HUGH & SAWER (INJUNCTIONS)
[2010] FamCA 448
•24 May 2010
FAMILY COURT OF AUSTRALIA
| HUGH & SAWER (INJUNCTIONS) | [2010] FamCA 448 |
| FAMILY LAW – CHILDREN – Injunctions |
| Family Law Act 1975 (Cth) ss 4, 60CA, 60CC, 61B, 61C, 68B, 69ZT |
| APPLICANT: | Ms Hugh | |
RESPONDENT: | Mr Sawer | |
| INDEPENDENT CHILDREN’S LAWYER: | David Walker & Co |
| FILE NUMBER: | LNC | 511 | of | 2008 |
| DATE DELIVERED: | 24 May 2010 |
| PLACE DELIVERED: | Hobart |
| PLACE HEARD: | Hobart |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 24 May 2010 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Lewis |
| SOLICITOR FOR THE APPLICANT: | Levis Stace & Cooper |
| COUNSEL FOR THE RESPONDENT: | No appearance |
| SOLICITOR FOR THE RESPONDENT: |
| INDEPENDENT CHILDREN’S LAWYER | David Walker & Co |
Orders
That all previous parenting orders in relation to J born … June 1996, E born … January 1999 and H born … January 1999 be and are hereby discharged.
That the mother have sole parental responsibility for the children E born … January 1999 and H born … January 1999 (“the children”).
That the children live with the mother.
That the father be prohibited by himself his servants and agents from communicating with the children or by placing any call or message to a mobile telephone service in the possession of the children or either of them.
That pursuant to Section 68B of the Family Law Act 1975 the father and/or Ms B be and are hereby prohibited from:-
a)contacting the mother save as may be provided in any subsequent parenting order of this Court;
b)contacting the children E born … January 1999 and H born … January 1999 or either of them save as may be provided in any subsequent parenting order of this Court;
c)approaching at or within 200 metres of the mother’s residence at R, Tasmania save as may be provided in any subsequent parenting order of this Court or with the mother’s prior written consent;
d)approaching at or within 200 metres of the children’s school, being L School; and
e)from attending at or approaching within 100 metres of any venue at which L School or the V Basketball Club or any other extra curricular activity in which the girls (or either of them) are involved and participate, are having a function or participatory activity; and
This order is made for the personal protection of the mother and the children and has attached to it a power of arrest pursuant to Section 68C of the Family Law Act 1975 so that if a police officer believes, on reasonable grounds, that the father and/or Ms B has breached the injunction by:-
i)causing or threatening to cause bodily harm to a protected person; or
ii)harassing, molesting or stalking that person;
the police officer may arrest that person without warrant.
Until further order, and for the purpose of the father and Ms B being appraised at what events they are precluded from attending, the mother do all acts and things necessary from time to time to provide the father and Ms B with a roster of basketball activities for the children and any other similar extra-curricular activity in which the girls (or either of them) participate promptly upon publication of such roster, by sending same by pre-paid post or electronic means to addressed to Ms B at Ms B’s professional address.
That the independent children’s lawyer be responsible for service of this Order on the proper officer of:-
a)L School;
b)S School;
c)The V Basketball Club;
d)Any other activity which the mother notifies to him is an activity in which the girls participate;
That the independent children’s lawyer provide a copy of my reasons for judgment to the proper officer of:
a)L School;
b)S School;
c)Any other person who the independent children’s lawyer considers ought to be aware of the reasons for the injunctions provided herein.
That pursuant to Sections 65DA(2) and 62B the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
AND IT IS NOTED BY THE COURT:-
a)There are no parenting orders in relation to the child J born … June 1996;
b)Ms B informed the other parties and the court on the Friday 21 May 2010 preceding the hearing that neither she nor the father would attend court today and that neither sought to be heard in relation to the continuation of injunctions;
c)The father attended court as a spectator but left in the course of the morning and did not return.
d)There was no appearance by or on behalf of Ms B.
IT IS NOTED that publication of this judgment under the pseudonym Hugh & Sawer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT HOBART |
FILE NUMBER: LNC 511 of 2008
| MS HUGH |
Applicant
And
| MR SAWER |
Respondent
AND
INDPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
Introduction
On 17 March 2010 the father was found to have contravened parenting orders on 11 counts. Following that finding, oral application was made by the mother to discharge parenting orders and injunctions affecting the eldest child, J born in June 1996, and the twins E and H born in January 1999. The mother sought to discharge any orders about J to reflect the fact that he is not living in her household and to expand certain injunctions so that the father and his partner, Ms B are prohibited from using school functions or sporting activities, like the girls’ basketball, to spend time with the children when they are otherwise not permitted to do so.
On 17 March 2010 there was insufficient time to consider the matter fully and Ms B sought an opportunity to consider her position. I pronounced holding orders. My reasons in that regard are published at [2010] FamCA 388 and I will not repeat them here.
The final hearing of this aspect of the children’s proceedings was set down for today, 24 May 2010, with due notice to the parties and to Ms B in the event that she wanted to be heard on the injunctions which affect her. Ms B is a lawyer who intermittently acts for the father as well as being the father’s partner and mother of their three year old child (“C”). Her firm’s place of business is at the same address as their family residence.
On 21 May 2010 Ms B wrote to each other party to the proceeding advising, inter alia, the father would “not be filing any documentation due to his ill health and unwillingness to be any further involved in this process” and that neither she nor the father would be in Hobart today “nor do we wish to make oral submissions in relation to the injunction issue, but wish for it to proceed on the papers.”[1]
[1] Exhibit “C1”
Today, Mr Lewis of counsel appeared with Ms Turner solicitor for the mother. The independent children’s lawyer (ICL), Mr Walker, appeared. The father and Ms B were called. The father was seated in Court and addressed the Court but did not approach the bar table. He said that he was not sure why he attended. He thought that the mother or the ICL wanted him to participate in the proceeding but was told that they did not require him. The father sat in the gallery of the Court, moved after sometime to speak with members of the public who were also seated in court and then left. I observed the father to move ably around the court and he did not appear to be under any disability. There was no appearance by or on behalf of Ms B.
The paternal grandparents have notice of today’s hearing but, on 12 May 2010, advised through their lawyer, Ms Gibson, that Ms Gibson will not appear.
The Court heard submissions from counsel for the mother and the ICL. I was satisfied that the injunctions sought were appropriate for the welfare of the children, J, H and E. I pronounced orders to that effect and said that I would deliver my reasons subsequently. These are those reasons.
Summary of relevant history
The history of proceedings and relevant facts have been rehearsed in several other judgments including when the first injunctions were imposed on
12 March 2009, the reasons for which are published at [2009] FamCA 164, the decision on consequential orders arising out of the father’s contraventions of orders published at [2010] FamCA 388 and, most recently, the reasons for striking out the father’s application to remove the ICL published at
[2010] FamCA 290. These reasons should be read in conjunction with those earlier reasons.
By way of broad overview, this is a dysfunctional and high conflict family.
In 2008 the father sought, unilaterally, to alter a parenting regime which had been in place since 2004 whereby he spent alternate weekends and mid-week time with the children to a week-about arrangement. He failed to do so. In a Child and Parent Issues Assessment dated November 2008 prepared by Ms N, family consultant, the father’s behaviour to the children and, in particular, the pressure he was putting on them to live with him on a week-about arrangement was described as “abusive”. At page 6 of that assessment Ms N noted:
Whether [the father] consciously intends to or not, his behaviour involving the children must be described as emotional abuse. It is recommended that [the father] seeks professional assistance in reviewing how his behaviour is experienced by the children.
At page 8, Ms N opines:
[The father] acknowledged having psychological problems with his mental health. It is recommended that he seeks further treatment and support, so that he becomes more aware of the impact of his emotional expression and his behaviour on the welfare of the children.
On 12 March 2009, the father abandoned his application before the Court and withdrew from all Court proceedings. It was stated that he would not submit to any psychiatric assessment although no such assessment had been ordered. Orders were made placing the children solely in the care of the mother and injunctions put in place for the personal protection of the mother and the girls. A power of arrest attached to the injunctions.
Thereafter, the father’s position appears to have been that, “whilst I am not seeing my family I am now directing much energy into making sure that some justice is done in that regard, which will then result in my children”. The father and Ms B have made and pursued complaints against the mother, the mother’s solicitor (Ms Emily Turner) and counsel for the mother (Mr Lewis), previous counsel for the mother (now Maguire FM) and the ICL (Mr Walker). The father and Ms B allege fraudulent obtaining of funds by way of legal assistance for the mother. Ms B has assisted in this endeavour by writing to the Commonwealth Attorney-General.[2] The reference by the father to ultimately being able to see the children is likely to refer to Ms B’s evidence of having been informed by Tasmania Police that, if convicted, all of those against whom they made complaints will face lengthy periods of incarceration.[3]
[2] Exhibit “C3”
[3] Affidavit of Ms B sworn 15 April 2010 which is annexure “F” to father’s affidavit sworn 16 April 2010.
In April 2009 the paternal grandparents made an application to spend some time with the children, which they obtained. The paternal grandparents are pursuing their application to spend time with H and E during which the girls will get to spend time with the father, Ms B, C and J. That hearing will commence tomorrow, 25 May 2010.
On 15 December 2009 I made an injunction against Ms B and both paternal grandparents from attending at or in the vicinity of the girls’ school. The injunction was made on the oral application of the ICL. The grandparents were present. The application was exparte Ms B. I reserved liberty to apply to her and each other person affected by the injunction to vary or to set aside the injunction and otherwise put the hearing of the oral application over to 15 March 2009. No application was made to vary or set aside the injunction.
J sees his mother ostensibly whenever it suits him to do so, but he is rude to and disregarding of her and, the mother’s evidence today was that, he hardly speaks to her.
Over the last few months the father has initiated several applications which have necessitated hearings. These date from and include the final hearing of the mother’s contravention application in the week of 15 March 2010. He has at times conducted himself sensibly but, equally, he has behaved poorly. He is prone to outbursts. He has insulted the Court and the legal representatives. He has been violent in Court so as to necessitate all hearings after 18 May 2010 being conducted in the Hobart Registry, as opposed to the Launceston Registry, of the Court. My decision in that regard has been published at [2010] FamCA 388.
Neither the father nor Ms B seek any orders whereby they, or their child (C) and/or J, spend time or communicate with the girls.
Evidence and standard of proof
The mother relies on:-
a)her affidavit sworn on 15 January 2010 and her oral evidence given today; and
b)the evidence of Dr S in his single expert witness report of 29 September 2004, under cross-examination on 12 November 2004[4] and under cross-examination on 16 March 2010[5] and the affidavit of Emily Turner (her solicitor) sworn 9 March 2010.
[4] Exhibit “C4”
[5] Exhibit “C5”
The ICL relies upon:-
c)the evidence of Dr S (as described above);
d)the affidavits of the ICL sworn on 22 April and 1 May 2009 and 18 May 2010, and
e)the affidavit of BW (process server) sworn 18 January 2010 in relation to service of the contravention application on the father.
The ICL prepared an aide memoire for hearing on 12 May 2010[6] to which I have regard.
Additionally, there were several exhibits.
On Friday, an affidavit sworn by Ms B on 21 May 2010 was filed electronically. It is expressed by Ms B to be filed “in support of my opposition to an interim injunction being placed upon me preventing me from coming into contact with [the twins]”. The injunction sought was made on an interim basis on 17 March 2010 and Ms B did not appeal that order. As indicated, she did not seek to set aside the injunction made on 15 December 2009. I take the affidavit as being directed to my final disposition today.
There was no objection taken by the mother or the ICL to the admission into evidence of Ms B’s affidavit but issue was taken as to the weight that could be placed upon it without the maker otherwise participating in the proceedings. It was marked as an exhibit[7]. I read Ms B’s affidavit thoroughly before I commenced the hearing. It is largely argumentative and matters of opinion. It is expressed to be filed in opposition to the imposition of injunctions but traverses topics well outside and extraneous to that issue. It is of little probative value.
[7] Exhibit “C2”
These are proceedings to which div.12A of Pt.VII of the Family Law Act 1975 (Cth) (“Act”) apply.
The standard of proof is on a balance of probabilities.
Statements of fact are findings of fact.
Parenting Orders: J
At the conclusion of the contravention proceedings on 17 March 2010 the mother made an oral application to discharge parenting orders in relation to J pursuant to which she has sole parental responsibility and J was to reside with her. The application was supported by the ICL. It was not opposed by the father.
In deciding whether to make (or to discharge) a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration[8]. The Court considers and makes an assessment of the benefit to J of having a meaningful relationship with both of his parents[9] and of the need to protect him from physical or psychological harm from being subjected to, or exposed to, abuse[10].
[8] Family Law Act 1975 (Cth) s.60CA
[9] Ibid, s.60CC(2)(a)
[10] Ibid, s.60CC(2)(b)
It is common ground that the orders are out of date and that the mother does not seek to enforce them. In those circumstances, I am satisfied that the orders should be discharged.
The mother and the ICL both contend that J has become a pawn of the father which means that he advocates the father’s position to the girls and to the mother and that he is undermining of the girls’ relationship with the mother. They contend that J’s behaviour, as sanctioned by the father, has disastrous consequences for his own welfare but, given his age, any attempt to force him back into the mother’s home is, at best, bound to fail, and at worst, may result in collateral harm to J including physical harm through misadventure. They contend that the corrosive influence which the father and J have on the girls’ relationship with the mother is something from which the girls must be insulated. I understand that the case of the mother (supported by the ICL) is that she is the only responsible parent the girls have and her position in that regard must be reinforced for their ongoing welfare. That is the part of the context in which the mother and ICL seek to maintain the injunctions.
No party seeks that I make an order to reflect the fact that J lives with the father. If any party did, that would require an assessment of J’s best interests via the primary considerations and other considerations including the willingness and ability of the father to facilitate and encourage a close and continuing relationship between J and the mother[11], the parents’ capacity to provide for J’s emotional needs[12] and the attitude of the father to J and to the responsibilities of parenthood variously demonstrated including by payment of child support[13]. Because no order is sought in relation to J, no such assessment has been undertaken here.
[11] Ibid, s.60CC(3)(c)
[12] Ibid, s.60CC(3)(f)(i)
[13] Ibid, s.60CC(3)(i)
The effect of discharging the parenting order is that the mother and father each have parental responsibility for J[14]. Parental responsibility means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children[15]. It includes the responsibility to make major long-term decisions in relation to J which include decisions of a long-term nature about his care, welfare and development including (but not limited to) issues of that nature about:
a) the child’s education (both current and future); and
b) the child’s religious and cultural upbringing; and
c) the child’s health; and
d) the child’s name; and
e) changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent. [16]
[14] Ibid, s.61C(1)
[15] Ibid, s.61B
[16] Ibid, s.4
The fact that the father now has any parental responsibility for J arises by default. The father’s parental responsibility for J is no greater than the mother’s parental responsibility for J.
Injunctions
I made orders on 12 March 2009 whereby, inter alia, the father is restrained from contacting or communicating with H and E and from attending at or within 200 metres of their school or that mother’s home. I made orders on 15 December 2009 which, inter alia, restrained Ms B from attending at or in the vicinity of the girls’ school. The mother and ICL submit some of the orders do not go far enough to regulate or enforce the father not having unsupervised time with the children. They say that the father and Ms B regard the previous injunctions as permitting of their attendance at the girls’ school functions (not held on school grounds), sporting events, and basketball events for the purpose of them seeing and communicating with the children.
Neither the father nor Ms B have or seek orders entitling them to spend time or communicate with H and E. The mother contends, however, that unless restrained from doing so, each will use any school or semi-public event at which the girls participate or attend as an opportunity to see the girls with or without J or C.
Part VII Div.9 of the Act deals with proceedings for injunctions in relation to children. In proceedings in relation to children, the Court may grant such orders or injunctions as it considers appropriate for the welfare of the child including an injunction for the personal protection of child[17] or an injunction for the personal protection of a parent or carer of the child[18] or an injunction restraining a person from entering or remaining in place of residence or education of the child or a place that contains a place of residence or education of a child[19].
[17] Ibid, s.68B(1)(a)
[18] Ibid, s.68B(1)(b)
[19] Ibid, s.68B(1)(c)
On 28 April 2009 Ms B sent an email to the ICL[20] in which, inter alia, stated
The children have asked if [the father], [C] and I can at lesat come and watch their basketball games each week. [The father] is restrained from attending the children’s schools and [the mother’s] house and contacting the children (orders 4, and 7.) On my interpretation of the Orders they do not prevent [the father] from attending a game outside the children’s school and simply watching them play. Please correct me if I am wrong.
[20] Affidavit of David Frederick Walker sworn 1 May 2010, Annexure “D”
The ICL responded to Ms B by letter dated 29 April 2009[21] by saying that, in his view, the father’s attendance at basketballs games would be a breach of the relevant order, that taking C to the basketball venue “could also be upsetting” and that :-
My view as ICL is that any “contact” with [the father] or his family (ie the people the children asscoaite with their father as family includes you and [C]) has to be under the auspices of a regime approved by the Court.
[21] Ibid, Annexure “E”
At the hearing of the contravention proceedings on 15 and 17 March 2010, the father’s case was that, by attending basketball games, he did not breach the order prohibiting him contacting the girls because they approached him and spoke to him first.
Ms B’s affidavit sworn 21 May 2010 appears to be directed to establishing that it is in the best interests of the girls that they see the father, herself and C and, therefore, she resists the injunctions. It is fair to infer that, unless restrained, she will continue to use functions as an opportunity to see the girls.
I am satisfied that, unless restrained, the father and Ms B will attend school functions held off campus and sports activities events such as basketball to see the girls.
The mother and the ICL contend that the attendance of the father and Ms B at school events held off campus and sporting activities of the girls is disruptive to the girls and undermining of the mother’s relationship with the girls. It is not contended that the girls don’t enjoy seeing the father, Ms B or C and J. It is the fact that they enjoy seeing them that is distracting and undermining of the mother in the manner alleged.
It is said by the mother that the conduct of the father and Ms B has conditioned the girls to expect to have some direct or indirect contact with them at basketball. Counsel referred to two cards delivered by the girls to J at a basketball game on 19 May 2010[22]. He submitted that the cards were clearly prepared in advance. I am satisfied that the cards contained messages, the purpose of which, whether consciously or unconsciously, was to appease or gladden the father and Ms B and, more likely than not, to provide then with evidence to use in this proceeding. I accept that, when at basketball, the girls should occupy themselves with basketball and peer interaction rather than to pursue time with the father and Ms B and C.
[22] Affidavit of Ms B sworn 21 May 2010, Annexures “D” and “E”
At paragraph 56 of Ms B’s affidavit she describes how pleased the girls were to see herself and C at their school in the middle of the school day. She deposes that, in December last year, she and C attended the school without prior arrangement with the mother or the school, without “checking in at the school office”, and “when the children were all outside watching a student staff softball game.” This was the incident that gave rise to the ICL’s oral application for injunctive relief on 15 December 2010. Ms B deposes to having observed H to become upset when C had to leave. I accept that it is irrelevant that the girls may have enjoyed the visits from their young sister, C. It was a wholly inappropriate visit for Ms B to undertake. This passage from Ms B’s affidavit demonstrates a remarkable lack of insight on her as to the effect of the visit on the girls. I accept the contention of the mother and the ICL that, having regard to the welfare of the girls, the girls’ school day should not be disrupted by a visit from relatives. Particularly relatives who do not have, nor seek, an entitlement to spend time with the girls on any formal basis.
Ms B also describes her family visit to the girls’ school concert, at a public hall, in December of last year. She deposes:-
[57] We then went to the school Christmas concert. We were lucky to be able to sit behind the twins. [C] spent much of the time with her arms around her sisters, and later clapping and cheering them. Much to the audiences delight, [C] went up onto a lower stage to dance to the music in front of everyone. The girls laughed and laughed and when we left many parents stopped [the father] and I to advise that [C] was the highlight of the show. The twins were proud. At the conclusion of the event their mother marched them arm in arm away to their car without them having the opportunity to say goodbye. [The father] had Christmas presents for the girls in the car which were later delivered by [J] to the girls.
Counsel for the mother submitted that the attendance of the father and Ms B and C at the concert was undermining of the mother’s relationship with the girls. That it was inappropriate that they attend at all and insensitive to the mother that they would sit behind the girls. I accept that submission. The mother parents the girls, sees that they are nourished and educated. She is entitled to expect that she will be able to attend their school concert in peace, without disturbance by the father and those who support him given that she has sole parental responsibility for the girls and he is restrained, inter alia, from contacting them. I accept that the girls should be able to benefit directly and indirectly from their mother’s happiness and well-being and her ability to attend their concert without interference from the father. It would be different if the father or Ms B were constructive or beneficial influences on their lives, or even sought to be, but they do not. It would be different if the school concert was the culmination of a school year in which the father had been a regular contributor to the girls’ life in terms of spending time and co-operative parenting, but that is not the case. The mother was called to give evidence and did not deny that she took the girls from the concert abruptly. I am satisfied that her reaction, whilst regrettable, was understandable and reasonable. However, having been placed in that position by the father and Ms B, her reaction was likely construed by H and E as unreasonable and angry. The reasonable expectation is that they would have regretted not being able to say goodbye. If that was not the case then, then it would have been so by the time J delivered the gifts from the father’s car and they could not personally thank the father, Ms B or C. Paragraphs 19 to 21 inclusive of the mother’s affidavit in support of her contravention application[23] confirm that this is what occurred and that the girls were upset. I am satisfied that the incident was potentially divisive of the mother’s relationship with the girls. I accept the joint position of the mother and the ICL that it is contrary to the girls’ best interests for their relationship with the mother to be undermined in this or in any other way.
[23] Affidavit of the mother sworn 15 January 2010
On Tuesday 2 March 2010 I refused an oral application by the paternal grandparents to spend time with the girls on the occasion of C’s third birthday. The application was sought to be brought without notice at a mention and adjourned to 2 March to permit the mother time to respond. The father and his counsel Mr Dixon SC were in Court when the application was originally made and heard that it was adjourned. My reasons for dismissing the application were delivered extempore on 2 March 2010 and subsequently published at [2010] FamCA 344. The final three paragraphs of my reasons are as follows:-
In all the circumstances, I am satisfied that this is a matter of some complexity. The hearing date of 15 March 2010 has been set for some considerable time. [C’s] birthday does not come as a surprise.
For the reasons that I have mentioned, the oral application of the grandparents will be dismissed. There will be no order for the twins to spend time with the paternal grandparents or, through them, the paternal side of the family between now and the final hearing. The crux of my decision today is that it would be premature to order one instance of time before the court has had an opportunity to fully examine and test all of the relevant evidence about the feasibility and benefit to the twins of there being orders into the future.
My decision may well disappoint the twins. As I mentioned to the parties on the last occasion, this outcome provides them with an opportunity to demonstrate how constructively they can deal with obstacles and lessen any disappointment of the twins with an outcome which, to that particular party, is an adverse outcome.
The mother gave evidence (which I accept) that on the following day, Wednesday 3 March 2010, the father and Ms B attended the girls’ basketball activity and gave the girls an invitation to C’s birthday the following weekend. The invitation was tendered[24]. It is addressed to E and H and says “I’m having a party, please come!” and details of the party follow with replies to be made to “[Ms B] or [J]”. The mother identified the writing as not that of J or the father. She identified the telephone number for a reply as the mobile service of Ms B. If this was the standard invitation to all C’s guests, it strikes me as odd that replies would be requested to the child’s mother or adolescent brother rather than her mother or father. More likely than not, the invitation was written and delivered by the father and Ms B in the knowledge that the girls would not and could not attend. In these circumstances, it would serve to engender in the girls a negative view the mother. If that is so, it was a calculated and nasty thing to do to the girls who were left with a feeling of disappointment at missing C’s birthday. If it was not so, then basketball is, nonetheless, an inappropriate place to deliver an invitation to a party for which the mother had stated some week or so previously she was opposed to the children attending. The injunctions sought by the mother and the ICL would remove the opportunity for the father or Ms B to communicate with the girls in this way and, for that reason, appear to me to be soundly based.
[24] Exhibit “M1”
The children’s school, or wherever school activities held outside school grounds, basketball training and competition and any other sport in which either or both girls may participate in the future are simply not appropriate forums for interaction between the mother and father, directly or indirectly. The girls’ participation in these activities should not be contaminated by the implications of the toxic and high conflict dynamic within this family and nor should the events be used as an opportunity for the girls’ relationship with their primary carer to be undermined. I accept the mother’s contentions in this regard.
The mother contends that the father enmeshes the children in the proceedings and uses the off campus school events or sporting activities as opportunities to do so. I was referred by the ICL to his evidence[25] about the statement of Ms WL, school teacher, to the effect that at approximately 2pm on 16 March 2010 the father attended the regional Junior Schools Sports Association Swimming Carnival in which E was competing and that she “noticed [the father] present at the carnival, sitting on the hill overlooking the pool and the child [E] chatting to him”. The ICL’s statement is hearsay. However, this is a proceeding to which s.69ZT applies so I can have regard to the ICL’s evidence of the school teacher, Ms WL, notwithstanding that she was not called to give evidence before me. The issue is how much weight I accord the evidence. The ICL informed me, and I accept, that he had served Ms WL with a subpoena to attend Court and had tried, unsuccessfully, to contact her by telephone with a view to her giving evidence electronically. I further note that the fact of the father attending the swimming competition was first raised, to my knowledge, by the ICL in his aide memoire tendered and relied upon on 12 May 2010 and then on 18 May 2010. The father’s attention was drawn to the document on both occasions and he did not contradict the relevant entry. The father did not appear on 19 May 2010 or today but has had notice of both days and, I am satisfied, more than an adequate opportunity to seek to challenge the allegation. In the circumstances, I accept the evidence of the ICL as to the events of 16 March 2010.
[25] Affidavit of David Frederick Walker sworn 18 May 2010, paragraph [11]
16 March 2010 was the second hearing day in the week that the mother’s contravention application was heard in Hobart. The father was represented by Mr Dixon SC. The father had left Court without notice on 15 March 2010 which necessitated the issue of penalties for 11 counts of non-compliance being adjourned to 9.00 a.m. the following day. At 9.00 a.m. on 16 March 2010 senior counsel for the father said that the father was again not at Court and that he was instructed that the father “had a bad night” and was requiring treatment for injuries (not previously mentioned) that he had sustained three days previously when driving in Adelaide where his car collided head on into a brick wall per hour and was written off. A warrant issued for the father’s arrest which was stayed until 10.00 a.m. the following day and he was ordered to provide medical evidence of his incapacity to attend Court. He attended Court but failed to provide medical evidence. The father’s absence from Court prolonged the hearing of the contravention application and, necessarily, the mother’s legal costs. The father should have been at Court rather than at the school swimming carnival. It is not difficult to imagine the mother’s disappointment and anger upon learning from E that the father had been at her school swimming competition when she, herself, had been precluded from watching the child compete because she was in Court, with privately funded representation, prosecuting the contravention application and responding to the paternal grandparents’ application for time with the children. It is another divisive act the likely consequence of which will be to anger the mother. The deleterious impact on the children’s welfare of this conduct is that they are likely to assume that the mother’s feelings of frustration and anger are directed at them, rather than the father, or that the mother is unreasonable, when she is not.
Today the mother gave evidence that the father brought J to Court this morning and placed J where she could observe him from her seat in Court. Hobart is a 200 km drive from Launceston. The mother’s evidence was that she does not know of any reason why the father brought the child to the door of the Court other than to upset her and to demonstrate to J that the mother was, yet again, in Court. J’s appearance at the door of the Court follows a series of telephone calls and demands by J to the ICL to withdraw as ICL because he (Mr Walker) is not doing what J wants him to do. These demands include a statement by J that the father has shown correspondence in the proceedings[26] and advises him of what happens in Court. The ICL informed the Court that he did not see J this morning and no request was made by or on behalf of J to speak with the ICL today from which I infer that the father did not bring J to the door of the Court to speak to the ICL.
[26] Ibid, paragraph [4]
I accept the contention of the ICL and the mother that the father permits or causes J to be enmeshed in the proceedings and that this gives the mother legitimate cause for concern about what the father will do or say to the girls if given the opportunity to see them in an uncontrolled or contained environment such as at school or sporting events.
I was taken to the transcript of evidence by Dr S, psychiatrist, on 16 March 2010, where he referred to the pressure placed on the children by the father in the following terms[27]:-
I think that his man is emotionally abusive, that he requires people to love him, adore him, to be with him. I don’t think a child can withstand those sorts of pressures.
[27] Transcript in Confidence 16 March 2010 page 22, line 13
The kind of pressure about which Dr S gave evidence was not qualified by reference to length of opportunity. I am satisfied that school functions and sports activities will provide the father with adequate opportunity to act destructively toward the girls albeit in an ostensibly very pleasant way such as with gifts or by bringing C to see them.
The ICL provided details of the father’s criminal history. It appears that the mother has good reason to be concerned about the father’s behaviour. The father has a criminal history of violence which, albeit old or very old, involves assault on a police officer (May 1992)[28], resisting a police officer (September 2001)[29] and assault against the mother for which he served a period of incarceration (September 2002)[30]. This is not all of the father’s criminal history but is a part of it, which I accept, demonstrates a lack of regard for authority and an inability to control himself in the face of authority. That behaviour, coupled with the father’s outbursts in court before me, for which he has shown absolutely no remorse, well illustrates the mother’s point that the father lacks self control.
[28] ICL’s Aide Memoire Exhibit “ICL1”
[29] Ibid
[30] Ibid
Previously, the father has engaged in self destructive and dangerous behaviour. The aide memoire prepared by the ICL for the hearing on 12 May 2010 and referred to on 18 May 2010 and relied upon again today[31]lists the father’s bizarre behaviour which has directly or indirectly involved the children including his use of firearms. Incidents include:-
a)February 2004 wounding himself with a shotgun (he says shooting himself in the guts);
b)April 2004 taking tablets after a hearing and collapsing in the foyer of this Registry of the Court, Hobart, requiring treatment at Royal Hobart Hospital;
c)August 2004 kicking one of the girls (then 5 years old) and subsequently crying in his doctor’s surgery being consoled by his daughters;
d)May 2006 causing Ms B, then his solicitor, to call police to have him removed from her business premises;
e)Unknown climbing on the roof of his home, in the presence of the children, and telling Tasmania Police that he would jump if they did not leave which lead the girls to believe that “he would have died”;
[31] Ibid
The ICL deposes to the accuracy of the aide memoire[32] and sources its contents. These are events which the father has not taken an opportunity to explain and, absent any explanation, I accept that they are matters about which the mother can be legitimately concerned.
[32] Op cit n.26, paragraph [9]
I accept that the mother is fearful of the father and that she is genuinely fearful of the girls spending time with the father on an unsupervised or opportunistic basis.
The mother also contends that Ms B is a wholly inappropriate and ineffectual moderator of the father’s actions and that the Court cannot draw any comfort from the fact that her presence would ameliorate the father’s behaviour or the effect of that behaviour on the girls. The affidavit of Ms B sworn 21 May 2010 is supportive of that proposition, in particular paragraphs 22 to 30 inclusive.
Bs B’s behaviour as a lawyer in this proceeding has been questionable. I commented on this behaviour in my reasons for striking out the father’s application to remove the ICL[33]. Ms B’s blurring of professional boundaries in dealing with the Court has, more likely than not, caused or permitted the father and J to fail to appreciate what acceptable behaviour is, vis-à-vis the Court and professional like the ICL. She does them no favours in that regard. However, in assessing whether the injunctions sought are appropriate for the welfare of the child I must have regard to the father’s actual conduct and the mother’s apprehensions rather than to hypothesise on why the father acts in the way that he does.
[33] [2010] FamCA 388 at paragraphs [38] to [43]
Still apropos of Ms B, I was referred to two email communications from J to the ICL sent from his at B’s office[34]. The address is [email protected]. The ICL suggested that the address was an acronym for (the children’s initials) J E H C. That appears to be a reasonable inference to draw particularly as the email dated 29 April 2010 is headed “we request a new lawyer”. Both emails request that Mr Walker withdraw as ICL. Both emails refer to information provided to J by the father about how Mr Walker has conducted himself in the proceedings. The Court must, and does, question seriously the judgment of a lawyer, like Ms B, who permits her office to be used by a child having regard to all of the consequences that empowering J in this way entails, not the least of which is that he ceases to have the role of a child and becomes an advocate for himself and his siblings and oppositional to the ICL. I note that the father has failed to pursue his own application for the removal of the ICL which was struck out on 19 May 2010. It is very poor form for Ms B to permit J access to her professional premises so that he can act as advocate for his sisters. The mother and the ICL are critical of Ms B’s lack of insight or appreciation of the harm to J of assuming responsibility as an advocate for the father and for his sisters, H and E. It is sound criticism.
[34] Op cit n.26, Annexures “A” and “B”
It is appropriate that I discuss a recent communication by Ms B to a Registrar of the Court[35]. By Order made on 19 May 2010, I directed that a Registrar send a copy of those Orders to various persons including Ms B. The transmission was duly sent on the morning of 20 May 2010 under cover of a message which read “Attached is my letter and a copy of order made in the Family Court of Australia in Melbourne on 19th May 2010 by the Honourable Justice Bennett which are self explanatory.” Approximately one hour later, a reply was received from Ms B at her professional email address which read:-
Unfortunately no surprises there ….
[35] Exhibit “C6”
Ms B’s response was unnecessary and impertinent. I regard her lapse in professional judgment, in a discipline in which she has been educated and trained, as indicative of a lack of judgment in general.
Finally, I note the evidence of Dr S given March 2010[36] which was:-
- I think this is a man - to use a phrase that became a little bit notorious not so long ago, “If you’re not with me, you’re against me” - applies in a situation such as [the father]. If you go along with his view of the world, then it will be harmonious, but if you raise objections to his view of the world, then there could be problems.
[…] In many circumstances, a judge would assume that two reasonable grandparents, and the parents of [the father] and his partner, or de facto wife, would be able to curtail his behaviour, and influence him somewhat, to act reasonably. Are you able to express an opinion on the likely ability of people to do that to someone who has the personality traits, or features that you have said [the father] possesses?‑‑‑No, I think there would be difficulties for them to do that. It is the line of least resistance to go along with him; it may be frightening to do otherwise. The incident involving the process server; well, Ms [B] tried to handle the situation reasonably, but he did not. She was not a restraining influence on his behaviour on that occasion. I think there’s a real fear that the family members, including his parents, have to fall in line behind him, because to do otherwise would be very uncomfortable for them, because he is not a person who, I believe, is amenable to reason, and to understanding other - the point of the view of others.
[36] Op cit n.27, page 12
The incident concerning the process server is referred to in the affidavit of BW (process server) sworn 23 December 2009. Mr BW deposes to having attended at Ms B’s office on 22 December 2009 to serve the father with the Court documents by pre-arrangement. Ms B met him in the hallway at 11.25 a.m., ascertained what documents were to be served on the father and asked Mr BW to wait, which he did. Mr BW deposes that:-
I waited until 11:50 am at which time [Ms B] emerged from her office and indicated that [the father] had been on the telephone and that she would remind him that I was there.
At 12noon, [Ms B] beckoned me into her office and stated the following; ‘[the father’s] not in a very good mood. He’s in his office so it might be best if you just go in, give him the documents and leave’.
I followed [Ms B] to an office adjacent to the waiting room and observed [the father] to be seated at a desk and writing a cheque in a cheque book. His head was bowed and he did not look up or acknowledge my entry. I stood and waited for an acknowledgment so that I could properly identify [the father] but still no acknowledgment was forthcoming.
I then heard [Ms B] say to [the father] the word ‘[father’s name]’ to which I heard [the father] inaudibly make comment about the need for me to quote ‘fuck off.’
Because I had not heard the first part of his comment, I simply said ‘I beg your pardon’ to which [the father] became enraged, jumped up from his desk and grabbed me and attempted to eject me from the office.
At the same time, he was shouting ‘I said do what you’ve got to do and fuck off you fat cunt. Fuck off. Get out of my fucking office. Fuck off you fat cunt’.
At the same time, [Ms B] was shouting ‘[…], stop it. […], stop it’ and attempting to physically restrain him.
I had placed the document on the desk well within arm’s reach of [the father] prior to his eruption and I deemed it appropriate that I should then leave the office.
The assault upon me by [the father] was unwarranted and without provocation.
Service of the document was duly effected at 12noon.
At approximately 12.05pm, [Ms B] made contact with my office and thereafter with me on my mobile telephone at which time she conveyed her apologies for what had happened.
I accept Mr BW’s evidence as an accurate account of what occurred. In the world of litigation, the role of a process server is a hapless one. They are only messengers. For the father to have attacked Mr BW in the circumstances in which he did is cause for considerable concern as to how the father and Ms B comport themselves.
I accept the submission of the mother and the ICL that Ms B is powerless to restrain the father’s behaviours in anyway and ought herself to be restrained in the same terms in relation to her attendance at any events or activities concerning the children otherwise than is contemplated by subsequent order of the court.
Conclusion
For the aforementioned reasons, I am satisfied that the injunctions sought are appropriate for the welfare of J, H and E and that the terms of the injunctions are just and convenient.
I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Associate:
Date: 28 May 2010
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