KELLIS & ANTONI

[2015] FCCA 1456

FEDERAL CIRCUIT COURT OF AUSTRALIA

KELLIS & ANTONI [2015] FCCA 1456

Catchwords:
FAMILY LAW – Parenting dispute – children 16 and 9 – elder child estranged from father and younger child influenced by elder child – mother wholly opposed to children spending time with father – allegations of family violence – difficulty in assessing family violence where both parents not wholly reliable witnesses – Independent Children’s Lawyer recommending “baby steps” towards re-establishing relationship between father and children – orders made as proposed by Independent Children’s Lawyer.

Legislation:  

Family Law Act 1975, s.60CC

Goode v Goode [2006] FamCA 1346

Applicant: MR KELLIS

Respondent: MS ANTONI

File Number: MLC 10483 of 2013

Judgment of: Judge Burchardt

Hearing dates: 30 and 31 March 2015

Date of Last Submission: 31 March 2015

Delivered at: Melbourne

Delivered on: 9 June 2015

REPRESENTATION

Counsel for the Applicant: Mr McLeod

Solicitors for the Applicant: Patten Robins

The Respondent: In person

Counsel for the Independent Children’s Lawyer: Ms Macgregor

Solicitors for the Independent Children’s Lawyer: Macgregor Solicitors

ORDERS

1. That all previous Parenting Orders be discharged save for paragraphs 5 and 8 of the Orders made 5 December 2014.

2. That to the extent that they have not been dealt with already by the Court, the Contravention Applications filed on 2 December 2013,

   
   

   7 May 2014 and 13 March 2015 be dismissed. 

3. That the Respondent Mother make, file and serve a Response and any further Affidavits upon which she seeks to rely by 30 June 2015.

4. That the children [X] born [in] 1999 and [Y] born [in] 2005 live with their Mother. 

5. UNTIL FURTHER ORDER the Father spend time and communicate with the children as follows:

   (a)From 10:00 a.m. until 5:30 p.m. on a Saturday and Sunday each alternate week, commencing 13 June 2015; and

   (b)At such other times as may be agreed between the parties from time to time. 

6. That for the purposes of changeover, the parties meet at McDonald’s Family Restaurant, [address omitted].

7. By 30 September 2015, the parties attend a Family Dispute Resolution Conference conducted by Victoria Legal Aid, and co-operate with all reasonable requests of the case manager for the children to participate in the Kid’s Talk program; and

8. The matter be otherwise listed for mention on 5 October 2015 at 9:30 a.m. 

9. IT IS NOTED that the Mother will make her best endeavour to encourage the children to sleep over at the Father’s home on the Saturday nights following time spent on Saturday. 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA

AT MELBOURNE

MLC 10483 of 2013

MR KELLIS

Applicant

And

MS ANTONI

Respondent

REASONS FOR JUDGMENT

Introductory

1. In this matter, the father seeks to spend time with his daughters, [X], born [omitted] 1999, and [Y], born [omitted] 2005.  The father seeks that the children live with him, effectively to counter what he perceives as the mother’s alienation of the children.  The mother resists this and seeks that the children spend either no time with the father or very limited time.

2. The Independent Children’s Lawyer seeks interim orders and a regime in the meantime whereby the children spend each alternate weekend with their father.

3. For the reasons that follow, I propose to make the orders sought by the Independent Children’s Lawyer.

Introductory – Past proceedings

1. The parties first commenced proceedings in court in late 2006.  The father’s application sought that the children live with him, and his affidavit in support contained a number of significant allegations about the mother.  Apart from the fact that the parties’ relationship was clearly tumultuous throughout, the father alleged that the mother worked in the adult sex industry, associated with criminals, had been violent towards him in front of [X], and had not looked after the children properly.  He also accused the mother of being a drug user.  From material annexed to the father’s affidavit filed 16 January 2007,

   
   

   it is clear that in July 1997 the mother was working in the adult sex industry despite her subsequent denials. 

2. The mother’s responding affidavit, filed 2 February 2007, broadly denied the allegations made against her.  She was not backward in making accusations of her own.  Noteworthily, the mother deposed to the father having been incarcerated as a result of cultivating and trafficking marijuana in 1998.  She also alleged ongoing drug use on the father’s part and an endeavour by the father on one occasion to strangle her.

3. The mother deposed at paragraph 55 that “I have never worked in the adult sex industry”.

4. The parties both saw Dr A, whose affidavit annexing his report was filed on 20 September 2007.  He noted the differing accounts given by the parties of their history together.  I note that although Dr A could find no evidence of any specific psychiatric disorder likely to adversely affect either parent, he found that the mother’s history and the nature of her relationship with the father “is suggestive of a woman with personality difficulties that may have an adverse effect on her ability to form satisfactory long-term relationships”.  He also noted that the father’s “history and presentation was suggestive of narcissistic personality traits”.

5. It is immediately apparent that neither parent, so to speak, covered themselves in glory.  The mother’s bare-faced denials of involvement in the adult sex industry, when the same is perfectly clearly established, does her no credit.  The father’s failure to mention his very significant conviction for drug trafficking in circumstances where he was making vivid suggestions of drug abuse by the mother stands in the same light.

6. Notwithstanding these difficulties, the parties entered into final consent orders with the assistance of an Independent Children’s Lawyer on

   
   

   20 September 2007.  The orders provided for joint equal shared parental responsibility and for a regime for the children to spend time with their father.

The materials filed in this proceeding

1. This proceeding commenced with a contravention application filed by the father on 2 December 2013.  He complained of major breaches of the spend time regime.  It was asserted in the father’s affidavit that the mother was refusing to let him see the children.

2. The mother’s position was that the father had failed to avail himself of the opportunities to spend time with his children.  She repeated assertions of drug use on the father’s part.  She repeated her earlier allegations of physical violence during the relationship.  She also expressed concern that the death of the paternal grandmother, whom it was asserted had been the true carer of the children when they were with the father, created an additional difficulty.

3. It should be noted that the court ordered the contravention to stand as an application in a case on 18 December 2013 because it was obvious, even at that stage, that the real issues between the parties would require further reconsideration of the parenting orders.  Since then, the parties have filed all too much material, much of it accusatory, and some of it having the flavour of the florid materials filed in the first proceeding to which I have already referred.

4. Put shortly, I do not propose to traverse the parties’ affidavit material in any significant way because the evidence that is of real assistance to the court is that of the external professionals, together, to an extent, with the parties’ evidence given in court.

The report of Mr S, 3 March 2014

1. The court received an oral report from Mr S pursuant to a conference organised pursuant to s.11F of the Family Law Act 1975 (“the Act”) on 3 March 2014. 

2. Mr S noted that the parties, on any view, had a 15 year relationship characterised by both of them as “on/off”.  Mr S noted considerable difficulties arising out of the father’s deafness.

3. I note that the mother asserted that the father was essentially “putting on an act” in order to gain sympathy.

4. Mr S noted the mutual accusations made by the parties and, most specifically, the mother’s assertion that the father has simply failed to spend time with his children at his own election.

5. In his interview with [X], [X] made it clear to Mr S that she had experienced first-hand violence occurring between her parents and arguments between them which she herself had sought to break up.  She confirmed spending time with her father but mainly in the context of her grandmother being present and the grandmother discharging most of the parental duties.  [X] indicated to Mr S that she was scared of her father and did not want to spend time with him.  Nonetheless, Mr S characterised her as being a child that had not totally given up hope of having a relationship with her father.

6. [Y] described a positive relationship with her paternal grandmother but not with her father, but Mr S noted that, unlike [X], who is much older, [Y]’ views reflected her immaturity and might not properly be accorded similar weight.

7. Given the extremely polarised versions of the facts noted by

   
   

   Mr S, and the fact that the mother was self-represented (as she has been throughout this tranche of litigation), the court appointed an Independent Children’s Lawyer and brought the matter back to court on 1 April 2014.  With the assistance of the Independent Children’s Lawyer, orders were made for the children to spend supervised time with the father at Berry Street and for psychiatric examination of the parties.

The reports of Dr D

1. It is not clear to me that the reports of Dr D have been put on affidavit.  Nonetheless, the court is in possession of copies of them.  The report in respect of the father is dated 29 May 2014.  I note that in the synopsis, Dr D observed inter alia:

   “Mr Kellis appeared to provide an authentic narrative, but he notably denied a history of drug use, only to vaguely admit to minimal past use of cannabis, but only when his previous admission of cannabis use was raised from Dr A’s report.  It was unclear if this inconsistency raised concerns about the reliability of Mr Kellis’ self-report in other aspects of the assessment.”

2. I note that Mr Kellis indicated that he had developed a hereditary deafness condition and had started losing his hearing in his 30s.

3. Perhaps the most important part of the report is paragraphs 9 and 10, where Dr D wrote:

   “9.    Mr Kellis does not present with signs of a psychiatric disorder.  It is unclear from this single assessment, and without the benefit of also assessing Ms Antoni and the children, if he has underlying personality based problems.  I note Dr A refers to suggestions of narcissistic personality traits.  I did not sense that Mr Kellis was narcissistic in this assessment.  It is unclear if he has anger and aggression problems, but it would seem that this is the experience of Ms Antoni.  He might require anger management counselling and completion of a Men’s Behaviour Change program if the court can substantiate

   
   

   Ms Antoni’s claims. 

   10.  Mr Kellis’ relationship with the children has been fragmented and interrupted.  He believes he had a particularly good relationship with the children prior to the most recent period of extended absence.  The reunion of the children with

   
   

   Mr Kellis will need to be managed sensitively.”

4. The mother had not attended her initial appointment with Dr D but ultimately did so.  She was interviewed on 6 November 2014 and

   
   

   Dr D’s report is dated 28 November 2014.

5. Dr D described Ms Antoni as presenting “with a stable mental state”.  She did not present with any signs of mental disorder.  However, Dr D noted that “(c)oncern relating to the possibility that Ms Antoni was not completely open and candid in the assessment is detailed in the opinion” (page 1-2).

6. At page 2, Dr D noted something that, to my mind, is somewhat unusual:

   “Ms Antoni is single.  She noted that she married a man from Egypt leading to plans to live in Egypt, but it became “too complicated” and the relationship ended.  Ms Antoni said

   
   

   Mr Kellis had agreed to the move to Egypt with the children, but he changed his position.  She thought his change in mind related to his “split personality”, associated with methamphetamine use.”

7. I note that at page 2 “Ms Antoni denied working in a strip club and prostitution, as alleged by Mr Kellis”.

8. I note that Ms Antoni was not shy in making serious assertions against Mr Kellis.  She referred, perhaps understandably, to the father’s conviction for cultivating cannabis and cannabis use.  She also asserted methamphetamine use by the father.  She further said that the father had slept on the floor next to their daughter naked, and that the father had been assaulted by a bikie while ‘doing deals’ to get chemicals for methamphetamine.  The mother was opposed in a general way to the father seeing the children but she did support supervised contact, because the children did not wish to see him.

9. I note that on page 5, Dr D recorded Ms Antoni’s view that the father was assaulted by thugs in balaclavas which had led to his hearing problem.  Dr D recorded:

   “In light of Ms Antoni reporting that Mr Kellis’ hearing problem related to an alleged assault, rather than a hereditary condition, as he reported in his assessment, I considered it possibly important that medical information to his hearing problem be obtained. I understand Mr Kellis has not yet attended an appointment at the Eye and Ear Hospital, and such there are no medical records. 

   Patten and Robins Lawyers forwarded a copy of

   
   

   Mr Kellis’ audiology reported dated 15th October 2014, confirming a “nine year history of progressive hearing loss, with a strong family history of this”. 

   The ICL confirmed that medical records of Mr Kellis attending the [omitted] Hospital, as indicated by Ms Antoni, were not present.”

10. On page 6 of the report, Dr D recorded his concern that the mother’s credibility might be questionable given her assertion that the father’s hearing problem resulted from a serious assault from underworld-like figures linked to illicit drugs when it was clearly a degenerative inherited condition.  Dr D also noted:

    “I further note that Ms Antoni appears to have falsely filled forms as stated in Mr Kellis’ Affidavit sworn 25 July 2014 point 11.2 ‘GK-4’ where she refers to herself as [occupations omitted].  This information is not consistent with the report of employment history provided in this assessment.”

11. I note that Dr D noted the differing positions of the parents as to whether the children wished to see the father and stated:

    “The AXIA contact reports suggest that there have been some issues with the children, particularly [X], resuming contact, but on the whole the children are comfortable and happy being with their father.  I gained the impression that Ms Antoni is only willing to see the children’s apparent disinterest through a narrow perspective, and she has been perhaps been unwilling to accept that the children’s relationship has improved and stabilised.

    As recommended in Mr Kellis’ report, I would recommend both parties complete a Post-Separation Parenting Program, as I anticipate ongoing issues with trust and confidence in the other party.  It is likely in this matter that both parties have provided tailored, possibly distorted, and perhaps false accounts in some aspects, with the truth unlikely to be fully recognised.”

12. It should be noted that there was no application by any party that

    
    

    Dr D be made available for cross-examination.

The family report of Ms C, dated 15 September 2014

1. As with Dr D’s reports, this report does not appear to have been put on affidavit.  Nonetheless, no party has taken any objection arising from this, and there was no application by any party to have

   
   

   Ms C attend for cross-examination.

2. Ms C’s report records at paragraph 11:

   “There have been six reports in total to the Department of Human Services (DHS) from May until November in 2008 and one report in July 2010.  The reports indicated a pattern of allegations and counter allegations regarding the safety of the children which included exposure to family violence, illegal substance abuse by both parents, hygiene issues, verbal abuse of children by the mother, concerns about each parent’s ability to parent the children, inappropriate physical discipline by the mother and allegations the mother was engaged in sex work in the home. 

   In discussions regarding [X]’s presentation at school where she was then in Grade 4, DHS were informed there were no concerns regarding [X]’s wellbeing.  The police who applied for an Interim Intervention Order addressed the family violence concerns.  The other concerns were unable to be confirmed by professionals.  Ms Antoni reported the claims were the result of malicious intent by Mr Kellis.  DHS did not intervene as they assessed the children were not at risk.”

3. Ms C correctly recorded the parties’ positions at paragraphs 17 and 18.  The father was essentially seeking an equal shared time regime (possibly introduced over a 12 month period) and the mother’s position was that the children did not wish to spend time with their father because of violence in the past.

4. The interview with the father was, in my view, unremarkable.  I note that he maintained his denials of any kind of misconduct, although he did not apparently dispute his conviction from 1997 for trafficking cannabis.

5. I note that at paragraph 35 the mother reported her relationship with a Mr K, who lives in Egypt.  I note that at this stage the mother asserted that Mr K was hoping to migrate to Australia on a permanent visa.  It should be noted by way of interpolation that when she saw Dr D in November 2014 that relationship, apparently so satisfactory in September 2014, had come to a complete end by November 2014.

6. The mother’s account of events was likewise consistent with her previous materials.  She maintained her assertions as to the father’s misconduct through associations with members of bikie gangs and criminals.

7. It was the mother’s position (paragraph 41) that the father was disinterested in seeing the children throughout 2012 and most of 2013, and that he only attempted to make contact when the paternal grandmother died in September 2013.

8. I note at paragraph 45 Ms C recorded that in 2012 and 2013 the police were called to verbal disputes between the mother and her daughter from a previous relationship.

9. When interviewed, [X] reported that she had seen her father hit her mother with a lot of arguing and yelling by both parents.  She was scared of her father when he yelled.  She was adamant (paragraph 43) that the only time she enjoyed being with her father was at the paternal grandmother’s home which is where he lived.

10. [X] essentially was disinterested in seeing her father but said “if I was forced to see him, then I would” (paragraph 44).

11. [Y] unequivocally stated that she did not like anything about her father (paragraph 47) and her message to the judge was “I don’t want to see Dad, or go to his house and never want to see him again”.

12. When seen with the children, the father played with [Y] with laughter and some conversation (paragraph 52) but [X] ignored him throughout.

13. The mother’s interaction with the children was unremarkable.

14. Ms C then summarised the contact report from Axia Solutions at paragraph 54 (the Axia Solutions reports are on affidavit and are consistent with Ms C’s summary).  I note:

    “On the second occasion of time together both girls are reported as happy to see their father, evidenced as they were smiling and both accepted affection from their father at the beginning and conclusion of the visit.”

15. In her evaluation, Ms C observed at paragraph 57 and following:

    “57.  Mr Kellis does present as childfocused and appears genuine in his love for the children.  He was assessed as having the capacity to focus and satisfactorily meet the needs of the children.  As both the girls were at different developmental junctures, it is appropriate to focus on their views and needs individually. 

    58.Most notable throughout this assessment process was [X]’s refusal to engage with the father.  [X] was observed in the playroom with her sister and Mr Kellis during which time she did not acknowledge her father or respond to any of his efforts to engage with her.  [X] clearly stated her view not to continue spending time with her father.  During her interview she indicated she accepts gifts from her father as a kind of show of faith and that she does not want to seem rude.  On the second occasion of time spent together, it was reported that [X] was responsive toward her father.  Mr Kellis indicated that he understands [X]’s view that she does not want to spend time with him and believes she is mature enough to make her own decisions.  He agrees, however, that any communication with her will be positive. 

    59.[X] seems to have ambivalent or at best, unresolved feelings about her father.  She recognises she has a father but this seems to be overlaid by disappointment and deep down a wish that her parents had not argued and things had been different. 

    60.  [X] is approaching 16 years of age and it is proposed that her views/needs should be given substantial weight in this process.  If [X] chooses not to continue to spend time with the father physically, it is recommended that with encouragement from Ms Antoni she continue to engage with her father via letter/cards and other communication as she chooses.”

1. In respect of [Y], while Ms C noted a slightly greater desire for contact with her father, Ms C was more optimistic although by no means unguardedly so.

2. At paragraph 63, Ms C observed:

   “63.  Mr Kellis believes he has a positive relationship with both the children and that their resistance to spending time with him is due to the negative influences of Ms Antoni.  Whilst the influence of Ms Antoni is also evident, he appears to lack insight into the damaging impact of witnessing family violence and parental arguments have had upon [X] and [Y].  Since 2008 there have been no further incidences of conflict and violence reported.  Notwithstanding that the violence at the time was likely, as identified in the professional literature, situational conflict instigated, the reported impact this had upon the children will require changes and understanding from

   
   

   Mr Kellis.  Regardless, if there is to be a continuation of time spent, it will be important for Mr Kellis to acknowledge [X] and [Y]’ hurt and their views of the family violence.”

3. At paragraph 67, Ms C observed:

   “67.  Ms Antoni has demonstrated consistent unwillingness and a lack of capacity to promote and support the children’s relationship with their father.  She asserted it is up to the children to decide, placing them under pressure to be decision makers.  This position lacks insight into the impact on the children of having to choose between their parents and, in particular, on [Y] who is not yet nine years of age.  Regardless of what [X] and [Y] want, they are compromised as Ms Antoni would likely be comfortable in the knowledge the children would not choose to spend time with the father over her.  Such a position absolves the mother of any responsibility to promote a relationship with the father. 

   What is evident, however, is that since orders were made for supervised time to begin, Ms Antoni has been compliant.”

4. Ms C went on to recommend therapeutic counselling and to maintain the supervised time with her father in the meantime.  I note that the various interventions recommended by Ms C included the attendance by the mother of her appointment with Dr D, something that has now occurred.

The report of Mr P

1. The father sought to rely upon an affidavit by Mr P sworn

   
   

   19 February 2015.  That affidavit appends, relevantly, a report prepared by Mr P.  It should be noted that this report was not court ordered but was prepared at the sole behest of the solicitors for the father.  While Mr P’s report is well written, and does make some valid criticisms of the mother’s position, in the ultimate I accept in broad terms at least the submission of the Independent Children’s Lawyer that it is tantamount in substance to a review of the relevant literature.  Given its highly partisan provenance, it is not possible to give it great weight, notwithstanding the high regard in which

   
   

   Mr P is rightly held in his professional activities.

The father under cross-examination by the Independent Children’s Lawyer

1. The father confirmed that he lives in his mother’s house which has three bedrooms.  He works flexible hours in [suburb omitted], working about six to seven hours per day.  Although he usually leaves for work at 9 am, he is sometimes earlier, but his hours are variable depending upon his work.  He asserted that he had had the children in his care for two months in 2011.  He dropped the children at school and would leave work at 2.30 p.m. to pick them up.  His mother, who was then in the same house, did the cooking and discharged the other domestic offices.  He said that he would be able, now, to run the household himself.

2. He accepted that his older child is now 16 and could have her own mind.  Nonetheless, he questioned his daughter’s response to him and attributed this to brainwashing by the mother.  He said Sunday visits were going well with [X] participating but the alienation was not yet wholly overcome.  He said that [X] talked to him but only reluctantly.  He said the only way to correct the alienation was time with him.

3. He said both children enjoyed time with him but went on to say that the children were not relaxed with him.  He said both children had a very good relationship with his mother but, after her death, they didn’t come to see him at all.

4. The father described events surrounding his mother’s funeral, following her death in September 2013.  He described his activities on the supervised and now unsupervised visits with his children and said that the children were comfortable in his care but his relationship had not fully recovered.

5. According to him, [Y] has said to the father that the mother had told her that there was something wrong with the father’s brain and that he was going to die soon.

6. Although the father seemed at one stage to be suggesting a gradual move to shared time, he appeared to change during the course of his evidence and suggest immediate imposition of this new regime.

7. The father was cross-examined about the distance to the children’s school, some 11 kilometres, and the fact that they were not at the same school, but were at schools a few kilometres apart.  The father was prepared to consider alternate weekend time.

8. The father said that mediation would benefit the children and that [Y] would only sleep at his home if [X] was there.  The sisters were very close.  He accepted that [X] could not be forced to sleep over.  He said he did not know who the children’s friends were but he did ask.

9. The mother elected not to cross-examine the father.

The mother’s opening address

1. The mother said she agreed with the orders proposed by the Independent Children’s Lawyer, with time every second weekend on Saturday and Sunday.  She was in agreement with mediation after three months of this regime.

The mother’s evidence-in-chief

1. The mother tendered as exhibit R1 a letter from Ms A which, it should be noted, is simply a personal reference.

2. The mother referred to the two month period in 2011 when she had been overseas.  It was her assertion that the paternal grandmother had the children for one of those months and that her mother had had the children for the other one.  She said that the father was always out and that she had spoken to her daughter all the time while she was away.

3. The mother said that the father’s house had two bedrooms, not three, with one single and one double bed.  She said that [X] should not go to TAFE according to the father but should be at school.

4. She said every Sunday the father picks up the children and leaves them with his sister-in-law or watches TV or leaves them with his father.  She complained that the father was never around and that this was the feedback she got from [X] when she asked how the day had gone.

5. She said that the father had breached the Intervention Order three times and wanted to reconcile with her.  She said week about time was not her suggestion and she never agreed it.

6. She said that the father’s barrister obtained the orders for ‘week about’ time in 2007.  The mother had a number of historical complaints about events of which, if I understood them, the latest was 2010.  It is not necessary to dwell on them for these purposes.

7. Despite her earlier apparent concurrence with the orders proposed by the Independent Children’s Lawyer, the mother said, “I don’t want the children there at all with what we’ve been through”.  She said this was especially the case in respect of [X] who was very scared of her father and who refused to sleep at his house.  She said she had brought [X] to court the day before because her previous lawyer had said she could.

The mother under cross-examination by counsel for the father

1. The mother was cross-examined about [X]’s views about week about time and said that [X] had said, “No way in hell”.

2. The mother was cross-examined about the consent orders entered into in 2007.  She said she signed the orders not understanding them and had not read them on the day.  She confirmed she had not appealed the orders.  She had, likewise, made no application to set the orders aside.  She conceded that her assertion that she had not understood the orders was not in her affidavits.

3. The mother went on to say that she had left court in tears.  This answer was plainly untruthful and made up on the run.  It followed very shortly after her evidence that she had signed the orders not understanding them.  Clearly, if she had signed the orders not understanding them and had not been aware of their purport, she would not have left the court in tears as a result.  The mother’s demeanour while giving this answer and a number of others was, I regret to say, entirely redolent of somebody giving answers without proper thought and making up answers on the run.

4. The mother confirmed that she went to Egypt for two months in 2011 but maintained her position that the children were one month in the care of the paternal grandmother and one month with the maternal grandmother.  These answers, by way of contrast to some others, were given with evident sincerity.  I accept the mother’s answers in this regard.

5. The mother confirmed that she had brought [X] to court the day before to tell the court what the father was all about.  She maintained that she saw the father belted by three people with balaclavas on in his office because of a drugs problem just before separation.  She said the father went to the bank with one of the three people and that she was forced to stay with the other two.  It is sufficient for these purposes to say that the mother’s account seemed to me to be extremely florid and what was clear was her detestation of the father whom she, I regret to say, clearly hates.

6. The mother said that [Y] could remember when her father crashed his car into the mother’s car.  She said she was talking to her friend about the father and that [X] heard her talking to her own mother about the father.  It is clear from what the mother said that she talks about the father to anyone she wishes to (something not objectionable in itself) but pays very little, if any, attention to whether or not the children are within hearing at the time.

7. The mother said she agreed with time on Saturdays and Sundays because otherwise the father would get week about.  She said she did not wish the children to go to the father’s home at all.  She said he might be molesting the children because he slept with them.  She said time at the father’s residence would be okay provided his sister was present.

8. The mother was cross-examined about her failure to present the children to spend time with the father on Christmas Day.  She said she went to the changeover centre by mistake and then realised that she was supposed to be at McDonald’s.  Her account of what she did on this occasion was difficult to follow and had all the appearance of being made up on the run.  I found it extremely unconvincing.

9. The mother’s assertion that the father failed to pick up the children on purpose on Christmas Day shows a staggering lack of insight.  It was entirely apparent from his evidence that this failure to spend time was extremely hurtful to the father, who had arranged a family gathering for them.

10. The mother went on to say gratuitously that the father had disgusting sexual habits that she did not wish the children to see.  The mother confirmed that she had not been to mediation before but said there was nothing that the father could do to convince her that he should be alone with the children.  She said it is the children’s right to decide.

11. The mother was asked why changeovers should not be from school, but said that McDonald’s was agreed.  She confirmed, however, that the paternal grandfather comes to her house twice a month to see the children.

The mother under cross-examination by the Independent Children’s Lawyer

1. The mother confirmed that she would ensure that her daughters went to McDonald’s for changeover with the father.  She had had a discussion with [X] the previous night and [X] said, “If I have no choice then that’s what I want to do, but I don’t want to stay over”.

2. The mother confirmed that things had become more relaxed over time and she was happy for the children to meet with the mediator.  She confirmed that the children called the paternal grandfather “papou”, but there was no relationship between the father and his own father.  She confirmed that she would obey court orders.

3. In what was effectively re-examination, the mother said that she disagreed with overnight time commencing straight away.  She was going with what the children want.  She said overnight time had to be with her sister-in-law, [name omitted], present.

Submissions of the Independent Children’s Lawyer

1. Counsel for the Independent Children’s Lawyer suggested an interim set of recommendations for the immediate future.  She went on to deal with the various proposals.  She submitted that the father’s proposal for equal shared time was clearly impossible.  She handed up proposed minutes of orders to be made on an interim basis.  Essentially, the children would spend each alternate weekend (but not overnight) for a period of some months followed by a family dispute resolution conference, together with therapeutic assistance to the children from Kids Talk, and a final hearing thereafter.  Counsel submitted that baby steps were appropriate and that the whole process would break down if more time was ordered.

2. Counsel noted that the father’s drug screens were clean.  Although some had been provided over the 24 hour stipulated time limit, none were more than 48 hours.

The submissions of the counsel for the father

1. Counsel submitted that the problem was [X]’s age, namely 16. 

   
   

   He submitted that an immediate change of residence was appropriate and referred to paragraph 67 of Ms C’s report in this regard.  He submitted that the mother would say anything to discredit the father and was totally incapable of supporting the children having

   
   

   a relationship with him.  While [X]’s views should be taken into account, it was submitted that the mother had been talking to the children in the last two weeks and it was noted that [Y] had recounted events that took place prior to separation when she was between one and a half to two years old.

2. Counsel submitted that the mother bringing [X] to court showed that she was embroiling children in the dispute.  Counsel submitted that time was going quite well with both children and what the mother was doing was tantamount to child abuse.  Counsel pointed to the orders for week about time made in 2011 and the time spent with the father in October to November 2011.

3. Counsel made significant criticism of the mother’s assertions that the father was a drug user and her assertions that he did deals with bikies and provided chemicals and was beaten up as a result of his drug-related activities.  Counsel pointed out that the father had complied with requested drug screens and the mother had not provided any at all.

4. Counsel submitted that a change of residence was vital and that the Independent Children’s Lawyer’s proposal left the mother empowered within the current regime and, as a result, the Independent Children’s Lawyer’s proposals would not work.  They would send a message to the children that the father could not be trusted overnight and it was submitted that, at the very least, changeovers should be from school to school.  It was submitted that the mother would sabotage therapeutic counselling and any greater time with the father.

Submissions of the mother

1. The mother disagreed with changeover after school, noting that the elder child is presently at TAFE.  She supported time from 10:00 a.m. until 5:00 p.m. on Saturday and Sunday each fortnight from 11 April and was happy for this regime to be reviewed in June.  She was opposed to overnight time unless her sister-in-law [name omitted] was there.  She asserted that she had undertaken four drug tests at a clinic but did not have copies of them.

Some observations about the witnesses

1. The father was generally a good witness.  He was relatively responsive to the questions put to him by the Independent Children’s Lawyer.  Nonetheless, the lack of insight referred to by Ms C was readily apparent in his answers about the proposed regime for time that he sought.  I note that Ms Antoni elected not to cross-examine the father, so I did not have the benefit of a more challenging examination of him in this respect.

2. The mother’s evidence I have already commented on.  I regret to say that she was florid and overblown in the style in which she gave her answers, some of which were clearly untrue.  The mother’s adamantine denial of her involvement in the adult sex industry, so clearly untrue, only goes to support the reservations expressed by Dr D as to the extent of her truthfulness generally.  I approach her evidence with considerable caution.

The statutory pathway

1. This is an unusual matter.  It was listed and heard as a final proceeding, but both the Independent Children’s Lawyer and the mother essentially sought interim orders only.  While interim orders, for reasons to which I will come, will in fact be made, in substance this was a final hearing and it would be artificial and inappropriate, in my view, to approach the matter either in the manner indicated in Goode v Goode [2006] FamCA 1346 at paragraph [65] (final hearings) or paragraph [82] (interim hearings). In the peculiar circumstances of this case, neither is entirely applicable.

2. Nonetheless, on any view of the matter, the court is required to consider whether it is appropriate for an order for joint parental responsibility.

3. Ms C’s report makes no recommendations as to parental responsibility.  The orders proposed by the Independent Children’s Lawyer do not contain an order for joint parental responsibility either.  Unless my notes mislead me, no submissions were made about parental responsibility by anyone.  Ms C was not required for cross-examination and it should be noted that not only therefore was the question of parental responsibility not traversed with her, neither also was the strenuous assertions of alienation made by the father.

4. Given that I will be making interim orders, it is, in my view, inappropriate to make an order for parental responsibility at this stage.  As a matter of practical reality, the mother has something akin to sole parental responsibility at present, but since the matter will be adjourned for only a relatively short time, in my view it is not in the children’s best interests that there be an order for parental responsibility until the outcome of the interim arrangements posited is better understood.

Equal time and substantial and significant time

1. The father seeks equal time and, in the alternative, time from Friday to Monday.

2. While the court is plainly required to consider these matters, in the particular circumstances of this case it is appropriate to consider these possible regimes by reference to the matters set out in s.60CC of the Act.

The primary considerations of section 60CC(2)

1. As Ms C observed at paragraph 62 of her report:

   “62.  [X] and [Y] do have a right to enjoy a meaningful relationship with their father, which, this must be balanced against their right to feel safe and that the time spent is enjoyable, pleasant and satisfying so that each can look forward to the next visit with him.”

2. At paragraph 72, Ms C continued:

   “72.  An important question in cases such as this where there is persistent refusal to spend time with a parent, is whether the situation has passed the point of no return.  That is, whether the damage done to the parent child relationship has reached a point where supervised contact and therapeutic counselling is unlikely to assist in salvaging the relationship.  It is the report writer’s view that the door should be left open and that, at least in the interim period and until therapeutic counselling has occurred, that [Y] should continue to spend supervised time with her father.”

3. Ms C went on to recommend a more limited time regime for [Y] than that recommended by the proposed orders of the Independent Children’s Lawyer and that [X]’s time with her father be effectively delineated by her.

1. It is clear that Mr Kellis loves his children.  Whatever his behaviour may have been in the past, and while there was clearly a period where his bankruptcy and associated difficulties meant that he very much neglected his role as a father, the fact that he has conducted this proceeding to judgment shows that he wants to spend time with them.  While the right of the children to have a relationship with their father is, of course, very important, I share Ms C’s view that the children need to see this time as safe and enjoyable.  The mother’s position is one of unrestrained florid denigration and abuse of the father.  She has described him as a paedophile, a drug user, a man involved in crime and just about any other insult she can think of, including perverse sexual practices.

2. It does seem clear that there was violence within the parental relationship which, it should be noted, itself ceased many years ago. 

   
   

   It is not possible to make precise findings about the extent of such violence in circumstances where some of the mother’s assertions are clearly untrue (namely, that his hearing has been damaged by the assault by the men in balaclavas) and the mother’s lack of truthfulness more generally.

The matters in section 60CC(3)(a)

1. [X]’s views could not have been expressed more clearly.  She says she does not want to see her father.  This point of view is clearly fomented and abetted by her mother because of the mother’s dislike of the father.  Her letter to the court annexed to the mother’s affidavit sworn 10 July 2014 must be approached with reservations as a result. [Y]’ views are not so clearly formed.  The reports of the time spent with her father from the child minding service suggest that, in fact, her relationship with her father is relatively good and continues to improve.  Indeed, the visits observed by the carer suggest that there was even some small improvement in [X]’s relationship with her father.

2. This is important because although, ordinarily, [X]’s views as a 16 year old might be thought to be close to being decisive, they are so clearly supported and encouraged by the mother that they cannot be approached without qualification.

Section 60CC(3)(b)

1. The children clearly have a close relationship with their mother and would appear to have an ongoing relationship with the paternal grandfather who visits them twice a month at the mother’s house.  Their relationship with their father has already been traversed and it is not necessary to repeat it.  Clearly, the relationship was sundered but incipient steps, which Ms C thinks are worth progressing, have been taken to restore it.

Section 60CC(3)(c)

1. As I have already indicated, the father has plainly sometimes not discharged his duties as a father.  He has, as it were, prepared the ground for the mother to do whatever she has done to damage the relationship with the father.  Nonetheless, the father has, at the very least, since the commencement of these proceedings sought in an entirely unobjectionable way to spend time with and communicate with his children and to participate in decisions about them.

Section 60CC(3)(ca)

1. Clearly, the mother has brought these children up as best she can.  The father’s behaviour has been less than adequate.

Section 60CC(3)(d)

1. The orders now proposed by the Independent Children’s Lawyer will represent an expansion of the time previously ordered by the court.  Nonetheless, despite her opposition to such orders, Ms Antoni has been and is likely, in my view, to remain compliant.  The orders proposed by the Independent Children’s Lawyer are designed to further improve the relationship between the father and the children, and this would plainly be in their best interests.

Section 60CC(3)(e)

1. There is no practical difficultly or expense relating to the Independent Children’s Lawyer’s proposed orders.  The father’s proposal for an immediate or even gradually introduced regime of equal time would, as the Independent Children’s Lawyer in my view corrects submits, be wholly unworkable and would destroy such progress as has been made already.

Section 60CC(3)(f)

1. While the mother has been the primary carer of the children since separation and is, in that sense, plainly a person well equipped to provide for the children’s needs, her utter failure to understand the potential benefit of a relationship between the children and their father is a significant deficiency.  So far as the father is concerned, he has his weaknesses as noted by Ms C, but has done his best to address them.

Section 60CC(3)(g)

1. The maturity of [X] in terms of years has already been noted.  Little has actually really been said about the extent of [X]’s maturity or indeed that of [Y].  Both the parents have their weaknesses.  The criticisms made by each parent of the other’s lifestyle and background, in my view, are now largely historical.  The mother’s career in the adult sex industry appears to have been in the 1990s, coincidentally contemporaneous with the father’s conviction for drug production.

2. The fact is that the father runs his own business and has done so for many years, and the mother’s present lifestyle appears to be unobjectionable. The health difficulties referred to in her affidavit sworn 16 July 2014 do not appear to impact on her parenting capacity.

Section 60CC(3)(h)

1. This is irrelevant.

Section 60CC(3)(i)

1. The attitude of the mother to her children is in part commendable.  She seeks to keep them safe and to provide for them.  Nonetheless, her attitude towards the children’s relationship with their father, as already noted, is deficient.  As Ms C points out, she seeks to let the children decide but they are still children and it is not for them to decide.  Particularly in the case of [Y], this is grossly inappropriate, given her tender years.  The father’s attitude towards the responsibilities of parenthood is, in a sense, a developing area as he has had so little involvement over recent times.  It should be noted that I accept that when his mother was alive, it was his mother who essentially looked after the children when they spent time with him. I think that the father’s suggestion that he looked after the children for two months in 2011 is not true.  His own mother did and then the maternal grandmother.  The father’s capacity to parent, in a curious way given their age, is still a developing area and not fully tested.

Section 60CC(3)(k)

1. Despite the florid assertions of violence in the past, I think I have made it plain that it is difficult to evaluate the extent of violence during the relationship.  There must, I think, have been some but its extent is difficult to disaggregate given the mother’s tendency to untruthfulness and exaggeration.

Section 60CC(3)(l)

1. Ms C has recommended interim orders and the Independent Children’s Lawyer likewise (albeit a more extended regime). As already indicated, the father’s proposal for an immediate move to equal shared time or indeed even to time from Friday to Monday is plainly contraindicated.  I entirely accept the submissions of the Independent Children’s Lawyer that given [X]’s point of view, any such endeavour would be disastrous.  It is plainly in the children’s best interests to adopt the interim regime sought by the Independent Children’s Lawyer.

Section 60CC(3)(m)

1. The relevant other matter in this case is the submissions of the Independent Children’s Lawyer.  I entirely agree that baby steps are necessary.  The fact is that whatever resistance has been expressed thus far, it is more probable than otherwise that [X] and [Y] will indeed adhere to the regime proposed by the Independent Children’s Lawyer.  They will then proceed, in due course, to Kids Talk counselling and to the FDRC.

2. It is plainly, as Ms C says, desirable that this window be kept open to this extent and the matter revisited thereafter.  The time proposed by the Independent Children’s Lawyer is greater than that proposed by

   
   

   Ms C and includes [X] which Ms C did not.  In my view, if [X] does not spend time with the father then the therapeutic counselling and the round table mediation will plainly not succeed.  Even though [X] is 16 and even though she has expressed clear views, this is one of those rare cases where the court should take a different view.  [X] is not yet an adult.  She will, as I find, spend time with her father.  This will benefit [Y] also.  The amount of time the regime will be in place for will not be great, and it is plainly in the children’s best interests that the matter be explored in this way.

Conclusion

1. For these reasons, in my opinion, the regime proposed by the Independent Children’s Lawyer should be put in place.  Given that there has obviously been delay to enable these reasons for judgment to be prepared, I have prepared draft orders but will hear briefly from the parties in case there are any unforeseen practical difficulties with them.

I certify that the preceding one hundred and twenty (120) paragraphs are a true copy of the reasons for judgment of Judge Burchardt

Associate: 

Date:  9 June 2015