Hudson and Hudson
[2016] FCCA 1567
•29 June 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HUDSON & HUDSON | [2016] FCCA 1567 |
| Catchwords: FAMILY LAW – Undefended hearing – Mother’s obstructive conduct – false claims of family violence – Unilateral relocation to island off the tip of (omitted) – Mother refuses to take phone calls – mother shows no insight into significance of children’s relationship with their father – interim orders made. |
| Legislation: Family Law Act 1975, ss.60CC, 61DA, 65DAA |
| Cases cited: Mazorski & Albright [2007] FamCA 520 MRR v GR [2010] HCA 4 |
| Applicant: | MR HUDSON |
| Respondent: | MS HUDSON |
| File Number: | CSC 54 of 2015 |
| Judgment of: | Judge Willis |
| Hearing dates: | 15 & 16 February 2016 |
| Date of Last Submission: | 16 February 2016 |
| Delivered at: | Cairns |
| Delivered on: | 29 June 2016 |
REPRESENTATION
Solicitor for the Applicant: No Appearance (self-represented)
Solicitor for the Respondent: | Aboriginal and Torres Strait Islander Legal Service Thursday Island |
| Counsel for the Independent Children's Lawyer: | Mr Victoire |
| Solicitor for The Independent Children's Lawyer: | Mr Wright |
ORDERS
UNTIL FURTHER ORDER:
Parental Responsibility
That the mother and father have equal shared parental responsibility for the children X born (omitted) 2012, Y born (omitted) 2014 and Z born (omitted) 2015 (“the children”) including but not limited to:
(a)Education (current and future);
(b)Religious and cultural upbringing;
(c)Health with the mother to forthwith advise the father of the children’s medical practitioners details;
(d)Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with each parent;
(e)Changes to the children’s surnames.
Living Arrangements
That the children live with the mother NOTING THAT the mother is living on (omitted) at the time of this hearing.
Physical time between the Father and the children
That the children spend time with and communicate with the father at all times as agreed between the parties but failing agreement as listed below on the following terms:
(a)The father will travel to (omitted) to spend time with the children.
(b)The father will provide the mother with 28 days’ notice of his intention to do so.
(c)The mother will do all acts and things to facilitate contact between the children and father as set out in these orders on the occasions that the father travels to (omitted) to spend time with the children.
First visit
The father’s first visit will occur as follows:-
(a)The father will spend time with the children (X and Y) for 4 consecutive days as follows:
(i)On day 1 for 2 hours and on day 2 for 3 hours, such time to be facilitated by a third party (which can include the paternal grandmother), other than the maternal grandmother and maternal grandfather;
(ii)On day 3 and 4 (at which no third party is required to be present to facilitate but in the case of the paternal grandmother she is able to attend) for a period of 4 hours on day 3 and for a period of 5 hours on day 4.
In relation to Z
(iii)Until further order, when the father is spending time with the children on (omitted) on the first and all subsequent times thereafter as specified in these orders, the child Z will be included though will spend a period of 2 hours (unless there is agreement for additional time) with the father at the beginning of each visit.
Second and subsequent visits
(b)On the second and subsequent visits the children will spend time with the father unsupervised, for a period of 4 consecutive days between the hours of 9:00 am until 5:00 pm. If the father’s time occurs when the child X is enrolled to attend prep school, the father’s time will commence at the conclusion of prep.
(c)The provisions of Order 4 (a) (iii) herein apply to Z.
Telephone/ Electronic Communication
The mother is to facilitate telephone time and or Skype/Facetime between X and Y and the father at all reasonable times.
Following the issuing of these Orders, the father is to give the mother notice that he wishes to recommence Skype and or Facetime (as opposed to just telephone time) and the mother is then to do all acts and things to facilitate Skype and Face Time between the father and X and Y, at her own expense, including maintaining the cost and connection of her laptop or IPad or phone. The mother is to do all acts and things to ensure that she has the appropriate equipment configured and working to facilitate Skype and or Face time and phone calls between the children and the father.
So as there is no confusion or misunderstanding, the mother is to facilitate either telephone time or Skype or Facetime with X and Y and the father at all reasonable times and that is to include (but not be limited to) the mother facilitating the calls from the father to X and Y on 2 occasions in each week being Tuesday and Friday at 5:00 pm, with the call to extend for up to 15 minutes duration (or longer if agreed). The mother is to initiate the call on Tuesday from her equipment to the father and the father is to initiate the call from his equipment to the mother on Friday. The mother and father are to provide forthwith to each other (and will keep each other so informed at all times) through the Independent Children’s Lawyer their Skype address, Facetime contact details and mobile phone or landline details to enable this electronic communication to occur between the father and X and Y.
The mother is restrained from outsourcing her responsibilities and obligations contained in this Order to any other person and she is further restrained from nominating a third parties’ telephone number or contact details in lieu of her own, as the contact point for the father, or in relation to his communication with the children referred to in these Orders.
The mother is restrained from placing the father’s telephone calls to the children on speaker phone, unless requested to do so by the father. The mother is to do all acts and things to ensure that when the children are having telephone or electronic communication with the father, this does not occur in the presence of her parents.
Communication between the parents
The mother and father are to communicate by email in relation to the general wellbeing of the children with the mother to provide to the father no less than once per month a written summary of the children’s progress and development (by email or otherwise).
The mother is to forward to the father (by email or otherwise) no less than once each month a recent photograph of each of the children.
The mother and father will keep each other informed of their current residential address, postal and email address within 7 days of the date of this Order and each will keep the other informed of any changes to those details within 48 hours of any such change.
Other opportunities for Contact between the children and the father
In the event that the mother travels temporarily with the children away from (omitted) to the mainland of Queensland (or elsewhere), she is to:
(a)Contact the father and provide the father with no less than 21 days’ notice of her intention to travel with the children.
(b)The mother is to do all acts and things to have a dialogue with the father, explaining to him where she and the children will be staying.
(c)Thereafter, make appropriate arrangements to cooperate with and enable the father to spend liberal time with the children (if it is geographically possible to do so, that being at the sole discretion of the father) for day time only, as agreed between the parties but failing agreement between 9:00 am and 2:00 pm (or more time if agreed) each day that the father is able to visit the mother’s location NOTING that the time with Z will be no less than 2 hours.
Medical
The mother will advise the father of any specialist medical appointment made for any of the children not less than 7 days before such appointment and also advise him of the outcome of the consultation.
Each party is restrained from taking the children to a psychologist or counsellor without the prior written agreement of the other party. In the event there is agreement to counselling for the children, each of the parties are authorised to participate in such counselling as directed by the counsellor.
Noting the restraint in Order 15 herein, these Orders are authority to each child’s medical practitioners (including counsellors and psychologists) to provide each parent (at that parent’s expense) information about each child’s medical condition, treatment and other information generally made available to parents.
School or extra-curricular activities
That each of the parents are at liberty to attend all educational, extra-curricular functions, events and activities that the children may be involved in at day care or school and to which parents are normally invited, subject always to the discretion of the day care, school or organising authority.
Restraints
The mother is to do all acts and things to ensure that her parents are not present during the father’s time with the children as set out in these orders and further, the mother is to ensure that her parents are not in the presence or hearing of the children’s time with the father which is to occur by electronic communication provided for in these Orders.
That during the time the children are with either parent, that parent shall:
(a)Respect the privacy of the other parent and not question the children about the personal life of the other parent;
(b)Not denigrate or insult the other parent or the other parent’s family members in the presence or hearing of the children and each will ensure that the children are removed from any other person doing so;
(c)Be restrained from discussing this litigation directly or indirectly with the children and each will remove the children forthwith from the presence or hearing of any other person doing so.
The mother will hand to the children all presents, letters and cards received from the father or the father’s family and further, the mother shall read such cards or letters to the children.
The mother will do all acts and things and take all action necessary to ensure that:
(a)The father is always referred to as Dad, Daddy or Father or derivatives thereof when making reference to the father, directly or indirectly to the children or in their presence or hearing;
(b)Her parent’s and relatives also refer to the father as Dad, Daddy or Father or derivatives thereof when making reference to the father, directly or indirectly to the children or in their presence or hearing.
(c)The mother is restrained from referring to the father as “old mate” or other similar names, when referring to the father directly or indirectly to the children or in the presence or hearing of the children.
The mother is restrained from removing the residence of the children from (omitted), (omitted) or (omitted), other than to return the children’s residence to the same location as the father, without the prior written consent of the father or Order of this Court.
Overseas Travel
The mother and father are restrained from removing the children from the Commonwealth of Australia and each is restrained from permitting any other person to remove the children from the Commonwealth of Australia.
Authority
The mother will ensure that any day care, school, medical centre or hospital which the children attend:
(a)Is advised and records noted that the father is to be included as a parent on all enrolment forms, together with his contact details.
(b)The mother and father are at liberty to provide day care centres or schools attended by the children, medical centres, agreed counsellors or other health professionals attended by the children with a copy of these orders.
Other Orders
The Independent Children’s Lawyer is to organise for an updated Family Report to be prepared in or around March 2017 and the mother and father are to do all acts and things necessary to attend in person in (omitted), with the children, for such updated Family Report. No alterations to these arrangements are to be made without an Order of Judge Willis.
Each of the parties are to file and serve an Affidavit on the other party and the Independent Children’s Lawyer 7 days prior to the next mention date deposing to the progress of the children’s time with the father and the current circumstances of each of the parties.
The matter will be listed for mention on 5 May 2017 at 9:30 am in the Federal Circuit Court of Australia at Cairns.
The Independent Children’s Lawyer has liberty to apply on short notice.
IT IS NOTED that publication of this judgment under the pseudonym Hudson & Hudson is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
CSC 54 of 2015
| MR HUDSON |
Applicant
And
| MS HUDSON |
Respondent
REASONS FOR JUDGMENT
This matter proceeded to final hearing on 15 and 16 February 2016. The applicant is Mr Hudson, (“the father”) and Ms Hudson is the respondent (“the mother”).
The children in this matter are very young. X was born on (omitted) 2012 and is three years and eight months old. Y born on (omitted) 2014 is two and baby Z was born on (omitted) 2015, eight months after separation in December 2014.
The mother was represented by the Aboriginal and Torres Strait Islander Legal Service on Thursday Island with Ms Medland solicitor appearing. The mother and her solicitor were granted leave to appear by video link from the Court House on Thursday Island to the Federal Circuit Court in Cairns. The Independent Children’s Lawyer, Mr Wright was represented by Mr Victoire of Counsel. This matter was set down for a trial at a time convenient for the mother to allow for the birth of the third child of this relationship, Z born (omitted) 2015 and for a period of recovery prior to the trial being listed.
For reasons which I will explain, the father who commenced these proceedings was not present at the trial.
Just prior to the hearing the father filed on 7 January 2016 a notice of discontinuance. The hearing was listed for 15 February 2016. A letter to the Independent Children’s Lawyer has been tendered in this matter.[1] It reads:
“Dear Chris. I think you should know that the decision for me to withdraw my application to go to trial for access to the children has been a decision that I have not had to make lightly. The main reason for the withdrawal was the constant difficulties in any communication with the children and therefore the relationship. Since the matter commenced when Ms Hudson left the family home, she has not even attempted to assist in fostering any relationship, let alone meaningful, with the children. There have been many minor breaches of the August orders that occurred by Silvia and nothing has been documented about that. Even if I was successful and orders were made to see the children, the hostility and uncooperative behaviour would more than likely continue resulting in having a negative effect on the children. The final reason was the fact that I did not have any further funds to continue to pay legal fees.
I have moved down to the (omitted) as I could not get any work in (omitted). I was also alone, not having any family or friends at all. Chris, I will do anything to have as much of a relationship with my children as possible. I wake up every day with a broken heart and an empty life knowing that the children and I don’t and probably won’t have a relationship due to the hostility and resentment that Ms Hudson and her family have for me.
I don’t know how to contact the Court (Judge Willis) but I would be more than happy to answer any questions she may have. I can be contacted on this phone number. I cannot stop thinking that the system is allowing for another stolen generation. Why do I have to fight to see my children? It was fine for Ms Hudson to just take them and fabricate lies to attempt to make me look like a terrible person. I am a great dad. I love those children. I have never threatened them nor Ms Hudson ever.
Finally, there are errors in your time line for the case. My drink driving charge was 2014 not 2015.
Regards, Mr Hudson.”
[1] Exhibit ICL1.
Background
The father commenced these proceedings on 3 February 2015 seeking orders in relation to the children then born. The mother filed her material out of time on 30 March 2015, by which time she had relocated the children from their residence in (omitted) in Central Queensland where the parties had separated, to (omitted), one of the islands near (omitted), a distance of 1853 kilometres. The mother has relocated herself and the children to this small remote island.
As to the background of the parties, I adopt the chronology set out by the ICL.
The Court, noting the allegations made by the mother against the father in terms of him having a mental health disorder and being a risk to the children due to what she claimed to be sexual abuse, appointed an independent children’s lawyer to represent the children and make the necessary arrangements for further forensic inquiries. A psychiatrist was appointed by the Independent Children’s Lawyer and that psychiatrist, Dr K, has made an unequivocal recommendation that there is nothing psychiatrically wrong with the father that would prevent him from spending time with his children and no supervision is required.
A family report was organised by the Independent Children’s Lawyer and the author of that report, Ms L, has made firm recommendations that it’s in the children’s best interest to have an ongoing relationship with their father. I note that at the time I set the matter down for trial I indicated to the parties that they would need to turn their attention to the issue of the mother and children travelling back to (omitted) for the purposes of the family report interviews.
Prior to the final hearing, the Court made Orders by consent on 12 August 2015 when the mother was about to give birth to the third child of the relationship (Z) that the mother was required to obtain the written consent of the father prior to registering the name of their third child due in September 2015. The Court further ordered the mother was to notify the father of the birth of the child and thereafter that the father, with the paternal grandmother, was to travel to (omitted) and spend time with the two children of this relationship, X and Y supervised by the paternal grandmother for set times, whilst also seeing the baby.
It was further ordered by consent that the mother hand the children presents and letters received from the father and the father’s family and read the cards and letters to the children. The mother was to forward photographs and videos of the children to the father via his mobile phone and the father was permitted to initiate FaceTime with X and Y supervised by the mother or maternal grandmother without third parties present and no other distraction to the children, each Tuesday and Friday at 5:00pm with the call to extend for up to 15 minutes duration subject to the children’s behaviour.
Mother’s Proposals
At the commencement of this hearing the application of the mother was that the children live with her in (omitted), that she have sole parental responsibility, that the children spend time with the father as agreed between the parties, that the parents communicate regarding the children in writing by email. Other orders were sought about permitting each party to contact counsellors and health practitioners and attend at schools. Orders were also sought about either parent respecting the privacy of the other parent and speak of the other parent respectfully.
The mother also sought that both parents were to be restrained from discussing the proceedings with the children and the mother sought orders that she apply for a passport for any of the children without first obtaining the consent of the father and that she be permitted to remove the children from the Commonwealth of Australia for the purpose of overseas holiday and travel and school excursions, without first obtaining the consent of the father.
A notation was sought on the mother’s orders that, “The Court notes that the father last had face to face contact with the children on 4 September 2015 and last communicated with the children by FaceTime on 1 December 15. Should the father seek to resume FaceTime communication with the children he shall provide to the mother an iPad or such other electronic device so as to enable the communication to take place.”
Father’s Application
There has been no doubt throughout these proceedings that the father sought orders to spend time with the children and that he premised his orders on the basis that the children would live with the mother. In his amended application filed on 7 December 2015 the father appeared to reluctantly concede that the mother could remain living in the (omitted) and sought orders for equal shared parental responsibility; that the children live with the mother and the children spend time with the father and communicate with the father at times agreed and failing agreement at the specific times set out.
In that amended application the father sought orders for time with the children for up to six occasions per year, to be nominated by the father thirty days in advance, for one week’s duration with the costs of the father’s air travel from Brisbane or (omitted) to (omitted) and half of his accommodation costs shared between the mother and father. A schedule was set out on how that was to unfold in each week as set out in the amended application with day time only, essentially from 9:00 am to 5:00 pm and separate times for baby Z, who was born on (omitted) 2015, well after separation.
Independent Children’s Lawyer proposals
The Independent Children’s Lawyer (“ICL”) prepared a case outline and noted the competing applications and that more recently on 7 January 2016 the father had filed a notice of discontinuance. By the end of the trial the ICL sought orders that the mother have sole parental responsibility but that the mother ought not be able to change the children’s names or relocate with the children, without the prior written consent of the father or an order of the Court.
At the conclusion of the trial the mother agreed with most of the orders sought by the ICL though with a few exceptions. The mother sought an order for sole parental responsibility and understood the concerns of the Court about the mother changing the names of the children. It has never been in contest that the children would live with the mother. The mother agreed to a restraint that she would not relocate from the (omitted) without providing the father 42 days’ notice by email to the email address he has provided including the date of departure.
The mother however did not wish to provide the children’s residential address at any stage and wished for that to always remain a secret. The mother also proposed an order whereby she was only obliged to tell the father of her proposed geographical location. Ms Medland, solicitor for the mother, submitted that if the father knew the general geographical location of the children, he could understand and know where the mother was going to relocate broadly and it would give him “an idea” of where the children were.
The mother agreed with an order that the children spend time with the father by Skype or FaceTime on two occasions of each week being Tuesdays and Fridays for a call up to 15 minutes with the mother to initiate one call and the father to initiate the other. The mother agreed with an order that she would facilitate Skype and FaceTime within 14 days from the date of this order at her own expense. She would ensure the appropriate equipment appropriately configured was obtained to facilitate Skype and FaceTime and agreed with an order that it was her responsibility to maintain the costs and viability of the connection for Skype and FaceTime.
Ultimately the mother agreed to an order at the suggestion of the Court and ICL that the phone calls not be on speakerphone and that other contact via Skype or FaceTime occur between the children and the father and that specifically the maternal grandmother and grandfather not to be present.
Ms Medland, solicitor for the mother, specifically requested time to go through proposed orders of the ICL with the mother in terms of time that the father could spend with the children. Having been allowed that time, Ms Medland informed the Court that the mother was willing to adopt the orders of the ICL for time between the father and children on (omitted)/(omitted) no more than three times in each year on thirty days’ notice, as set out very specifically in the ICL’s draft at order 4B which refers to specific times.
Order 4B(iv) suggests that the father’s time was to take into account the children’s schooling and that children are not to leave the schooling to have time with the father. Order 4B(v) suggests that when each child is five years of age the father may have an overnight time on (omitted) or (omitted). Finally, should the mother be traveling to the mainland she will provide the father with 14 days’ notice of her intention to travel and then the father may, at his election, have time with the children for day time only as agreed between he and the mother.
There were other orders of a routine nature about exchanging of presents, writing emails, specialist medical appointments, authorities for schools, medical appointments and other less contentious issues set out in orders 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17. At proposed order 18 of the independent children’s lawyer’s outline, the mother disagrees and says that she will only send photographs to the father upon him giving seven days’ notice that he would want such photographs.
Order 16 of the ICL’s draft as agreed to was that a) on the mother locating from (omitted) or b) when the youngest child is five years of age or c) the father failing to exercise time with the children for two years, then the parties will attend dispute resolution to negotiate an alternate arrangement for the father’s time prior to him filing any further parenting applications.
The Court queried the ICL on whether they would support orders that in relation to the children’s reference to the father and the mother and others, that an order should be made for the mother to ensure that at all times she refers to the father by the name of dad, daddy, father or similar and that she ensure that any other family members do so. This was on the basis that the mother’s parents and possibly the mother refer to the father as “old mate” and not dad, daddy and or any derivation thereof.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).
In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).” These provisions are no longer to be given equal weight and since June 2012, greater weight must be given to protecting the children from exposure to family violence, abuse and neglect.
When deciding what parenting Orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DAA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds it would be not in the best interests of the child for it to apply.
If the presumption applies and there is an Order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interest (s.65DAA(1)) and if no such Order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).’
In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable to order equal time or significant and substantial time. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal, significant and substantial time.
Undefended Hearing
Although this matter became an undefended hearing, the obligation on a Court is no less onerous in terms of determining that orders proposed are in the best interests of these children. To that extent the Court has not been prepared to make the orders sought by the mother at the outset and the ICL had various issues of concern that they wished to agitate in terms of the orders being sought by the mother, notwithstanding that the father had filed a Notice of Discontinuance on 7 January 2016.
The trial proceeded over a day and a half. Given that this was an undefended hearing the Court agreed that the mother could appear at this hearing by way of video link from the Courthouse in Thursday Island linking in to the Courtroom in the Federal Circuit Court in Cairns. At the end of the first day whilst the Court and the parties were stood down for the mother to go through some draft orders, the solicitor for the mother sent an email to the Court and the ICL requesting that the matter be adjourned for the day as the tide was going out and the mother had travelled to Thursday Island via dingy and if she did not leave shortly, that the dingy would be stranded and she would be stranded on Thursday Island for the night. The Court therefore adjourned and put the matter over until day 2 for submissions.
Witnesses
Through the process of this trial the mother was cross-examined and also evidence-in-chief was taken from the Family Report writer, Ms L. The report of Dr K was admitted though Dr K was not required for cross examination. The mother’s material was read into the record as was the father’s material. The father’s letter was marked as an exhibit.
A statement of fact in these reasons represents a finding, unless indicated otherwise. I wish to thank Ms Medland and Mr Victoire of Counsel on behalf of the ICL for their assistance in this matter.
Mother
Unfortunately the mother was not an impressive witness. She was regularly non-responsive and routinely tried to avoid answering questions being asked. Throughout her material and evidence the mother has acted in a fashion to suggest that she is the victim of serious and life-threatening domestic violence who needs to remain in hiding. Eventually the mother admitted that in terms of her litigation and separation, she spoke to a woman at the women’s refuge in the (omitted) area (behind (omitted)) where she went after her separation from the father leaving behind the former matrimonial home in (omitted). She said that person told her all about her own pathway leaving her abusive partner, obtaining a domestic violence order and in dealing in family law matters. The mother suggests she just followed the advice of the woman she met in the shelter.
The mother has acted out a process upon her leaving the father. The mother left without warning. She wrote a note that she needed “time out” and she would be back in touch when she is ready to talk. Within two days the mother obtained an ex parte domestic violence order from the Mareeba State Court on the (omitted), (omitted) being a place she has never lived but where she travelled to telling the father that she was “staying with a friend” for a week. Ultimately the domestic violence application was moved to the Atherton Magistrates Court, also on the (omitted).
The distance from (omitted) to (omitted) is approximately 1108 kilometres. Neither of the parties have any association with the (omitted) or (omitted). It seems that initially, whilst legally represented, the father was going to seek his own domestic violence order but that was abandoned. The domestic violence application and order obtained by the mother sought very strict limitations. It prevents the father from contacting her in any way whatsoever. It was an order made by consent without admissions. I am told the father was represented by a solicitor. The mother by that stage, having had only a passing presence in (omitted) on the (omitted), had long gone by the time the final order was made and she had moved a further 800 kilometres or so north to the top of the Queensland coast and Australia, to the remote location of (omitted).
On the evidence I have heard, I am not satisfied that the mother ever told the Magistrates Court in Mareeba (or Atherton) that she had relocated to (omitted) – a very remote location, or that the father had not also moved there. The respondent agreed without admissions to be of good behaviour and not commit acts of domestic violence. The respondent was prohibited from going to or entering or attempting to enter a premise where the aggrieved resides except for the purpose of having contact with his children as agreed between the parties in writing or in accordance with an order of the Court.
The respondent was prohibited from contacting or attempting to contact or asking someone else to contact the aggrieved, except for the purpose of having contact with his or her children as agreed between the parties in writing or in accordance with an order of the Court, except with the written consent of the aggrieved, or except through a solicitor. Order 4 restricted the respondent from following or approaching of the aggrieved when the aggrieved is at any place, except for the purpose of having contact with his children as agreed between the parties in writing or in accordance with a Court, except when attending any Court or tribunal or counselling, arbitration or mediation required by that Court or tribunal or when attending a Legal Aid counselling or other mediation.
Order 5 prohibited the respondent from locating, attempting to locate or asking someone else to locate the aggrieved. This is an extremely broad, all-encompassing order which would appear to amount to the Applicant trying to prevent the respondent from seeking orders in the Federal Circuit Court asking for an order to locate the aggrieved through a location order.
Finally an order was made that the respondent be of good behaviour and not commit acts of domestic violence and the respondent must not expose any child named in this order to domestic violence. The mother has had listed both children (Y and X) on the order. The order is in place until 27 January 2017.
Prior to that, the order that was obtained by the mother from the Mareeba State Court was an ex parte temporary order. As I said, obtained two days after separation when the mother told the father that she “needed time to think” and she was away for a week. ICL2 exhibits the application for a protection order. When the mother was cross-examined she tried to distance herself from the severity of the order and said she did not ask for the orders that were made. It is abundantly clear that the mother has indeed filled out an application and sought orders prohibiting the respondent’s presence from the mother. As I said, unfortunately the mother was a very unimpressive witness and originally indicated that she didn’t ask for the orders but that they were made by the police.
She denied that she asked the police to make a no contact order. However, the application is very clear that the mother sought a no contact order. The children were also included on the order and the mother stated that the reason was as follows:
“The children have been exposed to Mr Hudson throwing items such as his drink bottle and then the eldest X did exactly the same thing with his drink bottle. I spoke to X and told him, ‘We don’t do that kind of behaviour.’ Mr Hudson is not role modelling positive parental behaviour or respectful ways of communicating to me. Little X is now shouting to us to shut up when we are having a fight and is already mimicking his father’s abusive ways towards me. When he hears the roller door going up, when Mr Hudson is returning from being out, he runs and hides saying, ‘No daddy. No, no, daddy not coming home.’”
Having obtained an ex parte order – and I note that the mother spoke to the father the day before the ex parte hearing occurred and her evidence that she did not tell the father the matter was on in Court the following day the mother then relocated. Her relocation in total from (omitted) to (omitted) is a distance of some 1672 kilometres. Having relocated and moved in with her parents, the mother then having an order for no contact complained to this Court that when she left (omitted), the father tried to contact her and he spoke to all the relatives who were also looking for her. There was reference in the material of the maternal grandmother saying that the father was stalking her. The mother sought no consent from the father to relocate the children. He understood she was away for a week. The mother then stayed where she had relocated to, as I said, being a very remote part of Queensland. The mother then set about making the father’s time with the child full of hurdles and obstacles. For instance, the mother decided that the father was not to contact her on her own phone. She insisted that the father ring her mother’s phone knowing, in my view, full well that her mother and father are as observed by the family report writer overly negative and unwelcoming of the father. This is not unexpected as they would be listening to their daughter’s version of events and they would naturally be protective. However, suggesting that the father ring their number is obviously putting a hurdle in the way of the father contacting his children.
The mother put in her protection order to the police that:
I have indicated to Mr Hudson that I will be making contact with him so that he can speak with the boys at appropriate times.
In fact, the mother was very difficult about “appropriate times.” Apparently the father ringing at 4:00pm was “not appropriate”. The mother agreed that on an occasion when the father rang at 4:00pm she did not understand why he rang at 4:00pm when his time in the order was 5:00pm. When he did so her mother told the father that he could not speak to the children and that he had to ring back at 5:00pm.
After the mother arrived at her new destination of (omitted) (17 or so kilometres from (omitted)) and lived with her parents, the mother then made allegations of sexual abuse about the father. She referred to two incidents in the marriage which involved the father “flicking” young X’s penis in the bath. The father has denied any suggestion of sexual abuse or that he did what the mother said. The mother’s evidence is that on one occasion she heard it happening. On another occasion she observed it. The mother did nothing at the time when this was alleged to have occurred which was in the last 12 months of their marriage. She waited instead until she had a domestic violence order and had relocated 1700 kilometres and then notified the police. The police report says that the father’s response to the mother’s allegations is that “he has only ever touched the child’s genital area for the purposes of cleaning only.” He spoke of a rash on X’s genital area that re-appeared each week following X’s attendance at day care. Both parents were attending to the rash. The Queensland Police Service interviewed both parents and no further action has been taken in relation to the mother’s complaint. The police were troubled by the delay and timing of the mother’s allegations.
The police records indicated when canvassed about the alleged inappropriate touching the mother saying:
“I heard and saw Mr Hudson say, ‘Don’t do that or I will flick you on the willy.’ I was in disbelief. If raised with Mr Hudson he would shrug it off. When changing a nappy Mr Hudson would draw attention to the erect penis. I questioned if that was normal male behaviour. Mr Hudson would dismiss me. Ms Hudson estimated the inappropriate touching in the bath commenced when X was 22 months old in, ie, (omitted) 2014.”
The mother told the report writer that she reported Mr Hudson’s inappropriate touching of X to the (omitted) Police after she left the father when she obtained a domestic violence order. The mother said her complaint about her belief of the inappropriate touching of X was deleted by the (omitted) Women's Shelter who had a police officer look at the mother’s statement before lodging the application. The mother nonetheless took the matter up again upon her arrival to (omitted).
The mother said:
“When I came to (omitted) looking for information the police printed off the record. The policeman asked what I was looking for and then asked if I wanted to make a formal statement. The conclusion was that there are no other witnesses and it’s Mr Hudson’s word against mine. They closed the matter.”
In the family report the paternal grandmother, Ms M, was interviewed and she advised that had always had a close relationship with the mother. The mother sent her photographs every day of the children during the relationship and if there was something concerning the mother, Ms M was sure that the mother would have told her. Nothing was said by the mother to her about any alleged inappropriate touching.
In any event, the police concluded that the allegation had been raised in the context of the separation; that the mother had never raised it contemporaneously with the event and that they were suspicious about the delayed report to the police following separation. It seems the mother then became annoyed with the police and refused to take the matter any further.
On another occasion the mother received a phone call from the father at 9:00am on one morning as she said, “Demanding to talk to the children.” The father was told, by I believe her mother that it was not 5 o’clock and therefore he was ringing out of time. The mother said under cross-examination that the children were playing at the time of the phone call and well able to talk to their father and there was no reason why the father could not have spoken to the children when he phoned at 9:00am.
The mother then decided that the father may have breached the domestic violence orders and she attended at the (omitted) Police Station to inform them of the phone call occurring other than at 5 pm. The mother denied that she tried to have the father breached though the evidence is that she swore a statement setting out fully what she believed the breach to be. I do not accept the mother’s evidence that it was the police’s idea for her to contemplate a breach. The mother was adept at blaming others for her own conduct whether it was her parents, the police or unknown persons in a women’s shelter when it helped her case to do so. The mother said when pressed that the father didn’t speak to the children because her mother decided that the father was ringing out of time.
The mother said in her evidence that she took the domestic violence order out because a lady at the shelter told her to do so and how to do it. In any event, the mother continued after relocation to prevent the father from contacting her on her own phone insisting he only contact her parents to ask to speak to the children.
As I have said the mother arrived at her new destination in (omitted) and made allegations of sexual abuse. Given the gravity of the allegations, Dr K was appointed, a psychiatrist because the mother’s allegations in this Court were that she believed the father had a mental health illness and she wanted him to be examined because he was a risk to the children.
The Court through the ICL has ordered that the father and mother be psychiatrically assessed. The conclusion of Dr K, a very experienced psychiatrist, is that the father presents no risk at all to the children and in fact the mother is overreacting to the issue of risk to the children. Dr K also noted the mother’s unwillingness to accept that the children should have a relationship with their father. Dr K said:
“I do not have any concerns about the mother’s parenting or her psychiatric state. I do think she is somewhat overreacting to the issue of any risk to the children. She is clearly not really orientated towards the father establishing a satisfactory relationship with the children. The father on the other hand presents as somebody without psychiatric disturbance but with some obsessional traits but should be perfectly capable of establishing a good relationship with the children.”
The only reason, in my view, that supervision needs to be utilised in the early stages of the relationship is because the children may well be fearful and they are very young. Any such supervised contact should, in my view, quickly move towards unsupervised contact but I am aware of the difficulties associated with the fact that he lives in (omitted) and she will be moving to (omitted) or (omitted).
“From a psychiatric perspective I would have to say I see this man as perfectly capable of appropriate contact with his children and quite able, if necessary, to look after them on any basis. From a psychiatric perspective in him I cannot see the slightest need for supervision of what contact he has with the children.”
The mother says she is now talking to another counsellor and some friends and she says that they still think that the father’s actions (which he denies) place the children at risk. This is despite the unchallenged expert psychiatric evidence.
Upon the mother arriving on (omitted) she took the child X to a counsellor saying that he was having “a bad reaction” to hearing the father’s voice or seeing him. The only time X was having with the father at that time was intermittent telephone contact conducted on a speaker phone in a home with the mother and her parents. It is clear to me that the mother really has refused to consider any other explanation for the child’s alleged distress other than it is the father’s fault. Issues such as the children’s sudden removal from their home and father in (omitted) then moving to the (omitted), then moving to (omitted) and living with her family and from there moving to (omitted) and continuing to live in the absence of the father in his life, are not contemplated by the mother as being possible factors causing X to display behavioural issues. Neither is the position that the mother has placed the children in namely trying to have a restricted telephone relationship with their father whilst the mother and those living with the mother and children have a very negative relationship with the father. The Court is most troubled that these children have been “wedged” between their mother and grandparents and their father.
The mother’s simplistic and strategic point of view is that all problems with the children arise from their contact with the father. I have to say that I am not at all satisfied that there is any evidence at all to support this ongoing theory and rhetoric of the mother.
The evidence is to the contrary, though it is a convenient storyline which the mother has adopted. As to the pregnancy with their third child, the father says and the mother does not contest it, that after an incident in December, (which I will come back to) in which the mother shined a light into the father’s eyes when he was asleep and after which he got out of bed and went to the bathroom slamming the ensuite door, the father says that after that the parents were intimate. The mother subsequently fell pregnant though she did not inform the father personally of her pregnancy rather he found out only through the Court processes that she was carrying their third child. Having placed herself around 1700 kilometres away with the two children, the mother then informed this Court through her solicitors that she couldn’t travel to (omitted) as she was about to have a baby. Ultimately when the matter was before the Court at the Court’s instigation, orders were made about the father travelling to see his children and in particular having the opportunity to meet their newborn child. The mother was in the Court room when these Orders were made.
When the father did travel to see the children the mother was in hospital following the birth of Z. The mother and her father decided however, that on the second day that the father was on the island to spend time with the two elder children and meet Z, that the child X would not be seeing the father as the maternal grandfather needed to take him to the doctor. This was contrary to the Orders that the mother agreed to in Court when she was legally represented. On that day the father through frustration approached the police and sought their help. The local police read the Federal Circuit Court orders and insisted that the child be handed over to the father.
It was only through this police intervention that the father had the time provided for in the Orders. Apparently the day unfolded in a well enough manner. I note in her affidavit material the mother says that the children returned with some ‘wet clothes’ in her bag and that after they had been returned they got diarrhoea and some other illness. This is just typical of the mother’s attitude about the father. Not one solitary positive word has been said by the mother either in her evidence or in her affidavit about the father or the children’s relationship with the father.
The mother has sworn an affidavit blaming the father for all the bad behaviour of the children even though he is not even seeing these children. It is time that the mother looked at her own conduct as the primary carer for clues about what might be affecting the child’s behaviour. The phone calls that did occur through the father ringing the mother’s parents and asking to speak to the children, have now become the topic of discussion with a counsellor chosen by the mother and that counsellor made a recommendation that the father have even less time. As I said to the mother during this trial, is it any wonder that the father has dropped out of this litigation. The counsellor is not the single expert in this trial. The counsellor has not met or interviewed the father.
I saw no acknowledgement from the mother that she had put multiple hurdles in the father’s pathway to seeing his children including no contact domestic violence orders, relocation of 1700 kilometres to a remote island, refusing to take telephone calls from the father at all, telling others to tell him he was ringing out of time, insisting that the father only contact her via email, insisting that the father not know where she live and attempting to breach him under the domestic violence orders for a call which was outside the time in orders in the Federal Circuit Court Orders even though the children were both playing and available to take the call.
All through the mother’s evidence I saw no insight in the mother that she understood the gravity of her own conduct. There was no insight into the situation the mother created in refusing to have any discussion of any kind with the father about the end of their relationship or their future plans.
Dr K
I accept and adopt the unchallenged assessment of Dr K in relation to both the mother and father on the basis that the observations contained therein accord with the evidence and my observations of the parties.
Ms L, Family Report Writer
Having made orders for the mother to attend in person in (omitted) for the preparation of the Family Report, I note at the commencement of the family report that Ms L states that the mother and her family decided that contrary to the Court’s specific orders, it was too costly for the mother to travel to (omitted) and instead they funded the family report writer to travel to (omitted) where the mother had then moved. This of course meant that the observation of the children and father did not take place as expected by the Court. Instead observations were made by the family report writer taking photographs of the children, showing them to the father, interviewing him separately and connecting the father in for a chat with the children during her assessment on (omitted).
Ms L did what she could but it is wholly unacceptable for the mother to act contrary to what was specifically ordered. Once again the mother has impeded and controlled the process for her own advantage and the father’s disadvantage.
The mother has not complied with previous orders to send the father photographs as she said she thought that, “Because the father has discontinued that the orders no longer applied.” The mother is wrong about that but this was indicative of her attitude towards the father.
Ms L gave evidence and was cross examined.
Having heard from the mother that the children did not wish to see their father, Ms L said she was most surprised when she said to the children to pose for a picture that she was going to send the father. On hearing this, Ms L observed X jump into a boat and immediately went into pose. Each of them went into a pose of smiling and happy faces for the photos to be shown their father. They were each excited upon hearing that he would be seeing their photographs.
Ms L said that this behaviour was completely incongruent with what the mother had described to her about the children’s reaction of talking to the father on the phone. Unfortunately, I am satisfied that the mother has been less than honest in this matter. I agree with the observation of Dr K that the mother is over reactive to alleged risks for the children. The mother has been defensive during her cross examination, she tried so say as little as possible. The mother did though repeat throughout her evidence certain mantras that she has learnt about domestic violence. When asked specifically what domestic violence she was talking about she answered that it was the incident she put in her application and then added a throwaway line that, “And by the end of the relationship it was becoming physical.”
When challenged about this statement it was apparent that there was no evidence of physical violence of any kind whatsoever. Ultimately and reluctantly the mother admitted this under oath. The mother as I have said is loose with the truth. She has used descriptive words that are not appropriate to her situation and appears intent on attempting to portray herself as a victim of serious family violence however, the evidence falls well short of establishing this. Neither of the incidents referred to by the mother constitute Family Violence.
The mother says she is anxious when she hears the father’s voice on the phone. Ms L has said that if she is anxious that is something that the mother will need to deal with. I agree.
I am satisfied that there is no objective evidence of family violence validating the cause of the mother’s alleged anxiety. Perhaps the mother is anxious because she knows that she has acted dishonestly in her departure from the relationship in leaving a note for the father saying she will be back in a week then requesting a domestic violence order for no contact followed up by making claims about his alleged sex abuse of a child 12 months after the events allegedly happened in her presence and then being obstructive about the time the children spoke to the father on the phone without any basis for doing so and finally attempting to prevent and frustrate the physical time he was to spend with the children on (omitted).
Whatever the source of her anxiety is, I do not see it as being in any way an issue that would prevent the children from spending time with their father. On the evidence before me there is no rational basis for the mother acting in the way she has and for her failure to have any proper discussion with the father to sort out the issues which arise at separation.
There is no evidence that the children are at risk with the father. I am not satisfied that the father has engaged in sex abuse of the children or either child on the evidence I have before me. I am cynical of the mother raising an issue about something allegedly happening in her presence months after it happened and after she has left the father. The police are not prepared to follow through any further with the allegations. I accept the evidence of Dr K that the father is perfectly capable of being a parent and that his parenting does not call for supervision. I consider the alleged inappropriate touching by the father represents a distorted account of events. I am satisfied that the father does not represent an unacceptable risk for the children to spend time with the father. I accept the unchallenged recommendation of the Dr K that he has much to offer the children.
The children have had one session with the father when he did manage to travel to (omitted) after baby Z was born in (omitted) 2015. After Z’s birth the mother and her parents decided to rent a house on (omitted). As I have said even on that occasion the mother and her father attempted to engineer a situation where Y would not be seeing the father (contrary to Court orders) on the second day because allegedly he needed to go to the doctor. This required the father to seek police intervention to enable the father to exercise the contact that the Court had ordered. If the mother and her father had their way, Y was not going to spend the time ordered with the father. The mother’s evidence on this issue was entirely unsatisfactory and inconsistent. The Court is deeply troubled by the mother unwillingness to comply with the Orders and the spirit of the orders.
The maternal grandfather made it abundantly clear to the Report writer that he has very dim view of the father and listed out what he considered were the father’s failures. It seems on reading the Family Report that the maternal grandfather has a significant presence in the life of the children and given that he has the luxury of living with the children this is not unexpected.
The mother as I said was evasive and a very poor witness. One of the overwhelming features in this matter is that the Court could have no confidence that she genuinely wanted the children to have a relationship with the father and that the mother shows no respect for the role of the father in the children’s lives. The mother has acted dishonestly with Courts in the matter in the way she has portrayed the father. Unfortunately, the mother appears to be well supported in this regard by her own parents who whilst no doubt being otherwise fine upstanding citizens have clearly aligned themselves strongly with the mother and against the father.
I shall now turn to examine the relevant additional considerations referred to in section 60CC (3) the two primary considerations in section 60CC (2).
S.60CC(3) The additional considerations are:
S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
In terms of section 60CC factors I have no independent evidence about the children’s views and they are very young. I do however, have the evidence of the report writer Ms L who did the best she could in a difficult situation with the mother and her family refusing to travel to (omitted) for the family report. Ms L took photographs of the children on (omitted)/(omitted) and showed them to the father. His response was that he was overwhelmed in seeing current pictures of the children. The children were also motivated to send a fun picture of themselves to the father.
Despite the Court’s orders for the mother and children to travel to (omitted) made in the presence of the mother in the Cairns Court room and despite the Court accommodating the date of the trial to allow the mother to recover from the birth of the parties’ 3rd child, the mother and her parents made other arrangements for the preparation of the Family Report contrary to Orders by funding the Report Writer to fly to (omitted). This of course meant that the children were not given the opportunity to spend time with their father in the presence of the Report writer. This is another example of the lengths that the mother and or her parents will go to, to ensure that these children do not have a relationship with the father. The mother supported by her parents have taken control of the Court process of having a Family Report prepared and denied the Court the opportunity to have evidence of the interaction of the children with their father at this final trial. This was never intended by the Court. This overall conduct is a significant issue in these proceedings.
S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
The children are primarily attached to their mother and there is no serious complaint about her parenting by the father in terms of physically parenting the children and providing safety and shelter and food. The father has agreed that the children should live with the mother.
In terms of being willing to ensure that the children have a relationship with their father I am very critical of the mother. The mother has removed herself and the children thousands of kilometres from the father in an abrupt and unilateral manner. She has been less than honest with the father. She has sought orders for domestic violence which are way beyond anything which represented the reality of the situation and then been prepared to lodge an allegation of sexual abuse 12 months old against the father. The mother makes submissions that the children have not spent much time with the father and submits that when he does come up to (omitted)/(omitted) that her parents who are hostile do the supervising. This is a formula doomed for failure given the hostility the maternal grandparents have shown towards the father.
The evidence I have in relation to the father’s relationship with the children is nothing but positive. The children did not act frightened or adversely when talking with the Family Report writer about their father and certainly their actions in having fun and enthusiastically embracing the concept of a photograph of them being sent to their father was in my view a spontaneous act and a good indication of the affection they have for their father.
I am satisfied that these children should have the opportunity to maintain and enhance their relationship with the father.
S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity:
To participate in making decisions about major, long term issues in relation to the child; and (ii) To spend time with the child; and (iii) To communicate with the child.
The mother has failed to permit the father to be involved in the decision making in relation to where the children live and who they live with. The mother’s poor and self-focused decision making is a very troubling issue for the Court as is her inability to accommodate or tolerate a relationship between the children and the father.
The mother has unilaterally made decisions about where the children will live and the distance and location and her conduct has directly affected the ability of the children to have a relationship with their father.
The mother has also refused to even allow appropriate and reasonable telephone communication between the children and the father, insisted that it occur on speaker phone and has had it happening in the presence of their maternal grandparents knowing their animosity towards the father. The mother has refused to provide her own phone number or another number that she would answer and insisted that the father ring a phone answered by the maternal grandmother. The Court is most critical of this strategy adopted by the mother and her parents and considers such obstructionist behaviour to be a most negative aspect of the mother’s attitude towards parenting. The mother has failed to show any respect or acknowledgment of the role of the father in these children’s lives.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
Although there was very little evidence in relation to child support at the trial, the mother deposes in her affidavit filed 22 January 2016 that the father pays $13.41 per week to the mother for child support. The father it seems maybe pursuing more work opportunities on the (omitted).
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The current arrangements which the mother proposes continues make it difficult and expensive for the children to spend time with the father. I have already expressed my alarm at orders proposed by the mother initially which require her agreement to any time to be spent by the father with the children.
I consider that it is only through firm and proscriptive arrangements through Orders of the Court that these children will have any hope of having a relationship with their father, though the cost of travel for the father will be significant. The distance and cost will unfortunately act as limiting factors in relation to the frequency of such visits.
The orders proposed by the mother wherein the father is never to know where the children live will surely result in the loss of contact between the father and the children. There is no factual or evidentiary basis for such a request.
Similarly, there is no factual or evidentiary basis for a request that the mother be permitted to request a passport for each of the children without first seeking the agreement and approval of the children’s father and that she be permitted to remove the children from the Commonwealth of Australia without first seeking the agreement and approval of the father.
And finally, there is no factual or evidentiary basis for issuing orders sought by the mother that she be permitted to move all around Australia at her discretion and that the father can only be told the general geographical area where the children are living.
The Orders sought for the father to spend regular time in (omitted) with the children is the mechanism by which these children will be able to have the best possible meaningful relationship with the father whilst the mother is living in (omitted). The importance of them having Skype or face time with their father also cannot be overstated.
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The distance and expense are significant issues in this matter as I have already referred to. This has occurred due to the mother removing the children from central Queensland to a very remote location in the (omitted), first (omitted) and then (omitted). Having heard all of the mother’s evidence, I am not satisfied that the mother will stay in her current location, though I am satisfied that the mother will remain on (omitted) while it suits her purposes to do so. I have the impression that the mother has chosen to move herself and the children back to the maternal grandparents where the father will find and has found it very difficult to have ongoing meaningful time with his children. The maternal grandfather and the mother decided that the short amount of time that the father had to spend with the children was not going to occur when the maternal grandfather held the child Y in his care with a message going to the father that the child was too sick to spend time with him. This is after the father has travelled such significant distance to this remote island location to meet his new born child.
It was only through the father’s appropriate request for the intervention of the (omitted) Police and their assistance on seeing the order of this Court that Y did get to spend the day with his father.
It is difficult to contemplate how much more difficult the mother and her parents are willing to make it for these children to spend time with their father. The mother is either acquiescing to the attitudes of her parents in this conduct or engineering it herself. Either way, her conduct is unacceptable and the Court has grave concerns that the mother will regardless of orders made in any genuine way actually facilitate the time that she has agreed to today. The mother has shown that she will agree to orders in Court but once she is out of the Court room she and her family completely control the arrangements and the Court’s orders mean little to the mother.
S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
Overall, the father makes no criticism of the mother’s parenting though he has expressed alarm at the mother’s relaxed attitude to child safety car seats for the children. He nonetheless agrees that the children should live with the mother. These children are much loved children by parents not just the mother and her family.
The overarching and significant issue however, is that the mother does not provide for the children’s emotional wellbeing as she shows a complete lack of insight into the importance of these children having their father in their lives. Moreover, not only does the mother not show any signs of understanding the significance for the children of having a meaningful relationship with their father, the mother has gone out of her way to undermine this relationship. This is a significant and critical issue for the Court in determining this matter.
The father has had almost zero opportunity to spend time with the children. He has been assessed by both a Family Report writer and psychiatrist as having the ability and willingness to be spending time with the children. The orders proposed by the ICL provide for a gradual increasing of time with the father and overnight time is not pressed for the immediate future. This is not because of any doing of the father, rather just the difficulties that have been put in place for regular ongoing time between the children and father.
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have said elsewhere that these children come from a mixed racial heritage of Torres Strait Islander on the mother’s side and (nationality omitted) on the father’s side.
S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting Order under this Part will have on that right
The children have a Torres Strait Islander heritage. I have no doubt the maternal grandparents will ensure that the children are exposed to and engage in their culture and traditional practices of fishing and living off the land. However it is clear from the family report that the mother is yet to learn creole and when asked about cultural activities, her family practice and dates, the mother required prompting from the indigenous liaison officer.[2] The mother said she had a shocking memory for dates and that she needed to do some homework about the specifics of the important cultural dates. The mother, admitted since coming back to the (omitted), she is reconnecting with her uncle who is teaching these children about their culture. It seems that the maternal grandparents are strong custodians of the Torres Strait culture but that the mother has not kept up with such matters.
[2] Family Report of Ms L dated 20 July 2015, Paragraph 68.
The father spoke positively to the family report writer about the importance of the children knowing the paternal cultural heritage and their maternal cultural heritage saying he gives equal weight to the children’s English, (nationality omitted), (nationality omitted) and Torres Strait Islander and Australian heritage. Given that the children will be living with the mother, this is not an issue which creates any controversy in this matter as she has the strong support of her parents on this issue.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother may be able to physically care for the children, house them and feed them but I am not satisfied she has the requisite capacity to provide for their emotional wellbeing. A glaring deficiency in her capacity and responsibility toward parenting is her lack of insight into the importance for the children to have the father in their lives in a real and meaningful way, on a regular basis.
I am troubled at the prospect of the mother alone making decisions such as counselling for these children without any involvement of the father.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family
As I have referred elsewhere, there is an order in place and no admissions were made.
On being cross-examined about each of these issues, the family violence essentially came down to two issues. They are set out in the mother’s application.
The first incident involves an incident when the father had gone to bed at 8pm, as he needed to be up at 3.30am the next day to start a new job at 6am and there was a journey of an hour and a half or so to travel to work. After he went to sleep, the mother went into the room, into the dark, holding up a form for him to sign to go to marriage counselling shining a light in his face, even though he was asleep. The mother denied she was shining a light in the father’s face but said disingenuously that she was just holding a baby monitor which had a light attached to it. The mother did not deny that she had woken the father and wanted to talk to him about the marriage counselling. I have considered the circumstances of this incident also and having heard the mother’s evidence, I am not satisfied that an incident of family violence took place. It seems more the case that the mother was either completely unthinking of her own actions and the consequences, or alternatively, that she was deliberately creating drama in order to attempt to have some evidence to uphold the basis of a domestic violence order.
Prior to that, another issue happened when the father was trying to get some ice of a frozen bottle and used a knife to try get the ice out. He then threw the knife and the bottle into the sink. The mother saying she was frightened when the father was getting the ice of a frozen bottle in the kitchen sink, in my view, has been distorted by the mother in an attempt to create an incident of family violence. I do not accept that the father engaged in an act of family violence.
I have listened to all the mother’s evidence about domestic violence and taking it at its highest, I am not satisfied that the orders being sought by the mother to remain in hiding from the father, nor for him to not ever know where she and the children live is warranted. For the father to be prevented from ever finding out where the mother lives does not correspond with the factual matrix of this matter.
This is not to say that these parties have not had some arguments. I am aware of the history set out in the material regarding the father having been in the (employer omitted) who has had some post-traumatic stress disorder, who has been diagnosed as having obsessive compulsive disorder. There have been arguments, however, I am not satisfied that the evidence constitutes the serious domestic violence alleged by the mother. I am satisfied that the mother has overplayed the domestic violence allegation and I am very critical of her for doing this.
There have been no incidents of domestic violence at all since separation, even if I factor in the two incidents the mother’s evidence was based on. The further allegations of “stalking” the mother are without foundation. The mother’s feigned “surprise” that the father would try to locate his wife and children when they suddenly left the matrimonial home was naïve and contrived. As I said to the mother, surely if the father left with both their children abruptly and without her knowledge, both she and her own family would have been desperately trying to find the father and children. To regard the father’s efforts to locate his children in the circumstances I am aware of in this matter as being stalking-type behaviour is strategic and dishonest.
The mother seems to have been content to place herself in a private refuge on (omitted), have no telephone contact with the father and to ensure that he not be permitted to contact her directly. The mother’s position is that the father must never know where she lives and he must never know where the children live. The mother is still seeking orders that the father only know her geographical location. There is no foundation for such an order and I intend to make orders that the mother will keep the father informed of the residential address of the children at all times.
The mother admitted during this proceeding that she took some advice from a woman in the shelter who told her what to do. The mother is either gullible or manipulative in her strategic approach in this litigation. Either way, I do not accept that family violence has occurred as deposed to by the mother. I also do not consider that there is any evidence to support an Order sought by the mother that the father must never know the children’s address and that the most he should be told is the mother’s general geographical area. The facts of this matter in no way support such a rigid restriction.
S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order; (ii) the circumstances in which the order was made; (iii) any evidence admitted in proceedings for the order;(iv) any findings made by the Court in, or in proceedings for, the order;(v) any other relevant matter.
The orders in this were made by Consent without admissions. There were no findings. The mother was living a vast distance away from the father when she obtained the final order and I am satisfied this was not explained to the learned State Magistrate by the mother. I rely upon but do not repeat what I have said elsewhere in this judgment regarding the risk of family violence.
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
This trial was set down for a final hearing and generally the Court would wish to make final Orders to allow for stability and an end to litigation. However, on the evidence to date, it was only after hearing the Independent children’s lawyer’s concerns and the Court’s view, that the mother then changed her position and agreed to facilitate specific and set times between the father and the children.
The mother however, has a history of agreeing to Orders and then changing her mind outside of the courtroom. Her acting contrary to Court directions in terms of not coming to (omitted) for Family Report interviews and again in trying to stop contact between the children and the father when he travelled to (omitted) is illustrative of her conduct. As I have said, the mother has been dishonest in her dealings with the Court and the father and the Court can have no confidence that she is acting in good faith in her statements through her lawyer to the Court.
I have a strong impression that the mother is not yet settled. She is dealing with the arrival of their new baby, she and her parents have moved to another rental house on (omitted), the children are very young and the father is himself moving to obtain work on the (omitted). There is little evidence of any stability in the evidence of the parties’ living arrangements before the Court. I have a lingering doubt that the mother has been less than candid with the Court in her answers about her own future plans.
Overall, I have significant reservations about making final Orders.
S. 60CC(2) The primary considerations are:
The benefit to the child of having a meaningful relationship with both of the child’s parents; and
I am satisfied in terms of the children that it is certainly in their best interests to have a meaningful relationship with both parents. This would include also the opportunity to have a relationship with the father and his family who have their own cultural background being (nationality omitted).
The mother, in my view, assisted by her parents has made it as difficult as possible for the children to maintain a meaningful relationship with the father. This has been quite a deliberate strategy on the mother’s part. I am satisfied that there is no validity to the mother’s position that the children are frightened of the father or that he represents such a risk to the children that he must never know where they are living. I am deeply concerned about the mother’s attitude towards the father in terms of her doing inability to promote or accept that the children ought to be having a relationship with their father.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The primary considerations in this matter are to protect the children from family violence, abuse and neglect and to enable them to have a meaningful relationship with their father. Although there is an order for domestic violence it was made with no admissions and no hearing.
This Court is the only Court that has heard the mother’s evidence of alleged domestic violence. I am satisfied that no family violence has occurred on the evidence before the Court. The Court is also satisfied that there is no unacceptable risk to these children posed by the father and any suggestion of supervision is without merit. I accept and adopt the recommendation of Dr K and the Family Report writer Ms L in this regard as their observations accord with my own. The only issue which the Court could contemplate is whether or not a responsible person should be present for the first or second time that the father spends with the children in person as was also discussed by Dr K. Those persons for reasons explained cannot be the maternal grandparents.
I am most troubled by the mother’s willingness to exaggerate and/or distort incidents in order to wrongly pursue domestic violence protection and making false claims regarding the father.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant
I have nothing to add under this section.
Parental Responsibility
In terms of parental responsibility the mother seeks an order for sole parental responsibility. I have great concern at the proposal for orders for sole parental responsibility to the mother. It means the mother will solely decide all decisions about the children’s living arrangements, their surname, education and medical issues.
I am not satisfied that she would exercise that responsibility appropriately. I am not satisfied that to date she has acted in the children’s best interests. The mother has been self-interested and she has dealt with the father with deceit. The mother has engaged in strategy where she has taken all action possible to fail to permit or encourage a relationship between the children and the father and demonising the father in the process.
Submissions were made to me by Ms Medland that there ought to be an order for sole parental responsibility because it’s evident that the parents are not able to communicate. Ms L, the report writer, noted that the mother and father had good communication but that it seems to have failed. I am not able to conclude that the parents are unable to communicate. I am satisfied however that the mother has used all methods possible to cut off any communication with the father and to prevent it happening in the future.
I am not satisfied that there has even been an opportunity for the father to communicate with his former wife about the breakdown of their relationship let alone anything to do with the children. The mother as I have said has put up obstacles and has refused to talk with him. Her evidence was that there have been no discussions even after a relationship and marriage of five years and three children. It is difficult to father that the mother has been unwilling to engage in any discussions at all about the breakdown, the children or their future.
I am not in a position to trust the mother with an order for sole parental responsibility. I am quite satisfied on the evidence before the Court at this point in time that the mother would abuse that privilege and that she would arrange the children’s lives so that their father is not a part of these children’s lives. I have no confidence that she would not change their surnames, relocate the children so as to make time spent with the father impossible and put whatever steps in place she thought necessary to ensure that she and the children become unknown to the father.
The submission on behalf of the mother that an order for sole parental responsibility ought to be made because the father didn’t even tell the mother where he was going when he recently moved from (omitted) to the (omitted) to be with his own father was, as I said at the time, a submission full of hypocrisy. The mother did not tell the father where she was going with their two children. She was not willing to say where she was moving to even when she had no intention of returning. It is difficult to accept that the mother ever intended to return. The father on the other hand is moving in the search of work and to be closer to his father after the mother has relocated to the (omitted).
I accept that the presumption of equal shared parental responsibility applies. I do not accept the mother’s evidence of alleged family violence. I am also satisfied that the presumption is not rebutted as not being in the children’s best interests, In my view, it is essential that the mother and father make long term decisions for these young children. There is no valid reason why the father ought to be excluded from exercising equal parental responsibility regarding the children along with the mother.
The mother has demonstrated that she cannot put the children’s needs above her own. It also appears clear to me that the mother prefers to be influenced by the attitudes of her own parents than to insist that the children be permitted to have a relationship with their own father.
I intend to make an Order for equal shared parental responsibility.
I do not intend to permit the mother to move around Australia at her whim as was suggested by her solicitor on behalf of the mother and that the mother need never tell the father geographically where the children are living. Nor I am I prepared to make an Order that the mother be permitted to remove the children from Australia and obtain passports all without reference to the father. It is not in the children’s best interests at any level that such orders be made granting the mother such unilateral powers. I do not accept that the mother alone should be making any of these significant decisions.
I intend to make Orders that the mother provide her own phone number for the father through the ICL within 5 days of this Order issuing. I will also order that the mother provide the father with the residential address of the children and keep him so informed at all times. I intend to order the mother establish an email address and provide the details of that address to the father through the ICL. The father is to provide his phone number and email address accordingly to the mother through the ICL.
I will also make Orders for the mother to provide the father with a regular update as to the children’s wellbeing and regular photos.
The father’s time with the children
Having made and Order for equal shared parental responsibility, I need to consider pursuant to section 65DAA, the children spending equal time with each of the parents and whether that would be in the children’s best interests and reasonably practicable and if both criteria are answered in the affirmative, consider making an order for equal time. If I do not make such an Order, I must also undertake the same considerations in relation to the children spending significant and substantial time with the father.
At this point in time, the living arrangements of the children are that the children have been living with their mother as their primary carer. The father is not seeking to disturb that. The father is seeking to spend regular time with the children. He has sought orders for regular occurring time during the year. He is willing to travel to the (omitted) initially.
The mother sought orders for time with the father, “at times as agreed”. I indicated early in this hearing that I am reluctant to make orders as sought by her namely “as agreed,” particularly in light of all of the circumstances of this case. .I specifically asked the mother to identify what was her plan for the children to spend time with the father as I am well aware that “as agreed” can mean no contact at all. Spending supervised time, supervised by her parents was not a proposal that struck me as being at all workable.
The father is considered by Dr K, the ICL and the Court to have much to offer the children. There has been significant public money spent on this matter with the appointment of several experts and ICL. I do not regard it to be in the best interests of these young children to have no contact at all with their father.
Upon the Court indicating it was unlikely in the circumstances to make an order for contact “as agreed” the mother was then taken through the independent children’s lawyer’s proposal by her own solicitor. The Court stood down while she went through the proposals carefully with her solicitor.
The mother then indicated to the Court through her solicitor that she is content to facilitate the time set out in orders 4B. I have very little confidence that this will actually occur. I accept that the time set out at this time is in the best interests of the children.
Obviously equal time cannot happen with the father living in (omitted) or the (omitted) and the mother living on (omitted) or elsewhere in the (omitted).
However, orders which are in the best interests of these children are orders that provide for them to have a regular opportunity to maintain their relationship with their father including his daughter Z. The mother agrees that the orders proposed by the independent children’s lawyer provide that opportunity. I accept that this is so but I have a lingering concern that the mother will agree to anything right now whilst the matter is before the Court and when out of the Court’s gaze she will revert to ensuring the children do not have the opportunities to spend time with the father that have been provided for in these orders.
Judging by her behaviour and conduct so far, the mother and/or her parents will actively undermine the opportunity for these children to have a meaningful relationship with their father.
Overseas travel
In terms of an order for overseas travel, I do not intend to give the mother the option to remove the children from Australia. Frankly, I am not in a position to trust the mother. She has been dishonest with the father. She has, in my view, been dishonest with the state Magistrates Court in seeking orders above and beyond anything that was required and that attitude has continued in these proceedings. The mother blames others for her conduct yet so far she has been happy to remain aloof and distant from the father with the help of her parents. The mother has been less than candid with this court in her evidence.
I saw nothing about the mother’s presentation or evidence that suggested she was going to genuinely encourage or enable a relationship with the father and children. The steps she has taken to date are deeply alarming and leave the Court with serious doubts about the bona fides of the mother in this regard. Despite the psychiatric assessment clearing the father of having any psychiatric condition that would prevent him from spending regular unsupervised time with the children, the mother says she and her friends and her counsellor still say the father presents a risk. The Court accepts the report and recommendations of Dr K.
The mother took steps to breach the father under the domestic violence application for a phone call said to be out of time. Up to this point in time, she has not encouraged the relationship between the children and the father. These early years are critical for the father to build up his relationship with the children. The evidence is that the children are excited at the thought of seeing their father they reacted very well to the knowledge that a photo of them was to be sent to the father. Importantly, the children did not at all respond negatively to the discussion of the father as alleged by the mother.
An order permitting the mother to remove the children from the Commonwealth of Australia might result in the children being taken for “another holiday” by the mother. Perhaps like the last time she said she was going on a holiday, she might decide to remain permanently overseas.
There are, of course, penalties under the Family Law Act applicable in the event that a parent removes a child from the Commonwealth of Australia when there are orders in place preventing such removal, such penalties include jail (s 70NFB(2)(e)).
Discussion
The mother has failed to provide the children the opportunity for engagement with the father for the purposes of a properly prepared Family Report. The mother and father have moved earlier in their history from (omitted) to (omitted). The mother has moved in with her parents on (omitted), (off (omitted)) and then to (omitted) where they are all now renting. I am not at all satisfied that the mother is finally settled. I had a strong impression she is staying put with her parents until this litigation is over. After that, as I said to the mother, she is young enough to re-partner and I saw no evidence that the mother intended to remain living in the (omitted) indefinitely. The mother was less than candid in my view about her future plans. I was left with the distinct impression she was withholding information from the Court about her future plans.
The children in this matter are very young and the Z is still a baby. After consideration of the advantages to the children of making final orders, given however all the circumstances and the obvious difficulties that the mother has created for the father in attempting to retain a relationship with his much loved children, I am not satisfied that it is appropriate at this time to make final orders.
I intend to make interim orders largely based on the draft Orders prepared by the ICL but modified to accommodate their being interim and not final Orders. I do not intend to restrict the number of visits that the father can make to the (omitted) to see the children. Distance and cost of travel is prohibitive enough. I also intend to make orders that the mother is to advise the father in the event that she and or the children travel for any purpose from the (omitted) such that there is a possibility of the father spending time with the children at another location. Orders will be in place that enable the children to spend time with their father if such opportunities arise.
There are several restraints that I intend to include. A significant issue has been that the mother and or her family have referred to the father as “old mate” or any name other than dad, daddy or similar. This is just another ploy of diminishing the standing of the father in the children’s lives and the mothers’ household. The Family Report writer noted that the mother had no photographs at all of the father in her household on view for the children.
The mother has shown she is quite adept at working around orders to make sure that they are not implemented. The orders I am making will be proscriptive. The Court in my view needs to have the opportunity to be satisfied that the mother will do what she says she will do. Her failure to comply with orders will be a matter for consideration in future orders.
The strong message the Court wishes to impart to the mother is that she has an obligation to ensure that these three young children have an opportunity to spend time regularly with their father. These children have a right to know both their parents under the Family Law Act and despite the mother’s view (and that of her parents) about alleged failures on the father’s part in the past, he has have been examined by the Court and the expert witnesses and the ICL and the Court has determined that it is in the children’s best interests to know and love their father as well as their mother.
I intend to adjourn the matter for a period until March 2017. In terms of applications after that time I will have the matter relisted and see whether the mother is going to not only observe these orders but also whether she has observed the spirit of these orders or alternatively, has she found ways of remaining obstructive and limiting the father’s time.
I will issue a restraint about the mother relocating the children from the Commonwealth of Australia until further order. The mother will be restrained from removing the residence of the children other than to return to live in the same location as the father unless she obtains the prior written consent of the father and ICL or order of this Court. The Court has no confidence that the mother will not attempt to relocate the children even further away from the father.
The mother is to ensure that the father’s name is shown on the school, day care, kindy and prep school enrolment information at all times and he and his family are permitted to attend such institutions for events that parents normally attend, subject always to the discretion of the school /day care.
I intend to order that the mother present herself and the children in (omitted) in preparation for a further Family Report in March 2017. So that there is no confusion, this Order for the Family Report to be prepared in (omitted), with the mother and children and father travelling to (omitted) for the interviews and assessments. This Order is not to be altered by the Report writer, the mother or her parents.
The ICL has liberty to have this matter re-listed on short notice.
I certify that the preceding one-hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of Judge Willis
Date: 29 June 2016
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