Hillier and Hillier (No 2)

FAMILY COURT OF AUSTRALIA

HILLIER & HILLIER (NO. 2)

[2010] FamCA 918

FAMILY LAW – CHILDREN – With whom a child communicates – Father resident overseas

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Bereat and Beareat [2010] FamCA 693
Chappell & Chappell (2008) FLC 93-382
Cowley & Mendoza [2010] FamCA 597
MRR v GR [2010] HCA 4
Starr and Duggan [2009] FamCAFC 115

APPLICANT:

Mr Hillier

RESPONDENT:

Ms Hillier

FILE NUMBER:

MLC

4502

2009

DATE DELIVERED:

13 October 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

5 OCTOBER 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR MCCORMICK

SOLICITOR FOR THE APPLICANT:

ZOLIS LAWYERS

THE RESPONDENT:

IN PERSON

Orders

That each Sunday at 10.00am (Melbourne Australian time) by web camera (or “Skype”) the husband communicate with the child J born … September 2003 for a period of 30 minutes.
Paragraph 1 of these orders is conditional upon the following:
(a)The husband providing to the wife through his solicitors, all of the necessary technical and computer equipment to enable effect to be given to paragraph (1); and
(b)The husband setting up and being responsible for, any account with a service provider set up by the husband.
That the husband notify the wife through his solicitors, of all arrangements associated with the setting up of the account, the delivery of any technical equipment and the point at which the provisions of paragraph (1) of these orders will commence.
That the wife at all times provide to the solicitor for the husband (for so long as the solicitor continues to act for him) an email address at which she can be contacted for the purposes of implementing these orders. To the extent that the husband is not represented by lawyers, all communications with the wife for the purposes of these orders shall be by email at an address provided by the wife in the circumstance that the husband is no longer represented.
That the husband be restrained from abusing or harassing the wife.
That the wife do all things reasonably necessary to give effect to the facilitation of the orders in paragraphs 1-4 above.
That the communication between the husband and the children C born … January 2006 and L born … August 2008 remain to be determined at a point in time when the husband has evidence to show a proposal as to how he would commence a relationship with those children and maintain it.
That the wife provide to the husband through his solicitors, a copy of any school report of any child and in the event of any serious health issue (physical or psychological) a brief overview as to the condition and treatment.
That the husband be permitted to send to all children, age-appropriate gifts at Christmas and on their respective birthdays but all such gifts be forwarded through the solicitors for the husband and it be the decision of the wife as to whether those gifts are given to the children.
That the wife facilitate the giving of the said gifts to the children in the event that they are age-appropriate with an indication that the gifts are from the husband.
That until further order pursuant to s 65DAC, the wife is relieved of the obligation to consult with the husband until further order, in respect of major long term issues affecting the children.
That until further order, the wife have sole responsibility for making long term decisions concerning the children relating to:
(a)       The children’s education;
(b)       The children’s religion and cultural upbringing;
(c)       The children’s health; and
(d)       The changes to the children’s living arrangements.
That the parties’ applications for parenting orders be otherwise dismissed.

IT IS NOTED that publication of this judgment under the pseudonym Hillier & Hillier is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 4502 of 2009

MR HILLIER

Applicant

And

MS HILLIER

Respondent

REASONS FOR JUDGMENT

There are three children of the marriage of Ms Hillier (“the wife”) and Mr Hillier (“the husband”). They are the centre of a parenting dispute in which the wife wishes to “cut” the husband out of their lives and the husband complains that he cannot develop and continue his relationship with the children because of the actions of the wife. The problem is compounded by the husband being a resident of the United States of America.
The parties also have complicated and unresolved financial issues including spousal maintenance and child support which I have separated from the parenting issues. There is an unresolved question of whether the wife can bring property proceedings in any event because of bankruptcy.
I heard the final parenting dispute on 5 October 2010. I propose to order that at least whilst the husband remains in the United States, he endeavour to continue his relationship with the oldest child leaving the two other children to learn as things go along that they have a father. Whether the husband can make better efforts than he has until now remains to be seen but it is in the best interests of the children that at least until a better proposal is put by the husband, the orders should be limited to Skype with the eldest child. That is less than ideal but there are a number of impediments which preclude any other realistic proposal having any prospect of success.
The husband indicated that he could not come to Australia for the parenting hearing although he would have the children visit him in the United States. That is untenable having regard to their ages. The very simple alternate methods of electronic communication have been severely hampered by the financial restrictions on the parties. The wife is a bankrupt. The husband says there are over $3 million in debts in Australia. A bankruptcy prospect for the husband looms but there are also pending litigation issues involving the husband in Australia including from his own former lawyers. The wife works to support the children whilst the child support that the husband pays has been decreasing. The husband has work opportunities in the United States but those are somewhat mysterious because he lives with a woman whose corporate entity seems to be his employer.
In the midst of all of this, time is passing by two children under the age of four years who know little or nothing of the husband and whose interest in and attention span for, electronic communication is very limited. To add to the dilemma, the relationship between the husband and wife is at best poor. There is in existence, a permanent intervention order against the husband.

Background

The husband was born in the United States of America and is currently 48 years of age. Between 1995 and 2009, he was self-employed as a development agent. That agency was terminated in October 2009.
The wife is 33 years of age. She is a national operations manager. Subsequent to the separation of the parties, she has had a number of positions of employment. She is obviously good at what she does.
The husband has been married previously and has two children from his last marriage. X is now aged 13 and Z is aged nine. Those children were part of the household of the husband and wife at various times early in the marriage. The evidence shows that the wife still enjoys a good relationship with both of those children still. There are fortnightly visits by the step-children and a reasonable relationship between the siblings. The wife has a reasonable acquaintanceship with the husband’s former wife who also lives in Australia. The two women facilitate the sibling relationships.
This marriage was the first for the wife.
The three children of this marriage are J born in September 2003, C born in January 2007 and L born in August 2008.
It will be seen that the two youngest children were under three years of age when their father left Australia to live in the United States. His move to the United States was controversial. That controversy is not relevant to this application but I shall set out briefly what happened.
At a hearing in 2009 before Federal Magistrate O’Sullivan, the husband’s right to move out of Australia to the United States was restricted. I subsequently heard an application and, upon evidence of the husband which was tested by cross-examination, permitted him to leave. In essence, he did not return and a Warrant of Apprehension for his arrest was issued in September 2009. That warrant expired in September 2010 but the husband has made it clear in documents throughout the preparation for trial that he was not prepared to return to Australia until that issue was resolved. Amongst all of these problems, significant sums of money are alleged to have been inappropriately taken by the husband and their use, unexplained.
Prior to the commencement of the trial, the wife issued a subpoena to a Mr SN who is an accountant but whose connection with the husband is as an investor and business partner. He produced documents to the Court and I permitted the wife to have a limited opportunity to cross-examine him to avoid the prospect of his evidence being taken on another day. The husband’s version of what Mr SN said about the money remains to be also tested. On the face of the documents I have read in preparation for the trial, there would appear to be some inconsistency between Mr SN and the husband.
The husband’s position about the financial circumstances was that the parties had not been frugal enough in respect of their lifestyle and that their debts overcame them. Properties were repossessed and sold at mortgagee auctions and vehicles were repossessed. The husband returned to the United States and the wife went into bankruptcy. In his affidavit, the husband estimated that the debts arising out of the marriage approximated $3.875 million. Much of that money appears to be owed to the Australian Taxation Office and the National Australia Bank. The wife also asserted that there were funds borrowed from a neighbour and the whereabouts of those funds remained a mystery. All of those issues are yet to be tested but that also depends upon whether the wife’s application is only limited to spousal maintenance and child support. The wife’s bankruptcy may limit her participation and it was common ground between the parties that her trustee in bankruptcy had chosen not to be involved.
The parties have a starkly different view about their respective roles in relation to the children prior to the separation and also to what has occurred over the last 12 months. They have a markedly different view about their respective relationships towards each other.
Having decided with encouragement from the parties to deal only with the parenting matter, an issue associated with the husband’s attendance in person from the United States evaporated. I have given reasons elsewhere about why I refused the husband to participate by telephone. Both parties had filed extensive affidavits. There were specific paragraphs of the affidavits which they asked me to read for the purposes of the parenting issues. The wife chose not to cross-examine the husband and hence his attendance by telephone or otherwise became unnecessary.
The wife has been unrepresented subsequent to her bankruptcy. I provided her with assistance in explaining the procedural issues and informed her that I could not conduct her case for her. I pointed out the inadequacies of her application in relation to financial matters. I am satisfied that on the way in which the matter was conducted, both parties but particularly the wife, had an opportunity to put everything before the Court that was necessary to enable me to determine properly this parenting case. Before embarking upon the evidence, I should also point out that at no stage has an Independent Children’s Lawyer been appointed nor was one sought. Having regard to the limited nature of the dispute at this stage, this is not a case where I would have been assisted by, nor would the children’s interests have been assisted by, such an appointment. Further, the parties had attended upon a forensic psychologist for the purposes of a family report but neither wished that to be used in evidence and neither sought that it be updated.
Accordingly, I have determined this dispute on the basis of the very limited evidence and what can only be described as common sense.
Section 69ZN of the Act sets out five principles for conducting child-related proceedings. One of those principles is that as far as possible, the proceedings are to be conducted in a way that will promote co-operative and child-focussed parenting by the parties. That is difficult where there is no trust and little respect between the parties. In this case, intemperate remarks and overly emotive and inflammatory language have not helped the situation trying to work out what is child-focussed behaviour of the parents.
It is important for lawyers settling affidavits to be a buffer between their clients and the evidence that is required to be presented in a parenting dispute.
Whilst the requirements of the Evidence Act1995 (Cth) have been ameliorated in parenting proceedings, it is still important to remember that the determination is made on evidence.
Evidence is admissible if it is relevant. It is relevant if it could rationally affect either directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceedings. Hence, the sort of language set out in paragraph 43 of the husband’s affidavit in which he refers to the fact that the wife has “hurled abuse” at him from “afar in her emails” is unhelpful.
It is also difficult to have a discussion with parties prior to the commencement of a case about the admissibility of evidence where one or more, is a litigant without representation. It is similarly difficult for a court if one starts with the premise that it is not the role of the court to raise questions of admissibility other than in respect of issues of relevance.
Obviously, if evidence is not relevant, it should not be given any weight but in cases where affidavit evidence is drawn by lawyers, caution needs to be the guiding principle about what material is presented as evidence. I set out these remarks to point out the difficulty in this case having regard to the vague assertions and emotive language used particularly by the husband who has been represented throughout.
I turn then to the evidence. The parties presented that evidence in relation to two discrete periods. The first related to the period prior to separation about which little was said but the bulk of it concerned the second period which was subsequent to separation.
The husband described himself as a “hands-on” father during the relationship. He set out all of the things that he said showed his involvement in the lives of the children. The wife disputed that saying that the husband had never been interested and was more concerned to have a nanny stay overnight to assist him. She said he spent time travelling. I take into account that the relationship ended in September 2008 at which time, J was five, C, one and L only one month old. On any view, the husband’s role in respect of the latter two children must have been modest. Having regard to the time that has elapsed since separation which is not long in adult years but significant in very young children, much of what the husband said about the pre-separation period is of little assistance.
The parties relied upon nannies during their time together predominantly to enable the wife to be involved in the workforce. That is important in respect of the husband’s complaint that subsequent to separation, the wife seems to have used nannies extensively.
In his affidavit, the husband seemed incredulous that it was costing the wife $820 per week. It is not at all clear to me why he felt that way having regard to the necessity for the wife to continue her managerial occupation and more importantly, in his absence. The wife’s evidence was that she was paying $150 per day and a minimum of $750 per week but that that sum increased if she was required to be away and the nanny had to stay overnight. The evidence of the wife which was unchallenged was that she relied at times on her family but that her job required her to be away interstate at various times of the year interstate and on one occasion overseas. On one occasion she was away for ten days.
Having regard to the financial contributions as well as the physical absence of the husband, I find the wife’s position quite reasonable.
In respect of the period immediately subsequent to separation, the wife said that the husband’s role was minimal. She referred to the fact that he declined to have L with him citing that he had had no car facilities. She said that he took J, then aged five years, but he returned him tired and irritable. In an interesting response to the wife’s evidence about that, the husband said that he spent as much time as possible with the children bearing in mind what the wife “allowed” him. Albeit that the evidence was vague, I find the wife was the predominant carer of the children subsequent to separation at a point when the younger two were very vulnerable. I find the husband’s role was minimal.
In June 2009, there was an incident in which the husband asserted that the wife attacked him in front of the children. He deposed to some appalling language by the wife which she did not appear to deny. He said she called him a “mother fucker” and then said that she told the children that he hated them and her and that he wanted to kill her. He said she spat in his face. The wife’s evidence referred to the same incident.
In her evidence, the wife described the husband as attending and attempting to “abduct” J from the school without her permission. Apparently the police were called and when she arrived, she took J from the husband’s vehicle. She said the husband began to scream and yell at her in front of not only the children but also staff, parents and other students. She said that the husband used the sort of language about her that he had complained about as set out above. According to the wife who was not challenged about this, he described her as a “drug dealer” and a “prostitute” alleging that she was “sleeping with” a variety of people. As the incident ended, according to the wife, the husband said he would “kill” the wife gesturing with his hand a throat-slitting motion and added “it’s on cunt”.
The husband’s response to the wife’s affidavit was to deny the allegations.
No explanation was given as what he was doing at the school, nor why he had to go to the school to remove J nor what reaction the school had. Having regard to the fact that the police were called and the incident occurred at the children’s school, I infer that the husband was doing something that he should not have been doing because the parties had been separated for something like nine months. This was an appalling incident in front of the children leaving aside their peers, teachers and the people familiar with the wife. On the balance of probabilities, I accept the wife’s version as being more credible and whatever part she may have had in the language, it did not justify the response of the husband.
Without any evidence to support it, the husband then went on to say that it was “clear” to him, that the wife “continues” to denigrate him and involved the children in “adult issues” that did not concern them. I give that no weight having regard to what I have earlier said.
In late 2009, C was taken to hospital. The husband said that the wife refused to allow him to talk to the child bearing in mind that he was overseas. In her evidence, the wife referred to the fact that this incident occurred in January 2010. She said that she attempted to telephone the husband eleven times that evening on various telephone numbers. This was what the wife described as the “New Year period” and the husband made no contact with her at all. The husband’s response was that when he did try to make contact with the hospital, it was the hospital that refused to speak to him. In his first affidavit, no mention was made by the husband of the various calls made by the wife. The husband’s evidence leads me to the conclusion that the wife must have made the calls because otherwise he would not have called the hospital.

Leaving aside the issue of the state of health of C at that time, much of the argument between the parties revolved around whether there were sufficient funds to cover the medical condition and the ambulance costs. The wife’s complaint was that she did not know that the financial position was. She complained of expenses associated with C having his adenoids and tonsils removed. Those expenses related to a surgeon, a paediatrician and an anaesthetist. The husband’s response was that he had not been provided with “most of the medical invoices or receipts allegedly incurred by the wife” apart from those that had been provided to his solicitor.
Again, albeit that the wife chose not to cross-examine the husband’s evidence, the presence of the husband may have shed some light on what this was all about. The only inference I can draw is an adverse one against the husband for his lack of concern about C’s welfare.
In his affidavit, the husband said that the wife had told him that J had regressed to bedwetting and had been exhibiting behavioural problems at school and at home. It concerns me that the husband said the following:
I verily believe that the messages that [J] received about me from the wife are that I do not love them and I no longer wish to see them and that the wife has manipulated the lack of contact into her favour. [J] and I have always had a very strong bond and I am concerned now that by the wife deliberating keeping us apart has caused him to act out and is effecting (sic) his psychological wellbeing.
Again leaving aside the question of the vagueness of the statement, there is no evidence that the wife was keeping the husband “deliberately” apart. The husband chose to go to the United States and has not returned.
The wife dealt with J’s behaviour in her affidavit. She said that his behaviour had worsened subsequent to the school incident and had regressed to bedwetting. She said J was ostracised from all of the children in the classroom and playground and not invited to parties. That precipitated a change of school. Even at the new school, the wife was required to attend on numerous occasions for disciplinary incidents. She described J’s behaviour as offensive. She described that behaviour as including swearing, bullying, stealing and generally unsociable behaviour. That led to a consultation with the school’s psychologist.
I questioned the wife about the current psychological assistance for J and she said that she had obtained all of the necessary Commonwealth-funded facilities that she could through her doctor but was now unable to fund those costs any further. The husband said in relation to those matters that he was unable to comment but that when he had spoken to J on Skype or the telephone, the child was pleased to speak to him. He then gratuitously added:
On one occasion during a Skype call, he ([J]) showed me a picture of a naked girl on a stubby holder which was on the wife’s office desk at home and told me that this was her boyfriend’s and what he used to drink beer with.
What that has to do with the problems that J was encountering escapes me. The fact that the husband made reference to the “naked girl” is equally puzzling. The husband did not say how he was able to distract J’s attention but apparently saw some significance in the fact that there was a “boyfriend” who drank “beer”. I refer back to what I said earlier about questions of relevance.
The evidence of the husband responded to evidence from the wife about J’s behaviour which she described as “increasingly frightening”. She said he tormented his siblings in a malicious and calculating fashion.
At the same time, J has suffered from severe night terrors that required the wife to obtain medical advice. She said he would be crying, violently shaking and flaying his limbs about whilst actually still asleep. J asked the wife during these periods of time to “kill him” and he told her that he was dying or that she was dying. On some occasions, he told the wife that he hated his father and wished him dead or that he wanted to kill him. According to the wife, these night terrors ceased in approximately May 2010 when the contact with the husband also ceased but they resumed when telephone contact resumed in August. The wife said J smashed a decanter and glasses as he ran around the lounge room screaming for her whilst she was right beside him.
The wife said that during the period of time when J was attending a psychologist, she was told that J was taking out his anger towards his father. That evidence was not challenged by counsel for the father. Unfortunately, for funding reasons, that psychological assistance has now ceased.
The husband said that he contacted the psychologist but at a point in time in January 2010 when the psychologist had only just commenced work with J and when she had not built up a rapport with J. The husband appears not to have made any contact with the psychologist since that time nor made any suggestion as to how these problems could be overcome.
As part of his evidence, the husband said that he had had little contact with the children and had not seen them except via Skype on approximately nine occasions and on approximately ten occasions by telephone. He said that that was despite orders of the Court for daily telephone contact. Those orders however did not anticipate the husband remaining in the United States for as long as he has. He went on to say that the wife had denied any contact regularly including on the birthdays of the children, Father’s Day and Christmas Day.
The wife’s version was that she had maintained contact between the children and the husband throughout last year and earlier this year but more often than not, the husband seemed to forget the prearranged time or he did not comply with the relevant arrangement. According to the wife and this was not challenged, J did not hear from his father “sometimes for weeks at a time”. Absence according to the wife improved J’s behaviour.
The husband’s evidence was that the wife “neglected and complicated” contact and “systematically attempted to destroy” the relationship. Those assertions reflect poorly on the husband because there is no suggestion in the evidence that that is happening.
The husband complained that he no longer knew what school J attended. I do not think I can criticise the wife for that.
The wife gave evidence that she had a good relationship with the husband’s two children from his earlier marriage and he seemed to agree but he said that he did not want his daughter X, to be the “go between”. I would agree with that.
The husband complained that at Christmas 2009, he sent presents for the children but the wife altered the tags to indicate that they were from her rather than from him. This assertion was put to the wife in cross-examination by the husband’s counsel and she was emphatic in her denial. She said that there were no tags on the items but in any event, it had always been the practice to give the children presents from Santa rather than from the parents. There seemed logic in that as she pointed to the ages of the children. She said that she did not want the children to be getting enormous numbers of presents from their father and none otherwise. In relation to the allegation of the changing of the tags, the wife said that the husband’s children from the earlier marriage did some of the tagging and there were three or four presents set aside from the husband as well. As the wife submitted herself to cross-examination and was emphatic in her evidence, I have no reason to doubt what she said was true.
On the matter of gifts generally, the wife was cross-examined about her thwarting the attempts by the husband to give the children presents. It was asserted that the children were informed they were coming from her not from the husband. It was suggested that the wife had an ulterior motive to cut the husband out of their lives. The wife’s answer was illuminating. She said that the gifts were inappropriate and excessive in nature. She said they were not age-appropriate and the clothing did not fit. She gave an example of a calendar relating to football for L and also jewellery. She said that there were computer games for the children which were marked for aged 15+ which had examples of swearing, fights, drug deals and rape. She said there were between 20 and 30 games some of which she had confiscated and others which she gave to the children if they were appropriate. She said the ones that depicted the rape were obnoxious. I have no reason to doubt what the wife said was true and it indicates the inability of the husband to understand the needs of his own children.
After the separation, the husband said he provided a mobile telephone and a laptop to assist in the communication with the children. He said the internet was subsequently disconnected and he paid for an internet connection in the name of the wife’s sister. That lasted only for one month. One might criticise the wife if she had thwarted the husband’s communication after those efforts but the evidence of the wife about what happened was plausible. She said that as a bankrupted person, she could not obtain any of the communication service-providers to give her those connections.
The husband complained about the fact that he became aware through his solicitor that the wife had a mobile telephone provided for her at work yet the wife would not provide the facility for his opportunity to speak to the children. He also provided a laptop and noted that the wife had a work laptop. Having regard to the obligations of the wife for work purposes and her absences from home, it is not surprising that the husband was unable to use those means to communicate with the children. I find that the husband was reticent about providing a dedicated realistic communication means at his expense that would have ensured regular contact with the children.
The husband said that emails with the wife were full of abuse and demands for financial assistance. Having regard to what the wife was dealing with in financial terms, I am not at all surprised that she was endeavouring to have the husband provide some financial assistance.
I have already referred to the behaviour of the parties at the school incident and the wife’s evidence about what occurred during the relationship. In his evidence, the husband criticised the wife for having sought intervention orders against him and not proceeding with them. The inference to be drawn from that was that they were without foundation. However, the wife said that there is now a permanent final intervention order for an indefinite period. Curiously, in filing their respective documents, neither mentioned it. The husband’s counsel seemed unaware of it. I am satisfied that the order exists.
The husband in vague evidence, referred to having received “visits” from unknown persons who threatened him. He said he did not report the matter to the police; he provided no detail. If I was expected to infer that the wife was responsible for this conduct and for some particular motive or purpose, I do not on the evidence.
The wife too said that she had had a visit from a person who gave a fictitious name endeavouring to ascertain whether she was living at a particular property. This occurred when the children were being cared for by a nanny who subsequently resigned, according to the wife, out of fear. The husband admitted that he sent a friend to the house because the wife had continually maintained that she had been evicted from a particular property and was living with her grandmother and that was blatantly untrue. The wife was not tested about that evidence. She said that she was not living at the address known to the husband because of the fear she had of him. The fact that the husband would take the course which he seems to have taken gives me cause for concern about whether his focus was in relation to the children or on some conduct of the wife. The wife said that when there had been Skype communication between the husband and the children, he had asked the children inappropriate questions about the relationships of the wife and her conduct. That evidence was unchallenged. In addition, it was difficult to get the two younger children to concentrate. I am not surprised as they would not know the husband.
The wife complained about the husband’s behaviour saying that she was abused by him through emails. The wife resorted to dealing with the husband’s solicitor. Even there, the solicitor had to contact the wife and alter times advising her that the husband had either slept over his alarm or had some other “personal drama” that distracted his attention from the time when he should have been talking with the children.
It is quite clear that the relationship between the husband and the wife is very poor. The wife gave evidence that J had seen the husband physically assault her, verbally abuse her and, at a time when she was in hospital with L, the husband removed many of the household things and took them to America. The wife attributed some of the husband’s behaviour to depression but his response to that was that he did not “currently suffer from any depression disorder nor any mental anxiety”.
In his affidavit, the husband said that he was paying child support of $836.50 per month as a result of an assessment on 22 April 2010 but the wife said that it is now substantially reduced. She attached to her affidavit their child support transaction statement that showed a payment of $540.27 in June and $259.97 in July.
The husband said that he could not afford to continue providing the support for the wife. I have not had the opportunity to hear the evidence in respect of the financial matters but having regard to the preliminary issue about the husband’s ability to attend Australia and the fact that he has had his legal costs paid by persons other than himself, along with the offer to fly the children to the United States, I conclude that his financial support for the children is at best modest.
The husband said that he sought an order that all children spend time with him overnight when he was in Australia although he admitted that L may need a period of adjustment before she might feel comfortable. Whilst counsel for the husband quite sensibly did not proceed with any such proposal, the very fact that it was made indicates that the husband has little understanding of the problems that he has created and little insight into how a relationship can be developed in the future with C and L.
Having regard to all of the matters above, there is little about which I can criticise the wife in respect of her parenting ability but I have little upon which to commend the husband.
It would be folly to say that parents of children whose relationship has disintegrated in dramatic circumstances should put all of that aside and sit down and concentrate on what is best for their children. Most parents would be expected to be heard to say that they have their children’s interests at heart and that the proposals they are making are in the best interests of their children. It is a truism however that actions often speak louder than words. Financial and emotional consequences of relationship breakdowns take a toll on the capacity of parents to act co-operatively and often, as here, they need the intervention of the Court with orders. Ultimately however, the focus of the Court must predominantly be on the best interests of the children when making orders. I turn then to the legal issues.
The power of a court to make parenting orders relating to children is set out in Part VII of the Act.
The community’s expectations for its children can be seen in the objects and principles in the Act underlying how parenting orders are decided. The Act says its intention is 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.
Because of my findings on the evidence above, there are significant difficulties for these children in attempting to make orders which ensure that those objects are met.
In addition to the objects of the relevant part of the Act, the Act also has underlying principles to those objects. They provide 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).
It will be seen that there are various problems achieving those principles.
Section 60CA requires of a court the following:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
The consideration of what is in the best interests of a child must always be seen in the context of the objects and principles set out above. They are the ideals but the Act turns to and requires the court to consider a number of considerations about how to endeavour to achieve those best interests (s 60CC). Perhaps for the purposes of giving the Court an opportunity to see whether its aspirations for children can be achieved, the Act also requires the Court to look historically at how the parents have facilitated and/or taken up the various opportunities to involve themselves and each other in their children’s lives.
After contemplating those considerations, the Act then requires the Court to presume that it is in the best interests of a child that the parents have equal shared parental responsibility (s 61DA). That presumption may be rebutted if the Court is either satisfied about certain family violence and abuse issues or that it is simply not in the best interests of the children for their parents to have that responsibility (s 61DA (2) and (4)). If the presumption is not rebutted, the Court is required to consider a sharing of time of the children between parents if it is in their best interests but also whether that concept is reasonably practicable (s 65DAA).
All of those matters are brought into sharp focus in this case because:
1.the husband seeks an orders for equal shared parental responsibility and it is opposed by the wife who seeks to be solely responsible; and
2.the husband is currently in the United States and seeks a limited form of electronic communication with all three children and the wife opposes that.
The Full Court in Starr and Duggan [2009] FamCAFC 115 confirmed earlier views that Part VII of the Act does not mandate any particular order of approaching all of these things.
In Cowley & Mendoza [2010] FamCA 597, Murphy J said that as a result of the High Court’s decision in MRR v GR [2010] HCA 4, he had cause to review that approach. Murphy J said that it was necessary to first decide whether the power to make parenting orders was invoked particularly because of s 65DAA. The High Court said:
Section 65DAA(1) is expressed in imperative terms. It obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each of the parents (par (a)) and the question whether it is reasonably practicable that the child spend equal time with each of them (par (b)). It is only where both questions are answered in the affirmative that consideration may be given, under par (c), to the making of an order. (emphasis mine)

Section 65DAA commences by referring to a situation in which a court is making a parenting order that provides for the parties to have equal shared parental responsibility. That consideration must be undertaken first. Murphy J said that too in Cowley & Mendoza at para 38:
….it seems to me necessary to first make findings necessary to decide whether the power is invoked: namely, findings about whether an order “is to provide that a child’s parents are to have equal shared parental responsibility for the child”.
That in turn, requires consideration of s 61DA, which in turn, requires a consideration of whether the presumption is rebutted. The argument is circuitous and with respect, does not alter what the Full Court said in Starr and Duggan (supra) that there are no statutorily defined steps. It makes sense however to first determine (s61DA(2)):
…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:
(a)abuse of the child or another child who, at the time, was a member of the parent's family (or that other person's family); or
(b) family violence.
The importance of that determination is that if such a finding is made, using the words of s 61DA(2), “the presumption does not apply”. Because of the mandatory nature of the provision, that should be the first finding.
If the presumption does not apply, s 65DAA does not apply.
If s 61DA(2) is not applicable, the second consideration in s 61DA(4) arises. That provision says:
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.
This is a different consideration to the one above because it requires the court to make a finding that there is something about the parties that would lead the court to think that it would not in the future be in the best interests of the children for the parents to have a responsibility which requires them to somehow equally share what is defined in s 61B as:
in relation to a child, …… all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.
Section 61C provides that each parent has that parental responsibility subject to any order of a Court in force from time to time.
Parental responsibility for long‑term care, welfare and development issues is now defined in s 4(1) of the Act as follows:
major long‑term issues, in relation to a child, means issues about the care, welfare and development of the child of a long‑term nature and includes (but is not limited to) issues of that nature about:
(a)      the child’s education (both current and future); and
(b)      the child’s religious and cultural upbringing; and
(c)      the child’s health; and
(d)      the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with a parent.
Thus, one of the considerations that must be undertaken is whether it is in the best interests of the children for their parents to equally have the responsibility for those major issues. Even a cursory examination of them can show that those decisions are the major planning events in the life of a child. The Act requires parents to confer about these things.
Section 65DAE removes the responsibility for parents who have equal shared parental responsibility to confer about things which are not major long-term issues. The distinction between responsibilities that are or are not major let alone long-term decisions must remain vague because of the many and varied circumstances that occur each day in different families.
But what then are the circumstances under which the s 61DA(4) provision should be applied having regard to the clearly expressed importance of parents being involved in the lives of their children as shown above in s 60B? The Full Court in Chappell & Chappell (2008) FLC 93-382 gives some guidance at [75]:
…We accept that in determining what is in the child’s best interests the Court must take into account the prescribed matters in ss 60CC(2) and (3), one of which requires the Court to consider whether it would be preferable to make the order least likely to lead to the institution of further proceedings. In our view, it would be an appropriate exercise of discretion in some cases to find that application of the presumption would not be in the child’s best interests because the track record of the parents would suggest a high probability of deadlock, which would inevitably lead to further proceedings. In such cases, however, the process of reasoning required to rebut the presumption would involve findings related to the welfare of the child, rather than findings concerning, for example, the likelihood that schools and hospitals would find it easier to deal with one parent rather than two.
With those words in mind, I then turn to the first consideration which relates to family violence.
Looking just at family violence, the definition in s 4 makes clear the issue to be assessed. It says:
“family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
In her evidence, the wife said that J had witnessed the husband assaulting her. This evidence was in the context of endeavouring to explain J’s night terrors and general bad behaviour. Whilst normally, that evidence would not be of assistance, I note that the husband did not deny it in his evidence in reply.
Thus, I have accepted the wife’s evidence about the incident at the school, the abusive telephone and email messages, the sending of the husband’s friend to see if the wife was living at a particular house and to a limited extent, the evidence of assaults witnessed by J. It was the wife’s evidence that she does not want the husband to know her current whereabouts because she fears for her safety. I can readily infer that she is apprehensive about her well-being or safety. The question remains as to whether the husband’s conduct creates a fear or apprehension that is reasonable. It is an objective test. The wife was a convincing witness and having read the husband’s views about a number of matters on which I have been critical, I find that her fear or apprehension is reasonable in the circumstances.
The presumption to which I have referred must therefore be rebutted.
The rebuttal of the presumption does not end the matter. It is still necessary to consider whether it is appropriate and in the best interests of the children, for their parents to have what the law currently provides for them, namely, parental responsibility for the children.
Section 65DAC provides some assistance because it notes that if parenting responsibility is to be “shared” and a decision involves a major long-term issue, that decision is required to be made jointly. That must mean no more than an attempt must be made by a coming-together of the minds. It is illogical to expect “jointly” to mean that the parties must agree because in many cases, that would not be possible. “Jointly” must therefore be used in the sense of the opposite of a unilateral approach to decision-making. That view is reinforced by s 65DAC(3) which requires parties to consult and make a genuine effort to come to a decision.
In Bereat and Beareat (2010) FamCA 693 Murphy J (at paragraph 54) observed that the exclusion of a parent from having all of the powers, duties and responsibilities of a parent by a “sole parental responsibility” order was a very significant interference with the “fundamental rights of a person”. To remove that parent’s parental responsibility requires an order under s 61D(2) which must expressly provide for all or some removal of the responsibility. One aspect of parental responsibility is the obligation to consult and make a genuine effort to come to a decision. That type of order should only be made where the consultation would be pointless or dangerous but even so it would not remove parental responsibilities. Those responsibilities could still be exercised in relation to major long-term issues if the responsibility was seen as a right to have a say. As Murphy J said in Bereat (supra) it would be a significant interference with the parental right to eliminate that “say” but it is one that should be removed if it was obvious that the parents’ inability to reach agreement would be likely to be contrary to a child’s interest.
In this case, the parties cannot consult one another without resorting to criticism and abuse. I find that the husband is more at fault than the wife. The wife has a reasonably-held apprehension of fear of the husband which adds to the likely preclusion from successful communication let alone negotiation.
In respect of J’s mental health issues, there is a real risk of disagreement about the necessity for assistance because the husband blames the wife’s parenting in excluding him from J’s life for the problem and the wife blames the husband’s contact with J for the child’s behaviour. Agreement is therefore impossible to imagine.
In respect of medical decisions about C, the wife tried to contact the husband when the child was hospitalised and the husband was slow to respond but then accused the wife of endeavouring to exclude him from information. In an emergency situation, such an impasse must be dangerous for the child’s welfare.
The parties disagree about changes to the living arrangements of the children to the extent that the husband was prepared to send a friend to check on what the wife was asserting. The uncertainty for her living alone at night expressed by the wife as well as the loss of a nanny because of it, could not be good for the children. Discussion about where the children lived and who cared for them could do nothing for the stability of these children and would most likely end in an impasse after an argument.
There are clearly cultural issues in dispute about what exposure the children should have to simple things like toys. Discussion and consultation on those issues would appear likely to lead to dispute and leave the wife in a difficult position of trying to protect the children from the adverse effects of the gifts sent by the husband but also exposure to issues that she sees as inappropriate for their ages. I take into account that the wife has a much better understanding of the children than does the husband. It is therefore impracticable in this case to expect agreement to arise out of consultation.
This is a case therefore where there should be a specific order relieving the wife of the consultation obligation on major long-term issues.
Having regard to the attitude of the husband towards the wife as set out above, this is a case where permitting the husband to exercise his parental responsibilities about major long-term issues is likely to be pointless and lead to disputes which have indirect destabilising consequences for the children as well as consequences of a financial nature for the wife.
In the circumstances however as the husband has at least shown a desire to know what is happening with his children, the wife should advise him of the decisions that she makes.
There is no reason why, as an incidence of parenting responsibility, decisions cannot be made by the wife but that she have the obligation to notify the husband. That is the order that I intend to make.
As to what sort of order should be made, the provisions in s 60CA, guided by s 60CC, must be followed.
It is a primary consideration under the Act that children have the benefit of a meaningful relationship with both parents. Because of the findings I have made above, it is difficult to see at this stage, how any relationship with the husband can be formed with the two younger children on such a limited electronic communication process. The continuation of the relationship with J by the same electronic means has done nothing other than create anxiety in the child as is evident by the statements of the wife as to what has happened after contact has occurred. Be that as it may, J does understand that he has a father and if he is ever to have any relationship with his father, the opportunity must be maintained for some form of relationship. In the circumstances, the only way I can see that happening is by a Skype communication which at this point in time should be simply between the husband and J on a Sunday morning but at the expense of the husband. That expense will include the provision of all of the necessary electronic equipment, the connection of the internet provider service by him and the provision of the necessary equipment.
The second primary consideration is the need to protect the children from physical or psychological harm from being not only subjected to family violence but the exposure to abuse and family violence. The findings above indicate that the Court should take seriously the husband’s lack of responsibility. It is not appropriate that I order the husband to contribute towards the continuation of any psychological assistance for J because that is a matter that may be the subject of the financial disputes between the parties. However, if the aftermath of the various electronic communication is as the wife’s describes and there is some corroboration of that, it cannot be in J’s best interests for it to continue into the future.
Section 60CC also sets out some additional considerations. All of the children in this case are too young to have a view about what sort of relationship they should have with the husband. I am satisfied that there is no relationship of any substance with any of the children other than J and that J is expressing confusion as to exactly what role his father is playing in his life. On the other hand, the children enjoy a very close and loving relationship with their mother and the continuation of the sorts of things that J has been enduring is destabilising the relationship between mother and child. That is a matter that needs to be protected.
I am obliged to take into account the willingness and ability of each of the parents to facilitate and encourage a close and continuing relationship between the children and each of the parents. I am satisfied on the evidence that the wife has made efforts to continue the relationship with the husband from afar notwithstanding the husband’s complaints to the contrary. The husband on the other hand, has failed to meet the necessary obligation such as is indicated by the calls to the wife by the husband’s solicitors often times because of problems that the husband faced. He will need to get his priorities right.
There is no consideration at this stage to any orders that the children have face to face time with their father nor that they travel out of Australia. I do not intend therefore to look at the question of the likely effects of separation from their mother. That is a matter for another day.
There are clearly practical difficulties associated with the husband spending time and communicating with J. However, I am satisfied that the husband has sufficient access to funds to be able to pay lawyers and to make an offer under oath of transporting the children to the United States. The maintenance of an internet connection and the provision of the necessary equipment for a Skype connection ought not be a serious impediment from a financial point of view.
Section 60CC requires that I consider the capacity of each of the child’s parents to provide for the needs of the children including their emotional and intellectual needs. It will be clear from what I have said above that I have no concerns about the mother’s care of the children and the provision of the needs of all the children. I have to say that on the evidence that I am very confused as to exactly what the husband is endeavouring to do and I do not understand exactly what the limit of his capacity is.
I have taken into account also that the husband has not exercised a responsible attitude towards the obligations of a parent. Whilst he has indicated his problems of remaining in the United States, it is clear on the evidence that he chose that option.
I have already made findings about family violence and the fact that there is now a family violence order in existence. Those matters give no credit to the husband as a responsible parent nor as a role model for his children. It is important that the children are protected from that sort of behaviour.
I am also entitled to take into account what orders would be preferable to lead to the end of proceedings. I do not intend to close the door on the husband at this stage but at this point in time there are no other orders that I can envisage which would satisfy me that the best interests of the children can otherwise be met.
Sections 60CC(4) and (4A) look historically at what the parents have done. I find that the wife has endeavoured to provide for the children under extremely difficult circumstances both physical and financial. The husband has yet to prove that he is really serious about providing properly for the children. The husband’s position about attacking the wife does little to his credit.
In the circumstances, the appropriate orders that will give some prospect of J having a meaningful relationship with his father are that he have an opportunity to communicate via Skype once each week on a Sunday morning at 10.00am Australian time but on the basis that the husband sets up all of the necessary equipment and arranges for the payment of an account to a service provider. I appreciate that will be difficult having regard to the fact that the wife does not wish the husband to know her whereabouts. In my view however that is a view that the husband will need to overcome either by convincing the wife that he is not a threat to her or alternatively providing the necessary funds into the hands of the solicitor so that there is an irrevocable order for the payment of a new account set up by the wife. I do not propose to make orders in respect of that issue at this stage because I do not know the effectiveness of those orders.
The matter can otherwise remain listed for the financial matters to be determined later in the year.
The wife also sought an order that she be given permission to change the names of the children. She said the reason behind that was that she lived in a small community where the “Hillier” name was not appreciated and the children were the subject of derision. Any such order allowing the change of name of a child fits into the category of major long term issues under the Act and falls to parental responsibility. This is a case however where on the evidence, I would not be prepared to allow the wife to change the children’s names. By the orders I am making, the children’s relationship with their father is severely restricted and the retention of the Hillier name may at least give the children an opportunity to question their parentage in the future. Whilst the husband’s name may be not popular in the small location where the wife lives, the use of their surname by the children would be on limited occasions having regard to their current ages. In those circumstances, it would not be appropriate to allow the wife to have the ability to change the surname at this time.

I certify that the preceding One Hundred and Twenty One (121) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 13 October 2010

Associate:

Date: 13 October 2010

[2010] FamCA 918

13 October 2010

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies

Procedural Fairness