Jowett and Shaughnessy
[2016] FCCA 2518
•25 October 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| JOWETT & SHAUGHNESSY | [2016] FCCA 2518 |
| Catchwords: FAMILY LAW – Contested parenting proceedings young child – dynamics between the parties poison – mother alleges family violence – mother makes multiple recordings of herself discussing the litigation with the child then aged 4 – mother makes multiple allegations on a variety of issues against the father and his family – father alleges mother has attacked himself and his family in a variety of ways – mother engages in excessive use of force in repeatedly slapping their 2 year old child and placing child to stand in a washing machine in the dark – mother taunts and physically harms father’s older children – child to live with father – sole parental responsibility – mother’s application to remove child from Australia dismissed. |
| Legislation: Family Law Act 1975, ss.60 CC, 61DA, 65DAA |
| Cases cited: Mazorski & Albright [2007] FamCA 520 MRR v GR [2010] HCA 4 |
| Applicant: | MS JOWETT |
| Respondent: | MR SHAUGHNESSY |
| File Number: | CSC 435 of 2013 |
| Judgment of: | Judge Willis |
| Hearing dates: | 18 - 20 February, 30 March - 1April, 3 - 5 August, 19 - 20 November 2015 |
| Date of Last Submission: | 20 November 2015 |
| Delivered at: | Cairns |
| Delivered on: | 25 October 2016 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
| Counsel for the Independent Children's Lawyer: | Ms McMillan Q.C. |
Independent Children's Lawyer: | O’Reilly Stevens Lawyers |
ORDERS
That all previous orders are discharged.
Parental Responsibility
That the father is to have sole parental responsibility for the child X born (omitted) 2010 (“the child”), and for this purpose, the father is solely responsible for making decisions about major long term issues in respect of the child including but not limited to:
(a)The child’s education (both current and future);
(b)The child’s health;
(c)The child’s religion;
(d)Changes to the child’s living arrangements which might make it significantly more difficult for the child to spend time with the other parent.
Notwithstanding the provisions of Order 2 herein:
(a)The father is to be responsible for the day to day care, welfare and development of the child when he is living with or spending time with him;
(b)The mother is to be responsible for the day to day care, welfare and developments of the child when he is living with or spending time with her subject to the restraints contained in these Orders.
Living Arrangements
The child shall live with the father at all times other than the times the child spends with the mother as specified in these orders.
Spending time with the mother
During the school term, the child shall spend time with the mother each alternate weekend, from after school Friday, until before school the following Monday (save and except that if Monday is a public holiday, the child shall spend time with the mother up to the commencement of school on the Tuesday). The mother’s first weekend will commence on Friday 4 November 2016.
School Holidays
The regular alternate weekend contact with the mother (Order 5 herein) is suspended during the school holiday periods.
That the child will spend time with the mother for the first half of all gazetted Queensland school holiday periods (other than the Christmas school holidays).
The Christmas School Holidays
As to the Christmas school holiday periods the child will spend one half of the school holiday period with each parent as follows:
(a)The child will spend time with the mother in the first half of the Christmas school holidays in 2016 and each alternate year thereafter.
(b)The child will spend time with the father in the second half of the Christmas school holidays in 2016 and each alternate year thereafter.
(c)The child will spend time with the father for the first half of the Christmas school holidays in 2017 and each alternate year thereafter.
(d)The child will spend time with the mother for the second half of the Christmas school holidays in 2017 and each alternate year thereafter.
That for the purposes of school holiday periods, collections and return will occur as follows:
(a)The parent having the first half of the school holidays will collect the child from school at the conclusion of the last day of school term.
(b)The parent having the second half of the school holidays will return the child to school at the commencement of the first day of the new school term.
Purely for the purpose of determining the “half way mark” of a school holiday period (and noting that the day the child is collected from school at the end of the school term, will not be regarded as the first day of the school holidays) the following formula is to apply to determine the half way mark:
(a)The first day of the school holidays will be deemed to be the day after the school term ceases (day 1) and the last day of the school holidays will be deemed to be the final day (last day) before the resumption of the school term.
(b)The half way mark will therefore be determined as the middle day between the day 1 of the school holidays and the last day of the school holidays.
(c)The changeover time on the middle day will be 12 noon.
Changeovers
All changeovers that occur on school days are to occur to and from the child’s school. All other handovers on non-school days are to occur outside the (omitted) at (omitted) Shopping Centre. Either parent or their nominee may attend to or at the changeovers.
Communication
Whilst the child is living with the father, the father will facilitate telephone time (or Facetime/ Skype at his discretion) between the child and the mother twice a week during the school term and the father’s holiday time. The father is to advise the mother in writing (within 10 days of the date of this Order) of the convenient days of the week and times for these calls.
In the event that the prescribed days and/ or times in order 12 herein clash with the child’s routine or extra-curricular activities or activities of the father, at his discretion the father will from time to time nominate in writing to the mother alternate days of the week or times of the day for this weekly communication to occur.
The parents shall communicate with each other in relation to matters concerning the child, only by email, text message or other electronic means, except in the event of a true emergency at which time the parents will communicate via telephone.
The parents shall advise each other of any change to their mobile and landline telephone numbers and residential addresses in a timely fashion.
Restraints
That neither party shall physically discipline the child.
Watchlist/ Pace Alert
The application by the mother to remove the child from Australia to travel overseas with her is dismissed.
That Ms Jowett and/ or her servants and/ or agents be and are restrained from removing or attempting to remove or causing or permitting the removal of the child X born (omitted) 2010 (male) from the Commonwealth of Australia.
It is requested that the Australian Federal Police give effect to the preceding order by placing the name of the said child on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child’s name on the Watch list until further Order of this Court.
Authority
This order shall serve as authority to permit each parent to receive copies of school reports, photographs or notices (at their own expense) from the child’s school, noting that the father has sole parental responsibility for making decisions relating to the child’s education.
Each parent is permitted to attend events at the child’s school, that parents are routinely invited to attend, subject always to the discretion of the school.
Medical
The child is to be returned to the father by the mother following the cessation of the mother’s time as set out in these orders, including when the mother alleges the child is unwell. In other words, the mother is not permitted to retain the child in her possession on the basis that the child is sick. The Court has concluded that the father has the ability and capacity to care for the child as the primary carer, including times when the child is unwell or ill.
Each party is to inform the other immediately, in the event of a medical emergency involving the child noting that the father has sole parental responsibility for making decisions in relation to medical issues relating to the child.
Other Orders
That the Application for Contravention filed 3 November 2014 by the mother is dismissed.
The Independent Children’s Lawyer is discharged.
All outstanding applications are removed from the pending cases list.
NOTATION:
A.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 Jowett & Shaughnessy is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CAIRNS |
CSC 435 of 2013
| MS JOWETT |
Applicant
And
| MR SHAUGHNESSY |
Respondent
REASONS FOR JUDGMENT
Background
This is an application for parenting orders in relation to the child X born (omitted) 2010 (“X”). The applicant mother is Ms Jowett (“the mother”) born (omitted) 1980 and the respondent father is Mr Shaughnessy (“the father”) born (omitted) 1969.
The parties commenced a relationship in (omitted) 2008 and married on (omitted) 2009. The parties separated on 23 November 2012. They divorced on 22 September 2014.
The children who comprised children of that family unit, were X and also, the father’s four children from two prior relationships, namely A born in 1996 and with Ms S namely, B born in 1997, C born in 2000 and D born in 2003. A and B live with the father and spend time with Ms S on a flexible basis. C and D live with Ms S and spend substantial and significant time[1] with the father. A has a brain injury as a result of being run over by a bus. B has Asperger’s.
[1] Father’s affidavit filed 27/09/13, paragraph 15-16.
When proceedings were commenced on 1 August 2013 in the Federal Circuit Court of Australia, the parties were in the midst of an extremely acrimonious separation and had been for the 9 months post separation as will be seen in these reasons.
At the final hearing, both the mother and father were self-represented. The estimate of trial was an optimistic 3 days, however, for reasons which will be explained and become apparent, the trial time extended well beyond this time. Accommodating blocks of extra days in an already full list was difficult. Even after finding additional days after the first tranche, further periods of time were necessary.
The Independent Children’s Lawyer (“ICL”), Mrs Reaston was represented by Queens Counsel Ms McMillan. Despite the best efforts of Ms McMillan QC to contain the cross examination on behalf of the ICL and to assist the Court, other issues including the self-representation of the parties and in particular the mother’s self-representation pushed the trial out for 11 days (over three different periods) in total. Most of the additional time can be attributed to the mother’s conduct, in one way or another, to the mother’s difficult behaviour as a witness and as a self-represented litigant, as will be seen in this judgment.
It was never intended that the Federal Circuit Court would hear 11 day matters, however, as sometimes happens, this matter occurred in three separate tranches. In between the first and second tranche, the mother sought leave to bring in further evidence in chief and a video relating to an incident at the (omitted) (“the (omitted) incident) which had occurred in the period in between the hearing dates. The mother’s evidence was admitted, other witnesses prepared statements and some called, and cross examined. The mother was given time limits to ask her questions, which she continually exceeded and ignored. Questions directed to her were met with discursive responses. Her behaviour during the ICL’s questioning of the Report Writer exceeded all acceptable conduct and ultimately arrangements were made for the mother to still participate, but not interrupt others, by placing her in an adjoining Court room, linked in by video, with the sound to her Courtroom controlled by an associate. Even in the closing submissions, the mother was attempting to admit more documents to add to the hundreds of documents she prepared for the trial.
Delay in Reasons
The delay in delivering these reasons is regretted and due to the immense work load and obligations to continue to hear and deal with the hundreds of matters in the list coupled with comparatively limited judgment writing time when considering the volume of matters being dealt with and the ongoing occurrence of other urgent, interim and final hearings.
The observations of the Court however, have been made following reference to significant contemporaneous notes taken all throughout the trial, and from the voluminous transcript. The judgment has been a work in progress from the beginning of the trial, through the trial, at the conclusion of the trial and continuously through judgment writing periods available in the intervening period.
As will be seen in the transcript, the mother has sought to agitate issues of importance to her, at great length and for a seemingly unending time. The mother has a pre-occupation with documents and seemed to regard this litigation as something akin to a Royal Commission into the father and his family.
Referring to the final submissions of each of the parties, in summary their positions are as set out below.
Father’s submissions
The father re-iterated his evidence, case outline and oral submissions that in the post separation period he has been worn down emotionally by the mother, generally through her obsession with this litigation against him and other litigation in the State Court, through the mother attacking him on all fronts. The father contends that the mother has made false and exaggerated allegations of domestic violence against him, his children from his prior relationship have been physically assaulted, verbally abused and taunted by the mother in several distressing events, with the (omitted) incident being a further example of what the mother is prepared to do to his children The father refers to the mother’s poor parenting and lack of parental responsibility in her abuse of X including her ill treatment of X (then just 2 years of age in (omitted) 2012) in placing him in a washing machine in a dark laundry with the door shut, whist she retreated to her bedroom to get away from his screaming; He points to the mother’s using excessive force upon X in repeatedly smacking him. The father contends that the Court will accept his evidence that the mother hurt, abused and taunted his older children (X’s half siblings) from his former relationship and who formed part of the family when these two parties lived together. Post separation and during the trial, the father submits that the mother’s cruel conduct continues and alleges that whilst the mother says C hurt her, the video of the (omitted) incident shows C screaming out in a swimming pool that the mother has hurt her The father submits that his own mother has been assaulted physically by the mother and his former partner has been set upon in the (omitted) incident. The father contends that the mother knew exactly what she was doing when she stole the home made boat he had built with his children over a ten year period and had it up for sale, without the knowledge or agreement of the father.
The father admits that he withheld X from the mother after she stole the boat whilst he was in Darwin with X, but submits it was not just the boat, but also his concern that the mother had taken off overseas to work somewhere overseas upon separation without notice, left X with him and he, having no idea where she had gone or when she would be back, was deeply concerned that the mother would just take off overseas again, this time with X as the mother had the means to do so, in holding X’s passport. The father says his offer to the mother was to hand over the passport for X and tell him where he and the children’s boat was, and then arrangements could be made. The mother refused to do so and the parties were deadlocked.
Other incidents have occurred which have caused him to fear for his own safety and whilst he has no proof that the mother was involved, he was alarmed at the happenings going on in his life including an apparent deliberate severing of an anchor rope, causing the loss of the anchor as he attempted to secure the boat on a reef when the father was 40 miles out to sea on his first trip to the reef with his children, after he found and retrieved his boat. The father says this incident could never have been accidental and placed himself and those with him in danger. He is uncertain who did this, and during cross examination expressed alarm to hear that the mother said she had a photograph of the rope. Another incident occurred, which the father also found troubling; he received a direct threat by the mother suggesting she would burn the boat. The mother wrote to the father in 2013 after separation;
“By the way if you ever try and again to locate me, ask people or your kids to follow me to know where I work or live, or interfere with my life again, you will see a nice display of a boat used as a fireworks on the news. Is that clear enough Mr Shaughnessy. If you ever dare hurting me in any way, you will never ever see the boat again and the kids will blame YOU for it for the rest of your life.”[2]
[2] Father’s Affidavit filed 10/11/14, annexure B1.
The father annexed a picture of a box of fireworks to his affidavit that had then been placed at the front yard of his former wife’s home and let off. Again, he does not know who did this, but submits these incidents added to the intense pressure he and his family have been under.
The father contends that the mother’s act in physically breaking into his office using bolt cutters to gain entry and rifling through his files and removing all his personal documents validates his belief that the mother has a vendetta against him. The father submits that the mother’s admission that she organised for his much loved home built boat which he and his children had been building for ten years to be towed away and then hidden without him knowing, and then putting the boat up for sale, was done by the mother to deliberately cause distress to he and his children. The mother refused to tell him where it was and whilst he searched all around (omitted). The mother had instructed the boat to be auctioned.
The father denies that he was the author or had any part in sending the mother a threatening anonymous notice which the mother alleged she had received in her letter box post separation, and which believes must have been written by the father and/or his mother, the paternal grandmother. The father says in any event it is not even in language he would use. For example, he would never use the word “charlatan.” The father says, he has very basic language and writing skills as seen his material and had nothing to do with creating or sending the anonymous notice.
The father alleges that the mother used an opportunity when she was given make-up contact over a period of several weeks, to falsely portray to Centrelink that she was the primary carer indefinitely of the child and in so doing caused him to have a debt. As I understand it, by the conclusion of the trial, the father had finally been able to make arrangements with Centrelink to correct this error. The father contends that the mother has a pre occupation with arguing with various people in the community such as the real estate agent, day care centre staff and others and trying to secure benefits of any kind to which she is not entitled. For example he points to her claim for victims’ compensation when the father has never been charged or convicted of assaulting the mother; and the mother moving into a women’s shelter suggesting she was homeless, when in fact she had just returned from an overseas working holiday for a month and had not arranged accommodation. Generally the father submits that the mother does not deal honestly with him, and that he and his family have been attacked on every front and he is not able to withstand further litigation and false allegations made by the mother about him. The father contends that, as he said in evidence, he and his family are worn down and emotionally exhausted by the mother’s conduct and he believes it will never stop.
The father says the child should remain living primarily with him and spend time with the mother each alternate weekend and not two out of three weekends as submitted by the ICL. The father is opposed to the child living with the mother and submits that if this occurred, X would be prevented from continuing on a relationship with himself and his half siblings. The father is very cautious about any flexibility in the Orders as he submits that the mother will exploit every and any occasion to change the orders and cause unnecessary and deliberate disruption and have an argument about the orders or changes, as she has done in the past. The father is content to forego the usual special days such as birthdays and Father’s Day for this reason and he has pointed to the various examples of the mother creating incidents and confusion in her insistence on regularly changing orders or making requests of the father to take the child to a doctor or dentist during his own time and generally controlling and making unnecessary scenes from what should be mundane routine issues. The father does not wish to have orders that fluctuate with the holidays changing every year as he believes that the mother will create fuss and a scene about the changes and create arguments.
The father is opposed to many of the Orders sought by the mother and agrees with some of the observations made by the bench to the mother when examining her orders, that they are orders which represent surveillance orders. That is they are orders which require one party to know what the other party is doing and require much cross checking by one party with the other on a regular basis and require the parties to be continually in a dialogue with each other. Examples include the Orders sought about the parties going to alternate meetings at school sought by the mother and communicating when the parties are not able to go to give the other party a chance to attend a meeting; the mother wanting orders that permit her to know information about every occasion when the child is not well and get records from doctors; and the child having the say about which parent would attend the school at a meeting. The father submits that X loves his time with himself and his siblings and contends that each alternate weekend provides regular weekend time for X with his extended family, rather than two out of three weekends. The father submits that all he is wanting is a quiet life and for X to spend time with his mother without all of the drama that goes with it.
The father is wholly opposed to the mother removing X to travel to (country omitted) or anywhere, as he submits that the mother has shown she is untrustworthy and likely not return with X.
Mothers’ submissions
The mother contends that the father is literally a psychopath as was suggested by her to the single expert psychiatrist Dr K, who denied this suggestion. The mother disagrees with the psychiatric assessment of Dr K who notes that neither party have a psychiatric disturbance or condition. The mother alleges that the father is a perpetrator of domestic violence and that he has punched her on an occasion and denigrated her to his children and family members. The mother has alleged he has been less than honest with Dr K about his criminal record. The mother submits that the father has shown he is a dangerous man and that on an occasion the father came to her work place and intimidated the staff and herself in breach of a domestic violence order. The mother alleges other incidents of violence against her by the father as set out in her material (including back to 2010 with a previous partner (Ms D), the father punching a hole in the door twice in 2011; damaging her car, the father following her, the father smashing belongings in July 2012; stalking her in 2012, punching her at handover in 2013, following her in a car, using offensive language, slashing her tyres, his children following her onto a bus and contends that the father and or his mother were responsible for sending her an anonymous letter containing serious threats against her.[3] The mother submits that the father’s children from his prior relationships are evil and horrible children and that X should always be supervised in their care. The mother submits that she had a good relationship with the father’s children prior to separation and that their subsequent hostility towards her can only be due to the father’s denigration of her.
[3] Mother’s Affidavit filed 3/11/14, annexure 11.
The mother asks the Court to accept her as a truthful witness. She has alleged that the father had outstanding warrants for his arrest in Western Australia and therefore he could not return to WA; she alleges and submits that the paternal grandfather is a criminal as well and that X will be a third generation criminal if left to live with the father.
The mother asks the Court to accept her evidence that the father had organised for a third person to “stalk” her, that the father had committed extortion with a friend of his who had not long been out of jail and also contends that the Court should accept that the father had exposed the child to pornography, which seems to be when the father had shown the child pictures from a “Target” underwear brochure, amongst an array of allegations. The mother urges the Court to accept her evidence that the father had bribed his former wife to give evidence in his favour at this trial, and that cars parked outside her house must belong to people the father knows.
The mother contends X should live primarily with her and spend each alternate weekend with the father. The mother submits that her main concern with the child living with the father or spending more time with him than that on a regular basis, is the emotional harm that the father will be causing. The mother contends that the father’s children were present during events that she alleged of domestic violence. Further she submits that the incidents that have occurred post separation, including argument and a physical encounter with the father’s child C during the (omitted) incident, occurred because of the father demeaning her to his children. The mother submits she has not had contact with the father’s children post separation and there is no other justification for the children not to have continued what she submits was a good relationship with her at the end of the parties relationship. The mother submits that the only explanation is that the half siblings of X have been turned against her by the father and that he has heavily denigrated her to those children and to X.[4]
[4] Transcript 20/11/15, page 331 -332, line 40.
The mother submits that the reason she made the many voice recordings of X, even though they did not come across this way, was to show that her son has heard things at his father’s that were not suitable for him. The mother submits that it is her position and concern that as X grows up, he will be living with the father in an environment in which the mother is hated and that this will affect her relationship, or could affect her relationship with X. The mother makes reference to all the recordings she has of the child X saying that the father is “a liar” and whilst conceding that the evidence is that X has a good relationship with her, she submits that this will likely show up in the future.[5] The mother submits that she has not said anything bad about the father to the child.
[5] Above n, page 360, line 30 – page 361, line 15.
The mother submits that given her (omitted) heritage, the other issue of great importance to her is her desire to go to (country omitted) with X. The mother in her Orders sought, seeks to remove the child from Australia for 6 months to spend time in (country omitted) after these Orders are made. Thereafter, the mother and X are to travel to (country omitted) each second year for six to eight weeks. Whilst the mother admits that on her proposal, the child will not see the father for six months when he will be living and going to school in (country omitted), she says it is not her intention to separate them. The mother also says that X has been saying to her for over a year now (since he was 4) that he really wants to go to (country omitted). The mother says this is not of her will - it is the child’s wish.[6] The mother says that it is necessary for the child to visit (country omitted) and spend time with his family in (country omitted). The mother in her compendium of 85 Orders has sought to have Orders on a comprehensive range of parental child activities.
[6] Above n, page 338, ;line 35.
The mother holds very strong uncomplimentary views of the half siblings of X and has made her own assessments of them as evil, rude and disrespectful. The mother asks that any time X spends with the father’s older children always be supervised by the father and that the child not spend a night with anyone else in the father’s family or at all, until the child is 13. The mother denies that she became physical with the paternal grandmother at a day care centre or the (omitted) Shopping Centre following a handover. The mother asks that the paternal grandmother not be present at changeovers.
There are very tight restrictions sought by the mother regarding the parties’ communication. The mother has sought monitoring orders that the father has to tell her when the child is not at school and other similar orders as set out in this judgment. The mother submits that she has obtained the school records and has seen that the father has not told her when the child is not at school. The mother seeks an order for sole parental responsibility and submits that the father does not include her in decisions and does not answer her inquiries.
ICL’s submissions
Based on the evidence as traversed by the ICL Queen’s Counsel in submissions including evidence of the Family Report writer who was quite clear that for a range of reasons it would not be in X’s interest to change his primary residence from living with his father with whom he has been living primarily for 3 years post separation, to living with the mother. The ICL Counsel refers to the evidence of the Family Report writer of the child’s very close relationship with the father and the troubling effect it would have on X to remove him from that arrangement. The ICL submits that the child should remain living with the father primarily as is the case at the time of trial and that in this high conflict matter the father should have sole parental responsibility. Generally the ICL urged the Court, to prefer the evidence of the father over that of the mother in the absence of any independent evidence. The ICL submits that the father gave his evidence in a reasoned and responsive manner and was prepared to give evidence against his own interest. This was in stark contrast to the mother whose evidence was given in a discursive manner with rambling long answers in a non-responsive manner. The ICL expressed strong reservations about allegations about most of the domestic violence allegations made by the mother, and observed the inconsistencies in the mother’s evidence on this and various other topics. The ICL accepted that the father has had to withstand a barrage of criticisms and allegations, mostly false and without foundation, by the mother. The ICL was also extremely disturbed about the conduct of the mother in her willingness to engage young X directly in this litigation through her ongoing discussions with the child about matters which the mother was evidence gathering, the mother’s allegations that the child at aged 4 remembered and discussed incidents that occurred when he was 2 which happen to support the mother’s position in her litigation and her making some hundreds of recordings of the child for the purposes of gathering evidence to support her case, seemingly with no insight into the damage that her discussions could have upon X.
The ICL submits that an Order for sole parental responsibility in favour of the father is in the child’s best interests. The ICL submits that based on the evidence which the court should accept the presumption in section 61DA does not apply and points to the allegations of domestic violence by the mother noting that most are denied, but that the father admits to punching a wall on two occasions. Ms McMillan QC for the ICL notes the context on the first occasion of the wall punching by the father, which was when the father came home and found the mother had put X in a washing machine in the laundry, in the dark with the door closed as she couldn’t bear him crying any longer and she retreated to her own bedroom with the door closed. This incident is admitted by the mother and occurred after the mother was deemed to be well enough to be the primary carer of X by the Department. The ICL refers to the second occasion the father admits to punching a wall, which involved the mother angrily and repeatedly smacking the child so as to cause red marks. The father was present and implored the mother to stop, where upon she promptly rang her own parents and complained to them that the father had been smacking the child.
The ICL further submits that the presumption of equal shared parental responsibility does not apply as there are reasonable grounds to believe that the mother has engaged in abuse of the child. The father has admitted to slamming walls, and was in breach of a domestic violence Order. Counsel for the ICL submits that the court will accept the evidence of Ms S and the father’s mother. Counsel submits that the court should be satisfied that it is inconsistent with the child’s best interests (s 61DA (4) for the reasons referred to) and due to the overwhelming inability of the parties to be able to communicate in a reasonable manner and the animosity and the hostility that is palpable between them for an Order for equal shared parental responsibility to be made. The ICL adopts the evidence of the Family Report writer who considered that the dynamics between the parties were poisonous and not likely to improve. These issues strongly suggest that the parties do not have the ability to rationally and respectfully discuss long term decisions and make joint decisions in the child’s best interests. The ICL supports the position of the father and the Orders sought by him.
The ICL submits that the Court will be troubled at the prospect of the mother removing the child from the Commonwealth of Australia as requested by her and submits that given the mothers’ evidence and conduct, the Court will have no confidence that the mother would return to Australia with X if she was permitted to remove him from Australia.
Mother’s Orders sought
The mother sets out the final orders sought in her case outline filed on 13 February 2015. The mother lists out 85 separate orders. To summarise and identifying the Orders sought as shown on the mother’s case outline, the mother has sought orders that:
a)The child lives primarily with her (Order 3 in her case outline);
b)The mother has sole parental responsibility (Orders 5,6,7 and 8);
c)The religion of the child shall be (religion omitted) (as I understand the position of the parties, this Order was by Consent). (Order 40);
d)The father spend time with the child each alternate weekend from close of school on Friday until commencement of school on Monday; extending to include Thursday or Tuesday in the event that either Monday or Friday is a public holiday (Order 24 and 25);
e)Changeovers to and from school, non-school changeovers at Relationships Australia and if Relationships Australia are not available, inside the (omitted) Police Station (Orders 26 and 27);
f)In the event the father withholds the child, a recovery order is to be issued with the Court authorising the Federal or State Police to attend the father’s residence with the mother and to remove the child from the father’s residence (Order 33);
g)Time (past or future) when the child has been withheld by the father and paternal grandmother shall be compensated (Order 34);
h)Orders were included about parents endeavouring to facilitate the other parents work commitments and agreeing on temporary changes of care which were the least detrimental to the child, and time missed as a result of this being compensated. (Orders 35 and 36). I indicated to the parties that these types of flexible orders would, in the circumstances of high conflict and past disagreements, be highly unlikely to work. As I understand it the mother agreed to abandon those orders. I have nonetheless had regard to them;
i)The child shall attend school and his extracurricular activities at any given time unless sick (Order 37). And also each parent being responsible for the child’s attendance to school and to extracurricular activities whilst the child is in their care (Order 38);
j)The child should attend religious instruction either at school or as an extra-curricular activity once he reaches the age of 7. (Order 41) Each parent shall be responsible for the child’s attendance to his religious education when the child lives with them (Order 42);
k)If the child accumulates 3 or more absences from either school or extracurricular activities without reasonable excuse when the child is with either parent, the child’s time with the parent will be reduced to the previous night if the child has been missing school on a particular day repeatedly or the time with the parent will be reduced by half a day in order to attend the extracurricular activity with the other parent. (Order 39);
l)The child’s name is changed from X to X and his birth certificate and passports and other proof of identification be amended to reflect such change of name. (Order 4);
Orders - Visits to (country omitted)
m)The mother is seeking an order that she is permitted to remove the child from Australia and travel with the child to (country omitted) for a period of 5 ½ months in 2015. In her oral submissions the mother sought an order that she be permitted to remove the child from Australia and travel to (country omitted) for a period of six months in the first year (following the making of these Orders[7]);
[7] Transcript, page 264, 20 November 2015.
n)That the child is permitted to travel to (country omitted) in each odd numbered year for a period of 4 to 8 weeks. (Orders 1 and 2). (it is clear that the mother intends to enrol the child in school in (country omitted) – see Order 22 where mother says she will pay child’s expenses while in (country omitted), however, see also Order 23, which says “the father shall pay maintenance for the child while the child is in the m other’s care, even when they are overseas”;
o)That the orders for the child’s passports and travelling arrangements remain in place until the child reaches adulthood (Order 19);
p)An array of Orders regarding passports (Orders 11 to 19) including the child’s Australian passport being renewed at the father’s cost, the (nationality omitted) passport being renewed at the mother’s cost and the passports being held by the Court;
q)That the father is responsible for payment of one half of the child’s travel costs to (country omitted) (Order 21);
r)The mother is responsible for paying one half and living costs whilst in (country omitted) including enrolment and attendance at school (Order 22); and separate Order (23) that the father pay maintenance for the child while the child is in the mother’s care, including when the child is in the mother’s care overseas;
s)School expenses; extra-curricular activity expenses;
t)An array of Orders regarding when the child lives with the father, the child spending time with his siblings only under supervision of the father; non denigration by the father or his family of the mother; the child not having sleepovers with anyone else, including family members without supervision by one of the parent’s until the child reaches the age of 13; when the child lives with the mother, the child will spend supervised time with his siblings under the supervision of the mother, and at their own expense the siblings to make arrangements directly with the mother to spend time with the child whilst he lives with the mother, always giving 24 hours’ notice to the mother, in writing; communications between the mother and siblings shall only be related to the time spent with the child, the siblings will not denigrate the mother and will talk to the mother and the child respectfully; a copy of the orders regarding the child’s time with his siblings shall be served onto the child’s siblings for them to acknowledge their rights to spend time with the child and the siblings be allowed to communicate with the child by telephone or Skype at any given time when the child lives with either parent (Orders 54 (a) through to (j);
u)Holiday time between the child and the father is noted to be on the proviso that the child is granted time to visit his (nationality omitted) family every odd year as set out in Order 55 and 56 and special days as set out in Order 57 through to 62;
v)Restraints on the other parent in relation to attending school class or playground whilst the child is not in the other parent’s care ; should the parent attend the school administration during the child’s time with the other parent, such parent shall inform the other parent immediately in order to avoid conflict, exceptions about both being at school in the event of a school meeting when leave is granted for the changeover to be held prior to the school meeting; should the child have any preference about which parent shall attend with the child, either parent shall communicate with the other parent in order to let the other parent know; attendance at school meetings by each parent on a rotational basis and if a parent is not able to make the meeting they must let the other parent know as soon as possible in order to allow the other parent to attend the meeting (Orders 63 through to 67);
w)Restraint in relation to discussing adult issues or this litigation with the child even after the end of those proceedings; reading or showing material related to the litigation to the child or any other person including family members, partners, friends, except their lawyers or the Court (Orders 68 and 69);
x)Non denigration clauses and parties speaking respectfully of the other; and “neither party or their partners or family members to discipline the child (Order 70);
y)The paternal grandmother not to be present at changeovers or to attend meetings with the school (Order 72);
z)A range of restraints which are typically standard domestic violence orders such as not committing acts of domestic violence; the father is restrained from approaching within 100 meters of the mother at any place or where the mother lives or works; the father is prohibited from locating, attempting to locate or asking someone else to locate the mother; contact between the parents shall only be related to matters affecting the child and communication shall be only by text messages, emails or instant messages with content being courteous and straight to the point at all times. Excessive communication by either parent not responding to the issue in question will be regarded as harassment and treated as such; no phone calls to each other except for an emergency; father prohibited from using the internet or any other communication device (including social networking sites) to communicate with, publish pictures of or making comments concerning the mother; father prohibited from denigrating the mother to the child’s school staff, the mother’s entourage including friends, acquaintances, workplace staff and social groups the mother is involved with. (Orders 73 through to 81);
aa)The father shall not expose the child to witness domestic violence against the mother, his previous or future partners while the child lives with him (Order 82);
bb)The child shall resume his psychological appointments and receive as much support and counselling as needed to overcome his trauma from domestic violence and child abuse; (Order 83);
cc)The father pay the mother’s legal costs; the father shall pay compensation for reasonable expenses lost as a result of the contraventions.
Father’s Orders sought
The father has sought orders that X live with him, that he have sole parental responsibility. That the mother be restrained from removing X from Australia and he is opposed to the child being taken to (country omitted) for any time period. During the trial, the father sought orders that the mother spend supervised time with the child. At the end of the trial, the Father submitted that if the Court did not support this position, he reverted to X spending each alternate weekend commencing Friday to before school on Monday (extended if Monday is a public holiday) with the mother; he sought non-denigration clause and that the child’s passports ((omitted) and Australian) be held by the Cairns Registry. The father sought restraints on the mother removing the child from the (omitted) area and that each keep the other informed of residential addresses and telephone numbers; communication by text message.
The father sought that all school day changeovers be at the child’s school and on non-school days at either the (omitted) at (omitted) or the (omitted) Contact Centre.
There is one Order that each of the parties said they agreed to, and that was the mother’s proposal that the child be raised in the (religion omitted) religion. The father said he agreed in principle, but as far as he knew the mother did not practise any religion. The father preferred that the issue of religion was left to the parent who had parental responsibility.[8]
[8] Transcript 20/11/15, page 347-349, line 10 onwards.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”).
In making parenting orders, the best interests of the child 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). Since June 2012, the legislation now requires that the Court give greater weight to the second primary consideration.
When deciding what parenting Orders to make it is the best interests of X which is the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DAA). The presumption relates to the allocation of parental responsibility, not the time the child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds it would be not in the best interests of the child for it to apply.
If the presumption applies, and there is an Order for equal shared parental responsibility, the Court must consider whether spending equal time with each parent would be in the child’s best interest (s.65DAA(1)) and if no such Order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
In MRR v GR [2010] HCA 4 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 to order equal time or significant and substantial time. A determination as a question of fact that it is 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.
In the event an order is made for sole parental responsibility, which each of the parties seek in this matter, the Court must consider what orders would be in the best interests of the child, having regard to all of the relevant section 60CC(2) and (3) considerations.
I have had regard to all of the evidence, exhibits and submissions. A statement of fact in these reasons represents a finding unless otherwise indicated.
Witnesses
The Mother
The mother is an intelligent opinionated woman. She is (nationality omitted) having come to Australia in 2008. She is now an Australian citizen. She is fluent in English and also speaks six other languages.
She was initially legally represented, however, during the course of these proceedings, she became self-represented. My strong impression is that she is revelling in the preparation of documents and being a litigant. She is meticulously organised though the sheer number of documents she has prepared meant she was often confused and took a long time to find documents she wanted, she has dates and events memorised, many of her answers under cross examination referred the questioner to subpoenaed material, departmental records, police records, other affidavits in an ongoing cross checking and cross referencing process. On Many occasions her answers were also that the evidence about something that had occurred was contained in her own recordings (of which there were hundreds). Typically this was not a recording of an incident, but rather, a voice recording of the mother herself stating that something happened. It seems that in addition to her diaries, the mother also keeps voice recording notes on a daily basis. It is clear that the mother is consumed in every aspect of this litigation.
As can be seen by her proposed contravention application filed on 3 November 2014, which covered about 30 contraventions, some of which went back to events 12 months earlier, the mother’s annexures and material are voluminous. As the mother said “it took me hours.” Most if not all of the contraventions are not capable of being established, as they relied on supposition on the mother’s part, rather than facts. For instance, the mother regards as a breach the child saying something to her and her conclusion that the child must have heard it from the father, and therefore she concludes the father was continually lying and acting contrary to Orders, with the evidence being her discussions with X. Having heard all of the evidence during the trial, I am satisfied that the events referred to by the mother, do not constitute a contravention, rather they represent suspicions based on what 4 or 5 year old X said. As will be seen elsewhere in these reasons, by the conclusion of the trial, I was satisfied that the mother’s evidence about what X has allegedly said, is contrived, false or represents coaching of X by the mother.
Troublingly, it became apparent during these proceedings that the mother had not only recorded a particular conversation referred to in her material, she had also recorded the child on many occasions. The mother gave evidence generally the child would say something, and then mother would then reach for her phone, and ask the child to repeat what he had just said. On other occasions, the mother said that she just reached for her phone and captured most of the child’s statements.
Some of the recordings were played to the Court. They were downloaded from the mother’s laptop. As I have said, there were hundreds of conversations recorded with the child and voice recordings from the mother. When the mother records herself saying that an event or incident happened, the mother relies on “having a recording” and therefore evidence that the event or incident happened. The mother has been very busy generating her own “evidence” in this manner. She has also been generating evidence to address special situations. This is her approach to supporting her case to just generate evidence of self-serving recordings of herself or the child X. For instance, the mother lodged a claim for criminal compensation through Victims Assist (this was in relation to an event of family violence alleged by the mother, but denied by the father) the father was not charged and there were no criminal proceedings. Upon receiving a letter from that organisation saying that the file would be closed as the evidence was contradicted and there were no findings, the mother generated a voice recording of the X then aged 4. The mother said out of the blue X just started a conversation saying that he remembered when the father had hit the mother some years earlier. She said the child’s spontaneous discussion happened just after she received the letter saying the file was about to be closed there being no evidence.
I do not accept this was a remarkable coincidence that on her receiving the letter from Victims Assist saying that they were closing the file, that the child totally unprompted, remembered the father punching the mother, some two or three years earlier. The recording sounded contrived. The child was aged four or five at the time of the recording and he repeated, in perfect sequence, a version of the events that provided “corroboration” for the mother. The event allegedly occurred in 2012, when the child was aged two. I am very troubled by the recording (and the other recordings). I do not accept that young X just happened to start up a conversation of his memories 2/3 years earlier. I am satisfied that the mother has had some strong influence in scripting the child as to what he is to say. The mother then used the recording as her “evidence.” Again she has generated her own evidence.
The mother’s affidavit of November 2014 supporting the contraventions referred to earlier, is testimony to the amount of interrogation to which this child has been subjected. On reading the affidavit, it is overwhelmingly clear that the mother is attempting to run a major smear campaign against the father and that she has used the child in these efforts in a direct way. I find this behaviour of the mother demonstrates her inability to separate own grievances regarding the father from her responsibility to parent. This is a very poor reflection of the mother’s parenting skills and judgment. Using the child in this manner is most harmful and will almost certainly lead to the child’s relationship with the father being undermined and to dissipate to no relationship. The mother holds very strong and antagonistic views of the father, and has demonstrated very clearly in her conduct and evidence, that she has no insight into the ramifications for the child, of being exposed to her hostile and demeaning attitude toward the father. Nor does she show insight into the consequences for the child of being heavily involved in conversations and recordings that have been initiated and recorded by her supporting her position against the father. This lack of insight into the harm being caused to X is deeply disturbing.
The cross examination of the mother was long and difficult. Ms McMillan Q.C. cross examined the mother in an organised and focused manner. The answers of the mother were characterised by a refusal on her part to answer a question directly and obfuscation when she found herself being in a position where an answer was against her own interest. Sometimes the mother would just cry, instead of answering. The mother at times gave evidence that was profoundly bizarre. These topics include the child doing a drawing which the mother said the child told her was about “her pre-birth depression”. The mother says, “on 10 March, around 8.30am, the child drew a picture of his conception as an unwanted pregnancy. The child depicted and commented about the mother with an unhappy facial expression when she found out she was pregnant, then at the doctors and later, once the child was born. The mother has, for obvious reasons, never talked about that subject with the child”.[9] The mother’s explanation was bordering on fantastical: A four year old child drawing pictures of his own conception. The same could be said for the conversation she allegedly had with the child in which he asked the mother to show him how he was born.[10] When asked to give a precise account of what the child said, the mother could not. She waffled in her response, effectively saying nothing.
[9]Mother’s Affidavit filed 3/11/14, paragraph 29.
[10] Transcript 19/2/15, pp. 230-237.
This also occurred when the mother was asked precisely what the child said on the topic of portraying himself as unwanted. The mother constantly wanted to give a narrative about what the child said, using her own language about what he would have said, rather than saying precisely what he said. Twice she was not able to recall anything that the child in fact said, saying finally, when pressed, “It is a complete blank”. I do not accept that. The mother said she had a “complete blank” because she did not sleep well. On her own evidence, when she said she had a complete blank, obviously that did not then explain how she could have written a paragraph of some 18 lines which included many references to what the child allegedly said in quotation marks. The mother quickly added, the reason she could write the affidavit with such particularity was because she recorded it. I do not accept that the mother recording herself is anything more than precisely that. The mother is recording herself for use in her litigation. It is not proof of the facts. I am satisfied the mother gave false evidence when it suited her case to do so.
The conversations with the child are deeply troubling as the mother is engaging in ongoing discussions placing the child right at the centre of the dispute, and gathering evidence through prolonged discussions with the child, as seen regularly referred to in the mother’s evidence. This ongoing dialogue with the child is well illustrated in the following paragraph:
“On 16 July 2014, out of the blue, the child asked the mother “Can you tell me the whole story about you and Daddy fighting? Because Daddy and Nonna are lying to me”. I was surprised about that comment and started recording our conversation. I asked: “Why do you think that?” X answered “Because they are not telling the truth. When I ask them, they lie about it”. I asked “Do you think I tell the truth?” X answered “Yes”. I said “I have never lied to you. I have always said things as they are. But the most important thing is that you are not responsible for any of this. All what happened is not your fault my love. If Daddy and Mummy are not together anymore is because we don’t agree with each other. We were fighting and there is no point staying with someone and fight. So, one day, I left and I decided to go and find a new place for you and me to live”. X asked “And is this place?” I answered “Yes. Now it is this place. But do you remember, there have been other places too. But this is our new home for you and me. You like it, don’t you”. X replied “Yes.””[11]
[11] Paragraph 53, Mother’s affidavit filed 3 November 2014.
Consequently, when the mother has given evidence that the child has seen or said something or told her something, I am not prepared to accept it. In my view, the mother is either prompting the child to say things and then recording it, or in relation to her own notes, she is just saying whatever she wants to say in her own recordings.
The mother has distorted the facts of many incidents in her material. I do not accept that it is because of any language difficulty. As can be seen, when she was represented by a lawyer, no jurat was ever included on her affidavit material. The mother gave evidence that she speaks fluent English, (omitted), (omitted) and (omitted). She also has other languages that she has a good knowledge of, including (omitted), (omitted) and (omitted), as well as (omitted), which she studied. At present, she is learning (omitted) through the (omitted). The mother confirmed that she puts on her CV that she is fluent in English, (omitted), (omitted) and (omitted). I am quite satisfied that the mother has an excellent grasp of the English language and that she has sufficient language skills in English to engage in the trial and cross-examination without the need for an interpreter. It is also evident from the hundreds, if not thousands of documents that the mother has prepared herself in English for use in this trial, which show a high level and sophisticated level of ability to speak English and to write English.
The mother is in fact very articulate and chooses her words very carefully. The mother is a very intense woman. She has given evidence in an exceedingly frustrating style, querying anything and everything, insisting that documents be shown to her that she well knows exists and could recite their contents. She has been uncooperative and obstructive. She has deliberately, in my view, chosen to misunderstand questions as a distraction. If the answer might be against her own interest, the mother has been reluctant to answer. In my view, the mother is working out what is the best answer to further her position. At times when the mother’s poor conduct was highlighted and the mother lacked an explanation, she cried or wanted to leave. The mother’s CV’s show her level of competency and skill in the work force, and mastery of many languages.
The mother, however, has a tendency to jump to conclusions, after which her conclusion is fact, and then she operates on the basis that the fact exists. An example of this is seen in evidence gathered by the mother in regard to the father’s children from his previous relationship. The mother, having intruded into the Facebook exchanges of the father’s teenage children, produced an exchange between a 16 year son of the father and a friend. The 16 year old child of the father has a picture of a burning guitar on Facebook. The mother’s evidence was that X is not safe with the father’s children, and that they are engaging in dangerous activities. The mother said that clearly the burning guitar was burning in the father’s child’s bedroom, and therefore, the house was unsafe and the child was engaging in a dangerous activity. When quizzed about how it could be determined from the photo of a burning guitar that it was burning in the child’s bedroom, the mother said that there was nothing to prove that, but that is what she believed. Having formed that fixed view, the mother then proceeded to explain the dangers associated with guitars burning in bedrooms.
The mother was unable to acknowledge that she was jumping to major conclusions. The mother is firmly of the view that the father’s children present a risk to the child X, and was unshakeable in that belief. There was no evidence to support this. The mother also sought to condemn the father’s children for other crimes however, her allegations are without foundation.
Conversely, when the mother’s own conduct was under the spot light, she was unable to acknowledge that she had behaved inappropriately. Her evidence about an event where she held the father’s daughter C pinned to the ground and C became hysterical became an excruciating display of her inability to acknowledge any failure of her part. Her evidence was that the father’s children were “disrespectful” to her. The mother’s narrative started at the point that the children were “disrespectful” to her and she said that the event started when the father’s daughter spat at her. There were two events where the mother had C pinned down, the other occurred earlier when the mother tickled C to the point of distress with C being in pain and calling out to the mother to stop. The mother said in (country omitted) this would be regarded as disrespectful and she would not put up with it. She said that she had the child by the arms, and that another child had smashed a cup whilst she was holding the child C’s arms. Ultimately, only after thorough questioning, did the mother admit that the reason the child was hysterical was because she was distressed at the mother’s own conduct towards B.
The full account of events was that the mother, who had the children in her care whilst the father was out, had found the toilet blocked with toilet paper by B, the father’s son who has Asperger’s syndrome. The issue of B blocking up the toilet with toilet paper had been ongoing as he had an issue with cleanliness and used lots of toilet paper. The mother admitted, but then changed her evidence, that she had put a stick down the toilet to unblock it. She denied that she held the stick containing toilet paper with faeces on it up to the face of B. She said she “just showed him” and did not poke it in his face or chase B as was alleged by the father who spoke to the children after this distressing event. The mother then changed her evidence and said that she did just show B the stick by holding it up to him, but it did not have faeces on it or toilet paper. She admitted that when the C saw what was happening to B, it was then that C spat on her. The mother also admitted that when she grabbed the arms of the hysterical C, and pushed her to the ground and kneeled over her pinning her down, that was the point when the B with Asperger’s then also becoming distressed smashed a cup right beside the mother.
I am satisfied that the mother tried to diminish her own conduct in this distressing event. I am satisfied that she put the stick containing faeces and toilet paper into the face of B following him around to do so and that it was her own offensive and cruel behaviour that lead to the C spitting on the mother. I regard the mother’s actions in her role as step mother of these children, as overbearing and that the mother resorted to humiliation and physical force on these children. The mother was not contrite about this incident. She gave the impression she held these children in contempt. Her parenting inability to deal with a blocked toilet without causing this chaos and distress to children she was in charge of is most troubling and demonstrates her inability to exercise appropriate parental responsibility and a poor reflection of her capacity to parent appropriately. Her conduct was deeply disturbing. The children were affected by it. C needed counselling and did not return to her father’s home for about a year after that.
After X was born on (omitted) 2010, the mother suffered post-natal depression. She admits that the pregnancy was unplanned and that her initial response was that she did not wish to have the child. The subpoenaed records show that the mother struggled after baby X was born in not wanting the child and not wanting the child to interfere with her own daily activities. The mother is seen saying that she does not want anything to interfere with her routine of rising at 9 am and going to bed at 9 pm. The mother said even now, X, aged 5 does not go to bed until 8.30pm or so.
In relation to the period following the birth of X, not unexpectedly the mother minimised her symptoms. At times she disagreed with what was recorded as her comments in subpoenaed medical records. At the time, given the mother’s post-natal depression and rejection of X, the father cared for X as much as he could. When the mother was not coping at all, she contacted and involved the Department of Child Safety and asked the Department to place the child in foster care. The Department investigated the mother’s health and her attitudes towards the child as seen in their reports. They determined that with ‘parental agreement’ X would be placed into Foster Care for a month. As part of the arrangement, the Department of Child Safety insisted that the child be placed in full time day care as a way of relieving pressure for the mother and having others involved in the child’s care. The mother agreed though that at a certain point (the end of 2010) she was coping much better.
The records show that the father was regarded by the mother then, as being very supportive of her. I accept that he was. Now, however, the mother will not acknowledge that he was helpful as it does not suit her purposes to do so. She said he was never there. The father was the sole financial provider for himself, the mother and X when the parties lived together and he did the main looking after of baby X when he was home from work. I accept that he made a decision to work and keep an income coming in to provide financial support for himself, the mother and X.
On the third day of trial, the mother was cross-examined up until 3.40 pm, after which time she was given the opportunity to be re-examined. During re-examination, the mother sought to tender a myriad of documents never previously seen by the parties. The whole process took one hour and fifty minutes. The Court waited for the mother to wade through bundles of documents. The mother has demonstrated during cross examination that she is a most difficult, argumentative and stubborn woman. She has refused to answer any questions with a simple answer, even when it is obvious that all is required is a “yes” or “no.”
Throughout the cross-examination the mother has been smiling and smirking at the father. The mother acted with supreme confidence at times being sarcastic and mocking of the father. I saw no evidence that the mother has any fear of the father, quite the reverse is the case. During the mother’s cross examination of the father, at a point, as seen in the transcript, after many hours, I halted the mother’s cross examination of the father as I formed the view she was simply using the process to badger and intimidate him. The father appeared worn down, he has rightly been disturbed and distressed by the attacks upon his own family, mother, former wife, and children by the mother.
Recordings
The number of recordings of the child the mother has made is in itself an issue of great concern for the Court. On the recordings the mother is heard expressly interviewing the child and the content of the recordings was extremely troubling.
Whilst many recordings were tendered, the Court played out loud two of the recordings that the mother had made with the child. There are too many recordings for the ICL to tender; however, examples were chosen reflective of what is on the other recordings. Interestingly, all of the recordings are in English, the mother says that she always speaks (language omitted) to the child.
At the commencement of the hearing on day 4, the mother sought leave filed a further affidavit and a video recording made by her regarding an incident that occurred in between the last trial date on 20 February 2015 and the recommencement of the trial on 30 March 2015, referred to elsewhere as the (omitted) incident. The incident occurred on 21 March 2015. The mother also said that, since she was in Court, that there were things that she had said that she needed to correct. When given an opportunity to do so, most of this turned out to be the mother wanting to add or qualify her previous evidence or enhance her previous evidence.
The mother however, had to concede after seeing the video of the (omitted) incident, that she did not speak (language omitted) to the child when she was video recording him. The mother conceded this was because she intended to use the footage for evidence and the Court would not be able to decipher conversation she had with the child in (language omitted).
The mother has, whilst under cross examination in between Court dates, continued with her evidence gathering. One such occasion was to contact her own witness, Ms M, her psychologist whose subpoenaed records did not indicate that the mother had spoken to her since a certain date contrary to the mother’s oral evidence. The mother advised the Court on the next occasion whilst still under cross examination, that she telephoned Ms M and confirmed that, in fact, she did see her after the date indicated in Ms M’s records.
The (omitted) Hotel incident on 21 March 2015
In the midst of the trial, on 21 March 2015, during a break between hearing dates, the (omitted) incident took place. The mother recorded the aftermath and applied to re-open her evidence to have this incident included as part of her case.
The incident occurred at the swimming pool of the (omitted) Hotel in (omitted) on 21 March 2015. When the trial resumed, the mother gave her account. The mother said she took X for a swim in the swimming pool of a private hotel. The mother did not agree that the pool belonged to the resort and therefore was not open to the public. She said there are plenty of hotels that allow her to go swimming, whether or not she is staying in the hotel. The mother was neither staying at the hotel nor did she give evidence she was a guest at the hotel.
Ms S, the father’s former partner, had booked to stay at the (omitted) Hotel. Ms S was at the hotel pool. Her children, C and D and a friend of C’s were swimming in the pool. Ms S has also given evidence and been cross examined about the (omitted) incident.
The mother says that when she walked into the pool area, after being there for five minutes, she realised that the father’s children were also at the swimming pool. Their mother Ms S arrived at the poolside too. The mother said she allowed X to go and play with the father’s children (X’s siblings). While Ms S was taking photographs of C and her friend, the mother walked up behind her and then, provocatively, in my view, issued a directive to Ms S that she was not to photograph “my son or me.” Ms S told the mother (as was obvious from the mother’s and X’s position behind Ms S) that she was not, and that she was taking photos of C and C’s friend.
After a period, Ms S then heard the noise of a dispute that had broken out between C and the mother on the other side of the pool. Ms S approached and saw that C was very upset. The mother was screaming and swearing at C calling her a “psycho like her father.” Ms S observed the mother in a rage. Ms S stepped in to place herself between the mother and C. C reached over and hit the mother in the face. The mother responded and Ms S saw her kicking C in the legs and stomach and scratching C and attempting to smack her face, calling C “a little bitch.” The mother grabbed C by the hair and also grabbed Ms S by the hair and pulled her head down saying “and you….you are a fucking bitch.” The mother kicked Ms S. C bore the marks evidencing this violence. The mother maintained there was absolutely no reason for C to hit her and that she had done nothing at all to provoke it and denied that she kicked C in the legs and stomach and scratched her and says that C punched her and kicked her.
Under cross examination, the mother admitted that she grabbed C by the head and pushed her down and that she “might” have also grabbed Ms S’s hair in the process. The mother admits that she told C that, if she kept talking, that she would prevent her from seeing young X.
The mother indicated that she was surprised to hear X say that he wanted to stay with his sister at one point and, at some point in the argument, she said X said, “That is my sister,” and the mother says, “I am your mother.”
I have heard the evidence of the mother and Ms S in relation to the events around the swimming pool, and I accept the evidence of Ms S. Ms S admits she was verbally insulting to the mother (as was the mother to her) however, her daughter was once again physically hurt by the mother. As can be seen elsewhere in these reasons, Ms S was an impressive witness, and gave an honest testimony.
The mother also admits that, when Ms S stepped in to try and prevent the argument that the mother admitted she may have got Ms S’s hair caught up in the fracas. There were certainly some insults exchanged both ways. The mother’s statement to Ms S that, “Mr Shaughnessy would say you used to be a fat cow but, if I was you, I wouldn’t listen to him,” was disingenuous.
The footage of the event, starts with the prolonged argument following the physical altercation involving the mother and C. The mother, rather than remove herself, is seen goading the teenage children of the father, and the mother can be seen continually returning to the conflict, promoting more arguments. X was present throughout. This incident occurred in the middle of a part-heard trial, and the latter part of it was filmed by the mother. I am satisfied that the mother was determined to make trouble and make trouble she did.
I also reject the mother’s evidence that throughout the incident she remained calm. The mother said this even after watching and hearing the video in Court, with the mother shrieking and goading the teenage children and refusing to disengage with them. The mother kept filming and certainly did not remain calm. The mother’s evidence that “Before that I definitely remained calm and, of course, yes, I was trying to be calm and reasonable to the best of my ability” was unconvincing and inconsistent with the facts. There was no sign of calmness by the mother. In terms of this hearing, at the point that this incident occurred, the mother had been cross examined and the father’s witnesses were yet to be cross examined.
Having seen the video that the mother took, I do not accept the mother’s evidence that, even though this all occurred in front of X, that he remained calm and simply looked confused. The child can be heard crying and seen running away from the mother. When the mother said to him words to the effect that he wouldn’t be seeing C, he said something to the effect that “she is my sister”. The mother refused to admit that X was running away from her, when clearly he was. The mother said he was running away from the “situation”. As I have said elsewhere the mother will not make any admission against her own interest no matter how clear is the evidence against her.
The mother has very little, if any insight into her role engaging in a full on physical argument with a teenager. The mother ought to have left when she saw the children at the pool, or much earlier in the build up to this incident. The mother well knows the distress caused by her towards the father’s children when she was in a relationship. C needed counselling after the event when she was pinned down by the mother which happened on two occasions. It is an inescapable conclusion that the mother was intent on creating a scene, filming it and using it in this litigation.
Even when the mother was asked to leave by the manager (given that she was not a guest at the hotel) she refused to do so straight away, saying she wouldn’t go without X. X was clearly, once again, right in the midst of conflict and it was obvious that he was overtly distressed. The evidence provided in a statement by the hotel manager, confirms the conduct of the mother in refusing to leave and being obstructive.[12] The evidence on the video shows C having a distressing reaction to the mother’s physical interference with her, and red marks to validate her distress.
[12] Exhibit ICL 12.
Ms S gave evidence and was cross examined on this incident. I accept her as a truthful witness.[13] A statement from the hotel manager is admitted which is supportive of the testimony of Ms S.
[13] Exhibit F7.
I am very troubled, as was the report writer Ms C after viewing the (omitted) video, by the mother’s desire to continue the conflict and her goading the father’s children to inflame the situation. The mother showed very poor parenting skills and an inability as an adult to deal with a teenage child or to control herself and her hostility, all in the presence of X. The mother was persistent in her determination to keep the conflict continuing at the hotel pool and filming it, unknown to the parties (other than the mother herself) being filmed. Her insensitivity to the broader picture of engaging in any conflict at all with C is to be seen particularly in light of previous physical force used by the mother on C (at least two occasions) and taunting B with a stick containing toilet paper and faeces. In view of these incidents, directly between the mother and the father’s children, it is astounding to hear the mother still contending that the difficulties she has with the children must be due to the father denigrating her to his children and X.
X was enjoying a happy time with his half-siblings in the swimming pool. Further there was simply no basis for the mother to take any issue about possible photographs being taken of X. He was swimming and playing with his siblings. The mother sees X as a possession and extension of herself, and does not genuinely acknowledge that in the father’s household, he is one of a number of children and the siblings love each other. The “no photographs” demand was a deliberate provocation, in my view, by the mother, as was her conduct in telling C she was “psycho like her father.” The mother does not understand the developmental levels of children including teenage children. This is well demonstrated in the (omitted) incident. It is seen in the orders sought by the mother against the father’s children, such as the mother seeking restrictions on the father’s children not being unsupervised with X, and directions that they contact her directly to discuss spending time with X when X is living with her and that the siblings give the mother 24 hours’ notice in writing, that the siblings get served with a copy of the Orders as set out at Order 54 (a) through to (j) of the her Orders sought. It is inconceivable that this Court would make Orders that children get served with Court Orders. I accept the evidence of Ms C that the mother has little to no understanding of the developmental needs of children. It appears that these orders are meant to simply create an additional group of persons (in this case minors - the father’s children with Ms S) with whom the mother can create and maintain conflict and litigation.
I will now turn to discuss the relevant section 60CC factors.
S. 60CC(2) The primary considerations are:
The benefit to the child of having a meaningful relationship with both of the child’s parents; and
The Family Report writer has concluded that X enjoys his time with both his parents, and that he is particularly close to his father. I am satisfied that it is X’s best interests to be able to have a meaningful relationship with both parents, however, in terms of the mother, there are serious reservations about her capacity to parent and her attitudes towards parenting and ability to understand appropriate behaviour towards children, which will need to be factored into any living arrangements involving X and the mother.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
I am satisfied that there is a need to protect X from psychological harm perpetrated by the mother and from the likelihood of further physical harm.
I am satisfied she the mother has subjected X to emotional and physical harm in a variety of ways including: Smacking him repeatedly when he was very young and the mother was out of control; placing him in a washing machine when he was 2 years and 7 months old, shutting the door, turning out the light and leaving him screaming and in distress; involving X in an array of inappropriate conversations which involve demeaning the father, implying expressly or impliedly that the father and his family are liars; being prepared to act out violently in the presence of X as the mother did in the (omitted) hotel incident and showing no regard for X’s emotional wellbeing.
I am satisfied that the mother has been violent and abusive towards the father’s other children when the mother and father lived together, namely C and B. I refer to but do not repeat all of the evidence about those distressing events which show the mother as out of control in parenting children, this time children older than X. The mother has been demeaning, physically overpowering and aggressive, she has taunted and distressed B in a most troubling and inappropriate display of her parenting skills. Even during the trial, in March 2015, the mother again showed her inability to control herself and adopt a mature adult attitude when dealing with the father’s then teenage children.
Ms E is of the view that X is most at risk when his parent’s hostility escalates or they actively begin to involve the child. I am satisfied that the mother has actively and extensively engaged X in this acrimonious separation.
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
X is too young to understand the ramifications of living with either the mother or the father. To the extent that X has allegedly expressed a view about the father and his family telling lies, I do not accept that this child has said anything other than that which he has been encouraged to repeat or say by his mother.
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)
I rely on but I am not repeating what is elsewhere in these reasons. I am satisfied X has a close and loving relationship with his father, paternal grandmother, his half siblings and Ms S. Ms E has described X as a much loved child by the father’s entire family. I am satisfied that the father is child focused and offers him all the usual childhood experiences with himself and his other children. The father is generally, a peaceful and quiet individual. I accept he has had moments of exploding through frustration, typically at the mother’s conduct, such as stealing the family boat or harming X. The father was undoubtedly angry when he went to a restaurant that the mother used to work at and caused a scene yelling at the mother. Generally though, I am satisfied that the father has approached his parenting of X as a calm and child focused father. I am satisfied that despite the barrage of litigation, harassment, intimidation and insults that the father has endured from the mother, that the father genuinely understands that X should have a relationship with his mother. As Ms E observed, the father is trying to navigate the most peaceful pathway for X in order to keep this whole dynamic peaceful.
X loves his mother, and enjoys his time with her however there are difficulties with the mother’s relationship with X at various levels. It is an exploitative relationship. The mother is prepared to use her powerful position as the child’s mother to have discussions that are intended to undermine X’s relationship with the father or paint the father in a very poor light, as it suits the mother’s purposes to do so. The mother has shown a distinct lack of compassion and understanding about the wellbeing, both physically and emotionally of children in this extended family, including X as referred to in these reasons.
Ms C observed the future difficulties for X when being exposed to acts of violence and conflict, as the mother has done. The mother has shown no insight into the effects upon X, the father or his family of her aggression, attitudes and parenting and her own conduct. I therefore have significant concerns regarding the nature of X’s relationship with the mother now and in to the future. I am not satisfied that she is able to prioritise X’s needs over her own. I am not satisfied that the mother will cease using X to achieve her end, of ongoing harassment of one kind or another, against the father and his family. This is a significant consideration in my determinations.
S.60CC(3)(c) The extent to which each of the child’s parents has taken, or failed to take, the opportunity: (i) To participate in making decisions about major, long term issues in relation to the child; and (ii) To spend time with the child; and (iii) To communicate with the child.
The mother has gone to extraordinary lengths to micro manage X’s arrangements when X is with the father and I am satisfied that most of her agenda, in creating changes and making requests, such as the father to take the child to the dentist in her time, has been contrived to cause trouble.
The mother failed to take the opportunity to spend time with X when she suddenly left and went on a working holiday upon separation. She was content for X to remain with the father indefinitely.
The mother chose not to spend time with the X upon her return after she had stolen the father’s documents and then his family boat, for around six months. This is an extraordinary length of time for the mother to hold dear to her desire not to tell the father where the boat she removed was stored. Judging by the text threats of the mother, she knew the distress she was causing to the father and his children. The mother wanted this impasse and distress to continue, otherwise she would have just told the father where the boat was. It was entirely in the mother’s control to be able to do so, however, she held a firm belief that the boat she took was as much hers as the fathers, and she was intent on selling it, without the father’s knowledge or consent even if that meant that her child did not get to see his mother for this period and she did not get to see X. I am deeply troubled by the mother’s attitude towards the child in these circumstances. The mother was not able to put the child’s needs above her own.
The father has remained the child’s primary carer since separation. The mother was content for him to be the primary and sole parent of X whilst she went for an overseas working holiday, for a period of her choosing. There are many decisions the father has made, in which he has taken the path of least resistance, as he is continually trying to avoid more conflict with the mother.
S.60CC(3)(ca) The extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child.
There have been ongoing Centrelink and Child Support issues between the parties. Each has provided for the child whilst he is in their care.
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
Making orders sought by the mother will likely have the effect of X losing his current close relationship with his father, siblings and extended family. The mother holds all of these people in contempt. The Family Report writer also considered that given the circumstances of having lived and been raised by his father for 3 years post separation, X also would be distressed if he was to cease living with the father as proposed by the mother. Ms E also considered that if X spent each alternate weekend with the father, as proposed by the mother, having such a strong attachment to his father, X would experience the restricted time with the father and the changed living arrangements on a permanent basis, as a profound loss. In her opinion, X would be very upset and likely grieve if he did not see his father more than this.
Making the orders sought by the father, who I am satisfied, understands and accepts that it would be beneficial for X to have a relationship with the mother, provided he is protected, the child will continue a relationship with the mother and the father, his siblings, his paternal grandmother and Ms S, the mother of his half siblings. It is in X’s best interests to have those relationships preserved.
The father’s household in my view represents a loving stable family circle and one in which X is loved. He has access to his siblings who also love him. The father’s proposal for X to continue to live with him primarily is supported by the recommendations of the Family Report writer. The father’s proposal has the advantage of ensuring that X has a relationship with both parents and his extended loving family. I consider this is a most significant issue in my determinations.
If X lives with the mother, I consider it inevitable that his current loving relationship with his siblings will be undermined and in the long term, likely become distant or non-existent. The mother as can be seen in these reasons has no regard or affection or respect for the father’s children. She has been aggressive and shown she is prepared to abuse these children. It is inconceivable given her level of contempt for the father’s children that their relationship would survive if X lived with the mother. The orders sought by the mother in regards to these children, are illustrative of this.
The mother wants to involve the father’s children in future litigation as is seen in her Orders sought and she wants the father’s children to have to negotiate time with X directly with her. These orders are designed for future conflict and litigation, which the mother would revel in. These orders are sought by the mother at Orders 54 (a) through to (j).
The Orders sought by the mother about the parents cross checking who is attending a particular school meetings and who is at school for other purposes and requiring notice of not attending a meeting so that the other parent can attend are entirely unworkable and would result in further litigation and require constant monitoring and communication between the parties.
Orders sought by the mother about the paternal grandmother not being present at handovers are not necessary as the mother has been the perpetrator of violence upon the grandmother, and it is a matter for her if she wishes to attend. I am satisfied that the grandmother has stepped in to help with handovers when the father has been legitimately unable to do the handover. To the extent that I need to, in relation to any contravention of Orders relating to this issue, I am satisfied that the father had a reasonable excuse as he was not able to collect the child due his work commitments.
The mother has sought orders that are typically standard domestic violence orders and include an array of orders such as excessive communication by either parent not responding to the issue in question will be regarded as harassment and treated as such” that will not be made by this Court. These orders are drafted with the opportunity for future litigation in mind by the mother as set out in her Orders sought 73 to 81.
The orders sought by the mother for the father to seek psychological appointments and counselling are not necessary, or based on any expert evidence I have accepted and will not be made. Orders that if the father withholds the child from the mother a recovery order is to issue are not appropriate nor necessary given all the circumstances in this matter and my findings that the father has been and will continue to encourage a relationship with the mother. I do not regard the father’s conduct in withholding the child when the mother would not hand over the child’s passport as being typical of his attitude of X spending time with the mother. At the time, given that the mother had disappeared overseas for an unknown time, the father had legitimate concerns about the mother removing X from the jurisdiction. Otherwise, each of the mother and father were locked into an impasse for six months in the height of their mistrust and conflict. The mother could have relented at any time.
I do not intend to make an order as per the mother’s orders sought at 39, that either parent’s time with the child will be reduced if the child accumulates 3 or more absences from school or extra-curricular activities. These are typical of the surveillance orders sought by the mother which would result in major disputes between each other. I am satisfied the mother knows this.
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Both parties live in (omitted) and there is no issue of expense or distance. It is however, very important to make Orders which ensure that these two parents do not have to see each other at handovers if at all possible.
S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
I rely on what is written on this subject elsewhere in these reasons. The mother’s psychological abuse to X and physical abuse is most troubling. There was no evidence that the mother is aware of her inadequate and harmful parenting techniques as used upon both X and her former step children. It is unusual to see such contempt for children as demonstrated by the mother towards the father’s children, whom I am satisfied she has abused.
Clearly, given my findings in relation to the mother’s significant lack of capacity as expressed throughout these reasons, the court has grave reservations about the mother’s lack of capacity to parent X.
The father also gave evidence that when he first met the mother and on one of the first occasions the mother met C, that she came up behind C and gave her a bite on the back of the leg. The father was not as condemning of the mother as he may have been, but said it was just entirely socially unacceptable.
The mother denied that this occurred, however, I accept the father’s evidence. The father was able to give, as he did in almost every situation, a thorough and particularised account of the incident. In this incident the father said he was standing in front of the big world map and that the mother came up and bit C on the back of the leg.
I have referred to other incidents of her parenting elsewhere in these reasons.
The mother has been determined to cause havoc and trouble for the father or his family for three years now. There is no evidence at all of the mother tiring of the battle or easing up with her campaign against the father and his family. Rather, it continued even during the trial, as seen in the (omitted) hotel incident and as seen in the level of hostility and accusations pressed by the mother against the father and his family even in the Court room. Whilst the mother is intelligent, articulate and has mastered at least six languages and in that respect has capacity to provide for X’s educational needs, the mother’s overt hostility towards the father and his children, X’s half siblings, shows a deep lack of capacity to understand X’s emotional needs and wellbeing. Further her propensity for argument and discord is high and seen at the day care centre which X attended. Eventually this flows on to the mother making complaints and wanting to remove X from the institution. This is a significant issue in my determinations.
The father has demonstrated that he has the capacity to raise X, including solo when the mother left at separation, and he has been the primary carer three years since. The father is child focused, he is able to provide for X’s general wellbeing including psychological and educational needs. He provides warm family experiences and many activities such as boating and camping for X to enjoy with his father, siblings and extended family. He has a very different approach to life and operates on a regular routine with a peaceful engagement on a day to day basis. In concluding this, I do not regard his incident at the restaurant when he was angry and shouting searching for his boat, as typical of his behaviour. I am satisfied that the father who now takes an antidepressant is doing all he can to keep a peaceful home and life for X, and that despite everything he has been through, he genuinely accepts that there is some benefit to X having a relationship with his mother.
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have noted that X has an Australian and (nationality omitted) heritage.
The mother is extremely competent to offer X education in her language, culture, history, cooking, music and any other aspect of her (nationality omitted) culture. The mother says she speaks to X in (language omitted).
X is described as a very imaginative young boy.
S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I am satisfied that the father has demonstrated that overall, he is a responsible grounded parent. The father has a consistency in his desire to protect X and for X to lead a stable family life. The father has the capacity to raise X and to provide for all his needs.
In addition to what I have said elsewhere in these reasons, the mother’s attitude towards parenting is profoundly affected by her own conduct of which I am concerned and critical. Her engagement in acts of family violence against the children of the father, C and B, her excessively harsh smacking of X and then blaming the father, and her act of placing X in the washing machine years after she was considered to be recovered from her post-natal depression to an extent that the Department were confident to return X to her care and her volatility at the (omitted) incident, in the presence of X. The mother’s volatility and hostility is simmering and ready to be unleashed at any point. The mother has shown insensitivity to the effects of family violence upon children in terms of her overt displays of aggression and conflict as seen at the (omitted) incident.
Overall, I have significant reservations about the mothers’ capacity to appropriately parent and about her ability shown in regard to responsibilities towards parenting.
I am satisfied that overall, the father has shown an appropriate attitude towards parenting and that he has acted in a child focused manner.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family
The father had a domestic violence order which was breached when going to a restaurant where the mother was, and where she had worked, to question her about the whereabouts of his boat. The father admits that this was foolish doing this and that he was very angry. I have taken account of this conduct. As to the other allegations by the mother, of the father punching her and harming her, I regard these allegations as false and I prefer for the reasons stated, the evidence of the father.
I am aware and accept the evidence of Ms S the circumstances she explained between herself and the father that existed and the pressures they were under, when the father hit a wall or something similar on a couple of occasions when he was under significant stress. I accept also that the father has never harmed Ms S and that when the father did hit the wall, C as a 6 year old got a fright. Ms S as I have said was an honest witnesses and showed maturity in her parenting and outlook on life. It is clear that Ms S and the father have mellowed and that their relationship has settled into to a very effective relaxed co-parenting arrangement, despite the interference and hostility from the mother into both their lives.
As I have said elsewhere, the mother has exposed the child to family violence in her conduct at the (omitted) hotel, in administering harsh and excessive smacking to X when he was 2, and she has treated him abusively by putting him a washing machine incident leaving him distressed and sobbing. The mother has engaged in acts physical of family violence against the father’s child C as referred to in these reasons. The mother has engaged in acts of family violence against B through intimation and humiliation.
I am also satisfied that the mother has engaged in violence upon Ms S (hair pulling and pushing her neck down) and Ms C (barging into her and punching on the shoulder).
The mother’s acts of family violence have a profound affect upon her ability and capacity to parent, her responsibility towards parenting and her attitude towards the child. This is a significant issue in my determination as to X’s best interests.
S.60CC(3)(k) If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
the nature of the order;
the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the Court in, or in proceedings for, the order;
any other relevant matter.
The domestic violence order obtained by the mother was not opposed by the father.
I have made findings elsewhere in these reasons in relation to the raft of allegations by the mother against the father. I have taken account of the father’s conduct as set out in these reasons.
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
This litigation is taking its toll on the father, his children and family and in turn this will likely affect X if it continues into the future. In addition to all of the evidence about events that have taken place between these parties outside of the courtroom, during cross examination by the mother of the father, I witnessed the mother being overbearing and intimating and eventually, stopped the mother’s further questions, as seen in the transcript at about day 2. Ms E also observed that the father shows signs consistent with having been exposed to trauma and to making concessions and missing out on time with X, just to avoid having to deal with the mother.
I have referred elsewhere to many of the orders being sought by the mother, and their propensity to create further litigation. I consider that final orders should be made in this matter and that the orders be proscriptive to prevent any misunderstandings but moreover, to prevent opportunities for the mother to create misunderstandings and the flow on conflict that has occurred in the past.
I accept the father’s submissions that he does not want orders for all of the special days throughout the year as the effort and communication involved in dealing with the mother to swap such times, leads to conflict and distress. I accept that X will not mind having two birthday celebrations, or having celebrations of other special days either earlier or later with either parent. I consider that orders need to be crafted to attempt to prevent any further litigation. The Orders sought by the father are in my view, less likely to lead to more litigation. He is trying to establish regular time with the mother, a regime where one parent makes the long term decisions, and where there is no necessity for the parties to have day to day communication on an ongoing basis, and in relation to an array of issues, as per the Orders sought by the mother.
I have set out elsewhere examples of the types of surveillance orders being sought by the mother and the likely consequences for the father and X, if such orders were made.
S.60CC(3)(m) Any other fact or circumstance that the court thinks is relevant
I have nothing to add.
Parental Responsibility
The presumption of equal shared parental responsibility does not apply as I am satisfied the mother has engaged in acts of deliberate violence upon the father’s children C and B whilst they were part of the family circle when the father and mother lived together. Also, the father has breached his domestic violence order and admitted to punching walls twice.
The presumption is rebutted as it is not in X’s best long term interests to have a situation where his parents are required to make joint decisions. No decision would ever be made as the mother is quite dishonest in her dealings with the father. She despises him. She has actually sought to cause harm to his children and she shows no respect at all for the father, or for his role in X’s life. They do not have similar parenting styles, the mother does not respect the father and they are not able to communicate effectively about long term or even day to day issues.
There is no possibility, in my view, that these parents will ever be able to make joint decisions about X’s best long-term care or long‑term decisions.
I am satisfied, for a myriad of reasons, having regard to all of my findings that it is not in X’s best interests to require his parents to work into the future with an Order for equal shared parental responsibility. It would most certainly lead to further litigation.
As to the order for sole parental responsibility sought by the mother, I have no confidence that the mother would exercise decisions in a child focused manner or in X’s best interests for the reasons set out herein. I find the mother has engaged in abuse of X and other children and that she has overt hostility toward the father and his family. She is unable to put X’s interests above her own.
I am satisfied that the father has made good and pragmatic decisions regarding X and that he is a measured and uncomplicated father who has had considerable experience raising children. I am satisfied he understands children and their emotional and intellectual very well. I am also satisfied he will make child focused and sensible decisions as a parent. I accept the submissions of the ICL in relation to the issue of sole parental responsibility that such an Order would be in X’s best interests.
Having given consideration to all of the relevant factors I therefore propose making an order that the Father have sole parental responsibility.
Discussion
I have had regard to the primary considerations and the additional relevant section 60CC factors. Having made a decision that the father will have sole parental responsibility for X, I must now consider X’s living arrangements having regard to his best interests.
Having regard to the evidence of the Report Writer and the evidence traversed in these reasons and canvassed throughout the section 60CC factors and the primary considerations, I am satisfied that it is in X’s best interests to live with the father.
I am satisfied that it is in X’s best interests to know his mother and spend time with her, such that he can enjoy a meaningful relationship with her, whilst not being under her influence to the extent that her poor parenting and attitudes towards parenting will impact upon his wellbeing and relationship with his father and siblings. I consider that in many respects the mother’s behaviour and attitudes toward the father, his children and parenting, constitutes a risk. If X lived primarily with the mother or spent significant or substantial time with the mother, I am satisfied that in the fullness of time, his relationship with his father and half siblings (who adore him) would not survive. The mother has a domineering personality and holds hard to her views. As X matures and develops his own views, I would not anticipate X being able to maintain any view contrary to the mother, so rigid and unyielding is she in her views. This would be a devastating outcome for X in the long term, given his closeness to his father and siblings. This is a significant factor in determining the time the X will spend with the mother.
There are serious issues in the mother’s lack of insight into her own violent conduct with the father’s children and X. I am satisfied the mother does not have the capacity to provide for the child’s emotional wellbeing. She has shown a considerable lack of insight in the taped harmful discussions with X. I am not satisfied that the mother can provide for his educational needs either, as whilst she is undoubtedly intelligent, and has superior literacy skills to the father as can be seen in her material and evidence and is fluent in at least six languages, her propensity to argue and cause conflict upon people and institutions she disagrees with, suggest to me that her relationship with the school staff will inevitably suffer the same consequences as happened at X’s day care centre. This could lead to instability in his schooling. The father has explained that the mother has already advised the school of her allegations against the father.
As is apparent in these reasons, I consider the mother has demonstrated very poor parenting over many years and shown hostility and lack of compassion towards the father’s children rarely seen in an adult.
In my view, the mother has no regard for the standing of the father in X’s life at all. I am satisfied that if the mother could remove X from the father’s life, she would.
As to the time to be spent by X with the mother and taking into account the best interests of X, I am satisfied that whilst the time needs to be sufficient to enable a meaningful relationship with his mother to continue, it needs to be tempered by the need to minimise X’s exposure to his mother’s attitudes and conduct. The Independent Children’s Lawyer submits 2 out of 3 weekends which is based on the report writer’s suggestions. The father says each alternate weekend.
I accept the father’s position that the certainty of each alternate weekend is less likely to lead to conflict and litigation and argument about which weekends constitute two out of three. The father does not want to chop and change or seek special days. He is most fearful that the mother will do what she has done in the past and exploit any and every opportunity to create an argument. I accept this is so. I am therefore, not going to make orders for special days as I wish to protect X from the inevitable conflict which will result.
Each alternate weekend enables X to have reasonable weekend time with the father and importantly his half siblings, rather than only one in three weekends. Weekend time is important and generally a more relaxing time for families. X is attending school and his older siblings are too, or alternatively into the future, they will likely be preoccupied with their own course in life during the week. The father also works during the week and there are events which lend themselves to the freedom of weekend time, rather than weekdays, such as camping and boating with other family members. I consider it is important for X to have equal weekend time with each parent.
I therefore intend to make an order that the mother spends time with X, each alternate weekend during school terms.
As to the school holidays I am aware that the father is almost prepared to forego seeking holidays, such is his anxiety about the possibility of further dispute and dialogue with the mother about the holiday time is to be split. I am satisfied that as submitted by the ICL, it is in X’s best interests to spend equal holiday time with each parent. To avoid any future confusion and therefore argument, I intend to order that the mother will always have the first half of the school holiday periods save and except for the Christmas school holiday period which will alternate between the parents from year to year to enable X to spend Christmas time and or his birthday which falls on (omitted) to alternate according to the one half formula. I will include a formula which will apply to determining the half way mark.
I accept that making orders for special days such as Mother’s Day and Father’s Day and parent’s birthdays requires an ability to facilitate such arrangements and changes to the regularly occurring weekend time. Regretfully, in this matter I am satisfied that attempting to navigate such changes will only open up opportunities for further conflict and I do not intend to order that weekends be changed to accommodate these days. They can be celebrated earlier or later, as the case may be. My overriding concern is to reduce X’s exposure to conflict and also to reduce potential conflicted and prolonged arguments for the father. His health and emotional wellbeing is significant given that he is to the primary parent.
As to the orders sought for denigration, these have been used by the mother as fertile ground for multiple contraventions. I do not accept that the father has been denigrating the mother. I do not consider that the mother would respect an order that she not denigrate the father. I do not therefore intend to make the order as it will only be used by the mother to make further baseless contraventions.
As to telephone time/ Facetime/ Skype I will make orders that the father is to facilitate such time between X and the mother twice a week and the father is to nominate the days and time of such communication from time to time to accommodate X’s routines and extra-curricular activities from time to time.
Overseas Travel
The mother has made allegations that the father is a flight risk. I do not accept that he has attempted to remove the child from the country or that he has any reason whatsoever to do so. This is a baseless allegation.
It is clear to me that the father is very attached not only to X but to all of his children. He has maintained a very close and easy relationship with his former partner Ms S. It is true that this was not so at the time of initial separation but has been the case for years. The father has worked in (omitted) in a business which he has had for over 20 years and he receives lots of repeat business. There is not a skerrick of evidence to suggest that the father represents a flight risk. However, as the mother has done on various other topics she has decided to turn the table and make a corresponding allegation against the father that he has made about her.
This has happened with the mother saying that her conduct in relation to putting the child in a washing machine and smacking him multiple times, is somehow the fault of the father
It is obviously clear from these reasons that I do not trust the mother to return should she leave the country with X. I consider she would very easily find reasons to file documents or take action once overseas that would result in X not returning. I am quite satisfied the mother would follow through with such conduct if she had an opportunity to do so. I am not prepared to make orders that X travel overseas with the mother as I consider she is a high risk of removing X from the father and his siblings. Whether the mother went for a weekend or a month, I have serious doubts X would ever be returned. As to X’s passport, the father is to hold possession his passport/s.
The mother has proposed moving to (country omitted) permanently as seen in previous Orders. A notation was made on the orders of 4 December 2013 to the following effect:
“The Court is being asked to refrain from transferring this matter to the Family Court of Australia at this point in time (noting that mother’s [sic] application to relocate to (country omitted)) on the basis that those instructions are yet to be confirmed. The transcript of proceedings of 24 September 2013 confirms that the Court indicated to the parties that Interim Orders would be made and this matter then transferred to the Family Court of Australia for hearing of the international relocation application, however this is being deferred given the specific request of the Applicant’s solicitor.”
It is unfortunate for X that he will not get to go to (country omitted) while he is a young child. That, however, is a lesser cost as compared to the risk of him never having any other relationship with the father and with his siblings if the mother does not return him to Australia. I consider that there is a risk that this could occur, given the mother’s hostility towards the father and his family and her inability to deal with them with respect or honesty.
The mother herself will, no doubt, be able to introduce the (country omitted) language, food and culture to X. There is a (nationality omitted) society in (omitted) ((omitted)) and the mother will have the opportunity to educate X in the ways of his (nationality omitted) ancestry until he has reached 18.
The mother has accused the father of not promoting his (nationality omitted) ancestry. In my view, it is the mother’s conduct which has caused him to be opposed to the order to travel overseas, not the fact of X's (omitted) heritage.
I do not agree with the suggestions of the mother during cross-examination that the father was racist. I do not accept her evidence that the father showed racist attitudes to a male (nationality omitted) visitor the mother had at her home on one occasion. This was just another insult by the mother towards the father, along with her suggestion to the father, that he was an extortionist.
These allegations are all without foundation.
I certify that the preceding three hundred and sixty eight (368) paragraphs are a true copy of the reasons for judgment of Judge Willis
Date: 25 October 2016
[22] Transcript 20/11/15, p. 276, lines 0-10.
Key Legal Topics
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Family Law
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Jurisdiction
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Remedies
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Procedural Fairness
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