Hilder and Jessup
[2017] FamCA 4
•13 January 2017
FAMILY COURT OF AUSTRALIA
| HILDER & JESSUP | [2017] FamCA 4 |
| FAMILY LAW – CHILDREN – Best interests – Where there are three children aged 16, 11 and nine – Where the children live with the mother and spend no time with the father – Where the parents agree that the mother should have sole parental responsibility for the children except in relation to their names – Where there has been family violence perpetrated by the father – Where two of the children have intellectual disabilities and are home schooled by the mother – Where there would be some benefit for the children in developing a meaningful relationship with the father but where that would involve risk – Where the mother has a genuine fear of the father – Where the mother’s anxiety about the father is properly based – Where there is a need to protect the mother from paternal intrusion – Where the risks involved with the children having any contact with the father are too great and do not align with their best interests – Orders made for the mother to have sole parental responsibility for the children except in relation to their names – Orders made for the children to live with the mother and spend no time, have no contact, nor communicate with the father. |
| Family Law Act 1975 (Cth) – s 4AB, s 60B, s 60CA, s 60CC, s 60CC(2), s 60CC(2A), s 60CC(3), s 61C, 61DA, s 65DAA. |
| Goode and Goode (2006) FLC 93-286 MRR v GR (2010) 240 CLR 461 |
| APPLICANT: | Ms Hilder |
| RESPONDENT: | Mr Jessup |
| INDEPENDENT CHILDREN’S LAWYER: | Carter & Ferguson Solicitors and Attorneys |
| FILE NUMBER: | WOC | 575 | of | 2014 |
| DATE DELIVERED: | 13 January 2017 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Johnston J |
| HEARING DATE: | 28, 29 & 30 November and 1 & 2 December 2016 |
REPRESENTATION
| SENIOR COUNSEL FOR THE APPLICANT: | Mr Schonell, SC |
| SOLICITOR FOR THE APPLICANT: | Rossi Simicic Lawyers |
| COUNSEL FOR THE RESPONDENT: | Mr Millar |
| SOLICITOR FOR THE RESPONDENT: | Hilton King Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Eldershaw |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Carter & Ferguson Solicitors and Attorneys |
Orders
The following parenting orders are made in relation to the children B born on … 2000, C born on … 2006 and D born on … 2007.
All previous parenting orders are discharged.
Parental Responsibility
The mother shall have sole parental responsibility for the children except in relation to the children’s names.
Spend time and communication with
The children shall spend no time, have no contact, nor communicate, with the father until they each attain the age of 18 years.
Live with
By consent, the children shall live with the mother.
Passports and travel overseas
By consent, the mother is permitted to apply for passports for the children without the consent of the father. The appropriate Commonwealth Government officers are respectfully requested to give every assistance to the mother in this regard.
By consent, the mother is permitted to travel overseas with the children on holiday from time to time without the father’s consent.
Restraints
By consent, the father be restrained by injunction from:
(a)communicating with, or contacting by any means, including through any third person, the mother or any of the children; and
(b)approaching the mother and/or children at their place of residence, school and any other institutional place of regular activity or engagement should he become aware of same; and
(c)contacting by any means, including through any third person, any place of education or residence of any of the children; and
(d)removing or attempting to remove any of the children from his or her place of education or residence or taking or attempting to take possession of any of the children; and
(e)without admission, harassing, molesting, stalking, threatening to cause bodily harm to the mother, any of the children or any person in whose care any of the children may be.
Other
All exhibits are released.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Hilder & Jessup has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: WOC 575 of 2014
| Ms Hilder |
Applicant
And
| Mr Jessup |
Respondent
REASONS FOR JUDGMENT
Ms Hilder (“the mother”) and Mr Jessup (“the father”) commenced cohabiting in November 1997. They separated in 2014 although the precise time of separation is in issue.
There are three children of the marriage namely B born in 2000, C born in 2006 and D born in 2007. Accordingly, they are 16, 11 and 9 years of age.
The parents have been unable to agree on parenting arrangements for the children. They have asked this Court to determine these matters for them. Also, they had been unable to agree on a property settlement. But to their credit, during the course of the hearing they resolved their property dispute and final property orders were made by consent.
Applications
The mother is seeking parenting orders to the following effect:
·That she have sole parental responsibility for the children;
· That she be permitted to apply for Australian passports for the children without the consent of the father;
· That she be permitted to travel overseas with the children on holiday from time to time without the father’s consent;
· That the children live with her;
· That the children have no contact or communication with the father until they are 18 years of age; and
· That various restraints be ordered against the father from contacting or approaching the children.
On the other hand the father seeks orders to the following effect:
· That the mother have sole parental responsibility for the children except in relation to the children’s names;
· That the children live with the mother;
· That the father spend time with the children once every two months on a Sunday from 10am to 2pm supervised by V Contact Centre commencing on the second Sunday after these orders are made;
· That the Independent Children’s Lawyer (“ICL”) nominate a psychologist specialising in child psychology to be present during the first occasion of time spent pursuant to the above order;
· That the father request V Contact Centre to provide to the mother’s solicitor and the ICL written reports in relation to the time spent by the father with the children and the father shall meet the cost of such reports and of the supervision by V Contact Centre; and
· That the mother authorise the Board of Studies and any school which any of the children attend to forward to the father any school reports in relation to any of the children to the father’s address at E Street, Suburb F, NSW.
This application by the father reflects considerable concession from the orders sought by him at the commencement of the hearing. At that time, in effect, the father was seeking time to be spent with the children on a gradually increasing basis building up to unsupervised time each alternate weekend overnight, half school holidays, as well as special days.
It is to the father’s credit that after hearing much of the evidence, and considering the complexities in this case, he changed his requirement to parenting arrangements which would enable the children only to have an identification relationship with him and which would enable him to receive reports about their health and education.
The Independent Children’s Lawyer supports the making of orders in the terms as sought by the mother.
Annexed at Annexure “A” to these Reasons are the detailed orders sought by each of the parties for completeness.
Credit
The Mother
The mother was forthcoming and responsive in her answers to questions in cross-examination. I regard her as an impressive witness. It is true that she was unable to say anything positive about the father. She gave me the impression that this was because of her fear of him and the manner in which he had treated her.
The only area where I have some doubt about the mother’s truthfulness is in relation to the petrol incident to which I shall refer below.
Generally I regard the mother as a witness of the truth. Where her evidence conflicts with that of the father I would prefer that of the mother.
I note that my view in this regard also dovetails with that of Dr G. During his cross-examination, when asked whether he believed what the mother said, he said that his overall impression was that the mother’s narrative linked better with his own observations of her and the father and the relevant material, than did the father’s. He said that the only controversial area where he had reservations about the mother’s version was that she said that it was the father who was pursuing a reconciliation whereas he wondered whether in fact the mother, at times of loneliness, might have given some encouragement in this direction to the father.
Ms H
Ms H is the maternal grandmother. She was forthright and responsive in her answers to questions. Ms H conceded that she would be unable to provide the children with a positive view of their father. She said that she found herself unable to say anything positive about the father.
I regard Ms H as a witness of the truth.
Mr H
Mr H is the maternal grandfather. He too was responsive in his answers.
I regard Mr H as a witness of the truth.
The Father
The father was responsive in his answers to questions during cross-examination. And he made many concessions, particularly in relation to occasions of poor treatment by him of the mother.
He gave the impression of a person trying hard to be seen to be contrite and remorseful. He said that since undertaking the “Taking Responsibility” course he was more appreciative of the effect of his poor behaviour on the mother.
It is encouraging that the father has undertaken the course and that he has said he has a better understanding but, in my view, the father has endeavoured in his evidence to minimise his acts of violence towards the mother.
I do not accept his version of the petrol incident referred to below and prefer the mother’s account as corroborated, at least in part, by each of her parents, although I cannot accept the mother’s assertion that the father held a burning piece of paper. And I do not accept the father’s denials that he acted physically against the mother. I prefer the evidence of the mother and her mother about this.
Generally, where the evidence of the mother and/or her parents is in conflict with that of the father, I prefer that of the mother and her parents.
Dr G
Dr G is the child, adolescent and family psychiatrist appointed as the single expert in these proceedings. Dr G has prepared a detailed report. He was cross-examined in considerable detail about the report and matters relevant thereto.
Where I have referred to Dr G’s opinions and observations I accept these.
Mr I
Mr I is the father’s treating psychologist. He has been assisting the father for more than 18 months. The father was referred to Mr I by his doctor for assistance in addressing symptoms of anxiety and depression.
There were two affidavits prepared by Mr I annexing reports by him about the father. These became the subject of objection on behalf of the mother. I admitted only part into the evidence being matters relating to Mr I’s treatment of the father as distinct from Mr I’s opinion about other matters more broadly related to these proceedings which have become the subject of the report by Dr G as single expert. Mr I was not cross-examined and that part of his evidence which was admitted comes in unchallenged.
Dr J
Dr J is a clinical psychologist to whom the father was referred for “assistance in addressing (Dr G’s) Report”. Dr J also prepared an affidavit annexing her report. Objection was taken to the whole of her report. I admitted only that part which reported on the psychometric testing of the father by Dr J. Dr J was not cross-examined.
Background
The father was born in 1973 in Asia. The mother was born in 1974 in Australia.
In 1995 the father migrated to Australia.
In 1996 the mother commenced working full time.
In November 1997 the parties commenced cohabitation. The father was studying in Australia on a student visa.
In 1998 the father obtained a temporary visa to reside in Australia for two years. He also commenced studying at TAFE and for a degree at K University.
In 1999 the mother commenced full time study for a degree at L University.
In June 2000 the parties travelled to Asia for two weeks to visit the father’s family.
In 2000 B was born.
In the period between 2000 and 2004 the mother worked for between two and three days per week with the maternal grandmother provided assistance with child care.
In approximately 2001 or 2002 the father wanted to film the parties’ sexual intercourse. The mother agreed to appease the father. It is the mother’s contention that the father retained copies of the footage.
In January 2002 the father became an Australian Citizen, relinquishing his Asian citizenship and passport.
In 2005 for approximately one year the father cared for B one day per week while the mother worked.
In 2006 C was born. Since this time the mother has not been in paid employment.
From 28 May 2006 to 9 July 2006 the father went on an around the world trip. The mother cared for the children.
On 25 September 2006 the father sought information from his brother in Asia about how to obtain passports for the children after the mother said she wanted to separate. The mother believed that the children would be taken away so she remained with the father.
In 2007 D was born.
In 2008 the mother became concerned about C’s language development. She organised for him to attend Ms M, speech pathologist. Both C and D attended with Ms M until 2015.
In 2008/2009 the father had an affair with a woman in Asia.
In 2010 the mother found a covert video device installed in the parties’ bedroom.
In 2010 the paternal grandparents visited Australia. They stayed with the paternal uncle.
In January 2012 C commenced attending school but he was struggling to cope and had many absences. By the end of his first year at school it had become obvious to the mother that C was having difficulties and she decided to home school him from the following year.
In January 2013 the mother commenced home schooling D after she had observed that he was experiencing similar difficulties.
In early 2013 the mother found listening devices in the lounge room and bedroom of the family home and spyware technology on her computer. In 2013 she found a camera set up at the rear of the property.
In 2014 the mother and father separated. The exact date of separation is not agreed. According to the mother, from March 2014 until July 2014 they lived separately under one roof.
On 7 July 2014 the mother commenced proceedings in the Federal Circuit Court at Wollongong about property settlement only.
On 21 July 2014 the father vacated the former matrimonial home. From this time the father spent time with the children from time to time, at times unsupervised until approximately October or November 2014.
I early 2015 the father spent time with the children for C’s birthday. Since this time he has not spent time with the children, save for the assessment with Dr G on 29 April 2016.
On 16 January 2015 the mother made a complaint to the police in relation to the father’s treatment of her. The police sought issue of an Apprehended Violence Order (“AVO”) against the father for the protection of the mother and the children. On 30 January 2015 the AVO was made final at N Town Local Court.
On 27 April 2015 the father filed an Amended Response in which he sought parenting orders.
In July 2015 registered psychologist Ms O prepared reports on C and D in relation to their cognitive abilities. Ms O reported that C has a moderate level of intellectual disability and D has a mild level of intellectual disability.
On 6 August 2015 interim parenting proceedings were heard by Judge Altobelli at the Wollongong Federal Circuit Court.
On 28 August 2015 interim orders were made providing for the children to live with the mother and spend no time with and have no communication with the father.
On 17 September 2015 the father filed an appeal in relation to the interim orders. He also filed an application for expedition which was later dismissed. The father later withdrew his appeal.
On 21 October 2015 consent orders were made that the father be permitted to have written communication with the children once per calendar month and on certain special occasions. The father has sent the children some letters and cards. The mother has perceived the communications to be inappropriate and has not given these to the children.
On 28 January 2016 the proceedings were transferred to this Court at Sydney.
On 24 May 2016 the report of Dr G, single expert, was released.
The final hearing was listed for 28, 29 & 30 November and 1 – 2 December 2016. On 30 November 2016 orders for property settlement were made by consent. On 2 December 2016 judgment in relation to parenting issues was reserved.
Family Violence
Family Violence is defined in s 4AB of the Family Law Act 1975 (Cth) (“the Act”) as follows:
4AB Definition of family violence etc.
(1) For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
(2) Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
Sub-sections 4AB(3) and (4) of the Act set out how a child might be exposed to family violence as follows:
(3) For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
(4) Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a) overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b) seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family; or
(d) cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family; or
(e) being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family.
To the father’s credit, he concedes that the parties’ relationship was characterised by domestic violence. But there is issue between the parties about the nature and extent of the violence.
The mother alleged that there was considerable violence. Her allegations included the following.
That the father physically assaulted her on three or four occasions before he left the home. The father denied ever physically assaulting the mother.
The mother said that the first occasion that the father physically assaulted her was when D was a baby, in approximately February 2008. She said that D was in what I understand must have been the parents’ bed and he had been crying in the middle of the night. The mother said that D was screaming so she put her hand out to get D and that the father grabbed her hand, squeezed it and bruised it.
The mother’s mother said that she saw this bruise on the mother’s hand when D was a baby. She said that she asked the mother what happened (to her hand) and that the mother replied “[D] was crying and [Mr Jessup] wouldn’t give him to me, he squeezed my hand as I reached for [D]”.
The mother said that the second occasion was in approximately 2010. The mother said that if she refused to have sex with the father he would often become very angry with her. She said that on this occasion, after she refused to have sex with him, she went to the bathroom to get away from him. She said that he followed her into the bathroom and said “You’ll do what I want” and he put his hands around her neck and tried to choke her. The mother said that after he let her go he went downstairs and punched a hole in B’s bedroom wall. Then he left the house. The father denied this. The mother said that she did not report this to the police.
The mother’s mother said that she saw the hole in the wall and asked her husband to repair it. The mother’s father said that he saw the hole and that in his experience of professional building concluded that the gyprock had been punched in.
The mother said that on a subsequent occasion in 2010, at the time B was going through puberty, the father tried to choke her. The mother said that the father just walked into B’s room at a time when B had just come out of the shower. The mother said that she said to the father that he needed to give B privacy and that he could not just go into her room. The mother said that he put his hand around her throat and said “You think I’m a pervert”. The mother said that she was scared and did not say anything.
It is the case that the mother made a statement to the police in January 2015 in support of an application for an AVO. In this statement the mother referred to the incident when she said the father punched a hole in the wall. In this statement the mother also referred to what I shall describe as the “petrol incident”. I shall refer to this again below.
The mother was cross-examined about this statement. Counsel for the father suggested that this was her opportunity to inform the police about all relevant complaints she had about the father’s alleged mistreatment of her. Yet she made no mention of two of the alleged physical assaults about which she was now complaining in these proceedings. The mother said that she found it very difficult to raise these matters with the police.
The mother also made numerous other allegations about the father’s violence and controlling behaviour.
She said that the father video taped the parties having sex. The mother said that the father has threatened to reveal such video tapes to other persons which the mother said causes her great shame and embarrassment.
The mother said that in approximately 2010 the parties had an argument and the father was very angry. She said that he went to the shed and returned to the house carrying an axe. She said that he threatened to destroy her wooden hallstand, which her mother had made for her, with the axe. The mother left the room and went outside with the boys.
After separation but whilst still living under the same roof, the mother received letters and text messages from the father saying things like “how will you cope when the kids are with me sailing” or “how are you going to cope when the kids are flying with me” or “how will you cope when the kids are with my parents alone …”.
In 2011 the father disappeared from home one morning taking C with him. When they had not returned by 5.00 pm the mother rang him. She said that he said “We are just boarding the plane to Queensland”. She said they returned at 7.00 pm.
The mother interpreted all these statements by the father as threats. In my view, this was the meaning intended by the father.
The mother said that between 2011 and 2014 the father said to her many times that he was going to take the boys out of the country and that in 2014 she overheard him say to all three children that he was going to take the boys out of the country on a boat.
On 18 May 2011 the mother received an email from the father attaching an article from the Sydney Morning Herald headed “Obsessive Love Lost: Why Some Fathers Kill”. The article was about estranged fathers killing their children to punish their partners. The mother interpreted this as a threat to her that the father would harm the children if she was to separate from him.
In an email to the mother dated 26 July 2011 the father described himself as an aggressive and selfish person. Included in the email was “pls do not challenge my aggressive part … coz I myself don’t know what that part is capable of … may be everything … it always good to tame the devil u know … than the devil u don’t know”.
On an occasion in 2012 the mother refused to have sex with the father. She informed him that she was exhausted and just wanted to go to sleep. The mother said at 10.00 pm the father played a recording of them having sex at full volume in the lounge room.
The mother said that on many occasions during the daytime the father would endeavour to touch her in a sexual way and she would resist. She said that she was scared of him and often had to scream to bring an end to such conduct.
Counsel also raised with the mother the fact that she makes numerous complaints in these proceedings against the father to the effect that he forced himself on her sexually and otherwise engaged in unwanted sexual conduct towards her. Counsel suggested to the mother that because she made no complaint about these matters to the police at the time of preparing her statement, this tended to suggest that there was no truth to such allegations. The mother said that she did not want to talk about the sexual matters. She said that it was a male police officer who was taking her statement. She said that she was finding it difficult to talk with counsel about these sexual matters. She said that she did not want to talk to anyone about these sexual matters.
I accept the mother’s evidence about this. At the time she was being asked by counsel about these matters the mother became noticeably distressed. I considered it to be genuine distress. There was no undue hesitation by her in giving her answers. The father said when he was being cross-examined about sexual matters that the mother never mentioned sex outside the bedroom.
The mother said that in February 2014 when she informed the father that their relationship was over, he poured petrol over himself. She said that she did not see him actually pouring the petrol but when she came into the kitchen he was standing in the middle of the kitchen dripping wet with petrol with a petrol tin on the floor next to him. She said that he was holding a burning piece of paper and said “I’m protesting as a father for my family”. She said the children were upstairs and she called them and left and went to her mother’s house where they stayed for a couple of nights before returning home.
The father said that the mother has exaggerated this incident. He gave a different version as follows. In late 2012 or early 2013 he was in the backyard filling the lawnmower with petrol. The mother was getting ready to visit her mother. The children were sitting in the car waiting to depart. He went into the kitchen. He lifted the petrol container he had been using to fill the lawnmower. He said “Hey [Ms Hilder] maybe I should have a silent protest like the monk on the video”. He said this was referring to a video they had watched that morning of a monk on fire protesting about Chinese occupation of Tibet. Some of the petrol splashed onto his T- shirt and the floor as he lifted it up. The mother said “You’re being an idiot”. He mopped up the spilt petrol and the mother and children left in the car to visit the maternal grandmother. The father denied that there was any burning piece of paper involved.
When this account was put to the mother during cross-examination she maintained her account. The mother denied that this incident occurred in late 2012 or early 2013, adhering to her view that it was in 2014. She denied that the father had been filling up the lawnmower. The mother also denied that she was about to go to her mother’s and that the children were sitting in the car.
The mother’s mother said that she went with the mother to the house the next day to clean up. She said that when they arrived she could smell petrol in the kitchen. She and the mother cleaned the floor and the bench. She said she found the father’s shirt and pants in the laundry. She said they smelt of petrol and she threw them into the bin.
I must say that I prefer the account of the mother, confirmed as it is, at least in part, by her mother. But I find it difficult to accept that the father had a burning piece of paper. Given the amount of petrol vapour which would have been present, on the mother’s account, if there had been a naked flame, one would expect there to have been a fire or an explosion and there is no evidence of such.
The mother alleges that the father has made various threats to her. She said that he has put cameras in the yard to watch the children. She said that she has found listening devices which he placed in the lounge room and other parts of the house. She also said that he put a device on the computer in order to see what she was doing with the computer.
She said that around Christmas 2014 he made a comment about a father who killed his children in Darwin saying “Well that’s what happens at this time of year”. The mother informed the police that she was very concerned about this and that she would not take the children to see him after this.
The mother also said that in approximately December 2013 he held a knife to his chest in front of the boys. She said this was in response to her informing him that she did not want their relationship to continue. The father said that he was in the kitchen chopping vegetables. He said that there was a news story on television about a man keeping police at bay with a knife. He said that he said to the mother that all he had to do was to hold the knife and walk out in front of the police, and they would shoot him. He denied that the children were present. He said he never intended to harm himself.
The mother’s mother supported the mother’s allegations that the father was often very angry and screaming. She said that on many occasions when the mother telephoned her she could hear the father screaming in the background. She also described his behaviour as being in a state of “chaos”.
I shall refer to this violence again below.
Father’s endeavours to address the violence
Dr G strongly recommended that the father attend a therapist skilled in assisting adults with personality dysfunction and adults who have perpetrated family violence to discuss the concerns about the father raised in his report.
In August 2016 the father enrolled in the Relationships Australia “Taking Responsibility” program, a men’s behavioural change program. The father attended numerous sessions.
The father said that the course is for men who want to take responsibility for their pattern of abusive behaviour in intimate relationships. He said that the course has been a very powerful change program for him and an eye opener. He said that he now understands how conflict between him and the mother has potential to affect the children psychologically. He said that through the program he has been able to identify the core reason and the root cause of his personality dysfunction during conflict in his relationship with the mother.
The father has continued attending his psychologist Mr I whom he most recently saw on 19 September 2016. Mr I has diagnosed the father as having generalised anxiety disorder/major depressive episode. Mr I has continued to assist the father for this condition utilising cognitive behavioural therapy and other measures. He said that the father has responded well to this. He said that the father has continued to experience anxiety symptoms and that these had become slightly more elevated as the court hearing dates drew closer and they were heightened after the release of the reports by Dr G and Dr J. He expressed some optimism that with a further perhaps six months of treatment the father’s condition “should” reach full remission. But he also said that this was dependent on the underlying triggers of the father’s inability to see his children and these proceedings.
Mr I said that the father informed him that he posed no threat of physical harm to the children and that he would not take the children away from the mother.
Since June 2016 the father has also been seeing clinical psychologist, Dr J.
These matters were drawn to the attention of Dr G and I shall refer to this further below.
In his affidavit the father referred in some detail to the incidents about which the mother complains. He said that since undertaking the therapy and enrolling in his psychology course he has come to understand that his behaviour has been manipulative, threatening, intimidating and abusive. He said that these behaviours mainly occurred during arguments after his affair in approximately mid 2011, although he concedes that there were some incidents prior to this time. He said that he deeply regrets such behaviour and understands that such behaviour can cause long term psychological effects on the victim. He said that he has developed skills which should enable him to better manage situations of stress and not “explode in an emotionally abusive manner” during situations of conflict.
The Applicable Law
The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Act.
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·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
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·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
·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
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides 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.
Section 61DA(2) of the Act provides in effect that the presumption does not apply if there are reasonable grounds to believe that a parent of the child or a person who lives with a parent of the child has engaged in abuse of the child or another child member of the parent’s family or family violence.
Sub-section 61DA(4) provides to the effect that 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.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.
The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286 and the High Court case of MRR v GR (2010) 240 CLR 461.
Parental Responsibility
Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, because I am to make a parenting order, s 61DA(1) of the Act requires that I apply a presumption that it is in the children’s best interests for their parents to have equal shared parental responsibility for them. As also indicated above the presumption does not apply where there are reasonable grounds to believe that a parent has engaged in family violence. Unfortunately, as I have said above, this is a case where there has been family violence. So the presumption does not apply.
In any event, the father does not contest the mother’s application for sole parental responsibility except in relation to the children’s names. He does not want the mother to change the children’s names. I am not persuaded that the mother has made out any case for her having power to determine what name the children will use. They have been known by the last name Jessup for the duration of their lives and, in my view, it is in their best interests to retain this name.
Section 60CC Considerations
How the Court is to go about determining what is in the child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.
Primary Considerations
The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sub-section 60CC(2A) of the Act requires the Court, in applying these considerations, to give greater weight to the latter consideration.
Having noted these primary considerations at this point I shall return to discuss these below.
Additional Considerations – s 60CC(3)
The additional considerations are set out in s 60CC(3) of the Act. I shall discuss the relevant evidence in relation to each of the additional considerations as follows.
Sub-section 60CC(3)(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
Dr G said that B expressed relief that she did not have to decide and that the judge would do so. She said she did not want to hurt mum or dad. She said that if she was to see dad she would prefer that the judge controlled the arrangements and she would prefer to see dad on her own rather than with her brothers. This was because if arrangements were shared she would feel obliged to attend in order to support her brothers.
Dr G said that if B had a magic wand she would get the family back together. But she would not get the parents back together if they went back to arguing and she had to worry again about them separating or that “Dad might try to take us kids” and about dad when he “scared me … he intimidated you”. Dr G said that B expressed ambivalence about time with the father. He said that she said that she wanted to see dad but she didn’t, that if she did see dad she might see him on the weekends.
Dr G said that C felt that it would be best for the mother to choose rather than him. He said that if C had to choose he would choose to live with mum and to see dad sometimes to play with him.
Dr G said that D would want to choose about time with dad, he would choose to see dad all on his own to play.
Dr G said that if the Court was to find there is no significant risk associated with the children spending time with the father, then the children’s wish about such time should be respected. But he went on to say that if the Court shared his concern about risk then the children’s wellbeing and safety in that regard should outweigh their wishes. He also expressed the view that B’s happy memories of family life and the boys’ innocent disposition towards the father are as much a testament to the mother’s capacity to absorb, divert and make up for paternal failings of character, as they are an acknowledgement for paternal “in-the-moment interpersonal capacities”.
Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)
The husband’s brother Mr P Jessup said that he and his wife visited the parties regularly. He had also lived with the parties for a period. He said that he observed the father to have a close relationship with the children. He said that the children always seemed to be very happy in the company of their father. He and his wife have two children and he said that all the children enjoy spending time together.
Dr G expressed the view that the children have a close relationship with their mother which he described as an “attachment relationship”. He said that this is a relationship in which the children look to the mother to provide for their needs and to protect them from harm. He said that it is mostly a secure attachment relationship as the children experience the mother as able to meet their needs and as protective and non-dangerous.
He said that at the interview the children appeared to be engaged with the mother in shared positive activity. He said that each of the children spoke about their mother in positive terms; B saying “she’s the best mum I could ask for … She’s there for me … We have a lot of fun together …” He said that C spoke fondly of the mother and being with her. C said that she can get angry sometimes but not usually. He said that D showed a positive disposition towards the mother but did not elaborate for reasons which Dr G thought were associated with his intellectual disability.
Dr G said that the family consultant (who had previously seen the family) also had the impression that the children had close and positive relationships with the mother.
In relation to the children’s relationships with their father, Dr G said that just prior to interview the boys appeared very excited about the prospect of seeing their father. He said that at interview all three children had positive and in some ways idealised recollections of good times with their father. He said that B had some negative recollections also and carried some ambivalence but the boys’ disposition towards the father was only positive. He said that B said that they had done fun things with their father. He said that B described current strongly ambivalent feelings about the father – part of her wanted to see him to connect with past positive memories but part of her feared subsequently missing him if she did not see him for ages. Dr G also thought her hesitation arose from her described past experiences of paternal coercive behaviour.
Dr G said that as with B, C had a positive recollection of his father, of playing with his father and he said his father loved him. The mother had informed Ms M after separation that C was missing his father. D said to Dr G that being with his father had been good and that they had played.
Dr G said that the family consultant noted in July 2015 that the children appeared to have more distant relationships with the father than with the mother, with a mix of positives and some negatives and a description of the father as sometimes angry and the mother needing to protect them from this.
Sub-section 60CC(3)(c) – the extent to which each of the child’s parents has taken, or failed to take, the opportunity to participate in making decisions about major long-term issues in relation to the child, to spend time with the child and to communicate with the child
Apart from seeing the boys at interview, the father has had no contact with the children since January 2015. And he has had no opportunity since separation to participate in making any decisions about the children. All parenting decisions have been made by the mother since separation.
Sub-section 60CC(3)(ca) – the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
This is not significant in this case.
Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living
Dr G said the following in his report about this consideration:
In my view, a separation from the mother would be extremely distressing and developmentally disrupting for the children.
The children are adapted to a separation from the father, in the context of adequate maternal care. The children will experience some grief at the long term absence of a relationship with their father.
Counsel for the father was very critical of Dr G for not providing more detail in his report about this consideration. Counsel suggested that despite Dr G having provided such a detailed analysis of the matters which he was asked to report on, there was scant reference to the likely effects on the children, particularly the boys and especially D being only nine years of age, if they were not to have the opportunity for any relationship, even an identity relationship, with the father.
During cross-examination about this, Dr G pointed out that in his report he had also referred to positive aspects of the father, such as his ability to engage the children in the community including with cricket and tennis clubs. Dr G said that this was a strength of the father which the children would lose if they did not have a connection with him.
Dr G agreed with the father’s counsel that children who grew up without their father being in their lives faced a number of risks. He said one such risk was that this halved the available parenting resources which could be a problem if the other parent became incapacitated. He agreed that there would be risk associated with the children’s identity development, that is, with the father absent they can project into that space feelings that they were not loved by the father or that he was bad, or that they were different from other children.
Dr G also agreed that community studies show that in a broad community setting, children who maintain a connection with their father are better off than those who do not have such a connection. But he has the opinion in the present case, that the risks for the children with the father outweigh the risk portrayed in those community studies.
Dr G also agreed with counsel that absence of a father can adversely affect children’s self-esteem and cause feelings of rejection. But he said that the fundamental thing about self-esteem is “strong, good enough parenting” and that he had formed the view that on a cost benefit analysis for these children, maintaining some sort of relationship with the father would more likely lead to damaged self-esteem and damage to self-image through poor modelling, neglect and disruption of maternal strength.
Dr G was asked by counsel for the father that if the father was absent from the children’s lives would this cause difficulty in them forming trusting relationships. Dr G said that they would be more likely to have difficulty forming trusting relationships if there was a circumstance that created the risks by having the father in their lives.
I accept that it would be more likely that the effects on the children of having no relationship with their father would be considerably broader than for them only to experience some grief at the loss of their relationships with the father. But I also accept Dr G’s assurance that he considered broader matters and reject the suggestion that he has not given due thought to this consideration.
Sub-section 60CC(3)(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 live reasonably near one another so this is not a relevant consideration.
Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and 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.
The Mother
Dr G said at interview that the mother did not present as depressed. He said that she did at times appear anxious but remained contained and functional during those times. He said that at the first interview she did not show evidence of panic symptoms but at the subsequent interview she appeared more acutely anxious and described some panic symptoms. He said that the mother does not have a current or ongoing mental disorder.
He said that the mother described symptoms of anxiety and depression proportionate to an adverse and abusive relational context, during the years of the parental relationship. But he said she has also maintained function, pleasure and enjoyment in aspects of her life. He said that the mother experiences anxiety when thinking about the risks posed by the father.
In his view this anxiety is proportionate to the risk perceived by the mother based upon her past experience of the father and may be proportionate to actual risk. He said as such, this anxiety is adaptive and protective.
Dr G said that the mother has a strong capacity to meet the children’s basic needs for food, shelter, protection from harm and their more complex emotional, intellectual, relational and developmental needs. He said that his impression is that the two boys, both of whom are a challenge to raise, were being raised well with a strong mix of firm expectation and playful, positive engagement.
Dr G said that the boys’ special needs, associated with their intellectual and developmental disabilities, create a strong need for constancy, reliability and persistence in the adult care system, often through periods where there is no or little external recognition or validation of one’s work, and no or little short-term intrinsic reward. He said there is a need for both empathic patience and kindness, and strong and expectant firmness.
Dr G said that his own observations and those of Ms M, the speech pathologist for both boys over many years, of the mother and children suggest that the mother has the above capacities. He said that this is bearing fruit in the two boys’ current emotional, intellectual, relational and developmental progress being above what would typically be expected in our society of children of their ages with their degree of disability.
Dr G reported that Ms M informed him that the mother has done an excellent job of home schooling the boys. She said that the mother has followed through with everything that Ms M had recommended. She said that this has often been tedious, hard work because of the children’s developmental disability.
He said that Ms M had been thrilled with the children’s outcomes. She said that considering the children’s IQ’s, their skills in reading and spelling were excellent. Ms M has been supportive of the mother’s decision to home school the boys.
The Father
There is no question that the father is very capable at involving himself with the children in a practical way. He has taken them bike-riding, kayaking, to tennis, soccer, cricket, riding a go-cart and running. They have a trampoline at home. The father has also assisted the boys in developing their computer skills. He has been their coach for soccer, cricket and bike-riding.
Dr G expressed the view that the father does not have a current or ongoing mental disorder. But he said that the father has significant personality dysfunction with prominent narcissistic personality traits. He said that in terms of narcissistic personality traits, the father has a grandiose sense of self-importance, amplifying his achievements and talents, and perceiving himself as superior. Dr G said that the father is idealising in characterising his own role in relationships and defines himself as special. Dr G said that the father seeks to associate himself with high-status people or institutions. Dr G said that the father requires excessive admiration, has a sense of entitlement and can be interpersonally exploitative.
He said that the father lacks empathy for others, in particular, with regard to the impact of his own behaviour on others. That is, the father showed marked deficits in reflective functioning (that is, an ability to step back and to think about his own thoughts, feelings, motivations and behaviours, and the thoughts, feelings, motivations and behaviours of others) and empathic atonement (that is, an ability to pause and to consider the emotional state of another person, and to respond sensitively to that emotional state).
Dr G said that during the course of the interview he asked early in the interview and then on three subsequent occasions, what the father felt would be the best arrangements for the care of the children from this point? He found that the father would make generalised, idealised and intellectualised comments about the children’s circumstances but would then divert quickly into issues regarding himself and his own narrative. Dr G said that it was hard to find in this discourse a sense of each child as a real person, the mother as a real person and any sense of how a day to day process of shared parenting might actually work. He said that at the end of the interview he did not feel that he had obtained an answer to this question. His impression was that the purpose of the father’s narrative was self-aggrandisement. He said that this presentation of himself as superior appeared to require the recurrent backdrop of the diminishing of the mother and presentation of her as inferior, and the father’s vindication of himself appeared to require the mother to carry responsibility and blame.
Dr G said that he thought that the father’s narcissistic personality structure has profoundly disrupted his interpersonal capacity in intimate relationships. But he thought that the father’s narcissistic personality style may have, in fact, created positive energy with regard to his non-intimate relationships. He also thought that this has probably driven the father to business success, an active and involved engagement with societal institutions, such as with cricket and tennis, the father’s spiritual interests, his charity work and some mutually appreciated friendships such as those who have provided affidavits for him.
Dr G said that it is possible that in these areas the father is quite reliable and ethical but he also thought it possible that some of the unreliable and/or disrespectful behaviours observed in the father’s intimate relationships may have been evident in these other settings. Dr G said that he is concerned that over time the father’s commitment to the children has been energetic, but superficial and focused upon those aspects of engagement with the children that are self-affirming and self-aggrandising.
Dr G agreed with counsel for the father that the boys’ interactions with the father at interview were positive and that the father dealt with the boys in a child appropriate way. Dr G also said that the father had more energy, and was better at engaging with the boys, than the average father. He said that in his view the father does not have the stable capacity to meet the children’s needs for food, shelter and basic safety nor the stable capacity to meet their emotional, intellectual, relational and developmental needs. Dr G said that the father lacks the capacity to meet the needs of the two boys who require a consistent long-term commitment to ordinary, boring, repetitive processes of developmental assistance, which the father would not be able to sustain because they do not adequately feed the needs of his narcissistic personality structure. He said that the father does not have the capacity to respectfully support the mother in her primary role in raising the children.
Sub-section 60CC(3)(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.
As indicated above, the father was born in Asia. The father is a member of an Asian religious association in Sydney.
It is not clear to me whether the children have visited Asia or been exposed to Asian culture in any form.
Section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child, 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 the likely impact any proposed parenting order under this Part will have on that right;
This is not relevant.
Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
The mother has attended to the children’s needs. In relation to their health needs, she has taken them to the doctor as required and developed a good relationship with Ms M. In relation to education, she became concerned about bullying of C during his kindergarten year at primary school and formed the view that it would be in his interests for her to home school him.
The mother has not been able to support the children in having a relationship with their father. The children have not spent any time with their father since January 2015 as I have said. The mother said that the last time that the children mentioned the father was some time probably late in 2015 when C asked whether he was going to see the father. The mother replied that they were not going to see Papa at the moment. The mother has not otherwise mentioned the father to the children since separation. The mother said that the only time there has been any mention of the father with B was just prior to the children seeing Dr G. At this time the mother mentioned to B that B would have to see her father.
The father has sent cards and letters to the children since separation but the mother has not given any of these to the children.
Dr G said that the mother has shown a strong commitment to the children and to the responsibilities of parenthood. He said that the mother has maintained such a strong and reliable commitment whilst facing the dual challenges of raising two boys with intellectual and developmental impairment, and dealing with a difficult parental relationship which he says had been abusive but which he described at a minimum as being “high maintenance”, draining and unfulfilling for the mother.
He said that the mother had taken on additional responsibility because of the intellectual and developmental disabilities of the boys and the demands of her home-schooling them. Dr G said that Ms M’s comments to him suggested that the mother has had a quiet but strong, reliable and thorough commitment to the children’s developmental needs. She said that the mother attended regular (often fortnightly) appointments with Ms M over a seven year period from 2008 to 2015. Ms M said that everything that she had asked the mother to do, the mother did and the mother followed through with everything that Ms M recommended. Apparently this has often been tedious, hard work, because of the children’s developmental disabilities.
Dr G said that at interview the mother, in discussing the issues before the Court, was very focused on the safety and wellbeing of the children and on her own role in ensuring such rather than upon any other agenda such as vindication of or care, eliciting for herself or denigration or revenge upon the father.
On the other hand, Dr G said that he was concerned that the father has prioritised his own needs over his commitment to the children and the responsibilities as a parent over the years. He said that the father has done this through utilising the children’s welfare as a coercive tool for controlling the mother within the parental relationship, including threats to cut off all contact with the children, threats to take the children away and (it is likely) in his view, implied threats to kill the children. He said that consistent with the above the mother said that during their relationship, the father would turn off and on his connection with the children as a way of punishing/coercing or enticing her.
Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;
As indicated above, regrettably, this is a case in which there has been ongoing family violence.
Sub-section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the nature of the order, the circumstances in which the order was made, any evidence admitted in proceedings for the order, any findings made by the court in, or in proceedings for, the order and any other relevant matter;
As indicated above, an AVO for the protection of the mother and the children was made by the Local Court at N Town on 30 January 2015.
Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
In my view, the orders which would be least likely to lead to the institution of further proceedings would be those as sought by the mother and the ICL.
Dr G expressed the view during his cross-examination that if orders were made for the children to spend time with, and/or communicate with, the father this would invariably lead to the father acting in a way which would inevitably lead to further litigation between the parties.
Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant
The mother is living with the children in the former matrimonial home at Q Town, New South Wales.
The mother has the support of various family members. These include the maternal grandfather, Mr H who is 67 years of age and the maternal grandmother, Ms H who is 68 years of age. The maternal uncle, Mr R who is four years older than the mother lives with his partner and two young adult children in S Town. He is the Principal of a primary school. The maternal aunt, Ms T who is two years older than the mother lives with her partner and four children at U Town. The mother said they are pretty close as are the children.
The father is living in his own home at Q Town. The father’s parents live in Asia.
Primary Considerations
As indicated above, the first of the primary considerations is the benefit to the child of having a meaningful relationship with both of the child’s parents.
Meaningful relationship
These children do not have a meaningful relationship with the father. They have not had contact with him now for a couple of years. Yet the boys engaged with the father at the interview session without difficulty and apparently enjoyed his company.
It is clear that in the past he has had quite a close relationship with the children. He has been able to assist the children including by imparting to them some of his computer skills. He has also been active in taking them to the various sporting and other extra curricula activities referred to above.
As indicated above, Dr G said that having the father in their lives would assist the children’s identity development. So, all other things being equal, there would appear to be benefit for the children in being able to have opportunity to develop a meaningful relationship with their father. But such opportunity would involve risk.
The second of the primary considerations is the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. And as also indicated above, the Court is required to give greater weight to this second of the primary considerations.
Risk for the children of emotional or physical abuse or of neglect in father’s care
Dr G said that in his view there are four categories of risk to the children.
Firstly, he said that there is a risk that if the father had the opportunity he would take the children into his sole care either in Australia or overseas. As indicated above, the father said that he would not do such a thing.
Dr G noted that the father has significant family connections overseas. He said that the father takes what Dr G described as a foundational stance of superiority on a backdrop of maternal inferiority and, in his view, the father would not find it difficult to justify to himself and others such a course of action. I have referred above to observations by the mother in this regard. And the father admits to having made reference to such a course of action in communication with the mother on a number of occasions. Dr G thought that within Australia the father might take action on the basis of the proffered wishes of a child, expressed concern about maternal neglect or a child’s pressing need for what the father was offering at the time. He said that the mother might struggle to reverse such a unilateral paternal action. He considered this risk as being substantial.
The second area of risk Dr G referred to is of the father harming or killing the children as an act of revenge against the mother, possibly at the same time as harming or killing the mother and/or himself. He said that at a minimum the father intimated such a course through sending the Sydney Morning Herald article, which I have referred to above, “Obsessive Love Lost: Why Some Fathers Kill”, sent in 2011. Dr G thought that it was likely the father had made reference to such an act from time to time over some years as alleged by the mother. Dr G thought the risk of the father actually carrying out such an act is low and thinks the father is protected by what Dr G described as such an act being dissonant with the father’s altruistic self-image, and the father being inhibited from such behaviour by the fear of the societal judgment that would result from the same.
Dr G considered that the greatest risk to the children from resumption of time with the father would be that of paternal undermining of the child-mother relationships with significant risk of progression to quite a profound disruption of such relationships. Dr G thought that if the children were to spend significant time with the father, they would be at significant risk of emotional abuse by him, in terms of them having to take what he described as a parentified stance of vigilant attention to paternal need for affirmation and admiration.
The other area of risk would be what Dr G regarded as the marked impact upon the maternal wellbeing of any resumption of time between the children and the father considering the severity of past family violence and, in particular, paternal emotional abuse of the mother and paternal intrusiveness.
It was submitted on behalf of the father that he has taken significant measures, including recommendations by Dr G, to endeavour to address those behaviours about which Dr G is so critical and which, if not addressed, would cause concern. I have referred above to the father’s endeavours in this regard.
Notwithstanding these measures taken by the father, Dr G said that his fundamental concern is that the father’s personality structure, his relational patterns and his potential impact on the mother remain present. Dr G thinks that these still flow through the father’s recent affidavit.
Dr G considered that the priority for these children needed to be protecting the children’s most reliable resource which is their mother. He said that if orders did not provide adequate protection for the mother from paternal intrusion and did not adequately address her fears then she was at risk of decompensating into more severe anxiety and panic. He said that this would disrupt her wellbeing, her sense of self and functioning, including her functioning as a parent. He said that if orders provided the mother with greater security then she would be thus freed from ongoing protective vigilance, such that she would be more able then to “process” the abuse that she has experienced over the past 15 years. He said that she would be at some risk at that time of developing post traumatic stress disorder like that which can occur when troops return home from the battle field. But Dr G thought overall that the mother’s mental health prognosis was good, in the context of adequate protection from paternal intrusion and in the context of addressing maternal fears. He thought that if she did develop some post traumatic stress disorder, she would take responsibility for this, seek treatment and would be a good candidate for treatment.
Discussion and Conclusion
Although it is now a couple of years since the children had contact with the father, they appear to have a good relationship with him.
Dr G said that because the children have had a good relationship with their father and because the father is skilled at engaging the children in things that he is interested in, such as taking them to cricket or soccer, it is important for the Court to consider what Dr G described as the proportionality of the mother’s anxiety. That is, if the Court was satisfied that the mother’s fear and anxiety about the father were genuine and based on her actual experience of violence at the hands of the father, then such anxiety would be likely to continue if any orders were made for there to be any connection between the children and the father. On the other hand, he said that if the Court considered that the mother’s anxiety was not properly based, that in fact she had been embellishing, possibly fabricating, her complaints about the father’s conduct towards her, then because the father had skills to offer the children, it would be in their best interests for orders to be made which provided for time spent and communication between the children and the father and for the mother’s anxiety to be treated.
Accordingly, the question arises, is the mother’s anxiety about the father properly based?
As indicated above, there is no doubt that the father has perpetrated regular, ongoing acts of violence against the mother including physical assaults, intimidation, coercion and, verbal, sexual, emotional and psychological abuse.
Dr G had formed the opinion that:
There has been a pattern of family violence perpetrated by the father against the mother, with significant aspects of this pattern present from early in the parental relationship, but then with escalation from 2006 in the context of the needs of the two boys and of maternal expressed desire to separate, and the persistence of this pattern in the context of these triggers, over the subsequent years into 2015.
Dr G also said that:
This family violence has been at the severe end of the spectrum, in terms of emotional abuse of the mother, and coercive, threatening, intrusive, and disrespectful paternal behaviour, including sexually intrusive and demeaning behaviour and threats to make public the couple’s private sexual encounters, threats to his own life, and direct or indirect threats to the mother’s life, and direct or indirect threats to take away or to harm the children.
…
The most full expression of this pattern of family violence and its impacts was articulated in the maternal narrative, as presented in her court documents, and to the family consultant in 2015, and to myself at interview. My impression of the mother was that she presented this narrative in an earnest, considered, measured and truthful way.
I have referred above to much of the alleged violence. As I have indicated, there is some evidence by way of corroboration. Having heard the parties’ evidence about family violence tested, I have the same view as that of Dr G namely, that the mother’s account is in large part accurate. In any event, as also indicated above, the father conceded that he has engaged in family violence although in my view, he tended to minimise this.
The mother said that on many occasions she was terrified of the father because of his behaviour and most fearful that he would harm her and/or the children, or that he would remove them from her care. The father conceded that this was the outcome his behaviour was directed to achieve.
The mother described to Dr G her feelings at the time when she was at his professional rooms after the father had also been in attendance for the purpose of interview for Dr G’s report. The mother told Dr G that she felt her heart beating, that she was shaking and experiencing a tightening of the chest, an increase in her anxiety and general feelings of stress. He said that she said she had experienced a difficult week knowing that she would have to see the father.
The father was asked during cross-examination whether he would acknowledge that the mother is fearful of him, that she is fearful that he might harm her and/or the children and that she has an objective basis for this. The father agreed. He was also asked whether the mother has a fear that he would remove the children from Australia and he agreed that this was one of her main fears.
In all these circumstances, I have the clear view that the mother has a genuine fear of the father and for good reason. And despite the father’s assurances that since undertaking the therapy he is a changed man, the mother continues to be fearful of the father.
The mother does not believe that there has been a change in the father. She said that his claims to be a changed person would be more credible if he had not lied in things he deposed to in his affidavit. She said that she thinks he has undertaken the therapy for the purposes of this litigation and that little has changed with him. The mother said that she continues to be terrified by, and fearful of, the father.
Dr G described the mother as being the children’s most important asset, and that their best interests require that she is able to function to her best ability. Dr G’s clear opinion was that the mother would not be able to do this if there were orders which permitted time between the children and their father, even at say two or three monthly intervals. He said “[t]he best interests of these children require strong orders which would protect the mother and the children from the father, i.e. orders under which there would be no time or communication between the children and the father”.
There was a very strong submission on behalf of the father that taking into account all of the complexities, it would be in the children’s best interests for them to spend time with the father for three or four hours on a regular basis so that they could retain their identity with the father and not lose their relationship with him. It was submitted that it would be important for the children to grow up with a positive view of the father and they would not gain such a view from the mother or their maternal grandparents. It was further submitted that such orders would strike an appropriate balance between the benefit to the children of having opportunity for a meaningful relationship with the father but the limited time involved and the fact that it would occur under supervision would be adequate protection against those matters about which the mother is anxious.
Dr G said that in the event that orders provided for time between the children and the father, even if the time was supervised by an appropriate adult, this would likely provide opportunity for the father to find a way to undermine the mother’s relationship with the children. He said that even if the time was supervised, the mother’s fear of the father would continue, particularly her fear that there would be an inevitability that one day he would find a way not to return the children to her care, or worse that he would do harm to the children. In any event, Dr G thought that any orders for time between the children and their father would ultimately be met with further litigation because the father would not be able to contain his sense of superiority as a parent which would cause him to have the view that the children would be better in his superior care than with their inferior mother, which would be likely to propel him to file some further application in court.
I accept these views and agree that it would be highly unproductive and almost certainly damaging for the children for there to be further litigation between their parents. I accept that given the challenges for the boys brought about by their disabilities, their parenting needs go significantly beyond what would be required for children who do not have such disabilities. I accept that the mother has been outstanding in her commitment and energy as their parent. She has been patient, persevering and undistracted in her devotion and focus on providing for the boys’ needs.
It is to the father’s credit that he has taken up much of what Dr G recommended for him in endeavouring to address his serious shortcomings. He says that he now understands since having consulted several behavioural science professionals, that his behaviours towards the mother have been emotional, abusive, manipulative and frightening. But he says that he is working hard to address these matters and is a changed person.
Dr G was made aware of the father’s efforts in this regard and he described such efforts as “incremental gain”. But he remained cautious about the extent to which the serious shortcomings in the father might have been addressed in reality. Dr G did not think that the father’s underlying personality characteristics had changed. He said that his fundamental concern is that the father’s personality structure, his relational patterns and his potential impact on the mother remain present. Dr G thinks these things (deficits) still flow through the father’s recent affidavit. He expressed the view that he did not consider that there was a substantial basis for changing his opinion and recommendations which were that the best interests of these children required no time with, or communication with, the father. In fact, Dr G said that in the event that the Court was to order time or communication between the children and the father he would regard this as “high risk”.
He said that this was because the mother would be likely to become so anxious and fearful that the father would harm or steal the children that this would jeopardise her ability to function well as the children’s primary parent. Dr G said that this would be very damaging because the mother is the children’s “main asset”. He said that it was also risky because he thought that the father would be unable to resist the opportunity to undermine the mother’s relationship with the children, to the point where he would have the children thinking that they would be better off with him, and he would endeavour to bring further court proceedings to obtain court orders to keep them. Dr G said he thought that such an outcome would be very damaging for the children.
Dr G said that ultimately, what was required to form a view about the requirements of the best interests of these children, particularly the boys, was to do what he described as “a cost benefit analysis”. Such an analysis had to weigh on the one hand the importance of protecting the mother and children by strong orders which unfortunately would exclude a relationship between the children and their father and to weigh on the other hand all those matters which would be lost to the children in not having a relationship with their father, at least not until adulthood. He had the clear view that upon undertaking such a cost benefit analysis, the outcome was very clearly in favour of the former.
As indicated above, the two boys have special needs. Unfortunately C has an intellectual disability which is at the moderate level. D has an intellectual disability at the mild level. These boys require a huge input from the mother in terms of their care, particularly their education. As indicated above, the mother made the decision to home school the boys in circumstances where C experienced bullying at his mainstream school. On all the available evidence they have been doing well under the mother’s tutelage. But their needs demand a huge effort on the part of the mother.
I accept Dr G’s view that the mother is these boys’ main asset. I also accept his view that their best interests require that she is able to function to her best ability. As I have said, the father has skills which could assist the children and, in different circumstances it would be important for them to maintain their relationship with him. But I am satisfied that, for the reasons set out above, the risks which would be involved if the children were ordered even to spend supervised time with the father, and for him to receive reports about their health and education, are too great for such orders to align with their best interests.
I accept that, as learned counsel for the father submitted, for the children to be parented by only one of their parents and not even to have supervised identity contact with their father would be an extreme result. But in my view, this is an unusual case and the evidence directs this result in the best interests of these children.
I certify that the preceding two hundred and eighteen (218) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Johnston delivered on 13 January 2017.
Associate:
Date: 13 January 2017
ANNEXURE A
Minutes of Orders Sought by the Parties
MOTHER
Parenting
That the Mother have sole parental responsibility for B born … 2000, C born … 2006 and D born … 2007 (“the Children”).
Further to Order 1, that “the Mother” Ms Hilder born … 1974 have sole parental responsibility to apply for and/or renew an Australian Passport for the children namely B born … 2000, C born … 2006 and D born … 2007 and without the consent of the Father.
Further to Order 1, that the Mother Ms Hilder born … 1974 be permitted to remove the children namely B born … 2000, C born … 2006 and D born … 2007 from the Commonwealth of Australia to enable the children to travel overseas for holidays from time to time and without the consent of the Father.
That the children live with the mother.
That the children have no contact or communication with the father until such time as they are 18 years of age.
Pursuant to section 68B and 67Z of the Family Law Act 1975, the father Mr Jessup born … 1973 be restrained by injunction from:-
a)Communicating or contacting by any means, including through any third person, the Mother or any of the Children; and
b)Approaching the mother and/or children at their place of residence, school and any other institutional place of regular activity or engagement should he become aware of same; and
c)Contacting by any means, including through any third person, any place of education or residence of any of the Children; and
d)Removing or attempting to remove any of the Children from his or her place of education or residence or taking or attempting to take possession of any of the children; and
e)Harassing, molesting, stalking, threatening to cause bodily harm to the Mother, any of the children or any person in whose care any of the Children may be.
FATHER
Parenting
The mother shall have sole parental responsibility for the children B born … 2000, C born … 2006 and D born … 2007 (“the children”) except in relation to the children’s names.
The children live with the wife.
The father spend time with the children once every two months, on a Sunday from 10.00 am to 2.00 pm supervised by V Contact Centre commencing on the second Sunday after these orders are made.
That the Independent Children’s Lawyer nominate a psychologist specialising in child psychology to be present during the first occasion of time spent pursuant to Order 3.
The father shall request V Contact Centre to provide to the mother’s solicitor and the Independent Children’s Lawyer written reports in relation to the time spent by the father with the children and the father shall meet the cost of such reports and the supervision by V Contact Centre.
The mother shall authorise the Board of Studies and any school at which any of the children attend to forward to the father any school reports in relation to any of the children to the father’s address at E Street, Suburb F, …, NSW.
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Consent
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Injunction
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