Hulls & Hulls

[2021] FCCA 1326

FEDERAL CIRCUIT COURT OF AUSTRALIA

Hulls & Hulls [2021] FCCA 1326

File number(s):	DUC 173 of 2014
Judgment of:	JUDGE OBRADOVIC
Date of judgment:	19 March 2021
Catchwords:	FAMILY LAW – Parenting – application to vary final parenting orders – best interests of the child – where mother has sole parental responsibility – where child lives with father – significant conflict between parents – mother has spent limited time with child –father undermining the mother’s relationship with the child.
Cases cited:	Hulls & Hulls [2015] FamCA 1074
Number of paragraphs:	43
Date of hearing:	19 March 2021
Place:	Dubbo
Appearing for the Applicant:	Ms Hazelton
Solicitors for the Applicant:	North & Badgery Solicitors & Barristers
Appearing for the Respondent:	In person

ORDERS

DUC 173 of 2014

BETWEEN:

MR HULLS

Applicant

AND:

MS HULLS

Respondent

ORDER MADE BY:	JUDGE OBRADOVIC
DATE OF ORDER:	19 MARCH 2021

THE COURT ORDERS THAT:

1.Orders 3, 4, 5 and 6 of the orders made by the Family Court of Australia on 3 December 2015 are discharged.

2.The child C, born in 2005 (“the child”) shall live with the Father.

3.The child shall spend time with the Mother in accordance with his wishes.

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

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

REASONS FOR JUDGMENT
(Ex Tempore; Revised from Transcript)

JUDGE OBRADOVIC:

1. Final orders were made after a contested hearing in December 2015 in relation to the parties’ two children, B who was born in 2001 and C who was born in 2005.  At the time of those final parenting orders B was 14 and C was 10 years old.  The orders provided for both of the children to live with the mother and to spend time with the father in accordance with the orders, in short, alternate weekends and half the school holidays plus other special occasions.

2. Notwithstanding the fact that those orders provided for the children to live with the mother, in late 2017 – the parties are in dispute about whether it was in August or November 2017 – and following an incident in the mother’s home, C went to the father’s house where he has remained living since that time. Since late 2017 C has had a very limited relationship with his mother so much so that he has only seen her on a few occasions, probably numbering well under 10.  The father says that it was four, the mother says that it was more than four.

3. The Court is not able to make a determination as to how many times exactly C spent time with the mother since he came to live with the father in late 2017.  In any event, it has been far too limited a time, such that C’s relationship with his mother has been detrimentally affected. 

4. Relevantly, the December 2015 orders that were made by His Honour Justice Foster in the Family Court were explained by some quite lengthy reasons for judgment (Hulls & Hulls [2015] FamCA 1074). Relevantly for the purposes of today’s application, at paragraph 20, His Honour held as follows:

   In October 2008 there was a significant incident between the mother and father that led to an Apprehended Domestic Violence Order being taken out against the father and he being charged with assault and intimidation to which he pleaded guilty.

5. The reason that that is important is because today, when the father gave evidence, he said that the mother had made all of these things up and he still denied the allegations of violence notwithstanding the fact that it appears, from His Honours reasons, that the father pleaded guilty to criminal charges including an assault. 

6. His Honour goes on to say:

   The father, in his mind suspicious as to the mother’s infidelity, confronted and argued with her while holding a shotgun he had retrieved from the garage and later left two .22 calibre bullets on her pillow with the note to the effect that “one will be for you and one for the next person I catch you with”. He was excluded from the home but was able to return some time later when the parties reconciled their relationship.

7. The Court understands that this incident, or rather the charges and the apprehended domestic violence order, had an effect on the father’s then gun licence. 

8. At paragraphs 28 and 29 His Honour found as follows: 

   Regrettably the parties find it very difficult to communicate and are able to do so effectively it appears only through text messages with the mother complaining that often the father does not respond in a timely fashion and on occasions at all.

9. The reason that that is important is that this seems to be a continuing frustration for the mother, as is evident from today’s evidence. 

10. His Honour then went on to say that the father described his relationship with the mother to the family consultant as, “So poor that the best thing is that we do not see each other.” His Honour found, at paragraph 29, that the father’s communication with the mother by text message is mostly abrupt and argumentative. 

11. At paragraph 31 His Honour found that:

    The father’s conduct towards the mother post separation has been intimidating.  The father, in March 2013, attended the property whilst drunk and later that same month attended at the property unannounced at 5.30 am and was abusive towards the mother.  He has told the mother to, “Get your fat arse out of my property” when she attended for good purpose at the rural property.  He has given the mother’s companion the bird, agreeing that it was inappropriate behaviour although initially denying the same to the family reporter. 

12. At paragraph 32 His Honour went on to say:

    On occasions after separation he has attended at the property in the absence of the mother and removed items of personalty and personal effects of the mother including her wedding ring, engagement ring and eternity ring. In October 2014, nearly two years after separation, whilst the mother was absent overseas on holiday the father in company with his brother-in-law attended at the home, notwithstanding the mother had arranged for a house-sitter to occupy the property. The father, whilst in the company of the youngest child, cut padlocks on the side gate and the shed at the home and removed items of personalty and effects without the mother’s consent.

13. At paragraph 34 His Honour went on to find as follows:

    The father’s oral evidence was given in a flat and emotionless style in which it was difficult to find any self-reflection on the nature of his actions and conduct on the mother, the children and particularly the children’s relationship with the mother. The father in many instances provided answers that were ingenuous and self-serving with little insight in to the significance of the matters put to him. The mother was responsive to questions put to her which she answered clearly without equivocation. Overall where there is a conflict between the evidence of the mother and father, the evidence of the mother was preferred.

14. At paragraphs 39 through to 41 His Honour found as follows – being mindful that these were findings made in December 2015, which appear to have carried on into March 2021:

    A perusal of the student records in relation to the child C, at D School, post separation reveals also significant behavioural issues in relation to violence, rudeness, disobedience, and lack of respect for authority.  The father asserts that he spoke to the psychologist who told him there was no need for counselling.  That assertion is simply false in light of the psychologist’s complaint that the father refused to bring the children when they were in his care, and her concerned notification to the department in her attempt to obtain supplementary support.  The father demonstrated little insight into the needs of his children by involving them in his decision.  He rejected the assertion that it was derelict of him to leave it up to the children. 

15. Even when C was 10 years old the father placed the onus on him, of determining certain issues, including – very importantly, whether or not he was going to receive psychological assistance. 

16. His Honour went on to say, at paragraph 42: 

    Many aspects of the children’s abhorrent behaviour since separation are reflective of the concessions by the father as to his own behaviour post separation, and engagement by him of the children in the inter-parental conflict.  He has told the children, “If your mother hurts you, let me know.  And if you don’t like her discipline, let me know.”  Such comments can only undermine the mother’s parental authority and such is reflected in the children’s conduct, particularly the youngest child. The father acknowledging that C complains about the mother to him a lot. 

17. At paragraph 43: 

    There is a strong inference that the children’s behaviour particularly the younger child C is a learned behaviour from exposure to the father and his relationship attitude to the mother and the mother’s new partner. The father further acknowledges that he has spoken to the children about the current proceedings.

18. At paragraph 44 His Honour found that overall, the father demonstrated little, if any, reflective capacity to focus on the needs of his children over his own, and that the priority he placed on the conflict with the mother was to the detriment of the children.  It is, in one sense, extraordinary, that the father continues, through his evidence today, to behave in a manner which is very similar to the manner that he was behaving when his Honour made the findings in December 2015.

19. What his Honour recorded at paragraphs 39 to 44 is reflective of the father’s attitude today – not only towards the mother but also towards the value that he places on C’s relationship with the mother. 

20. At paragraph 55 His Honour went on to note as follows:

    Of significant concern to the family reporter was the allegation that the father undermines the mother’s parenting of the children. This circumstance is illustrated by an incident in January 2015 school holidays when after an incident between the two boys at the mother’s residence, the child C telephoned the father who then collected the child and instead of seeking to resolve the issue, took the child to the local police station and had the child speak to the police before returning the child to the mother the next day, it appears without protest. It is also reflected in the father’s actions in relation to an incident in March 2014 where the children manipulated a situation to avoid accompanying the mother and her companion to a funeral.   

21. At Paragraph 56:  

    In the view of the family reporter the father has effectively created expectation that C can avoid or escape the consequences of his actions in his mother’s household whenever it wants: a “get out of gaol free card”. This is clearly reflected in the B view of his younger brother’s antics with the mother and the incidents since separation.

22. The father’s attitude, as noted in Justice Foster’s reasons for judgment and as reported in the family report, which was available to the Court in 2015, appear to have continued.  His evidence today is that the mother kicked C out of her home when he came to live with him in 2017.  The father showed absolutely no insight into the reasons why the mother had taken the action that she had and that, in fact, she was reaching out to him for help,  with a child who clearly had behavioural issues – which the father to date appears to minimise, if accept at all.

23. The evidence in the mother’s case shows significant behavioural issues by C at school in 2018, 2019 and 2020.  There is evidence before the Court that, notwithstanding the fact that today being only the 19^th of March 2021 and school having resumed at the end of January 2021, there have already been a number of incidents with C at school, which the father was not able to recall with any clarity in the witness box, showing his lack of capacity to provide for C’s emotional needs. The Father’s evidence also shows his lack of capacity to parent C in a meaningful way which will ensure that C will grow into a young man who is responsible, caring and respectful not only of his parents but of authority at large. 

24. At paragraph 100 of his reasons for judgment Justice Foster went on to say:

    The father needs to be alert to the issues discussed in these reasons for judgment and hopefully be conscious of his future obligations as a parent to these children. Should his behaviour continue as has in the past then he will fall well short of being able to address the needs of his children, particularly their emotional needs. But on the other hand he offers to these children particularly the youngest an engagement with a rural lifestyle and perhaps a greater freedom in parenting style that the children enjoyed. His younger child has a great interest in the rural life and into the future may well work on the land. However that of course is contingent upon his continuing progress in education and appropriate psychological development into the future. The father needs to be conscious of these issues and not seek to undermine the mother or continue to pursue conflict. Should he do so he will fail miserably in his obligations to his children.         

25. It appears to the Court that the father has not heeded Justice Foster’s words and that he is well on his way to failing miserably in relation to his obligations in respect of C.  C continues to be a troubled child who displays behavioural issues, and the best that the father is able to say to the Court today is that he has spoken to him and told him that this type of behaviour is not acceptable. 

26. In relation to stealing from his mum, something that the father was aware of, the father is critical of the mother reporting the matter to the police, rather than working together with the mother in relation to reasons as to why C may have been acting out in this way and to ensure that it does not happen again.

27. At paragraph 101 of the reasons for judgment Justice Foster said:

    The children are at an impressionable age and, as it appears, from the post-separation history can be easily influenced either openly or insidiously such as to undermine their respect for, and their relationship with, their mother. The father needs to be conscious of this issue.

28. The Court is not satisfied that the father has demonstrated, to date, any responsibility or insight in relation to these matters that were raised throughout the proceedings in 2014 and 15 and, certainly, in his Honour’s judgment, which was published in December 2015. 

29. The father today moves the Court for orders that he have sole parental responsibility, that C live with him and that he spend time with the mother in accordance with C’s wishes.  Given C’s age and his demonstrated attitude about spending time with the mother, the Court has little alternative than to make an order that the child live with the father and that he spend time with the mother in accordance with his own wishes.

30. The mother has given evidence that since she moved from Town D to Town E at the end of last year that C has been more engaged with her and has been more willing to spend time with the mother. The Court can only hope that both parents will continue to encourage C to have a relationship with his mother, notwithstanding the orders the Court is about to make.  It is up to the father to explain to C that this was not the mother’s decision, but rather that this was the Court’s decision and that the mother is not to blame for any unhappiness that C might have a result of the Court’s decision today. If anything, it is both parents’ responsibility and their lack of capacity to work together, which has resulted in the orders which the Court makes today.

31. In relation to parental responsibility, the Court has significant concerns about the father’s capacity to meet the child’s long-term needs.  The Court finds that the father continues to be undermining of the mother, demonstrated not only through his evidence but also through the evidence in the mother’s case, for example, the text messages sent between C and the father in April 2018 where the father told C that he should “piss in his mum’s pocket” in order to get what he wants.  The father conceded today that that was not appropriate behaviour, and he said that he had spoken to C about that at the time. The Court does not accept his evidence about that.  That is, the Court does not accept that the father explained to C that his expression and his attitude towards the mother were inappropriate in April 2018 or at any time thereafter.

32. The father has not taken on board any of the matters in his Honour’s judgment. The father is the one who has been more than slack in ensuring that C receives appropriate orthodontic care since C has come to visit him. The mother, who has had the benefit of an order for sole parental responsibility, made arrangements for C to undergo some orthodontic treatment.  Those arrangements had been made in the middle of 2018. The father has refused to accommodate the medical treatment that C was to receive.  Indeed, his evidence is that he cannot afford to give up his time to ensure that C receives the treatment that he needs. 

33. What the father says in his affidavit is that he has made some other arrangements for orthodontic treatment and that, because of some perceived difficulties about delays in manufacturing products from China that the child is yet to receive the orthodontic treatment, which, he sorely needs.  Indeed, as we stand here on 19 March 2021, the child has still not received any orthodontic treatment.

34. C’s behavioural issues, have not been addressed in any appropriate way by the father, notwithstanding the fact that the child has been in his primary care since late 2017.  There is no evidence with the father engaging in any psychological assistance for C, engaging with the school to see how he could best support C or, indeed, engaging with the mother to see how C could best be supported.  What the father says is that he has contacted the principal, and that he speaks to the teachers and that he attends parent-teacher interviews.  There is also some evidence of the father being engaged in the school through his agricultural enterprise, but nothing of any meaning which might assist C in his behavioural issues which persist to this day.

35. The father has not put before the Court any evidence as one might expect from a responsible and mature parent that he has had conversations with C in relation to his behaviour at school, or the need for such behaviour to be significantly improved before the parents would consider whether C should have a gun licence. There is no evidence that he has, for example, said to C, “You need to show me and your mother that you can behave and follow rules.  That you can be responsible and respectful.” There is no evidence that the father has said to C, “Once you start behaving and show us you can be responsible, your mum and I will think about it.”  Or even, “I understand where your mother is coming from.  She has a point.”

36. What the father does, is that he supports C in his view that this is all so unfair to C.  Because the mother signed B’s application for a licence when B was 12 years old and because she refuses to sign C’s application for a licence, then this is Mum not being fair in her treatment of her two boys.  That is what the father is saying to C through his actions and through the conversations that he fails have with C in relation to this issue. 

37. The evidence in support of the current orders that the father seeks is outlined in paragraphs 37 through to 50 of the father’s affidavit in relation to the gun licence, paragraphs 51 to 53 in relation to medical treatment, and paragraphs 57 through to 73 in relation to the father’s stated reasons for a change in the orders, particularly in relation to an order for sole parental responsibility. 

1. The father says at paragraph 57:

   For these same reasons, the Court considered it inappropriate for us to have joint parental responsibility in 2015.  I would say that is it more appropriate that I have sole parental responsibility.  The communication between the respondent mother and I has not improved.

2. That evidence shines a strong light onto the father’s lack of understanding as to why the Court made the orders that it did in December 2015, and his lack of insight into his undermining behaviour of the children’s relationship with the mother.  If the Court was to accede to the application of the father that he have sole parental responsibility, this would show C that the mother’s views are not important and that she ought to have no say in relation to long-term decisions for C.  It will signal to C, as the father has already been signalling through his lack of support for any meaningful relationship despite his evidence that he encourages C to have a relationship with the mother, that the mother is simply not important. 

3. On that issue and the father’s evidence about his encouragement of C to have a relationship with his mum, the Court does not accept that the father saying to C, “You can spend time with your mum on the weekend if you like,” is any meaningful support, and that the father needs to do much more to ensure that C overcomes his difficulties in the relationship with the mother.  C needs to feel supported by the father in relation to that relationship being repaired the same way that the father says to C, “You need to finish school. It is important that you finish school”. He also needs to say to C, “It is important for you to have a relationship with your mother”. There is no evidence that the father does that.

4. If the father is to have the benefit of an order for sole parental responsibility, this will teach C that he can continue to behave poorly and he will still get what he wants. An order for sole parental responsibility in circumstances where C’s medical needs have not yet been met is unlikely to have his long-term needs met.

5. Overall, the Court finds that an order for the father to have sole parental responsibility is not in C’s best interest. The Court is not persuaded that an order for the parties to have joint parental responsibility is an order that would be in the child’s best interest, or is an order that is capable of working, given the significant conflict that continues between the parents and the significant undermining of C’s relationship with the mother.

6. For all of those reasons, orders as set out at the forefront of these Reasons for Judgment are made.

I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Obradovic.

Associate:

Dated:       24 June 2021