Jordan and Klemmer

[2014] FCCA 2233

FEDERAL CIRCUIT COURT OF AUSTRALIA

JORDAN & KLEMMER [2014] FCCA 2233

Catchwords:
FAMILY LAW – Father’s application to spend time with the children – children aged 11 and 8 with strong views – mother admits to wanting to eliminate the father from the children’s lives – mother, her husband and maternal grandmother all involved in undermining the father’s relationship and standing of the children – mother makes false allegations of family violence – uses AVO strategically.

Legislation:

Family Law Act 1975, ss.60CC, 61DA, 65DAA

Mazorksi & Albright [2009] FamCA 520
MRR v GR [2010] HCA 4
Chapman & Palmer (1978) FLC 90-510
Beach & Stemmler (1979) FLC 90- 692
Jones v Dunkel (1959) 101 CLR 298

Applicant: MS JORDAN

Respondent: MR KLEMMER

File Number: SYC 185 of 2011

Judgment of: Judge Willis

Hearing dates: 25, 26 and 27 June 2014

Date of Last Submission: 27 June 2014

Delivered at: Cairns

Delivered on: 8 October 2014

REPRESENTATION

Counsel for the Applicant: Ms Beck

Solicitors for the Applicant: Bannister Law

Solicitors for the Respondent: Self-represented

Counsel for the Independent Children's Lawyer: Mr Sperling

Independent Children's Lawyer: Mr Gonzalez

ORDERS

1. That all previous parenting orders in relation to the children X born (omitted) 2002, Y born (omitted) 2005 and Z born (omitted) 2009 are discharged.

Parental Responsibility

1. Each of the parties have equal shared parental responsibility for major long term decisions relating to the children of the relationship, X born (omitted) 2002, Y born (omitted) 2005 and Z born (omitted) 2009 (“the children”), including but not limited to:

   (a)the children’s education (both current and future);

   (b)the children’s religious and cultural upbringing;

   (c)the children’s health;

   (d)the children’s name;

   (e)changes to the children’s living arrangements that make it significantly more difficult for the child to spend time with each parent.

2. The parties are to consult with each other about decisions to be made in the exercise of their equal shared parental responsibility as follows:

   (a)They shall inform the other parent in writing about the decision to be made;

   (b)They shall consult with each other on terms that they agree and failing agreement, the mother and father are to attend Family Dispute Resolution in order to resolve the matter; 

   (c)They shall make a genuine effort to come to a joint decision.

Living arrangements

1. The children will live with the mother. 

2. The children will spend time with the father at all times as agreed between the parents NOTING that the Court has determined that it is in the best interests of the children to spend time with their father and further, that the father is to forthwith undertake counselling to learn appropriate methods of communication with the children, given that he has not spent time with them for a period, as recommended by the Family Report writer.  The frequency and duration of such counselling is at the father’s discretion.

3. The father is at liberty to communicate with the mother to:

   (a)Discuss issues to enable him to exercise his equal shared parental responsibility with the mother in making major long term decisions regarding the children.

   (b)Make arrangements to spend time with the children, those arrangements can commence after the children have attended the Unifam program pursuant to the terms of these Orders, or commence in July 2015, whichever occurs first.

4. The father is granted leave to provide a copy of these reasons to his counsellor and to the relevant person at Unifam, or any other counsellor that the children attend.

5. The father is at liberty to send the children cards, letters, gifts and/ or photographs for each child on each of their birthdays, Christmas and Easter, care of the mother.  The mother is to do all acts and things to give these items unopened to the children forthwith upon their arrival. 

6. The mother is restrained from making any derogatory comments about the father or the cards, letters, gifts or photographs directly to or in the hearing of the children and she is to all acts and things to remove the children from the presence of or hearing of any other person doing so.

7. The mother and father are to keep the other informed at all times in writing of their current residential address, postal address, email address, telephone numbers (both mobile and landline) and they are to inform the other within 48 hours of any changes to any of the those contact details.    

8. The mother is to ensure that the father’s contact details referred to in Order 10 herein are given to the children forthwith, and that she continues to ensure they are kept aware of those contact details. 

9. The mother is to do all acts and things to facilitate time and communication between the father and the children. 

Counselling program for the children

1. The mother and father are to do all acts and things to ensure that the children are enrolled and attend The Anchor (Supporting Kids through Separation) Program run by Unifam and they are to make arrangements for this to occur in June 2015.  However, the intake procedures are to be completed forthwith by each of the parties and booking are to be made for June 2015 within 30 days of the date of this Order. 

2. The mother is to file and serve upon the father and the Independent Children’s Lawyer an affidavit no later than 14 November 2014 confirming that the relevant inquiries have been made and that all acts and things have been organised to put this arrangement in place.  In the event that the mother fails to file this affidavit confirming these arrangements, the matter is to be re-listed in relation to this issue before Judge Willis. 

3. The mother is to file and serve upon the father and the Independent Children’s Lawyer a further affidavit no later than Friday, 17 April 2015 confirming that all arrangements remain in place for the children to attend Unifam in accordance with these Orders and that the children will be attending.  In the event this affidavit is not filed pursuant to this Order, the matter will be re-listed before Judge Willis. 

4. The mother and her agents are restrained from approaching Unifam other than to comply with the terms of these Orders.

Children’s Surname

1. The mother is restrained from changing the children’s surname from Klemmer and she will do all acts and things to ensure that they are known by the surname Klemmer at all times, including for both social and formal purposes and including being shown on their records held at all schools attended by the children and doctors and medical specialists that the children attend from time to time. 

Authorities   

1. These orders act as authority to:

   (a)Enable each of the mother and father to contact any school attended by the children to obtain information about the children including but not limited to copies of all school reports for each child and request school photographs of the children at their own expense.

   (b)Enable each of the mother and father to be noted as the children’s parents on all of the children’s school records together with each parent’s contact details.

   (c)Enable each of the mother and father to attend school for all of the school events and activities to which parents are invited to attend, subject always to the discretion of the school.

   (d)Either parent is permitted to provide a copy of these Orders to any school attended by the children or medical facility and Unifam or other counselling organisation. 

2. The mother and her agents as restrained from contacting the school (or any schools attended by the children) to interfere with the operation of these Orders or to raise objection to the terms of these orders with the school authorities. 

Medical matters

1. The mother is to keep the father informed of any significant ongoing medical issues in relation to the children NOTING her obligation pursuant to the equal shared parental responsibility order herein, to consult with the father about long term medical decisions.    

2. In the case of a medical emergency involving a child/ children, the parent with whom the child is with at that time, is to forthwith contact the other parent and advise the other parent of the nature of the medical emergency and the contact details of the relevant treating medical practitioners.

Communication

1. The mother will ensure that the children will at all times have the contact details of the father including his address and contact telephone number (both mobile and landline) and email address and she is to enable the children to use any of these means to contact the father.  The father is to keep the mother advised of these details pursuant to these Orders.

2. The mother is to write to the father no less than once each 4 months commencing from the date of this Order setting out details of the children’s general activities, progress at school and their general wellbeing.  The mother is to include a photograph of the children with each of these letters.    

Other matters

1. The Independent Children’s Lawyer is DIRECTED to forthwith today explain to the children in the presence of a Family Consultant, that:

   (a)The father loves the children and is happy to see them at any time.

   (b)They are free to contact him at any time via phone, text message, Skype, Facebook, email, cards and letters and that the mother will always provide those details.    

   (c)That they will likely receive cards, letters and gifts from their father in the future and they are at liberty to send cards, letters and gifts to their father. 

   (d)That the father does not wish to place the children under any pressure, that he is aware of their views and for that reason there are no specific orders at this time for contact between them and their father, but that the Judge considers it is in their best interests to spend time with their father and it is the hope of the father that they do so in the future. 

2. For this purpose the Independent Children’s Lawyer is granted leave to provide a copy of these reasons to the Family Consultant. 

3. The Independent Children’s Lawyer is directed to forward a copy of these Orders to the children’s school noting that the children are to be enrolled and known as the surname Klemmer.

4. Either party has liberty to have the orders herein reviewed in relation to the children’s living and spending time arrangements on or after February 2016, by filing an initiating application and affidavit.

5. In the event that the mother does not comply with Orders 11, 12 and 13 herein, the matter is to be relisted before Judge Willis.

6. The mother’s legal representative is directed to explain to the mother the terms of these Orders and her obligations of s.65DA(2) today.

7. The solicitor for the mother is to file and serve a short affidavit within 7 days of today’s date confirming that the Orders and the obligations of s.65DA(2) have been explained to the mother.

8. The Independent Children’s Lawyer in the absence of any further applications will be discharged in August 2015.

9. All outstanding applications are removed from the pending cases list. 

NOTATION:

A.The Court has determined that it is in the best interests of the children to spend time with their father. 

B.The only reason that this Court has not made more specific orders in relation to the father’s time is in acknowledgment of the current views of the children however, findings have been made by the Court that the mother, her husband Mr C and the maternal grandmother have actively undermined the father’s relationship with the children contrary to their best interests. 

C.The Court has made findings that the mother and the maternal grandmother have given false evidence about alleged family violence by the father.

D.Findings have been made that mother has not complied with Court Orders for the children to spend time with the father and has been obstructionist in relation to allowing a relationship between the children and the father to occur.

E.The Court notes also the mother’s use of false family violence allegations (including harassment and threats) against the father in these family law proceedings were strategic. 

F.The Court has directed the interpreter to translate the reasons for judgment to the father after Court today. The Orders have been translated for the father in Court today as they were pronounced.    

G.That pursuant to section 65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these Orders.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYC 185 of 2011

MS JORDAN

Applicant

And

MR KLEMMER

Respondent

REASONS FOR JUDGMENT

1. The parties in this matter have three children, X born (omitted) 2002 currently aged 11 years, Y born (omitted) 2005 currently aged 8 years, and Z born (omitted) 2009 currently aged 5 years (“the children”).  

2. The children are of mixed racial heritage with their mother, Ms Jordan (previously Ms Jordan, now remarried) being born in Australia her mother being (country omitted).  The father, Mr Klemmer, was born on (omitted) 1980 in (country omitted) and grew up in the 1980’s and 1990’s during the (country omitted) war.  The father came to Australia in April 2002 and was granted Australian citizenship in around 2005 or 2006.  He is a (occupation omitted) by trade, and more recently has taken on (occupation omitted).  In terms of religion, the father says he is (religion omitted). 

3. The parties were married in (country omitted) on (omitted) 2001. 

4. The mother says that between the years 2002 and 2009 that she and the husband and the children lived with the maternal grandmother, Ms D at her home in (omitted).  The mother says her niece also lived in the house and that herself and the husband and their two children X and Y at that stage, all slept in one bedroom together.  The parties had their third child Z on (omitted) 2009.

5. The parties separated in May 2010.   

6. Five months later on 13 October 2010 the mother said whilst she previously used the surname Klemmer, upon her marriage to the father, she legally changed her surname to her maiden name, being (omitted).  I note in the Affidavit filed 6 June 2014 that the mother has used the name Ms Jordan, which is now her surname given her marriage to her second husband Mr C.  In November 2010 the mother resumed her relationship with her former boyfriend Mr C.    

7. The mother’s husband Mr C swore an Affidavit in these proceedings describing his parentage background as Australian, of (country omitted) background.  Mr C says that he first met the mother about 16 years ago when they were romantically involved but that their relationship did not develop into anything serious as they were too young and eventually they parted ways.  He says he did not keep in touch with the mother much, as he had his own family.  He was in a de facto relationship until 2005 and has two children from that relationship.  Mr C says that in November 2010 the Applicant mother and he started seeing each other again and their relationship developed from there.  The mother fell pregnant with Mr C in early 2012.  

8. The mother married Mr C on (omitted) 2012 and at that time, he moved into the mother’s house at (omitted).  In terms of religion, Mr C says of his religion, that he is a (religion omitted). 

9. About six weeks later on (omitted) 2012, twin boys were born to the mother and Mr C. 

10. All of the children have lived with the mother since separation and now they live as part of a blended family with the mother, Mr C and the twins aged around 19 months at the time of trial.

11. As to the children’s religion, the mother, who seeks sole parental responsibility, says the children have undergone no religious education or upbringing other than scripture at school.  The mother says she wishes to raise the children to be neutral, to have no religious upbringing other than to respect all religions.  In terms of religion, the mother says her father is (religion omitted) and her mother is (religion omitted).  The mother’s father now lives in (country omitted) and it seems he and Ms D are divorced.    

12. Since separation, for reasons which I will expand upon in elsewhere in this judgment, the father’s relationship with his much loved three daughters has broken down.

13. At separation the children remained with the mother, and for a period the father saw the children (for about 45 minutes per week) which the mother permitted provided the father bought cash $500.00 - $600.00 for support of the family. 

14. Since the matter commenced in this Court in 2011, despite various orders being made for the children to spend time with the father, the appointment of an Independent Children’s Lawyer (“ICL”), orders for family therapy and supervised contact, all attempts by the father to spend time with the children have been unsuccessful.

15. In essence, the father has not spent time with his children since July 2011, 3 years ago, apart from one brief period in a supervised contact setting.

16. At the trial of this matter, the father sought orders to see his children each alternate weekend and half the holidays which generally, would be seen as an order for modest time.  He also seeks an order for equal shared parental responsibility and is strongly opposed to an order for sole parental responsibility to the mother.  At the end of the trial, the father who was self-represented and whose first language is not English, (using the Court appointed interpreter on and off throughout the trial), conceded with sadness and exasperation that future time with his daughters was going to be very difficult given their current views and their attitude towards him.  He submitted that the children’s current attitude has been strongly influenced by the mother and the mother’s husband Mr C and Ms D.  The father also submits that Ms D has used the system to ensure that he has no relationship with his daughters.  As will be seen in these reasons, the father’s assertion is borne out by the facts.

17. The mother sought orders that she have sole parental responsibility and that the father be restrained from attending the children’s school, as the father has done in the past.  Whilst the mother through her Counsel denied that she was seeking a “no contact” order, she in fact offers no opportunity at all for the children to spend time with the father.  The mother does not suggest that the children even spend special occasions with the father, such as birthdays, Father’s Day or even one day at Christmas or any other day of the year.

18. The mother’s position is that the children and in particular X and Y have expressed strong views not to see their father and that no contact should be ordered.  She is opposed to the orders sought by the father for regular time between the children and the father.  The mother is in fact opposed to any time at all between the father and the children.  The mother asserts that if the children have the father’s phone number, that they can ring him if and when they choose to.  The mother simply asserts that, “sometime in the future, they can see him.”  The children at the time of this trial are 11, 8 and 5 years of age.  

19. The mother says that she has been the victim of family violence perpetrated by the father and that she obtained an AVO because of his violence.  She accuses him of being a drunk.  The mother sought Orders at the commencement of the trial, and right through to the final submissions, that she wanted to change the surnames of the children from Klemmer to the surname of her second husband “Jordan”.  The mother’s evidence was that X and Y each really wanted to change their surname to be like “the twins,” a reference to A and B born on (omitted) 2012 the children of the mother and Mr C.  The mother was not seeking a name change for 5 year old Z, saying she can make up her own mind when she gets a bit older.   

1. At the end of the trial, without explanation but having heard the ICL submission that he was opposed to the order, the mother through her Counsel said she did not press to change the surname of the children.  The mother however, seeks an order for sole parental responsibility.  So to avoid any further litigation on this aspect of the parenting issues, and because of the Court’s findings about the mother’s attitude towards parenting, this judgment will address the issue of the proposed change of surname, which is strongly opposed by the father.

2. In these reasons, statements of fact represent findings unless indicated otherwise. 

The Law

1. This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).

2. In making parenting orders, the best interests of the children are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”.  Her Honour stated:

   “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).’ 

3. Section 61DA refers to a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse or family violence. The presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.

4. When I determine the best interests of the children, I will consider the additional considerations set out in s.60CC(3). I will consider and evaluate each of the party’s proposals for care of the children including the significance of the primary considerations in s.60CC (2) according to the legislative pathway. Reference will be made to parental responsibility and s.65DAA(5) and the issue of reasonable practicability s.65DAA (5) and the issues referred to in subsection (a) through to (e) in arriving at the ultimate conclusion.

5. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked. In MRR v GR [2010] HCA 4, on 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is both in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.

6. The mother seeks and order for sole parental responsibility and the father seeks an order for equal shared parental responsibility.

7. Amendments were made to the Family Law Act 1975 incorporating the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011. Those provisions which have been amended in regard to Family Violence apply to matters filed on or after the commencement date of 8 June 2012.  This matter was commenced on 14 January 2011 in the Federal Circuit Court of Australia and therefore the new provisions in Schedule 1 do not apply.

8. I have had regard to the documents relied on behalf of each party, their oral evidence, their respective case outlines, the exhibits and the closing submissions made on behalf of each party.

Witnesses

The Mother

1. The mother gave evidence and was cross examined.  Unfortunately, the mother was a very unimpressive witness.  It was clear that the mother adopted a technique of giving global commentary of her views of the father rather than answering questions responsively.  When she was questioned carefully about the facts and particulars underpinning her conclusions, as she was by Mr Sperling of Counsel for the Independent Children’s Lawyer (ICL), the mother could not give particulars.  The mother, like her new husband, also had a very poor recall of incidents and events.  This was particularly so in regard to events that she ought to have been able to give a factual explanation about relating to alleged Family Violence.  For most of the evidence the mother appeared bored, irritated with the father, emotionally cold and dismissive of the father.

2. It seemed to me the mother had learnt to recite certain mantras that were routinely given in answers under cross examination.  They included “he was abusive, he abused me.”  When pressed under cross examination as to what behaviour of the father’s constituted abuse, typically this was explained as the father asking the mother to see the children.  These requests were made by the father at a time when the mother was refusing to allow it.  The Court having heard the evidence about alleged violence and the mother’s application for an AVO finds the mother’s evidence most unconvincing.  Allegations that, “He threatened me” which was referred to by the mother amounted to the father telling the mother he wanted to have contact at the contact centre.  Evidence of the father “harassing her” actually referred to the father constantly asking to see the children when he was not being permitted to do so and which he was ultimately denied for three years. 

3. I am satisfied that the mother holds the father in contempt and that she holds firmly entrenched views that the father should not be a part of the children’s lives.  This was made abundantly clear throughout her evidence and never more so than when the mother agreed that she wanted the children’s surnames changed so that she could eliminate the father from their lives.  The mother’s basis for wanting him eliminated from the children’s lives is primarily that “he was never there.”

4. Whilst the mother claims to be fearful of the father, the Court observed the mother to be impatient and dismissive towards him.  The mother knows the father well, and has relied on his mannerisms to support her alleged “fear.”  The Court observed that the father has mannerisms such as a smile on his face at what appears to be inappropriate times.  At the beginning of the trial, noting that the father seemed to be smiling and shaking his head, the Court queried with the father what was funny about the mother taking an oath and swearing to the truth of her affidavit.  The father said that he did not understand how the mother could swear to the truth of the affidavit when it was so untruthful.  As the trial proceeded over the 3 days, during the mother’s evidence she asked the Court to tell the father to stop smiling or laughing.  The father again said he did not understand how the mother could tell such lies.  The father was self-represented at the trial.  He has not it seems, had the benefit of long term community social worker support as the mother has had. 

5. The mother along with Mr C, has left it up to the children, to decide if the children call Mr C “dad” or not.  Mr C gave evidence that he has left it up to the children as to whether they wish to call him dad, saying he told the children “If you want to call me dad, call me dad.”  Mr C and the mother continue the practice of permitting the children to call their biological father by his given name Mr Klemmer. 

6. Mr C has a laidback attitude to his relationship with his 2 children from his previous relationship saying it is the children’s decision if they wish to see him or not and when they get old enough they might change their minds.  This is the precisely the attitude the mother has now adopted in relation to the children of this relationship and their father. 

7. Added to this, the mother along with Mr C and the maternal grandmother, have all acted proactively to undermine opportunities set up by the Court for the children to spend time with the father, and when the father reacts through frustration at this ongoing obstruction, response is then used to have him reported to the police; or to attempt to have him breached in regard to the previous Apprehended Violence Order.  Alternatively it is put forward as further reason why the children do not wish to see him, such as when he and the children were having supervised time at Phoenix Rising, and that time was interrupted by the mother and Mr C. 

8. The mother has been assisted throughout this process by a social worker.  The mother said, “my social worker supported me throughout my marriage and after the marriage and the kids were very close and comfortable with her.”  I am satisfied that the mother and the social worker, have exposed the children to her negative and dismissive views of the father.  The mother admitted under cross examination that when she has been having ongoing discussions with her social worker about the father that Y has been present at the time and that Y would go with her mother to see the social worker.  When asked what was the purpose of Y speaking to her social worker, the mother replied that she was not sure why she organised for this to occur.  The mother showed no insight into how inappropriate and harmful it is to have any such discussions in the presence or hearing of a child.  There was no evidence of the social worker asking the mother to cease talking about such matters in the presence of hearing of the child.  The mother explained, her social worker has been supporting her during her marriage and at the Domestic Violence Court, and through the litigation and she was in Court all through this trial. 

9. The parties were also ordered by consent in November 2013 to have the children attend supervised time with the father at the Sydney (religion omitted) contact Centre two hours, every second weekend.  At the time of trial this had not happened.  The parties were on a waiting list, however pending that time occurring, the Orders provided for the father to have three hours each second Saturday at Phoenix Rising (a private contact centre).  The parties were ordered to follow all directions of the Centre. I am satisfied that no reasonable attempt to comply with orders for the children to spend time with the father has been made by the mother and that there is no reasonable excuse for the Court Ordered processes not to have occurred.  Having heard the evidence regarding the failure of the children and the mother to participate in family therapy I am not satisfied that there is any reasonable explanation as to why the family therapy proposed and organised by the ICL with Dr L did not occur.  I am satisfied that the process was sabotaged by the mother.

10. On arrival at Phoenix Rising, Mr C and the mother in the presence of the children, stated to the supervisor, that the children might not feel comfortable with the father and that he and the mother would stay in the area.  He admitted that the supervisor asked he and the mother to go and come back later.  He and the mother did not go.  Mr C said it was raining, but under cross examination, admitted that he could have gone to other covered areas in the complex away from the contact centre. The mother and Mr C did not leave the area.  They remained within the centre and just happened to appear when the father, the supervisor and the children were enjoying themselves in a public area within the larger area in which the contact centre was housed.

11. At the time this order was made, the father had not seen his children for two years and the orders noted that the previous orders for supervision had not occurred.  Naturally, when the children saw their mother and Mr C during the Phoenix Rising session they ran off to her. 

12. I am satisfied that the mother and Mr C, remained in the contact centre area in order to disrupt the father’s time.  I am also satisfied that the mother and Mr C gave distorted and untruthful evidence about the actual incident and the father’s reaction.  Their versions were factually inaccurate.  Based on their own descriptions the father was left behind with the children running away from him.  I accept the father’s evidence that he said words to the effect “just let them go” to the supervisor who tried to recall the children.  I also accept the father’s evidence that Mr C made remarks directed at him. 

13. Mr C’s gave evidence that tried to sheet home to the father, the children’s distress.  His evidence of the father failing to comfort the girls when they all ran off to the mother and Mr C during the supervised visit was clearly illogical and false.  The children ran away from the supervisor to the mother and Mr C.  There is no way the father could “comfort them” as he was left behind.  I reject Mr C’s evidence that he did not get “angry” in the presence of the children and supervisor.  Mr C changed his evidence on this topic admitting he got angry and then denied it.

14. I also do not accept Mr C’s evidence that during this incident the child X pushed away Mr C’s arm as she “thought” it was her father.  At this stage, her father was well away from her physically and Mr C knew that.  Mr C is in my view most unwilling to encourage a relationship with the father.  In fact, he has sworn in his affidavit that the father is “ridiculous” and that his behaviour is disruptive to his family.  The Court’s view is that Mr C has, together with the mother, acted to disrupt and prevent the children’s having a relationship with the father. 

15. Whatever the father does to follow Orders of this Court to enable his relationship with the children to build he is criticized and the process is sabotaged.  

16. I have referred to the domestic violence allegations specifically elsewhere in this judgment.  Overall, I am satisfied that the mother has exaggerated and distorted the truth in regard to these allegations. 

Ms D, Maternal Grandmother

1. When this matter first came on in the then Federal Magistrates Court, Orders were made in November 2011, that the children live with the mother and spend time with the father, supervised by the maternal grandmother.  Knowing what the Court now knows of the maternal grandmother’s strongly held negative views of the father, the selection of the maternal grandmother as a supervisor was highly inappropriate, as she is totally aligned with the mother and has herself been actively undermining the father’s role in the lives of the children. 

2. The maternal grandmother gave evidence that mirrored the mother and Mr C.  Each of these witnesses repeated certain derogatory themes which involved criticisms of the father both during and after the marriage breakdown.  The father was described as “never being there for the children and a drunk.”  The maternal grandmother, who spoke with the assistance of an interpreter (who spoke both her language, (country omitted), and who translated the father’s questions in (country omitted)), said that in her mind the father had no right to ask why his daughter was going to the doctor when he asked about that in November 2013, in a chance meeting on (omitted).[1]  The grandmother could see no advantage to the children in having a relationship with the father. 

   [1] Transcript 26/6/14 page 126, lines 10-35.

3. The maternal grandmother asked the Court to direct the father to stop smiling/ laughing at her too, however when she asked the Court to do so, the father was not doing either of those things. 

4. I accept the evidence of the father, that while the maternal grandmother was supervising pursuant to Court orders of 4 April 2011, she engaged the children in a discussion about who they loved the most, “Mr Klemmer” as the children, the mother and the grandmother refer to the father as, or Mr C.  This incident is set out in the father’s Affidavit.  Her conduct amounts to direct action in terms of undermining the father’s role in the children’s lives and encouraging the children to just replace him with Mr C. 

5. The maternal grandmother spoke quite softly when she was questioned by the ICL’s Counsel.  When she was questioned by the father, she frequently gave loud and animated answers, almost shouting while scoffing at the father.  It was clear to the Court that the maternal grandmother has strongly held grudges and animosity towards the father. 

6. The grandmother has herself been quite instrumental in having the father dealt with by Police, as a result of their meeting on (omitted) when she took X to the doctor in 2013.  The grandmother gave a vague and inconsistent account of her meeting the father in the street and of the father allegedly chasing them along the street and running around the car and yelling out to X insulting her, saying that “You are stupid, you’re mentally ill in the head.”

7. The grandmother, who is from (country omitted), gave what I regard as an exaggerated and inaccurate account of that incident.  The maternal grandmother gave inconsistent versions of the events.  I do not accept her evidence that the father intimidated her or X as she alleged.  I do not accept that the father called out insults to his daughter that she was sick in the head, stupid or any other insult. 

8. The maternal grandmother barely speaks English.  She and the father obviously know each other well even though the grandmother and he don’t speak the same language.  The Court did not realise this until the interpreter asked that the father slowdown in his questions, as the interpreter had to interpret the father’s question in (country omitted), into (country omitted) for the maternal grandmother and then back to (country omitted) for the father and back into English.  Apart from anything else, the Court has no confidence that the maternal grandmother could actually repeat in English what she alleges the father said in English. 

9. The Court also accepts the father’s evidence of the happening that day in (omitted).  The father recounted that he saw the grandmother and his daughter, he asked his daughter what was wrong and the grandmother responded that the father had no right to ask.  The grandmother’s second version of events closely coincided with the father’s evidence and contradicted her earlier version. 

10. Under cross examination, the grandmother when pressed, admitted that X spoke quietly with her father and he to her.  The grandmother reported her false version of events to the Police.  I am satisfied she did this to cause the father further difficulties with the Police and in the hope of having him breached.  The police told her there was no longer a domestic violence order in place and that “Ms Jordan will have to see Mr N as he did her DVO before.” The father rang the grandmother when she was at the Police station, and she put the father onto the Police.   The Police decided to take no action. 

11. On another occasion the grandmother’s complaint was relied on by the mother as a breach of the AVO, but ultimately her evidence was not accepted by Police and/or the Magistrate hearing the matter.

12. I have a strong impression that the grandmother and the mother have made exaggerated reports to the Police in order to sustain/obtain an AVO.  I am also satisfied that the AVO has then been used as a basis of no contact.  The grandmother also complained to police that the father was coming to her house to see the mother and children.  The grandmother cannot say she has seen the father outside her house as alleged on 16 November 2012.  The grandmother “just knows” it was him.  I do not accept this.  The grandmother admitted she had also reported the father to police for attending at X’s school, (which he did with permission of the school) to see his daughter at a time when he had no other way to see his children.  The grandmother agreed she had decided it was up to her to make this report and possible breach of AVO and she said the mother knew she was doing this. 

1. When she was cross-examined by the ICL’s Counsel, with the use of an interpreter from time to time, the grandmother appeared reasonably co-operative though she gave what sounded like rehearsed evidence basically that the father “was never there” and “he had no right to know why his daughter was going to the doctor.”  When the grandmother answered questions from the father, she became very loud and agitated and spoke fiercely to the father in her native language and some English, in a disdainful and dismissive manner. 

2. In terms of the grandmother communicating with the children, it is her own evidence that the children (her grandchildren) do not speak (country omitted) and therefore she tries the best she can to communicate with them in her broken English. 

3. The maternal grandmother is unfortunately not able to adopt of neutral stance in this conflict.  I am satisfied that she has helped the mother whenever possible, to further alienate the children from the father.  The grandmother holds a very poor view of the father and like the mother I am satisfied that she has absolutely no interest in genuinely ensuring or wishing that the children had a relationship with the father.  I consider that the grandmother has been prepared to distort the events in order to further ensure that the father does not spend time with the children including reporting false or exaggerated incidents to the police. 

4. Significantly, also I note in the grandmother’s material that post separation she has implied that the father has been engaging in what amounts to paedophilia with the children.  The father confronted her about the allegations when he received a letter from the mother’s solicitor setting out allegations made by the maternal grandmother, the maternal grandmother denied that any such thing occurred.  I accept the father’s evidence that he received a letter as he stated in his evidence, suggesting improper behaviour with the children.  The father said he had a letter on 7 June 2011 from Legal Aid, who acted for the mother, stating that the maternal grandmother had made such allegations. 

5. I accept the evidence of the father also that the grandmother, when she was a supervisor, engaged in encouraging the children to choose who they loved/liked the most, their father or Mr C in the presence of the children and the father.  Her denials on this topic were unconvincing. 

6. As I have already noted, the grandmother gave false evidence in the Magistrates Court about an incident in which she was endeavouring to have the father breached under the AVO and neither the Magistrate nor the Prosecutor accepted the grandmother’s evidence.  Having heard the father’s evidence, recounting precisely what happened, the Court accepts the father’s version of events.  The father’s evidence is that since arriving in Australia, he has had the view she did not approve of him, or like him.  On the evidence before the Court, that would be an understatement. 

7. I do not accept what the grandmother alleges the children have said to her about not wanting to see the father, as alleged by her.   

8. Overwhelming, it was apparent that the maternal grandmother has no respect for the father either as a husband or a father.  Her attitude towards him suggests she regards him with contempt and she dismisses his existence.  The grandmother also has no concept or awareness that the children are entitled to have a relationship with their father, and she is mystified why he ought even be told why his daughter is going to the doctor.

9. The Court is most concerned at the attitude of the maternal grandmother towards the father and her preparedness to actively encourage the children not to have a relationship with their father.  This is a significant issue in determining the future parenting orders in relation to the children.

Mr C, the mother’s husband

1. Mr C stated his occupation as an (occupation omitted), however said that he was no longer at work and that he spent his time helping at home with the twins and the other children.  Mr C is a quiet man, gullible and slow thinking.  Many times during his evidence he was so quiet and slow and lacking any spontaneity.  He appeared lifeless or trance like. 

2. Mr C gave his answers very slowly and thought for a noticeable period of silence before answering questions.  He also had a very poor recall on issues which had occurred even in the last year or two.  So noticeable was Mr C’s poor memory and slow responses, that the Court inquired if Mr C had suffered a brain injury in his life.  Mr C said yes he had, and that it occurred in a serious motor vehicle accident in 1992.  He said his doctors told him he would likely suffer memory and recalling difficulties.  This was quite apparent in observing Mr C under cross-examination, though it was not explained in his own evidence or in his discussions with the Family Report writer. 

3. Mr C also has two other children from his previous relationship with a former “girlfriend” and they are C and D.  At the time of his separation with their mother, C was aged three and D was a newborn.  Currently, Mr C is not seeing his children at all.  Mr C says his former “girlfriend” is the primary carer of those children.  There are Court orders in place for Mr C’s children to spend each alternate weekend with him, however Mr C says for “family reasons” he is not seeing his children pursuant to the orders.  “Family reasons” was later explained as being because Mr C’s parents want him to see the children at their place, and to do so with the mother of his children who retains close ties with Mr C’s parents.  Mr C says “I have moved on” and that he is not going to see his children on those terms.  Mr C says he is no longer on good terms with his parents.  As a result, it seems Mr C has not seen his children at all this year and that instead, his parents are spending time with his children during what would otherwise be his time as set out in the Court Orders.

4. During the trial, the Court asked Mr C if his parents were critical of him for seemingly walking away from his own children and instead, taking up with and living with the mother and X, Y, Z and now his twins.  He denied this.  Mr C said his older children came to the home of Mr C and the mother for one or two weekends however that did not work out successfully.  Mr C denied it would have been crowded with seven children at the home (the three girls, the baby twins and Mr C’s two other children) on a weekend, saying there were four bedrooms.  The Report Writer said Mr C’s children could accept their father’s new relationship and the arrival of the twins.[2] 

   [2] Transcript 26/6/14, page 173, line 43.

5. Mr C gave evidence that he spent time with the three girls, X, Y and Z and that he was very close to Z, given that when he arrived on the scene Z was only about one year old.  When asked why it was that he was doing a lot of the caring of the girls instead of the mother, Mr C replied that he was doing so because the mother was “a little bit sick.”  I have noted in this matter that the mother has suffered from some medical conditions pre and post birth of the twins.  I have no doubt that the rigour of parenting twins is a significant obligation and overwhelmingly time consuming. 

6. I am unsure as to how the relationship between the children and Mr C will unfold as the girls become older.  When the father cross-examined Mr C, he admitted that when X misbehaved and he refused her request to keep playing ball, that this resulted in X running away out of the house.  Mr C gave evidence about this incident but I note he had trouble even remembering when it happened.  Mr C admitted that X is a strong willed girl. 

7. I had the impression from Mr C that he and the mother are under a heavy load in terms of parenting the twins as well as parenting the three girls.  Although I note the Family Report that the girls have a good relationship with Mr C, I do have doubts that as they become older Mr C would be able to exert parental control over the children.  I am not satisfied that Mr C has the capacity or parenting experience to handle challenging behaviour of three children, not being his own, particularly the strong willed X.  Mr C is from a very different cultural background to the girls being born in Australia of (country omitted)/ (country omitted) parents.  I consider that there is plenty of scope for discord particularly if, as given in the example by Mr C, he is unavailable to the girls and the mother is unavailable, given the significant obligation on them both by the household with the twins. 

8. What was also very apparent from Mr C’s answers in cross-examination was his total acceptance and support of the mother’s attitude towards the father.  Mr C mirrored the mother’s evidence and that of the maternal grandmother about issues and events he had not seen himself in the marriage and had only been told about.  He also had his own naïve view that if the father genuinely loved his children, he would have bought them Christmas gifts and birthday presents.  In the circumstances of this matter I consider to be rather simplistic and immature attitude having seen the conduct of Mr C and the mother.  I have no doubt that any attempt to provide presents would have resulted in that gesture being used against the father.  This is particularly so, given that the attempts to have contact with the children via the mother have been used to breach the father under the AVO.  The mother and/or Mr C have also ensured that the proposed contact at Phoenix Rising Contact Centre was sabotaged. 

9. Mr C showed no sign of showing any understanding of the effect upon the father of his own behaviour such as after a Court appearance on 29 May 2014.  Mr C admitted his own actions in driving the car in which he and the three girls were travelling, winding down the windows and loudly shouting out to the father who was on the street. 

10. Mr C did this for no other reason than to shout out to the father.  Given that the children spend no time with the father, I consider this conduct juvenile, and humiliating.  Mr C sent a strong message to the children that their father is an object of ridicule.  The father gave evidence that Mr C called out names such as “(omitted).”  I accept that this occurred.  I reject Mr C’s explanation that he was just saying “hello” to the father and I consider his response that “if it happened to him in the same situation he would have just waved back” as being disingenuous. 

11. Mr C does not even know the father, his evidence being that he met him through Court.  Mr C admitted he had done the same thing on (omitted), winding down his window and calling out to the father.  Mr C denied calling the father names on this occasion and said he would have called out “Hey Mr Klemmer” or “Hi Mr Klemmer” or “Hi Dad”.  I am most alarmed at the lack of insight shown by Mr C in not being able to understand the derogatory nature of his conduct.  It is also alarming to read that Mr C describes the father’s behaviour as being “ridiculous” as set out in his Affidavit. 

12. Mr C relies on what he has been told by the mother or maternal grandmother to justify criticisms of the father about events that occurred post separation of which Mr C has no first-hand knowledge.  He has accepted these versions without question.  

13. Mr C is now the father figure in the mother’s household, so his influence and own poor role modelling and his willingness to adopt without question the mother’s attitudes and those of the maternal grandmother regarding the father, precludes any opportunity for any unbiased view of the father to survive in the mother’s household.  Mr C is fuelling the current strains in the children’s relationship with the father.  

14. Mr C’s rather simplistic views fail to acknowledge the father’s distress and frustrations at having no time with the children.  Unlike Mr C, the father has not been prepared to just move on and cease seeing his own children. 

The Father

1. The father who is (country omitted) and who needed a translator on and off over the three days, seemed to be overwhelmed at times when he tried to explain or answer questions which he clearly felt strongly about.  A significant source of frustration was the injustice was how he encountered a lengthy delay in attempting to do the courses he was ordered to do, which had to be completed before he could see his children, according to Consent Orders.  His frustration and sadness was palpable.  The delay in these courses was 9 months after that there was a waiting list at the contact centre.  Orders providing for the father’s contact in November 2011 were still not operating 16 months later.  At the time of final hearing the father has not spent any meaningful time with his children for 3 years despite having Orders that he have supervised time and family therapy. 

2. The father as the Court observed over 3 days is quite demonstrative and emotional in his body language and gesticulations.  When he tried to explain his feelings or experiences in depth and he could not do so in his English, he sought assistance through the interpreter in his native (country omitted) to express himself. 

3. The father was also frustrated at what he perceived to be the mother using the system against him in terms of obtaining Apprehended Violence Orders based on false allegations or the parties being  ordered to be referred to counsellors and then to find that the mother attends with her support workers, who the father considered were all part of the same community. 

4. Whilst the father is portrayed by the mother as intimidating and harassing towards her, I am satisfied that the father has been on the receiving end of the mother’s manipulative behaviour in preventing the father and the children having their own relationship at each step.  This includes the mother taking out an AVO based on her allegations of harassment and which the father consented to, as a self-represented litigant who spoke little English.  The father said the Police Officer told him to consent without admissions. 

5. This Court, unlike the State Court, has had the opportunity to hear the mother’s initial allegations against the father tested by way of cross examination, and to hear the father’s version of events.  All of the mother’s allegations need to be seen in the context of the mother being obstructionist and finding ways to undermine the Court process.  The father, despite complying with the orders and requirements agreed to in consent orders of this Court for years, has not been successful in having a relationship with his children.  The Court is satisfied that the mother and others close to her, have been actively undermining the process to ensure this outcome.

6. The mother has been assisted in her endeavours by Mr C and by the maternal grandmother.  The mother gave evidence she has also been assisted for years at every step from her social worker, who sat in Court throughout the trial.  

7. This Court is not satisfied on the balance of probabilities that the father has engaged in the behaviour alleged by the mother.  The mother has it seems to me largely relied on the father’s demonstrative behaviour to justify being in fear to validate her obstructive conduct. What has really happened is that the mother has obstructed the Court’s processes and when the father has been frustrated, he has become loud or annoyed.  He struggles to express himself in English.  His reaction is used against him to justify the mother’s obstructionist behaviour and say there ought to be no contact.

8. This process has kept occurring over the best part of three years.  The mother’s mantras about the father that he “does not deserve to have a relationship with the children because he was ‘never there’” during the marriage, are repeated many times by the mother in her oral evidence and cross examination. 

9. Under cross-examination the mother admitted when giving evidence about why she wanted to change the surnames of X and Y, (but not Z), which included that the children themselves wanted to change their names to the surname of Jordan.  Whilst it seemed illogical or ill-considered to suggest as the mother did, that she would have three daughters, two of them who would have the surname Jordan and the youngest child could choose when she is old enough to, it was suggested by Mr Sperling of Counsel for the ICL that the mother was “seeking to eliminate the father from the children’s lives.”  The mother agreed with this proposition. 

10. When asked why the mother stated, “that because he was never around to them in the beginning.  He has never been around.  I’ve done everything on my own.  I’ve looked after them.  Schooling.  Everything on my own.  So I believe I should have sole parental rights to them because I’ve been there.  He has never been there for them.”[3]

    [3] Transcript, 25 June 2014, page 78, lines 20-30. 

11. This mantra was repeated many times by the maternal grandmother and also Mr C.  Unsurprisingly, it was stated also by the children. 

12. On being questioned about the details of “never being there” the mother said during the marriage that the father worked away, out of town, as a (occupation omitted).  The father agreed that he did work away from time to time, in places such as (omitted) or (omitted), but said that he would come home on weekends when he could afford to, as he did when he worked in (omitted).  The mother’s evidence was generalised and unconvincing on this topic, as with most of her evidence.  The mother appeared to be callous, unemotional and quite clinical in giving her responses.  I had a strong impression that the mother has wiped the father completely from her own life and is very keen to do the same in terms of any life that the children might have with the father. 

13. The mother also repeated over and over that the father was a drunk.  The maternal grandmother said the father was a drunk who used to come over to her house after separation and sit on her steps or outside her house and leave beer cans. She could not, however, give evidence as to specifically when this occurred and said “all the time” and that she just knew that the father left bottles/cans out the front of her house, even though she had not seen him do this.  As I have said, the maternal grandmother, like the mother, gave very non-specific evidence and instead tended to launch into global criticism of the father, repeating the mother’s mantras. 

14. At the first hearing, orders were made for the parties to attend upon a Family Consultant on 7 April 2011 for a Child Dispute Conference.  The parties attended on a second occasion on 1 June 2011.  The mother, father and three children attended a Child Inclusive Conference on 26 September 2011. 

15. Because of those assessments, the time with the father was recommended to be re-introduced on the basis of supervision initially. 

16. Orders by consent were made on the next return date of 22 November 2011 for the father to spend time at a supervision centre because of the difficulties experienced by the children and the father.  At that stage, the father was ordered to have supervised time at a Sydney (religion omitted) care contact centre, however before this commenced the father had to enrol and complete the “Taking responsibility course” at Relationships Australia, or the “Family safety program” at the (omitted) Centre.  It took the father almost 9 months to ultimately be able to produce the certificate required.  I accept that as seen in the subpoenaed material, one of the courses was no longer available and that the course he was directed to do, initially, was not the course that had been specified in the orders.  Ultimately too much time was lost which delayed the father spending time with the children

17. Both parties were legally represented when this order was made.  Inquiries as to whether the courses were available that the father was to complete as set out in Consent Orders, ought to have been made before the Consent Orders were entered into.  I am satisfied that the father did everything he could to complete the counselling course he agreed to under the consent orders.  The father filed an affidavit on 31 October 2012 annexing certificates and referring to delay in (omitted) Contact Centre and there being no vacancies.  The affidavit concluded with “I have not spent time with my children since in our about June 2011, a period of 16 months.”

1. For a period in 2011 the maternal grandmother was supervising pursuant to consent orders.  The father gave evidence of Ms D discussing and debating with the children, in his presence, who the children did and did not love most, the father or the mother’s new husband, Mr C.[4] I accept that this occurred.  This undermining of the father’s role by the maternal grandmother was done overtly.  I accept the father’s evidence of the maternal grandmother calling a halt to the father’s time earlier than the times agreed to. 

   [4] Affidavit of the Father filed 18/11/11, paragraph 37.

2. The orders also restrained the father from attending at the children’s school at (omitted) Public School, which he had been doing in order to see X.  There is no evidence other than the mother’s, that X was distressed by these visits.  But in any event, I accept the father’s evidence in this regard.  The evidence of the father was that she enjoyed the visits and the Court has seen a photograph of the visits showing a happy child.  The father’s evidence about his relationship with the school was that he got on well with the principal and teachers and that he was happily a part of that school community. 

3. Further interim Orders were made on 13 November 2013 for the father to spend supervised time with the children at the (omitted) Contact Centre, and that pending the children spending supervised time with the father at the centre or if that centre became unavailable or the father should elect to do so he would spend time supervised with the children for three hours each second Saturday supervised by private supervising service Phoenix Rising.  Reports were also ordered from Phoenix Rising and the father was to be solely responsible for the costs of those reports and the use of the centre. 

4. The mother was also ordered to enrol the children in (omitted) and the father was permitted to attend at (omitted) at the sole discretion of the supervisor of the programme from time to time and the mother and father were to follow all directions and recommendations of the (omitted) program with the father to bear the entire costs of this program and the reports. 

5. At the time of making those Orders in November 2013, the parties were still on a waiting list at the Sydney (religion omitted) contact centre.  There are also notations on the Orders that: (a) the father has completed the Keeping Children Safe program and has provided copies of his certificate to the mother and the ICL.  (b) The mother and father agreed contact pursuant to the Orders will start on Saturday 23 November 2013 from 1pm until 4pm. (c) The mother and father previously entered into Orders in November 2011 (two years earlier) and that this has not occurred and that the children had not spent time with the father for two years. 

6. The Independent Children’s Lawyer made arrangements for the children and the father and mother to attend upon Dr L for family therapy around June 2013.  The usual process which was to occur at these two interviews did not occur.  The ICL informed the Court that Dr D is a highly experienced former Court Family Consultant and the ICL had confidence that this family would benefit from family counselling/therapy with Dr D. 

7. After the order for family therapy was made, the mother did not even bring the children on the first occasion scheduled for family therapy.  On the second occasion the mother would not engage with the father.  The mother at a point decided to leave the appointment and called the children out, despite being called back by Dr D.  The mother refused to stay and she and the children left.  Having heard the evidence of those events, I am satisfied that the mother did not genuinely engage or attempt to do so, at family therapy and I am satisfied she did not comply with the order.  This obstructive behaviour has been the primary cause of the Court’s orders not being acted upon.  As a result of this, the father continued to have no time with the children. 

8. I note in passing that the ICL has met these children and been quite proactive in trying to get the father’s time with the children happening.  Mr Sperling, Counsel for the ICL, has expressed to the Court the frustrations of the ICL in setting in place processes which ought to have enabled the children to have a relationship with the father but which have not occurred. 

9. The father attended as ordered upon the intake procedures at the (religion omitted) contact centre.  The notes of his intake suggest the father’s frustrations.  Not having English as his first language and unlike the mother, he has not had ongoing assistance from a community worker, his presentation at contact centres is often noted as him being upset or annoyed at not seeing his children as months and years passed.  As I have said, having observed the father over three days he is a demonstrative person and I consider some of this to be cultural.  Also, in circumstances where orders are in place for the father to spend time with the children and it is not happening at all, the father’s frustrations and exasperation mixed with the loss of his physical contact with these 3 young girls for years is understandable.  My impression is that the father’s lack of English and community support has led to others accepting the mother’s version of events, that the father is harassing her, without question. 

10. In April 2010 just prior to separation, the mother called the Police to the matrimonial home.  The father and mother had an argument and the mother, as the father puts it, “kicked me out.”  The Police report refers to the parties having an argument about a prostitute, the father says maybe something was said about a prostitute, as the mother was always accusing him of such things, but his recollection is that he showed the mother a photo taken in (omitted), where he had been working as a (omitted) for a period, and the photo showed the father and a girl kissing. 

11. The father says the mother then made a derogatory comment in (country omitted) “Go fuck your mother.”  He says he was standing outside the door.  The mother told him to leave.  He pushed past the mother to get his keys.  The Police came.  The father said “it was agreed by police that I would leave the home which I did.”[5]  The report of the incident says in summary that the mother told police he had been drinking the father says he was given a breathalyser and it was negative.  The mother was asked by police “Did he hit you or just threaten you?” and the mother said “no”.  The mother admitted that the police removed two shot guns from her home for which she had a current licence. 

    [5] Page 48 – 52.

12. The father stayed a night with his brother-in-law and 2 nights with the maternal grandmother and then returned to the matrimonial home. 

13. In May 2010, at the first birthday of Z, to which the father was invited, along with neighbours, friends and family of the mother and father, a dispute occurred between the father and a friend of the mother’s brother who made sexual references about the mother.

14. The mother’s evidence was that the father came out of the house during a birthday party for friends and family celebrating Z’s first birthday and at one point, “waving a tomahawk axe around” and that another person knocked it out of the father’s hand as he was waving it around.  The mother described the father as coming towards her, as an attack about to happen to her.  Her description of the entire incident was vague and lacking in particularity and unsatisfactory.

15. The mother listed out all of her family members who were present, four or five along with friends and 3 neighbours.  The Court notes that none of the family friends or neighbours were called to corroborate the mother’s version of events and can only conclude that to have done so, would not have advanced the mother’s case.[6]

    [6] Jones v Dunkel (1959) 101 CLR 298.

16. The father gave a much more fulsome and coherent account of events and in doing so gave evidence against his own interest.  The father said that a friend of the mother’s brother who had recently been released from jail was present at the birthday party (which seemed to go through the afternoon and early evening).  The father agreed that he was drinking, but said he was “a little bit drunk.”  The father said that this man was flirting with the mother which annoyed the father.  Then the man made a comment about “not doing sisters anymore” to the mother’s brother and the father.  The father regarded this as a reference to his wife and an insult in his own home.  The father says he stepped back through the door and took from the hook containing coats, a tomahawk which was always hung there.  (It was in the mother’s keeping, she said she was looking after it for her father who received it as a present for his 60^th birthday.) 

17. The father took a hold of the tomahawk off the back door hook, turned to return to the man close to him who had made the derogatory comments, only to find that man had moved toward him and who suddenly punched the father in the nose.  The father dropped the axe and grabbed his bleeding and then broken nose in both hands.  He said someone else picked up the axe and the whole incident took 4 or 5 seconds.  The father retreated to the bathroom with his bleeding nose and while he stood at the sink, with the bathroom door open, the mother came in to see if he was alright and if she could help.  Someone at the party called the Police. 

18. In May 2010 the mother made a complaint to the police and a police AVO was issued by consent without admissions, the father being self-represented.   

19. The mother failed to mention this incident to the Police when they came, failed to include it in her first Affidavit in this Court and failed to include it in her Application for an AVO.  I am satisfied she has now raised it for strategic gain.  Whilst the father’s actions in grabbing the available tomahawk was potentially dangerous and entirely ill-considered having heard the circumstances surrounding the incident under the thorough cross-examination of the ICL’s Counsel, including where everyone was sitting and specifically where the incident took place, I am satisfied that the father was insulted and he directed his anger and response, or intended to, towards the male guest who made the comments, not the mother.  I am also satisfied that the mother who is the keeper of the tomahawk, thought so little of the disturbance that she chose not to report it to this Court or the Police and that it is now raised to strengthen her case to support her position that the father have no contact.

20. I am also satisfied that this is why the mother did not ever mention the incident in her own order seeking an AVO, and the first Affidavit she filed following the incident. 

21. Overall, the father’s version of events in this matter is generally been validated by reference to relevant subpoena material.  The mother is a witness whose testimony cannot be relied upon.  Wherever the mother’s evidence is in conflict with the father, in the absence of independent evidence, I prefer the evidence of the father. 

22. The frustration and sadness of the father was then further added to when, one way or another, the mother managed to sabotage further opportunities put in place for the father to either engage in family therapy with the children, or see the children at 2 different contact centres.  This father, struggling to speak English, has faced the stone walling by the mother for three years and as a consequence, the father has lost out on spending time with his three children for the past three years and the children’s relationship has been damaged, as seen in the Family Report. 

Ms K, Family Report writer

1. Ms K prepared two reports and gave evidence by phone at the trial.  Ms K heard of events from the children and mother, and based on these events occurring as described, she has concluded given the long term that has now passed since he has spent time with the children, that the children’s current position of not wanting to see the father should be respected and that no orders should be made for contact now. 

2. Ms K said that given where the children are currently at, whatever the cause, it would be counter-productive and;

   “Any further attempts to involve these children in contact with their father at this stage, particularly with X going into year seven next year, I think would be counter-productive if there could be a cessation of all this at this stage, with the door being open to the children being able to contact their father at some time in the future when they’re cognitively and emotionally more mature.  But the difficulty is, of course, that the little one, Z, doesn’t even know who he is.”[7]

   [7] Transcript 26 June 2014, page 174 line 5.

3. Ms K stated;

   “I think these children need a sense of closure at this time to be revisited at some time in the future.  Now when that would be and how that would occur I don’t know, and that is going to depend on whether Mr Klemmer is residing in Sydney or Melbourne.”[8]

   [8] Transcript 26 June 2014, page 179, lines 20-25.

4. Ms K went on to say later;

   “…And there needs to be something in place so the children know where their dad is and maybe the mother and Mr C need some assistance to better understand how damaging this negative attitude towards the father is but I think that there might be some cultural issues about that and I don’t know whether or not that would be of assistance to create further stress in that relationship.”[9]

   [9] Above n, lines 40-45.

5. The Report Writer was firmly against the mother’s proposal to change the children’s surname and confirmed that at no time did the children raise this with her.  She considered that an adult had assisted X to write the child’s letter produced by the mother and even allowing for X being an articulate 11 ½ year old, the words and phrases used were adult and beyond an 11 or 12 year old.  She said adolescents would not use words like, “visitation” either. 

6. Ms K also noted a reference in the letter to, “I want this to stop” and that X had seen her father once or twice and that this plea was not supported by what had been happening as X had only seen her father on about 3 occasions over 3 years. 

7. The tenor of the Report Writer’s evidence was that whilst the children are expressing views at present not to see the father, the Court needs to make orders that allow for the children and father to reconnect in the future.  She also considered that the father needs to show more maturity in his approach to the children in the future given the long period of almost no contact. 

8. The views expressed by the children are referred to in the Family Reports.  X has given descriptions of events at Phoenix Rising, which accord with Mr C, but which the Court does not accept.  X has given an account of what happened in (omitted) that in part mirrors what the maternal grandmother said, but which the maternal grandmother changed in her evidence.  The maternal grandmother admitted that the father and X had some quiet uneventful talking, which did not cause alarm.  X has not mentioned this to the Family Report Writer.  X has said she was stressed about proposed supervision.  That is not surprising given the drama created by the mother and Mr C at Phoenix Rising.  No uninterrupted supervision has ever occurred.  I have the strong impression the children have little to no chance of expressing a view that they wish to see the father, given the open hostility and strongly held views of the mother, Mr C and the maternal grandmother. 

9. The Report Writer was not aware that Mr C had suffered a brain injury.  My strong impression was that the Report Writer was not aware of the strength of the opposition to the father shown by Mr C and the mother.  In fairness to the Report Writer, the Court has heard much more evidence during the trial than was in the knowledge of the Report Writer. 

S.60CC(3) The additional considerations are:

S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. In this matter the views expressed by the children are to be seen in the context of them living with the mother and her husband and being influenced by their overt hostility and lack of respect for the father.  The children have stated that they don’t wish to talk to anyone else and they don’t wish to see their father.  I am satisfied given the mother’s evidence, her obstructionist behaviour at all the attempts to have the children spend time with the father, and her express admission that she is trying to eliminate the father from the lives of the children, coupled with the accompanying attitudes of the maternal grandmother and the mother’s husband, that there is little hope for the children to express a view other than that held by the mother.  The mother represents a significant force in this family dynamic and she holds strong negative views of the father and she has a willing assistant in this pursuit in Mr C. 

2. The views expressed by the children about not wanting to see the father are therefore not considered by the Court to represent their true feelings, but rather, what they know their mother wants them to say and what they have been expressly and passively influenced to say.

3. The influence of the adults in the mother’s household is also seen in the letter which X allegedly wrote herself to “the Judge”.  I accept the submission of the ICL, and the evidence of the Report Writer that this letter is clearly instigated and influenced by the adults in her life.  I do not accept Mr C’s evidence that X just sat down and wrote it herself, without any passive or express influence from adults in the household. 

4. The incidents referred to by the children as told to the Report Writer, largely revolve around their exposure to incidents at supervision attempts and which the Court has made findings about.  There is strong resentment towards the father by the mother and her witnesses and the Court does not accept that it would be possible for these children to express their own views whilst they remain in the sole care of the mother and living in her household.    

S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. The children have a strong bond with the mother and that is not surprising given that she has been their primary carer during the marriage and that she has had them in her sole care for the 3 or 4 years since separation, with almost no contact with the father.

2. Whilst the children may be close to their mother, I do not regard their relationship with her as healthy.  By this I mean that they are overwhelmed by her views.  I consider that the mother wishes the children to maintain the animosity and contempt for the father that she does.  The mother is unwavering in her derogatory views of the father.  She is also clearly the head of the family circle in her household.  She is much more forceful than Mr C, who is quiet and gullible. 

3. Mr C seems to be regarded fondly by the children according the Report Writer.

4. The maternal grandmother says she has a good relationship with the children.  It seems that there are language difficulties but they manage to communicate.  Whilst I accept that the children would love their grandmother and she them, I have reservations about the nature of that relationship in that the grandmother has used her influence over the children to alienate the father from their lives.  There are various examples of this, however, the most stark example is when the grandmother initiated a discussion with the children, (when she was supposed to be a supervisor according to Consent Orders), as to who they loved the most, the mother’s then boyfriend or the father.  This discussion occurred in the presence of the father and was initiated by the grandmother.  The grandmother has attempted to diminish and devalue the children’s relationship with the father. 

1. I prefer the evidence of the father who said at no stage did the bathroom door get closed. 

2. The other significant issue is that the mother has given evidence of probably eight or 10 people who were present at this incident, none of whom have been called by her to give evidence.  There is no explanation from the mother as to why not one person was called as a witness.  On that basis the Court is entitled to assume that to have done so would not have assisted the mother’s case.[16]  I am satisfied that the mother has given a distorted and inaccurate version of these events and that she has done so to further her own case in this Court.

   [16] Jones v Dunkel (1959) 101 CLR 298.

3. The foundation of the domestic violence order was based on the mother’s evidence of alleged threats which I do not accept ever occurred.  I consider that the mother obtained the domestic violence order based on untruthful testimony.  The mother has prosecuted a breach of the order which was dismissed.  The mother has used the domestic violence order to ensure that the father does not see the children or have contact with her.  The text messages sent by the father, whilst in breach of an order for no contact, asking whether the mother received money was also used as the basis of a breach. 

4. I have read in the mother’s affidavit material.  I have watched the mother in the witness box for a long period and I am quite satisfied that she is very annoyed with the father and has a contemptuous attitude toward him.  I am not satisfied that she is in any fear of the father.  The mother gave most of her evidence in a manner in which she was unable to particularise incidents of alleged family violence or abuse and in which she stated certain mantras over and over but was unable to give details to establish the foundation of these incidents.  Doing this, she has successfully obtained an AVO. 

5. I am satisfied the mother has used the State Court system to assist in keeping the father away from the children. 

S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

1. In this matter orders have been made for opportunities for time between the children and father, which have not occurred.  The mother now submits that the Court should make final orders providing for orders for no contact at all and that she have sole parental responsibility. 

2. The Report Writer was at a loss to consider what orders might be made to ensure that the children have an opportunity to take up time with the father as time goes on.  The Report Writer became increasingly alarmed at the evidence which the Court had heard, about the mother being obstructionist and a child writing to the Court as seen in the letter which is an exhibit in these proceedings.

3. Whereas generally it is children’s best interests that their parents are not litigating and that litigation comes to an end, in this matter the circumstances are different.

4. It is the Court’s view and that of the Report Writer, that it is in the children’s best interests in the long term to have an ongoing relationship with the father.

5. This has not happened, despite years of orders being made to allow this.  I am satisfied that the contact as ordered has not occurred, because of the mother’s deliberate decision that it will not occur as it is not in accordance with her views.  Very clearly the mother considers that the father is disqualified from parenting because he was not of sufficient support to her when they were together.  The mother is unwavering in this view.

6. When making Orders, I consider that the children’s long term interests have to be considered, and that it is their best interests to make Orders providing for some event or mechanism to enable the children to have the opportunity to have some education and support regarding their parents separation.  The Court is troubled at the prospect of the children having no relationship with the father given that it also considers that the mother has not complied with the Orders made to date, and that she has had no reasonable excuse for not doing so.

S.60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant

1. I have nothing to add.

60CC(2) The primary considerations are:

The benefit to the child of having a meaningful relationship with both of the child’s parents; and

1. The children do not currently have a meaningful relationship with their father as they have not been permitted to do so by the mother.  There is no valid reason why this is so.  The father does not present an unacceptable risk to the children.  The father has been demonised in the children’s household by the mother, her husband and the maternal grandmother Ms D. 

2. The mother has remarried and clearly wishes the children to transfer their love and affection to her husband Mr C.  With the exclusion of the father from their lives, so too goes part of their heritage and the love he has to offer them.

3. It is the Court’s view that it is imperative for these children to have their father play a significant role in their lives, as soon as possible and in to the future.  

4. The ICL has been intrepid in his efforts to orchestrate opportunities for the children to have meaningful time with the father, starting slowly as was appropriate in the circumstances.  He has engaged experts with years of experience, only to find that the mother sweeps in and out of these appointments, at times without the children, or other times, she and the children just leave.  

5. The mother submits that the children do not want to see the father now and that they will do so when they are older or sometime in the future.  The mother says when they ask to ring the father, she will accommodate such a request.  The Court considers this assertion by the mother is false and that the mother has no intention of ensuring that the children have any contact of any kind with the father.

The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. 

1. This matter commenced prior to the amendments in June 2012, so this primary consideration is to be weighed equally with the other primary considerations.

2. These parties have had arguments when they lived together and after. A Family Violence Order issued with the father being the respondent and the mother the aggrieved.  That order issued without a contested hearing, the father agreeing without admissions.

3. Given the findings I have made about the mother’s exaggerated testimony and her preparedness to be untruthful, I am not satisfied the children have been exposed to family violence as alleged by the mother.  Whilst the father’s conduct in reaching for an axe was impulsive and unsafe and had the potential for serious violence to have occurred, in fact the incident lasted 3 to 5 seconds, with the father dropping the axe shortly after he took hold of it and turned around.  It involved the father and a third party, and was not in any way directed to the mother or children.  The mother did not consider the incident sufficiently serious to even report it to the police when they attended, or report it in the mother’s application for an AVO. 

4. I have had regard to the circumstances and evidence in relation to all of the alleged violence.  The mother and Ms D each gave evidence which was not accepted by the State Court in prosecuting an alleged breach of the DV Order.  That finding accords with my observations that each of these witnesses is prepared to give false evidence. 

5. The mother is very hostile towards the father.  I had the impression that in the years that have occurred since separation, in which the father has been excluded from having a relationship with the children, that he has accepted some of the injustices that have occurred to him and he is nonetheless determined to try and have an opportunity of having a relationship with the children.

6. In terms of allegations that the father is a paedophile made by the maternal grandmother, this is a baseless allegation.  To the extent that the mother alleges she found a red mark on X resembling teeth marks in April 2010, there is no evidence that satisfied the Court that the father has engaged in any child abuse whatsoever.  There is no evidence to support this allegation.  Similarly, I do not regard the father kissing a baby child on the lips as evidence of paedophilia.  I consider both of these allegations to be exaggerated by the mother and her witnesses and taken completely out of context for strategic purposes. I am satisfied that the father does not represent an “unacceptable risk” to the children.

7. I am satisfied that the mother has been emotionally abusive to the children in that she refuses to allow them to have a relationship with their father.     

Parental Responsibility

1. A domestic violence order has issued in this matter.  The father also breached the order with two text messages inquiring about seeing the children and gifts at Christmas time in 2010.

2. This would suggest that the presumption of equal shared parental responsibility does not apply, given that there is evidence of family violence embodied in the issuing of an AVO and then breaches.

3. The father seeks an order for equal shared parental responsibility, the mother seeks an Order for sole parental responsibility.  It is submitted for the mother that she and the father do not communicate sufficiently well to have an order for equal shared parental responsibility and that there has been violence between them.

4. The ICL submits reluctantly, that given the children are not wishing to see the father and that the mother refuses to communicate with the father, that an order for sole parental responsibility is in the children’s best interests.

5. As to whether it is in the children’s best interest for their parents to have an order for equal shared parental responsibility, I have had regard to all of the relevant section 60 CC (3) factors and the primary considerations.  I consider that it is essential that these children have the father in their lives in the long term, and as soon as possible.   

6. The ICL agrees that the mother has been obstructive in complying with orders to enable the relationship between the children to be resumed, and even have family therapy.  The ICL is most frustrated that all steps taken by him have been thwarted, one way or another by the mother and those close to her.  I regard the mother’s current attitude towards the father, as being a significant flaw in her ability and capacity to parent.  I am troubled about the inadequacy of the parenting offered by Mr C and his shortcomings in his capacity to parent. 

7. In all of these circumstances, the Court does not have confidence that the mother would exercise an order for sole parental responsibility in the best interests of the children.  The mother has an inflexible and strong belief that the father has no purpose in the children’s lives.  The mother in my view has shown contempt for the father and her actions have been central in the breakdown of the children’s relationship with the father.

8. Although the mother seeks to have sole parental responsibility, I am satisfied she is not a parent who is appropriate be the custodian of all parental responsibility for making the major long term decisions for these three children.  I am satisfied the mother would use such an order to do anything she thought was necessary to prevent the children from spending time with their father.  I consider that the children would benefit from both of their parents making long term decisions.  I therefore consider that an order for equal shared parental responsibility is in the children’s best interests.    

Surname Change

1. Having conducted the trial over 3 days, it is apparent from what I have said elsewhere in these reasons that the Court considers the mother will not encourage a relationship between the children and the father, and that she has actively been undermining the Court’s orders intended to allow this to occur.  Whilst the issue of a child’s surname is an issue included as a major long term issue, at the time of trial the children’s surname is Klemmer.  The mother has proposed changing this surname to Jordan.   

2. The mother commenced the trial with the position that she wanted sole parental responsibility, and she also wanted leave of the Court to change the children’s (country omitted) surnames to the mother’s now partner, Mr C. 

3. The mother explained that she was seeking this Order because the father was never around and the children want to have the same name as the young twins.  She also admitted in making this change she was seeking to eliminate the father from the children’s lives.   

4. To this end, the mother provided a letter written by X just weeks prior to the trial, addressed to the Judge.  The contents of the letter, allegedly written without any encouragement from the mother or Mr C, requested that the 3 girls not have to see their father any more (noting they have only seen him about three times in three years).  A “PS” was added saying that they all really wanted to change their surnames to Jordan.

5. At the end of this trial, in submissions when the ICL indicated his opposition to this order, the mother through her Counsel said she was not pressing the Application.  The response of the father to the mother’s application is that he opposed the change of surname to Jordan and there is no consent to the mother changing the surname. 

6. The ICL in this matter has helpfully provided the relevant authorities in regard to the issue of change of name.  The principles relating to the change of a child’s surname are set out in the matter of Chapman and Palmer.[17] The Full Court stated in part, in upholding the decision of Justice Opas restraining the mother from using her new surname in relation to the children that:

   The general principle appears to be that the court will not intervene to prevent a parent from changing the surname of a child in the custody or care and control of that parent (or direct that a name be restored where a change has occurred), unless the court is satisfied that the change was made without the consent of the other parent and that it does not promote the welfare of the child.  The same principle applies when the court is asked to direct that a surname be restored where a change has already occurred.   In deciding the issue in each case there is no onus of proof.  It is for the court to balance in its discretion the factors for and against change.  The guiding principle is that the welfare of the child is the paramount consideration.  It must stand above the wishes of proprietary interests of the parents.

   [17] (1978) FLC 90-510.

7. The Court set out the approach and the factors to which the Court should have regard in determining whether there should be any change in the surname of a child.  They include the following:

   a) the welfare of the child is the paramount consideration.

   b) The short and long term effects of any change in the child’s surname

   c) Any embarrassment likely to be experienced by the child if its name is different from that of the parent with custody or care and control.

   d) Any confusion of identity which may arise for the child if his or her name is changed or not changed;

   e) The effect which any change in surname may have on the relationship between the child and the parent whose name the child bore during the marriage.

   f)  The effect of frequent or random changes of name.

8. In this matter the Court has made findings that the mother is obstructionist about facilitating any time between the children and the father.  The mother has admitted that she wishes to change their surnames to eliminate the father from the children’s lives.

9. It is difficult to imagine a clearer cut reason why the Court would not agree to the proposed name change. 

10. The short and long term effect of changing the surname to Jordan will be that the mother will be given another method to formally remove the father permanently from the thinking or identity of the children.  The children will be stripped of the biological connection to the father in a social sense and they will likely lose all connection or identification to their (country omitted) heritage.

11. Added to this loss of identity, the mother chooses to replace their identity with a name that reflects the (country omitted) parentage of her second husband.  The surname Jordan is a falsehood in terms of reflecting the children’s heritage.  The children have no (country omitted) or (country omitted) heritage.  I am satisfied that to change the name to Jordan will cause not only a loss of their own identity, but confusion as to who they are and where their family origins are.

12. As to the suggestion that the children may be embarrassed with a different surname to their mother, or the twins, the Court is satisfied that at the current ages the children are well used to using their surname Klemmer and that given there are three children from the Klemmer family, all with this surname, there is little likelihood of feeling the odd one out.  The twins are currently 19 months old.  It will be years before they enter the education system.  By the time they do, at least the two eldest children X and Y will be out of the primary school system and attending another school.  As for Z, the mother’s curious position was that she would not change Z’s name now, but let her decide in the future.

13. The mother can hardly be taken seriously if she suggests that the children will be embarrassed with a separate surname to herself or the twins, if she is prepared to allow the child currently 5, to make up her own mind some time in the future.

14. In the matter, and the circumstances surrounding the father’s loss of his relationship with the children since separation, and the findings of the Court that this has occurred deliberately through the mother’s actions (and her agents), the Court considers that it is imperative that the children’s surnames remain as Klemmer and are not changed.

15. The ICL does not support the change of name and considers that it is in the children’s long term best interests that they retain the name of Klemmer.

16. In all of the circumstances, I accept the force of the submission of the ICL that the best interests of each of the children is that their surname of Klemmer be used for all social and official purposes.  Given the mother’s determination to remove the father from the lives of the children, the Court is left with the impression the mother’s intention is to use the name Jordan in the future in any event.  Her Counsel said at the end of submissions, that the mother does not now press the application.  That however does not satisfy the Court that she will not in any event use the surname, given her past conduct and attitude toward the father.

17. I therefore intend to issue a restraint to the effect that the mother is restrained from changing the children’s surname from Klemmer and that she is to use the surname Klemmer for each of the children at all times, being for both social and formal purposes including all schools attended by the children where they are to be enrolled and known by the surname Klemmer and also for all medical matters.

18. I will direct the ICL to forward a copy of the Orders to the children’s school noting that the children are to be enrolled and known as Klemmer.

Evaluation

1. In considering the best interests of the children, I have determined in this matter that an order for equal shared parental responsibility ought to issue, for the reasons indicated earlier in this judgment. 

2. When making an order for equal shared parental responsibility, the Court must then consider making an order for equal time, or if not, significant and substantial time.  To do so the Court has to be satisfied that it is in the children’s best interests to do so and it is reasonably practical as referred to in s 65 DAA(5).

3. Given the current position in relation to the children’s unwillingness to spend time with the father, it is not in their best interests to spend equal time with each of the mother and father.  No party is seeking this Order. 

1. In terms of significant and substantial time, meaning school days, non-school days and holidays, again given the children’s current mindset, this Order is not currently in their best interests.

2. The father is seeking to spend each alternate weekend with the children, but admits that this will be difficult to achieve, given the children’s current mindset.

3. The father is not seeking to remove the children from living with the mother.  At this time the Court has serious misgivings about the mother’s hostility towards the father, her negativity and dismissiveness of his role in the lives of the children, and the other issues referred to in this judgment which are contra indicators of her being the primary resident parent. Given the circumstances which I have referred to in this judgment, it is however, inevitable the children will remain living with the mother,  at least for the time being. 

4. I am however, intending on making an Order that the children, mother and father attend at the Anchor Program run by Unifam in June 2015.  

5. The mother offers no time at all.  I am satisfied she has no intention of encouraging a relationship now or in the future, as is clear from the what I have said thus far in this judgment.  This view is shared by the ICL. 

6. I consider it is imperative that the children be afforded the opportunity to understand their parents’ separation and gain skills from this Course.  It may assist the children to develop a more balanced view of their father. 

7. The mother has indicated to the Court that she will have no objection to the children participating in this program.  I make it clear to the mother that the children are to be enrolled in this program and they are to be taken.  This is not a choice of the children and the mother is to use her parental authority to ensure that this Order is complied with.

8. The mother and father are to both participate in any intake procedures.  The mother will be restrained from having her agents (including her mother and social workers assisting her)  approach Unifam on her behalf.  The father will be granted leave to provide a copy of this judgment to the facilitators of the Course and any other counsellor attended by the children, and his own counsellor.

9. I would say to the mother that if she intends to undermine this process as she has done in the past with previous Court orders, there will be ramifications.  If the mother fails to do all acts and things to ensure that the children attend this course and that the children genuinely engage, the father and or ICL will be at liberty to forward a request to have the matter re-mentioned before me.

10. I am not satisfied that the mother is in fear of the father, rather, I am satisfied that she is dismissive of him and that she and her husband Mr C consider the father to be an annoyance and something of a joke.  The mother agrees she would seek to eliminate the father from the lives of the children.  The maternal grandmother holds the father in contempt. 

11. The mother and maternal grandmother and Mr C have all given false evidence about the father’s alleged violent or inappropriate conduct.  I am satisfied that the mother has been dishonest about events of family violence and that she has used family violence allegations falsely, to help her strategically in this litigation.

12. I am not satisfied that because the children are currently unwilling to see their father, that orders should be made for no time between the children and the father. I do not accept that this is in the best interests of the children now or in the future. I do not consider such orders leave any opportunity for the future for the father to reconnect with the children.

13. To the extent that the Report Writer supported no orders being made at the beginning of her oral evidence, I am satisfied that the Report Writer was not aware of the strength of the mother’s determination that the children should not have a relationship with the children and the lengths she, her husband and the maternal grandmother have gone to, in order to achieve this. 

14. The Family Report Writer is also not aware of the Court’s view of the false and misleading evidence given by the mother and the maternal grandmother and Mr C as to events at Phoenix Rising and (omitted), both of which involved the children. 

15. At the conclusion of her evidence, the Report Writer stated that, “I think these children need a sense of closure at this time to be re-visited at some time in the future.”  She was unsure when that would be and it would depend on whether the father is residing in Sydney or Melbourne. 

16. The children have a loving father, and they have a cultural heritage they ought to be able to explore with him.  These children are still aged only 11 years and 10 months, 8 years and 8 months and 5 years and 1 month at the time of trial.  I consider it is in their best interests in the long term that they have a relationship with their father.  I note the evidence of the Report Writer that the children have no support in their household for the father and that to order contact at this time would be counter-productive. 

17. I am satisfied that the father has love and support to offer the children now and in the future.  I am most troubled about the role that Mr C is playing in the children’s family unit.  Unlike the Family Report writer, I do not see him as being at all supportive of the children’s relationship with the father.  I have heard considerably more evidence than the Report Writer dealt with in her report.  My impression of the Report Writer’s evidence was that she had underestimated the lengths gone to by the mother and those close to her, to malign the father.

18. The more the Report Writer heard from the ICL and Court about the evidence which unfolded during the trial, the more misgivings she was expressing about the family dynamic with the mother, Mr C and the maternal grandmother and their influence on the children.

19. For all of the reasons referred to in these reasons, I am satisfied that the Order which is in the children’s best interests is an order that the father is to spend time with the children at all times as agreed between the parties.  I will include in the Orders that the Court has determined that it is in the best interests of the children to spend time with their father. This order is giving the Court’s imprimatur to the concept of the father spending time with the children and authorises dialogue to occur between the parents and opportunities for time to occur between the children and father.  It also removes the suggestion that the father ought to have no contact with the children.  I am not satisfied that the parties are unable to communicate.  I am satisfied that the mother makes no effort to communicate and that she been dismissive of the father’s attempts to communicate or hidden behind an AVO for no contact to frustrate his communication with her.

20. Now that the litigation is concluded, I have made findings about the alleged family violence; I see no barrier to the parties communicating.  If the mother stopped to reflect on these findings and put aside her acrimony she carries about the father, she might realise that not only is it in the best interests of the children to be able to have a relationship with their father, but that it would lighten her parenting load to facilitate this.

21. I have suggested to the parties that the children ought to be engaged in the Anchor Program which concerns separated families and children and is run by Unifam.  The parties have agreed that the children ought to attend this course.  The ICL agrees, however he has no confidence that the mother will actually comply with this Order. 

22. I note the Report Writer’s view that the children are not ready for contact at present and to order contact now would be counter productive.  This hearing has occurred in June 2014 and I intend to allow a further period to pass and Order that the children are delivered up to the Unifam counselling in June 2015 which allows a moratorium of 12 months for the children.  I consider that it is essential that some intervention occur with the children to allow them to reflect on their parents’ separation and the loss of their relationship with their father.

23. I intend to Order that each of the parties forthwith make the necessary arrangements and attend to the intake procedures organising the children to attend in June next year.  I also intend to Order that the mother is to file and serve an affidavit on the father and the ICL, within 30 days of the date of this Order setting out the steps taken by her to enrol the children in the Unifam course to attend in June 2015.  If the mother fails to comply with this order the matter will be re-listed before me at the request of the father or the ICL.  I also intend to order that the mother file and serve a further affidavit in April 2015, deposing to her assurance that the children are enrolled and that they will be attending.

24. I will order that the ICL be discharged in August 2015.

25. I will also order that the Father is permitted to contact the mother about seeing the children from time to time, once they have concluded their attendance at the Unifam course in or about July 2015, whichever happens first.  I consider it likely that without this order, the mother will again resort to seeking an AVO based on the father asking to spend time with the children.

26. The mother will be ordered to keep the father informed at all times of the residential address of the children and her contact details including mobile phone and landline and email, and to keep the father informed of any changes within 48 hours of doing so.  The order will be mutual.

27. I also intend to order that, the father undertake his own counselling about how to act interact appropriately with the children given the passage of time that has passed since he spent time with them and to enable him to learn strategies to assist him in the future in conversing with the children.  The father has indicated he is willing to attend any course recommended. 

28. I am satisfied that it is in the children’s best interests for the father to continue to see the children at school either at school events or at other times as a parent volunteer or as permitted by the school authorities.  The mother and her agents will be restrained from contacting the school to interfere in the operation of this Order. 

29. As submitted by the ICL, I consider it is in the children’s best interests to receive letters, gifts and cards from the father and I will order that the mother hand on all letters gifts and cards from the father to the children, and that she be restrained from making any derogatory comments about the letters gifts or cards to the children or in their presence or hearing and that she do all acts and things to ensure that no other person makes derogatory comments of this nature.

30. In terms of exercising parental responsibility for long term decisions, I am including an order that the parties are to attend Family Dispute Resolution in the event they are unable to initially agree on any major long term issue.  

31. I also intend to make an Order that the father is permitted to have the orders for his contact with the children reviewed no earlier than February 2016, by filing and serving an initiating application and affidavit.   This is in line with the recommendation of the Family report writer that the children need to have the opportunity to re-consider the situation sometime in the future.  It maybe that following their attendance at Unifam, the parents can agree on some time commencing.  If not, the matter will be reviewed in 2016.

I certify that the preceding two hundred and ninety-four (294) paragraphs are a true copy of the reasons for judgment of Judge Willis

Associate: 

Date:  8 October 2014