IMLAY & IMLAY

[2015] FamCA 456

FAMILY COURT OF AUSTRALIA

IMLAY & IMLAY [2015] FamCA 456

FAMILY LAW – CHILDREN – Best Interests – Where the children both enjoy meaningful relationships with the mother – Where the children’s expressed ambivalence about the father is a product of their desire to be removed from the centre of the intense parental conflict – Where the children’s relationships with the father remain important, significant and valuable to them – Where both parties adduced evidence that the other posed a risk of harm to the children – Where the children need no protection from any risk of physical harm posed by the mother – Where the evidence established the father does pose some risk of harm to the children, either through his subjection of them to abuse or family violence, but the risk is not unacceptably high – Where the parties ultimately agreed that the children should live with the mother – Children to spend regular time with the father

FAMILY LAW – CHILDREN – Parental Responsibility – Where the parties agreed that an allocation of equal shared parental responsibility would be inappropriate – Where the evidence rebutted the presumption – Mother to have sole parental responsibility

Family Law Act 1975 (Cth), ss 4, 60B, 60CA, 60CC, 61B, 61DA, 62B, 64B, 65AA, 65DA, 65DAA, 65DAC, 65DAE, 65D, 68B

Browne v Dunn (1893) 6 R 67
Kuhl v Zurich Financial Services (2011) 243 CLR 361
McCall & Clark (2009) 41 Fam LR 483

APPLICANT: Mr Imlay

RESPONDENT: Ms Imlay

FILE NUMBER: SYC 2699 of 2008

DATE DELIVERED: 17 June 2015

PLACE DELIVERED: Newcastle

PLACE HEARD: Newcastle

JUDGMENT OF: Austin J

HEARING DATE: 1, 2 & 3 June 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Not Applicable

SOLICITOR FOR THE APPLICANT: Not Applicable

COUNSEL FOR THE RESPONDENT: Mr Kelly

SOLICITOR FOR THE RESPONDENT: Craney Family Solicitors

Orders

1. All former orders relating to the children B, born … 2004, and C, born … 2007, (“the children”) are discharged.

2. The mother shall have sole parental responsibility for the children.

3. The children shall live with the mother.

4. Each of the parties shall take all reasonable steps to ensure that the children spend time with the father as follows, or as otherwise agreed:

   (a)During New South Wales public school terms, each alternate weekend from 9.00 am on Saturday until 5.00 pm on Sunday, commencing on the first Saturday of each term;

   (b)During New South Wales school holidays, except the Christmas school holidays, for the first four days of such holidays commencing at 5.00 pm on the last day of school term and concluding at 5.00 pm on the fourth day thereafter; and

   (c)Each year from 3.00 pm on Christmas Day until 5.00 pm on New Year’s Day.

5. For the purposes of implementing Orders 3 and 4 hereof, unless otherwise agreed, the parties or their nominees shall exchange the children at the McDonald’s Restaurant, Suburb D, NSW.

6. Pursuant to s 68B of the Family Law Act the father is restrained from entering upon or approaching within 100 metres of:

   (a)The mother’s residence; and

   (b)Any school attended by either child.

7. Each party is restrained from causing or permitting the children to be or remain in the physical presence of Ms E.

8. Each party is restrained from denigrating the other in the presence or hearing of the children and from permitting the children to remain in the presence or hearing of another person denigrating the other.

9. Each party shall notify the other of any medical emergency, illness or injury suffered by the children whilst in their respective care warranting treatment by a third party, and shall authorise any treating health professionals to communicate with the other parent about the condition and treatment of the children.

10. The mother shall authorise and request the principal of any school attended by the children to provide to the father, at the father’s expense, copies of all school reports and school photograph order forms relating to the children.

11. Each party shall forthwith inform the other, and keep the other informed, of their respective current residential address and mobile telephone number.

12. Within seven days hereof, the mother shall cause the children to be delivered to the Director of Child Dispute Services at the Newcastle registry of the Family Court of Australia to have explained to them the effect of these orders, and if deemed appropriate by the Director, the reasons for such orders.

13. Pursuant to s 65DA(2) and s 62B of the Family Law Act, particulars of the obligations that these orders create, particulars of the consequences that may follow contravention of these orders, and details of assistance to comply with these orders are set out in the attached Fact Sheet, which forms part of these orders.

14. The following applications filed by the father are listed before the Court at

    
    

    9.30 am on Tuesday 23 June 2015 for further directions:

    (a)The Application-Contempt, filed on 7 May 2014;

    (b)The Application-Contravention, filed on 9 September 2014;

    (c)The Application-Contravention, filed on 11 September 2014; and

    (d)The Application-Contravention, filed on 15 September 2014.

15. Any and all other outstanding applications are dismissed

IT IS NOTED that publication of this judgment by this Court under the pseudonym Imlay & Imlay has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT NEWCASTLE

FILE NUMBER: SYC  2699   of 2008

Mr Imlay

Applicant

And

Ms Imlay

Respondent

REASONS FOR JUDGMENT

Introduction

1. The applicant father and respondent mother have been fighting over their children from almost the moment of their separation in 2008. Not even two past sets of final parenting orders in 2008 and 2012 quelled their dispute, which is as vociferous now as it ever was.

2. The children were born in 2004 and 2007, so the dispute has lasted most of their lives. The parties apparently believed they were contesting parenting orders in the children’s best interests, but in reality they were contesting their own insatiable personal conflict.

3. The eldest child told the Family Consultant:

   It feels like they’ve been fighting all my life…It hasn’t stopped it goes on and on and on. It won’t end until I’m 18 years old I’m dreading it all the time [sic].

4. The youngest child told the Family Consultant:

   I’m sick of it all, actually I’m a lot sick really [sic].

5. Unfortunately, the parties were not listening to the children. If they were, they would have put this destructive conflict behind them long ago. They were unable to do so because they were equally convinced about the validity of their respective views, for which they sought the Court’s endorsement. The father believed the mother deliberately aligned the children against him and the mother believed the children were endangered by the father and realistically estranged from him, but neither was really vindicated by the evidence.

History

1. The parties married in 1999, separated in 2008, and were divorced in 2009.

2. The children are now aged 10 and 8 years respectively.

3. Prior litigation between the parties in respect of the children was concluded before the Federal Magistrates Court (as the Federal Circuit Court then was) twice – in December 2008 and December 2012.

4. The first orders were made with the parties’ consent and provided for them to have equal shared parental responsibility for the children, for the children to live with the mother, and for the children to spend an escalating amount of time with the father.

5. The second orders were again made with the parties’ consent and perpetuated the allocation of equal shared parental responsibility for the children to the parties and the children’s residence with the mother. Since the children were then older, the orders made prescriptive provision for them to spend “substantial and significant time” (s 65DAA(3)) with the father.

6. The current proceedings were commenced by the father only nine months later in September 2013. Both parties sought orders for sole parental responsibility, residence of the children, and restrictions upon the children’s visits with the other party. Both parties filed Notices of Child Abuse in the proceedings alleging actual or prospective abuse of the children by the other party.

7. The parties’ respective applications for interim orders were dismissed in October 2013, meaning the orders of December 2012 continued to prevail until the trial. The children still live with the mother and spend substantial amounts of time with the father.

8. The father was dissatisfied with the mother’s compliance with those orders, which caused him to file a succession of contempt and contravention applications during 2014. Although he apparently has no present intention to discontinue those applications, he was content for them to be left in abeyance pending determination of the substantive parenting proceedings.

9. Both parties sought the appointment of a single expert psychologist, upon whose identity they later agreed, to prepare a report about the welfare of the children but, due to their difficult financial circumstances, neither party was eventually able to contribute to the single expert’s costs. Instead, a Family Report was obtained. The proceedings were listed for trial as soon as that report was prepared and released.

The proposals

1. The father’s proposals changed significantly during the course of the proceedings.

2. He commenced the proceedings by filing his Initiating Application on 23 September 2013, in which he sought orders for him to have sole parental responsibility for the children, for the children to live with him, and for the children to only spend time with the mother when he agreed to allow it.

3. His proposal was revised in the Amended Application he filed on

   
   

   8 January 2014, wherein he instead proposed that the parties have equal shared parental responsibility for the children and that the children live with the parties for “equal time” in a “week-about arrangement”. That remained his proposal until literally the last moments of the trial.

4. During final submissions, the father modified his proposal again. He acknowledged the mother should have sole parental responsibility for the children and that they should continue to live with her. He also conceded the children should spend a substantially reduced amount of time with him, the effect of which would be that the children visit him on alternate weekends (Friday to Sunday), for four consecutive days in the Autumn, Winter, and Spring school holidays, and for one week in the Summer school holidays.

5. The mother sought the orders set out within the minute of order she tendered at the commencement of final submissions,[1] which were similar to those set out within her Amended Response filed on 14 April 2015. However, during the submissions which followed, she revised the minute in some respects. Essentially, she wanted sole parental responsibility for the children and for them to live with her. She sought no specific order to regulate the children’s face-to-face interaction with the father or their telephone communication with him, which she wished to control as an incident of her exclusive parental responsibility for the children. She only proposed prescriptive orders to regulate written communication between the children and father.

   [1] Exhibit M9

The evidence

1. The father relied upon his affidavit filed on 16 April 2015. Despite permission to do so,[2] he did not file any affidavit for Ms E, his former partner.

   [2] Order 5(b) made on 31 March 2015

2. The mother relied upon her affidavit filed on 8 May 2015.

3. The parties both relied upon the Family Report dated 24 March 2015.

Legal principles

1. Orders in respect of children are regulated under Part VII of the Family Law Act1975 (Cth) (“the Act”). The Act defines the meaning of a “parenting order” (s 64B).

2. When invited to make a parenting order, the Court is enjoined to bear in mind both the objects of the legislation and the principles which underpin those objects (s 60B) in determining the nature of the parenting orders which ought properly be made (s 65D).

3. When making parenting orders the Court is mandated to regard the child’s best interests as the paramount consideration (ss 60CA, 65AA). The Act specifies with precision the criteria which the Court must contemplate in arriving at a conclusion as to what is in the best interests of the child (s 60CC).

4. The Court is required to apply a rebuttable presumption that a child’s best interests are served by an order allocating equal shared parental responsibility for the child to the parents (s 61DA). Parental responsibility is defined to encompass all duties, powers, responsibilities and authority conferred by law upon parents (s 61B). The legislation dictates the manner in which equal shared parental responsibility is to be exercised in respect of decisions relating to “major long-term issues” concerning the child (s 65DAC), being matters such as education, religion, culture, health, name, and changed living arrangements (s 4), and also in respect of decisions which do not relate to such significant issues (s 65DAE).

5. The presumption of equal shared parental responsibility does not apply in certain circumstances, including in instances of child abuse and family violence (s 61DA(2)), and the presumption may be rebutted if the Court is satisfied it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child (s 61DA(4)). The presumption says nothing about the amount of time the child should live or spend time with each parent, but the manner in which parental responsibility for the child is allocated by the Court may bear on that issue.

6. In the event an order is made allocating equal shared parental responsibility to the child’s parents, either presumptively or otherwise, the Court is then obliged to consider both the advisability and practicability of the child living for equal time with both parents, or alternatively, living primarily with one and spending substantial and significant time with the other (s 65DAA).

7. If parental responsibility for the child is allocated in some other way, then the Court’s discretion is at large in the determination of the parenting orders warranted, though the discretion must still be exercised in the context of the child’s best interests being the paramount consideration.

Best interests of children – primary considerations

Section 60CC(2)(a)

1. It is beyond doubt the children both enjoy meaningful relationships with the mother, from which they derive much benefit.[3] The father must have finally realised as much, demonstrated by him resiling from the proposal to change to their residence.

   [3] Family Report, para 107

2. Nor was there any doubt the children formerly enjoyed meaningful relationships with the father, from which they similarly derived much benefit. The mother’s admission of that fact was evident from her agreement to parenting orders in December 2008 and December 2012, which provided for the children to spend substantial time with the father.

3. However, the current quality of the children’s relationships with the father emerged as a critical issue in the course of these proceedings.

4. In conference with the Family Consultant, the eldest child said she wanted to live with the mother and spend no time with the father,[4] and the youngest child’s expressed views vacillated between not seeing the father at all and spending a reduced amount of time with him.[5]

   [4] Family Report, para 89

   [5] Family Report, paras 97-101

5. The father petulantly refused to permit the Family Consultant to observe the children in his company,[6] so he deprived her of the opportunity to gauge the depth of the children’s feelings for him. The Family Consultant found the eldest child’s adverse comments about the father to be incongruent with her demeanour, suggesting her comments were not a genuine reflection of her feelings for him. As is trite, children’s behaviour is more likely to reveal their honest feelings than the comments they make, but the father’s decision prevented the incongruence between the eldest child’s comments about, and her behaviour towards, him being tested.

   [6] Family Report, para 57

6. Nonetheless, the Family Consultant considered the children’s expressed ambivalence about the father was really a product of their desire to be removed from the centre of the intense parental conflict to ease the pressure upon them; not a genuine reflection of any corrosion of their relationships with the father. She considered the parental conflict was so unrelenting that the children felt the need, albeit perhaps the eldest child more than the youngest child, to side with one parent and abandon the other, and, since they are primarily attached to the mother, they chose her.[7] Neither party challenged the validity of those opinions, which I accept as correct.

   [7] Family Report, paras 88, 105, 141

7. The Family Consultant also opined that, despite their intelligence, neither child yet has the maturity to understand the repercussions of their expressed desire to reduce or eliminate the time they spend with the father.[8] Similarly, neither party challenged the validity of that opinion, which I also accept as correct.

   [8] Family Report, paras 145-146

8. I do not accept as accurate the mother’s contention that the children are realistically estranged from the father. That is too simplistic an analysis of the children’s professed wish to avoid or minimise their visits with him.

9. It should not be overlooked that the mother maintained her proposal for the children to continue spending “substantial and significant time” with the father, at least up until March 2015, when she stated a different attitude in conference with the Family Consultant.[9] Her fresh attitude was reflected in her second Amended Response subsequently filed on 14 April 2015. She would not have maintained her proposal for such extensive interaction between the children and the father for so long unless she still believed they enjoyed meaningful relationships with him, from which they derived benefit.

   [9] Family Report, para 16

10. When the mother filed her Response in October 2013, she proposed the children spend time with the father for five nights per fortnight and for half of school vacations, albeit on the proviso that he satisfactorily complete an “anger management” course.[10]

    [10] Response filed 16/10/13, Orders 3-4

11. When the mother filed her Amended Response in January 2014, she proposed the children spend time with the father for two nights per fortnight and for parts of school vacations, but dispensed with the requirement for him to complete any courses as a pre-condition.[11]

    [11] Amended Response filed 22/1/14, Orders 3-4

12. The mother’s belated change of mind about the children spending any time with the father more probably manifests her worry about their safety in his care, by reason of incidents which occurred during 2014 and since, rather than a reasonable belief the children are realistically estranged from him.

13. The evidence more comfortably accommodates a conclusion that the children’s relationships with the father remain important, significant, and valuable to them, which is the measure of the “meaningfulness” of such relationships (see McCall v Clark (2009) 41 Fam LR 483 at 507-510). The children do and will benefit from retention and promotion of their relationships with the father. The poignant question is how that objective can be achieved in the face of the parties’ malevolence towards one another, which continues to permeate their parental relationship. That thorny issue can only be answered once the remainder of the evidence is addressed under ss 60CC(2)(b) and 60CC(3) of the Act.

Section 60CC(2)(b)

1. The parties both adduced evidence in an apparent attempt to have the Court find the other party posed a risk of harm to the children, either through their subjection to abuse or exposure to family violence.

   Risk of abuse by the mother

1. Inexplicably, the father adduced evidence to found an allegation (implied, even if not ultimately expressed) that the mother physically abused the children on numerous occasions between 2008 and 2014.[12]

   [12] Father’s affidavit, paras 38, 41-42, 114-126

2. He seemed not to appreciate the inconsistency between, on the one hand, him asserting the children were physically abused and at risk of physical harm by the mother, and on the other, his past agreement in 2008 and 2012 for them to continue living with her and his proposal throughout these proceedings for the children to live with her for at least equal time. Of course, the inconsistency was incapable of rational explanation. Either he had no genuine belief the children were at risk of harm in the mother’s care at all, in which case it was mischievous to adduce the evidence, or he was foolish to willingly propose orders he believed would expose the children to that risk. The father is no fool, so I draw the obvious conclusion that the evidence was baseless, consistently with the mother’s denials of any abuse.[13]

   [13] Mother’s affidavit, paras 100(d), 100(t)-100(w)

3. When the father commenced these proceedings in September 2013, he filed a Notice of Child Abuse and an affidavit in which he referred to a text message he allegedly received from the mother on 19 September 2013.[14] The text read as follows:[15]

   [Father’s name] if you’re women comes anywhere near my kids so help me ill drown them in the bath so you will never see them again. you drive by my house a again like you did last night ill ensure a bullet flys through the car Window into your head. back off fool you won’t be seeing the kids for the holidays or ever again [mother’s name] [sic].

   [14] Exhibit M8 (paras 53-54)

   [15] Exhibit M1 (pages 3-4)

4. It was unequivocally a conditional threat to kill both the children and father and a further statement of intent to prevent him ever seeing the children again.

5. For the reasons which follow, on the balance of probabilities, I find the text message was fabricated by the father, consonantly with the submission of the mother.

6. The mother denied sending the subject text message to the father – both to the police and to the Court.

7. The father immediately reported his alleged receipt of the text message from the mother to police. The police checked with the mother and reported back to the father that she denied sending the message to him. They told the father they did not consider she had done anything to cause concern,[16] which seems an improbable attitude for them to adopt, given she had allegedly threatened to kill the children and him if he attempted to see them in accordance with existing Court orders. The mother deposed she was told by police they did not consider the father’s complaint to be legitimate.[17] In any event, it is uncontroversial the mother contemporaneously denied to police that she sent the message and they then had the means to discover whether or not that was so.

   [16] Exhibit M8 (para 55)

   [17] Mother’s affidavit, paras 38-40

8. In these proceedings the mother repeated her denial and, for corroboration, produced information from her telecommunications provider verifying the number of text messages she sent to the father on the given date and provided screen-shot copies of the two messages she sent.[18] The text messages the father alleged he received from the mother did not correlate with the mother’s telecommunications records. For example, the father alleged he received another text message from the mother on 18 September 2013 threatening to thwart the children’s visits with him,[19] but the mother’s telecommunications records proved she did not send that or any other message to the father on that date.[20]

   [18] Mother’s affidavit, paras 35-36, Annex B, C

   [19] Exhibit M8 (para 52)

   [20] Mother’s affidavit, para 35, Annex B

9. As the applicant, the father was cross-examined first. He was asked about the text message and he adhered to his denial of fabrication. However, he conceded the authenticity of the mother’s telecommunication records and confirmed he had only ever communicated with her by use of that particular mobile telephone number. He was asked to find and bring to Court his own mobile telephone account records to verify the text messages he may have sent and received on the given date, but the following day he said he could not locate any relevant records, so he had no documents to contradict the mother.

10. When the father later cross-examined the mother, he was informed of the necessity to question her about the text message so the credibility of her denial of sending the text message could be tested. He refused to do so. He purposefully abstained from asking her any question about it, which justifies the inference he knew she had not sent the text message. He was unprepared to perpetuate his deception by asserting she sent it when he knew she did not.

11. It scarcely needs to be articulated, but his probable fabrication of that threat by the mother, his false report of it to police in the hope of causing trouble for her, his use of it to justify his commencement of these proceedings and to obtain an expedited hearing of his application for interim parenting orders, and his deceitful evidence about it in these proceedings is a damning indictment of him.

12. The children need no protection from any risk of physical harm posed by the mother.

    Risk of abuse or family violence by the father

13. The mother did not allege the father physically abused the children in the past. Her concern was that they are at risk of physical abuse by him. She did, however, allege that he exposed them to family violence perpetrated between him and Ms E.

14. The mother’s contention about the risk of the children’s harm by abuse and family violence was premised on an accumulation of circumstances.

15. The most important piece of evidence advanced by the mother was the father’s assault of Ms E’s adolescent son, F, in March 2014.

16. In late 2013, the father learned F was charged with some form of sexual indiscretion with a female peer. In late February 2014, the father learned F had surreptitiously filmed the children leaving the bathroom, clad in only towels, which video footage was saved on F’s computer. The father’s enragement at that discovery fomented over following days and, on 3 March 2014, he searched for and found Ms E and F at a local motel, where he assaulted F. The assault entailed the father grabbing and pushing F to the ground and then kicking him. Ms E’s screams alerted others to the fracas and the police were summoned. The father was charged and later convicted of the assault, for which he was sentenced by way of community service order for 100 hours and subjected to an apprehended violence order for F’s protection.[21] 

    [21] Exhibit M2; Family Report, paras 4, 24-26, 33; Father’s affidavit, paras 84-88

17. As the Family Consultant properly reasoned, the event must have been very traumatic for F.[22] Moreover, the assault was imbued with an element of premeditation. It was not a spontaneous reaction. The assault occurred some days after the father learned of the existence of the videos of the children and he admitted he was also partly motivated by cumulative frustration about the mother’s misdeeds over preceding months, which had nothing at all to do with F.[23] They are aggravating features of the episode which cannot be ignored.

    [22] Family Report, para 136

    [23] Father’s affidavit, para 88

18. The mother reasoned that, if the father is capable of assaulting an adolescent like F in such circumstances of frustration and stress, he is similarly capable of assaulting the children. Such reasoning is not demonstrably unsound, but it omits consideration of other important features of the evidence. The premeditation which aggravated the father’s assault of F is actually one reason why the risk of his assault of the children is diminished. It is unlikely the father would act on any calculated intention to assault them. If he did assault them, it would more likely follow an explosive loss of temper, and the evidence did not reveal that to have ever happened before in his dealings with the children. His history of loving care for the children is more telling than his aberrant assault of F in circumstances where he believed F had used the children as objects of his sexual interest.

19. The mother adduced evidence to vindicate her belief that the father exposes the children to family violence between him and Ms E.[24] Obviously, the mother can have no direct knowledge of events that occur within the father’s home and she relies upon what the children report to her, but the father’s relationship with Ms E could not have been entirely calm and harmonious. The father reported to his counsellor in 2013 that Ms E was “moody and caus[ed] fights”, was “hysterical”, and in his view she suffered from a “personality disorder”.[25] The father admitted he and Ms E argued hotly in August 2013, which was the catalyst for the mother to temporarily suspend the children’s visits with him, though he denied it was as serious an incident as the children reported to the mother.

    [24] Mother’s affidavit, paras 21-27, 65-66

    [25] Family Report, para 133

20. Ms E met with the Family Consultant and breezily dismissed the occurrence of even the “slightest” amount of family violence in her relationship with the father,[26] but she did not give evidence as a witness and submit herself to cross-examination, so little weight can be reposed in such remarks.

    [26] Family Report, para 119

21. In any event, I accept the veracity of the father’s evidence that he has now terminated his relationship with Ms E and she will no longer be part of either his life or the lives of the children. There are two very good reasons for that conclusion, even though he still currently lives with Ms E under the same roof until alternate accommodation becomes available to her. First, the father recently sent a text message to the mother advising her that Ms E would shortly be vacating their joint abode, requesting she take the children back earlier than would ordinarily be the case so they would not be disturbed by the “changes”.[27] He would not likely have cut short his time with the children unless it was necessary. Second, the father agreed to the imposition of an injunction precluding the children from being brought into contact with

    
    

    Ms E. He would not have agreed to such an injunction unless he genuinely believed he could comply with it, because he knows the serious consequences for contravention of Court orders. He has brought contravention applications against the mother.

    [27] Exhibit F8

22. Since the father and Ms E have terminated their romance and will shortly end their common residence, there is little or no prospect of the children being exposed to family violence between them. The imposition of an injunction precluding the children’s contact with Ms E satisfactorily addresses that concern and additionally removes the concern expressed by at least the youngest child about her.[28]

    [28] Family Report, paras 94-97

23. The mother gave evidence of episodes of family violence during their relationship prior to separation in 2008,[29] of the father threatening or assaulting work colleagues in the past,[30] and of his past convictions for assault in 1991 and 1992.[31] The Family Consultant also uncovered evidence of the father’s past admission to his psychologist in 2009 of his fantasy to “bulldoze the house with the mother and children in it”.[32]

    [29] Mother’s affidavit, paras 10-15

    [30] Mother’s affidavit, para 16; Family Report, para 70

    [31] Exhibit M2

    [32] Family Report, para 133

24. Those aspects of the evidence tend to collectively depict the father as a person who resorts, or considers resort, to aggression in circumstances of stress, but even if all true, such events were historic and the evidence therefore carries much less weight. Either the mother knew of such events long ago and was not persuaded they made any material difference to the father’s parenting capacity when she agreed to the orders in 2008 and 2012 or, even if only revealed to her more recently, the events are long past and there was little reliable evidence of similar recent incidents.

25. There was some evidence which invited speculation about the father causing deliberate damage to the mother’s motor vehicle in 2014 and also him having loitered around her home,[33] but the evidence was sparse and was not the subject of any cross-examination or submission. If the mother wanted an inference drawn that the father was responsible for such conduct, procedural fairness required that she challenge him squarely in cross-examination about it for either his admission or rebuttal (see Kuhl v Zurich Financial Services (2011) 243 CLR 361 at 387-388; Browne v Dunn (1893) 6 R 67). Her failure to do so precludes any inference being fairly drawn. Nevertheless, to guard against even the possibility of such reprehensible behaviour, an injunction should be imposed precluding the father from approaching the mother’s home.

    [33] Family Report, paras 68-69

26. The evidence is sufficient to establish the father does pose some risk of harm to the children, either through his subjection of them to abuse or his exposure of them to family violence, but neither risk is so virulent as to require elimination of the father from their lives, as the mother proposed. Such risks do not outflank the benefit the children will derive from maintaining their meaningful relationships with the father, notwithstanding s 60CC(2A) of the Act requires greater weight to be given to the former consideration than to the latter.

Best interests of children – additional considerations

1. Aside from her concern about the risks of abuse and family violence, the mother expressed concern about the father’s mental health, which she regarded as unstable and which she thought rendered his behaviour unpredictable. She did not want the children exposed to it.[34]

   [34] Family Report, paras 16, 64, 66

2. The father’s psychological health has not been robust. It seems he threatened or attempted suicide on several past occasions many years ago, the last occasion being in 1999. The mother was well aware of that,[35] but it made no difference to her past opinion about his parenting capacity. She considered, when she agreed to parenting orders in both 2008 and 2012, he was sufficiently competent to care for the children for substantial amounts of time.

   [35] Mother’s affidavit, paras 50-51, 88

3. However, there was a more recent incident following the father’s assault of F in March 2014. Afterwards, he retreated to his home and telephoned Lifeline, during which call he threatened to hang himself. The police were summoned. They broke into his house to retrieve him and then conveyed him to a psychiatric unit, where he was admitted and treated for two days.[36]

   [36] Family Report, paras 28-31, 133

4. Following his discharge, the father arranged to see a private psychologist, whom he continued to intermittently consult. The father reported experiencing suicidal thoughts to his psychologist in December 2014 and he was then assessed as a “high risk” of suicide,[37] though the psychologist’s notes exhibit no similar alarm about the father’s condition by January 2015.[38] The father’s emotional state clearly continues to fluctuate, but it has been successfully contained through a combination of pharmacology and therapy.

   [37] Exhibits M6, M7

   [38] Exhibit M5

5. The father’s involvement in this litigation and the recent loss of his employment are undoubtedly factors which would have increased his stress, as the Family Consultant reasonably opined.[39] However, her concern, and that of the mother, about the father’s “decompensat[ion]” under such stress must be considered in context. The stress for the father at trial could hardly have been more acute. He had no legal representation and needed to conduct the litigation for himself. He realised from the manner in which the mother conducted the case that his elimination from the children’s lives was a distinct possibility. Save for reservations about the veracity of some aspects of his evidence and the prudence of some forensic decisions he made, he acquitted himself well. He did not collapse under the emotional load, which tended to demonstrate he has more psychological resilience than for which the mother gives him credit. The conclusion of this litigation will probably bring with it a considerable sense of relief for the father, so that his emotional resilience is not likely to be so stringently tested in future. The prospect of his “decompensation” is greatly reduced once this litigation is determined.

   [39] Family Report, para 138

6. The mother’s apprehension about the father’s psychological condition is justified, though the evidence about his condition was not such as to warrant his elimination from the children’s lives. The preferable way to deal with the risk of the father’s future “decompensation” is to reduce the amount of time the children spend with him, so the burden of the parenting load upon him is reduced.

7. Notwithstanding his own temperamental emotional condition, the father hypocritically complained about the mother being “mentally unwell”.[40]

   [40] Family Report, paras 19, 56

8. The mother has also experienced fragile psychological health, but her periods of ill health were more antiquated than the emotional disturbance experienced by the father some six months ago.

9. In 2003 the mother was admitted to and treated in hospital. The hospital records describe her sucking her thumb, lying in a foetal position, and expressing suicidal thoughts.[41] That episode apparently followed her sufferance of a miscarriage.

   [41] Exhibit F5

10. In 2008, shortly following separation from the father, the mother was again admitted to hospital expressing suicidal ideation. She intended to overdose on prescribed medication. She initially considered murdering the children before committing suicide, but decided against it and wrote them a suicide note instead.[42]

    [42] Exhibits F1, F2, F3, F4

11. Self-evidently, the father knew about the mother’s admissions to hospital in 2003, which occurred during their cohabitation,[43] and in 2008, which occurred immediately following their separation. Just as was the case for the mother, such knowledge caused him no concern when he agreed to orders in December 2008 and December 2012 providing for the children should live with her.

    [43] Father’s affidavit, paras 17-18

12. More recently, in July 2014, the mother consulted her general practitioner and reported experiencing panic attacks and depressed mood, but importantly, no suicidal thoughts. She was prescribed anti-depressant medication.[44] However, that medical consultation occurred only some two days after a heated dispute with the father about a school holiday changeover of the children, which resulted in her receipt of a barrage of text messages from him and his involvement of the police in the dispute, so her emotional imbalance in response to those events was not so surprising.

    [44] Exhibit F6

13. The mother’s physical care of the children since separation in 2008 has been perfectly adequate. There is no basis to suggest her parenting capacity is impinged by her psychological condition.

14. The parties’ criticisms of the other’s psychological condition were merely one example of the ruinous conflict within the family. There were many others.

15. The manner in which the father conducted the trial did not serve to abate the conflict. He:

    (a)Repeatedly made snide comments in response to the answers given by the mother during his cross-examination of her, even though instructed to desist;

    (b)Repeatedly made reference throughout the trial to the mother’s “rape” when she was a juvenile, in an attempt to link it to some current psychological disorder, which was either purposefully or insightlessly insensitive to the mother, even though the father has known of the mother’s past sexual assault since April 2008;[45]

    (c)Questioned the Family Consultant about whether the mother’s “rape” would pre-dispose her to sexually abuse the children, with a view to submitting the children were therefore at risk of harm in her care, when that had never before been raised as an issue in the proceedings;

    (d)Criticised the maternal grandparents for their failure to adequately supervise the mother and prevent her “rape”, with a view to then submitting they would be incompetent supervisors of the children;

    (e)Claimed the maternal grandfather was not a good role model for the children simply because he told them they would not be able to see at night if they did not eat carrots;[46]

    (f)Deposed the mother was untruthful and called her names, like “mythomanic” in his affidavit[47] and a “pathological manipulator” during his cross-examination.

    [45] Exhibit M4 (para 31)

    [46] Family Report, para 45

    [47] Father’s affidavit, para 111

1. The mother’s conduct of the proceedings was also thoughtless. She insisted on adducing evidence about the father’s commission of family violence upon her prior to 2008, when that history had no bearing at all upon the current proceedings, which were concerned with whether the parenting orders agreed between them in 2008 and 2012 needed revision.

2. In any event, there remains some doubt about whether the father was physically violent towards the mother during their cohabitation. The father denied it,[48] and the mother was impelled to concede during cross-examination that, when she completed a domestic violence screening assessment upon her hospitalisation in April 2008 shortly following separation, she denied she was the subject of any domestic violence. Her explanation now was that she then gave untruthful answers, so it seems both parties are capable of deceit when it suits them.

   [48] Father’s affidavit, para 20

3. Of even more concern, though, was the mother’s conduct which tended to depreciate the value of the children’s relationships with the father, about which he was inconsolable. The Family Consultant expressed the view there was no “parental alignment”, because the children still do express fond memories of the father and their relationships with him.[49] The issue was addressed with the Family Consultant in cross-examination. She said she did not think the mother had “purposefully alienated” the children from the father, but she was not prepared to rule out the prospect the mother had inadvertently done so.

   [49] Family Report, para 141

4. Undoubtedly the children have been deleteriously affected by their experience of the parties’ conflict, but the mother’s conduct cannot pass without comment, as it was probably a contributory factor in the ambivalence the children now express about spending time with the father. It remains plausible her conduct was inadvertent rather than deliberate, but even so, such conduct has the potential to be emotionally damaging for the children. There were many examples of it, which included her:

   (a)Frustrating the children’s telephone communication with the father;[50]

   (b)Making, and permitting the children to make, derogatory comments about the father, which the children were then emboldened to report to the father;[51]

   (c)Deciding to withhold the children from the father in August and September 2013 because of her perception the children were exposed to family violence in his household,[52] even though her action was in breach of existing orders and she failed to commence proceedings to seek any variation of those orders, which impasse had to be broken by the father’s commencement of the proceedings;

   (d)Telling the children the father had a previous marriage and prior girlfriends, which she admitted doing in cross-examination, the only rational purpose of which could have been to foster the children’s loyalty to her; and

   (e)Telling the children, or at least allowing them to know, of the father’s dereliction in failing to make proper child support payments, as only she could have been the source of that information, which the youngest child subsequently reported to the Family Consultant.[53]

   [50] Father’s affidavit, para 39

   [51] Father’s affidavit, para 40

   [52] Father’s affidavit, paras 59-62, 74-83; Mother’s affidavit, paras 21-34, 41-43, 82

   [53] Family Report, para 103

5. The mother also excluded the father from important decisions related to the children, about which he should have been consulted because of the allocation to them of equal shared parental responsibility by the orders made in December 2008 and December 2012. For example, the mother:

   (a)Withdrew the youngest child from pre-school;[54]

   (b)Decided when the youngest child could begin school;[55]

   (c)Omitted the father’s contact details from the youngest child’s school enrolment form;[56]

   (d)Withheld the youngest child from the father the night before he started school, in circumstances where existing orders provided for him to be with the father at that time;[57] and

   (e)Submitted the children to psychological counselling without recourse to the father.[58]

   [54] Father’s affidavit, paras 33-36

   [55] Father’s affidavit, paras 46-47

   [56] Father’s affidavit, para 58

   [57] Father’s affidavit, para 53

   [58] Father’s affidavit, para 102

6. Both parties should be chastened by the manner in which they have behaved towards the other and involved the children as pawns in their dispute.

7. The father is in arrears with child support payments,[59] but his employment was terminated following his assault of F. He only acquired new casual employment in recent weeks. Those circumstances ameliorate, to some extent, criticism of the father for failing to adequately support the children.

   [59] Mother’s affidavit, paras 97-98

8. The parties’ homes are located about 22 kilometres apart and the road journey by car between them takes about 20 minutes.[60] Orders are therefore reasonably practicable and inexpensive to implement, regardless of whether they bear closer resemblance to those proposed by the mother or father.

   [60] Family Report, para 7

9. Given that the ultimate issue between the parties was confined to whether, and if so how, the children would spend time with the father, the only other aspect of the evidence the parties submitted was influential under s 60CC(3) of the Act was the effects upon the children of any change to the current regime. That consideration was the subject of the Family Consultant’s cross-examination and is discussed below.

Conclusions and orders

1. There was ultimate agreement between the parties that an allocation to them of equal shared parental responsibility for the children would be inappropriate and, instead, the mother should be vested with exclusive parental responsibility for them. Such agreement was a sensible recognition that the evidence rebutted the presumption of equal shared parental responsibility (s 61DA(4)). The parties’ do not have a proven capacity to communicate and consult courteously, or to make a genuine effort to compromise on issues of importance to them. It is unnecessary to identify the evidence to justify that conclusion in light of their agreement, but it is noteworthy their agreement vindicated the view of the Family Consultant.[61]

   [61] Family Report, paras 147, 150

2. Accordingly, orders will be made, with the parties’ eventual consent, for the mother to have sole parental responsibility for the children and for the children to live with her.

3. The investiture of the mother with exclusive parental responsibility means it is unnecessary to consider the residential alternatives for the children preferred by the Act (s 65DAA). Whether the children spend time with the father, and if so, how and when such visits are implemented, were the critical issues.

4. I accept as correct the Family Consultant’s view that the children have become “emotionally and psychologically fatigued” by the parties’ conflict,[62] to which they have been relentlessly exposed. The question is: what to do about it?

   [62] Family Report, para 143

5. One thing is certain; the mother, the father, and the children are all dissatisfied with retention of orders in the current form. The parties both want the orders changed, albeit in different respects, and the children have expressed their desire for alteration to the existing regime.

6. The mother now wants to have exclusive and unfettered control over whether the children ever visit the father or communicate with him by telephone. Having regard to recent history, if the decision is left to her, the father will probably be eliminated from the children’s lives. Nevertheless, she has only recently arrived at that view. Until as recently as March 2015, when she conferred with the Family Consultant, she still represented to the Court and the father, through her Amended Response filed in January 2014, that she considered the children should spend time with the father on alternate weekends (Friday to Sunday), for parts of school vacations, and on other special occasions. Even when she conferred with the Family Consultant, she admitted she understood the Court may not be willing to endorse her new proposal to eliminate the father from the children’s lives.[63]

   [63] Family Report, para 81

7. Her admission to the Family Consultant was prescient. The evidence of her concern about the father’s parenting capacity was insufficiently strong to warrant such a drastic result as she sought. Elimination of all face-to-face visits between the children and the father would be a disproportionate response to the father’s parental shortcomings. Orders to that effect, which would immediately terminate a long-standing arrangement for the children to visit him for five nights each fortnight and for half of all school holidays, would probably also cause them unnecessary emotional turmoil. Even though they would probably recover emotional equilibrium in time, their meaningful relationships with him would inevitably be gradually lost. In the circumstances of this case, the evidence pertinent to s 60CC(2)(a) of the Act carried greater weight than the combined effect of the evidence relevant to considerations under ss 60CC(2)(b) and 60CC(3) of the Act.

8. That conclusion correlates with the opinion independently reached by the Family Consultant. Although she foreshadowed elimination of the father from the children’s lives as one way of reducing the stress on the children,[64] she was ultimately inclined against such an outcome.[65] None of the evidence she gave in cross-examination undermined that opinion and no convincing reason was advanced by the mother for rejection of such opinion.

   [64] Family Report, para 20

   [65] Family Report, para 149

9. Given the children’s best interests require the retention of their face-to-face visits with the father and the current regime is not working favourably for them, alternative regimes were the subject of evidence and submissions. The Family Consultant discussed some suggestions in both the Family Report and during her cross-examination.

10. First, the prospect of the children spending even more time with the father than they already do may be quickly rejected as an option. Even the father finally realised the impracticability of that proposal. Its rejection necessarily means the children should spend less time with the father than they already do, but not so little time that the quality of their relationships with him will be compromised.

11. The Family Consultant considered a temporary embargo on the children’s visits with the father, arbitrarily estimated at 6-12 months duration, but she rejected that idea. It would not be a solution to the children’s current reticence to spend so much time with the father. It would only likely increase both the tension between the parties and the children’s anxiety about the resumption of the visits as the end of the embargo period drew closer.

12. The Family Consultant also considered limiting future visits to only a few occasions each year, which she described as “identity contact”. Inferentially, the idea was that the children would spend time with the father only as regularly as was necessary for them to retain their familiarity and a basal filial link with him, so they could be re-assured he had not abandoned them. She rejected the idea because she did not consider it would alleviate the children’s anxiety, which anxiety would likely heighten at times proximate to the impending visits and they would probably ultimately refuse to go. The mother has already deposed to her willingness not to force the children to visit the father, despite existing orders, when they express to her their resistance.[66]

    [66] Mother’s affidavit, para 41

13. The Family Consultant also considered confining, either permanently or temporarily, the children’s visits to daytime only. However, again, she was not convinced that would reduce the children’s stress. She was only prepared to say it “may begin” to make a difference.[67] That is too scant a basis on which to act.

    [67] Family Report, para 144

14. Ultimately, the Family Consultant recommended the children should still spend time with the father on alternate weekends on a gradually escalating basis, provided the Court finds the father does not pose a risk of harm to the children.[68] In cross-examination she added another qualification, which was the Court should also be satisfied there will probably be some abatement of the parental conflict before such visits may continue. Both of those pre-conditions are satisfied on the evidence.

    [68] Family Report, para 151

15. First, while the father does pose some risk of harm to the children, it is only a moderate risk, not one which should be regarded as unacceptably high.

16. Second, while orders providing for the children to spend reduced time with the father will obviously not entirely eliminate the prospect of the children’s exposure to ongoing conflict between the parties, the chance of that exposure is considerably reduced for several good reasons: the mother will have sole parental responsibility for the children, so it will foreclose argument about issues related to their care; the orders can be meticulously crafted to avoid argument about ambiguity, which has caused arguments in the past, particularly over changeover times; and the mother will be less inclined to suffer anxiety about the children’s safety if their visits with the father are shorter.

17. Balancing the need for the children to retain their relationships with the father against the need to reduce the duration of the current visits, the orders make provision for the children to spend time with the father each alternate weekend (from Saturday morning until Sunday afternoon), for four consecutive days in each school vacation during the year, and for one week in the Christmas vacation. That regime is slightly less than the father orally proposed during final submissions. It is even slightly less than the mother’s proposal contained within her Amended Response, filed in January 2014, to which she adhered until the meeting with the Family Consultant in March 2015.

18. The orders require the child to be exchanged at the same public venue upon which the parties agreed in December 2012.[69]

    [69] Order 1.5 made on 3 December 2012

19. The orders restrain the father from attending at or near to the mother’s home and any school attended by either child. That too will minimise the risk of conflict between the parties. The evidence was replete with unseemly incidents between the parties at or near to the children’s schools.

20. The orders require the parties to keep one another informed about their residential address and mobile telephone numbers. They need to know where the children will likely be living and visiting and they need to know how to contact each other in an emergency.

21. The orders make no provision for telephone communication between the children and either parent. Both parties complained about the abject failure of past orders prescribing telephone communication. Eradication of telephone communication is another way of reducing the chance of further conflict between the parties. The children’s visits to the father are frequent enough that they will not need to speak with him by telephone between visits and the duration of their visits with him are not so lengthy that they will need to speak with the mother by telephone during the visits.

22. As already mentioned, an injunction is made with the father’s consent to preclude the children’s association with Ms E.

23. The parties are restrained from allowing the children to be exposed to denigration of them.

24. Since the mother has sole parental responsibility, the orders require her to enable the father to acquire information about the children’s medical and academic progress and to procure their school photographs.

25. The father expressly abandoned many of the other orders set out within his Amended Application filed on 8 January 2014. Of the residue, to the extent they do not merge in the orders already made, they are dismissed. No evidence or submission was directed to proof of the need for such orders.

26. The Family Consultant said in cross-examination she would explain the orders to the children. An order is made to that effect, so the children will have the benefit of an independent explanation about the outcome of the litigation.

27. The father’s outstanding contempt and contravention applications are adjourned until a date soon after the publication of these orders and reasons, so he has time to consider whether he wants to maintain his prosecution of the applications.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Austin delivered on 17 June 2015.

Associate: 

Date:  17 June 2015