KING & KING (No.2)
[2017] FCCA 2776
•16 November 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KING & KING (No.2) | [2017] FCCA 2776 |
| Catchwords: HELD – Orders made for the two youngest sons to live with the Mother and spend no time nor communicate with the Father – the eldest son to live with the Father and spend time with the Mother as agreed between them. The parent with whom the son/s live to have sole parental responsibility. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA |
| Cases cited: AMS v AIF (1999) 199 CLR 160 |
| Applicant: | MS KING |
| First Respondent: | MR KING |
| File Number: | MLC 3047 of 2015 |
| Judgment of: | Judge Bender |
| Hearing date: | 15 August 2017 |
| Date of Last Submission: | 17 August 2017 |
| Delivered at: | Melbourne |
| Delivered on: | 16 November 2017 |
REPRESENTATION
| Counsel for the Applicant: | Ms Mansfield |
| Solicitors for the Applicant: | Stuthridge Legal |
| Counsel for the Respondents: | Mr Robertson |
| Solicitors for the Respondents: | Chinka (Hep) Steel |
| Counsel for the Independent Children's Lawyer: | Mr McLeod |
| Independent Children's Lawyer: | Joliman lawyers |
ORDERS
All previous parenting orders be discharged.
The children X born (omitted) 2007 (“X”) and Y born (omitted) 2008 (“Y”) live with the Mother.
The Mother have sole parental responsibility for X and Y.
The Mother keep the Father informed of any significant long term decisions that she makes in relation to X and/or Y.
The Father be and is hereby restrained from spending time and communicating with X and/or Y.
The child Z born (omitted) 2003 (“Z”) live with the Father.
The Father have sole parental responsibility for Z.
The Father keep the Mother informed of any significant long term decisions that he makes in relation to Z.
Z spend time and communicate with the Mother in accordance with his wishes and the Father facilitate Z’s time with the Mother in accordance with Z’s wishes.
The Father do all things necessary to ensure that Z attends upon Mr D from Headspace or any other such mental health practitioner as is recommended by Headspace or Z’s treating general practitioner or other authorities from time to time and the Father follow all reasonable directions of the treating practitioner/s.
The Mother be at liberty to obtain a passport for X and/or Y without the consent and signature of the Father, and she be permitted to travel outside of the Commonwealth of Australia with X and/or Y without the consent of the Father.
The Mother shall be entitled to receive school reports, school photograph order forms and newsletters from Z’s school.
The Father shall be entitled to receive school reports, school photograph order forms and newsletters from X and Y’s schools, but is otherwise restrained from attending at their schools.
The Mother and the Father be at liberty to provide a copy of these orders to the schools at which the child or children in their care attend.
The Mother shall immediately notify the Father in writing by email or text message in the event X and/or Y suffer any serious illness or injury.
The Father shall immediately notify the Mother in writing by email or text message in the event Z suffers any serious illness or injury.
The Father be restrained by injunction from approaching the Mother, X and Y or either of them or coming within 500 metres of the Mother’s residence or place of work.
IT IS NOTED that publication of this judgment under the pseudonym King & King (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BENDIGO |
MLC 3047 of 2015
| MS KING |
Applicant
And
| MR KING |
Respondent
REASONS FOR JUDGMENT
Introduction
This very sad case relates to the living arrangements for the parties’ three children Z born (omitted) 2003 (“Z”), X born (omitted) 2007 (“X”) and Y born (omitted) 2008 (“Y”).
The proceedings first commenced in May 2015 and a final hearing took place on 2 and 3 March 2016.
On 19 April 2016 I handed down judgment. Somewhat unusually interim orders only were made. These orders provided as follows:
“5. The Mother have sole parental responsibility for Z, X and Y.
6. Z, X and Y live with the Mother.
7. The Father shall spend no face to face time with Z, X and Y but shall communicate with them via telephone each alternate week between 4.30pm and 5.00pm on Thursday with the telephone to be placed on loud speaker.
8. When speaking to Z, X and Y pursuant to Order (7) herein, the Father is restrained from:
(a) denigrating or belittling the Mother to Z, X or Y or encouraging them to misbehave or disobey the Mother;
(b) discussing with Z, X or Y these proceedings, the orders made and parenting issues; and/or
(c) encouraging Z, X and Y to disobey the orders of this Court.
9. In the event the Father fails to comply with Order (8) herein, the Mother is at liberty to immediately terminate the telephone call.
10. Should Z run away from the Mother’s residence or abscond from school and attend at the Father’s home or the Paternal Grandmother’s home, the Father shall forthwith notify the Mother by text message and immediately return Z to the Mother’s home.
11. The Mother shall ensure that Z continues to attend counselling with Mr D at Headspace (omitted) and family therapy with Ms D or such other recommended service or therapist until such time as it is recommended by that service or therapist that counselling is no longer required.
12. The Mother forthwith enrol Z into the Child and Adolescent Mental Health Service for assessment and treatment and follow all recommendations made by that service with the appropriate timing of that enrolment to be discussed with Ms D and the Mental Health Service.
13. The Mother shall continue to engage with her personal counsellor Ms M and attend upon Ms D as directed by such counsellors.
14. The Mother shall ensure X and Y attend upon Ms D as directed by Ms D.
15. The Mother be at liberty to take Z, X and Y to (country omitted) each alternate year for a maximum period of three weeks on condition that:
(a) the Mother provide the Father with at least four weeks written notice; and
(b) the Mother provide the Father with an itinerary and contact details for Z, X and Y during the period in which they are overseas at least two weeks in advance of the departure date.
16. The Father shall forthwith enrol in and complete:
(a) a Men’s Behavioural Change Program at the Centre for Non-Violence in (omitted); and
(b) a Keeping Kids in Mind parenting program through CatholicCare, (omitted).
17. The Father shall forthwith engage with the Department of Health and Human Services and follow any recommendations and engage with all programs recommended by that service.
18. The Father shall continue to attend upon his counsellor Dr J as directed by her.
19. The Father shall be entitled to receive school reports, school photograph order forms and newsletters from Z, X and Y’s schools, but is otherwise restrained from attending at their schools.
20. The Mother shall immediately notify the Father in writing by email or text message in the event Z, X and Y or any of them suffer any serious illness or injury.
21. The parties forthwith do all things necessary to enrol at (omitted) Contact Centre at (omitted).
22. The Independent Children’s Lawyer shall provide a copy of the judgment delivered in this matter and a copy of these orders to:
(a) Headspace;
(b) Ms D;
(c) the Department of Health and Human Services;
(d) the Manager of the Men’s Behavioural Change Course at the Centre for Non-Violence in (omitted);
(e) Ms M; and
(f) Dr J.
23. The Independent Children’s Lawyer shall provide a copy of these orders to the principal of Z, X and Y’s school/s.
24. The Independent Children’s Lawyer and, if possible Ms D forthwith meet with Z, X and Y to discuss and explain these orders to them.
25. Each of the parties by themselves and/or their agents be and are hereby restrained by injunction from:
(a) harassing or assaulting the other party;
(b) denigrating, rebuking or belittling the other party to or in the presence or the hearing of Z, X and Y, and from allowing Z, X and Y to remain in the presence of any other party who may be doing so;
(c) discussing these proceedings and/or parenting issues, to, with or in the presence or hearing of Z, X and Y and from permitting any other person to do so;
(d) exposing Z, X and Y to conflict or disagreements between the Mother or between any other person in the household; and
(e) telephoning the other parent save for a medical emergency concerning Z, X or Y.”
The matter was listed for a further final hearing on 15 August 2017 in Bendigo.
The Mother is seeking orders that:
·she have sole parental responsibility for X and Y, that they live with her and the Father spend no time and not communicate with either boy;
·the Father have sole parental responsibility for Z, Z live with him and spend time with the Mother in accordance with his wishes;
·the Father ensure Z continues to attend his counsellor at Headspace;
·each parent keep the other informed of significant long term decisions made about the child/children in their care;
·each parent be entitled to receive school reports, school photograph order forms and newsletters for the child/children not in their care;
·each parent notify the other of any serious illness or injury suffered by the child/children not in their care;
·the Father be restrained from contacting, approaching or remaining within 500 metres of the Mother’s residence or place of work or from attending X and Y’s schools;
·the Mother be permitted to obtain passports for X and Y without the consent of the Father and she also be permitted to travel overseas without the Father’s consent;
·the Mother be permitted to relocate the residence of X and Y without the Father’s consent.
When giving his evidence, the Father told the Court he believes it is in Z, X and Y’s best interests that the parties have equal shared parental responsibility for Z, X and Y, that they live with him and spend alternate weekends and a weeknight with the Mother.
However, in his closing submissions the Father’s Counsel advised the Court that the Father’s proposal was for the parties to have equal shared parental responsibility for Z, X and Y, for Z to live with him and spend time with the Mother as agreed between Z and the Mother and for X and Y to live with the Mother and spend regular time with him.
The Independent Children’s Lawyer supports the orders sought by the Mother.
Background
The background to this matter up until the hearing on 2 and 3 March 2016 is set out in paragraphs [12]-[47] of the judgment delivered
19 April 2016 as follows:-
“12. The Mother was born on (omitted) 1983 and is aged 32 years. She works part-time during school hours as a (occupation omitted). The Mother has not repartnered.
13. The Father was born on (omitted) 1975 and is aged 40 years. The Father suffers from rheumatoid arthritis and is currently unemployed. The Father has not repartnered.
14. The parties married on (omitted) 2003 and separated on
7 November 2014.
15. When the parties first separated, Z, X and Y remained with the Mother and spent time with the Father.
16. Immediately after separation the Father was admitted to the (omitted) Centre in (omitted) for mental health reasons, having threatened suicide. He was hospitalised for two weeks.
17. Upon his release from hospital the Father agitated for Z, X and Y to live week-about with each of the parties.
18. It is the Mother’s evidence that in early December Z began telling her that he wanted to live with the Father. At that time Z was spending time only with the Father. It is the Mother’s evidence that in December 2014 the Father inferred he would take Z to live in (omitted) with his Mother. The parties lived in (omitted) until 2012.
19. As a result of her concerns that the Father would collect Z from school and take him to (omitted), the Mother attended Z’s school on 11 December 2014 before the end of the school day to remove him from the school to prevent the Father from taking him to (omitted).
20. Z was very angry when the Mother attended to remove him from school and became most distressed. His school principal and counsellor encouraged him to leave with the Mother.
21. When Z continued to be angry and distressed after the Mother took him from school, the Mother rang the Father at 7:00pm that evening and arranged for the Father to collect Z and take him to his home.
22. The Father has since referred to the Mother’s removal of Z from school on 11 December 2014 as an “abduction”, a “kidnapping” and as the Mother “raping and violating” Z. Z has spent very limited time with the Mother since this date.
23. It is the Mother’s evidence that after the school incident the Father insisted that a shared care arrangement be put in place for X and Y. The Father denies he insisted on this arrangement and that it was agreed to by the Mother.
24. The Mother commenced these proceedings on 13 May 2015.
25. On 15 June 2015, interim orders were made by consent which provided for the parties to have equal shared parental responsibility for Z, X and Y, for X and Y to live week about with the parties and for Z to live with the Father and spend time with the Mother each Friday from 3:30pm to 8:00pm.
26. The matter was otherwise listed for final hearing in the September circuit at Bendigo and for the preparation of a family report.
27. There was a notation to the 15 June 2015 orders that Z was attending and would continue to attend therapeutic counselling with Ms A at CatholicCare in an effort to repair his relationship with the Mother.
28. Despite the Orders of 15 June 2015 Z, did not spend time with the Mother every Friday. He spent only very limited time with her.
29. Ms J, family consultant, prepared a Family Report dated 10 August 2015. In paragraph 87 of her report Ms J expressed the view that:
“…neither Ms King nor Mr King has demonstrated that they are capable of having the full-time care of the children.”
30. Ms J recommended the then existing living arrangements for Z, X and Y continue, that the Father attend a Men’s Behavioural Change program as “his behaviour could be viewed as bullying” and the Mother attend counselling to assist to raise her self-esteem and to learn to be assertive.
31. In paragraph 88 of her first report Ms J stated:
“It is my view that given the concerns raised this matter should not have a final hearing for at least six months to allow the above counselling and programs to take place as otherwise there would be no monitoring of the progress.”
32. Given Ms J’s recommendation, the matter did not proceed to final hearing in the September sittings of the Court at Bendigo. The matter was adjourned to the November sitting of the Court for final hearing and orders were made appointing an Independent Children’s Lawyer and requested the Independent Children’s Lawyer to obtain a report from Z’s counsellor, Ms A and provide it to the report writer, Ms J. The interim parenting orders made 15 June 2015 remained in place.
33. Prior to the November Bendigo Circuit, the Court was contacted by the parties’ solicitors to be advised that having received the report from Ms A, Ms J had recommended there be an updated Family Report. Ms J was not able to see the parties, Z, X and Y until December. The solicitors for the Mother sought the matter be listed for interim rather than final hearing in the November sittings.
34. In the November sittings the Mother sought that interim orders be made that X and Y live with her and spend alternate weekends with the Father as she was concerned that the Father was undermining her relationship with X and Y in the same way he had undermined her relationship with Z. She also sought orders that Z spend alternate weekends with her so that the brothers spent time with each other every weekend.
35. Both parties advised the Court that Z had begun spending more time with the Mother, albeit that this time did not accord with the June 2015 orders and was as determined by Z.
36. The Independent Children’s Lawyer supported interim orders being made in the terms sought by the Mother.
37. At the November sittings the Court was also advised that Z was seeing Mr D at Headspace for personal counselling, that he and the Mother were attending Ms D for therapeutic counselling, the Mother was attending Ms M for personal counselling and the Father’s counsellor was Dr J.
38. After hearing the parties’ and the Independent Children’s Lawyer’s submissions, interim orders were made for X and Y to live with the Mother and spend alternate weekends from after school (or 3:30pm) Friday to before school (or 9:00am) Monday with the Father. Orders were also made for Z to live with the Father and spend alternate weekends with the Mother from after school (or 3:30pm) Friday to before school (or 9:00am) Monday.
39. Orders were also made that all changeover occur at (omitted).
40. An updated Family Report was ordered and the Independent Children’s Lawyer or her Counsel was requested to explain the interim orders to Z, X and Y.
41. After the interim orders were made, Z refused to spend any time with the Mother other than for a short period on Christmas Day.
42. During the interviews for the updated Family Report on
14 January 2016, it is Ms J’s evidence that the Father became extremely angry with her and refused to participate in his one-on-one interview with her. Ms J asked the Father to leave. The Father continued to shout at her such that Ms J describes that she was fearful of the Father and had to threaten to call the Police before the Father would leave her rooms.
43. The Father denies it was he who was angry and agitated during the interviews with Ms J. It is the Father’s evidence it was Ms J who was angry.
44. As a result of the Father’s behaviour in her office Ms J made a notification to the Department of Health and Human Services (“DHHS”).
45. On 15 January 2016 there was an incident at changeover at McDonalds. It is the Mother’s evidence that she had delivered X and Y to the Father for their time with him and that the Father parked his car behind her car preventing her from leaving. It is the Mother’s evidence the Father then approached her car and began banging on her closed car door window and shouting at her. He only left when she tried to call the police. The Mother describes being fearful of and feeling intimidated by the Father’s behaviour.
46. Whilst conceding he parked behind the Mother and approached her car, it is the Father’s evidence he only tapped on the window of her car as he wanted to discuss arrangements for X and Y with her.
47. As a result of the incident at McDonalds, the Mother obtained an Interim Intervention Order against the Father. She also consulted the Centre Against Violence and now has a safety plan in place.”
After the making of the orders on 19 April 2016, Z, X and Y lived with the Mother and spent no time with the Father.
It is the Mother’s evidence that after an initial period of adjustment, and with the assistance of counsellor Ms D and his Headspace counsellor Mr D, Z settled into the Mother’s household and the relationship between she and Z repaired and they again had a “normal relationship”.
Order (2) of the 19 April 2016 orders required the Father to file and serve an affidavit on or before 7 November 2016 setting out what living arrangements he sought for Z, X and Y and evidencing his compliance with the orders requiring him to complete a Men’s Behavioural Change Program, a Tuning Into Kids Program, engage with all programs recommended by the Department of Health and Human Services and continue to attend his counsellor. The Father failed to file that affidavit.
Accordingly, when the matter returned to the Court on 28 November 2016 it was adjourned to 27 February 2017 and orders made for the Father to file an Application in a Case and affidavit as required by the 19 April 2016 orders. The living arrangements for Z, X and Y remained as provided for in the 19 April 2016 orders.
On 27 February 2017 orders were made listing the matter for final hearing in the Bendigo circuit commencing 14 August 2017. Orders were also made for the Father to be psychiatrically assessed, for the preparation of a family report and for the Father to provide evidence of his completion of the Tuning Into Kids program and Men’s Behavioural Change program. The living arrangements for Z, X and Y remained as provided for in the 19 April 2016 orders.
On 5 June 2017 the parties, Z, X and Y attended Dr M for the preparation of a family report. This was the first time Z, X and Y had face-to-face time with the Father since the 19 April 2016 orders, although they had been having fortnightly telephone communication with him.
It is the Mother’s evidence that after seeing the Father for the report interviews, Z increasingly began pushing boundaries in her home by slamming doors, swearing, challenging restrictions on his activities and bullying X and Y.
On 4 August 2017, Z and the Mother argued. Z packed a bag and told her he was leaving. When the Mother attempted to stop him leaving, he threatened to hit her. Z is now bigger and stronger than the Mother. He left the home and at the request of the Mother, her friend Ms B went after Z and persuaded him to return to the Mother’s home. Z then attempted to ride off on his bike and eventually the Mother negotiated with Z that he stay at a friend’s home that night.
Whilst packing to go to his friend’s home, it is the Mother’s evidence Z told her he hated her, called her a whore, that he would go to his father’s and if the Court or police returned him to the Mother’s home he would keep running away until “they gave up”.
It is the Mother’s evidence Z told her he had been thinking about running away for some time but had to do it now otherwise the Court would think she was the better parent. He told the Mother: “if I’m made to stay with you I’ll hang myself”.
Z returned to the Mother’s home on 5 August 2017, however ran away again on the evening of 6 August 2017 when the Mother would not connect him to WiFi. Half an hour after he ran away he rang the Mother to pick him up. She refused to do so and told him as he left home when he was not supposed to, he could make his own way home.
When he returned home at 10.00pm that evening, it is the Mother’s evidence it was clear Z had been with the Father.
The Father’s evidence is that on the evening of 6 August 2017 Z turned up at his home at 7.50pm. Z told him he had been arguing with the Mother who was bullying and abusing him. After settling him down, the Father returned Z to the Mother’s residence.
Z left the Mother’s home at 6.00am on 7 August 2017. After going to school for the day he went to the Father’s home. It is the Father’s evidence he then took Z to the police station to enable Z to report the Mother’s abuse of him. After speaking to the police Z was returned to the Mother’s home by the Father on the recommendation of the police. Z immediately ran away again.
After Z ran away the Mother texted the Father stating: “Z came home, thank you for dropping him off. He left again almost straight away and hasn’t come back. Do you know where he is?” The Father did not reply.
The Mother then contacted the police in an attempt to locate Z. The Mother was subsequently contacted by the police who advised Z was at the (omitted) railway station. The Mother’s evidence is she reluctantly agreed to the police recommendation that Z be picked up by the Father because of their concerns he would again run away from the Mother’s home.
On 8 August 2017 there was a series of communications between the parties’ solicitors as to whether Z would live with the paternal grandmother pending the hearing of the matter. Agreement on this arrangement was not reached. The Mother therefore collected Z from school.
It is the Mother’s evidence Z was highly abusive of her, calling her a “fucking retard” and saying “I wish you would die…you’re just a bitch hurry up and die… I just want you dead” in the car and when they arrived home.
It is the Mother’s evidence that after she and Z returned home, Z threatened to set the house on fire. He turned on the gas stove top and placed a tea towel over the flame. He damaged property in the home, tipped a container over the floor and took a lighter and attempted to set fire to a tree on the nature strip. Z then went to the Father’s home.
Fortunately, X and Y were not home during Z’s abusive and violent behaviour.
On the evening of 9 August 2017 Z rang the Mother on the Father’s mobile phone asking to collect some belongings. The Mother indicated she was happy for Z to collect some school things but asked that the Father not bring him to her home.
It is the Mother’s evidence that the Father then took the phone from Z and began abusing her in front of Z saying:-
“Stop playing your games, you’ve been abusive to my boys, you’ve done nothing but abuse me our whole marriage…I’m learning all about your abuse in the courses you made me do.”
The Mother told the Father directly she was happy for Z to collect some things but that someone other than the Father needed to bring him to her home to do so.
Despite the Mother’s request, the Father drove Z to the Mother’s home to collect some belongings. The Father parked in view of the lounge room window which X and Y found very distressing.
On 10 August 2017 the Father again drove Z to collect some belongings from the Mother’s home despite the Mother’s request via solicitors he not do so. X and Y again were very upset. Y was at the lounge room window waving to the Father in the car whilst X became teary. It is the Mother’s evidence both X and Y took some hours to settle after Z and the Father left.
By agreement between the parties and the Independent Children’s Lawyer, Z stayed with the paternal grandmother in (omitted) from 11 August 2017 until the final hearing on the condition the paternal grandmother would not bring Z into contact with the Father.
The Evidence
Dr M
Dr M is a clinical psychologist and Regulation 7 family consultant with the Federal Circuit Court of Australia.
Dr M prepared a family report in this matter dated 19 July 2017 and also gave vive voce evidence at the final hearing. Dr M’s vive voce evidence was given prior to the parties’ giving their evidence.
In paragraph [13] of her report Dr M describes the Father as follows:
“
Mr King presented initially as somewhat un-cooperative with the interview and observation process, and expressed difficulties with being open with, and trusting of, the writer (with reasons mostly revolving around the writer’s gender, and his perception that this rendered her unable to complete an objective assessment by nature of her anatomical make-up). His behaviour towards the assessor (in terms of the volume, tone and prosody of his speech, and the content of his speech) could have been interpreted as argumentative, obnoxious, sexist and derogatory. His eye contact was extremely limited, and he displayed a high-level of distractibility. It was obvious from the outset that
Mr King was displeased with the court processes, and that he was irritable, agitated, and, potentially, extremely anxious (despite denying feeling anxious).”
In paragraph [14] of her report, Dr M indicates that the Father engaged adequately with her and spoke openly with her about himself, his family and his physical and mental health.
Dr M notes that:-
“[The Father] is currently taking 150 milligrams daily of Prystiq (commonly used to treat major depressive disorder) and 50 milligrams of Seroqeul (commonly used for depression, bipolar and schizophrenia) for sleep.”
In her report Dr M advises that she considered the psychiatric report prepared by Dr T in relation to the Father and spoke to the Father’s treating clinical psychologist Dr J. (I note Dr T’s psychiatric assessment of the Father was not placed into evidence by the parties or the Independent Children’s Lawyer).
In paragraph [40] of her report Dr M discusses the Father’s mental health. She states as follows:
“…it is clear that he suffers from a diagnosable disorder/s. Dr T has reported him to be reasonably settled in his mental health with a diagnosis of Depression and Anxious Obsessive Personality Traits. Dr J believes that he suffers from Depression and Anxiety in the context of a trauma history. Whilst a comprehensive psychological assessment of the father was not completed as part of this family report, it was the writer’s opinion that Mr King is not ‘settled’ in his mental health, and that he most likely suffers from a more entrenched psychological condition. Whilst a diagnosis in and of itself may matter little to his parenting capacity, what matters most, is the resultant behaviour. Mr King displays a high-level of emotional lability, has extreme difficulties perspective taking, can be highly volatile, and can have a tendency to engage in angry/aggressive behaviours when under stress. He has displayed a clear pattern of such behaviour across a variety of contexts (including towards the mother, two family consultants, multiple school staff, and children’s contact centre staff). Such behaviour has occurred, despite (i) court involvement and the risk of losing contact with his children, and most importantly, (ii) targeted and ongoing psychological treatment to address such issues over some time with Dr J. Furthermore, he is yet to complete the Men’s Behaviour Change program.”
In paragraph [41] Dr M states as follows:
“His behaviour indicates that, when under stress, he has little ability to control his emotions and manage stress in healthy, adaptive ways, and displays his emotions in unhealthy and dangerous ways, regardless of who is present, including the children. He also fails to take any responsibility for his behaviour, feeling entitled to engage in such behaviour on such occasions…”
In paragraph [18] of her report Dr M described the Father as having an extremely close and loving relationship with Z, X and Y and as a loving and caring father.
In paragraph [19] of her report Dr M sets out the allegations made by the Father in relation to the Mother’s capacity to parent. She notes those allegations include that the Mother physically and verbally abuses the children, does not communicate with him regarding school, that Z has threatened suicide if he has to live with the Mother, that she will take the children to reside in (country omitted), that the Mother has denigrated him to the church congregation, that the Mother keeps the children purely for her own sexual gratification and that when the parties lived together, the Mother was emotionally, verbally and physically abusive.
In paragraph [20] of her report Dr M observes as follows:
“The father clearly did not hold the mother in a positive light, and could name nothing positive about her as a mother. He blamed her for all current communication difficulties between the pair. He also reported her to be constantly abusive during their relationship. He questioned her motives for keeping the children, and felt that this was only for her benefit, rather than the best interests of the children… He presented as highly frustrated by the mother’s behaviour, and was fixated on such issues, and rigid in his thinking about such issues.”
In paragraph [22] of her report Dr M indicated that she spoke to Ms C, the principal of (omitted) Primary School where X and Y are students. She reports that Ms C advised that the Father had been banned from school due to “appalling” behaviour in that “…he had been verbally abusive to her, and that she had witnessed him to be verbally and physically abusive to the mother on the school premises.”
Dr M reports that Ms C also advised that the Father’s mother had called the school and been verbally abusive to her.
When describing the Mother, Dr M in her family report states in paragraph [25] that she “presented as having an extremely positive relationship with the children, and as a loving, caring and attentive mother.”
Dr M describes the Mother as having-
“…sound knowledge of each of the children’s emotional states and personalities and their vulnerabilities” and “possessed an appropriate understanding of what the children needed, currently, and into the future...”
Dr M makes the observation that she had no notable concerns about the Mother’s “capacity to provide for the children in relation to either their day to day care, or their longer term social and emotional development.”
Dr M reports the Mother as feeling torn in her views as to what she thinks is best for Z, X and Y in regards to contact with the Father in that she wants the children to spend time with him but is also worried that he will continue to undermine the relationship between she and the children.
In paragraph [29] Dr M states that the Mother reports communication between herself and the Father to be incredibly difficult and is therefore of the view that equal shared parental responsibility for the children would also be very difficult.
Dr M however, notes that whilst the Mother holds concerns about the Father, she did not present as fixated on these issues and did not speak of him in a derogatory fashion. Dr M notes that the Mother was able to be complimentary of him as a father and was able to name a number of strengths. Dr M observed the Mother to be very much aware and able to understand that Z, X and Y love their father and that she is able to appreciate their feelings towards the Father independently of her own views of him.
Dr M describes Z in paragraph [30] as a “very intelligent, engaging and out-spoken young man.” Z told Dr M he wanted a week about arrangement and he felt that it was unfair if he was only to see his father every second weekend. Dr M indicated that whilst Z expressed chronologically typical complaints about his time with his mother, he also identified a number of positive elements of his relationship with her. Z expressed confusion to Dr M as to why he previously did not want to spend time with her and was unable to explain why he had done so.
In relation to the Father, Z told Dr M that he missed his father dearly and that he experienced great sadness about not seeing him.
Dr M indicated that Z spoke openly and with dissatisfaction about the two differing parenting styles of his parents. Z describes his mother as being more restrictive than his father and of having more freedom whilst in his father’s care. Dr M reports that Z describes the best thing about his father as the extended freedom he has when living with him.
Dr M reports that Z told her that his father hates the Mother and that when they were together the Father would yell at the Mother.
Dr M notes X has mild intellectual disability, a learning disability, is involved with the Life Skills Program at school and has access to an aid in the classroom.
In paragraph [34] of her report Dr M describes X as a “happy-go-lucky young boy, who was friendly and chatty during interview.” Dr M reports that on a projective assessment X identifies his mother as his primary attachment but also showed a very strong attachment with his father. He too, clearly misses his father and wants to see more of him. Like his brothers, Dr M notes that X reports his father to be permissive in his parenting though reported disliking being physically disciplined by him. X too was clear that his father does not like his mother.
In paragraph [32] of her report Dr M describes Y as “a bubbly and chatty young boy who presented as slightly immature for his age.”
Dr M notes Y clearly expressed a wish to live in a week about arrangement as he was desperate to see his father. Like X, on a projective assessment, he identifies his mother as his primary attachment but he also has a strong attachment to his father.
When discussing the positive elements of his father with Dr M, Y made comment of the Father’s permissive parenting style and of buying him many items. He dislikes the Father physically disciplining him and notes his father to get angry and frustrated, to scream a lot and to have a dislike of the Mother.
In paragraph [33] of her report Dr M indicates that Y’s school described him as performing at an academically low level and having a temper at times, though they have observed him to be “more settled than he has ever been” and much calmer since being in the Mother’s care without spending time with the Father.
When reporting on her observations of Z, X and Y with each of the parties, Dr M describes them engaging well with the Mother, of being clearly comfortable in her care, of seeking proximity to her and of her being suitably affectionate and warm towards them. She observed that all of the boys clearly love their mother.
In relation to the Father, Z, X and Y also engaged very well with him. They were incredibly excited to see him, ran to him and embraced him with a cuddle and sought close proximity to him. Dr M observed the Father being very warm and engaging, but also being very dominant and loud in his interactions with them, showing a strong desire to be right and as being most comfortable when he was the centre of attention. She concluded that there was clearly a high level of love and affection between the boys and their father and that they were desperate for his attention and approval.
Under the heading “Evaluation” Dr M states the following:
“37. The children were a delight to interview. They were full of energy, bubbly, and polite young boys. All three children are emotionally vulnerable, and X has an intellectual disability…
38 All three children expressed a strong desire to reside in a shared care arrangement… However, since ceasing contact with their father and residing with their mother, their relationships with their mother have flourished, and all children are extremely settled in her care (compared with being quite unsettled previously). There was also much information available to the assessor to suggest that, whether intentional or not, the father had engaged in behaviour that had damaged or undermined their relationship with their mother. As such, the writer remains unconvinced that the children possess sufficient developmental maturity to form independent views and opinions and to have them taken into account with regards to future parenting arrangements.
39. In fully understanding potential risk to the children, the father’s mental health must be considered, as well as his capacity to support (and not undermine) the children’s relationship with their mother…”
Having discussed at length the Father’s mental health, the details of which are set out in paragraphs [41]-[45] of this judgment, Dr M concludes in paragraph [41] of her report as follows:
“His behaviour indicates that, when under stress, he has little ability to control his emotions and manage stress in healthy, adaptive ways, and displays his emotions in unhealthy and dangerous ways, regardless of who is present, including the children. He also fails to take any responsibility for his behaviour, feeling entitled to engage in such behaviour on such occasions. Such characteristics in a parent are certainly factors that have been identified in the literature as being problematic that further a child’s risk of being abused. This becomes especially relevant as the children age, and enter the teenage years and begin the process of individuation, and begin to push the boundaries. In addition, such behaviour is incredibly damaging for children to witness (either directly or indirectly), where they lack suitable role-modelling, feel torn loyalties between their father and the person on the receiving end of the abuse, and such behaviour most likely triggers feelings of fear and anxiety for the children. Such behaviour has disastrous consequences for children’s developing emotional competencies, and their ability to form and maintain healthy relationships, and places them at risk for future mental illness.”
In paragraph [43] Dr M states as follows:
“…the father’s negative view of the mother was obvious to all the children, and he has been observed to denigrate the mother in front of the children. The father showed few qualities that would be supportive of co-parenting arrangements. He has difficulties perspective-taking, is rigid in his thinking, and does not hold the mother in a positive light, and presents as impulsive and entitled in sharing of his opinions. The writer has little confidence that he possesses the necessary capacity to restrain sharing his views of the mother to the children. Whilst he may not intentionally undermine the children’s relationship with the mother – in an unsupervised setting, it is the writer’s opinion that this is highly likely to occur.”
In paragraph [44] of her report Dr M expresses a great deal of empathy towards the Father, describing him as having low self-esteem, being incredibly vulnerable, experiencing ongoing chronic pain and debilitating physical health and having a high level of anxiety and depressed mood. She notes that while he has an extremely positive relationship with Z, X and Y and many strengths as a father, this does not alter the detrimental impact his behaviour has on his children.
In paragraph [45] of her report, Dr M states that the Father is well aware of the detrimental impact his behaviour has on Z, X and Y from previous court involvement and that he has demonstrated little change over a 12 month period despite ongoing professional support. She expresses the opinion that his pattern of behaviour is unlikely to change without intensive and long term support and that even if this did occur, it is unlikely to occur in a developmentally timely fashion for Z, X and Y.
When discussing the Mother, Dr M observes the children to be settled in her care. Dr M reports that the children’s school speak of the Mother in an extremely positive light, commenting on noticeable changes in her presentation and that they express no concerns regarding her parenting or any unmet needs of the children.
Under the heading “The children, time spent and co-parenting considerations” Dr M states the following in paragraphs [49]-[52]:
“49. This is an incredibly sad case. With regards to the children’s relationship with their father, they all miss him terribly, and expressed a strong desire to spend additional time with him. They idolised him, and they have an incredibly strong bond. The father just adores his children. He presented as a well-meaning and loving, committed father, whose desire to spend more time with the children is understandable. However, the father’s behaviour makes it near impossible for the duration and frequency of time spent to be increased dramatically or to have unsupervised time spent, without significant costs to the children (in terms of both risks of being in his care, and also the detrimental impact it would have on their relationship with their mother). He also displays a number of behaviours that make co-parenting effectively incredibly difficult.
50. The mother is clearly identified as the primary attachment for all children. The children are well-settled in the mother’s care, with observable positive changes as compared with their presentation during previous living arrangements. The mother presented as child-focussed, and attuned to the children’s needs. There have been few concerns regarding her ability to make decisions that are in the children’s best interests.
51. As such, Sole Parental Responsibility in favour of the mother is recommended. The mother, however, should still communicate with the father regarding major health, welfare, or educational issues. The father should also be permitted access to school information, and is encouraged to take personal responsibility for gaining information about the children via means that do not involve the mother (i.e., he can access school information on-line or directly through the school where appropriate).
52. To protect and promote their relationship with their father, the children should continue to speak with him on the telephone every fortnight. In addition, they could begin to spend face-to-face time with their father supervised by a Children’s Contact Centre for two hours once every four weeks. Provided that the father behaves appropriately during this contact, then the hours may be increased, however, it is, in the writer’s opinion, that, sadly, unsupervised contact will not be in the children’s best interest and will likely cause significant disruption. Provided that this occurs with regularity and the father is able to engage with them during this time, then the children’s positive relationship with their father should continue to flourish.”
Dr M concludes her report by making the recommendation that the Mother have sole parental responsibility for Z, X and Y, that they live with her, spend time with the Father once every 4 weeks for up to 2 hours supervised by a Children’s Contact Centre and they continue to have fortnightly telephone contact with him as per the existing arrangements.
Prior to giving her vive voce evidence, Dr M was provided with the affidavits of the Mother sworn 8 August 2017 and 14 August 2017 and the affidavits of the Father sworn 26 July 2017 and 11 August 2017. Those affidavits set out in detail the behaviours of Z since he saw the Father for the purposes of the preparation of the Family Report, the behaviour of the parties from the perspective of the other parent and the Mother’s concerns about the impact of the recent events on X and Y.
Dr M told the court that in light of Z’s recent behaviour, which she believes was in all probability a result of the brief contact he had with the Father for the preparation of her family report, her recommendations had changed in relation to the living arrangements for all three children. Dr M indicated that her position was now that Z, X and Y should live with the Mother and spend no time and have no communication with the Father whatsoever.
Whilst confirming that Z, X and Y idolise their father and were very clear they want to have time with him, that they share a really close and loving bond and that the Father has many strengths, she is of the view that the risks to Z, X and Y of spending time with the Father outweigh the benefits of the boys having a relationship with the Father.
Dr M was asked to explain what those risks were. It is her evidence as follows:
“The risks are that ongoing contact with the Father would be to the detriment of the children’s relationship with their mother, so that’s one of the main ones. The second main risk is really around the children’s development and what’s in their longer-term best interests. So in the Father’s care they’re exposed to an emotional regulation style that is potentially damaging and is not going to adequately nurture and facilitate and provide an anchor for the children in terms of their emotional development… if that’s impacted on negatively, then that leads to a range of negative sequelae such as mental illness.”
Dr M was then asked to explain what was meant by the term “emotional regulation style”. Dr M explained as follows:
“…emotional confidence is really referred to your ability to understand your emotions and regulate or problem-solve around that. For example, if I have butterflies in my tummy I can take a few deep breaths and calm myself down. It’s also at the crux of social relationships and interactions in terms of how they can empathise with other people, in terms of how they can relate to other people, in terms of how they can perspective take and problem solve, and in my view the Father has quite a dysfunctional and unhelpful and potentially damaging way of regulating his emotions, for example, the way that he has interacted with both myself and the previous report writer and the staff member at the children’s contact centre and at the school. So the children are continually exposed to this negative way of managing emotions, which, as I said, if children don’t develop those competencies at a young age, in a timely fashion, then they will go on to continue to have negative consequences, as I said, some form of mental illness – anxiety; depression; schizophrenia.”
Given Z’s behaviour since the Family Report interviews, Dr M was asked how orders that Z, X and Y live with the Mother and spend no time with the Father could be implemented. It is Dr M’s evidence that given Z’s age, she believes he would continue to run away from the Mother’s house to the Father’s house and therefore an order he live with the Mother would be very difficult to implement.
Dr M was therefore asked, given her belief that Z would disregard any orders of the Court that he was to live with the Mother and spend no time with the Father and the evidence of the Mother of the impact on X and Y of having Z behaving atrociously towards her in her household, would it be better to make orders that X and Y live with the Mother and spend no time with the Father and to allow Z to live with the Father. Dr M responded as follows:
“It’s a reasonable proposal and it’s certainly one that needs to be considered, but I’m not ready for that yet. I think that there is still hope and opportunity for the Mother and Z to reunite, but not in the current living situation. So if I was to comment on what’s in the children’s best interests, all three of them, it will be to have greater physical distance between the Mother and the Father…so the proposal would be for the Mother to move away with the three children.”
It was put to Dr M that this was an extreme proposal particularly given the Mother’s support is in her community and particularly within her church community in (omitted). Dr M responded as follows:
“My first preference would be for the Father to relocate but, as I said, even if he was to relocate, I would still have concerns about whether he would be respectful of the court orders… certainly, as I said, that would be much more preferable than to relocate the children and the Mother from her supports.”
Counsel for the Mother put to Dr M that her client’s instructions were that to bring Z back into her household would place the younger two children and herself at risk and that the better option in a bad situation would be for Z to live with his father and X and Y live with the Mother and not spend time or communicate with the Father. Dr M acknowledged that this was an option and that there was not an easy or clear solution in this matter, but that:
“…if this is the path that she’s taking with Z, then I imagine, as Y and X age and begin to individuate when they hit adolescence, then they too might follow a similar pattern, especially given how strong their – their bond is with their father, and I imagine that they would then leave her care as well. So I understand, you know…that she needs to sacrifice one to save the other two, but I don’t think that she would be saying the same thing in five to eight years’ time.”
Counsel for the Mother indicated to Dr M that the Mother had instructed she would find it impossible to move from (omitted) at this time as her finances are such that she would not be able to relocate, find a new job, cope with Z and manage X and Y. Dr M was firstly asked was it not the best of a bad situation for the Mother to remain in (omitted) and hope that the Father would comply with orders not to contact X and Y. Dr M responded as follows:
“Based on the Father’s previous behaviour, I think that that would be unlikely to happen and, as I said, whilst their parents are in close proximity…the children are potentially going to see each other in the same school in the future. It’s a small community.”
Dr M was then asked that given her evidence the Mother is very nurturing and has astute insight into the way the younger boys operate, it could not be assumed X and Y would go “the same way” as Z. Dr M responded as follows:
“No, that’s correct. We can’t guarantee that that’s going to happen. It’s a high likelihood of that happening. And the other thing to remember is that that’s not just projecting forward into the long term but the boys are having immediate consequences now. They’re very sad and they’re upset and they’re very confused, and it would be very hard for them to understand why Z is with their father yet they can’t have any contact. So I think that’s a really tough thing and I think mum will have short-term consequences if that was to happen as well.”
Given the Mother’s evidence that she is not in a position to move away from (omitted) at this time and the concerns raised by Dr M about the impact on X and Y if Z were to live with the Father and they spend no time with him, Dr M was asked whether it might be preferable, despite concerns about the Father’s undermining of their relationship with the Mother, for X and Y to live with the Mother and spend some time with the Father.
Whilst not responding directly to that question, Dr M stated as follows:
“There’s no good outcome unfortunately…I think you’re asking an impossible question…that scenario means is that we are sacrificing Z, you know, in terms of his future; we’re sacrificing the sibling relationships and we’re also potentially sacrificing the Mother’s relationship with the two boys as well, both in a short term unsettling but also longer term. So I still think that would be – regardless of the contact with dad, we’re going to have three little boys or older boys, older adolescents, who are engaged in high risk behaviour.”
Dr M was asked finally did she have a view as to what was the “least worst” option available for Z, X and Y. Dr M responded as follows:
“I don’t think you need to hear a psychologist to see what’s going to be the – the least worst for these kids out of a really bad lot of options, and I would just be heartbroken that these little kids miss out on all of those things purely because their parents couldn’t sort out their business and couldn’t consistently prioritise their needs. So, as I said, it really matters little. If that’s a decision that both parents are making and unless the Father was able to change, to be able to prioritise the children, then as I said it matters little whether there’s formal contact or not between the Father and the children. There will be contact. The consequences will happen anyway. It’s just a matter of time, in my opinion. Rather than if it will happen, it’s a question of when.”
The Mother
The Mother relies on her affidavits sworn 16 November 2016,
8 August 2017 and 14 August 2017. She also relies on her affidavit material filed earlier in the proceedings and the findings made in relation to those matters contained in the judgment delivered 19 April 2016. The Mother also gave vive voce evidence at the final hearing.
It is the Mother’s evidence that she has considered Dr M’s vive voce evidence very seriously.
It is the Mother’s evidence that it is not possible for her to relocate from the (omitted) region, as she has neither the financial capacity nor the alternative support base in order to be able to do so at this time.
It is the Mother’s evidence that she is genuinely distressed at the impact on Z of spending time with the Father. She believes it is apparent Z is modelling his behaviour on his father, such that she has a genuine concern for her physical safety and the physical safety of X and Y. She genuinely believes that Z could carry through on his threats to physically hurt her and to burn down their home.
It is the Mother’s evidence that she loves Z and is desperate to have a relationship with him but she does not believe it is possible for Z to return to live with she, X and Y.
It is the Mother’s evidence that she has a different relationship with X and Y to that she has with Z and that the two younger boys have quite different personalities to their older brother. It is her evidence that with the assistance of her clinical psychologist she believes X and Y can be helped to not to go down the same pathway as that of Z in rejecting a relationship with her and exhibiting behaviours of the type that Z is currently exhibiting.
It is the Mother’s evidence that Z bullies X in particular and that this increased after the appointment for the family report with Dr M. It is her evidence Z’s bullying of X went beyond normal sibling interaction and that X recently shared with his welfare officer at school that he is feeling bullied by Z.
It is the Mother’s evidence that X and Y will be attending a different high school than that attended by Z.
The Mother readily concedes that X and Y love the Father and that they would like to be able to spend time with him. It is the Mother’s evidence however that she does not believe the Father would be able to shield them from his extreme negative views of her, even in a supervised setting.
It is the Mother’s evidence that she doesn’t believe a continuation of telephone communication between X and Y is in their best interests. Over the last twelve months X and Y became very distressed when the Father didn’t make the calls. There were occasions when the Father did call, he openly encouraged X and Y to act out against the Mother whilst in her care. It is her belief that the Father will not be able to remain child-focussed if telephone calls were to continue into the future. This would be very distressing for X and Y.
The Mother readily concedes that her proposal for Z to live with the Father and for X and Y to live with her and not spend time with their father will be very difficult, particularly for X and Y. It is her evidence that she understands there will be some fallout and issues for X and Y to deal with if this is ordered. The Mother expresses the view that X and Y will be able to adjust to not spending time or communicating with the Father, although this will take them some time. It is the Mother’s evidence X and Y have people close to them who love them and who will help them find a way through what will be a very difficult period.
It is the Mother’s evidence it is possible that in two or three years’ time she could be in a position to relocate and that if she was of the view that relocation would be of genuine assistance for X and Y, she would contemplate moving.
When these proceedings commenced in 2015, the first of three family reports that have been prepared in this matter was released on 10 August 2015 by report writer Ms J. In her first report, Ms J was of the view that neither the Mother nor the Father had demonstrated they were capable of having full-time care of the children. In relation to the Mother, Ms J observed that she needed to attend counselling to assist her to raise her self-esteem and to learn to be assertive in her parenting of Z, X and Y and her interactions with the Father.
Ms J prepared a second report in this matter dated 29 January 2016. In her second report Ms J observed that she was impressed with some of the very positive changes made by the Mother since she had first interviewed her in July 2015. Ms J noted the Mother had clearly worked hard to be firmer with Z, X and Y and was able to be much more assertive in relation to the Father.
The positive gains in the Mother’s presentation were observed by the Court at the time of the first hearing of the matter.
On this occasion the Mother again impressed as someone who has continued to develop as an individual and as a parent. Her evidence was entirely focussed on the best interests of Z, X and Y in what can only be described as one of the most difficult and heart-breaking situations that any parent could face.
The Father
The Father relies on his affidavit sworn 11 August 2017. He also gave vive voce evidence at the final hearing.
The Father’s Counsel in his closing advised the Father’s proposal was for orders be made for equal shared parental responsibility, for Z to live with him and for X and Y to live with the Mother and there be time between himself and the younger two boys, including a continuation of the current telephone contact arrangements.
However, it was apparent when the Father gave his vive voce evidence that the proposal put by his Counsel did not reflect the living arrangements for Z, X and Y that he truly seeks. When giving his vive voce evidence, it was the Father’s evidence that he was of the view that it would be in Z, X and Y’s best interests that they live with him for at least “80% of the time” and they spend “20% of the time” with the Mother.
It is very apparent from the Father’s vive voce evidence that he continues to hold the Mother in extremely low regard and that he does nothing to shield Z, X and Y from his negative views of her.
It is the Father’s evidence that he believes the Mother bullies Z and physically abuses him. It is his evidence that Z told him of the Mother putting all her weight on top of him and digging her knees in and physically trying to restrain him to the extent that he has had to tell her she was really hurting him and to get off. When asked when this happened, the Father responded that it happens regularly as Z told him this sort of thing happens all the time.
It is the Father’s evidence that he believes the Mother bullies all three children and physically abuses them as she derives pleasure from doing so. During cross-examination, when asked how the Father knew that the two younger boys were being bullied by the Mother, he replied as follows:
“Because if it’s happening to one – and it happened to me for – for the whole time I was with her. It would be fair to assume, like you like to do a lot, that it is happening to the other two.”
In Dr M’s report she states the Father told her that the Mother abuses the children for her own sexual gratification. The Father’s vive voce evidence is that the Mother gets a sexual thrill out of abusing her children. The Father was asked how he knows this to be true. He responded as follows:
“I have witnessed it countless times. The smile on her face after walking back from Y, beating him – her hand was so red. It was sore. She had a smile on her face from ear to ear, and I have seen that happen twice, and that was while we were together…
…Her hand was hurting and she was happy about it. I even threatened to call the police if she ever did it again.”
The Father was questioned by Counsel for the Mother about his taking Z to the police in August 2017 after Z had complained of being bullied and abused by the Mother. Initially the Father said that the idea to go to the police was 100% Z’s because “I do not know the situation, and I do not want to taint what actually happened in his mind. I do not want to put ideas in there.”
However, when further cross-examined about this incident by Counsel for the Independent Children’s Lawyer, the Father responded as follows:
“I said to him, “What are you doing there?” He said, “I’m over being abused by my mother,” and I said, “Well, there’s nothing I can do about it”. I said, “I’m not in any position”. I said, “The only – if it is that bad that she is doing the wrong thing by you, then you should go and talk to the police and see if – if it is that bad, you need to figure it out with them and it is up to you what you do from there”.”
When challenged that in contrast to his earlier evidence, it was in fact his suggestion that Z go to the police, the Father responded as follows:
“No, it was – okay. It was a suggestion, maybe. It was, “If it is that bad, that you need to go to the police,” because he had been to school and they weren’t doing anything about it.”
The Father was questioned about why he insisted on driving Z to collect belongings from the Mother’s home when she had clearly asked him not to do so. He responded as follows:
“She verbally asked me to do it. I said no because people are not there to run around for her whims and fancies because she wishes to continue the bullying towards to me of stuff that I have not done to her.”
The Father confirmed in his vive voce evidence that he has commenced a men’s behavioural change program. He was asked what he had learned from that program. He responded as follows:
“I have learned a lot about smoke screens. I have learned a lot about how – how we should be changing it, what we shouldn’t be doing, people’s body language, the way they talk to people.”
When asked to explain what he meant about smoke screens, the Father explained that a smoke screen is when a person puts up something to deflect them from the actual truth.
The Father was then asked, “And that’s what Ms King does?” to which he responded: “Very well.”
It was put to the Father that what he had learned from the men’s behavioural change program was the tactics that the Mother uses. The Father responded as follows:
“No, actually I have known the tactics for most of our marriage. As a matter of fact, I asked her to go and see a psychiatrist once a week for nearly 12 years, because she has a real serious issue with needing attention. She causes trouble, then to get the love that she needs in return is everybody feeling sympathy for her. Now, I have asked her – because I – when we were together, as much as she was abusive and she would be physically violent, verbally violent and emotionally violent, I actually did love her while we were there and I wanted her to be the best person for herself that she could be.”
There was a discussion between Counsel for the Independent Children’s Lawyer and the Father on the possibility of the Mother having an opportunity to undermine him as a parent. His response was as follows:
“Well, the only person who can undermine anybody is themselves, so if there’s any undermining going on in Ms King’s relationship with the children or my relationship with the children, it’s done by myself, not by Ms King or not by myself. So she – if she – she can say whatever the hell she likes. It’s still not going to undermine my relationship with the children.”
The Father was asked about his response to the evidence of Dr M that the best outcome for Z, X and Y would be for them to live with the Mother, spend no time with him and for him to move away from (omitted). The Father was asked whether he accepted Dr M’s opinion. He responded as follows:
“I believe for the half an hour that you get to speak with one person to make a judgment on someone’s life is absurd.
I don’t really care whether it’s – your Honour, I don’t care whether it’s you, I don’t care whoever it is, without actually knowing the whole situation and having insight into the whole situation, which Dr M does not – quite frankly, she does not. She sat there and read a whole bunch of stuff there … Including a judgment. Including whatever else, and it makes very little difference. They’re just words on paper. They’re not actions.”
The Father was then asked:
“So the long and the short of it is you’re not going to move away?”
The Father responded: “No, I’m not going to move away.”
It was then put to the Father:
“And you don’t accept it’s in the children’s best interests for you to have absolutely no time with the children whatsoever?”
The Father responded:
“Well, the longer you keep those children away from me due to the way I brought them up, it will only have an adverse effect on Ms King’s relationship with her children and as well as myself.”
The final question put to the Father was as follows:
“If the three children remain in the mother’s care, she will continue to abuse them, won’t she?”
The Father answered: “I believe that that is the case, yes.”
The Law
Part VII of the Family Law Act 1975 (“the Act”) deals with children. Section 60B of the Act sets out the objects and underlying principles of Part VII of the Act as follows (omitting for present purposes s.60B(3) which deals with Aboriginals and Torres Strait Islanders):
1.The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
2. The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Best interests of the child
Section 60CA of the Act provides that:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
When determining what is in the best interests of the child, the Court must consider the matters set out in section 60CC(2) and section 60CC(3) of the Act. Each of the matters contained in those subsections, where relevant to the matter before the Court, must be considered and assessed in the context of each of the parties proposals.
The Court should then make a decision as to which of the parties proposals, or such other arrangements as the Court determines given the Court is not bound by the parties proposals (see AMS v AIF (1999) 199 CLR 160, U & U (2002) 211 CLR 238), is in the children’s best interests.
Section 60CC(2)
Section 60CC(2) of the Act sets out the primary considerations that the court must take into account when determining what is in the child’s best interests.
Section 60CC(2)(a): the benefit to the child of having a meaningful relationship with both of the child’s parents
When this matter was before the Court in early 2016, it was the finding of the Court that whilst X and Y had a meaningful relationship with both the Mother and the Father, Z did not have a meaningful relationship with the Mother because of his exposure to the Father’s extreme anger towards the Mother and his failure to shield Z from his highly negative views of her.
It was the evidence of Ms J, the Court appointed expert at that time, that the only possibility of all three boys and particularly Z, being afforded an opportunity to have a meaningful relationship with both the father and his mother, would be for the Court to make orders that all three boys lived with the Mother and have a period of time where they spent no time with the Father.
It was the evidence of Ms J that the strength of Z, X and Y’s relationship with the Father was such that a period where they spent no time with the Father would not impact on the continuation of that meaningful relationship.
It was also the evidence of Ms J that absent a meaningful relationship with both parents, Z’s emotional and psychological wellbeing would be severely impacted.
Accordingly, orders were made that reflected the recommendations of Ms J.
What followed was a period of twelve months where Z, X and Y lived with the Mother and spent no face-to-face time with the Father, they did speak to him every fortnight.
It is quite apparent from the report of Dr M that during that period, Z’s relationship with the Mother repaired and that he, as well as X and Y, had a meaningful relationship with both their parents.
Sadly, it would appear that just a single brief interaction between Z and his father for the purposes of the preparation of the family report has been sufficient to undo all that was achieved in that twelve month period and has resulted in Z once again completely rejecting his mother.
It is the unequivocal evidence of Dr M that in this family, it is not possible for Z, X and Y to have an ongoing meaningful relationship with the Mother if they spend time or communicate with the Father.
Section 60CC(2)(b): the need to protect the child from physical and psychological harm, from being subjected to, or exposed to, abuse, neglect or family violence
In paragraphs 162 and 163 of the judgment delivered in King & King [2016] FCCA 827, I stated as follows:
“162. It is Ms J’s evidence that if Z continues to live with the Father the risk of him becoming an angry, violent young teenager and young man is extremely high.
163. It is the further evidence of Ms J that if Z as a twelve year old young pre-pubescent adolescent is allowed to continue to dictate the relationship that he has with other adults and in particular his Mother it will be disastrous for Z in future relationships, not just with women but also with men. It is Ms J’s evidence that Z would not be able to develop appropriate relationships, would have great difficulty in settling and that he would be disturbed as a young teenager, noting he is not far from that already. She expresses real concerns toward him becoming anti-social.”
As set out in paragraph [71] it is the evidence of Dr M that despite Z, X and Y having a close and loving bond with the Father, the risks of them spending time with the Father outweigh the benefits of them continuing that relationship.
The risks identified by Dr M are that ongoing contact with the Father would be to the detriment of Z, X and Y’s relationship with their mother and their emotional development. It is her evidence that in the Father’s care, they will be exposed to his emotional regulation style which will not adequately nurture and facilitate them and provide an anchor for them in terms of their emotional development.
It is Dr M’s unequivocal evidence that the only orders available to the Court that would protect Z, X and Y from the risk to them from the Father’s behaviour is for them to live with the Mother and spend no time with the Father and to do so sufficiently geographically distant from the Father that their opportunity to interact with him is removed.
Because the Father will not move, such an outcome is only viable if the Mother is able to relocate with Z, X and Y.
It is the Mother’s evidence that she is not able to relocate. She lacks the money, the income, the financial resources and a support base that would enable her to make such a move.
In those circumstances, the Mother has made the heart-wrenching decision that the only way forward that she can see for her family is to allow Z to live with his father and for X and Y to remain living with her and to spend no time nor communicate with the Father.
It is Dr M’s evidence that whilst this decision of the Mother is totally understandable, she has grave concerns that the outcome for Z, X and Y if the arrangements proposed by the Mother are put in place is dire. Dr M believes that when X and Y are approaching adolescence, there is a very strong likelihood that they will exhibit the same behaviours and make the same decisions as has Z and that all three boys will end up living with the Father, have no relationship with the Mother and suffer the resultant emotional and psychological outcome that will result in them being very damaged and self-harming young men.
It is the Mother’s evidence that because X and Y have quite different personalities to that of Z, because she has a somewhat different relationship with them than she does with Z, not that she loves Z any less, and because she has the appropriate professional and personal supports for herself, X and Y, she believes it will be possible to prevent X and Y from going down the same path as Z.
Section 60CC(3)
Section 60CC(3) of the Act sets out the additional considerations the Court must look at when determining what is in the child’s best interests. Each of the matters set out under that section must be considered in turn, where applicable in determining what is in the child’s best interests.
Section 60CC(3)(a): any views expressed by the child and any factors (such as the child's maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
Whilst Z told Dr M that he wanted to live week-about with each of his parents, his subsequent behaviour and total rejection of the Mother sadly reflects his current views about his living arrangements.
X and Y also spoke to Dr M about living in a week-about arrangement with each of their parents, though interestingly neither wanted to live in the Father’s primary care.
X and Y love their father, want to spend time with him, have desperately missed him since being unable to spend time with him over the last 18 months and will be genuinely upset if orders were made in the terms proposed by the Mother and supported by the Independent Children’s Lawyer.
In paragraph 38 of her family report, Dr M discusses Z, X and Y’s views, which at that time were for a shared-care arrangement. She states however, that:
“…the writer remains unconvinced that the children possess sufficient developmental maturity to form independent views and opinions and to have them taken into account with regards to future parenting arrangements.”
Section 60CC(3)(b): the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparents or other relative of the child)
The nature of Z, X and Y’s relationship with the parties has been well-canvassed in this judgment.
Z, X and Y also have a strong relationship with the paternal grandmother, who resides just out of (omitted).
Whilst Z, X and Y spent no time with the Father after the orders of 19 April 2016 were made, they spent time with the paternal grandmother and that close relationship has continued.
It would appear from the Father’s evidence that the paternal grandmother, perhaps not unsurprisingly, is very much aligned with the Father and holds similarly negative views about the Mother.
It is noted that when Dr M was speaking to the principal of X and Y’s school, the principal advised Dr M that the paternal grandmother, like the Father, had been very abusive of her.
It is the Mother’s evidence that in the circumstances of this matter it would be preferable for X and Y to not spend time with the paternal grandmother in the future given her strong alignment with the Father.
Unfortunately, the paternal grandmother did not give evidence at the final hearing of this matter. When asked why his mother was not giving evidence, the Father initially responded by saying he didn’t think it was necessary. He later, somewhat confusedly, expressed the view that she was asked by his solicitor if she would swear an affidavit and his mother declined to do so.
The failure of the Father’s mother to give evidence in the proceedings makes the question of whether there should be time between X, Y and herself very difficult to determine.
Section 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
Not relevant.
Section 60CC(3)(ca): the extent to which each of the child’s parents have fulfilled, or failed to fulfil, the parent’s obligation to maintain the child
Not relevant.
Section 60CC(3)(d): the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his parents; or
(ii) any other child or other person (including any grandparent or other relative of the child), with whom he or she has been living
It is Dr M’s evidence that the longer Z is exposed to the Father’s negative views of the Mother, the more entrenched Z’s refusal to have a relationship with his mother will become.
If X and Y remain with the Mother and there are no orders that they spend time or communicate with the Father, they are clearly going to be very upset with this arrangement and question why Z is allowed to see the Father and they are not.
It is Dr M’s concern that with the passage of time and as X and Y approach adolescence, they will follow the same path as Z by rejecting the Mother and moving to live solely with the Father. It is Dr M’s evidence that this will result in three very damaged young men.
It is the Mother’s evidence that because X and Y are different personalities to that of Z, because she has a different relationship with them than she does with Z and because she is conscious of the risks for X and Y, she will put in place the necessary professional and personal supports to help them to manage and understand why their living circumstances are different to those of Z.
Further, the Mother has not rejected the possibility of moving away from (omitted) in the future in order to assist X and Y to be more settled and content in their life with her.
Whilst the Mother understands that X and Y will miss the paternal grandmother, she is of the view that ongoing time with her will have the same negative impact on them as spending time with the Father would because the paternal grandmother holds the same negative views of the Mother as the Father does.
Section 60CC(3)(e): the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
Not relevant.
Section 60CC(3)(f): the capacity of each of the child’s parents and any other person to provide for the needs of the child including emotional and intellectual needs
When this matter was first before the Court, the Mother’s capacity to support Z, X and Y’s intellectual and emotional needs at the time of the parties’ separation because of her lack of self-esteem and ability to be assertive both in her parenting and her relationship with the Father, was in issue. When the matter was first heard in March 2016 those concerns had considerably abated. The Mother had undertaken intensive personal counselling and the improvement in her parenting capacity was noted at that time by both the report writer Ms J and by the Court.
17 months further down the track, it is apparent the Mother’s parenting capacity has continued to improve. In paragraph 25 of the family report, Dr M described the Mother in the following terms:
“Ms King presented as having an extremely positive relationship with the children, and as a loving, caring and attentive mother. She possessed sound knowledge of each of the children’s emotional states and personalities and their vulnerabilities. She was assessed as possessing an appropriate understanding of what the children needed, currently, and into the future, and there were no notable concerns about her capacity to provide for the children in relation to either their day-to-day care, or their longer term social and emotional development.”
Dr M’s observations of the Mother as a parent were reinforced in the manner in which she gave her evidence at the hearing of this matter.
In paragraphs 201 and 203 of the judgment delivered in King & King [2016] FCCA 827, the following observations were made in relation to the Father’s parenting capacity:
“201. Sadly, there is a genuine concern about the Father’s capacity to meet Z, X and Y’s emotional and intellectual needs. The Father lacks any insight into the impact that his unremitting anger, denigration and disdain for the Mother and his inability to shield those feelings and beliefs from Z, X and Y have on them.
203. The Father models his disrespect for authority and for women in particular before Z, X and Y and does not acknowledge or the inappropriateness of his behaviour or the poor example it is setting for his sons.”
It is apparent from the Father’s evidence at this hearing that despite intensive personal counselling and his attendance at a men’s behavioural change program, the Father has developed no insight or understanding into his behaviour. He continues to exhibit exactly the same behaviours that led to the making of the orders in 2016 that Z, X and Y’s best interests were met by them spending no time with him.
In paragraph [45] of her family report, Dr M properly notes that the Father is well aware of the issues relating to his behaviours and that he has demonstrated little change over a twelve month period despite professional support. She expresses the opinion that the Father’s pattern of behaviour is unlikely to change without intensive and long-term support and that even if that occurred, it is unlikely to occur in a developmentally timely fashion for Z, X and Y.
At the first hearing of this matter, Ms J gave very similar evidence to that of Dr M about the long-term negative impact on Z, X and Y if the Father did not address his behaviours and in particular continued to expose them to his negative views of the Mother and his lack of respect generally for women.
On that occasion, when questioned about Ms J’s evidence the Father dismissed it out of hand and was openly scathing and derogatory of her.
The Father, having heard the extraordinarily distressing evidence of Dr M about the long term emotional harm to Z, X and Y if he did not change his behaviour, was again completely dismissive of her and her evidence. He quite simply said he didn’t care what the Court or Dr M had to say because they lack knowledge of and have no insight into his family.
It is therefore apparent that the Father has no capacity whatsoever to provide for the emotional and intellectual needs of Z, X and Y.
Section 60CC(3)(g): the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the Court thinks are relevant
Not relevant.
Section 60CC(3)(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i)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
(ii) the likely impact any proposed parenting order under this Part will have on that right
Not relevant.
Section 60CC(3)(i): the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The Mother is a responsible and caring parent who has, particularly in the last three years, demonstrated she is committed to parenting Z, X and Y to the best of her ability. Sadly, the same cannot be said of the Father.
It would appear that the Father is functionally illiterate and is unable to read any lengthy document. He quite happily conceded that he hadn’t bothered to read or have read to him the judgment delivered in April 2016. Whilst it would appear the family reports have been read to the Father, he has gleaned very little from their content and in particular the very real concern for the future emotional and mental health of his sons raised in those reports.
Part of the attraction for Z, X and Y in spending time with or living with the Father is that he places almost no boundaries on them and their behaviours. This is in contrast to the Mother who sets firm boundaries around their behaviour and imposes consequences when they misbehave.
As Dr M noted in her vive voce evidence, it is going to be much more appealing to Z, X and Y to live with the parent who essentially allows them to run free and get whatever they want in that parent’s care.
Whilst understandably very appealing to Z, X and Y, the Father’s parenting is not that of a responsible parent.
In short, whilst there is no doubt the Father loves Z, X and Y, he is not a responsible parent.
Section 60CC(3)(j) any family violence involving the child or a member of the child’s family
Section 60CC(3)(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person
The Father alleges that the Mother emotionally and physically abuses Z, X and Y, in part because she gets a sexual thrill from doing so.
It is the Father’s evidence that Z tells him of constant bullying and physical abuse by the Mother. He believes Z’s reports of the Mother’s abuse unreservedly.
The Father also posits that because the Mother is abusive of Z, she must therefore be abusive of X and Y although neither child has made complaints of this.
When Z, X and Y were spoken to by Dr M, they made no complaints of bullying or abuse by the Mother, albeit they made age-appropriate complaints about their mother disciplining them and requiring them to behave.
Neither X and Y’s school nor Z’s school reported to Dr M that any of the boys had made complaint to their schools of any form of abuse at the Mother’s hands.
Despite the Father rushing Z off to the police to report his “horrendous” abuse at the hands of the Mother, the police took no action in relation to Z’s complaints.
The only complaint of physical discipline reported by X and Y to Dr M was at the hands of the Father.
I am more than satisfied that there is no issue of emotional abuse, physical abuse or bullying by the Mother of any of Z, X and Y. Any complaints made by them are in response to her appropriately disciplining them and requiring that they behave themselves in an acceptable way in her home.
Section 60CC(3)(l): whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
There needs to be an end to litigation in this matter and a level of certainty for Z, X and Y about their living arrangements going forward.
There is no doubt that this matter not being finalised after the first hearing weighed heavily on Z in particular. Because of his knowledge of the Court processes, Z understood that his attendance for a further family report meant the matter was soon to return to Court. It is quite apparent that the appointment for the further family report triggered Z’s subsequent behaviours and has unfortunately led to him again rejecting the Mother.
Section 60CC(3)(m): any other fact or circumstance that the court thinks is relevant
In his closing, Counsel for the Independent Children’s Lawyer stated that the Mother’s proposal must have been the most difficult decision she had ever had to make. Counsel made the observation that Z, X and Y would be better off in the Mother’s care with no time whatsoever with the Father, but the Mother had to take what he described as “this heart-breaking decision”. Counsel for the Independent Children’s Lawyer observed that the Mother must have done some terrible grieving and soul-searching in reaching her decision.
Counsel for the Independent Children’s Lawyer advised the Court that the Independent Children’s Lawyer supports the Mother’s proposal.
Presumption of equal shared parental responsibility
Section 61DA of the Act provides that the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child. This presumption is rebutted if there are reasonable grounds to believe that either of the child’s parents have engaged in abuse of the child or family violence or where there is evidence that it would not be in the child’s best interests for the parents to have equal shared parental responsibility for the child.
In this matter, the Mother proposes that the Father have sole parental responsibility for Z and that she have sole parental responsibility for X and Y.
It is the Father’s proposal that the parties have equal shared parental responsibility for all three boys.
These parties cannot communicate. The Father’s overt hostility and anger towards the Mother has not abated since separation. If anything it has become even more pronounced with him now making the outrageous allegation that she is sexually gratified by abusing her children.
In her family report, Dr M states in paragraph [49] that the Father displays a number of behaviours that make co-parenting incredibly difficult.
In contrast to the Father, Dr M finds the Mother child focused and attuned to the children’s needs. Dr M observes that there have been few concerns raised regarding the Mother’s ability to make decisions that are in the children’s best interests. She recommends an order for sole parental responsibility in favour of the Mother.
In the circumstances of this matter it is quite apparent that the presumption for equal shared parental responsibility is rebutted and that the only order available to the court is that the parent that has the primary care of the child or children should have sole parental responsibility for that child or children.
Consideration of equal time and substantial and significant time
Where parties have equal shared parental responsibility for a child, section 65DAA of the Act sets out that the court must consider whether the child spending equal time or substantial and significant time with each parent is in the child’s best interests and consider whether such an order is reasonably practicable.
Where the court makes an order that one or other of the parents have sole parental responsibility, the Full Court in the matter of Goode & Goode (2006) 206 FLR 212; [2006] FamCA 1346, held that the court must consider the possibility of equal time or substantial and significant time in the context of whether such an arrangement would be in the best interests of the child.
Given the distressing circumstances of this matter, it is apparent that it is not a matter where a consideration of equal time or even substantial and significant time can in any way be seen to be in the best interests of X and Y.
Ideally, Z should spend equal or substantial and significant time with the Mother. When he spoke to Dr M this was his proposal for living arrangements.
It is the Mother’s evidence that her door will always be open to Z. It can only be hoped that Z will one day achieve a level of maturity and independence from the Father that will enable him to walk back through that door.
However, to make orders prescribing defined time between Z and the Mother will be a fruitless exercise and would not be complied with by either the Father or Z.
Conclusion
This judgment opens with the lines “This very sad case…”. Dr M in paragraph [49] under the heading The children, time spent and co-parenting considerations opens with the sentence “this is an incredibly sad case.” It is probably the saddest and most distressing case that I have heard since I was appointed to the Court.
Dr M’s evidence is that Z, X and Y need to live solely with their Mother and spend no time whatsoever with the Father. Further it is her evidence that unless they do so at considerable distance from the Father all three boys will ultimately end up living with the Father and spending no time with the Mother because of his inability to support their relationship with her.
It is Dr M’s evidence that the Father has little ability to control his emotions and to manage stress in a healthy and adaptive way. Dr M states the Father displays his emotions in unhealthy and dangerous ways regardless of who is present including Z, X and Y and fails to take any responsibility for his behaviour.
In paragraph [41] of her family report, Dr M explains the consequences of that behaviour in the following terms:
“Such characteristics in a parent are certainly factors that have been identified in the literature as being problematic that further a child’s risk of being abused. This becomes especially relevant as the children age, and enter the teenage years and begin the process of individuation, and begin to push the boundaries. In addition, such behaviour is incredibly damaging for children to witness (either directly or indirectly), where they lack suitable role-modelling, feel torn loyalties between their father and the person on the receiving end of the abuse, and such behaviour most likely triggers feelings of fear and anxiety for the children. Such behaviour has disastrous consequences for children’s developing emotional competencies, and their ability to form and maintain healthy relationships, and places them at risk for future mental illness.”
Dr M further expanded on this evidence in her vive voce evidence and her comments in that regard are set out in paragraphs [74]-[86] of this judgment.
The Mother proposes orders that Z continue to live with his father and that he spend time with her as agreed between them. She proposes that X and Y live with her and that they spend no time and do not communicate with the Father.
It is the Mother’s evidence that she is not financially able to relocate and nor does she have the support base anywhere other than in (omitted), at least at this time.
The Mother indicated to the Court through her Counsel that she had heard and considered Dr M’s evidence that if she remains in (omitted) and X and Y remain living with her and spend no time with the Father, the probable outcome is they will eventually move to the Father’s household as they become older and approach adolescence. It is the Mother’s evidence that she believes that because X and Y are much younger than Z, have different personalities to him and because their relationship with her is different to that which she has with Z, with professional support and with the support of her friends and church community she is hopeful that Dr M’s prognosis in relation to X and Y will not come to be.
As noted, the Independent Children’s Lawyer supports the Mother’s proposal.
Whilst the Father’s Counsel put forward a proposal in his closing on behalf of the Father that orders be made for Z to live with the Father and spend agreed time with the Mother and for X and Y live with the Mother and spend agreed time with the Father, it was very apparent from his evidence that what the Father is really seeking is for Z, X and Y to live with him and to spend whatever time they choose with the Mother. Given the Father’s belief that the Mother abuses Z, X and Y and there is no benefit in them having a relationship with her, it is apparent that he believes they would choose to spend no time with the Mother and he would support them not to do so.
I accept unequivocally that the Mother does not have any way that she can currently relocate from (omitted). She does not own her own home, she is currently unemployed and when she is in employment she does not generate a large income. Whilst her family live in (country omitted), they do not have the resources that would enable her to live with them or provide her with any financial support whilst she re-established herself.
The Mother is a member of the (church omitted) community in (omitted). That community is highly supportive of the Mother, Z, X and Y. In (omitted) the Mother also has the support of her counsellor, a family therapist and access to other professional services to support herself, X and Y.
Z too is engaged with his counsellor at Headspace in (omitted), Mr D, who continues to support him.
It was hoped that the orders of 19 April 2016, which gave all 3 boys, but particularly Z some breathing space from the Father’s attitude to the Mother and his lack of emotional regulation, would be sufficient to enable Z to redevelop his relationship with his mother such that he would be able to resist his father’s negative influence. Sadly that has not proven to be the case.
It is the Mother’s evidence she reached the heart breaking decision that Z should live with the Father because an order requiring Z to live in her home would be unsuccessful as he would continue to run away. Further she believes that if Z lived with her he would continue to be violent to her and bully X and Y resulting in a real risk of emotional and physical harm to herself, X and Y. In short, she made the decision that she needed to protect X and Y from the damage the Father’s behaviour has already wrought on Z.
Whilst fully understanding the Mother’s decision, Dr M was of the view that the Mother’s proposal would not achieve the positive outcome for X and Y as hoped for by the Mother. It is Dr M’s evidence that if X and Y continue to live with the Mother in (omitted) where they will be exposed to the Father’s influence they will ultimately move to live with the Father, reject the Mother and that in the medium to long term the outcome for Z, X and Y is dire.
With the greatest of respect to Dr M, I am not prepared to be as pessimistic as she about the future for these boys, at least from the perspective of X and Y.
I am also not prepared to completely give up on Z albeit the potential to be as optimistic for him going forward is not as great in the circumstances as they currently stand.
The Mother’s growth as a parent and as a person over the course of this litigation has been remarkable. At separation she had low self-esteem and no confidence in her parenting. Today she is a confident woman whose parenting of her children is of the highest standard.
The Mother is fully cognisant of the challenges ahead for both herself and for X and Y. She will do all that is humanly possible to enable those two young boys to grow into functioning, healthy young men and avoid the quite dire outcomes that might otherwise be their circumstance if they were to be parented solely by the Father.
It will be a much more difficult path for Z. I can only hope that he will develop a level of independence from his father’s influence to walk back through his mother’s open door.
I have therefore formed the view that the only orders that can be made in all the circumstances of this case that are in the best interests of Z, X and Y are those as proposed by the Mother. Accordingly, orders will be made in those terms.
I certify that the preceding two hundred and thirty one (231) paragraphs are a true copy of the reasons for judgment of Judge Bender
Date: 16 November 2017
Key Legal Topics
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Family Law
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Injunction
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