HILLMAN & HILLMAN
[2018] FamCA 488
•29 June 2018
FAMILY COURT OF AUSTRALIA
| HILLMAN & HILLMAN | [2018] FamCA 488 |
| FAMILY LAW – CHILDREN – where siblings are split – where attempts for time to occur between siblings has been problematic – where each child is aligned with their respective primary carer ‑ where both children have been exposed to psychological harm by both parents where no prescribed orders for time with the parents have been made –where any orders for the siblings to spend time with each other and to spend time with their non-primary carer is likely to lead to further proceedings – best interests decision. |
| Family Law Act 1975 (Cth), ss. 60B, 60CC, 61DA, 65DAA, 68B |
| Goode & Goode [2006] FamCA 1346 McCall & Y (2009) FLC 93-405 |
| APPLICANT: | Ms Hillman |
| RESPONDENT: | Mr Hillman |
| FILE NUMBER: | BRC | 1750 | of | 2016 |
| DATE DELIVERED: | 29 June 2018 |
| PLACE DELIVERED: | Brisbane |
| PLACE HEARD: | Brisbane |
| JUDGMENT OF: | Baumann J |
| HEARING DATE: | 14 & 15 June 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Evans & Company Family Lawyers |
| THE RESPONDENT APPEARED IN PERSON |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr W Hodges |
| INDEPENDENT CHILDREN’S LAWYER: | Barbara Fox Solicitor |
Orders
That all previous parenting Orders be discharged.
That the child B born ... 2003 (“B”) live with the father and he shall have sole parental responsibility for major long term issues in respect of B.
That the child C born ... 2006 (“C”) live with the mother and she shall have sole parental responsibility for major long term issues in respect of C.
That C spend no time with the father unless agreed or as expressed by C.
That B spend no time with the mother unless agreed or as expressed by B.
That the parents shall:
(a)not discuss these proceedings (either parenting or financial matters) to or in the presence or hearing of the children and use their best endeavours to ensure that no third party discusses these proceedings to or in the presence of the children;
(b)not denigrate the other parent to or in the presence or hearing of the children and use their best endeavours to ensure that no third party denigrates the other parent to or in the presence of the children;
(c)not leave within view or within access to the children any Court documents of any kind whatsoever;
(d)keep the other parent informed of any significant illness or injury which is suffered by the child in their care; and
(e)to facilitate any communication for the purposes of Order 6(d) and Order 8, and further should either child express a desire to spend time with the other parent (under Orders 4 and 5), the parents shall provide within seven (7) days an email address for the receipt of such communications.
That any orders restraining the children from leaving the Commonwealth of Australia (and ancillary Airport Watchlist orders) are specifically discharged.
That if the mother seeks that the child C travel outside of Australia, she must, not less than twenty one (21) days prior to departure, provide to the father (by email) in writing notice of the intended travel, accompanied by a return airline ticket (or cruise boat ticket) for C.
That pursuant to s.68B of the Family Law Act 1975, the father be restrained and an injunction issues restraining the father from seeking to approach, attend or contact the child C at her school U School (or such other school as she may attend), including school based extracurricular sport and other activities unless such attendance has the prior written consent of the mother.
That the appointment of the Independent Children’s Lawyer be discharged.
That the property proceedings be listed for Directions at 9.30am on 3 August 2018 in the Family Court of Australia at Brisbane.
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 Hillman & Hillman 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 BRISBANE |
FILE NUMBER: BRC 1750 of 2016
| Ms Hillman |
Applicant
And
| Mr Hillman |
Respondent
REASONS FOR JUDGMENT
Introduction
The history of this matter as set out later in these Reasons, creating as it has toxic and entrenched conflict between the parents, the Applicant mother Ms Hillman and the Respondent father Mr Hillman, has resulted in the current separation of two siblings – each of whom live with one of the parents.
The trial explored to some extent how the situation has reached this sad position and, after many attempts to advance the relationship positively, whether any other strategies are likely to achieve a better outcome for the girls, B (aged 15 in August this year) and C (aged 12), that can be shaped by orders of the Court capable of enforcement, is the issue.
As the reasons below hopefully demonstrate, the Court has reached the regrettable conclusion that the best interests of both children cannot be achieved by Court orders, such that a less than optimal outcome remains until the girls (or B at least) reaches adulthood.
Statutory framework
In all cases involving parenting orders, the child’s best interests are the Court’s paramount consideration. In determining those interests the Court must consider not only the objects of s.60B of the Family Law Act1975 and the right of a child to have a meaningful relationship with all those people significant to them, but also the primary considerations under s.60CC(2) and the additional considerations under s.60CC(3) which will be analysed below to ensure that the order I propose will serve the best interests of the child.
To the extent possible, the Court should ensure orders made do not expose a party or a child to unacceptable risk of harm through family violence, abuse or neglect.
In certain circumstances the Court applies a statutory presumption that it is in the child’s best interests for parents to have equal shared parental responsibility (s.61DA(1)), which relates to making major decisions and not about the time a child spends with each parent.
In Goode & Goode [2006] FamCA 1346 the Full Court made it clear that the presumption that equal shared parental responsibility is in the best interests of the child (s.61DA) does not carry with it any presumption about time. The issue of equal time is dealt with in s.65DAA and “when the presumption is applied the first thing the Court must do is to consider when making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interest of the child or reasonably practicable the Court must go on to consider making an order whether it is consistent with the best interest of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents”.
Competing proposals
By final submissions, delivered by Solicitor Advocate Mr Brandon on behalf of the mother and Counsel for the Independent Children’s Lawyer (“ICL”) Mr Hodges, their position was similar, in that:
a)the mother did not seek any specific orders in respect of B, however she did not oppose, as the ICL proposed and the father sought, an order that B live with the father and that he have sole parental responsibility for B and that there be no defined time orders for B to contact the mother. I propose to make such an order;
b)the ICL and the mother both sought orders that C live with the mother and that the mother have sole parental responsibility for her major long term decisions, and there be no defined time orders for her to contact the father;
c)although the ICL, in a Case Outline filed 12 June 2018 proposed an order that the parents facilitate the children spending time at least once a month for two hours, to be in the presence of Ms R from E Group (at the joint expense of the parents), by final submissions no such order was sought by either the mother or the ICL;
d)the ICL sought fairly standard specific issues orders relating to non-denigration and no access to Court documents; and
e)the mother sought injunctions under s.68B of the Family Law Act 1975 with very wide application, in the following terms:
4. That pursuant to section 68B of the Family Law Act 1975, the father be restrained and an junction issue restraining the Father from:-
(a) Entering or approaching to within 100 metres from:-
i. any school which the child attends;
ii. any place the child participates in extra-curricular or out-of-school activities, including sporting activities;
iii. any place where the child is residing or staying from time to time; and
iv. any place where the child is from time to time.
(b) Contacting the child by any means, including but not limited to, telephoning the child, texting the child, by email or through her friends;
(c) Approaching the child; or
(d) Seeking to locate the child.
The father represented himself with the assistance of a MacKenzie Friend. His proposal, as articulated in his “final orders sought” document filed 11 June 2018, did not significantly alter by final submissions and is reproduced now as articulated by the father, namely:
1. That the children live with the father.
2. That all previous parenting orders be discharged.
3. That the mother is not to bring the children into contact with [Mr L].
4. Tat the parents are free to communicate via telephone, text or other means in all matters regarding the children.
5. That the parents may arrange to meet with the children by way of agreement in writing.
6. That the mother spends supervised time with both children on a weekly basis. That the duration is for 2 hours to be supervised by [Ms S] from [T Group] ...
7. That [Ms S] is to provide a report after an initial 4 visits, to be sent to the ICL.
8. That the supervised visits end as per [Ms S’s] recommendation.
9. That the child [C] will spend 2 days per week with the mother as per agreed by the parents. Those days to be flexible to fit in with the mother’s work commitments.
10. That the child [B] is to spend time with her mother as per agreed between the mother and [B].
11. That the mother is not permitted to take the children outside of Australia without the written permission by the father.
12. That the children remain on the current Airport Watchlist.
13 That [C] is to live with the mother on a week about arrangement from the 1st of December 2018.
14. That the children may choose the parent they live with on their respective 16th Birthday.
15. That the Children be with the Father on Father’s Day, on his Birthday from 9am to 6pm should the child/children be in the mothers care on those days.
16. That the children be with the Mother on Mother’s Day, on her Birthday from 9am to 6pm should the child/children be in the father’s care on those days.
17. That the parents are not permitted to denigrate each other in front of the children.
18. That the parents are not permitted to denigrate the other parent to other family members.
19. That the QLD Police is ordered to enforce the orders made in this order.
20. That the parents share the parental responsibility for the children.
21. That any decision about major long-term issues affecting the children are to be made jointly by the parents, where each parent is required to consult the other parent, unless a Judge makes a different arrangement.
22. That both children attend to the same school.
23. That the parents have full access to all medical, academic and other records held by any expert or professional.
24. That either parent is not permitted to track or monitor the movement of any family member without their knowledge or consent.
25. That the wife pays the husband costs and incidentals to the amount of $30,000 to this application.
As is readily apparent, the father seeks an immediate change of residence for C – which would, on his case, also mean a change of schooling for C from U School to V School (where B has been attending since the beginning of the 2018 school year).
Before dealing with the contextual history in some detail next, it is appropriate to make an observation about each parent and their credit, although only Mr Brandon for the mother (in his written submissions) made a final submission as to credit, namely that the mother was “an honest and truthful witness who freely made concessions where appropriate”, whilst the father “was deliberately obtuse. He did not answer any question directly. He was dishonest.”
In my view, it is not necessary to do justice in this case to make any general overarching credit findings, save for me to observe that:
a)each parent, I am satisfied, truly loves both children;
b)each parent has little respect or trust for the other parent; and
c)each equally, and sadly, have some diminished insight into how they have contributed to the breakdown – and current estrangement – in the relationship between B and her mother and C and her father.
Both parents demonstrated, in the witness box, a degree of “emotionality” which I infer has been exacerbated by the history of conflict, particularly since separation. To the extent it is necessary to do so on a particular fact, to prefer one parent’s version over the other, I give brief reasons why I do so.
Contextual history
Statements of fact hereafter should be construed as findings of fact. I choose not to deal with every piece of evidence offered to the Court, mostly about the history. I acknowledge the effort demonstrated by the solicitors for the mother in compiling an Affidavit (about parenting issues), comprising 599 paragraphs with two bound volumes of tendered documents (prior to the change in Rules likely to have been annexed or exhibited) approaching 900 pages. It is not necessary to deal with all this material, as I am satisfied the following summary accurately identifies the major events.
The parents met in China, at a time when the father (European by descent) was working there and the mother (Chinese by birth) was living there.
The parties immigrated to Australia later in 1993 after marrying in City P in that year. The father was 36 years of age and the mother was 25 years of age, and the parties worked to establish a business which was initially successful.
Although the trial only dealt with parenting issues, competing proposals for property adjustment remain to be determined by the Court and, in my view, there is no doubt that the business falling into receivership has added financial strains to the post separation relationship and caused the mother to rely more heavily upon the financial support of her parents (who are residents of China but who spend many months each year in Australia), then she may like to do.
B was born in 2003 (and will soon turn 15), and C was born in 2006, and is now 12 years of age. Later in these Reasons I discuss more fully the allegations of family violence made by the mother (which the father generally denies), however it is a matter of record that on 9 October 2003 (when B was about seven weeks old), the Police attended the family home as a result of a domestic dispute and subsequently made an Application for a Protection Order against the father. The Application did not proceed.
Although the parents give differing accounts about the levels of happiness and/or tensions in the family home over the first 13 years of marriage, it is not in dispute that on 3 February 2016 a physical incident between the parents caused the mother to leave the family home, with the children remaining in the home. Both parents regard this date as the date of final separation.
Almost immediately after separation a litany of email and text communications between the parents commenced - many making statements the parties now regret. The mother says, and I accept, that in the period between 3 February 2016 and 10 February 2016, the father sent nearly 80 text messages to the mother.
A Temporary Protection Order sought and granted to the mother on 9 February 2016, I infer, caused communication to then be facilitated between solicitors. Because it was not possible for the parties to agree on care arrangements, the mother filed proceedings in the Federal Circuit Court on 29 February 2016. The father says the mother had no need to commence proceedings. The mother, who was not spending any time with the girls (and where the father had on 19 February 2016 stopped the girls attending school for fear that the mother may go to school and remove them (see Exhibit 5)) felt she had no option but to commence proceedings. I agree.
On 7 March 2016, Judge Cassidy made orders in the following terms (so far as parenting orders were made):
1. That the children, [B] (D.O.B. ...2003) and [C] (D.O.B. ...2006), shall live with the parents on a week about basis with handover on Fridays with the Mother to collect the children on 11 March, 2016 at the conclusion of school on the school premises.
2. That the children attend upon Ms G, psychologist, for counselling specifically in respect of issues arising from the parent’s separation with the parties to attend upon the psychologist as and when directed AND FURTHER leave is granted to provide the Psychologist with any documents filed in these proceedings regarding parenting.
3. That, in the event that the psychologist forms the view that either or both of the parents have not ceased or have commenced to involve the children in adult issues, specifically the dispute between the parents, then the parties shall authorise and instruct the psychologist to prepare a written report confirming and detailing such view, including identifying the parent (or the parent if only one) undertaking such conduct.
4. The therapy in Order 2 is, save for as provided in Order 3, non-reportable.
5. That the parties attend Family Report interviews with an agreed Report writer, failing agreement, the Mother will panel three (3) Report Writers from which the Father shall select one (1) with the interviews to occur as follows:-
(a) No later than 4 months from date of these Orders; or
(b) As soon as possible following the psychologist rendering a Report pursuant to Order 3
whichever occurs first in time PROVIDED ALWAYS THAT the Family Report Writer’s appointment shall be pursuant to Rule 15.09 of the Federal Circuit Court Rules with the parties to meet the cost of the report equally.
6. That the parties are restrained from involving the children in or speaking with the children about matters the subject of these proceedings.
7. That within 24 hours of the date of these Orders the Mother shall advise the Father, via their respective Solicitors, of the address or her new rental accommodation.
8. That the Father continue his psychological treatment with Clive Jones and the Wife shall commence to undertake counselling to deal with separation issues.
9. That the parties undertake and complete a recognised Parenting Orders Programme.
10. That, handover during school holidays shall occur at the child, B’s swimming lesson with the parent with the care of the children to deliver the children to swimming and the other parent to collect the children at the conclusion of the swimming lesson PROVIDED THAT the parents make arrangements for B to swim on a Friday PROVIDED FURTHER THAT handover on Good Friday (25/3/16) shall occur at 3 pm at the front of the Mother’s gated residential complex.
11. The parents shall use a communication book to communicate about matters pertaining to the children only.
12. That neither party relocate the residence of the children from M Town area.
13. That the Mother not bring the children into contact with Mr L.
…
22. That each party, [MS HILLMAN] born …, 1968 and [MR HILLMAN] born …, 1957 their servants and/ or agents be and are hereby restrained by injunction, and irrespective of authenticated consent as contemplated by Part VII of the Family Law Act 1975, from removing or attempting to remove or causing or permitting the removal of the children, [B] born ..., 2003 and [C] born …, 2006 from the Commonwealth of Australia.
23. That the Australian Federal Police are requested to give effect to this order by placing the names of the said children, [B] born …, 2003 and [C] born …, 2006 on the Family Law Watchlist in force at all international ports of arrival and departure in the Commonwealth of Australia and maintain the said children’s’ names on the Watchlist until further Order."
It was to be hoped that the orders for equal time, having been made by consent, would have been complied with and the heat in the parenting aspects of the dispute would ease. Sadly, and in a way, that has now shaped the outcomes some two years later that was not the case. To explain what happened after the order was made on 7 March 2016, the recording of the following orders and events make it clear, namely:
a)On 11 March 2016, the children came into the mother’s care to commence their week with her. The mother deposes to a belief the father was involving the children in the dispute and was clearly distressed with the final separation. I accept that when B came into her mother’s care she was difficult to manage. B demanded she attend church with the father the following day and when the mother refused, the child “ran away”. The father collected her. Although he denies this was a “plan” he made with B, I am satisfied the child understood the father would support her if she ran away to him;
b)Pursuant to order 2, Psychiatrist Ms G saw B and the father on 17 March 2016. On that day, being towards the end of the mother’s week, B returned to the mother;
c)Competing Applications in a Case were filed by the parents within two weeks of the consent orders for equal time. My understanding is that a report from Ms G was available to the Court, when Judge Cassidy dealt with the matter urgently on 24 March 2016; and
d)On 24 March 2016, the earlier order was varied by her Honour and on an interim basis it was ordered that:
1. That the child [B] born ... 2003 be released from the Court’s childcare facility into the care of the mother.
2. That the children [B] born ... 2003 and [C] born ... 2006 (“the children”) live with the mother.
3. That the children spend no time with the father until further order.
4. That the father be restrained and an injunction issue restraining the father from contacting the children by any means, including but not limited to, telephoning the children, texting the children, by email or through their friends.
5. That the parties and the children [B] born ... 2003 and [C] born ... 2006 (“the children”) shall attend an appointment with Family Consultant [Mr W] or such other Family Consultant as nominated by the Senior Family Consultant of the Federal Circuit Court of Australia, Brisbane at 9.00am on 1 April 2016 at the Family Court of Australia, Level 3, Commonwealth Law Courts, 119 North Quay, Brisbane.
…
This order, I am satisfied, was made even though the child B had expressed to Ms G that she wished to live with her father. An interview of the children, by a Family Consultant pursuant to s.11F of the Family Law Act 1975, occurred on 1 April 2016, and with the benefit of that brief memorandum and after ordering the child B be placed into childcare on 13 April 2016, her Honour on 13 April 2016 ordered that:
1. That [Ms X] be appointed by the parties to prepare a report pursuant to s.62G of the Family Law Act 1975.
2. That the parties shall equally share the costs of the family report.
3. That the mother attend upon [Ms Y] for treatment as recommended by [Ms Y] from time to time.
4. That the child [B] born ... 2003 (“B”) be released from the Court’s childcare on Level 3 of the Commonwealth Law Courts, 119 North Quay, Brisbane, into the care of the mother.
5. That the children [B] born ... 2003 and [C] born ... 2006 (“the children”) live with the mother.
6. That the children spend no time with the father except:
(a) Each Saturday for two (2) hours between 2.00pm and 4.00pm with a private contact supervisor as nominated by the father, with such time to commence on 23 April 2016;
(b) That the mother deliver the children at the commencement of time and collect the children at the conclusion of time;
(c) That the parties pay equally for such contact;
(d) That the mother provide to the supervisor a copy of the reports prepared by [Ms G] and [Mr W].
7. That the father be restrained and an injunction issue restraining the father from contacting the children by any means, including but not limited to, telephoning the children, texting the children, by email or through their friends.
8. That the mother ensure the children’s continued attendance upon [Ms G], psychologist, for counselling specifically in respect of issues arising from the parents’ separation.
9. That subject to any other order herein, pursuant to section 68B of the Family Law Act 1975, the father be restrained and an injunction hereby issue restraining the father from entering or approaching to within 100 metres from:
(a) The school which the children attend ([U School, M Town]); and
(b) Any place where the children participate in extra-curricular or out-of-school activities, including sporting activities; and
(c) Any place where the children are residing or are staying from time to time; and
(d) Any place where the children are from time to time.
10. That in the event one or both the children come into the care of the father by whatever means or for whatever reason, except as provided in these orders:
(a) The father is to forthwith send a single text message to the mother’s mobile telephone number … containing only the following text “I have [insert child or children’s name/s] and will be at McDonalds in [insert estimated number of minutes until arrival at McDonalds]”;
(b) The mother is to confirm by single text message to the father’s mobile telephone number … containing only the following text “I will attend at McDonalds in [insert estimated number of minutes until arrival at McDonalds]”;
(c) Upon sending the text message, the father is to forthwith deliver, by vehicle, the child or children to McDonalds …, Z Town;
(d) The father is to park his vehicle in the parking area of the McDonalds and remain in the vehicle at all times;
(e) Upon the mother arriving in the parking area of McDonalds, the father shall take all reasonable steps to cause the child or children to exit his vehicle and the father is to then leave the carpark;
(f) Within one business day of the child or children coming into the father’s care, he is to write a letter to the mother containing the following information and annexing the following documents:
(i) The time that the child or children came into his care;
(ii) His whereabouts at the time the child or children came into his care and for the three hours immediately prior thereto;
(iii) His movements for the three hours immediately preceding the child and children coming into his care;
(iv) Details of any communication he had or caused to be had with either or both of the children form the date of this order or from the date of the last letter written in accordance with this order, including:
1. Time of communication;
2. Method of communication; and
3. To the best of his recollection and with as much particularity as he is able to give, what was communicated and by whom;
(v) Any records which contain information directly relevant to the matters he asserts.
11. That the children [B] born ... 2003 and [C] born ... 2006 (“the children”) be represented in these proceedings and it is requested that Legal Aid Queensland arrange such representation, and that the Independent Children’s Lawyer be at liberty to peruse and/or take copies of all documents filed in these proceedings upon the making of an appointment to do so with the Registrar of the Family Court of Australia at Brisbane.
…”
The orders prescribed very particular requirements on the parents, however on 18 April the child B ran away again, and was located in the home of the father. As he had been drinking and was unable to drive, the Police facilitated the return to the mother’s home – which lasted until she ran away again on 23 April 2016.
e)Although the mother filed a Contravention Application on 17 May 2016 asserting numerous failures of the father to comply with orders of the Court, the mother did not pursue the Application and in fact, consented to orders requiring B to live with her to be stayed, that order being made by Judge Cassidy on 26 May 2016. By this date, since the orders of 13 April 2016, B had run away to the father on 18 April 2016; 23 April 2016; 9 May 2016; 10 May 2016 and 23 May 2016.
In just over three months since final separation, despite the best endeavours of the Court and therapists, B’s strong willed intentions not to live with the mother had been achieved. As I explain later in these Reasons, I am satisfied that this child’s actions were supported by the father who was as powerless as the mother, it seems, to control the child. An indication of the concerns felt by the experienced judicial officer Judge Cassidy, was the order inviting the Department to intervene made 26 May 2016. The Department elected not to do so.
On 23 April 2016, supervised visits between the father and both girls commenced, under the supervision generally of Ms S from an organisation called “T Group” in M Town. Ms S gave evidence and was cross examined about the supervised visits which occurred between 23 April 2016 and the final visit of 13 August 2016. Notes of most of their visits form Exhibit 10. I deal with these visits below. I am satisfied that the father informed C on 13 August 2016 that there were to be no further visits.
Importantly, as B ceased time with the mother on or about 21 May 2016, some of the later visits facilitated by Ms S from 28 May 2016 enabled the siblings to spend time together. In essence, I find, that since mid-2016 – essentially two years ago – B has lived with the father and has been aligned with him and C has continued (as she had since the early orders of Judge Cassidy) to live with the mother and has been aligned with her.
On 30 May 2016 (in the midst of all these uncertainties), social worker X conducted interviews and observations of the children and family and her report dated 23 June 2016 made the following recommendations:
(a) That the children remain at [U School];
(b) That both parents minimise their physical presence within the school grounds, apart from picking up and dropping of children, to avoid further disruption to the children in that environment;
(c) I recommend that [B] lives with her father and spends time with her Mother when she expresses a wish to do so and if this occurs that the changeover should occur at [Ms S’s] contact centre.
(i) If [B] expresses a wish to see her Mother, then I would recommend that a day visit from 10am to 2pm on either Saturday or Sunday would be appropriate, with the Father providing the Mother with at least 3 days notice via email and the Mother to confirm within 24 hours, and for the Father to then notify [Ms S].
(d) I recommend that Julie lives equally between her parents on a week about care arrangement, with the changeover occurring at [Ms S’s] contact centre on Friday afternoon at 5pm;
(e) That the children be at liberty to call the other parents at all reasonable times, but not less than daily;
(f) That the parents communication [sic] via email or text message about the children only;
(g) That neither parent expose the children to the dispute or to negative commentary about the other parents or their friends or family, nor allow others to do so;
(h) I recommend that the parents complete the following programs;
(i) The Parenting Orders Program, or another similar post separation co-parenting program;
(ii) Triple P Parenting for Teens;
(iii) An Anger Management Program; and
(iv) Ongoing consultation with [Ms G], at her direction, to support the co-parenting arrangements.
(i) That the parents arrange for [C] to attend fortnightly counselling within 2 weeks of these arrangements commencing and share those costs;
(j) That the Father ensures [B] engages with a counsellor, elected by the ICL, within the next 3 months, unless she expresses a wish to engage sooner, and that she initially attend every fortnight on a non reportable basis, however, that the frequency and duration of the sessions be determined by that counsellor. That the counsellor have a copy of the Court Orders and the Family Report.
(k) That this matter be reviewed within 12 months to assess the progress of the care arrangements, unless the ICL deems otherwise.
In mid 2016 a hearing in respect of primarily the events of 3 February 2016 between the parents was conducted by Magistrate Strofield at Suburb K. Reasons for Judgment were delivered in late 2016 (see Exhibit 3). As a result of findings on the evidence before the learned Magistrate, made by his Honour, a two year Domestic Violence Order (“DVO”) was made I am satisfied that in early 2018, the earlier DVO was extended to early 2023 (see Exhibit 2). I am satisfied that earlier the father had been found guilty of a breach of the DVO but he says, and I accept, that he has filed an Appeal against orders made in early 2018 to the District Court. In the absence of any copy of the Notice of Appeal having been tendered by the father, I am uncertain as to the grounds of appeal or the exact orders appealed. There is, at the time of the hearing before me, no evidence that the DVO of early 2018 has been stayed or varied such that I accept (subject to any successful Appeal), the order remains in force to early 2023.
On 20 July 2016, Judge Cassidy transferred the matter to this Court and expressed a wish that the matter be listed for interim determination – the report of Ms X now being available.
By the time the matter had come before Senior Registrar Spink on 15 September 2016, the following had occurred:
a)C had continued to have counselling with Ms G with visits on 2 August 2016 and 1 September 2016;
b)On 9 September 2016, Ms G wrote to the ICL expressing a recommendation that visits between C and her father cease, I infer, consistent with a view expressed by the child and because she expressed to the counsellor about “feeling anxious about seeing the father”;
c)On 26 August 2016 the children had arranged directly with each other over FaceTime, to meet at F Town Cinemas at 12.40pm with a movie to start at 1.00pm. I am satisfied that C did not expect her father to attend (he having informed her on 13 August 2016 that the visits with him would cease). He did turn up and although he denies any inappropriate questioning of the child (on her version given to the mother about who was living in the mother’s home) and after an ice cream the child felt the father become aggressive; calling her “a liar”. C ran to a retail outlet and rang her mother who immediately collected her;
d)The child expressed to the mother that she felt B had “tricked” her into coming to the cinema and about a birthday party invitation for C – when B was not having a party at all.
It follows, that the entrenched conflict between the parents was now clearly impeding the desire of both B and C to try and maintain a sibship relationship. Clearly these matters were reflected in the orders made by Senior Registrar Spink on 15 September 2016 as follows:
1. That orders 5, 6 and 10 of the orders made 13 April 2016 be discharged.
2. That the child [B] born ... 2003 (“[B]”) live with the Father.
3. That the children continue to attend [U School] at [Suburb K] unless as otherwise agreed to between the parents in writing.
4. That each parent will advise the other immediately should either of the children require any emergency medical treatment.
5. That neither parent is to:
(a) Discuss these proceedings (either parenting or financial matters) to or in the presence or hearing of the children and use their best endeavours to ensure that no third party discuss these proceedings to or in the presence or hearing of the children;
(b) Denigrate the other parent to or in the presence or hearing of the children and use their best endeavours to ensure that no third party denigrate the other parent to or in the presence or hearing of the children; and
(c) Leave within view or within access to the children any Court documents of any kind whatsoever.
6. That both the Mother and the Father are to attend upon Dr AA, Psychiatrist, for assessment as directed by the Independent Children’s Lawyer.
7. That the Mother and the Father undertake, if they have not already done so, the following programs as soon as reasonably practicable and provide a copy of their certificates of completion to the Independent Children’s Lawyer:
(a) Parenting Orders Program;
(b) Triple P Parenting; and
(c) Anger Management.
8. That for the purpose of the parties undertaking the programs as provided for in order 7 herein each parent must do all acts and sign all documents necessary to enrol within seven (7) days of the date of order and confirm their enrolment with the Independent Children’s Lawyer.
9. The Mother and the Father are to facilitate the children’s attendance with CYMHS as directed by the Independent Children’s Lawyer if deemed necessary after discussions with the children’s counsellor Anne G.
10. That the child [C] born ... 2006 (“the child”) live with the Mother.
11. That [C] spend no time with the Father unless as agreed between the parents in writing or as expressed by [C].
12. That [B] spend no time with the Mother unless as agreed between the parents or as expressed by [B].
13. That the parents facilitate [B] and [C] spending time with each other at all times as agreed between the parents or as requested by the children but if no agreement at least:
(a) Each alternate Sunday from 10.00am to 3.00pm, commencing 25 September 2016; and
(b) Telephone communication at all times facilitated by the Mother and the Father.
14. That the requirement for the children to spend time together be vacated during the period 25 December 2016 and 6 January 2017.
15. To facilitate the time as provided for in Order 13(a) herein the following shall apply:
(a) The Mother is to deliver [C] to outside the entrance to the cinema at F Town and collect her again at 3.00pm;
(b) The Father is to deliver [B] to outside the entrance to the cinema at [F Town] and collect her again at 3.00pm;
(c) The Mother is not to depart until the child [B] has arrived and is united with [C];
(d) The Father is not to depart until the child [C] has arrived and is united with [B]
(e) The Mother is not to approach the Father or [B]; and
(f) The Father is not to approach the Mother or [C].
16. For the purposes of Order 13(a), the Mother and Father will email each other by 4.00pm on the Wednesday prior to the time the children are to spend together, advising the children’s selection of what film they wish to see and, if necessary, the Mother and Father will ensure that the delivery time and the collection time as provided for in order 13(a) is varied accordingly.
17. The parents will facilitate such other activity that the children elect to enjoy with each other in the time provided for in order 13(a) but the delivery and changeover will take place at the cinema unless as otherwise agree to between the parents.
18. That if the Mother or the Father fail to comply with order 16 herein then the children will spend time with each other as provided for in order 13(a) and the provisions of order 15 will also apply.
19. That the parents ensure the children’s continued attendance upon [Ms G], Psychologist, for counselling specifically in respect of issues arising from the parent’s separation.
20. To the extent that these Orders require the parties agree in writing, such communication be between the Father the Mother’s lawyers and the Independent Children’s Lawyer.
21. That the Independent Children’s Lawyer have liberty to apply on 2 days’ notice.
22. That the Application in a Case filed by the Mother on 12 September 2016 be listed to a Judge on 21 November 2016 at 10.00am.
Without going into detail, the parents facilitated visits between the siblings, in the absence of the parents, on 25 September 2016; 9 October 2016 and 23 October 2016, however attempts to organise a visit for 6 November 2016 failed and the father sent an email which was highly provocative (not for the first time) – see paragraph 321 of the mother’s trial Affidavit.
At this point, the school the children were attending seemed to be involved in the dispute as a result of discussions about payment of school fees. No useful purpose is served in detailing all the email exchanges, which are included in the mother’s Affidavit and speak to the increasingly toxic communications from the father, sought to be disguised as motivated entirely by his concerns about C being safe in the mother’s care and the sense of distress to B from not spending time with her younger sister. Ms G had her last session with B on 10 November 2016. The child was entirely steadfast in not wanting to spend any time with her mother as Ms G’s report of 24 March 2017 confirms.
At the direction of the ICL (and at the expense of Legal Aid Queensland), the parents consulted Consultant Psychiatrist Dr AA on 17 October 2016 (father) and 18 October 2016 (mother) and a report dated 12 December 2016 issued to the ICL. It is not clear if the report (filed in the Court on 21 March 2017), was provided to the parties before a critical visit at BB Shopping Centre on 24 December 2016, however the father’s email to the ICL of 24 December 2016 suggesting that the mother’s “mental state may be that of a serious personality disorder” suggests the father had seen the report.
On 24 December 2016, the girls were to meet at BB Shopping Centre. This visit and period after is the subject of detailed evidence by the mother (paragraphs 346 to 363) and the father was appropriately cross examined about the events of the day. On that evidence, I find that:
e)B wanted the visit to take place at J Shopping Centre not BB Shopping Centre. She had hoped to meet some friends at J Shopping Centre that day. The mother dropped C off to BB Shopping Centre as arranged;
f)the father was complicit in an attempt to encourage C, on the day, to go with the father to J Shopping Centre without the prior knowledge or consent of the mother;
g)when C, to her credit and revealing a strong will, refused the exchanges with B and the father became difficult, she rang her mother, who collected her quickly.
I am satisfied that the father, perhaps with the intention of seeing Julie and also providing her with presents for Christmas, and with B’s support as well, caused distress to C, who expressed to Ms G that she feared the father was going to “take her away”. I do not suggest the father was seeking to abduct the child – rather his lack of insight into how, what should have been a happy Christmas Eve experience for the girls, turned into a major issue through his conduct is clear.
In my view, it was a stark and clear example of how the father, to a large degree seeking to support his relationship with B, has significantly damaged his current relationship with C. The father, on more than one occasion, has suggested that the mother has “brain washed” C against him.
He takes no genuine responsibility at all for his contribution to the current tragic situation.
Despite the father’s continued failure to observe and respect the views, feelings and wishes of C not to spend time with him at that time, the father found opportunities to intervene – one further example being his attendance at the airport, with B, when C was departing on a school trip on 26 March 2017. When cross examined on this event, it was clear he saw nothing wrong in his actions. The note from the records of U School (Exhibit 4), I accept as accurate. It would have been a distressing event for C, if not embarrassing.
On 30 March 2017, Senior Registrar Spink ordered on an interim basis that the order that the parents facilitate the girls spending time together (including by telephone), be stayed. Subsequently, on 8 May 2017 Hogan J discharged the orders for time (but not it seems the telephone order 13(b) made 15 September 2016) and dismissed the mother’s Application to take C to China for a holiday. Importantly, in a further attempt to facilitate the children spending time together by consent, Hogan J made orders in these terms on an interim basis:
…
2. The children, [B], born ... 2003 and [C], born ... 2006 spend time together in the presence of [Ms D] ([E Group]) each alternate Saturday from 1.30 pm to 3.30 pm to ensure that no adult issues are discussed by either child with the other.
3. The time as provided for in Clause 2 of this Order take place at [F Town] or such other place as agreed to with [Ms D] but the collection and drop off of the children is to remain at [F Town].
4. Each parent be responsible for one half of all costs associated with [Ms D] assisting the children with conflict free sibling contact.
5. Each parent will comply with any directions of [Ms D] to ensure that the children’s time together is free from any conflict between the parents.
6. The children be presented to the office of the Independent Children’s Lawyer as arranged by the Independent Children’s Lawyer in order for the children to be introduced to [Ms D] prior to any time commencing.
7. The Independent Children’s Lawyer will obtain written reports form [Ms D] with regard to the sibling contact from time to time.
8. In relation to the time provided for in Clause 2 of this Order, handover arrangements shall be as follows:
a. for the purpose of delivery of the children:
i. the father shall attend and deliver the child [B] at 1.20 pm and immediately leave the shopping centre; and
ii. the mother shall attend and deliver the child [C] at 1.30 pm and immediately leave the shopping centre;
b. for the purpose of collection of the children:
i. the mother shall attend and collect the child [C] at 3.30 pm and immediately leave the shopping centre; and
ii. the father shall attend and collect the child [B] at 3.40 pm after the conclusion of the time.
Visits supervised by Ms R took place on 27 May 2017; 1 July 2017; 15 July 2017; 29 July 2017 and 14 October 2017. Ms R provided observation notes and was the subject of cross examination discussed later in these Reasons. It is noted that the visit scheduled to take place on 10 June 2017 did not proceed as the father refused to bring B to the visit, for the reasons he set out in his email to the ICL of 9 June 2017. Despite the father saying B did not want to participate in supervised visits and “feels poorly treated and that she is like someone that should not be trusted”, after Senior Registrar Spink on 22 June 2017 dismissed the father’s Application to vary the parenting orders, a visit occurred on 1 July 2017. The father sought a review of the Registrar’s decision to dismiss his application however affectively when the matter was before Forrest J in the judicial duty list on 18 September 2017, his Honour treated the father’s Application as an application to vary the existing interim parenting orders, so that the girls spend one weekend each fortnight in the other home with the other parent and her sister. His Honour was aware that the supervised visit scheduled for 16 September 2017 did not take place. I am satisfied on the evidence produced at the final hearing that part of the reason was that the father sought a different venue for the visit than the children had arranged with Ms R at J Shopping Centre.
On 19 October 2017, Forrest J gave reasons for ordering that the father’s Contravention Application filed 24 May 2017 be dismissed, and further varied an earlier order of Judge Cassidy made 7 March 2016, by discharging paragraph 13 of that order – an injunction restraining the mother from bringing the children into contact with Mr L. In his minute of orders sought for the final hearing, the father sought that the injunction be reinstated on a long term basis.
By this time (October 2017), issues began to arise at U School related to the children’s continued attendance in 2018 because of outstanding fees. The father decided (contrary to orders of the Court) to remove B from U School from the start of the 2018 school year because he could not afford the fees. C remains at U School. The mother made an offer to the father to pay B’s school fees so she could remain at the school however he decided not to accept that offer. Also on 26 October 2017, the supervisor of the children’s time was unable to continue offering their service. The father denies his failure to contribute his share of fees led to that withdrawal.
At the initiation of the ICL, Ms X was engaged to complete an updated family report and she conducted interviews on 15 May 2018 and provided a report dated 29 May 2018. Ms X was the subject of cross examination at the hearing.
In early 2018 the existing DVO was varied and extended as earlier recorded, with some form of Appeal by the father to the District Court currently pending. The order notes the “Aggrieved” as the mother and names the children as well as Mr L, and Ms DD as associates of the “Aggrieved”. Whilst orders 1 to 8 are in fairly standard terms for the protection of the mother, order 9 is specifically created with reference to “any person named in this order”. Order 9 is in these terms:
9. You, the respondent must not
- go within 100 metres of; or
- enter; or
- remain at any place
any person named in this order lives, or stays, or works including EE Street, Suburb FF …
- This order does not refer to [B].”
The matter proceeded to hearing before me over two days commencing 14 June 2018.
Attempts at supervision
The history recorded reveals the lengths undertaken, at different times to:
a)encourage the children to spend time with each parent;
b)facilitate C to spend supervised time with the father; and
c)facilitate time the children spend with each other.,
supported by therapy from Ms G and orders made by the Court.
When it was put to the father that everything has been tried to get a good outcome for the children, he said that requiring C to live with him and B is the only order not yet made. That seems to be the basis for the orders he seeks at the hearing.
I make the following findings about the evidence given by Ms G, Ms S and Ms R.
Ms G
Ms G was not available for cross examination because of a family health issue. Her reports dated 19 July 2016 and 24 March 2017 were before the Court. Ms G has not seen B since 10 November 2016. At that time, B’s expressed wish was to live with the father and have no contact with the mother. Ms G reported that the father informed her that B was “unhappy attending therapy with myself” and that he had taken B to another Psychologist who was more hopeful. That is what occurred.
C continued to see Ms G until 20 February 2017, and is recorded as raising concerns with Ms G that the father “interrogated” her about her mother and she feels stressed when B “says critical things about their mother” and tells her she “should be seeing her father”. I cannot apply extensive weight to the comments the children are said to have made to Ms G, but note they are similar to comments made to Ms X. Although Ms G’s recommendations for the children to have “independent supervised contact with no parental involvement” to rebuild their relationship was the basis for the orders made by Hogan J, she was unable to make any progress with the children’s desire to spend time with the parent they did not live with.
Ms S
Ms S’s notes (Exhibit 10) reveal that:
a)the children said the mother had made negative comments about the father (e.g. “read them emails from their father’s account and question them about them”; “told them they would never live with him again”; or see him “outside of a supervised environment”; told B that her “father had paranoia”).
These comments were made in the first four visits when the children were living with the mother and before B returned to live full-time with the father. They support a finding that at that time the mother did make some negative comments about the father and did involve the children in the Court process. The mother conceded showing B material. I accept this was all within the first four months post separation when emotions were high;
b)In my view, the visits from and including 28 May 2016 need to be seen in the context that B was living with the father and that the focus of the visits were more about time C was spending with her father and sister. Ms S observed (on 28 May 2016) that B “seemed a lot happier and relaxed this week”. B is recorded as noticing that the mother “was wearing her clothes”.
c)The visit on 11 June 2016 involved C bringing clothes and other things for B, who went through the goods “looking for her phone and diary” and over the following visits some tensions between the girls were apparent – at one time Ms S telling the girls “about not worrying about what is happening between Mum and Dad just stay close together and be there for each other”. Sadly, although the visits generally went well (including a visit where the paternal grandmother came on 25 June 2016), on Saturday 9 July 2016 the father is recorded as making negative comments about the mother to C and told C she was not telling the truth, which made the little girl cry. Ms S said she told the father “not to say anything more about their mother and [the father] apologised”. The next visit went well, however tensions surfaced in the visit on 30 July 2016.
d)The note of the visit on 30 July 2016 is a reflection of the growing tensions and, in my view, the increasing inability of the father to control his emotions. Because of the consequences of this visit, I include the text of the full note as follows:
Saturday 30th July 2016. [The father] arrived with [B] and then [the mother] arrived with [C]. [C] came inside but was very distant towards [B]. [C] went over and gave [the father] a hug and kiss. [The father] then said to [C] go say hello to your sister. [C] said why do I have to say hello why can’t she say hello to me.
[The father] then said I don’t know what’s the matter between you two but fix it. [C] sat on the lounge with [B]. Things were a bit tense for a while. They spoke generally for a while. Within a short time they were laughing and talking together.
[The father] had bought some home cooked food which everyone had some. They then started to play a board game. Gradually things settled down between everyone and [C] and [B] were laughing and talking together. This continued the entire visit.
It was then time to go and [the father] asked [C] if [B] and [C] could spend some time together on Sunday. [C] said no because I have plans. [the father] then threw his arms in the air and said something like go to your f…… new family with your new sister and everyone else. This upset [C] so that she did not say goodbye to [B] but she did say goodbye to [the father]. She left very upset. I spoke to [the father] about what had happened and he said how sorry he was and that he was completely out of line in doing and saying what he did. He said he just gets so frustrated.”
e)Clearly C felt, and in my view was entitled to feel, that the father had been “mean” to her. At 9.00pm on 5 August 2016 C spoke to Ms S on the phone. The mother, I find, facilitated C ringing Ms S. It was poor judgement on the mother’s part to get C (aged 10 years at the time) to ring. The order required the mother to facilitate the child being taken to Ms S’s and if she was not going to comply with the order she should have told the father and, as a courtesy, Ms S. In the circumstances the father’s recorded reaction on 6 August 2016 when the father attended (with B) at Ms S’s place and he became “emotionally upset”, was understandable.
On all the evidence, the visits generally went well – particularly between the two girls (after B began living with the father), however seen within the context of the history above the visits merely reveal the growing separation between the children, I find, contributed to be the behaviour of their waring parents.
From that point, the children’s alignment with the parent they lived with became stronger and the capacity to begin to repair even the relationship between the father and C diminished. By this time, sadly, the relationship between the mother and B was totally estranged.
To the parents’ credit, they attempted to facilitate some time just between the girls after these supervised visits with Ms S came to an end. The history reveals some happy visits but the events of 24 December 2016 brought that momentum to an end. In my view the father must accept most responsibility for it turning bad by failing to make it clear to B that they would have to stay at the BB Shopping Centre venue and particularly by getting involved as he did. I accept, by this stage, he was greatly missing his relationship with the youngest daughter and I suspect, was also having to comfort B about the damage to her relationship with her sister. The father (and I suspect B) was of the view that the mother was to blame. It seems incredible that, whilst able to express the deep sense of hurt he was feeling from not spending time with C, he had no insight at all into the similar level of hurt the mother was feeling about not spending time with B.
In the cross-fire, the interests and benefit of the siblings to spend time with each other was left unattended until the orders of Hogan J and the first “supervised” visit on 27 May 2017. I make some observations about those visits next.
Ms R
Ms R has a wide experience as a Departmental Child Safety Officer and classroom teacher with tertiary qualifications in Education and Human Services (Child and Family Studies).
Only the father sought to cross examine Ms R about the contents of her notes for visits on:
- 27 May 2017 –Ice Skating
- 1 July 2017 –Park
- 15 July 2017 – J Shopping Centre
- 29 July 2017 –Golf Course
- 14 October 2017 – E Group Centre
Ms R regarded her role as to facilitate the girls spending time and enjoying each other and “to try and reconnect with one another” although B expressed an initial reluctance “doing this” as it was “unnatural” to be supervised – each visit seemed, as between the children, a happy and positive experience. Ms R told them “that they were not to talk in a negative manner about either parent and that if either of them felt uncomfortable about what the other has said, they were to let me know”.
I accept that Ms R’ notes and observations expressed in those notes were accurate. She gave me the impression that she was careful to use the appropriate words, knowing it was likely a Court (and the parents) would view them. Mr Hillman took offence at some of Ms R’s comments, however she did not deviate when cross examined. Overall, I make the following further findings about these visits:
a)The girls interacted well alone and were observed to enjoy being together. C, as the youngest, was more “excitable”;
b)At the conclusion of the first visit, the mother approached Ms R and said “he is here already”. She appeared anxious. The mother and C left and Ms R says the father appeared “agitated as I approached the car and continued to stare” at the mother and C. As B was getting into the passenger’s seat the father stated (I infer in the hearing of B) that “they could see each other every day if their mother would allow it” and further stated that “it was unnatural for the girls having to be supervised”. I note this was the same word used by B at the beginning of the session;
c)There was a conversation between B and Ms R at the conclusion of the visit on 1 July 2017 where Ms R records that she asked B if she wanted to talk to her mother. It is not clear to the Court why Ms R thought it was necessary, in her supervisory role, to make that enquiry.
Nonetheless, B told Ms R in response “that she didn’t want to talk to her and explained to me that it was her mother that was making [C] scared.” On the next visit which occurred (15 July 2017), Ms R again asked B if she would like to say hello to her mother when she dropped C off, however B said “that she did not wish to speak to her mother and then told me that she had sent a previous email and her mother never responded”. During this visit C indicated B had asked her “if she was ever going to talk to their dad again”. I also note that at commencement of the visit, the mother told Ms R that C “is very nervous that she may see [Mr Hillman]” but that C “loved seeing [B] last week”. Otherwise the visit between the girls was unremarkable and fun;
d)Ms R had used her best endeavours to ensure that the parents did not come into contact with each other at the start and conclusion of visits, and after the mother had left and Ms R was walking to the meeting point with C, the father and B were walking toward C and Ms R and the father “walked directly to [C] and gave her a cuddle”. Ms R recorded the following:
I told Mr Hillman we had to go and placed my hand on C’s arm in an attempt to guide her away. I asked C if she were OK, she looked at me and nodded. I felt C was unsure as to what to do, what to say and how to react.
e)Ms R in her note expanded on the incident, indicating she heard the father ask if it was okay to give her a cuddle and C said “yes”. The father asked C if it was okay for B to take a photo of him and C for the paternal grandmother and C said “yes”. At Ms R’ suggestion, B joined in and Ms R took a photo of the father and both girls. After the father left, and whilst walking with C, Ms R asked her how she was feeling, and C told her “that she felt scared and did not know what to do or say”. The supervisor, after the visit, spoke to C by phone when C again told her she “felt scared”. The father, when Ms R raised C’s comments with him, stated that C “didn’t appear to be scared”. That visit was the last interaction between the girls supervised by Ms R until 30 September 2017 – a period of two months. The reasons for visits not occurring are disputed, including the father disagreeing as to the location of a visit; the father saying (but then retracting) that he could not afford the visits and also arguments as to variation of the parenting orders heard by Forrest J on 18 September 2017.
f)I accept the mother’s evidence that a supervised visit occurred at M Town Botanic Gardens on 30 September 2017, however Ms R was unable to produce a note for the visit and had little recollection of it. The mother deposes (at paragraphs 408 to 410 of her Affidavit), that after the visit the father sent an email to the ICL, reproduced at paragraph 409 in which inter alia the father said that B tried to talk to her mother and that the child “only got to say a few words when the mother responded that [B] talks just like her father and that she does not wish to speak to her anymore” before asserting that the mother “appears mentally challenged, possibly worse” and that C “now appears scared, even terrified to see her own Father”. After again directing some comments to the ICL about the “involvement of [Mr L] with my daughter [C]” he indicated a willingness “to file further applications in relation to [C] being a victim of abuse at the hands of her own mother” and then added “[B] most certainly is”. The mother did not give any evidence of her discussions with B. I am prepared to accept B’s summary to the father was mostly correct. It was an opportunity for the mother to be polite to B, which was lost.
Further emails passed between the father and the ICL before and after the final supervised visit on 14 October 2017 at E Group Centre. The children appeared to enjoy the interaction. Before the visit commenced, the father (without B being present) stated to Ms R that the mother – “has poisoned [C’s] mind” and of his sense of frustration.
g)On 26 October the operator of E Group Centre (Ms GG) wrote to the ICL, the father and the mother’s solicitors informing them all that the organisation “can no longer facilitate contact for [B] and [C] due to ongoing concerns that our agreement and processes have not been adhered to.” The father, clearly upset, replied by email the same day as follows:
Dear [Ms GG],
This is very disappointing. Contract and Money over the wellbeing of my children. After having met you personally, I must wonder how you could be of assistance to those children. Clearly, I am quite upset and would expect the mother to agree with me on this occasion. While there has been no progress since your companies involvement, the Children may indeed be better of with a Carer that got their priorities with the Children. Your involving the ICL is completely inappropriate and unwarranted given your reasons here.
As a concerned parent, I am simply disgusted by your Arrogance.
Yours faithfully
[Mr Hillman]”
Attempts to negotiate an alternate venue have failed, meaning the girls have spent no physical time together since 14 October 2017. Ms GG was not prepared to even facilitate a one-off Christmas visit as proposed by the mother for reasons she expressed in an email to the ICL (see the mother’s Affidavit at paragraph 424). The father took issue to the reasons given in his email of the same day in response (see paragraph 425).
I am satisfied that B did attempt to speak to the mother at this time as the father suggests, and the mother gives evidence at paragraphs 426 to 429 about her decision not to seek any orders in respect of B. These paragraphs do not explain why the mother would not even speak to her daughter, which goes some way to reinforcing the child’s view that her mother does not want a relationship with her. I have formed the view that the mother provided no sensible reason why she would not at least speak to B when the child initiated contact. Even if the mother’s belief (expressed at paragraph 428) is that B’s expressed wish not to have any contact with the mother is as a result of “her being manipulated by the Respondent and her seeking to appease her father”, the rejection of B’s attempts to communicate could have been handled better by the mother.
Primary and additional considerations
I rely upon but do not repeat earlier findings in the discussion which follows, in a narrative form, dealing with the competing proposals within the matrix of the primary considerations (s.60CC(2)) and additional considerations (s.60CC(3)) prescribed by the Act when considering what orders are in the best interests of the children.
Although both parents acknowledge in their evidence and cross examination that ideally both B and C will benefit from having a meaningful relationship with the parent they do not live with, both parents and the ICL say the Court should make an order that B live with her father and spend no time with the mother. This is said to be based in her “best interests” and where the attempts by the Court to “draft orders” to foster a continuing relationship with the mother have failed. The father says C’s position is different, in that a change of residence will facilitate C having a “meaningful relationship” with the father and once it settles down, a continuing meaningful relationship with the mother. The mother says to change residence for this purpose is not, on balance, in the best interests of C. The ICL also says a change of residence is contrary to C’s best interests. As the Full Court in McCall & Y (2009) FLC 93-405 identified, “in the majority of cases there will be a positive benefit to a child of having a significant relationship with both parents.”
However sadly, this is a case where the history and parental behaviour (particularly that of the father since separation), makes it a case that does not fit within the “majority” of cases.
S.60CC(2)(a) is required to consider “the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence.” I find that both children have been exposed to psychological harm through their parents’ conduct and behaviour, in summary:
a)by exposing the children to the adult conflict and tensions leading up to and at the point of separation and continuing;
b)by the father’s expressed concerns shared or failing to disguise from B his beliefs that at times the mother:
- is mentally unwell;
- has abandoned her;
- does not care about her, or
- even worse, prefers C, her sibling,
and in making negative comments about the mother and her Chinese ethnicity (at times) and involving B in the legal proceedings inappropriately;
c)by the mother’s expressed concerns shared or failing to disguise from C her beliefs that the father:
- is a violent person in whose care she is unsafe; and
- does not care about her (or even love her) or, even worse, prefers B, her sibling,
and in making negative comments about the father and involving C in the legal proceedings inappropriately; and
d)Both parents wrongly engaged the child not living with them in interactions that were unhelpful – for example, the discussions the father had with C at Ms S’s visits and 24 December 2016 and the discussion the mother had with B early when revealing some emails from the father post separation and her failure to engage when B initiated some discussion after the supervised sibling contact.
The children are otherwise progressing in their respective schools and there is no concerns about their behaviour at school. Sadly, in isolation from the sense of loss of their sibship relationship and the lack of time with their other parent, each child presented to Ms X as well – seemingly resigned to their position, and to a degree comforted by the full attention and energies devoted to them by the parent they live with.
The father relies upon the evidence of Dr AA to support his views about the mother. However, when Dr AA was informed of the better recent functioning of the mother (which I accept is accurate) he did not maintain any adverse psychiatric assessment of either parent. Clearly the tensions and constant Court proceedings since separation have put these two mature aged parents under a lot of pressure and scrutiny.
As to the children’s wishes, I have formed the view, contrary to the written submissions of the solicitor for the mother, that both children’s entrenched and consistently expressed views to live with their current primary carer and not to spend any time (or communicate) with the other parent has been shaped by the experiences since separation of the other parent and the influence (perhaps not always direct or intended) of the parent they are now aligned with. To the extent this is not totally consistent with the opinions expressed by Ms X, I do not totally agree with the report writer. Left alone, by the parents, these siblings’ wish to maintain a relationship with their sibling could and should be capable of occurring. However the history of attempts, in different ways, to facilitate time have proved problematic. In my concluding discussion I offer some thoughts about this unfortunate outcome.
B has a close relationship with the father, and since separation she has become his advocate on occasions. This has brought her into conflict with both the mother and C which is an unfair burden for her to carry. The estrangement of B from her mother has not only affected her relationship with C, but also the mother’s extended Chinese family.
C has a very close bond with her mother and I agree with the mother’s submissions that the mother has been able to provide stability for her despite the chaos that has engulfed the family since separation. As the younger sibling she does not have the same capacity and resilience to cope with the changes that have occurred in her life, to the same extent that B can.
As the history reveals, the toxic and ineffective communication between the parents (despite engagement of legal advisors and despite numerous emails and text messages (many from the father being provocative and emotional)), has made it difficult for the parents to participate in joint decision making. The father, contrary to Court orders, changed B’s schooling. This was a major decision which the mother strongly disagreed with taking.
Aware, as I am, that the parties’ financial circumstances are also in somewhat of a mess, but accepting individually (and exclusively) they have met the day to day financial needs of the child in their care, I am not too critical of the father’s inability to pay the U School fees. I find some of the father’s delay and/or refusal to pay towards supervised visits, had less to do with his capacity to pay, and more to do with him seeing no benefit in the experience.
There are no real practical difficulties or expenses in the children spending time or communicating as the parents live proximate to each other in the same northern M Town community. The expenses associated with the need to keep the parents apart arises more from their behaviour towards each other, and in particular the mother’s anxiety from coming into contact with the father. Because I have taken the view that a prescribed order for C to spend time with the father is not in her best interests at this time, and where, again for reasons given, I am satisfied any order for the siblings to spend time with each other is likely to lead to further proceedings, future expenses for use of services like Ms S (as proposed in the father’s order), do not arise.
I rely upon but do not repeat earlier findings about the capacity and attitude to parenting demonstrated by each of the parents. I only seek to add, that although the mother does not agree with the father’s view that up until separation, the children were progressing well and were loved, happy and cared for by both parents, there is an absence of any collateral evidence (apart from a Police attendance in 2003) before separation to suggest the family had significant problems that had come to the attention of Police, schools, the Department, or Health professionals. Of course the situation since separation is different.
Ms X, at paragraphs 109 to 111 of her updating report said:
109. The parents have both reacted very differently to the separation. [Ms Hillman] describing extreme relief in being able to move forward with her life, however, in order to establish her independence and appropriate boundaries, she has had to rely upon the protection of Domestic Violence Orders.
110. [Mr Hillman] has continued to struggle to accept the separation, and to adjust to the changes in the family. He remains firmly entrenched in his outrage that the mother should have left, and then have the audacity to make allegations of domestic violence, which he totally rejects. [Mr Hillman] is extremely upset about being subjected to restrictions associated with the Domestic Violence Order and has vowed to continue to defend his ‘reputation’ through whatever means are open to him.
111. In my view, [Mr Hillman] has demonstrated very little insight into the impact that his behaviour has upon others in the family, and he has continued to blame the mother for all the problems. As noted in the first report, [Mr Hillman] has continued to involve [B] in the dispute, and to treat her more as a collaborator, rather than a 14-year-old child, who needs to be shielded from being embroiled in the dispute
I accept these opinions which are consistent with the whole of the evidence offered to the Court. The sad reality is that the father has no “insight” into his lack of insight and the effect his continued struggle to accept the separation has had on both of his daughters – who I accept he loves dearly and equally.
A consequence of the separation of the siblings is that the child B no longer has the regular access and involvement in her Chinese heritage and culture (including through the mother’s extended family) and C no longer has the regular access and involvement in her German heritage and culture (including through the father’s extended family). The father, on more than one occasion in his evidence and comments during the trial, reveals his concern about this – at least from C’s perspective.
The father opposes strongly any suggestion that he “choked” the mother during the event on separation or that he has acted in any manner both during the relationship and since separation that amounts to him perpetrating family violence upon the mother. The evidence, including the findings made by Magistrate Strofield in Exhibit 3, are a basis for the mother continuing to feel anxious about the father’s behaviour around her. It is not necessary for this Court to conduct further “domestic violence” hearings. In my view, the evidence supports a finding, which I make, that the father did physically act inappropriately towards the mother on 3 February 2016. His communication style and presentation contains an air of bluntness that, at times, if the texts and some emails are viewed, hints of both aggression and control. I do not ignore that the age difference and different cultural upbringings may well have contributed to the dysfunction between the parents exposed by a worsening financial positon; lack of respect and trust and the increasing challenges of managing girls at or approaching teenage-hood. I do not, as earlier found, find that the father is a risk to the girls of physical harm. In my view, provided the parents comply with the terms of the DVO, which now extends to early 2023, and keep their distance from each other, these children are unlikely to be exposed to their parents arguing in front of them.
When considering below the effect of any change to the children’s circumstances arising from the orders I propose to make, I also consider s.60CC(3)(l), namely making an order least likely to lead to the institution of further proceedings in relation to the child.
Parental responsibility
The capacity for these parents to effectively communicate is so compromised, and with no discernible prospect of improvement into the future, I have concluded that it is contrary to the best interests of B and C for the presumption of equal shared parental responsibility to be applied. Since separation, effectively and save for the issue of B’s change of school, the father has made decisions about B and the mother has made decisions about C – with little criticism from the other parent. Whilst ideally both parents should be consulted on major long term decisions, it is simply not practicable for it to occur in this family. The vesting of sole parental responsibility to the parent with whom the child lives will be ordered.
In making such an order, and in circumstances where the Court will order that C lives with the mother, I am conscious of the reality that this will enable the mother to facilitate the child to travel to China as the mother has previously sought, and as she continues to seek. The father in submissions says that as the People’s Republic of China is not a party to the Hague Convention, and with the mother’s family having current ties to China, there is a likelihood that C will be taken to China and not return.
I disagree. There is no evidence that persuades me that the mother either has expressed such an intention or that C, an Australian born child, wishes to leave her school, friends and lifestyle in Australia. I do intend however to order the mother provide the father with a copy of the child’s return airline ticket not less than 21 days prior to departure from Australia. The current Airport Watchlist orders shall be discharged.
Where should C live?
I have decided it is in C’s best interests that she continue to live with the mother. The findings above, including the recent opinion of the family report writer Ms X, support such a finding.
I did not lightly reject the father’s contention that a change of residence, so that C lived with him, was the only way that C could have a relationship with him and B. In my view however, that proposal faced these hurdles at least:
a)It is contrary to the express and consistent wishes of C. Although I accept that both B and C’s views have been influenced by the parent they live with to some degree, I give significant weight to the views expressed by both children;
b)A change as proposed by the father would involve a change of school for C. Also, although I assess she will enjoy spending more time with her sister, B’s very negative view of the mother would make it very difficult for C to maintain her positive view of the mother. I said B because it may be possible for the father to “hold back” on his views about the mother for a time to ease C’s pain of separation from her mother. However, with property matters between this couple still to be determined, the tensions will not diminish and C is likely to hear negative comments about the mother from her father. It is to be noted that the father has told third parties in the past that he believes the mother has a mental health condition – which this Court finds is not manifest at this time;
c)The estrangement of the father from the mother’s extended family would deny C the opportunity to maintain her Chinese cultural heritage and to visit China. I accept that living with the father would increase her involvement with the paternal grandmother and her important European links; and
d)With B and C being at different developmental stages, it is likely B’s extracurricular and social activities over the next three years or so will involve peers and her personal interests, rather than her younger sister. This will have the effect of C being isolated, at times, in the primary care of the father with the risks associated from his lack of insight at times and entrenched negative views of the mother, being a real concern to her emotional development.
For those reasons, and those referred to earlier in this Judgment, the Court will order that C live with the mother.
Other orders sought
Sadly, there are some cases where no order is in the best interests of the children. Ultimately, although the three parties agree on essentially no prescribed order for B to spend time with the mother should be made (other than in general terms to be initiated by the child B), the ICL contends after hearing the evidence of Ms X, that no prescribed order for C to spend time with the father should be made. The father is desperate, quite understandably, to have an opportunity to repair his relationship with C, and my strong impression from the case he conducted is that if the Court was not prepared to order C live with him, then he would accept any order for time.
However, at the present time, C strongly opposes spending any time with the father, and seeking to enforce any order made to do so would, I assess, encounter the same difficulties faced by Judge Cassidy when trying to deal with B’s opposition to spending time with her mother.
In many ways, these parents by their conduct, have empowered the child living with them to control their immediate destiny and although I hold some concerns about their capacity to understand fully the long term consequences of their actions, I am not prepared to make any order for C to spend prescribed time with the father.
Similar obstacles are confronted when considering what orders the Court can craft to facilitate B and C spending time together – as everyone, including the children, the parents, Ms G, Ms R, Ms X and this Court regards as in their best interests.
The transcript reveals that whilst Ms X (the last witness in the trial) had earlier recommended (and the ICL had adopted) a proposal for there to be a prescribed facilitated interaction once a month between the siblings, after being informed of the evidence heard by the Court, the expert agreed a formal order would be problematic.
The problem is the parents – both the father’s inability to contain his sense of loss and, perhaps with the best of intentions, using sibling interaction as an opportunity to confront C – and the mother whose overt rejection of B causes that child distress.
That the father continues to be unable to understand the lack of insight and the adverse effect on C, is demonstrated by the email he sent to C (at her school email address) on 6 June 2018 which I record as follows:
“Hello my dear [C],
As you know, next week will be a big week. I received a copy of the Family Report from [X]. She says that you have grown so much and matured to be this young and confident lady. That is so lovely. Just so sad that we could not be part of you growing up over the last 2 years. I hope you can see how this is just not fair on your Family. And hey my sweetheart, I am not sorry for asking you certain questions. This is what good Daddies do, ask questions and expect answers. Like what did you do on your last Birthday? Did you have a party with lots of friends? Any why didn’t you invite your Sister???? Is it because [Mr L] had a problem with that? I guess he did. So you say that you don’t like being asked any questions and how that makes you feel uncomfortable, feeling intimidated?! You see my dear [C], things were never like this until [Mr L] came into the life of your Mother, until you were taken from us…And how sad you were for so long. But you recovered from that and got used to this NEW LIFE without a Dad, Sister, …, Uncles, Godparents and more. You did so well, given what’s been going on in your life. So I should be proud of you being strong and confident and able to enjoy your friends and interests. But no matter what, we will always love you so much, and miss you every single day.
There is only one Truth in this world my dear [C]. You are not comfortable being asked these questions makes me so very sad. And it is in fact so very sad. Many people around us talking about you and they feel so very sorry what has happened and how you are being kept away from your Family.
I know deep in my heart that you love your family, and me. And that you never felt scared for a moment in your life. I am glad that you told the truth when you said that how you feel about being involved in these things that you should not be involved in. But things will change…Promise. As we all have parents and that we should always be there for each other. This is what Family is all about. Your mum will always be your mum and I would never take you from her. Just so you know this and you have it in writing
So I hope that you come around and answer to my letters as I was told that you do receive these.
I stopped at times thinking that you may not get them. How could this ever have happened?
… please grow up this little more and write something back.
Love always,
Your Daddy”
The Court explored whether there was a way the girls could securely and without parental interference electronically communicate. However when the father is still prepared to communicate to C at her school email address, I have no confidence that would be achieved.
The girls have, in the past, shown a greater sense of focus on their needs and benefits of sibship, than their parents and I have come to the conclusion that with parenting issues finally determined now, the girls will find a way to communicate between each other and probably arrange physical interaction. If they do, and it requires both the mother and father to facilitate travel, I am satisfied the parents will do so. In these circumstances, I propose (perhaps unusually) to make no prescribed order.
The father seeks an injunction directed to Mr L. He says that this man interfered in his relationship with C. He claims that Mr L maliciously damaged his property. The father reported the incident to the Police. The evidence suggests no action was taken by Police – although Mr L is a named protected person on the most recent Domestic Violence Order. The mother says Mr L and, I infer, his Chinese partner are her good friends and have provided her emotional support. In the circumstances I am not satisfied it is in the best interests of C to make the restraining order sought by the father against Mr L.
In deciding, in the exercise of discretion, not to make some of the orders, I have taken into consideration the following factors:
a)The terms of the existing Domestic Violence Order;
b)The desire to reduce the prospect of further proceedings under the Family Law Act 1975, including for enforcement;
c)The difficulties and costs likely to be incurred if a party seeks to enforce an injunction under s.68B (on the current legislation), compared to the efficient process for breaches of the Domestic Violence Order;
d)My finding that the father is not a risk to the mother or C, save for the emotional impost his actions have caused;
e)As C gets older her capacity to understand her father’s intent (which I believe is based more on a desire for a continuing relationship for him and B with C) will be better understood and managed; and
f)The order I make permits of time occurring if effectively initiated by the children, which I regard as appropriate.
I do consider an injunction restraining the father from attending C’s school is appropriate, considering the father’s actions at the airport and in the classroom and his emails to the school.
If B was still attending U School, such an order would be difficult, however as B has now moved schools, I regard the order as supporting the welfare and best interests of C.
For the reasons given, the orders that are set out at the commencement of these Reasons are in the best interests of B and C at this time.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Baumann delivered on 29 June 2018.
Associate:
Date: 29 June 2018
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Jurisdiction
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Remedies
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Procedural Fairness