Jeffries and Jeffries
[2013] FCCA 855
•22 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JEFFRIES & JEFFRIES | [2013] FCCA 855 |
| Catchwords: FAMILY LAW – Parenting – family violence – denigration of parents. |
| Legislation: Family Law Act 1975 (Cth), ss.60CA, 60CC, 61DA, 65DAA |
| Goodner & Jeperson [2009] FamCA 1052 Collu & Rinaldo [2010] FamCAFC 53 Arthur-Sandys & Sandys [2011] FamCA 866 |
| Applicant: | MR JEFFRIES |
| Respondent: | MS JEFFRIES |
| File Number: | BRC 11250 of 2011 |
| Judgment of: | Judge Howard |
| Hearing dates: | 8, 28 and 29 May 2013 |
| Date of Last Submission: | 29 May 2013 |
| Delivered at: | Brisbane |
| Delivered on: | 22 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Mr Curran |
| Solicitors for the Applicant: | Macdonald Law |
| Counsel for the Respondent: | Mr Alexander |
| Solicitors for the Respondent: | Dean Kath Kohler |
| Counsel for the Independent Children’s Lawyer: | Mr Andrew |
| Solicitors for the Independent Children’s Lawyer: | Norman & Kingston |
ORDERS
That the Independent Children’s Lawyer shall provide a copy of a proposed Final Order to each other party by 4:00pm on 29 July 2013.
That the parties shall attempt to reach an agreed position in relation to the wording of the Final Order (reflecting the Reasons for Judgment) and shall send a copy of same to the Court by no later than 4:00pm on 29 July 2013.
That in the event the parties are unable to reach an agreed position in relation to the wording of the Final Order (and send a copy of same to the Court) within the time frame stated in paragraph (2) – the matter shall be listed for Mention and each party shall attend personally along with their legal representative (if any) on a date to be fixed by the Court.
IT IS NOTED that publication of this judgment under the pseudonym Jeffries & Jeffries is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRC 11250 of 2011
| MR JEFFRIES |
Applicant
And
| MS JEFFRIES |
Respondent
REASONS FOR JUDGMENT
Background
The Applicant Father, Mr Jeffries, was born on (omitted)1968.
The Respondent Mother, Ms Jeffries, was born on (omitted) 1967.
Both parties live in (omitted). They have three children together namely:-
a)Z born (omitted) 2004;
b)Y born (omitted) 2006; and
c)X born (omitted) 2009.
The parties lived together for approximately 12 years. The parties married in 2005 and separated on a final basis in January 2011.
The parents have been unable to agree on parenting arrangements for their three children.
I note that the mother has five other children from previous relationships. The names of the mother’s other five children are as follows:–
a)A – born (omitted) 1999
b)B – born (omitted) 1996
c)C – born (omitted) 1992
d)D – born (omitted) 1990
e)E – born (omitted) 1986
The father has two children from a previous marriage. The names of the children are F (aged approximately 18) and G (aged approximately 17). I note that the father has no contact with his two older daughters from his previous marriage.
The father seeks a week about shared care arrangement in respect of the children.
The mother maintains that the children’s time with the father must be supervised at a contact centre.
Best Interests of the Children
Section 60CA of the Family Law Act 1975 (Cth) provides:-
“60CA In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.”
In the circumstances of this case it is more convenient to first consider the “additional considerations” set out in s.60CC(3) of the Act in Order to assist the Court in determining what is in the best interests of the children. After considering the “additional considerations” I shall return to the “primary considerations” which are included in s.60CC(2). Support for such an approach has been confirmed in several cases including Goodner & Jeperson [2009] FamCA 1052, Collu & Rinaldo [2010] FamCAFC 53 and Arthur-Sandys & Sandys [2011] FamCA 866 (per Judge Purdon-Sully).
Section 60CC(3)(a) – any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views.
The children were interviewed initially by Mr J. Mr J prepared a family report dated 22 May 2012. That report is Exhibit six in these proceedings. The interviews with Mr J took place on 27 April 2012.
In the interview with Z, I note the following paragraphs:
“7.1 Z was willingly interviewed.
7.2 She talked a little about attending the (omitted) School and named her teacher and some friends. Her favourite activity is handball. Away from school, she likes playing the Nintendo Wii at home, but unfortunately the remotes are broken and currently they have no games. She also likes jumping on the trampoline, playing with her friend from across the road, J. Y is good to play with because “she is really funny”.
7.3 When asked who looks after her really well, she said, “Mostly D or B or E and Mum looks after us after school”.
7.4 Regarding seeing her father, she said, “It is good”, but without a lot of enthusiasm.
7.5 I asked if her father used to play with her at home and she said, “Not really”. When I asked her if her father looked after her when he lived with them, she said, “No”. She then added, “When I was a baby, he never looked after me”. I asked her how she knew this and she said, “Because Mum told me”. By the same token, she could not remember her father look after her at home.”
In particular – I also note Paragraph 7.6 of the report where it is stated:-
“7.6 Z said that she does look forward to seeing her father.”
The report writer continued from paragraph 7.9:-
“7.9 Asked to describe some positive aspects about living with her mother, she said:
“She goes to sleep mostly because she’s very tired. She’s awake when I’m home from school. She doesn’t do much. She talks to Uncle D a lot”.
7.10 Asked the same question in relation to her father, she responded:
“We went over to his house at night but we’re not allowed anymore because Mum said. Mr P lives there. She think he’s got a pool and he works with horses”.
7.11 I asked Z what it might be like to see her Dad away from the contact centre. She said she would be scared, “because one day he took me to his house and he kept me for a night and the police put him in a police car because he stole me”.
7.12 I asked her if there were any other things that scare her, but she did not respond.
7.13 When I asked Z who gets more angry, Mum or Dad, she responded, “Dad…he gets angry with Mum easily”.
7.14 I asked her if there were good things about Dad and she said, “No not really”.”
I also note in particular paragraph 7.16:-
“7.16 Z said she was looking forward to seeing her Dad on the day of the interviews.”
Furthermore I note paragraphs 7.17, 7.18, 7.19, 7.20:-
“7.17 When asked the three wishes about her family situation, she responded:
1. “I’d like a horse”,
2. “My family to be together”.
3. “And not Dad to be sick in the head”.
7.18 I asked her if there is anyone who says her Dad is “sick in the head” and she said, “Mum…because when he was young he smelled petrol and his brain is half dead”.
7.19 If away from the people she loved for a long time, she would miss, “My whole family…Mum, Uncle D, N, E, D, C, B, A, Y, M and X”.
7.20 Asked if there were anyone who would look after her very well if she were ever very sick, she said, “Mum”. When I asked if there were anyone else, she said, “Maybe E”.”
It can be seen from the above interview with Z that she certainly mentioned some positive aspects in relation to her father. In particular, I note paragraphs 7.6 and 7.16.
I also note that the child indicated that the mother had told her information concerning the father which would, essentially, lead the child to think less of the father. In particular I note paragraph 7.5 and paragraph 7.18.
In relation to the child Y – at the first interview with Mr J, Y expressed her views in relation to the mother and the father. At that point in time Y was five years old. She stated, inter alia:–
“7.24 I asked her if her Mum is good at looking after her and she said, “Yeah”. I asked the same question in relation to her father and she said, “No…he’s a bad man now…he killed all his brain by smelling car stuff…he choked E”. When I asked her if she saw this happen, she said that it happened at her house “in the kitchen”. Y then said, “He’s got a scary mask at the shop…he was thinking he could get a blood mask…and he could paint it with black eyes”. She said that her father told her that he would do this “to scare people”.
7.25 Y said that she does not like seeing her father “because he is too naughty and bad”.
7.26 Y then told me, “He got the thing and he killed someone”. When I asked her how she knew this, she said, “Because I saw him do it”. Probing further, Y said, “He killed our grandpa but he still lives with us”. She added, “And he wanted everyone to like him”.
7.27 She said that when she goes to see her Dad, she “plays with horsies”. She seemed to think that it is fun when her Dad plays with her but said, “But I can’t have a sleepover because he keeps on scaring me when I’m still asleep”. I asked her what her Dad does to scare her and she said, “Wear a blood mask”.
7.28 I asked her specifically, “Is Dad sometimes fun?” and she responded, “A little bit good but he’s mostly bad”.
7.29 She knew that her mother and father do not like each other and said of her Mum, “She kicked him out of the house for choking E”. She then spontaneously added, “And he just did something to me…when I sleep with him at my house…I wanted to sleep with Mummy and he just pulled me back into my room with Z”. She said that she had to watch out for her father “all day if he hurts people”.
7.30 Y said that she likes playing with Z.
7.31 I asked her who her favourite person to spend time with is, and she said, “M ‘cos she lives with someone else…she’s not coming back to my house”.
7.32 If she were away from the people she loved for a very long time, she would miss “M and Z and X and Mummy and C”.
7.33 I asked her who would look after well if she were ever very sick, and she said, “Mummy”. When I asked her, “What about Daddy?” she responded, “Daddy too”.”
Notwithstanding some of the distressing comments made by Y about her father – she concluded the interview with Mr J by stating that she thought that her father would look after her if she was sick.
The child, X, was too young to be interviewed by Mr J. At that time he was only three years of age.
I also note parts of Mr J’s “evaluation and opinion” which are relevant at this point. I note the following paragraphs:-
“9.2 Interviews with Z and with Y reveal that they are very aware of the parental conflict. Probing with regard to the issues of family violence revealed that the children’s understanding of their father being violent seems to arise from information that they have been provided with by their mother rather than directly witnessing events. Z had a memory of being taken to her father’s house and her father being taken away by police; an event that would have been frightening enough, but there were no specifics provided with respect to the alleged violent incidents on that occasion
9.5 Both Z and Y mentioned their mother telling them that their father used to sniff petrol and that this had affected his brain; “sick in the head”.
9.6 From both Z’s and Y’s comments, questions are raised as to the mother’s capacity or willingness to facilitate the children’s relationships with their father. They seem to be aware of their father allegedly trying to choke E but again, this information seems to have come from their mother rather than any direct witnessing of the event.
9.7 While both Z and Y expressed fear of their father during interview, there was no such anxiety apparent when they spent time with him on the day of the interviews. Y was carried crying to the waiting room by her mother after lunch and was initially reticent to enter the play area but only for a very brief period of time. When Z, Y and X spent time playing their their father, they appeared comfortable and displayed no fear of him.”
I will return later to the evidence concerning the mother’s willingness to facilitate the children’s relationship with the father.
Mr J carried out further interviews with the family on 11 March 2013. His updated family report is dated 2 May 2013 and is exhibit seven in the proceedings. Z was interviewed by Mr J for the second time for the purposes of the preparation of the updated family report. The child stated, interalia:-
“5.4 She said that she does not want to see her father. On questioning, she said, “I don’t want to be around him…he’s too scary…he hurts everyone…he has smacked us a couple of times”.
5.5 When asked if she had ever seen her father hurt anyone, she said, “No”. She then recalled that she had seen her father hurt her mother. She stated, “He was hitting her with a rake…I can still remember. I was three or four”.
5.6 The report writer asked how things had gone when she was seeing her father away from the contact centre. Her only response was to refer to the occasion that her father had kept her for a night. Note: This appeared to be a reference to the occasion when her father had kept her against her mother’s wishes. When asked how she felt about seeing her father at the contact centre, she said, “It was okay, but sometimes I didn’t want to go”. Asked if her mother wanted her to go, she said, “No…’cos she’s scared of him as well”. When asked specifically if her Mum says not to go, she said that her Mum would say to her, “You can go if you want to”.
5.7 Z did not want to see her father on the day of the interviews, despite encouragement from the report writer.
5.8 Responding to the ‘three wishes’ question, she offered:
1. “That I had a good Dad”.
2. “Wish he would never hurt me and my family would be safe”.
5.9 When asked who would care for her will if she were ever very sick, she responded, “I wish they got back together…but it doesn’t go that way”. Questioned as to why she had this wish, she said, “It would have been nicer…but he never wanted any animals ever…like a cat or a dog or a fish”.
5.10 When asked if she had any positive memories of her father, Z said that she had some good memories of playing around with her father. As for special memories, she recalled, “Playing in the pool with him”.
5.11 Z said that she likes living with her mother and that she is “happy most of the time”. She said, “I like staying with Mum because she doesn’t hurt anyone…she doesn’t scare you…she’s nicer than Dad”.
5.12 When asked how she knows that her mother is scared of her father, she said, “Because I can see it…he’s broken a bone right there” (pointing to her eye). She then said that she could remember seeing her father punch her mother, but on reflection, said that she did not know if she saw it, or not.”
Clearly the child (who was eight years old at the time of the interview) indicated that she did not want to see her father. I do note that the child also stated in relation to her parents, “I wish they got back together”. She also recalled some positive memories of her father.
In relation to Y’s second interview with Mr J (for the updated family report) I note the following evidence:-
“5.18 When asked, “What about Dad?”, she responded, “No…because he’s bad”. As to what makes her father bad, she said, “He smelled petrol”. When asked how she knew this, she said, “Because I saw him do it”. As for enjoyable activities with her father, she recalled playing chess and checkers with him, but she could not recall anything else. Asked whether she had ever been anywhere special with her Dad, she said that she “went somewhere to get some chips”.
5.20 She said that visiting her Dad at his house was “not fun”. She said that this was “because he hurt me and Nona…he just hurt us and I know something bad that he did to E…choked her”. She said that she knew this because she saw him do it. Note: The police records indicate that the children were not present at the time of this alleged event.
5.21 Y did not want to see her father on the day of the interview. She said that at the contact centre, “All I do is go in and say hello and then go back out”. She said that her father “feels bad” about this and referred to the incident at the contact centre when she did not want to go with her father. She said that her father “stole me and stole my little brother”.
5.22 Responding to the ‘three wishes’ question, she responded as follows:
1. “For Mr Jeffries to be good”.
2. “Because he came past and he stole somebody’s wife…Mr A’s wife”. She knew about this because her mother told her. Note: During her interview, the mother referred to the father running off with the wife of a person named Mr A.
5.23 When asked if her mother likes her father, she said, “No”. She knew this because her mother told her. As to whether her father likes her mother, she said, “No”. She knew this, “Because Mr Jeffries has tried to hurt my Mum”.
5.24 Y made comment about Z’s birthday. She said that they had a party at her Dad’s and one at Mum’s. She did not like the party at her Dad’s ‘because of his friends…they’re bad because they smell petrol”. She said that her Mum has told her.
5.25 When asked who she would like to care for her if she were ever very sick, she responded, “Mum”.”
X was shy. He was reluctant to talk to Mr J and he hid under a chair in the waiting room.
Section 60CC(3)(b) – the nature of the relationship of the child with:-
each of the child’s parents; and
other persons (including any grandparent or other relative of the child).
It is apparent that the children have a close and loving relationship with the mother and with their siblings (i.e. the mother’s children).
The mother told Mr J at the initial interview (and it is recorded by Mr J at para 4.32 of his first report) that “Z adores her father but she is frightened of him”.
I note here in particular the observations of Mr J with the children which are included in his first report. His observations are as follows:-
“8.6 Mr Jeffries was asked to wait downstairs until I called his mobile phone. However, he attended the consulting rooms before I phoned him.
8.7 The three children were brought to the waiting room by their mother and B. Z and X greeted their father with hugs. Y at that time was crying and hid for a little while behind the report writer. She then went in, with some encouragement, to play with her father and quickly went to him for a cuddle.
8.8 Mr Jeffries chatted with the children about Easter eggs.
8.9 Y asked her father to play a board game with her. X willingly accepted hugs and tickles from Mr Jeffries. Y sought her father’s assistance in play.
8.10 Z played with cars and smiled and responded verbally when her father spoke to her. She then responded to her father’s overtures to join her siblings in drawing on the whiteboard.
8.11 Mr Jeffries provided appropriate assistance to and management of the children. He helped X hold a pen by placing X’s hand over his.
8.12 Y smiled at the report writer when her father hugged and kissed her. All three children maintained effective eye contact with their father and they did not appear fearful of him during the play session. They appeared to enjoy playing with him and were quite comfortable in the formal observed play session.
8.13 Mr Jeffries provided the children with appropriate guidance, instruction, encouragement and affection. He maintained his enthusiasm throughout the play session. Y was soon relaxed with him and spontaneously sat on his back. All three children sought his attention and Mr Jeffries responded appropriately. Y spontaneously said to him, “I miss you”.”
There was a significant change noticed by Mr J in relation to the children’s willingness to spend time with the father in the 12 months that had elapsed between the two sets of family reporting interviews. The children only had very limited time with the father between 27 April 2012 (the date of the first interview) and 11 March 2013 (the date of the second interview).
Exhibit 11 is a bundle of notes from the (omitted) Children's Contact Centre. The notes were obtained under subpoena. After the date of the first interview with Mr J (27 April 2012) the children saw the father for two hours supervised time at the (omitted) Contact Centre on 5 May 2012. The supervised time at the Contact Centre on 19 May 2012 was cancelled by the mother because the child X was suffering from diarrhoea and in any event the mother was planning to go away that weekend.
The children spent unsupervised time with the father on 2 June 2012. The Contact Centre was used as a changeover point. There is no reason to suspect that the children came into any harm whilst they were with the father on that occasion. But it is apparent that the father made inappropriate comments to the children or in front of the children. The children recounted these to the mother within earshot of the Contact Centre staff. I can think of no reason why the Contact Centre staff would embellish their notes. The comments made by the children were “Daddy says he hates you”. This was a comment made in respect of the mother in the presence of a family support worker at the Contact Centre. Apparently the child had also made another comment to the mother who then brought the child back to the family support worker and said “tell the lady what you told me”. The child then stated to the family support worker – “Dad says Mr C’s a bastard”. Mr C is the father of the mother’s child A.
On 3 June 2012 the mother arrived without the children. The mother said the children were sick and she was taking them to the Doctor. When the father was told of this he responded “right-oh” and the left the centre.
On 16 June 2012 the children spent the day with the father. Changeovers took place at 9:15am and 5:00pm. The mother was 15 minutes late. There are no other notations marked and I therefore conclude that the unsupervised time with the father occurred without incident.
The father also spent unsupervised time with the children (with changeovers taking place at the Contact Centre) on 17 June 2012, 30 June 2012 and 1 July 2012. In respect of those days there are no relevant notations in the Contact Centre records. I therefore conclude that the unsupervised time on those dates went smoothly.
I note the entry for 3 July 2012. A changeover occurred at the Contact Centre on that day – involving Z only:-
“10:00am (Z only) mother advised that Z had been upset and did not want to attend changeover. Family support worker encouraged Z to come through and say hello to her father and reassured her that she would not be made to go. On seeing her father Z cuddled him and agreed to leave with him almost immediately requiring no encouragement from family support worker. Z did not appear to be distressed when she left”.
On 14 July 2012 the children arrived with the mother at the Contact Centre in the car. Z and Y told the family support worker that they did not want to go. The family support worker told the mother to leave the centre with the children as changeover would not occur today. The family support worker advised the father of this. The father reacted very inappropriately. He “stood up over the family support worker and demanded in a raised and heightened tone to bring his children through to him”. The family support worker told the father that this would not occur today. The family support worker notes that they felt threatened by the behaviour of the father at this time. The notes state further:-
“Father said words to the effect that he would go and get them himself, FSW stood in father’s path and advised that he was not to approach the mother.
Father walked out of centre in an abrupt manner saying words to the effect that he was going to get them, father was observed to drive out of the car park in a hurried manner.”
On 15 July 2012 the mother arrived at the Centre and told the staff that the children were refusing to attend changeover on that day. The father was told this and he appeared to accept it and left the Centre without incident.
On 28 July 2012 the mother again advised the family support worker that the children did not want to attend the changeover and they were waiting in the car. I will include here a substantial part of the notes of the Contact Centre concerning what occurred on 28 July 2012. The notes state, interalia:-
“Mother advised FSW that the children did not want to attend c/o and were waiting in the car.
FSW approached car, asked children if they were going to see their father, all children replied “No”. It is noted that the children did not appear upset at this time.
FSW asked children if they want to come in and see father and give him a hug. FSW would remain with them and if they wanted to return to their mother, FSW would bring them back. Y and X replied “Yes”, Z replied “No”.
FSW brought Y & X through to father, father bent down with his arms open and the children ran towards him and cuddled him. Father immediately began to question Y regarding Z’s absence, the following conversation occurred during this time:
Father – “Where’s NaNa”
Y– “In the car”
Father – “Why didn’t she come in”
Y– “Because she’s scared of you”
Father – “That’s not true, mummy told her that”
Father then responded WTTE (words to the effect) “that’s not good enough, I’m not having this, we are going to go and get the police and get Z”. Y immediately said “No” and began walking away from her father
FSW made several attempts to talk to the father, he appeared to ignore FSW and continued to talk to Y.
FSW told father that Z had told FSW that she did not want to attend the c/o, however Y and X did want to see him and came through and give him a cuddle, but were unsure if they were going to go on c/o, and FSW would support them through this process.
Father said WTTE that he was “sick of this, would be getting the police and getting Z”.
Father was holding X and tried to take Y’s arm, Y continued to back away from the father saying “No, No”. FSW told father that it appeared that Y did not want to go on c/o and FSW would return her to her mother.
Father walked out of the Centre carrying X. FSW followed father to the car park. Father shouted WTTE “I’m sick of this, sick of you (referring to FSW), sick of the Contact Centre”, Father continued to shout that this was all FSW’s fault that the children did not want to come through, that FSW had caused this, FSW was on mother’s side. Father addressed staff in a raised voice and heightened tone during this conversation.
Father put X in the car and drove away. It was noted that X was not secured into a car seat.
FSW returned inside the Centre, Y was observed to be crying and cuddling her mother in the front waiting room.
FSW observed that father had driven to front of the building and parked in front of the mother’s car. Z and her older sister were in the car, father appeared to be trying vigorously to open the doors to the car and banging on the windows. Upon seeing this, the mother and Y became very upset (eg. Crying) and mother was screaming WTTE “He’s going to take Z, don’t let him take Z”.
FSW told mother and Y to wait in the building and asked another staff member to call the police due to the father’s escalating inappropriate, threatening (i.e taking the children in the vehicle by force) and intimidating behaviour which showed no signs of deescalating. FSW was concerned there was a safety issue for the children in the mothers vehicle, potentially for the mother and for Contact Centre staff.
FSW walked down towards the father, upon seeing the FSW approach the father got in his car and drove away.
Z was observed to be screaming and crying in the car. After father had left, FSW asked Z and her sister to get out of the car and wait inside the building.
Police attended (Sargent C and Constable D)
Father’s solicitor contacted TCCC and advised that the father and X were at her office, X appeared happy and content.
FSW spoke with solicitor who advised that father was agreeable to returning X at 5pm. FSW advised that c/o would need to occur at the police station as the service provided by TCCC had been withdrawn due to the events that had occurred as described above. The mother and police station were advised regarding the arrangements for the c/o at 5pm. Mother also advised of withdrawal of service.
It is further noted that the incident occurred when the Centre was busy with several children/parents/staff in attendance; the decision to withdraw the service from this family was required to ensure that clients and staff continue to see the Centre as a place of safety.”
The father’s actions on 28 July 2012 were inappropriate. It is apparent that he was very frustrated with the process. But that does not excuse the father’s actions.
That was the last date that the children saw the father. The father’s counsel, Mr Curran, rightly conceded that the father lacked insight in relation to his actions on that day.
To the extent that there are any discrepancies between the records of the Contact Centre staff and the evidence of the father – I accept the records of the Contact Centre staff.
The children did not come into contact with the father on 14 July 2012 and nor did they come into contact with him on 15 July 2012.
I reiterate the Contact Centre notes from 3 July 2012. Z arrived and the mother advised that Z “had been upset and did not want to attend changeover”. But the Contact Centre notes continue by stating that on seeing her father Z had cuddled him and agreed to leave with him almost immediately – requiring no encouragement from the family support worker. The notes further indicate that Z did not appear to be distressed when she left.
On 3 July, 14 July and 28 July 2012 – the initial scenario at the contact centre was similar. The first advice from the mother to the Contact Centre staff – on arrival – on each occasion was that the children “did not want to attend with the father”.
The willingness of the child Z to attend and spend time with the father – apparently willingly – on 3 July 2012 raises very serious concerns in relation to the mother. Further, the willingness of Y and X on 28 July 2012 to willingly attend to give their father a hug with the family support worker – again raises serious questions in relation to the mother.
The children clearly did have a relationship with the father as evidenced by Mr J’s observations with them in his first family report. As at 3 July 2012 – Z clearly had a close and loving relationship with the father – as indicated by the independent and objective notes recorded by the (omitted) Contact Centre. As at 28 July 2012 – Y and X had a close and loving relationship with the father – evidenced by the fact that they were willing to attend at the Contact Centre with the family support worker to give their father a hug.
The father’s inappropriate actions on 28 July 2012 obviously did not help his cause or the situation generally.
The evidence of Mr J given from the witness box on 29 May 2013 is that if the mother is kept away from the changeover situation then it is likely that the children will attend to spend time with the father without incident or controversy. I have come to the conclusion that the children’s relationship with the father can only be rekindled if this recommendation of Mr J is adopted. The mother cannot be involved in the changeovers.
Section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
The children have a close and loving relationship with the mother. There is evidence (namely the record in the (omitted) Contact Centre notes) to the effect that the father has told the children that he hates the mother. But I return to the fact that the children do have a close and loving relationship with the mother. It seems to me to be a reasonable inference to draw that the father has not adversely impacted upon the children’s relationship with the mother. This leads me to conclude that the father – generally speaking – has been willing and able to facilitate and encourage a close and continuing relationship between the children and the mother. There has clearly also been occasions when the father has made very inappropriate comments concerning the mother in front of the children. But I have come to the conclusion (as noted) that by and large the father has been both willing and able to facilitate and encourage a close and continuing relationship between the children and the mother.
I have come to the conclusion that the mother has not been willing to facilitate and encourage a close and continuing relationship between the children and the father. I conclude that the mother has the ability to do this – but she has not done so. Indeed I have come to the conclusion that the mother has deliberately denigrated the father in front of the children. Under cross-examination by Mr Andrew (counsel on behalf of the Independent Children’s Lawyer) the mother admitted that she had told the children that the father sniffed petrol. At paragraph 7.18 of Mr J’s first report. I note the following from his interview with Z:-
“7.18 I asked her if there is anyone who says her Dad is “sick in the head” and she said, “Mum…because when he was young he smelled petrol and his brain is half dead”.”
The mother attempted to indicate during her evidence that the children may have overheard her saying derogatory things about the father to her older children. The impression given by the mother was that her denigration of the father in front of the children was not deliberate and not intentional – but merely incidental. That is, the children may have overheard conversations. I have to come to the conclusion that the mother has openly and deliberately (over a long period of time) denigrated the father directly to the subject children and has also done this in their presence.
Many of the negative comments reported to Mr J by the children – concerning the father have emanated from the mother.
The mother needs counselling in relation to this conduct. Mr J agreed that such counselling would be aimed at showing the mother that speaking in such a way to or in front of the children causes significant harm to the children.
Section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
either of his or her parents; or
any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living.
It was apparent from the evidence of Mr J that it would be detrimental for the children to be separated from the mother for long periods of time. Indeed, Mr J recommended that – there be no holiday time with the father for a 12 month period. After 12 months has elapsed the children could spend holiday time with the father but only on a week about basis.
Mr J also gave his opinion that there is a reasonable chance the children will go with the father and spend time with him if they are collected from school on a Friday afternoon and returned to school on a Monday morning in alternate weekends. Mr J stated his opinion that the refusal of the children to go with their father (on the occasions referred to in the Contact Centre notes) is because of the views instilled in them by the mother.
I accept this evidence of Mr J.
In terms of the recommendations of Mr J – that the children live with the mother and spend alternate weekends with the father from after school Friday until before school Monday – there is no evidence of any particular effect on the children. I also note (and accept) the recommendation of Mr J that the children are to be given an explanation of the proposed orders in a counselling session with Mr J.
Section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.
There are no particular practical difficulties or expenses associated with the children spending time with the father. Both parents live in (omitted).
Section 60CC(3)(f) – the capacity of:-
each of the child’s parents; and
any other person (including any grandparent or other relative of the child)
to provide for the needs of the child, including emotional and intellectual needs.
Each of the parents in this case has the capacity to provide for the needs of the children including their emotional and intellectual needs. However – in order to assist the parents in this regard they both require counselling. I note the evidence of Mr J in this regard which I accept. The mother requires counselling so that she is less anxious about the children going to spend time with the father. Furthermore, the mother requires counselling so that she can be educated – from a psychological perspective – in relation to the harm done to the children by her denigration of the father.
In relation to the father – the evidence discloses that the father suffers from anger management issues. The father needs anger management counselling. He cannot continue to display his petulant and short tempered nature. The father must become aware of the damage that can occur to the children in the event that they are exposed to him displaying his temper. The father also needs (in my view) counselling in relation to the harm done to the children by his denigration of the mother and her older siblings.
Section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.
There are no particular characteristics of the children or the parents which require specific findings in this case.
Section 60CC(3)(h) is not relevant in this case.
Section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.
Both parents have, when given proper opportunity, demonstrated that they have accepted the responsibilities of parenthood. Both parents in fact have a good attitude towards the children. Both want to spend significant time with the children. My comments in this regard have to be read in the light of the comments I have made in relation to section 60CC(3)(f).
Section 60CC(3)(j) – any family violence involving the child or a member of the child’s family.
Section 60CC(3)(k) – if a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:-
the nature of the order;
the circumstances in which the order was made;
any evidence admitted in proceedings for the order;
any findings made by the court in, or in proceedings for, the order;
any other relevant matter.
There are subpoenaed records from the Queensland Police Service. The relevant bundle is Exhibit 10 in the proceedings. The Independent Children’s Lawyer has helpfully placed green tags on some of the documents. The document tagged as, “ICL 1” within Exhibit 10 is the criminal history of the father.
The first entry relates to an assault occasioning bodily harm perpetrated by the father on 7 May 2001. The father was dealt with in the Magistrates Court at Dirranbandi, Queensland on 7 June 2001. The outcome at Court is recorded as follows:-
“No conviction recorded
Recognizance $500.00 and to be of good behaviour for 12 months.”
The father only very reluctantly under cross-examination by Mr Alexander (counsel on behalf of the mother) came to admit that the assault in question was perpetrated by him on his ex-wife, Ms T.
It seems that the father lost his temper and assaulted his first wife, Ms T. The father says that Ms T had “run off” with his brother, Mr D.
Ten years elapsed before the next entry in the father’s criminal history. After the parties separated in early 2011 they obtained mutual domestic violence orders against each other. The father sent text messages in breach of the domestic violence order. Those text messages were sent by the father between 15 April 2011 and 25 April 2011. The father was dealt with in the Toowoomba Magistrates Court on 29 June 2011 in relation to those breaches. No conviction was recorded and no penalty was imposed.
On 1 September 2011 a very unfortunate incident occurred. The father had taken the child Z to see a doctor. The child then stayed with the father and was not returned to the mother. There were no Court orders or parenting plans in place at that stage. It was clearly a very difficult time for the parents because the father would collect the children and they would spend some time with him, and then he would return them to the mother. The father says that he had to act unilaterally and collect the children – because the mother was not making them available to spend time with him.
In any event the mother – early on the morning of 1 September 2011 travelled to the father’s residence to collect Z. The mother knocked loudly on the front door and was yelling out to the father to return the child. Indeed the mother was in fact swearing loudly at the father. The mother admits calling the father a “child molester”. The father opened the door and a physical altercation ensued. Unfortunately this occurred in front of Z. Both of the parents were found to be in breach of the domestic violence orders. The mother says that the father punched her and she suffered a fractured eye socket. I do not accept that evidence of the mother. There is no medical evidence to verify such an injury.
It seems to be an accepted fact by the parties that the father was in fact charged with assault occasioning bodily harm by the police in relation to the incident on 1 September 2011. However the police did not proceed with that charge. There was “no evidence to offer”.
The mother admits that it was wrong of her to go to the father’s residence. There is, in fact, no evidence whatsoever that the father is a “child molester”. The mother maintains that the father has a short fuse. The mother knows this to be the case because she lived with him for approximately 12 years. I am sure that she now realises that it was exceptionally foolhardy of her to attend as his residence early in the morning and stand at the front doorstep swearing loudly at him and calling him (on more than one occasion) a “child molester”.
In any event, no matter what the mother might have done or said, it certainly was not appropriate for the father to engage in a physical altercation with the mother.
In respect of that breach of the domestic violence order by the father (on 1 September 2011) – the father was dealt with in the Toowoomba Magistrates Court on 14 December 2011. A conviction was recorded and he was placed on probation for nine months.
In relation to the mother’s breach of the domestic violence order which occurred as a part of that incident on 1 September 2011 – the mother was dealt with at the Toowoomba Magistrates Court on 14 March 2012. There was no conviction recorded and the mother was fined $500.00. The mother was given four moths to pay and in default of payment the mother was to be imprisoned for seven days.
On 2 September 2011 – the very next day after the unfortunate incident witnessed by Z – the father saw the mother’s ex-husband, Mr C. Mr C is the father of the mother’s child A. The father says that Mr C and the mother’s brother (Mr S) had been driving up and down the street past his house and taunting the father. I accept the father’s evidence in relation to this. That does not excuse the father’s actions in walking into a video store and punching Mr C. It is even more disturbing because it seems that the father had sent a text message to the mother sometime prior indicating that he would “deal with” Mr C very soon. It seems that the attack on Mr C was likely to have been premeditated. It also has to be looked at in the light of Mr C’s taunting of the father with expressions along the lines of, “we’re coming for you”.
I accept the father’s evidence which is noted in the Contact Centre records of 18 December 2011 (part of Exhibit 11). The question was whether or not the father had said to the children that he was going to “bash Mr C”. I accept the father’s explanation that he was asked by one of the children whether he had in fact hit Mr C. The father told the child that he had “smacked Mr C”.
On 26 September 2011 the father was dealt with in the Toowoomba Magistrates Court in relation to one count of assault occasioning bodily harm. This was the assault on Mr C which occurred on 2 September 2011. On the same day in the Toowoomba Magistrates Court he was dealt with for committing public nuisance also on 2 September 2011. In respect of all charges convictions were recorded and he was fined $1,000.00. The father was given three months to pay and in default of payment he was to serve 20 days in prison.
There is also the evidence of the letter from the children’s school. In the mother’s trial affidavit (filed 10 April 2013) there is a copy of the letter at annexure, “SAJ07”. The letter is dated 2 September 2011. It is apparent that the mother must have contacted the school and conveyed information to the school concerning the father. The mother must have told the principal that the father had spent time in jail for assaulting the mother. There is no evidence that this is true. The mother also must have told the school that the father had “threatened to kill A’s natural father”. There is no credible evidence to confirm that comment.
Clearly what has occurred is as follows – the mother, in breach of the domestic violence order went to the father’s residence on the morning of 1 September 2011 and loudly and maliciously slandered the father. The father and the mother then became involved in a serious and violent physical altercation. The next day the father physically assaulted Mr C. After these events occurred I infer – that the mother contacted the school.
The school then telephoned the father when, I accept, the father made threats against the principal during the phone call. I do not accept that he threatened to “cut the principal’s throat”. My attention has not been specifically drawn to credible evidence to support such a finding.
The parents, by coincidence, crossed paths at the (omitted) chemist on 5 January 2012. It seems that the closed circuit television is consistent with the mother’s version of what occurred. The father pleaded guilty to a breach of the domestic violence order for walking too close to the mother. The father gave evidence that he saw the mother inside the chemist but still decided to walk into the chemist. Clearly he should not have done so.
The father was proceeded against by the police in respect of that breach of the domestic violence order. That information does not appear on his criminal history. It is to his credit that he voluntarily conceded that point.
On 14 July 2012 the parents’ paths crossed once again at the (omitted) Contact Centre. I made reference to the events of this date earlier herein. The mother had given evidence that the father, while driving his motor vehicle, had rammed the mother’s motor vehicle. The mother resiled significantly from that position under cross-examination. The mother then admitted that the father had only “nudged” her car. She admitted that there was only “slight force”. The mother told the Court that she did not look at her car to see if there was any damage to her car. I do not believe the mother in relation to this evidence. In fact, in many respects, the mother’s evidence was not credible. I will refer later in these reasons to the mother’s lack of credibility.
I do accept that the mother was a victim of family violence perpetrated against her by the father during the course of their relationship. I also have no doubt that the mother verbally abused the father and provoked him during the course of their relationship.
Because of the mother’s lack of credibility as a witness and noting that she is prone to exaggeration – it is difficult to make any particular findings as to precisely what did occur during the party’s relationship – insofar as it relates to the issue of family violence. It is very apparent, from the evidence which I do accept in relation to what occurred on 1 September 2011- that both the mother and the father in fact have volatile tempers and they are willing to both verbally abuse and physically assault each other.
In paragraph 34 of the mother’s affidavit filed 10 April 2013 she states as follows:-
“34. With regard to our separation on 29 January 2011, this was caused by Mr Jeffries' Domestic Violence towards me, which had been going on for years. I finally had enough when he grabbed my daughter, E, by the throat and my other daughter, B phoned the police.”
The mother has also given evidence that the father assaulted her when she was pregnant with Z. An ultrasound record has been included at “SAJ02”. There is no doctor’s note to confirm the mother’s version. In view of the volatility of this relationship between the parents – I would have thought that there should have been a doctor’s note. I can see that the name of the radiologist is Dr L. The mother’s GP is Dr M. The Court has not been shown any note or letter from Dr M to confirm what the mother told Dr M at the time of the referral.
I note there were various other complaints made by the mother to the police against the father. The police considered in many instances that there was no evidence to support the mother’s assertions. Indeed the police went further and noted that they considered that the mother was seeking to use the Queensland Police Service for her “own betterment”.
Section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child.
It is difficult to reach a conclusion in relation to this consideration in this particular case. There is a volatile history between the parties – but the evidence of Mr J suggests that it will be in the children’s best interests to put in place orders for alternate weekend time with the father within the framework that he has recommended.
Section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant.
I listened to the evidence of Mr A. He gave evidence that the mother had verbally chastised and abused him recently in (omitted). I accept the evidence of Mr A. The mother than gave evidence later on the same day (29 May) and she specifically denied the conversations with Mr A. I do not believe the mother. I find that the mother lied to the Court in relation to that incident. This was a clear example of the mother’s willingness to give dishonest testimony.
It will be apparent that I have accepted the recommendations of Mr J which he gave in evidence on 29 May 2013. He is of the view that if the children spend the day away from the mother – namely at school on a Friday – there is then a reasonable chance that they will go to spend time with the father. Mr J concluded that the reason why the children have been unwilling to go and spend time with the father is because they have been given a negative view of the father by the mother.
Initially, Mr J was reluctant to recommend overnight time with the father because of his understanding that the father’s residence was not suitable. Mr J was, however, shown Exhibit three – namely a bundle of coloured photographs depicting the father’s residence. Upon viewing the photographs Mr J concluded that the residence was better than he had expected. He concluded that it looked like an appropriate residence where children could spend overnight time.
I also note that on 28 March 2012 the mother had applied to amend the domestic violence order in the State Magistrates Court at Toowoomba. The mother sought to amend the order by having the children added to the order. That application by the mother was dismissed by the Magistrate.
I will now return to consider the primary considerations in s.60CC.
60CC(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
60CC(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).”
I have come to the conclusion that there will be benefits for these children in having a meaningful relationship with both of their parents. There is no doubt whatsoever that the children have a close and loving relationship with the mother and that relationship shall continue. Concerning the children’s relationship with the father – I have also come to the conclusion that there are benefits to the children having a meaningful relationship with the father. In this regard I accept the recommendations of Mr J. There is enough independent, objective evidence to show that, when the children are removed from the presence of the mother – they relate very well with the father. In this regard I note in particular the first report of Mr J (and the observations he referred to therein) and I also note the entry in the (omitted) Contact Centre notes (Exhibit 11) concerning Z and the father dated 3 July 2012.
In relation to the question of protecting the children from physical or psychological harm or from being subjected to, or exposed to abuse, neglect or family violence – there are several issues in this regard. The import of Mr J’s evidence is that the children may well have suffered psychological harm from being exposed to the mother’s continual denigration of the father.
Further, it is apparent that the children may have also been exposed to harm from being exposed to family violence perpetrated by the father. This would include verbal abuse of the mother and physical abuse (in particular on 1 September 2011). As I have noted earlier herein – it is more likely than not that the father has physically assaulted the mother on other occasions. The credibility of the mother as a witness does prevent the Court from making specific findings about specific occasions. Furthermore, it is not possible for the Court in this case to make specific findings as to whether or not the children actually witnessed such events (apart from September 2011).
The evidence of Mr J is clear in relation to both the mother and the father. The mother will benefit from receiving counselling in order to address her anxiety and also to educate her in relation to the psychological harm likely to have been suffered by the children as a result of the mother’s denigration of the father in the presence of the children.
Furthermore, Mr J has recommended an anger management course for the father. Indeed Mr J notes in paragraph 8.16 of his second report that the children may benefit if the father engages in an anger management program.
Further, I have concluded that the father should receive similar counselling to the mother – to educate him in relation to the psychological harm which will be caused to the children if the father continues to denigrate the mother and other members of the mother’s family – in the presence of the children.
Section 61DA
There is no presumption of equal shared parental responsibility in this case. There is clear evidence of family violence. And the presumption therefore does not apply (s.61DA(2)).
Section 65DAA
The Court is therefore not required to consider the provisions of s.65DAA – concerning equal time or substantial or significant time with each parent.
Even if the Court was required to consider s.65DAA(1) concerning equal time – the Court would not make such an Order because it is clearly not in their best interests. In this regard I accept the evidence of Mr J. There is too much conflict between the parents. For completeness, I would conclude that it would have been “reasonably practicable” because they live quite close together.
If the Court was required to consider the question of “substantial and significant time” (s.65DAA(2)) – I would comment that – the order that is being proposed in fact probably comes within that definition. It is in the children’s best interests (according to the evidence of Mr J which I accept) and it is also “reasonably practicable” noting how close to each other the parents in fact live.
Parental Responsibility
Indeed, the conflict between the parents has been so long-standing that this is one of those exceptional cases where there should be an order for sole parental responsibility. Such an order was proposed by Mr Andrew, counsel on behalf of the Independent Children’s Lawyer. I accept that submission. Indeed I note that counsel for the father, Mr Curran, conceded the point. There should be consultation between the parents on important issues – but if they are unable to agree – the mother will have the final say.
It was submitted on behalf of the Independent Children’s Lawyer that the mother should be restrained from moving the residence of the children more than 30 kilometres from the (omitted) General Post Office. The mother indicated that she had no intention of moving more than 30 kilometres from the (omitted) GPO. In the particular circumstances of this case and noting the findings I have made concerning the mother’s denigration of the father – I have come to the conclusion that it would be in the children’s best interests to ensure that they are able to maintain a relationship with the father. This will only occur if the children remain living within a reasonable distance from the (omitted) GPO. I consider that the “30 kilometres” nominated by the Independent Children’s Lawyer is reasonable within the context of this particular case. It is probably a moot point – given that the mother has told the Court that she has no intention of moving more than 30 kilometres from the (omitted) GPO. But I consider such an order to be prudent in this case. The mother does not have permission to relocate the residence of the children to a place which is more than 30 kilometres from the (omitted) GPO.
Conclusion
It will be apparent that I have come to the conclusion that it is in the best interests of the children to live primarily with the mother and spend each alternate weekend with the father from after school Friday until before school Monday. The father will have to arrange for another person (possibly Pastor G) to collect the children on a Friday afternoon. This should be reflected in the orders. The father is permitted to stop in front of the school and let the children out at the school on the Monday morning. The mother shall not be present at any changeovers. Further, the mother is not to attend at the children’s school on any Friday which is a changeover day. This accords with the recommendations of Mr J.
Holiday time with the father will not commence until the expiration of 12 months from the date of the final order. After the expiration of 12 months the children will spend holiday time with the father in a week about arrangement.
As noted above, there will be an order for the mother to have sole parental responsibility and furthermore – the mother is not permitted to relocate the residence of the children to a place which is more than 30 kilometres from the (omitted) GPO.
I would ask that the Independent Children’s Lawyer prepare a draft order to reflect the reasons for judgment. The draft order should then be sent to the legal representatives for the mother and the father. If the parties are able to reach agreement concerning the wording of the order then such order shall be forwarded to the Court and the final order will be made in Chambers. In the event the parties are not able to agree on the wording of the final order then the matter shall be relisted for mention.
I certify that the preceding one hundred and eleven (111) paragraphs are a true copy of the reasons for judgment of Judge Howard
Date: 19 July 2013
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