not deserve to go. The mother’s version of this was that she told him she needed to spend shorter times with him first. She told him there was no indication of respect for her. She told him she did not want the holiday spoilt.
The father said that after that holiday J became more punitive towards M. He said that J attacked M verbally and physically in an unrelenting way.
The father said that he had difficulty stopping these attacks. J appeared to be oblivious to the father’s intervention. J made life for O and M difficult and at times intolerable. J also created friction with T.
The father said that things became so difficult with J that he raised with J the possibility of his living with his mother for a while where perhaps he would not have the opportunity for conflict with O and M and that he may be able to enjoy a better relationship with them if he saw them on weekends. The father said he had also spoken to the consultant at UNIFAM which the family was working with. She urged him not to change J’s residence until there had been an opportunity to discuss the matters as a family with her. Appointments were made; however, they could not proceed due to the unavailability of the consultant. The family is to meet with UNIFAM this week.
The father described the situation at his house when the mother arrived to collect J. He apparently had no idea why she was there. He asked her politely to leave so that he might deal with the situation. The mother did not do so immediately but did after a while and she took J with her.
The father told me that the mother said to him that J had complained to his mother that the father had been prodding him and calling him insane. The father said that each of those allegations is false.
The evidence about J moving house on the 11th March is very troubling. The mother has acted, in my view, extremely irresponsibly in this incident. It seems from all the evidence that J needs a firm and consistent approach to his discipline. He needs a united approach from his parents. The mother should not have gone to the father’s house on this occasion without being requested to do so by the father. The mother has undermined the father’s authority in relation to J.
I have no doubt that the mother was attending to her own needs first rather than those of J. It is most unlikely that she will be able to provide consistent or effective parenting and discipline for J into the future- something that he absolutely needs. I see that J ringing his mother to come and remove him from his father’s house would have been the equivalent of “salvation day” for the mother in her battle with the father. The way she framed her evidence to me about the reason J left the father’s home made it clear that she understood the father was encouraging both M and O to be openly critical of the mother in his household and further that the father was effectively requiring J to do the same if he was to fit comfortably into the father’s household. The father denies this and I accept his denial. The view of the mother of what she believes was happening with the children in the father’s household is entirely consistent with the view the mother had of the father as illustrated by the evidence given by her earlier in the hearing. She has consistently stated that the father has been alienating the children from her. Now she claims J was admitting this was the case. Further, for the first time for many months, possibly years, the mother has an ally in the battle with the father.
J’s future is now, as far as I am concerned, under more of a cloud than it ever was. He appears to be a child who has difficulty controlling anger. He appears to be a “tricky” child to parent in terms of his emotional makeup. He has turned into a bully of the worst kind, according to the father’s evidence, which I accept on this matter. As I said to the parties in court on the 1st April 2008 I would not be surprised to be told in the near future that J is now in trouble with the police or in an institution because he has been involved in some antisocial act.
Between the 11th March 2008 and the 29th March 2008 the father has spoken to J on one occasion on the telephone. The father proposes that J continue to live with his mother unless and until there be some other arrangement for his care as guided by the consultant at UNIFAM.
The mother said that in relation to M he had spent no time with his mother between June 2007 and Christmas 2007. He saw his mother on Christmas morning. Since that time the mother said she has spent no time with M. The mother says she talks to M at school carnivals and rugby matches. She also speaks to him on the phone. She said that during those conversations M was cold towards her.
The mother said that she does not see any prospect of change in the future for her relationship with M. She concluded by saying “I know [M] adores me”. In the context of all of the evidence this appears to me to be a very strange statement and not a descriptive which immediately springs to mind. It seems to me on all the evidence M remains angry with his mother. The state of his love for her would I predict be very difficult to discern by the most expert of child psychologists.
The mother’s evidence about the amount of time which M has spent with his mother was denied by the father. He said M had spent half of the June school holidays with the mother. He has spent alternate weekends with his mother. That continued until the end of August or early September 2007. The father said that on a number of occasions M returned from time with the mother and told the father that his mother had said his behaviour was unacceptable and that she would have to speak to his school authorities about it. The father said M is very sensitive about his school being involved in his family circumstances. He said M was very disturbed by these threats from his mother.
The mother told the father details of the behaviour of both M and J which she said was unacceptable. The father agreed that the behaviour described fitted that term. He said however that the threatening of involvement of M’s school authorities was particularly insensitive to M given his adversity to having his family problems aired with his school. The father said M is doing really well at school.
The father said that from September 2007 there had been discussions between M and his mother about M spending time with her however M would not participate. The father’s proposal for M and the time he spends with his mother is to accept the advice of the UNIFAM consultant. The father said he had prepared a contact plan for the mother and M.
Both parents agreed that O had spent most alternate weekends with her mother since June 2007 and that she had spend holiday time with her mother as well. The father said this had been a positive experience for O.
The father told me that both M and O now attend T Public School. This school is close to the father’s residence at Y.
The father moved to the residence at Y later last year. His lease with the property at S had concluded and he was unable to extend it. He looked for other accommodation in the S area which might be available for a long term lease however he had been unable to secure such accommodation. The premises at Y consist of five bedrooms. The father lives there with the subject children and with T and C. His rent is $580 per week. The father receives about $2,000 to $3,000 of assistance from his family each month. He is involved in job training however, he has not secured employment. He receives about $1,100 per fortnight by way of government assistance.
The father said that there had been good progress in the relationship between the mother and the children since June 2007. No complaint of substance is raised by the mother about her time with O. The time J was spending with his mother has developed into a respectful relationship- so much so that the mother is prepared to allow J to live with her. J has done well at school this year. This needs to be compared to a disastrous school year in 2006. He said M is really where J was at the commencement of the hearing in 2007. The father hopes to improve things for the time M can spend with his mother with the assistance of UNIFAM.
In her final submission the mother asked for orders which would see the children live with each parent on a two week cycle. Such a proposal appears to me to be entirely unworkable.
Section 60CC Considerations
Primary Considerations
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents
There is no doubt that each of the subject children would benefit from having a meaningful relationship with each parent. The challenge for the court is to make orders which might achieve that result.
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
An injunction has operated to protect these children from physical violence in the form of discipline from their parents. I conclude these children have been exposed to abuse in the form of having to deal with their parents’ high level of post separation conflict. In many ways it has robbed the children of what they were entitled to, namely a happy, uncomplicated childhood.
Additional Considerations
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
I am satisfied by all the evidence in this case that all of the children desire to live with their father. The exact reason for this is undetectable; however, I conclude they hold a genuine desire to live with him. Speculation as to the causes does not advance the case further and may well be incorrect in any event. I am also satisfied that the children do desire an ongoing relationship with their mother on their own terms. Since March 2008 J has elected to live with his mother. I have grave doubts this will continue. I doubt the mother’s ability to be able to provide a conflict free relationship with J. The move made by J to live with his mother in March and the fact of little contact with his father since that time leads me to conclude that J holds the view it is not possible for him to be able to live with his mother and spend time with his father. This is quite different to the circumstances which have been operating from June 2007 until March 2008 when J and O have both been spending almost each alternate weekend and school holiday time with their mother.
(b) the nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
I am satisfied that the children have a close and dependant relationship with their father and their step siblings. The nature of the children’s relationship with their mother appears to be one of ambivalence and conflict. The mother appears to do best with the children when she has one at a time. The evidence suggests that when she has all three then there is conflict. I am also satisfied that the children have a good relationship with their maternal grandparents.
Given that I accept the father’s evidence of the conflict between J and M following the Christmas school holidays I doubt if M elects to spend time with his mother when J is present this conflict is likely to cease for any length of time. There may be a temporary truce due to the fact that they have not seen each other for some time however it is difficult to see how the conflict would be contained long term. I do not believe from what I have seen in the evidence that the mother has any ability to control a rampaging J.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
The evidence convinces me that each of the parents has struggled with this for varying reasons. The mother has been convinced her children were being alienated from her by the father and the father has been very concerned about the mother’s parenting ability. I am satisfied that these circumstances have interfered with the parents’ willingness and ability to facilitate and encourage a continuing relationship for the children with the other parent.
There are signs that this is changing, particularly so far as the father is concerned. Since the 1st June 2007 there is evidence of some major changes in the parties’ capacity to be civil to each other and support each other. There is also ample evidence of the ongoing hostility between the parties.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
In my opinion the evidence establishes that it would be impossible to effect a change in residence for these children so that they live with their mother and spend time with their father. The children would not accept such a position or outcome and would simply run away from the mother. For whatever reason she is incapable of controlling them. This situation will have changed for J since March 2008, at least on a temporary basis.
Splitting the children I conclude would not be in their best interests. The children all appear to have a close relationship notwithstanding that J and M also appear to fight.
The children have a close relationship with their step siblings and would I conclude would miss that relationship were they to live with their mother.
The prospect of the children being able to continue to see their father on some restricted basis would, I am convinced, be unacceptable to the children.
Having said that I return to the prospect that no orders made by the court are likely to last for any time with these parties. The children have floated from one parent to the other with the vicissitudes of the children’s relationship with each parent. The father has been the most stable parent for the children over the last twelve months.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The parents in this case live reasonably close to each other. This consideration does not have substantial impact in this case. The father is in difficult financial circumstances however, he is an intelligent man who has run businesses of his own in the past. He claims to have skills in the printing and publication field. It is not inconceivable that he may secure some employment for himself in the future. As stated earlier he is confident he will find employment. He is now a bankrupt and so he would not be able to run a business of his own at this time.
(f) the capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
There is, in my opinion, a discernable difference between the parents in terms of their capacities to attend to the children’s emotional needs. There have been a number of examples where the mother has evidenced incapacity to understand the impact upon the children of her words to them. I refer particularly to my determination that the mother clearly told J that she thought he had a “mental condition” which needed treatment. I refer to the words of the mother to the children, as referred to earlier in these reasons, that she might “kill herself”. I am unable to determine why the mother has this incapacity in terms of understanding whether it is driven by frustration or hurt or anger.
The mother has given evidence about involving the police in the dispute between the parties about the children. She had on the 11th May 2007 called the police to her house and sought their assistance in retrieving O from the father’s house. She agreed the involvement of the police in the retrieval of O would have been traumatic for all three children.
There is a further issue about the mother’s capacity to control the children. It seems she is quite powerless with them when they become determined about a certain course of action such as wanting to go to their father’s house whilst they are in her care. If the mother refuses to facilitate this request then the children simply run away. This, of course, exposes them to danger.
The children do not on occasions respond to the mother’s attempts to discipline them. M refuses to go to his room for time out. J, it seems, is becoming more compliant however, it is likely to change depending on other matters in play at the time.
The recent evidence of the parties given on the 1st April this year further evidences an impact on the children of the mother refusing to take M on a holiday with the other two children. The mother’s motivation in refusing to take M are understandable on one level however, the consequence to the children of that decision may well have been to make the relationship between M and J highly conflicted.
The father’s evidence confirms that in 2006 and 2007 he experienced difficulty in having the children attend school regularly. This illustrates a degree of incapacity in a very important part of the children’s lives. I accept that in 2006 and 2007 there has been an unacceptably high degree of absenteeism for the children. Some of that absenteeism is related to these proceedings and to the children attending upon therapy. In the circumstances of this case I would have no confidence that the mother would have had or has a greater capacity to ensure school attendance.
The father gave evidence about his health. He said he has suffered from depression and at the time of the hearing was continuing to receive treatment for depression. At one time in about March 2004 the father obtained a letter from Dr N saying that he was not fit to give instructions to his solicitors. It was this report which caused the interim orders operative at the time (which provided for the children to spend time with the father) to be suspended. The father’s depressive condition did not prevent orders being made by Rowlands J for the children to spend time with their father. There is no evidence before me to suggest that the father, properly supervised by a medical practitioner, would be unable to properly care for the children. I am satisfied that the father has shown a responsible attitude towards his health and has voluntarily sought assistance from his medical practitioners when he felt depression taking hold of him.
(g) the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
There is nothing about this consideration which favours one parent’s proposal over the other. The children could benefit from each parents input in the future.
(h) if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This is not a consideration in this case.
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I have largely dealt with this consideration in other parts of this judgement. I conclude by saying that in my view each of the parents has in various ways failed to act as a responsible parent. There are examples throughout the evidence which are obvious and do not need to be highlighted here.
(j) any family violence involving the child or a member of the child’s family
Apart from the question of inappropriate corporal punishment being used by each parent there is nothing else to consider under this heading which has not otherwise been dealt with elsewhere in these reasons.
(k) any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There are no Family Violence Orders operating in this case.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In this matter I consider that final orders should be made. The interim orders made by Justice Rowlands have not changed the parents’ behaviour in any way. The continuing conflict between the parents associated with the continuation of legal proceedings in this court has just continued the children’s exposure to their parents’ conflict.
(m) any other fact or circumstance that the court thinks is relevant
There is no other fact or circumstance to be dealt with here.
Section 60CC(4) and (4A)
I have dealt with the matters required to be addressed by this subsection in other parts of these reasons. I find that each of the parents has probably contributed to the circumstances which have lead to the children not spending time with their mother with the frequency which is generally regarded by this court as acceptable or optimal. I have referred to some of the events which have been covered by the evidence dealing with the circumstances of the children post separation.
The question of financial support for the children has not featured highly in the hearing. The parties have limited financial means. The property orders recently made by the court see the mother in a better financial position to that of the father who remains an undischarged bankrupt.
Determination Of The Identified Issues
(a) Has the father alienated the children in their relationship with the mother?
The concept of alienation of children’s relationships with their parents has become almost a science of its own topic. Much has been written about it by experts. This is not the case to delve into that research.
I conclude that the children, to at least some (and possibly varying) degree, has been alienated from their mother. I do not accept that the father has deliberately caused this result. I conclude it arises from all of the circumstances surrounding the children’s parenting since the separation and possibly before the separation. I accept the evidence of Ms H in relation to this matter. It seems to me that at least the following matters have contributed to the circumstances.
a)The mother’s inability to control and discipline the children. In relation to this I accept the father’s evidence that prior to the separation the mother physically chastised J in an unacceptable manner.
b)Perhaps some degree of overindulgence in an emotional sense by the father.
c)The inability of the parties to properly communicate.
d)The general ongoing displays of hostility between the parties to which the children have been exposed.
e)The dynamic in the family where T and C became estranged from the mother post separation but at the same time continued a close and committed relationship with the three children of the mother and father.
f)The particularly close and to some degree possibly dependant relationship between T and O which the mother could not support in any tangible way.
g)The ongoing fear that the mother had that the father would alienate the children from her.
h)The failure of each party to take responsibility for the appalling circumstances they had created for the children.
Since March this year J has taken up residence with the mother and appears to have very little contact with his father. This then raises the possibility that he has now been alienated from his father.
(b) Does the mother have the parenting capacity to control the children whilst they are in her care? (this to include a consideration of discipline in each parties house)
I conclude that the mother does not have the capacity to properly control the children. The relationship between the mother and the children has now reached a stage where I think they control her more than she controls them. I also find there is a degree of obstinacy in the approach of the mother to her children. She allows circumstances to arise where she issues ultimatums and when they do not work she appears to have no strategy. The children know they can defeat the mother by simply running away from her to their father which they have done on many occasions. Although the mother has undertaken courses to assist her with the parenting the capacity to parent these children has not improved very much.
The mother holds the view that her parenting of the children is not supported by the father and is actively undermined by him. Whilst I accept that the father may have undermined the mother’s parenting of the children to some extent it seems to me to be more likely the product of indiscretion by the father by exposing the children to his criticism of the mother.
I accept that the father has modified his approach to parenting the children in that he is now supportive of the mother and he appears to have more insight as to the impact on the children of observing open conflict between the parents.
The orders made by Justice Rowlands injuncted the parties from using corporal punishment on the children. This must have had an impact on the mother’s ability to control the children if it was her principal and most effective form of discipline during the marriage. The injunction was entirely appropriate.
It seems to me likely that the mother will continue to have difficulties controlling the children at least into the foreseeable future.
In light of the change in residence for J since March 2008 I need to consider whether such circumstance changes any earlier conclusion that I have reached about the mother’s capacity to control the children whilst they are in her care. I think it is unlikely that her parenting capacity in this area has changed. I think it is probable that J will remain reasonably compliant with her for as long as it suits him. There is little evidence to suggest that the core element of respect and support for his mother has changed for J.
(c) What is the capacity of the parties to be able to communicate at a level which would allow them to properly participate in an equal shared parental responsibility order?
This is dealt with under Issue “(e)” below.
(d) Has the father failed to act responsibly in relation to the children’s school attendance?
The evidence satisfies me that during 2006 and 2007 the children have missed a considerable amount of schooling. During most of this time the father has been principally responsible for having them attend school. There are some explanations for the non attendance connected with visiting the Independent Children's Lawyer, attending at therapy or counselling, and some ill health. The father has also explained the non attendance at school by O following what appears to have been a substantial rift in the relationship between O and her mother. All this does not, however, completely answer the non attendance at school for the children and I conclude that the father has been less than attentive to the children’s requirement to have consistent schooling. It seems to me at least possible that some of the reason for this may have been the father’s depression and/or over indulgence of the children thus allowing them to determine, at least to a certain degree, whether they should attend school or not.
(e) Do the parties have the capacity to successfully manage an equal shared parental responsibility order.
In her affidavit filed the 14th February 2007 the mother detailed complaints about the manner in which the parties communicated. The father also complained in his affidavit of the 27th February 2007. Each complains that the other will not properly communicate about the children. Each highlights aggressive, rude or insulting communication by the other.
This was the subject of oral evidence as well as affidavit evidence.
Although I am satisfied in the past both parties have been guilty of inappropriate communication with the other, I think it fair to say that I now hold the view that each party is at least trying to change that. I am sure in the future there will be occasions when the parties fall into argument and inappropriate communication, but I am now satisfied that each will endeavour to avoid that.
The mother provided to the court, as requested by me, a group of email communications between the parties for the period 1st June 2007 to 26th June 2007. There were also extracts from the diary which she kept. The communication evidenced in the emails and the diary, do illustrate a new level of communication between the parties but also evidence a continuing level of frustration between them.
The father’s affidavit filed in court on the 26th June 2007 and marked as exhibit H9 provides details of the time which the children have spent with their mother during June 2007. It also details failed periods of time which the children have spent with their mother. I accept the father’s version of the facts surrounding the time the children spent with their mother and the failed times. To the extent that it is not inconsistent with the father’s version I accept the mother’s evidence in relation to these same events. The two versions largely compliment one another and really represent each party’s perspective of and involvement in the events.
It seems to me that the month of June 2007 certainly heralded some changes for the children and their parents which in the circumstances of this family were important. The changes were by and large positive changes. The rigidity of the mother’s approach is still in evidence however, there has been a softening in same. The father’s inability to hide his frustrations with the mother is still evident however, there has been indication of increased tolerance and willingness to accept the mother “the way she is” and try and work with that. An illustration of the father’s frustration is to be found in paragraphs 37, 38 and 40 of the father’s affidavit which became exhibit H9 in the case.
I conclude that there is still too much conflict between the parties to put in place an equal shared parental responsibility order; however, a modified form of such order would be appropriate.
(f) Will the father be able to provide continuity of housing for the children into the future if they principally live with him?
The parties each occupy rented premises. The father occupied the former matrimonial home until the 14th March 2007. He now lives at Y. The former matrimonial home had been owned by the father and sold to the X School with an arrangement for the property to be rented by the father thereafter. The father fell into arrears of rent and school fees to a point where in excess of $40,000 was owed to the school. The property was also at the point of being unsuitable for human occupation by virtue of the fact that the hot water service had broken in about November 2006. Photographs taken of the property and tendered in evidence suggest that the house was messy and unclean. The pool was not operating and the water was putrid.
It is contended by the mother that the father can not be trusted to provide secure, appropriate and clean premises for the children to live in.
The evidence suggests to me that the father does not attend to the cleanliness of his accommodation with same dedication that the mother may apply. He gave evidence that he approached the cleaning of the house by applying himself to that task about every 2 to 3 weeks. He agreed that the house did look similar to some of the photos in 2007. He said the ironing accumulated and the dining table also accumulated clothing.
Following the father leaving the former matrimonial home he rented premises at S until the later part of 2007. Those premises were sold by the Lessor and the father was required to vacate the premises. He has now moved to a five bedroom accommodation in Y.
I do not accept that the father will allow the children’s residence which he provides to become unhealthy for them to occupy. He is receiving assistance from his family to meet rental. I think it is most unlikely that the owner of the house now occupied by the father would tolerate arrears of rent to the same extent that the X School did in relation to the previous property occupied by the father and the father will know that. There is therefore an imperative to keep the rent paid in the current property which was obviously not required in the former occupation.
(g)What are the parties’ proposals for the future schooling of the children?
The father has enrolled O at S Primary School whilst he lived there. This school was walking distance from his then accommodation. He says that he elected to change the school for O after she was resisting school at W Public School. He said she claimed she was being teased by her close friends. The father has obviously accepted this claim. The Independent Children's Lawyer was opposed to the change of school for O.
I conclude that it probably was the correct decision to remove O from her previous school and start her at S Public School. It seems to me that the children have become embroiled in the parents’ conflict associated with that school. The evidence is that the parental conflict has infiltrated the children’s involvement in W Public School. I have no doubt that the children were aware of the school authorities’ exposure to the parental conflict and the children’s behaviour at school I think is likely to have been to some extent driven by what they perceived as an expectation on the part of their parents and the school authorities.
Both M and O now attend T Public School which is situated close to the father’s residence. No complaint is raised about that school by the mother.
In June 2007 the mother would have liked O to return to W Public School to complete her primary schooling. Given the time that has now passed since O attended W Public School I must presume that the mother may well allow O to remain at T Public School if the mother is able to manage all the travel involved in having three children attend two different schools should they reside with her.
J’s schooling had been changed at the end of 2006 when it was recommended that he repeat the year. J attends N Public School. Although the father is happy with J’s attendance at this school it seems good sense for him to change schools at some stage if the parties are unable to manage the practicalities of transporting him to and from school. It also seems that the children will attend public high schools due to the relative impecunious nature of their financial circumstances. Perhaps some benefactor relative may offer to pay for their attendance at private schools but that seems unlikely at this time. The mother proposes J continue his primary schooling at N School.
(h)How will each parent support the children?
Both parents find themselves in difficult financial positions. The father is now an undischarged bankrupt. The mother is reliant on payments from the government and assistance from her family. The father is reliant on government benefits together with financial support from his family. The mother will have the benefit of a property order which has been made in her favour; however, I expect she has a large liability for legal fees associated with the proceedings in this court. I think it most unlikely that the mother will be able to retain sufficient funds to purchase a home for her in the area where she now lives.
I am satisfied that each party will have the capacity through their resources to support the children whilst they are in that parent’s care.
Section 61DA
In order to be able to conduct a workable equal shared parental responsibility order there has to be a reasonable capacity for the parents to firstly communicate and secondly to be able to agree about important matters relating to the care of their children and their children’s future. These parents do not have those ingredients as part of their parental relationship. The only workable order I can think of is to make the father responsible to finally determining matters relating to the children’s future and therefore to have sole parental responsibility. He should however consult with the mother about important decisions relating to the children’s future and if possible reach consensus with her. If this is not possible then the final decision would rest with him.
Section 65DAA
This section applies if I am proposing to make an equal shared parental responsibility order. I am not proposing to do so. I will here consider what the children should spend with each of their parents.
If the relationship between the parents was cooperative and they had a reasonable degree of communication then I would be looking at considering an equal shared time order for the children. The parents live reasonably close to each other. There has been no violence between them. They are intelligent articulate adults. I would urge them to work towards such a result if it can possibly be achieved. I do think the parents are trying to be more supportive of each other.
The children should spend such time with their mother as can reasonably be achieved in this case. They obviously feel at this time that being able to spend extended periods of time with their mother is not tolerable. Even overnight can sometimes by a problem for them. The father should work with the children and the mother to achieve a situation where the children spend alternate weekends and half school holidays with their mother as a start point. They should also try to spend one overnight period with their mother in the off week.
Conclusion
As stated earlier the children have found it not possible to spend any extended periods of time with their mother. There has been some advance in this position since June last year for both J and O. Since March this year J has been living with his mother and spending virtually no time with his father. As I have said earlier the parties were scheduled to see the UNIFAM agency on the 2nd April 2008.
Some of the reasons for the children not wishing to spend time with their mother have been canvassed earlier in these reasons. I have a concern that the mother has insensitivity to the impact upon the children of some of her words. The incident which occurred with M and his overhearing the conversation between the mother and Ms Y and the conversation between the mother and J where J said his mother told him he had a “mental problem” are examples of this insensitivity. I should say that I do not accept all of the evidence of the mother about what was said by her and to her during each of these incidents. Both were very traumatic for the children. I find their actions following these incidents are more in keeping with the explanation that the mother had said words to the effect as claimed by the children than the mother’s version of what occurred.
The mother’s inability to control the children makes it impossible to make an order for them to live with her. Despite the recent change of residence for J in my opinion, in the long term, the children will not stay with their mother even if I were to order they have no contact with their father (something I would not contemplate). The children appear to have little respect for their mother. They have learnt that they can successfully challenge her authority.
The children appear to respond to their father’s authority in most respects. The mother would say that they do not respond to his requests that they spend time with their mother. This complaint has proved largely inaccurate for J and O during the period following June 2007. The evidence suggests to me that the father has not told the children they must spend time with their mother. Rather he has encouraged them to do so whilst at the same time giving them an understanding that this is something which they can have a say in.
Like many cases it is difficult to determine where the real truth lies in this case. Are the children merely reacting to their parents in a manner which they feel they have to in order to survive in this family? The answer is probably yes to some extent. Nonetheless that is the situation which the court has to deal with and make orders which are in the best interests of the children.
When I made the orders on the 1st June 2007 I did so with the view of giving the father the controlling hand on the time and the circumstances in which the children spend with their mother. Part of the reason I made those orders was to see if it became more tenable for the children to spend time with their mother only in circumstances approved and arranged by the father. The evidence suggests to me that this has made a difference to the children. It has reduced the conflict between the parents and thereby reduced the conflict to which the children were exposed. I also thought that if the father was involving the children in the dispute between the parents in order to gain their emotional support in his battle with the mother there would no longer be the necessity for him to do so if he effectively held all of the power in the arrangements.
It seems to me that these children desperately need a break from the conflict between the parties. At this time so long as all of the decision-making rests ultimately with one party I think there is less likelihood of open conflict between the parents.
Given all that has been said in these reasons I conclude that the only workable arrangement for the children which is likely to relieve the pressure on them from their parents is to continue the idea commenced with the orders of the 1st June 2007. That is, that the children live with the father and spend time with the mother as arranged between the parties and sanctioned by the father.
This proposal is broad enough to cover the circumstance where the father concludes that the time which one or more of the children should spend with their mother is to live with her full time. Thus so far as the present circumstances of J are concerned the father should determine if or when J should return to live with his father.
J is now 12 years of age. Within the next two years he will reach an age where the court would not in the normal course make orders in relation to the parent with whom he should live. I fear that unless these parents can change J’s circumstances significantly he faces a very problematic future.
The Orders
The parents have used corporal punishment on the children in the past. They are now at an age where corporal punishment, in my view, is inappropriate. I propose to order that each party be restrained from using corporal punishment with the children. The parties were restrained by the orders of Justice Rowland from using corporal punishment on the children. That injunction has continued until the making of these orders and I propose that such injunction continues.
I conclude that there is still too much conflict between the parties to put in place an equal shared parental responsibility order, however, a modified form of such order would be appropriate. I propose to make the father solely responsible for future decisions necessary to be made in relation to the children’s welfare; however, I will require him to consult with the mother prior to making any such decision. This is to apply to J even though he may be living with the mother at any given time.
I have considered making an order for the court orders to be supervised by a Family Consultant of the court for a period of 12 months and then call for a report. I have considered continuing the appointment of the Independent Children's Lawyer for a period of 12 months. However, I conclude that the best thing for the children in this matter is to finalise completely any association with court proceedings and encourage the parties to work outside of the court system.
Given the events of March this year when the mother removed J from the father’s residence it is important that she not be able to do so in the future. In so doing the mother ignored the orders of the Court. The father had not sought to enforce the orders of the Court. The damage done by the mother in removing J from his father’s care has, in my opinion based on all the evidence in this case, the potential to have severe ramifications for J’s development into adulthood. Unfortunately, as I have indicated earlier, I conclude the mother has been driven by her own desire to defeat the father in the battle over the children and that she will do so at any cost to the children. I do not mean to imply that the mother would deliberately hurt the children but rather that she has little insight as to the consequence to the children of many of her actions which have affected the children. I have given examples of this earlier in these reasons.
I certify that the preceding two hundred and sixty-three (263) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Le Poer Trench.
Associate:
Date: 7 April 2008
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Remedies
-
Procedural Fairness
0
0
1