Lackey and Mae
[2013] FMCAfam 284
•28 March 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| LACKEY & MAE | [2013] FMCAfam 284 |
| FAMILY LAW – Long-term acrimony between parents – adverse influence of Father’s family – denigration of the Court, the ICL, the Mother, the litigious process and the Department of Community Services in “Facebook postings” (a form of cyber-bullying) – considerations regarding breach of s.121 Family Law Act and publication of Court proceedings – responsibilities of Court to self-represented litigant – best interest considerations for young children – Application to re-open in the light of further abuse by Father and paternal family and further risk assessment of the children (and the Mother) by the Department of Community Services – principles concerning application to ‘re-open’ – consideration of contravention penalty in the context of parenting orders generally – restraint on publication – issues relating to ‘scandalising the Court’ – request to Marshal of the Court to investigate possible breach of s.121 and if appropriate make arrangements with police and Director of Public Prosecutions for prosecution. |
| Family Law Act 1975, ss.60B(1) & (2), 60CC(1), 60CC(2), 60CC(3)(a)-(m), 61DA, 65DAA, 121(1) – (3), 121(5), (8) (9)(g) & (11), 69ZW |
| Abduramanoski v Abduramanoski (2005) 191 FLR 360; (2005) 33 Fam LR 1; (2005) FLC ¶93-215 J.D. Heydon, Cross on Evidence (Ninth Australian Edition) (Sydney: Lexis Nexis Butterworths, 2013) |
| Applicant: | MS LACKEY |
| Respondent: | MR MAE |
| File Number: | CAC 987 of 2009 |
| Judgment of: | Neville FM |
| Hearing dates: | 21 September 2012; 21 March 2013 |
| Date of Last Submissions: | 29 October 2012; 26 March 2013 |
| Delivered at: | Canberra |
| Orders pronounced on: | 28 March 2013 (reasons provided on 4 April 2013) |
REPRESENTATION
| Counsel for the Applicant: | Ms E.M. Swart |
| Solicitors for the Applicant: | Legal Aid ACT |
| Counsel for the Respondent: | Self Represented |
| Solicitor/Advocate for the Independent Children’s Lawyer: | Mr D Nimmo |
| Solicitors for the Independent Children’s Lawyer | Capon & Hubert Lawyers, Canberra |
THE COURT ORDERS THAT
All previous orders be discharged.
The Mother have sole parental responsibility for the children, [W], born [in] 1999, [X], born [in] 2002, [Y], born [in] 2007 and [Z], born [in] 2008 (“the children”).
The children live with the Mother.
The child [W] spend time with her Father in accordance with her wishes.
The children [X], [Y] and [Z] spend time with their Father supervised by an accredited professional supervision agency at such times as may be available through the supervision agency and such time to occur on not more than one occasion per fortnight.
The Father have sole responsibility for arranging time with the children under Order 5 and is responsible for any costs involved in arranging such supervision as required by Order 5.
The children communicate with their Father by telephone each Sunday between 6:00pm and 7:00 pm with the Father to initiate the call AND for the purpose of this order conversations with the children are to occur on a speaker phone with the Mother or her partner to monitor the conversation.
Each parent will refrain from making any negative or derogatory comments to or in the presence of the children concerning the other parent, and to use their best endeavours to ensure that no other person (including members of their respective families) denigrates or comments adversely on the other parent.
The Father be restrained from making contact with the children except in accordance with these Orders and is further restrained from allowing any other member of his family or any agent of the Father from making contact with the children unless agreed in writing by the Mother.
For the next three years, the Father, and all members of his family, are restrained from making any reports to the Department of Community Services and to the police in relation to any allegation of abuse involving the children.
The Father, the paternal Grandmother Ms M and the paternal great aunt, Ms C are restrained from publishing or otherwise distributing any material, by electronic means or otherwise, relating to these proceedings, the children, the Mother or any member of the Mother’s immediate family including but not limited to publication on Facebook or other social media site.
The Father immediately remove from “Facebook” all references to these proceedings, including but not limited to all references to the children, the Mother’s name, the Father’s name, the names and any details of any of the solicitors (and the firms for which they work) and the barristers who represent, or who have represented, the Mother and/or the Father in parenting proceedings pursuant to the Family Law Act 1975 (“the Act”), the name and any details of the Independent Children’s Lawyer and the firm for which he works, and all references to judicial officers of this Court [or the Family Court of Australia] in respect of decisions or determinations they are said to have made or not made, all references to any review by the Department of Community Services or the police concerning any matter or person involved in the current proceedings.
IT IS FURTHER ORDERED THAT
In relation to the contravention application, filed 20 July 2012, the Father’s pleas of ‘contravention admitted but with reasonable excuse’ are rejected. The Court formally notes that, in the event that there is any further contravention established against the Father, he is at risk of incurring a penalty of a bond, or other more severe penalty.
Pursuant to s.121(9)(g) of the Act, the reasons for judgment delivered today be approved for publication to the (a) the Marshal of this Court and (b) if necessary, Commissioner of the Australian Federal Police and all such police officers and persons as the Commissioner might reasonably permit or authorise.
Pursuant to s.121(9)(g) of the Act, all affidavits filed and exhibits admitted in these proceedings be made available to (a) the Marshal of this Court, and (b) if necessary, to the Australian Federal Police.
The Court requests that, for the next 2 years from the date of these orders, the Marshal of the Court periodically monitor social media (Facebook in particular) for any “postings” by the Father or members of the paternal family, that might refer to any person (including the children) or any matter that has been the subject of the current proceedings.
IT IS DIRECTED THAT
A.The Marshal of this Court take all such steps as might be required so as to ensure that any breach of section 121 of the Act revealed by the material specified in paragraph 12 of these Orders is investigated fully and, if appropriate, thereafter prosecuted.
B.The Marshal of this Court is also respectfully requested, for the next two years, to monitor (or to authorise the Australian Federal Police to do so) Facebook and any other electronic communication regarding any relevant reference to the current proceeding, and if such is found, to investigate it and refer it to the Australian Federal Police for possible prosecution.
THE COURT REQUESTS THAT
(i)The independent Children’s Lawyer make a copy of these reasons available to Dr S and to Ms O.
IT IS NOTED that publication of this judgment under the pseudonym Lackey & Mae is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CAC 987 of 2009
| MS LACKEY |
Applicant
And
| MR MAE |
Respondent
REASONS FOR JUDGMENT
Introduction
On 28th March, Orders were pronounced. The reasons that follow explain the context and foundation for them. Because of their length, and the number of discrete issues, to facilitate their digestion (so to speak), they proceed according to the following structure:
Background & Issues [2] – [8]
Facebook Postings &
Breach of s.121 Family Law Act [9] – [26]
[Recent] Procedural History [27] – [33]
Orders Sought [34] – [36]
Evidence of the Mother [37] – [64]
Evidence of the Father [65] – [104]
Evidence of Family Consultant [105] – [126]
Application to Re-open [127] – [139]
The Legislative Pathway [140] – [158]
Conclusion [159] – [165]
Background & Issues
Most unfortunately, no ‘kindly light’ led these parties in the course of their marriage. Similarly, and equally unfortunately, no such light is evident in the period since their separation. Indeed, this parenting matter, which involves four children ([W], born [in] 1999; [X], born [in] 2002; [Y], born [in] 2007; [Z], born [in] 2008), is one that should properly be described as a form of tribal warfare. This is so because the Father and his family have waged a relentless battle against the Mother for many years.
For example, over the last few years, there have been approximately 34 notifications against the Mother to the Department of Community Services (“DOCS” or “the Department”) and the NSW Police. None of the notifications and allegations of abuse against her have [ever] been established. Yet the Father and his family continue to assert, and believe vehemently, that the Mother has abused (and continues to do so) the children – sexually and otherwise.
In documents from the Department, it was confirmed that, on the past history of notifications, the family (i.e. the Mother – and which-ever combination of children are with her at the time) could expect to have the Department or the police knock on her door approximately every two months. To state what should be obvious, but is not: no family could reasonably expect to live a relatively peaceful or ordered existence in such circumstances.
Indeed, in her 2010 report (Exhibit E), psychiatrist, Dr S, listed (at pp.42-43) the myriad of allegations made by the Father and or his family, and concluded: “In short, there is virtually no criminal activity that they [the paternal family] haven’t alleged that the Mother has done. I got the impression that they believed this to be the case, however there was also an element of if they ‘throw enough mud, some of it will stick.’”
In the Father’s written submissions (filed 15th October 2012), he maintained the accuracy of, and the foundation for, the notifications to DOCS and the police in relation to the Mother. At paras.21 and 27 of those submissions, Mr Mae said: “He [the Father] views that his children have been abused is shared [sic] by his extended family … The Fathers [sic] family have never made up allegations against
Ms Lackey [the Mother] that weren’t true there has always been a concern for the children’s welfare when it comes to Ms Lackey’s parenting.” From these comments, the history of the matter, and the expert and other evidence noted below, I have no confidence at all that the Father (or his family) will desist in the unremitting, relentless and ruthless pursuit of the Mother.[1]
[1] At para.6.11 of Ms O’s detailed Report (Exhibit D – discussed further below), Mr Mae is recorded as having acknowledged that the allegations of abuse against Ms Lackey had been investigated and not substantiated, and further, that the situation between the parties “had settled down.” This acknowledgment in April 2012 obviously stands in stark contrast to what he put in his written submissions in October 2012. Further, in his oral evidence, the Father recanted from the concession he made to Ms O.
Unfortunately, I am fortified in this miserable (almost baleful but certainly doleful) assessment in the light of two reports, one from psychiatrist Dr S (Exhibit E), and the other from a highly experienced family consultant, Ms O (Exhibit D). Both confirm the concerted, guerrilla-like, efforts of the Father and his family against the Mother. Their actions, even on the comments of the Mother’s eldest daughter, [V] (who is not the subject of this proceeding), are telling against them. As recorded in Dr S’s report (p.26), [V] said: “She believed that while under the influence of the paternal Grandmother and paternal Aunt [Ms C], that ‘you could change completely.’ She said: ‘I hated my Mother when I was with them. Later I realised it wasn’t true. You don’t realise when you’re with them. It’s scary.”[2] [V]’s comments are recorded in Dr S’s report, which (as noted above) was prepared for earlier proceedings in 2010.
[2] At the time of the hearing, [V] was somewhat estranged from her Mother and lived with Mr Mae. At the time of the application to re-open (March 2013) it was confirmed by all parties that [V] was no longer living with the Father, that she had returned to live with the Mother, and that she was shortly to take possession of a house, provided by the NSW Government, and planned hereafter to live independently.
Ms O’s report was prepared in April 2012. Unfortunately, in the result, little has changed between the assessments of Dr S and Ms O: the pursuit of the Mother, the continued notifications to DOCS and the police, and the harassment of her by the Father and his family, has continued unabated. All the while protesting that his focus is on the best interests of the children, the Father and his family are either unwilling and/or unable to see the on-going devastation the crusade against the Mother continues to wreak on the children. Accordingly, the protective responsibilities of the Court are particularly in focus in this proceeding.
‘Facebook Postings’& Breach of s.121 Family Law Act
An unfortunate and increasing feature of modern litigation, particularly but not exclusively in family law, is the use of ‘social media’. While it can be used for good, often it is used as a weapon, either by one or both of the parties, and or by their respective supporters. It is a veritable ‘Aladdin’s Cave’ which parties (and lawyers) readily and regularly explore for (invariably incriminating) “evidence” to be used in litigation. As a weapon, it has particularly insidious features. Unfortunately, in the context of this matter, ‘netiquette’ was not on display, and in fact, it could only be a nothing more than a euphemism for outlandish electronically-fomented conduct.[3]
[3] The Macquarie Dictionary (Fourth Edition) defines “netiquette” as “the code of good manners which has evolved for users of the internet.”
For example, it seems often to be the case that people will put on such media (particularly but not only Facebook) comments that I suspect they would not say directly to the person against or about whom such remarks are directed. In this regard, such remarks are, in my view, a form of cyber-bullying. Often, they are very cowardly, because those who ‘post’ such derogatory, cruel and nasty comments (regularly peppered with disgusting language and equally vile photographs) appear to feel a degree of immunity; they think they are beyond the purview or accountability of the law, and that they need not take any responsibility for their remarks. They inhabit the cyber-sphere and operate as ‘Facebook rangers’ who ‘hit and run’ with their petty and malicious commentary, and seem to gloat (or be encouraged) by the online audience that waits to join the ghoulish, jeering crowd in the nether-world of cyber-space. To a significant degree, such conduct has been on display here.
The Father’s family has made a number of “postings” on Facebook in the course of these proceedings which (a) denigrate the Court, the ICL and the litigious process (including investigations undertaken by DOCS and the police), and (b) detail and comment critically on information regarding the proceeding, and in particular, information that can only have been taken from affidavits [recently] filed.
The solicitor for the Mother wrote to the Father (copied to the ICL) on 11th September 2012 (Exhibit F) to point out the terms, import and risk of penalty for any breach of s.121 of the Family Law Act 1975 (“the Act”) regarding the publication of details of the current proceedings. Pre- and post- this warning, the Father and or his family have commented on and provided certain details of the proceedings via Facebook. Those details could have come only from the material filed with the Court. Only the Father could have had access to it. It follows that he must be the source of the information regarding the proceedings posted on Facebook by members of his family and “friends.”
The Court has before it (Exhibits C1 & C2) copies of pages produced from Facebook. In those entries, the Father and or his family (a) criticise me, as the presiding judicial officer, (b) similarly disparage the role and effectiveness of the ICL, (c) repeatedly criticise the Court (the references are invariably and inaccurately to the “Family Court”), (d) criticise the experts who have provided reports, (e) criticise DOCS, and (f) in a somewhat more restrained way, criticise the NSW Police – but not universally so. Among other criticisms, the Father and or his family (and “friends”) bluntly claim that all those just named have effectively been duped by the Mother and that, in fact, she is a regular [sexual and physical] abuser of the children.
In the light of these “postings”, those responsible for the postings on Facebook could, and likely are, in breach of s.121 of the Act (as indicated by the solicitor for the Mother) and are also likely to have placed themselves at further risk of possible contempt proceedings more generally.
In terms, s.121(1) relevantly provides (emphasis added):[4]
[4] S.121(3) refers to various matters that may be taken to “identify a person”; s.121(5) provides that an offence against this section is an indictable offence; s.121(8) provides for the procedural requirement of the written consent of the Director of Public Prosecutions for prosecuting any relevant offence; and s.121(11) defines, among other things, “electronic means.” The formal process of a prosecution under s.121 is noted by Forrest J in Xuarez & Vitela [2012] FamCA 574 at [36], which in turn refers to Murphy J’s judgment in Prentice & Bellas (2012) 47 Fam LR 262.
A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b) a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
In relation to ‘contempt’, s.112AP of the Act relevantly provides:[5]
(2) In spite of any other law, a court having jurisdiction under this Act may punish a person for contempt of that court.
(4) Where a natural person is in contempt, the court may punish the contempt by committal to prison or fine or both.
[5] In relation to contempt generally in the context of family law litigation and the operation of s.112AP, see the discussion by the Full Court in Abduramanoski v Abduramanoski (2005) 191 FLR 360; (2005) 33 Fam LR 1.
A convenient point of reference for such matters is the decision of Nicholson CJ in Re South Australian Telecasters Ltd.[6] That case involved an application for an injunction to prevent a television program being screened because of the risk of identifying the children in a matter currently before the Family Court of Australia. His Honour also considered the circumstances where the disaffected parents disparaged an earlier decision of the Court. In the result, an injunction was granted. His Honour observed, firstly at [35], the following basal principle, which I gratefully adopt:
… the problem that seems to me to emerge in the present case is not the identification of the parties so much as the fact that the identification of the parties almost inevitably would involve a similar identification of the children. It is my view that the interests of children should be protected by this court and that they should not be the subject of a program which enables them to be identified and perhaps held up to either ridicule or curiosity or some kind of notoriety, by reason of their unfortunate circumstances….
[6] (1998) 23 Fam LR 692. Save for the recent, helpful decision of Forrest J in Xuarez & Vitela [2012] FamCA 574, there would appear to have been few cases that have considered Nicholson CJ’s comments in Re South Australian Telecasters Ltd.
Next, his Honour considered whether the proposed segment in the television program might constitute contempt. After referring to the earlier Full Court decision in Schwarzkopff, Nicholson CJ considered the High Court decision in Gallagher v Durack.[7] It is sufficient to note the following from Gallagher v Durack (internal citations omitted):[8]
The principles which govern that class of contempt of court which is constituted by imputations on courts or judges which are calculated to bring the court into contempt or lower its authority had been discussed by this court in Bell v Stewart and R v Fletcher; Ex parte Kisch before R v Dunbabin; Ex parte Williams was decided and the judgment of Rich J in the last-mentioned case is consistent with what had been said in the earlier decisions. The law endeavours to reconcile two principles, each of which is of cardinal importance but which in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice even if the comment is outspoken, mistaken or wrong-headed. The other principle is that “it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon courts of justice which, if continued, are likely to impair their authority”: per Dixon J in R v Dunbabin; Ex parte Williams.
[7] In the Marriage of Schwarzkopff; Fitzgibbon v Barker (1992) 16 Fam LR 539. Gallagher v Durack (1983) 152 CLR 238.
[8] 152 CLR at p.243. See also the further High Court discussion concerning contempt in family law litigation in Re Colina; Ex parte Torney (1999) 200 CLR 386.
In the same place, the High Court also said:
The authority of the law rests on public confidence, and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases, the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or judge, and the summary remedy of fine or imprisonment “is applied only where the court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable”: R v Fletcher; Ex parte Kisch, per Evatt J.
Earlier in South Australia Telecasters, Nicholson CJ had noted, at [40], comments from Schwarzkopff (a “contempt case”) that spoke of “scandalising the Court” by publications that not only detracted from the authority and influence of the Court’s decisions but also ‘excited misgiving as to the integrity, propriety and impartiality brought to the exercise of the judicial office.’
More recently, Forrest J dealt with a case that involved a parent establishing a website on which he posted, among other things, disparaging and identifying remarks about the parties and the lawyers involved. His Honour granted injunctions ordering the Father to remove the identifying details from the website. Forrest J also directed the Marshal of the Court to investigate the Father’s website for possible breaches of s.121 and, if so determined, to ensure that any breach was prosecuted. His Honour also requested the Australian Federal Police to take all steps reasonably required to investigate whether any indictable offences had been committed.
After considering matters of jurisdiction in the granting of an injunction (inter alia at [50] – [51]), Forrest J said, at [55] (emphasis added):
The particularly insidious nature of the publication that I consider brings it within the “exceptional circumstances” referred to by the Full Court if the inherent power is being relied [on] is the fact that it is published on the internet and remains published and thereby available for any person, anywhere in the world, to access it quickly and easily at any time of the day or night on an ongoing basis. Publication on the internet is quite different to one off publication in a television or radio program or in a newspaper article where the publication is limited in time and place. The internet was not nearly as widely known, understood or used at the time the Full Court determined Gibb and Re Schwartzkopff [sic]. Whilst trial on indictment before a jury might be considered as the more appropriate means of dealing with punishment for breaches of s 121, I am satisfied that continuous publication on the internet of material that offends the section and impacts upon the welfare of children who are subject to the jurisdiction of the Court is able to be restrained by injunction and should be.
Respectfully and gratefully I adopt his Honour’s comments.
Forrest J commented further, at [56] - [58]:
Furthermore, in my view at least, the content that is published clearly contemptuously scandalises this Court….
Although the Court has to consider that the good sense of the community might be a sufficient safeguard against the damage these attacks can do to the rule of law in this country, in the specific context of this case, where I am satisfied, at least, that the publication otherwise contravenes s 121 and identifies the particular proceedings in this Court, I am satisfied that the continuous contemptuous scandalising of this Court should be restrained.
There is another aspect to this insidious publication that I consider is also relevant to determining that there is a need for injunctive restraint. I am satisfied that the continued public attack on the integrity of all of the lawyers involved in representing the Mother and the children in this case is deliberately intended to intimidate them into ceasing to act for the Mother or the children and to act as a deterrent to others from so acting. As such, I consider it is a further attack on the proper administration of justice in respect of which the right to be legally represented is a fundamental cornerstone. The Mother is entitled to respond to the substantive and interim applications of the Father and to engage legal representation free from the pressure of knowing that any solicitor or barrister who acts for her will be subject to the type of scurrilous attacks the Father makes through the published content on his website. So too, in my view, is the ICL.
On the facts of this matter, and in the light of Forrest J’s comments in Xuarez & Vitela, in my view, orders similar to those made by his Honour are warranted here. In the light of such orders I do not propose to consider further the subject of ‘contempt.’
Indeed, in the light of the Father’s (and that of his family) unremitting, unreformed and unenlightened conduct, it is essential that the Mother and the children be protected as much as possible from further insidious and corrosive attacks.[9]
[9] To this generalised description of the improper and inappropriate conduct of the Father and his family, Exhibit J is a letter from the Mother’s solicitor to the Father, dated 24th October 2012, which refers to the Father’s family taking photographs of the younger children outside their child-care facility. This conduct, like all other parts of the guerrilla warfare, must cease.
What is also disturbing is that the Father sees himself as the “victim” in the litigation (and in the relationship with his former Wife), and that “the system” has let him and the children down. He also contends (submissions, para.21) that the children would be better off in foster care than being in the care of their Mother.[10] The tawdry bluntness and lack of insight of such a statement, particularly in the light of the two expert reports before the Court, speaks for itself – and alarmingly so.
[10] This cheap, if not vile, submission was earlier repeated in the Father’s oral evidence, noted below.
Having confirmed that orders will be made in relation to the ‘Facebook postings’ and their referral to the Marshal for investigation, it is time to return to the substantive parenting matters.
[Recent] Procedural History
Formally, the children the subject of the Application filed by the Mother in the Local Court in [omitted] (NSW) on 22nd February 2012, and the later filed Contravention Application, filed in the same Court (also by the Mother) on 20th July 2012, are: [W] (born [in] 1999), [X] (born [in] 2022), [Y] (born [in] 2077), and [Z] (born [in] 2008). Both applications were ultimately transferred to this Court.
By way of very brief background, I note that parenting proceedings were originally commenced in May 2009, interim orders were made in July 2009, a Form 4 Notice of Risk of Abuse was filed by the Father in February 2010 (with various allegations of sexual abuse made against the Mother), yet ultimately, following a trial, final orders were made by consent in November 2010.
Those final orders, in general terms, provided for week-about care of the children, certain orders in relation to counselling for the parents, and a formal restraint in relation to notifications to the police and to DOCS.
In January 2012, [X] commenced living primarily with his Father. In February of that year, [Y] commenced kindergarten but was removed from that school by her Father. Also in February, the Father sought a recovery order in the [omitted] Local Court to have [W] returned to his care. This was not granted and [W] continues to live with her Mother.
From February until July 2012, there are a number of instances where [X] was not made available by his Father to spend time with his Mother. In July, with her solicitor having previously written to the Father warning of the risk of an application (and costs), the Mother filed a contravention on 20th July. On 31st July, the Father filed a further Form 4 Notice of Risk of Abuse, in which he retailed essentially the same allegations of abuse against the Mother, which had previously been found by DOCS and the Police to be unfounded. As on the first occasion when such abuse allegations were found to be without substance, the same result occurred on this occasion.
It is difficult not to see the filing of the Form 4 as some sort of retaliatory action on the Father’s part.
In what follows, I (a) set out the orders as sought by each of the parties and the independent children’s lawyer (“ICL”), (b) detail such evidence (affidavit and oral) as there is, (c) consider the reports of Dr S and
Ms O (as well as the material contained in the extensive report/file provided by the Department of Community Services pursuant to s.69ZW Family Law Act 1975 (“the Act”), which became Exhibit B), (d) outline relevant principle, and (e) discuss and determine the orders – in the light of the written submissions provided by the parties and the ICL – that the Court considers to be in the best interests of the children in accordance with s.60CA of the Act.
Orders Sought
Mother’s Orders Sought:
1. That the Mother have sole parental responsibility for the children, [W], born [in] 1999, [X], born [in] 2002, [Y], born [in] 2007 and [Z], born [in] 2008.
2. That the children live with the Mother.
3. That child [W] spend time with her Father in accordance with her wishes.
4. That the children [X], [Y] and [Z] spend time with their Father supervised by an accredited professional supervision agency at such times as may be available through the supervision agency and such time to occur on not more than one occasion per fortnight.
5. That the Father have the sole responsibility for arranging time with the children under order 4 and is responsible for any costs involved in arranging such supervision as required by order 4.
6. That the children communicate with their Father by telephone each Sunday between 6:00pm and 7:00 pm with the Father to initiate the call AND for the purpose of this order conversations with the children are to occur on a speaker phone with the Mother or her partner to monitor the conversation.
7. That each parent will refrain from making any negative or derogative comments to the children concerning the other parent or other family members of the parent and will not allow any other person to do so.
8. That the Father be restrained from making contact with the children except in accordance with these orders and is further restrained from allowing any other member of his family or any agent of the Father from making contact with the children unless agreed in writing by the Mother.
9. That the Father, the paternal Grandmother Ms M and the paternal great aunt, Ms C are restrained from publishing or otherwise distributing any material relating to these proceedings, the children, the Mother or any member of the Mother’s immediate family including but not limited to publication on Facebook or other social media site.
10. Such other Orders as the Court considers appropriate.
The Father’s orders sought are as follows:
1. The children live with me and spend time with their mother on weekends and [W] has the opportunity to see me as she wishes
2. When the children are in [Ms Lackey]’s care on the week end I be allowed contact via telephone if need be
3. That the children be allowed to see my family as my mother and father are getting older and my mother who suffers from cancer love and adore the children and would like to be able to see them
4. If [Ms Lackey] has the children and needs to go away then I be given the opportunity to keep them if she can’t take them
5. That the girls be allowed to play with the twin cousins at school as there not allowed by their mother who are all in kindergarten.
6. The same for [X] live with me and spend time with his mother on weekends.
7. That [Ms Lackey] be allowed to contact the children if and when they are with me
8. Both parents are able to go to school functions sporting events and any other event.
9. [W] can make her own decision to stay where she pleases as I do understand the need for friends and social gatherings for girls her age.
The ICL’s orders sought are:[11]
[11] The orders set out here are those sought by the ICL at the time of the hearing. However, the ICL confirmed that, in the light of, for example, the latest reports from Ms S, he in fact supported that all children should live with the Mother.
1. All previous parenting Orders be discharged.
2. That the child of the marriage [W] (DOB [omitted] 1999) live with the Mother and spend time with the Father in accordance with her wishes.
3. That the child of the marriage, [X] (DOB [omitted] 2002) live with the Father.
4. That the children of the marriage [Y] (DOB [omitted] 2007) and [Z] (DOB [omitted] 2008) live with the Mother.
5. That the Mother have sole parental responsibility for decisions regarding major issues concerning the children [W], [Y] and [Z].
6. That the Father have sole parental responsibility for decisions regarding major issues concerning the child [X].
7. That the Mother spend time with [X] as follows:
a. Each alternative weekend from 5.00 pm Friday until the 5.00 pm Sunday.
b. For one half of each of the NSW Term holidays being the first half of such holidays in odd numbered years and the second half of such holidays in even numbered years.
c. From 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day with the Mother in odd numbered years.
d. From 3.00 pm on Christmas Day to 3.00 pm on Boxing Day in even numbered years.
e. Such further or other times as agreed.
8. That the Father spend time with [Y] and [Z] as follows:
9. For a period of twelve months from the date of these Orders, supervised contact at an appropriate contact centre either in Canberra or Wagga or in the alternative by a supervisor who is regarded as suitable by the Mother in the [omitted] area. The Father to pay for such supervision.
10. At the end of the period in 8 a. above, proof of the successful completion of the course in order 15 below and the attendance at counselling as required by Order 16 below:
i. Each alternative weekend from 5.00 pm Friday until 5.00 pm Sunday.
ii. For one half of each of the NSW Term holidays being the first half of such holidays in odd numbered years and the second half of such holidays in even numbered years.
iii. from 3.00 pm on Christmas Eve until 3.00 pm on Christmas Day with the Mother in odd numbered years.
iv. from 3.00 pm on Christmas Day to 3.00 pm on Boxing Day in even numbered years.
11. Such further or other times as agreed.
12. All changeovers to occur at the MacDonald’s Family Restaurant at [omitted].
13. That there be no telephone contact between the parties and the children unless the children initiate the relevant telephone calls.
14. That the Father do all things necessary to ensure that [X] attend counselling as required by DOCS (NSW) and that the counselling only cease for [X] when the relevant counsellor or organisation undertaking the counselling supplies to the Independent Children’s Lawyer a letter indicating that such counselling is no longer necessary.
15. That the Mother do all necessary to ensure that [Y] and [Z] attend counselling as required by DOCS (NSW) and that the counselling only cease for [Y] and [Z] when the relevant counsellor or organisation undertaking the counselling supplies to the Independent Children’s Lawyer a letter indicating that such counselling is no longer necessary.
16. That the Father and Mother each be entitled to attend any school function ordinarily attended by parents and to receive any newsletters, notices, reports and photographs at his or her expense.
17. The Father and Mother be and are hereby restrained from:
a. Denigrating the other parent in the presence or hearing of the children and from permitting any other person to do so.
b. Discussing any issues relating to the proceedings in the hearing or presence of the children or from permitting any other person to do so, other than the provision of a simple explanation to the children of their time with the other parent.
c. Questioning the children or continuing a conversation with the children about their time with the other parent or from permitting any other person to do so.
18. That the Father commence attending a parenting after separation course with an approved organisation within six months of the date of these Orders. On completion of the course he is to supply to the ICL a copy the certificate of his successful completion of the course.
19. That the Father attend upon a Counsellor who is experienced in family dispute matters for at least four sessions, commencing within 30 days of the date of these Orders and that he provide to the Counsellor a copy of Dr S’s Family Report and Ms O’s Family Report prior to the commencement of such counselling to enable the Counsellor to explore with the Father the issues raised by those Reports. The Counsellor is to provide a brief written report to the ICL indicating the matters that have been discussed and whether the Counsellor considers that the Father requires further counselling.
20. That the Mother, if the Mother determines to do so, is allowed to relocate away from [omitted] with the children who are in her care, namely [W], [Y] and [X].
21. That four weeks prior to any such move the Mother and Father are to personally attend a Family Dispute Resolution Conference to be facilitated by the ACT Legal Office to determine what time the children should spend with each person if is practically impossible to continue Orders 7 and 8 above following the Mother’s move.
22. That the Father be and is hereby restrained for a period of three years from the date of these Orders from allowing the children [Y] and [Z] to associate with his Mother, Ms M and Aunt Ms C.
Evidence of the Parties
The Mother: Ms Lackey
At the outset of the Mother’s evidence she confirmed that, in summary, her orders sought are that (a) all four children of the relationship, [W], [X], [Y], and [Z], should live with her, (b) she have sole parental responsibility for the children, and (c) the Father spend time with the children supervised. The Mother also confirmed that she sought a formal restraint against the Father bringing the children into contact with members of the paternal family.
The first substantive matter addressed in her oral evidence related to the most recent allegations of abuse (particularly sexual abuse) of the children and the reports to the Department of Community Services (“DOCS”) and JIRT (the Joint Investigation Response Team). The Mother confirmed that she only learnt of the most recent notification on 25th August 2012. She confirmed that she was contacted by a person from the Department who informed her that she was currently at the high school interviewing [W], the eldest of the four children.
Ms Lackey then recounted what she knew of the sequence of events following [W]’s interview. The Mother noted in particular the detailed allegations in relation to [X] and then in relation to her two youngest children, [Y] and [Z]. I note that the allegations relate only to the three youngest children and do not [directly] concern [W].[12]
[12] See Transcript at 9-11. Hereafter, all transcript references will be simply to “T” followed by the relevant page number.
The Mother confirmed that she had been provided by the police with a DVD-CD of a record of interview. That recording ultimately became an exhibit in the proceedings. The Mother confirmed that she had been advised that subject to hearing from DOCS within the next day or so she had been advised that as far as the members of JIRT were concerned there would be no criminal charges and the file would be closed.
The Mother was advised by an officer from JIRT of the finalisation of their inquiry on 18th September, which is to say, shortly before the commencement of this [further] trial. Part of the confirmation of the information from JIRT was that they had essentially formed a view, according to the Mother’s report of events, that the allegations made were the same as the allegations that were made against her in 2010, following which consent orders were made by the Court in that year.
The next subject of the Mother’s evidence, which was by way of update, related to a series of entries that had been posted on Facebook – to which I have earlier referred. The Mother confirmed that she had only learnt of these entries courtesy of a [genuine, as opposed to a ‘Facebook’] friend and that the entries she had seen related to events in early September 2012, including what was in the Mother’s documents filed with the Court. The Mother printed out the entries on Facebook. They became exhibits C1 and C2.[13]I note in particular the Mother’s evidence in which she confirmed that the Facebook entries had no restriction on them, which was to confirm that they were available for all to see.[14]
[13] See the discussion at T 15-23.
[14] T 22. As an observation only (already noted), and subject to comments earlier noted by Nicholson CJ in South Australian Telecasters: in my view, the use of so-called ‘social media’ in this way (i.e. to make adverse, denigrating comment) is a form of cyber bullying whereby those who perpetrate it seek to do so without apparent fear of reprisal. However, such action is cowardly as well as being [potentially] contemptuous. Perpetrators of ‘cyber bullying’ are not willing to put their comments formally before the Court to have them properly examined or challenged. They are, in my view, childish, ‘Facebook rangers’ who seek to wound with their words, and do so with reckless disregard of any consequence. If they are properly investigated, and or ultimately charged, they might change their tune and take some responsibility for their actions.
In relation to the child, [X], while he has been living for the last while with his Father, Ms Lackey confirmed that she wished to have [X] live with her, essentially as a protective measure so that he was with all the other children and equally to ensure that he not be subjected to the ongoing [malign] influence of the paternal family. In relation to the Court’s earlier 2010 orders, Ms Lackey confirmed that the order for equal shared parental responsibility had simply not worked between her and Mr Mae.
On her evidence, she said that there had been, from her perspective, some respite in the open warfare between her and Mr Mae’s family for the period that Mr Mae lived in [omitted] before he returned to [omitted], and the parties had worked reasonably well together for that brief period of time. However, Ms Lackey confirmed that upon the Father returning to [omitted], and therefore being in much closer proximity to his family, the relationship between Mr Mae and herself had completely broken down.
Without pre-empting matters too greatly that are considered later in these reasons, this assessment by Ms Lackey, in my view, was readily borne out in the later evidence from Mr Mae. I should also note that Ms Lackey’s evidence is that while there have been some testing times in her parenting of [X], she denied that she lacked control with him.[15]
[15] T 37.
In the course of a series of questions from Mr Mae, and in the light of Ms Lackey’s earlier evidence that she was less than expert in the use of a computer, including her use of Facebook, Mr Mae confirmed that he could see Ms Lackey’s Facebook postings. The Mother thought that she had secured her Facebook page from access by Mr Mae and his family. Mr Mae’s candour was appreciated – but I suspect not by
Ms Lackey.
Also in the course of the Mother’s cross-examination, and by reference to her affidavit evidence, she advised that she had been told by police that Mr Mae had confirmed [to the same police officer who spoke with the Mother] that the actions, and notably the notifications to DOCS and the police, was his “payback” for her keeping the children.[16]
[16] T 44.
In answer to a series of questions from the ICL, Ms Lackey noted the following.
First, in seeking to follow the Court’s 2010 orders, particularly in relation to taking [X] to counselling, Ms Lackey said that while-ever [X] was in her care she ensured that he attended counselling, but that whenever [X] was in his Father’s care, his attendance at counselling appointments did not take place.[17]
[17] T 45-46.
Indeed, Ms Lackey said that she attended, for example, the relevant intake session with Relationships Australia, but that Mr Mae did not.[18] Ms Lackey also confirmed that because [X] did not attend counselling when in his Father’s care the booking for him with the counsellor ultimately lapsed.[19] Ms Lackey confirmed that she was not notified by the Father that he had, in fact, immunised the two youngest children. Such basic communication, I observe, is and should be a standard feature of a parenting relationship where an order for equal shared parental responsibility has been ordered. In this case it was but one of many negative instances that confirmed, in my view, that the order for equal shared parental responsibility should be discharged and an order for sole parental responsibility should be made in the Mother’s favour.
[18] See T 46-47.
[19] T 48.
Secondly, in the Mother’s view, [X] needed to have continued counselling. This is confirmed by the expert evidence before the Court.
Thirdly, in relation to a series of 2010 orders to which the ICL referred and directed Ms Lackey’s attention, it was clear that there was only partial compliance with them, not least in relation to the order that required the parties themselves to attend joint and separate counselling for the purposes of facilitating the operation of the orders then made.
One of the few areas in which Ms Lackey and Mr Mae’s evidence was very similar was that they both agreed that they rarely talk to each other. Ms Lackey said that the relationship between her and Mr Mae had now deteriorated to such a stage that she did not think that it could be repaired. She described it as “completely broken down.”[20]
[20] T 55.
In response to a question from the Bench, she considered that a communication book may help. Although she would do anything, she said, to assist and facilitate the parenting relationship between the parties, it was so badly damaged that – as I have already indicated – the parties rarely talk at all anymore.
One of the more important parts of Ms Lackey’s evidence, from my perspective, concerned her now improved (and improving) relationship with [W]. While not completely repaired, Ms Lackey said that it had taken the better part of 12 months or thereabouts for her relationship with [W] to reach a stage where it was now reasonably good. I inferred from this and other evidence that Ms Lackey anticipated that it would take a similar period of time, at least, for her relationship with [X] to get back onto a relatively even keel.[21]
[21] T 56.
Much of the remainder of the Mother’s evidence related to particular incidents. For example, there was a contest with Mr Mae over whether or not [Y] should or should not attend school.
In short, I accept the account of that event given by the Mother. Indeed, I should be taken to prefer her account of events where-ever there is any difference between her evidence and that of Mr Mae. Moreover, in my view it is unnecessary to go into the detail of many incidents according to the evidence of the parties because there is sufficient other evidence, particularly in the reports of Dr S, Ms O, the s.69ZW report and similar documents, before the Court that obviate the need to dissect the particular detail of each of the instances that are recounted in the affidavit material.[22] This includes, up to a point, the discussion in the course of cross-examination by the ICL in relation to the Mother’s eldest child, [V], and [V]’s comments recorded in Dr S’s report.[23]
[22] An ‘updated’ report pursuant to s.69ZW of the Act was prepared and provided to the Court in late March. In turn, it was provided to the parties, albeit very recently. It is sufficient to note that the covering letter from the Department confirmed that the most recent reports were deemed to be “non risk of harm and therefore did not require further assessment.” The updated report from the Department also principally comprises the reports of Ms S, which are already formally before the Court. In such circumstances, and in the light of the evidence before the Court, I do not propose taking this latest material from the Department into account.
[23] See T 60.
With some understatement, but with measured ‘matter-of-factness’, the ICL read from the documents produced by JIRT. The section read out in Court by the ICL, from a document dated 25th August 2012 (from page 4 of 6), stated as follows:
There are 33 reports on file for this family dating from 25 June 2007 to 27 July 2012 which are to physical, other, sexual, indecent acts, molest, sexual penetration, child inappropriate sexual behaviour, physical, hit, kick, strike, risk of physical harm/injury, medical treatment not provided, legal guardian issues, inadequate supervision for age and adequate shelter or homeless, inadequate nutrition, risk of sexual harm or injury.
The ICL put all of these matters to the Mother. She confirmed that all of those allegations had been levelled against her since 2007 yet, at the same time, the Mother confirmed that she had never been contacted by DOCS and/or the police in relation to the children’s safety. The Mother also confirmed that from her most recent discussions with DOCS they had confirmed that they were extremely concerned about “the psychological effects” that all of these notifications and allegations had on the children.[24]
[24] T 63.
The Mother also confirmed that she was unaware that there had been an assessment done by DOCS, dated 31st August 2012, which confirmed that the children were safe with their Mother.[25]
[25] See T 63.
In commenting on the relative emotional and psychological health of the children, in my view, Ms Lackey was insightful about her assessment of her son [X] where she said, in one part of her cross-examination, that while the two youngest female children are needy, simply by virtue of their young age, [X] is probably at the same emotional level as his younger sisters.[26] This assessment was both insightful, and in many ways, was confirmed by the assessments made by the experts, Dr S and Ms O.
[26] T 64.
Also of particular moment, from my perspective, was the Mother’s evidence that if Mr Mae returned to the [omitted] area, and therefore, was somewhat more removed from the influence of his family, she thought that things could settle down between the parties in the interests of the children. No less significant was the fact that
Ms Lackey still exhibited a somewhat positive disposition towards, and still spoke somewhat positively about, Mr Mae. And all of this in the context of the terrible and unrelenting strain and hostility towards her by the Father and his family.
Without dealing with the matter in much detail because it is considered later, the same was not the case when Mr Mae gave evidence. On multiple occasions, he referred to Ms Lackey’s evidence as complete lies, and in an alarming comment, he confirmed on a couple of occasions that the children would be better off placed in care than to live with their Mother, if the Court determined that the children should not live with their Father. Such matters I return to later.
Towards the end of her evidence, the Mother again confirmed, that it was her view, and in the best interests of the children, that (a) the four children should live with her so that they had a stable home and had the support of each other, as well as being protected from the malevolent (my word) influence of the paternal family, and (b) for a significant period of time, the Father’s time with the children should be supervised at a ‘contact centre’. The supervision obviously would also apply to any members of the Father’s family.[27]
The Evidence of Mr Mae
[27] See T 69 – 70.
The first part of the evidence from Mr Mae related to him formally being charged with the contraventions that were alleged by the Mother, specifically in relation to specific instances where he withheld the children from spending time with their Mother. In relation to each of those charges, he confirmed that each of the contraventions had taken place but in his view, it was with reasonable excuse.[28]
[28] See T 74 ff.
I have previously noted that I give every possible allowance for
Mr Mae being a self-represented litigant. However, I note, at the outset, that his attention to detail in the documents that he filed in relation to (a) parenting orders, (b) the contravention, and (c) his attempt to seek a recovery order from the Local Court in [omitted], was less than helpful. A simple, and somewhat inconsequential, example will suffice. He said that he did not receive relevant documents or notices from the Court. He therefore challenged the address to which court documents had been sent. This was so notwithstanding that they had been sent to the address that Mr Mae himself had recorded (i.e. hand-wrote) on documents filed with the [omitted] Local Court.
Regularly, he said that he did not have time to attend to preparation for the trial. While I understand that he is a self-represented litigant, and that he was attempting to secure legal aid funding (which application, he said, was unsuccessful), he works casually [omitted]. He is also on social welfare benefits. In my view, he is anything but “time-poor”, which is to say that, on his own evidence, he has very significant time available to do what-ever he wishes. Reasonable preparation for the trial in relation to seeking parenting orders for his children should have been a greater priority than it appeared to be.
Another example of inattention to basic detail concerned the serious disclosures made against the Mother. On the basis of his material filed as well as his oral evidence, it was unclear whether or not those disclosures took place on 7th or 11th July 2012. While little may turn on such detail, given that the disclosures were (and are) such a significant concern to the Father [and his family] I would have expected that his attention to the detail of such an important matter was greater than it was. Detail is important.
Moreover, being a self-represented litigant, I remind myself of the importance of ensuring that, to the requisite degree possible, all proper assistance from the Court should be provided, for example, to explain procedures relevant to the litigation and clarify the substance of submissions.[29] To the degree appropriate, I have also sought to give every reasonable concession or allowance in favour of Mr Mae.
[29] In this regard, see Re F (Litigants in Person Guidelines) (2001) 27 Fam LR 517. discussed further by the Full Court (Bryant CJ, Kay & Boland JJ) in MHC v Y & Y (2006) 35 Fam LR 456 at [52] – [53], and again in Kiefer v Kiefer (2009) 40 Fam LR 295 (Bryant CJ, Finn & Mushin JJ).
The Father’s evidence was given over a significant period of time. I note the following by way of summary of it.
Firstly, in relation to Dr S’s report, he confirmed that he did not read all of it.[30] This was and remains especially curious, if not slightly alarming, because this was a report prepared by an eminent psychiatrist and used in the proceedings in 2010. Thus, by any measure, Mr Mae has had a very significant period of time in which to read and to digest the detailed comments of Dr S.
[30] T 83.
Later in his evidence, he confirmed however that he never, in fact, received a copy of Dr S’s report. Rather, it remained with his former lawyer. This then led to various questions being asked of him as to why, if he was so interested in the best interests of his children and their welfare, he did not try to obtain a copy of the report from his former solicitors. It was pointed out to him that the report had been released to the parties, as well as to their lawyers, and to the ICL.[31] He had no substantive answer as to why he did not ask his former lawyer for a copy of Dr S’s report.
[31] Part of this evidence is located at T 83 ff.
Mr Mae then confirmed that the most recent allegations that he had raised with DOCS against the Mother were very similar to those that had been raised, and found to be without substance, in 2010. However, following a series of questions both from the Bench and otherwise,
Mr Mae confirmed that, in his view, the reason why the 2010 allegations were unsubstantiated was because there was insufficient evidence. However, he contended that he now has sufficient evidence, based upon the more recent disclosures by the children against their Mother, for the notifications to be confirmed or established.
Indeed, he confirmed - and on more than one occasion - that he does not accept Dr S’s assessment that the children are at no risk with their Mother; he does not accept the assessment by Ms O to similar effect; nor does he accept the assessments made either in 2010, or in 2012, by DOCS or by JIRT that the children are not at any risk in their Mother’s care. Indeed, he goes further by saying that not only does he not accept the findings of all of these experts and/or expert bodies, but that the abuse of the children by the Mother [in fact] occurred in 2010 and that it continues to occur.[32]
[32] See, for example, among other place, T 85, 87-89 & 115.
To say the least, this is a deeply concerning, if not gravely alarming, assessment by the Father: the fact that he cannot, and will not, accept, over such a period of time, with such a significant number of assessments, by such a significant number of experts, that there is no risk to the children in their Mother’s care. In my view, this shows a very disturbing lack of insight and lack of willingness to accept uncontroverted evidence. To maintain such a stance in the light of such evidence, in my view, confirms that either he has, and/or his family have, such a poisonous relationship with the Mother that they will go to any lengths to destroy her so as to ensure that the children abide in the Father’s care.
This evidence is also relevant to the Father’s plea in relation to the contravention, namely that he had ‘reasonable excuse’ in with-holding the children from spending time with their Mother, as ordered. In my view, the ‘reasonable excuse’ plea is not, and cannot be sustained. Accordingly, I do not accept the Father’s pleas in relation to the contraventions alleged against him.
Another glimpse of the caustic relationship between the parties comes from the Father’s answer to questions about whether or not he speaks with the children about their Mother while they are in his care. He simply said that he doesn’t do so “because I don’t like her and I do not wish to mention her in my house.”[33] Further, in the same place,
Mr Mae said, in answer to a question about whether or not he wishes the children to love and respect their Mother, that that was “their decision.”
[33] T 90.
This then led to an exploration of matters with Mr Mae, which, to say the least, was both perplexing and troubling. This is in relation to his contention that his children are “free spirits.” He continued, “They can make their own decisions within reason.” However, upon further examination, the parameters or ambit of what was “within reason” was extremely flexible. In short, however, Mr Mae’s phrase “within reason” simply and clearly meant ‘whatever Mr Mae agreed with was acceptable’; if there was anything that Mr Mae did not agree with in terms of the wishes or decisions made or proposed by the ‘free-spirit’ children, then that was unacceptable.
For example, it was put to him that if a four-year old wished to do as he or she wished, he said that there was no difficulty with that. Indeed, he said, in relation to the children generally, “If they tell me what they want, then I will go about making it happen.” This extended, for example, to four-and-a-half-year old [Y] saying that if she didn’t want to go to school, Mr Mae was not going to make her go to school.[34]
[34] See T 90-92.
Next, in relation to questions about filling out enrolment forms and such things, he confirmed that he did not ask any questions of the Mother because “there was quite a few questions I didn’t get around to because I forgot them.”[35] Again, attention to basic detail was missing.
[35] T 93.
On the second day of the trial, the Court revisited with Mr Mae the findings of JIRT, DOCS, Dr S and Ms O that there was no risk to the children being in their Mother’s care. Again he confirmed that he did not accept any of the findings that were made by any of the authorities. He also confirmed that none of his family accepted the reports and recommendations of the experts, or the findings and recommendations of either JIRT or DOCS.[36]
[36] T 100-101.
Mr Mae stated that he did not undertake any anger management course, as previously directed, because he did not believe that he had an anger problem, and that he still does not have an anger problem. He also confirmed that in relation to [X] not attending further counselling, he thought that it was [X]’s decision not to do so. Again, I observe that, in my view, to allow such a young boy, who has been assessed by experts such as Ms O and Dr S as being troubled and fragile, to determine - without parental guidance - not to continue with counselling was a significant dereliction of parental responsibility.
All of this said, Mr Mae confirmed that he had more recently arranged for [X] to see a psychiatrist in [omitted], although he confirmed that he had not notified the Mother of this intended course, nor of any appointment.[37]
[37] T 107. For a further discussion of Mr Mae’s responses to Dr S’s 2010 report, and also his assessment of the children being able to do what they wish, see T 111-112.
On the first of a number of occasions in relation to the Father contending that all matters set out in the Mother’s affidavit material were lies, there was an exchange between learned Counsel for the Mother and Mr Mae that related to a series of text messages between Ms Lackey and Mr Mae involving their daughter [W]. Together with text exchanges between [W] and Mr Mae, these are set out in the transcript, and are noted below.
Without quite going into all the detail of them, my assessment of those text messages is that Mr Mae’s response to his daughter was close to puerile. By this I mean that he was responding to a young adolescent girl, his daughter, in a way that put all responsibility for the repair of their relationship on her shoulders. In my view, he took little or no initiative to seek to restore the relationship with his daughter at all.
Indeed, in relation to one incident recorded in the Mother’s trial affidavit at para.54, where, at a changeover, Mr Mae went to get the police to force [W] to come with him, but which, ultimately, led to (a) the police advising Mr Mae to let her stay with her Mother and which, ultimately, (b) [W] seeking medical assistance the following day because of her distress, Mr Mae, with significant reluctance and significantly after the event, acknowledged that he may have handled the matter better and that it was not appropriate to bring the police into a changeover with a young adolescent girl here. Not surprisingly, the Father’s action on this occasion did little to promote let alone to heal his already fractured relationship with his daughter.
I note in passing that Mr Mae confirmed that he did not look at any of the records of the Department that were produced to the Court. In part, I understand and accept his misunderstanding that he thought he could only look at those documents on one particular day rather than them being made available for the parties and the lawyers more generally.
I should note too, and in particular, that I do not accept his suggestion/submission that, in large measure, the way the case and the trial were [being] conducted, it seemed [to him] to be something of a secret proceeding in which information was being kept from him and/or that it had a predetermined result to ensure that the children were removed from him.
In my view, allowing every concession in favour of Mr Mae being a self-represented litigant, he took very little initiative in order to prepare, in any reasonable way, for the current proceeding which only tended to make his claim that he had the children’s best interests have something of a hollow ring to it. I accept his desire to have the children live with him. However, his approach to everything, to put it as charitably as possible, was lackadaisical in the extreme.
I might also mention here that approximately mid-morning on the second day of the hearing the ICL had been contacted by a legal officer from the Department who confirmed that the JIRT inquiry was found to be unsubstantiated and, therefore, there would be no further action taken, either by JIRT or by DOCS, in relation to the most recent notifications against the Mother.
Formally, it was noted, and put to Mr Mae, that he was the only one who provided any affidavit material in support of his application.[38] He confirmed that he had not called his Aunt (a lady whose name featured prominently in the Facebook postings previously referred to), nor did he call any other member of his family. He said that he did not do so because firstly, he had left it “too long” (by which I understood him to mean that he had left it too late to organise) and secondly, he said that there was nothing for them to defend. He said: “We stand by what we’ve said and that’s how it is.” While not said with particular defiance, nonetheless it exhibited a rather defiant yet self-absorbed attitude that he and his family would continue to defy both process and evidence, and continue to berate, harass and falsely accuse the Mother. In this context again, Mr Mae confirmed that everything that was in the affidavits of the Mother were all lies.[39]
[38] I should note that neither party provided any evidence from either of their respective partners. Such information as there is about the parties’ partners, came from the children and their comments to Ms O, noted below.
[39] See T 144 – 145.
The Mother submitted that in the absence of any evidence from the Father’s family, an appropriate, adverse inference can and should be drawn.[40] In my view, on the evidence before the Court, such an inference is warranted.
[40] See Jones v Dunkel (1959) 101 CLR 298. Cross on Evidence (Ninth Australian Edition) (ed. J.D. Heydon) (Sydney: Lexis Nexis Butterworths, 2013) at [1215].
Further, Mr Mae said that he did not really get the time to get around to putting any affidavits together in support of his application. It was in relation to, or in the light of, evidence of this kind that led me earlier to comment on his very lackadaisical (and clearly inappropriate) preparation for the hearing.[41] In my view, the Father had more than sufficient time to attend to preparation for the hearing. In my view, had he wished to do so, he would have, and could have, prepared his case without undue difficulty. Over the course, and with the benefit, of two hearings, separated by some considerable period of time, I found him to be a not unintelligent person but someone who seemed to lack much motivation to do anything, or perhaps more accurately, a person who, more often than not, did the bare minimum in relation to most things. Indeed, there was something of an oscillation in his capacities or approach: such was dictated by a certain benign indolence, on the one hand or, if it concerned the Mother, a certain deliberate, almost malign antagonistic force, on the other.
[41] See T 145 & 148.
In another instance involving [W] and her strained relationship with her Father, there was cross-examination of Mr Mae in relation to him returning to her a laptop. To say the least, in my view, again Mr Mae showed a remarkable lack of insight in taking any relevant step to repair the relationship with his daughter. Indeed, his response, in the course of the trial, was nothing short of childish. Effectively, he had refused to return [W]’s laptop because, he said, the Mother would ultimately use it. In my view this clearly shows (if more be needed) that he has such a venomous focus on the Mother, and that he is prepared, deliberately or otherwise, to use the children as pawns in a hate-filled game against Ms Lackey.
Curiously, notwithstanding the multiple times where the Father said that the Mother’s affidavit material is comprised of lies,[42] nonetheless, in the course of cross-examination, when taken through a series of texts and other messages, he confirmed the accuracy of the material that was set out in the Mother’s trial affidavit.[43]
[42] T 113 & 158.
[43] T 162 – 164.
Another area of incongruity in the Father’s evidence was that although he wishes to have the children live full-time with him, and if at all possible, spend no time with the Mother, he acknowledged that it was more likely than not that the children would end up spending time with their Mother. Therefore, he proposed that they spend either every second, or if practicable, every weekend with her. It was pointed out to him how curious it was that, as he asserted, he continues to believe that the children were/are abused by their Mother, sexually and otherwise, yet he nonetheless proposes that they spend time with their Mother regularly on weekends. To this he said that, “In my own personal beliefs I would love to have the children live with me and never see their Mother” but otherwise thought that it would be less likely that the abuse would occur when they were with her [only] for short periods of time.[44]
[44] See T 160 – 161.
In relation to a series of questions put to him by the ICL, Mr Mae said that he signed the 2010 orders even though he disagreed with them. He confirmed also that the shared care arrangement, which had been in place for a short time after those orders were made, did not and does not work.[45] Somewhat begrudgingly he conceded that he had not complied with a number of the orders made by the Court, which were put to him in sequence by the ICL.[46] I need not detail them here.
[45] T 172.
[46] T 173 – 175.
He did concede, in my view with a small amount of insight, that the ongoing allegations against the Mother could or would, more likely than not, have [some] negative impact upon the children. However, his solution in this regard was simply to try “to take them off her.”[47] The alarming, and respectfully, almost vile comments that the children were better off being placed in care than being in the care of their Mother, was something that was explored at a little length, including [again] (a) his non-acceptance of Dr S’s report and (b) his recognition, up to a point, (or rather, his assertion) that the children are influenced in each household.[48]
[47] T 179.
[48] T 181 – 182.
He confirmed further, after having contacted [W]’s school, that her schooling was “pretty good”. This might be taken to suggest that, at least in relation to [W], her living with her Mother and attending school regularly has had a positive influence upon [W]’s life.
There was at least this consistency with Mr Mae’s evidence: he confirmed that upon the ICL advising the Court on the last day of the trial that the further allegations that had been raised against the Mother had been found by the Department and the police to be unsubstantiated, he said that he still did not believe it.[49] Indeed, it was put to him from records produced by DOCS that on the basis of the history of notifications given to the Department, that this family could expect the Department to knock on the family’s door or the police about once every two months.
[49] See T 185.
To state what should be obvious, but patently, it is not: this cycle of notification and investigation is both alarming and appalling, and must stop.
The Father confirmed that he did not trust the Mother on anything.[50] He also confirmed that he could not work cooperatively with her, nor would he accept any limit on his (or his family’s) ability to make reports to DOCS or the police. He confirmed that his current relationship with his current wife was “perfect” and that he did not need any counselling. This was so, in circumstances where it was put to him that he had three previous relationship breakups.
[50] T 187.
It is convenient, and important, here to note the following from the ICL’s written submissions. At para.41, he said:
The Father seems to be more interested in harming the Mother. The sexual allegation issues have been proved on two occasions to be not substantiated yet the Father cannot accept the findings. He said in evidence that he would prefer the children to go to foster care than live with the Mother. This could be construed as him being a protective Father but in the context of this case, it is submitted, that this statement is illustrative of the measures that the Father will go to undermine the Mother and her role as a parent.
Respectfully, and unfortunately, I agree with these comments.
Evidence of Ms O
At the outset of her evidence, Ms O was provided with an update of recent material and events, and specifically in relation to the most recent allegations of abuse levelled against the Mother. She was advised that those allegations had been determined by the Department (and the police) to be without foundation. Especially in the light of the recent notifications, Ms O confirmed that ongoing notifications to the Department were likely to cause damage to the children. She also said that even though the Department had recommended that the children should undergo counselling to help them deal with the ongoing allegations, she would be hesitant to support such a course at the moment. As she said, the most important thing was for the allegations to stop.[51]
[51] T 123.
Before considering further Ms O’s oral evidence, I note the following from her April 2012 Report (Exhibit D). It provides both important context and detailed comment.
In relation to [W], Ms O recorded, at paras.8.2 and 8.4:
[W] was uncertain why she had to see me. [W] told me that she would like to live with her Mother and see her Father occasionally. She was not sure how often she would actually like to see her Father. [W] explained that at her Mother’s she had her singing and her sport as well as her school friends. [W] had just commenced Year 7.
[W] brightened when I asked her about her Mother’s new partner telling me that she liked him. On the other hand she told me that she did not like Ms K [Mr Mae’s Wife] very much. She said Ms K has accused both her and her Mother of trying to break her and her Father up. [W] complained that she felt her like Ms K left her out and paid her less attention than the other children. Later in the session [W] said another reason that she did not like Ms K was because they got in trouble if they called her anything other than “Mum”. [W] said no one could replace her mum. [W] said her Mother’s partner respected her calling him [first name omitted], recognising he was not her Father.
Ms O also noted, at paras.8.6 and 8.7:
Since she began living with her Mother, [W] said that her Father had become a bit cranky at her. She said she would be scared how her Father’s extended family might react if she went back now to live with him or if she saw them.
If the Court was to tell her that she was to go and live with her Father, [W] told me that she would run away. She became quite upset and told me “I really don’t want to go back, not yet”….
In relation to [X], Ms O observed, at paras.8.13, 8.15 and 8.16 (emphasis added):
Confidently, he told me that he wanted to live with his Father but still wanted to visit his Mother. [X] explained that he wanted to live with his Father because “I just do”. He said that he did not really have a reason.
[X] said that he would be sad if he was made to live with his Mother. He told me he got on really well with his Mother’s new partner, Mr T and liked baby [name omitted]. Happily [X] told me he and [V] now spent a lot of time together and got on really well now that there was just them at home without his other sisters.
On a common measure of children’s anxiety, [X] scored on the borderline of the clinical range. This was concerning and suggested he needed further counselling.
I need not detail here the brief discussion that Ms O had with [Y], and that, because of her even younger age, Ms O did not speak with [Z]. She did, however, speak with [V], who is Ms Lackey’s daughter from an earlier relationship. As previously noted, she is not formally the subject of the current proceeding. Ms O noted the following in her Report, at paras.8.21, 8.24, 8.25 and 8.26:
… She assured me she loved and missed her Mother but said she had a lot of violence growing up with her Mother….
[V] said she did not want to resolve her relationship with her Mother until Court was finished….
… [V] thought Mr T [Ms Lackey’s partner] was a really good person. She said she had always got along with him and really missed him.
… [V] again reiterated she did not want to be vindictive towards her Mother but rather to tell me what was best for the children. She anticipated her Mother would “go ballistic” when she learned what she had said. [V] argued that [W] was being unfair to their Father.
Ms O’s Evaluation: Report of April 2012
I note the following further matters from Ms O’s Report in relation to the children (including [V]), and the parties.
First, in relation to [V], Ms O said, at para.9.2:[52]
[V] presented as a demanding, extraverted [sic] teenager loudly aligned with her stepFather. Her upbringing has been very disrupted and her successively strong alignments firstly to her Mother as described in Dr S’s report and now to her stepFather reflect her insecure attachment history early in life and the disruptions and displacements she has experienced since. It was unfortunate that [V] has dropped out of school and to be hoped Mr Mae encourages her to pursue some study. Given his history this appears unlikely and [V] is clearly at risk of establishing inappropriate, violent relationships and early pregnancy.
[52] The comments here about [V] must now be seen in the context of her somewhat recent move from her Father’s residence back to live with her Mother, and her intention shortly to live independently.
In relation to [W], Ms O said, at para.9.3:
[W] was now strongly aligned with her Mother. Her wish to live in [omitted] at her age was understandable. [W]’s affront at having to call his Father’s fiancée “Mum” was very understandable. … Her anger at her Father for offering to reject Ms K [the Father’s Wife] in her favour was perhaps commendable and represented an ability to recognise the shallowness of her Father’s attachments and behaviour. Encouragingly [W] was not an anxious girl and her musical achievements should enhance her self-esteem. As with any girl her age in this society, she requires careful supervision and guidance which she will undoubtedly resist.
Next, in relation to [X], the Report records, at para.9.4:
[X] impressed as a very needy, anxious boy keen for his parents’ attention and approval. Any sexual acting out and behaviour problems at school should be viewed in the light of his history of exposure to conflict and disruption as well as separation from his Mother. His anxiety would have been aroused by hearing heated arguments between his parents and little in their behaviour since separation would have allayed his fears….
The comments on the parties themselves included remarks in the context of actions taken by the parties, especially those by Mr Mae, which involved the younger two children, [Y] and [Z]. For example, at para.9.6, Ms O said:
Mr Mae’s actions around the time of separation in withholding [Y] and [Z] in particular from their main attachment figure, their Mother, were most damaging. It was hard to see how Mr Mae’s actions around the time of separation paid any attention at all to the needs of young children to maintain a relationship with their Mother regardless of what sins he thought she had committed.
In relation to the Father, Ms O said, at para.9.8:
While Mr Mae tried to present as concerned for the children, it was hard to see him in a very sympathetic light. … He did not seem to consider providing financially for his children to be a high priority and certainly had not considered what values he should be portraying to them. Some of Mr Mae’s criticisms of his ex-wife’s care of [W] seemed somewhat hypocritical, since he allowed [V] to come to the Court in a very low cut top, very high heels and tight jeans and to behave in a generally flirtatious and demanding manner. He criticises [W]’s use of Facebook and yet met his new partner on-line.
Concerning Ms Lackey, Ms O noted, at para.9.12:
Dr S explained how Ms Lackey’s early history of domestic violence had impacted on her adult personality. She was ill equipped for parenting and was not assisted by Mr Mae’s or his family’s criticisms. To her credit however Ms Lackey has engaged in counselling and parenting courses and reflects on how best to manage her children. By all accounts her current relationship is a supportive one which assists her. Wisely Ms Lackey has promoted Mr T as an adult friend to her children and they both have decided not to have any joint children given the number of children they already have. Ms Lackey emphasised the importance of Mr Mae having a key role in their children’s lives.
Ms O confirmed that, in her view, the parties were incapable of maintaining a shared parenting arrangement for the children. She also considered (at para.9.13) that [X] is a “very needy and anxious boy.”
In her recommendations at the time of the Report, Ms O suggested that [W] and the younger two children live with their Mother, and that [X] live with his Father, but spend every second weekend with his Mother.
Ms O’s Oral Evidence
Ms O confirmed that when she interviewed [X] he was very clear in his view that he wanted to see his Mother regularly. She also confirmed that she formed a view in April 2012 that the parents were incapable of cooperating and noted that the most recent events that had been narrated to her seemed to be little more than confirmation of this.
She was also concerned that if [X] continued to see other counsellors, there was a risk of some sort of “systems abuse”, and there would be a high risk of pathologising [X].[53] Ms O confirmed that in her view, it seemed clear that the Mother sought to put the interests of the children first.
[53] T 125.
Next she commented that if [X] was to stay with his Father, it would more than likely limit the development of his relationship with his Mother.
Similarly, if he stays with his Father, it would limit or prevent the flourishing of his relationship with his sister [W], who is of a similar age to him.
Ms O confirmed that it was essential, particularly for the younger children, but equally for the others, too, that they needed the stability of being in one household or the other, and she also confirmed that, in her view, from her observations and the other material that she had read, for example, in relation to Mr Mae’s treatment of the incident of [Y] going to school, it showed a limited capacity and understanding of what would have benefited his young daughter.
More generally, Ms O thought that Mr Mae’s parenting capacity and commitment was limited.[54] Of particular concern to Ms O was the fact that the children continued to be embroiled in and were exposed to the ongoing conflict between the parents. It had reached a stage where she agreed with the proposition that it would be important for the time of the children to spend with their Father to be supervised because of the children’s exposure to the ongoing negativity towards their Mother in the Father’s household. [55]
[54] T 130.
[55] T 134.
The primary reservation that Ms O indicated, if the Court ordered that [X] return to live with his Mother, would be how to deal with the transition. She opined that it was more likely than not that it would be a very difficult transition period.[56] Respectfully I agree with Ms O. There was some further discussion between Ms O and the ICL in relation to the children’s regular, if not constant, exposure to pressure from the Father’s family. She indicated her concern that this continued to occur.[57]
[56] T 135.
[57] T 141-143.
Further Evidence: Application to Re-open
Following an application by the Mother to have the matter re-listed, an oral application was subsequently made on 21st March [2013] to re-open and, if granted, to adduce further evidence. This related to (a) an incident involving the Father and the Mother’s partner, which was said to have taken place in front of the children, at the [omitted], and which also involved [W] in particular, and (b) concerns expressed by the Department in relation to the welfare of the children (and the Mother). Those concerns are set out in two reports that were admitted into evidence (initially the admission was provisional to give the Father the opportunity to make written submissions – which he did).[58]
[58] Those two reports, dated 20th February and 20th March 2013, from Ms S, became Exhibits “I1” and “I2.”
In relation to the application, I will first set out very briefly relevant principle, then refer to the matters most recently put before the Court.
Summarily, whether by reference to the High Court decision in Smith v NSW Bar Association, the decision of Murphy J in Summitt & Summitt & Ors (Re-opening), or the Full Court decision in Stephens v Stephens (& Anor) (Enforcement) (relying upon the decision of Austin J in ASIC v Rich), the principles are generally clear.[59]
[59] Smith v NSW Bar Association (1992) 176 CLR 256; Summitt & Summitt & Ors (Re-opening) [2009] FamCA 365; Stephens v Stephens (& Anor) (Enforcement) (2009) 42 Fam LR 423; ASIC v Rich (2006) 235 ALR 587.
For my part, in addition to the cases to which I have referred, the Federal Court decision of Kenny J in Inspector-General in Bankruptcy v Bradshaw also helpfully outlines relevant principle.[60] It is sufficient to note the Full Court’s citation in Stephens of Austin J’s summary of considerations from ASIC v Rich, thus:[61]
·the nature of the proceeding
·whether the occasion for calling further evidence ought reasonably to have been foreseen
·the importance of the issue on which the further evidence is sought to be adduced
·the degree of relevance and probative value of the further evidence
·the prejudice to the other party
·the public interest in the timely conclusion of litigation
·the explanation offered for not having called the evidence
[60] [2006] FCA 22. Her Honour’s summary has been followed by Collier J in Bing! Software Pty Ltd v Bing Technologies Pty Limited (No.2) [2008] FCA 1761 and by Katzmann J in Lee v Professional Services Review Committee No.292 (No.2) [2010] FCA 1490 at [20] & [21].
[61] Stephens v Stephens (2010) 42 Fam LR 423 at [273]. In the same place, the Full Court also noted the importance to consider the High Court’s observations in AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175.
For completeness, I note the following from the High Court decision in Smith v NSW Bar Association. There, at pp.266-267, Brennan, Dawson, Toohey and Gaudron JJ, said (internal citation omitted):
It is again necessary to distinguish between the considerations which may bear on a decision to re-open and the processes involved in reconsideration once a case has been re-opened. If an application is made to re-open on the basis that new or additional evidence is available, it will be relevant, at that stage, to enquire why the evidence was not called at the hearing. If there was a deliberate decision not to call it, ordinarily that will tell decisively against the application. But assuming that that hurdle is passed, different considerations may apply depending on whether the case is simply one in which the hearing is complete, or one in which reasons for judgment have been delivered. It is difficult to see why, in the former situation, the primary consideration should not be that of embarrassment or prejudice to the other side. In the latter situation the appeal rules relating to fresh evidence may provide a useful guide as to the manner in which the discretion to re-open should be exercised. But those considerations bearing on re-opening are not decisive of the question whether, a matter having been re-opened by reason of error, further evidence can be called.
It might be taken from this decision, as noted by the Full Federal Court in Londish v Gulf Pacific Pty Ltd, that the primary considerations are (a) whether judgment has yet been delivered, and (b) whether the interests of justice require the matter to be re-opened.[62]
[62] Londish v Gulf Pacific Pty Ltd (1993) 45 FCR 128 at pp.138-139.
I turn now to the application and to the new, late-breaking evidence.
In the result, the Mother did not formally press the Application to re-open, but did seek to have admitted the two reports provided by a Counsellor (Ms S), who works for the Child Protection Counselling Service at the [omitted] Community Health Centre ([omitted] Health District), to which I have earlier referred.
In my view, in cases that require the Court to make orders in the best interests of children and where judgment has not yet been delivered, it is a procedurally more appropriate course at least to re-open (even on the Court’s own motion) provisionally or for clearly defined, limited purposes. Thus here, the purposes are (a) to allow the tender of the most recently prepared reports (together with a letter from last October from the Mother’s solicitor to the Father – Exhibit J), and (b) to allow the Father to put on written submissions to the recent reports.
Given the Mother did not formally press the application to re-open, on the Court’s own motion, it should be taken that the matter was provisionally re-opened for the limited purposes just noted.
The Court made orders which gave the Father an opportunity to make written submissions in relation to these reports. He confirmed that he had evidence that established that they are “false.” Mr Mae subsequently provided written submissions.
In my view, the Father’s submissions are a narrative of factual contest. They are unsworn. A number of the matters he recounts relate to events clearly long before matters canvassed in the reports of Ms S.
Having regard to the recent reports, and to the written submissions of the Father, in my view, they do nothing more than to confirm that (a) there are significant therapeutic matters involving the Mother and the children that require on-going attention, and (b) Mr Mae again contests evidence from a state-based agency (the Child Protection Counselling Service). They add nothing to the evidence presented at trial, other than to confirm that there remains alarming uncertainty and conflict between the parties, which has continued the negative impact on the children. Accordingly, I do not propose to consider further the reports or the Father’s submissions.
Consideration via the Legislative Pathway
In addition to the signal Full Court judgments in Goode v Goode and subsequently in Keach & Keach, a convenient overview of the legislative parameters and considerations under Part VII of the Act to which the Court must have regard is provided by Brown J in Mazorski v Albright.[63] I set out below [3] – [6] from her Honour’s judgment and respectfully adopt it for its succinct outline of relevant sections (and principles) of Part VII of the Act:[64]
[3] The provisions in the Family Law Act 1975 (the Act) relating to children rest on twin pillars. The first is the importance to children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B(1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC(1).
[4] When deciding what parenting orders to make it is the best interests of the children which are the paramount consideration. In determining where those best interests lie, the Court must consider the primary and additional considerations set out in s.60CC.
[5] There is a presumption that it is in a child’s best interests for his or her parents to have equal shared parental responsibility for him or her (s.61DA). The presumption relates to the allocation of parental responsibility, not the time a child spends with each parent. The presumption does not apply if there are reasonable grounds to believe that a parent has engaged in abuse of the child or family violence. The presumption may be rebutted if the Court finds that it would not be in the best interests of the child for it to apply.
[6] If the presumption applies, and there is an order for equal shared parental responsibility, the court must consider whether spending equal time with each parent would be in the child’s best interests (s.65DAA(1)) and, if no such order is made, consider whether spending substantial and significant time with each would be in the child’s best interests (s.65DAA(2)).
[63] Goode v Goode (2007) 36 Fam LR 422; Keach & Keach (2007) FLC ¶93-353; Mazorski v Albright (2008) 37 Fam LR 518.
[64] Her Honour’s remarks, in relation to the “twin pillars” and in relation to “meaningful relationship”, have been consistently cited with approval by the Full Court, for example in Moose & Moose (2008) FLC ¶93-375; McCall v Clark (2009) 41 Fam LR 483; Sigley v Evor (2011) 44 Fam LR 439; Shaeffer v Jacobs (2011) FLC ¶93-468; & Maluka v Maluka (2012) 45 Fam LR 129.
Her Honour also made important observations about “meaningful” as that term is used in Part VII of the Act in the context of what is comprehended by a “meaningful relationship.” At [20] - [26], her Honour outlined a range of relevant considerations. I set them out below, and again respectfully (and gratefully) adopt Brown J’s observations, thus:[65]
[65] Brown J’s remarks in this regard were endorsed by the Full Court in Moose & Moose (2008) FLC ¶93-375 at [69], and even more recently by a differently constituted Full Court in McCall & Clark (2009) 41 Fam LR 483 at [115] & [121]. More recently still, a further Full Court in Collu & Rinaldo [2010] FamCAFC 53 at [335], similarly endorsed Brown J’s remarks.
[20] The Family Law Amendment (Shared Parental Responsibility) Bill Revised Explanatory Memorandum (2006) refers to the concept of a meaningful relationship on a number of occasions. At para 52 it noted that the primary factors mirror the first two objects set out in the new s 60B and that the objects are elevated to primary considerations as they deal with important rights of children and encourage a child-focused approach. The paragraph continues:
The elevation of the object relating to the benefit to the child of having a meaningful relationship with both parents is consistent with the introduction of a presumption in favour of equal shared parental responsibility.
[21] Here, the concept of a meaningful relationship is closely tied with the introduction of the presumption of equal shared responsibility, and the passage links the concept of a meaningful relationship with the objects of the Division. The objects use the words “meaningful involvement”.
[22] At para 128, discussion of a meaningful relationship is again linked to discussion of the presumption of equal shared parental responsibility, the explanatory memorandum noting:
The government considers that it is important to ensure that a child has a meaningful relationship with both parents and that both parents participate in decisions about the child. The presumption of equal shared parental responsibility is not a presumption of 50:50 joint custody. The presumption relates solely to the decision making responsibilities of both parents. New section 65AA inserted by Item 31 is the provision dealing with the time a child spends with each parent and the circumstances where the court should consider equal time arrangements.
[23] When considering s 65DAA, the explanatory memorandum states (at [196]–[199]):
[196] Subsection 65DAA(2) recognises that an equal time arrangement will not be appropriate in some cases but that the court must consider other arrangements that promote a meaningful relationship. This provision places an obligation on the court in situations where there is equal shared parental responsibility and equal time is not appropriate, to consider whether it would be in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with both parents. This is intended to ensure that in making parenting orders related to time that the court focuses not just on the substantial quantity of time that is spent with each parent, but also on the significant type of time. The note in this section emphasises that the best interests of the chid remain the paramount consideration for parenting orders. This is set out in s 60CA by item 9.
…
[199] Section 65DAA (2) — (4) is intended to ensure that the courts consider arrangements that are much more than “1 weekend a fortnight and half of the holidays” or an 80:20 arrangement. It is intended to ensure a focus both on the amount of time and the type of time. It would include both day time contact and night time contact. It recognises that what is important is that the focus be on ways that both parents are able to develop a meaningful relationships with their children and share important events including everyday time with the child. It recognises that in order to have a meaningful relationship and to share equal shared responsibility that this would generally involve “both” parents spending both substantial and significant time with their children.
[24] The New Shorter Oxford English Dictionary on Historical Principles, Clarendon Press, Oxford, 1993, defines “meaningful” as “full of meaning or expression; significant; amenable to interpretation; having a recognisable function in a language or sign system; able to function as a term in such a system”. “Meaning” is defined as “having intention or purpose; chiefly with a qualifying adverb (as well-meaning)”. A second definition is “conveying or expressing meaning or thought; expressive, meaningful, significant; suggestive”. These definitions are repeated and further fleshed out in the Oxford English Dictionary, 2nd ed, Clarendon Press, Oxford, 1989. It defines “meaning” (in generalised use) as “significance”. The examples provided take the matter no further.
[25] The Macquarie Dictionary, 4th ed, Macquarie University Press, Sydney, 2005, defines meaningful as “full of meaning; significant”. Within the definitions of meaning, the relevant one defines the word as “expressive or significant: a meaning look”.
[26] What these definitions convey is that “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
Parental Responsibility
Section 61DA of the Act provides for a presumption of equal shared parental responsibility when making parenting orders. The presumption does not apply, among other things, in circumstances where the evidence satisfies the Court that it would not be in the best interests of the child for the parents to have equal shared parental responsibility for the child.[66]
[66] In particular, see s.61DA(2) and s.61DA(4).
In this case, the Mother, and the ICL, seek an order that she have sole parental responsibility. The Father seeks an order for equal shared parental responsibility.
In my view, the evidence makes plain that it is not in the children’s best interests that their parents have equal shared parental responsibility. Among other things, the parental relationship is nigh on unworkable. It is hostile in the extreme. The Mother should have sole parental responsibility for all of the children.
The order for sole parental responsibility precludes the necessity for the Court to consider the terms of s.65DAA.
“Pathway” Considerations
Following the basic contours of the legislative pathway, I note the following. Unless otherwise required, I should be taken to follow, in order, the sequence of considerations in s.60CC(3). In relation to the conclusions reached in relation to each particular matter noted, I should be taken to make a formal finding in favour of, or against, one or other of the parents.
The views of the children have been set out earlier in these reasons. Summarily, based on earlier evidence and subject to later evidence, the girls ([W], [Y] and [Z]) all wish to remain with their Mother. Of course, the views, such as they have been expressed or articulated in some other way, by the two younger children ([Y] and [Z]) are of little weight because of their age.
There are different considerations that apply in relation to [X]. First, as recorded in Ms O’s report, he wishes to live with his Father and spend time with his Mother. However, Ms O also noted her concerns about the “neediness” of [X] and his general vulnerability. As well, she noted the risk to him spending time with his Mother if he continues to live with his Father, which is to say that his Father will not facilitate such time.
The evidence is that the girls all have a good relationship with their Mother, with [W]’s continuing to grow. There is also evidence that [X] has a good relationship with both parents. The two most recent reports from Ms S (Exhibits I1 and I2) suggest that the girls have some anxiety in relation to their Father. [W]’s relationship with him is even more complex. On the one hand, she loves him, but has experienced difficulty and now quite some estrangement from him. Indeed, the latest reports suggest that there is now significant difficulty between [W] and her Father (although still acknowledging that she loves him), as well as with the paternal family.
I have already recounted, and will not do so again, the very significant discord between the parents, and the negative impact that has had, and continues to do so, on the parenting relationship. Accordingly, whether in terms of s.60CC(3)(c) in its “old form”, which refers to “the willingness and ability of each of the child’s parents to facilitate and encourage, a close and continuing relationship between the child and the other parent”, or in its current manifestation, which refers to a parent having taken (or failed to take) the opportunity to participate in making decisions about major long-term issues, to spend time with and to communicate with the child, in my view, the evidence confirms significant limitations on the part of the Father. These same comments apply, and for the same reasons, to the consideration of s.60CC(3)(i).
In her oral evidence, Ms O confirmed that, if there was to be a transition of [X] to live with his Mother, this would likely be a difficult exercise. I infer from this that some ‘therapeutic assistance’ will be necessary, at least for [X], and possibly involving his Mother.
The two most recent reports from Ms S refer to a range of therapeutic assistance involving the girls – [W], [Y] and [Z]. That is likely to – and should – continue.
On the evidence, the biggest problem is the enormous gulf that has developed between the parties and its impact on the children. The evidence confirms that there is a real danger in moving from one parental camp to the other. There is doubtless, and properly so, concern on the part of the children in not seeing their Father. However, there is, in my view, always the greater risk of the children being (a) embroiled further in the on-going litigation between their parents, and (b) subjected to further scrutiny and hostility by the paternal family, with the certain consequence of more reports against the Mother.
The practical difficulty with the orders to be made by the Court, in particular the period of supervised time only with the Father and the children, is a necessary consequence of the actions of the Father and his family. The children need to be protected.
In all of the circumstances, the material needs of the children seem not to be a concern, certainly on the Mother’s side, which is also to confirm that she is able to provide for them. Some concern was raised with the Father’s capacity to so provide, and his significant dependence on his family to assist him with the children. However, I do not make any formal finding in this regard.
Certainly, in my view, with the assistance of the Child Protection Counselling Service in [omitted], the Court can and should be reasonably well assured that the proper attention to the parenting of the children by the Mother will take place. For reasons already given, particularly because of the paternal family’s less than benign approach to all things concerning the family dynamics, I have significant concerns about the Father’s capacity to provide for the children in terms of the matters contemplated and required under s.60CC(3)(f) and (g).
I am advised that there has been a recent incident that involved some alleged violence. It is the subject of police proceedings in the [omitted] Local Court. However, because no evidence of it is formally before the Court, and although it is referred to in the recent report(s) from Ms S, I do not propose to consider such matters.
To the degree that any trial court can be confident (or diffident) that the orders made are the least likely to lead to the institution of further proceedings, the history of this matter suggests that there is little confidence that there will be a complete cessation of hostilities. However, I am firmly of the view that the orders are (a) in the best interests of the children, and (b) are likely at least to quell any immediate or medium-term enthusiasm by the Father and his family to engage in conduct that is litigious or prosecutorial of the Mother which will necessarily involve the children.
Having regard to the matters already addressed in these reasons, particularly in relation to s.60CC(3)(c) (in its former and or in its current form) and s.60CC(3)(i), in my view, that discussion is sufficient for the purposes of what was formerly embraced by s.60CC(4), but which section has now been repealed.
Conclusion
A number of final matters require attention here.
First, the ICL indicated, if the Mother so wished, that she be permitted to relocate from the [omitted] area. I understand the motive behind the ICL’s ‘suggestion.’ However, because there is no formal application from the Mother in this respect, I cannot and do not say anything more about it.
Secondly, in relation to the contravention, because the orders made are as sought by the Mother, in my view, they are sufficient to deal with that application. The orders need only confirm that the Father’s pleas of ‘contravention admitted but with reasonable excuse’ are not accepted. Further, there will be a notation that, in the event of any further contravention by the Father, and if established, there is a risk that, at least, he will be placed on a bond.
Thirdly, in addition to the orders as sought by the Mother, further orders requesting the Marshal to investigate the Facebook postings and any related activities (and any consequential action in the light of that investigation) should also be made, including reference to any possible prosecution.
Fourthly, in addition to requesting the investigation of Facebook postings involving the Father and or his family and the possible infringement of s.121, I also request the Marshal to monitor Facebook for the next 2 years for any similar postings by the Father and his family and their “cyber-friends.” He should have access to any of the documents filed, or exhibits used, in the proceedings.
Many basic decencies, such as simple civility, have not been evident in the lives of the parties towards each other. Such adverse, negative conduct has clearly had a damaging impact on the children. From now on, the parents have to decide what model they wish to provide for their children. Will it be lives based on civility, care, justice in dealing with others, and compassion – which recognises the basic human dignity of each person. Or will it be – as it often seems to have been the case so far – lives based on pettiness, revenge, bickering, lack of respect, laziness and lack of truth. One course will lead, over time and with [almost heroic] effort, to fulfilment and lives of relative peace. The other will be – as it has been – utterly destructive. The choice is theirs. The consequences of wrong or continuing poor choices is more danger and damage to the children. Decency and civility are not without cost; but so too are the destructive forces that have been all too strongly on display here for many years. It is time for change.
In my view, the Court’s protective responsibilities must take precedence here. The evidence clearly and painfully shows that the children have been subjected to relentless processes of investigation by the police and by the Department because of the unfounded accusations by the Father and or his family against the Mother, but which necessarily have embroiled the children in every investigation. The orders of the Mother (and similarly those proposed by the ICL, which essentially vary only in relation to the residence of [X]) are the most appropriate in all the circumstances. In my view, they are in the best interests of all the children. Those orders should be made.
I certify that the preceding one hundred and sixty-eight (168) paragraphs are a true copy of the reasons for judgment of Neville FM.
Associate:
Date: 4 April 2013
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