Lance and Kellaway
[2013] FCCA 2370
•4 July 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| LANCE & KELLAWAY | [2013] FCCA 2370 |
| Catchwords: FAMILY LAW – Children – father’s claims on internet that mother “abducted” and “kidnapped” the child – no contact by father for approximately a year – lapses in father’s attempts to re-establish a relationship with the child – father writing a book about “parental child abduction” – whether orders should be final or interim – time to be supervised at Children’s Contact Service. |
| Legislation: Family Law Act 1975 (Cth) ss.60B, 60CA, 60CC, 121 |
| Bright and Bright v Bright and Mackley (1995) FLC 92-570 Stevens and Lee (1991) FLC 92-201 |
| Applicant: | MS LANCE |
| Respondent: | MR KELLAWAY |
| File Number: | LNC 770 of 2009 |
| Judgment of: | Judge Roberts |
| Hearing dates: | 2 & 3 July 2013 |
| Date of Last Submission: | 3 July 2013 |
| Delivered at: | Launceston |
| Delivered on: | 4 July 2013 |
REPRESENTATION
| Counsel for the Applicant: | Ms R Brown |
| Solicitors for the Applicant: | Legal Solutions |
| Counsel for the Respondent: | Not applicable |
| Solicitors for the Respondent: | Not applicable |
| Counsel for the Independent Child’s Lawyer: | Mr R Murray |
| Solicitors for the Independent Child’s Lawyer: | Murray & Associates |
ORDERS
That MR KELLAWAY (“the father”) must forthwith remove, or cause to be removed from the internet any reference to any past, existing or contemplated Court proceedings in relation to the child X born (omitted) 2002 (“the child”) and any reference to the words “abduction”, “kidnapping”, “child stealing”, “parental alienation” or any similar words in relation to MS LANCE (“the mother”) or the child.
That the father be and is hereby restrained from denigrating the mother in speech or in writing, either directly or by implication.
That the father and the mother be and are hereby each restrained from threatening, assaulting or abusing the other.
That the mother have sole parental responsibility for the child.
That the mother must provide to the father copies of all school reports that she receives in relation to the child or authorise and request the relevant school to provide them to the father.
That the mother must inform the father as soon as practicable of any significant health difficulty or significant medical treatment in relation to the child and she must authorise the relevant treating medical professionals to provide information to the father.
That the child live with the mother.
That until further Order the child is to spend time with the father supervised at the (omitted) Children's Contact Service (“the Service”) at times and on such dates as may be determined by the staff of the Service.
That the parties are each to obey all reasonable requests and directions of the Service and its staff.
That the Legal Aid Commission of Tasmania is requested to extend the commission of the Independent Child’s Lawyer until the conclusion of these proceedings.
That this matter is otherwise adjourned for further mention in Launceston at 9.30 a.m. on Wednesday 9 October 2013.
THE COURT NOTES:
That it is envisaged that the father’s time to be spent with the child in accordance with Order No. 8 hereof would initially be in the range of 1 to 2 hours per fortnight, but that is not meant to fetter the discretion of the staff at the Service in any way in relation either the frequency or the duration of such times.
IT IS NOTED that publication of this judgment under the pseudonym Lance & Kellaway is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT LAUNCESTON |
LNC 770 of 2009
| MS LANCE |
Applicant
And
| MR KELLAWAY |
Respondent
SETTLED REASONS FOR JUDGMENT
This matter involves competing applications for parenting orders in relation to X born (omitted) 2002 (“the child”). She is 10 years old, going on 11.
The applicant is MS LANCE (“the mother”). She seeks orders in her Amended Initiating Application filed 1 September 2011 that:
a)she has sole parental responsibility for the child;
b)the child live with her;
c)the child spend time with the father fortnightly at the (omitted) Children's Contact Service at times to be nominated by that service and at other times as may be agreed.
The respondent is MR KELLAWAY (“the father”). He seeks orders that the child spend time with him as stated in his closing submissions which can be summarised as follows:
a)on two or three occasions at the (omitted) Children's Contact Service but only at weekends;
b)then for three occasions at the (omitted) Children's Contact Service;
c)then every second weekend; and thereafter
d)moving to the child spending time with him during holidays and on special occasions such as birthdays, Father’s Day, etc.
The father also stated that he would like the child to be able to decide where she would live when she enters high school.
The evidence
The mother relied upon her trial affidavit filed on 13 June 2013. She also relied to some extent upon a Family Consultant’s memorandum of 1 December 2011 and a Family Report by that Family Consultant dated 15 May 2012. (The author of those documents, Family Consultant Ms B was not called to give any oral evidence.)
The father relied upon his trial affidavit.
Evidence was given by the Court Expert, Dr R. In addition, there was an affidavit from Mr R, the manager of Children’s Services of Relationships Australia, the organisation running both the (omitted) and (omitted) Children's Contact Services.
Mr R was not called to give any oral evidence. However, I had the opportunity to observe both the parties and Dr R in the witness box.
The Independent Child’s Lawyer (“the ICL”) said that the father was a less reliable witness than the mother and I find that I must agree with him in relation to that. To put it bluntly, the father’s affidavit was not really a document with the best interests of the child in mind; instead, it was more of a rant about what he perceives to be injustices in the system and unsubstantiated faults or criminal activities on the part of the mother. Some examples from his affidavit as are follows:
5. [The child] is a victim of “Parental Child Abduction” and also “Parental Alienation” due to [the mother] kidnapping and then stopping all contact between myself and my daughter … .
6. It has been a constant fight to try to have my daughter returned to a safe and happy environment. Until she was abducted on the 21st September 2009 she had a very happy life; she spent most of her time with me (her father), as she was closer to me than she was to [her mother].
7. Since 21st September 2009 [the mother] has done everything she possibly can to stop [the child]spending time with me because she knows that [the child]always wanted to be with me and not her. The actions of [the mother] include identity theft, fraud, misleading information on affidavits, providing false phone numbers for contact.
8. Since 21 September 2009 [the mother] has committed fraud, identity theft, interfering with my mail from Australia Post and redirecting it to her fathers (sic) address …, making false statements to police and also lying and giving misleading statements in affidavits which she has filed.
As I said to the father during the hearing, his affidavit was long on accusation, but short on detail.
It is clear that the parties have been in disagreement about whether the child’s time with the father should recommence at the Children’s Contact Service in (omitted) or (omitted). The father now appears to have moved in relation to that, but he will only attend at (omitted) at weekends and then only for two, maybe three, occasions. He also said in his affidavit:
10. [The mother] has offered contact with my daughter X via her solicitor. [The mother] then behind the scenes stops or manipulates the situation so that there is no contact. I’ve been to the contact centre (Relations Australia) and have gone through the intake process several times. When I confirm that I’m able to travel to (omitted) on a very temporary basis and on weekends the offer of contact with my daughter … is then refused by [the mother].
12. [The mother] knows that [the child] will not want to go back to her once [the child] spends time with me her father. This has always been the case as was the same with her other children and their fathers.
13. The entire situation has been going on for almost 4 years. 4 years of parental alienation. 4 years my daughter has been kept from her father and grandparents and family. 4 years of my little girl growing up and missing out on her life. 4 years of my daughter’s basic human rights to grow up with her father in her life and her grandparents and family. How do I get these years back that have been taken away from both myself and my daughter due to the thoughtless and selfish acts of [the mother].
15. [The mother] has done similar acts with 2 other children. Abducting children and running off across several states of Australia and keeping them from their fathers and family is not normal and it is ethically and morally wrong. It is an illegal act to kidnap a child regardless if it is your own child. But then keeping that child away and manipulating the system to keep that child from the father and family is nothing short of a criminal act.
The theme of kidnapping, abduction and criminality has been maintained by the father for some years and the theme has been expressed by him in very definite terms on internet entries to which I will refer later.
In my view, it is his attitude to the mother that colours his perception of things and he sees this whole matter as one of his right and entitlement rather than one of what is in the best interests of the child.
The father appears to be almost obsessed in relation to the alleged “abduction” of his child, but in my view the facts do not fit that scenario. Certainly, the mother came back to Tasmania from Queensland to visit her family and she decided to end the relationship while she was here, but I find that she did not abduct the child and “run off across several states” (to use the father’s own words).
In an earlier affidavit the mother had said:
16. In September 2009, we listed the property in Queensland for sale with intentions to move to Tasmania. My intentions were to move to Tasmania to be closer to my family, however, [the father] made it clear that he did not want to live in or close to (omitted).
To that the father replied in the affidavit he filed with the benefit of legal assistance as follows:
2.14. As to paragraph 16, I agree that we listed the property in Queensland for sale and say that I wanted to live on a few acres so we could have a garden, the children could have animals and the like. I suggested (omitted) as it met all our requirements and was close to school.
Indeed, I note that it appears to be an agreed fact that the father did purchase a property at (omitted) (just outside (omitted)) and he may still own that property, notwithstanding that he has moved to the North-West Coast of Tasmania to live.
A further matter concerned me about the father’s evidence. He has said that he does not have a vehicle available to travel to (omitted). However, it became apparent that his partner has two vehicles and I deduce that his partner is unable to drive two vehicles at the same time. Consequently, I do not accept that he does not have a vehicle available.
Even if I am wrong about that there was no evidence given to me that the father has made any exploration as to the use of appropriate public transport.
I also note that the father says that he will not reveal his address. His mailing address is a post office box in (omitted). (omitted) is on the other side of central (omitted) from (omitted). (omitted) is approximately 50 kilometres from (omitted) where he wants to collect the child from the Contact Centre.
From (omitted) (where the mother lives) to (omitted) is approximately 100 kilometres and is therefore twice the distance that the father says he will travel.
I also note that in his final submission the father said he wanted the child to attend school at (omitted). He has not revealed his address, but I can take judicial notice of the fact that (omitted) is on the (omitted) side of (omitted). I can also take judicial notice that (omitted) is not in the school area of either (omitted) or (omitted), so I can conclude that the father lives closer to (omitted) than the 50 kilometres between (omitted) and (omitted). Consequently, his proposal is that the mother should travel more than twice the distance that he would travel.
Brief background
The father is aged 44 years and the mother is aged 43 years.
The father has one other child to his current partner. The mother has a total of six children, including the child that is the subject of these proceedings.
The parties commenced their relationship in 2001 and subsequently moved to Queensland. The child was born on (omitted) 2002.
The parties married in September 2006 and separated in September 2009. They do not appear to be divorced.
The father came to Tasmania at the end of 2009. The mother obtained a restraining order against him in the State Magistrate’s Court and subsequently the father pleaded guilty to a breach of that restraining order and was placed on a good behaviour bond for a period of 12 months.
On 24 December 2009 the parties made interim orders by consent in the Family Court of Australia at a time when they were both represented by lawyers. I summarise those interim orders as follows:
a)That the mother and father have equal shared parental responsibility for the child.
b)That the child live with the mother.
c)That the child spend time with the father in (omitted) during the following periods (in 2010):
i)1 January from 10 am till 5 pm;
ii)3 January 10 am till 5 pm;
iii)Friday 8 January 5 pm until Monday 11 January at 5 pm;
iv)Friday 15 January at 5 pm until Monday 18 January at 5 pm;
v)Friday 22 January at 5 pm until Monday 25 January at 5 pm;
vi)Friday 29 January 5 pm till Monday 1 February at 5 pm;
vii)Friday 5 February 2010 until Sunday 7 February at 5 pm; and
viii)such further and alternate times as agreed between the parties from time to time.
d)That the child be at liberty to telephone either parent from time to time.
e)That changeover to occur at the (omitted) restaurant in (omitted) Shopping Centre in (omitted).
f)That neither party denigrate or allow any other third party denigrate the other party in the presence of the child.
g)That neither party discuss any matters of a legal or adult nature or any matters in regards to these proceedings with the child.
h)The standard order in relation to the obligations created by parenting orders.
There were also two notations to the orders. They were:
·that the consent orders were the result of agreement reached at a Family Dispute Resolution Conference on 21 December 2009 through the assistance of the Legal Aid Commission; and
·that it was their intention to review the orders at a further family dispute resolution conference in February 2010.
It is a matter of history that a further Dispute Resolution Conference did not result in a further agreement and the father appears not to have spent any time with the child since those consent orders expired in early 2010.
I accept the mother’s evidence that she had no contact from the father for almost a year after the unsuccessful family dispute resolution conference and that it was only when she commenced proceedings for property settlement that the father raised the issue of his time with the child.
The court file shows that the mother filed an Application for property orders on 21 March 2011. The father filed a Response on 7 May 2011 and at that time he was also only seeking property orders. However, on 3 August 2011 the father filed an Amended Response in which he sought orders that the child live with him and spend time with the mother, essentially on the basis of alternate weekends and half of school holidays.
It was after that document was filed that the mother filed her Amended Application to which I have already referred.
On 23 January 2012 the parties resolved their property matters by the making of consent orders.
There have been a number of court procedures since mid 2011 in relation to the parties’ competing applications for parenting orders and they include:
·a child-inclusive conference on 1 December 2011;
·a Family Report process with the Family Report being issued on 6 May 2012; and
·a Rule 15.09 report being obtained from the court expert Dr R on 5 December 2012.
It is also clear from the affidavit of Mr R that unsuccessful attempts have been made to resolve matters by negotiation through solicitors and with the assistance of the Independent Children’s Lawyer who was appointed by orders of 13 June 2012 (“the ICL”).
The affidavit of Mr R shows that while initially the parties could not agree upon which contact service should be used ((omitted) or (omitted)), they did agree to use the (omitted) Contact Service shortly after the ICL was appointed. That agreement broke down because there was no agreement about the day upon which time at the (omitted) Children's Contact Service should occur. Mr R’s report (annexed to his unchallenged affidavit) states that the mother was not available at weekends and the father was not available on Fridays as suggested by the mother.
The mother did facilitate time between the paternal grandparents and the child at the (omitted) Children's Contact Service on 13 and 20 April 2013. The father puts that down to the mother being concerned that these proceedings were pending; presumably he means that she was only seeking to look good in the eyes of the court. I adopt a more charitable attitude to that and I will refer to that later.
Relevant law
Proceedings for parenting orders are governed by the provisions of Part VII of the Family Law Act1975 (“the Act”). The court must consider the best interests of the child as the paramount consideration.[1]
[1] Section 60CA
Section 60B sets out the objects of Part VII of the Act and the principles underlying those objects. The objects of Part VII are to ensure that the best interests of children are met by:
·ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
·protecting children from physical or psychological harm from being subjected or exposed to, abuse, neglect or family violence; and
·ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children. [2]
[2] See subsection 60B(1)
Except when it would be contrary to a child’s best interests, some of the principles underlying those objects are that:
·children have the right to know and be cared for by both their parents; and
·children have a right to spend time and communicate on a regular basis with both their parents and with other people significant to their care, welfare and development; and
·parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·parents should agree about the future parenting of their children.[3]
[3] See subsection 60B(2)
In determining what is in a child’s best interests I must consider the matters set out in section 60CC of the Act. It refers to “primary considerations” and “additional considerations”.
There are two “primary considerations”. The first is the benefit to the child of having a meaningful relationship with both parents, and the second is the need to protect the child from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence.[4]
[4] Subsection 60CC(2)
The court must also take into account those of the “additional considerations” that are relevant.[5]
[5] Subsection 60CC(3)
Discussion
In deciding what orders I should make in this matter I will consider the relevant evidence in the light of the considerations under section 60CC of the Act.
Primary considerations
The benefit to the child of having meaningful relationship with both parents
In his report Dr R said this:
1(i). The degree of importance, if any, for the child’s emotional and psychological health to spend regular time with the father.
The child would appear to have had a regular and close relationship with the father until the age of seven, and a resumption of an appropriate relationship is necessary for her optimal future emotional well-being. Continued conflict apparent to the child relating to such contact would tend to impair the favourable results of renewed contact with her father.
Dr R’s oral evidence was consistent with that and, if there can be a reduction in conflict, then having contact with her father should be of significant benefit to her. However, the “if” in that last sentence is a very big “if” indeed. In my view, most of the effort to reduce the conflict in this matter must come from a significant change in the father’s attitude to which I will refer in due course.
The need to protect the child from harm, from abuse, neglect or family violence
Although the father pleaded guilty to a breach of a restraint order in the past, I do not see that as a significant factor in this matter. I will refer again very briefly to that restraint order and his guilty plea shortly.
Relevant additional considerations
The child’s views
Although this is the first additional consideration listed in the Act, they are not listed in order of importance.
Dr R said:
The child presented as a lively ten year old in a neat school uniform. She said that she understood the appointment is “about my Dad and my Mum”. She said she had not seen her father for two years and without any hesitation said “I do not want to see him”, shaking her head and averting her eyes immediately explaining “I’m happy with my mum”.
Dr R said that it was possible that the child may have been coached but he did not form that as a firm conclusion. I cannot conclude that the child has been directly coached, but the child has lived in the mother’s household for some years now with no input from the father so it is very likely that as an intelligent child she would know that there is hostility between the parents and she would be likely to say things she thinks the mother would like to hear. That is only natural.
In the past the child has expressed a concern that the father would not return her to the mother and in this regard I refer to the report of the Child Inclusive Conference on 1 December 2011. However, the Family Consultant reported that the notion of a court order to redress that fear seemed to soothe her.
The child’s relationship with the parents and other people
It is clear to me that the child has a very close and loving relationship with her mother and with her siblings on her mother’s side.
However, the child’s relationship with the father must be tenuous and must be getting more tenuous as time passes. The father blames the mother entirely for that and, as I have said, I will refer further to his attitude in due course. However, I do find that the father is in very large part responsible for the tenuous relationship.
I have absolutely no doubt that the father’s placement of what can only be described as disturbing material about the mother on the internet had a negative effect on the child when she discovered it by Googling her own name. On the evidence available, I am satisfied that did happen and I am also satisfied that the father did very little to ameliorate that when he was first made aware of it in late 2011. Indeed, material of that nature remained “out there” on the internet even as late as the day before yesterday. It appears to have dawned upon the father that I was unimpressed by that material and he made some effort to remove it yesterday. It remains to be seen whether that signals a change in attitude or whether it is an attempt on his part to look good in the eyes of the court.
I also accept that the father has had significant lapses in his efforts to re-establish his relationship with his daughter. Examples are:
·He claimed to have tried to call his daughter by telephone, yet when asked for proof of telephone records the only materials he has provided (on 2 July 2013) were two photographs of telephones which showed a total of seven attempted calls on two days in January 2012. (The request for that information can be seen from the Annexure “B” to the mother’s affidavit and the photographs of the telephones are now Exhibit “F3” in these proceedings.)
·A further example is that the mother had no contact from the father for a period of approximately a year after the interim orders of December 2009 ran their course and were subsequently not renewed in any form following an unsuccessful Family Dispute Resolution Conference.
These are examples of lapses in the father’s efforts to re-establish his relationship with his daughter and I cannot help but conclude that these lapses on the father’s part belie his internet claim as late as 2 July 2013 where his posts said:
Dear X, I have been fighting for you since the 21 September 2009 and have never stopped the fight for a single day.
I conclude that that statement is either a massive exaggeration or the father is deluded. Dr R concluded that the father was non-delusional during his interview on 20 November 2012.
It is clear that the child’s relationship with the father’s son - her sibling in the father’s household - is non-existent. Similarly, it would appear that her relationship with the father’s partner is non-existent.
Luckily, the child has not yet lost all ties with her father’s family. In this regard, it is very pleasing to note that the mother facilitated some very pleasant contact between the child and the paternal grandparents as recently as April 2013 when they visited from Queensland. It seems clear that there will be continuing fruitful communication between the child and her paternal grandparents.
In Bright and Bright v Bright and Mackley,[6] the late Treyvaud J said:
Kay J, in a decision to which I was referred, of Stevens and Lee (1991) FLC 92-201, made remarks which are similar to those which others may have made and certainly which I have made on occasions.
His Honour was at pains there to point out, as I do now, that it is very important for children's proper upbringing and development that they have contact with a much wider family than merely the parents of the relevant child. It is very important for a child to understand that he or she is part of a wider family, that he or she has grandparents on both sides, uncles, aunts and cousins, so that the child grows up feeling part of an extended and supportive family.
[6] Bright and Bright v Bright and Mackley (1995) FLC 92-570 at page 81,658
In Stevens and Lee, Kay J had said:
For my own sociological part, I would say that the more loving, caring people this child can have contact with, the better for the child. The greater exposure the child can have to its biological links with its paternal grandparents, the better for the child, short and long-term. [7]
[7] Stevens and Lee (1991) FLC 92-201 at page 78,385
One can hope that in this case the paternal grandparents may be able to assist the parties to bridge the enormous gulf that divides them.
Each parent’s willingness and ability to facilitate and encourage the relationship with the other parent
I pause to note that since 7 June 2012 this consideration has “disappeared” from section 60CC. However, because these proceedings were commenced prior to that date, it is a consideration that is still there in black and white and applicable to this matter. I think it is unfortunate that Parliament saw fit to remove it as a consideration. While it is still a factor one can consider under “any other fact or circumstance” at the end of section 60CC, I think it is unfortunate that it is not “flagged” for every occasion that one looks at section 60CC.
In this matter, I must consider the willingness and ability of the parents to facilitate and encourage the relationship with the other parent. It is my view that the father is severely lacking under this criterion. When he was asked if he could say anything nice about the mother the only thing he could refer to was the fact that the mother had dressed the child well for the interview with Dr R.
His more public statements about the mother have been appalling.
On a posting on his website [detail provided] in late 2011 the father had placed the following underneath photos of himself and the child:
The family misses you very much, X.
Centrelink and Child Support … helping criminals Australia-wide!!
You have to love Child Support and other government departments … Basically they reward criminals for kidnapping, abducting, cheating, stealing, destroying families and a lot more.
YOU DO NOT REWARD CRIMINALS, YOU JAIL THEM ... KIDNAPPING IS A CRIME.
If you steal a child you go to jail. That’s it. Kidnapping is a crime. But no Child Support and other government departments reward women who kidnap, abduct, cheat, steal, etc ….. What a wonderful world we live in. Anyone would think Australia is a third world country with no rules. Well, Australia does have rules BUT if you’re a father then you are basically stuffed!!
How the game works ….
Women … find a guy with three C’s … CAR, CASH and C__K.
It is not hard to work out that he means “car, cash and cock”. It continues:
Get pregnant. Oh, it doesn’t matter how many guys you sleep with, just get the sperm and you’re set for life!!
I will not now read out the whole of it, but I incorporate it for the purposes of my Reasons; the parties have seen it and it is an annexure to the father’s affidavit. It goes on in that vein at considerable length and then at the end under a bold hearing “Stolen Daughter” the father posted this:
My daughter was stolen (abducted) from me (her father) in September 2009 by her mother. Please help me bring my daughter home safely to her father.
I have exhausted everything I can and have done everything in my power legally to recover my daughter. The last step is a civil litigation lawsuit in the Supreme Courts of Australia. It has already cost me over $24,000.00 in my fight so far and I now need to move forward with a lawsuit against my daughter’s mother for abduction, lies, cheating the system and prove that what she has done is illegal against the federal laws of Australia. Why is she not in jail???
Under a heading with the child’s name in large letters, the father’s posting that was still on the internet on 2 July 2013 – that is only the day before yesterday – read as follows:
Daddy loves you and misses you so very much.
I’m always with you and you’re always with me in everything I do. You are my world.
I am doing everything I can legally through the Australian Federal Courts and Family Court to have you safely returned.
Your family loves you and misses you so much.
Dear X, I’ve been fighting for you since 21 September 2009 and never stopped the fight for a single day. Nanny and poppy have also been fighting for your return also since 21 September 2009. We love and miss you so much and will never give up the fight for you.
The system here in Australia is failing both yourself, your father and your grandparents.
The system allows mothers to abduct children and then keep them all from their fathers and family. In time you will understand what this is all about.
When you are older you’ll be able to read all the letters, court documents and paperwork so you will then know the truth.
Love always, Your Dad. (Mr Kellaway)
X is a victim of parental child abduction and parental alienation both of which are federal crimes.
X was abducted on 21 September 2009 from Queensland.
The site then appeared to be joined to a posting by a group called “Aussie Dads” and continued in a similar vein. Again, I will not read the whole email but I incorporate it into my reasons.
I felt it appropriate to warn the father about the provisions of section 121 of the Family Law Act both yesterday and the day before. He says he has removed the postings but on the “Aussie Dads” site there was still a reference to a book which the father says he is writing called “A Stolen Life”. The claim is that it is about “Australia’s new stolen generation” and is “a true life account of parental child abduction”. It clearly identifies the father by his name.
When I consider all of that I find that I have little faith that the father will encourage the relationship between the child and the mother. I will, therefore, be making carefully worded orders in relation to internet postings and non-denigration.
I do not have the same concerns about the mother promoting the father’s relationship with the child. In this regard, I note the following:
·Firstly, she consented to orders for the father to spend time with the child on a regular basis in January and February 2000 and the father then did very little for a period of approximately 12 months after a Family Dispute Resolution Conference failed to result in further agreement;
·Secondly, her position has consistently been that he should have contact starting off at a contact centre and then as agreed; and
·Thirdly, she provided telephone numbers for contact but the father appears to have given up on successful telephone contact after very little effort indeed on his part.
The practical difficulty and expense of the child spending time with and/or communicating with a parent
Although the father now lives on the North-West Coast, he makes that out to be a more significant hurdle that it really is. If he is serious about having contact with his daughter, he could very easily overcome his transport difficulties to which I have already referred, and I see as being virtually non-existent in any event.
I pause to note that in my travels sitting in various locations around this country as a Judge of this Court, I have experienced fathers who have been prepared to travel many hours just to spend a few hours with their children. Indeed, I well recall one instance when I was sitting in Adelaide where a father from outback South Australia was prepared to drive for seven or eight hours in each direction just to spend a few hours with his child. Tasmanians sometime forget what a small island this really is.
The capacity of the parents to provide for the child’s needs
There is nothing in the evidence that causes me concern about the mother’s capacity to provide for the child’s physical, emotional or intellectual needs.
The father certainly has capacity to provide for the child’s physical and intellectual needs, however, I have some serious concerns about his ability to provide for her emotional needs. I have referred to his attitude to the mother already, but it is clear to me that he puts his own emotional needs ahead of the needs of the child.
Dr R clearly stated that the father sees this matter as one of his “rights” or his “entitlement”. I accept that to be true and it is clear to me that he puts what he perceives to be his rights or entitlements above what is in the child’s best interest. In this regard, I refer again to section 60B of the Family Law Act 1975, which refers only to children’s rights; it does not refer to parents’ “rights” at all.
The father appears to completely lack any proper perception that the child has a strong emotional need for the mother.
He also does not appear to appreciate that the child does not need to hear his strident criticisms of the mother or read them on the internet. He does not appear to understand the emotional damage that does to the child.
The attitudes of the parents to the child and to parental responsibilities
In many respects, this consideration overlaps the one that I have just considered, so I do not propose to say any more about it.
Family violence and family violence orders
I have already referred to the restraining order and a breach. In my view, the father’s guilty plea and the 12 month behaviour bond are now mainly historical in context and are not now current concerns.
Whether it is preferable to make an order that is least likely to lead to further litigation in relation to the child
During submissions I raised the issue of whether the orders that I make should be final or interim. In relation to that, I am of the view that this matter is not ready for final orders for the father to spend time with the child because there are too many variables that could have disastrous consequences for the child.
In large part, the variables are entirely dependent upon the father because there will need to be a dramatic change in his attitude if he is to have a meaningful relationship with his daughter. In very large part he needs to realise that his daughter is also the mother’s daughter. The child inherited 50% of her DNA from him, but she also inherited the other 50% from the mother. Consequently, his criticisms of the mother are, in effect, an indirect criticism of his daughter. They are certainly, as I have already said, a failure on his part to recognise his daughter’s right to have a meaningful relationship with both of her parents. In my opinion, there is also a failure on his part to recognise his daughter’s emotional need for her mother.
I am of the view that there should only be interim orders in relation to the father’s contact with the child.
Should the parents equally share parental responsibility?
In my view, the simple answer to that question is “No”. Dr R stated that equal shared parental responsibility would not work given the level of hostilities and I agree completely with him in relation to that. It is just not in this child’s best interests for the mother to have to consult with the father about long term decisions in relation to such matters as education and health. The simple fact is that there has been no such consultation or discussion between the parties for some years and at this stage, at least, there is no sign that the situation will change.
The Orders
I propose to make a final order allocating sole parental responsibility to the mother. In doing so, I am very mindful of the decision of Murphy J in Runcorne & Raine,[8] but in my view, this case is one where there should be sole parental responsibility. However, I will require the mother to provide the father with information about the child’s education and health or, at least, facilitate the provision of that information to the father.
[8] Runcorne & Raine [2008] FamCA 837
To put it as bluntly as I can, this case was never one where the father would have succeeded in obtaining an order that the child would live with him. He appeared to accept the reality of that in his discussions with Dr R and indeed, in his “half-hearted” submissions in relation to the orders he sought. I say “half-hearted” because he still found it somewhat difficult to entirely concede that point in his submissions; he said that when the child reaches high school, she should be able to decide that she might want to move and go to school in (omitted).
In relation to the interim order for the father’s time with the child, I have quite deliberately not referred to it being “at weekends” or “Fridays” or on any day. It is to be at times and on such dates as may be determined by the staff of the (omitted) Children's Contact Service (“the service”). There are other pressures on the (omitted) service, as there are on contact services all around the country; they have to fit other people in as well and it is a matter of what can be best arranged. I note that the father does not work and therefore it seems to me that he is available from Monday to Sunday. However, from Monday to Friday in most weeks the child will be going to school so it will also be difficult in that respect.
So when I weigh all of that up; not only the convenience of the mother and the father, but the fact that the child has to go to school and the fact that the contact service has other people that it needs to accommodate, the child’s time with the father will be on dates to be determined by the staff of the service.
There will also be a notation that it is envisaged that the father’s time to be spent with the child in accordance with the order will initially be in the range of one to two hours a fortnight. It is a notation only because we need to have confidence that the staff of the service will facilitate what is not only operationally possible for them, but what is also in the best interests of the child. That notation is not meant to fetter the discretion of the staff at the service in any way in relation to either the frequency or the duration of such visits. It will be up to the staff to decide whether it should be more frequent or less frequent, or for longer or shorter periods.
It is my view that the adjourned date should be far enough into the future to allow some significant contact to take place. I completely reject the father’s view that it should only be for two weekends, or possibly three. In my view, I should adjourn the matter for approximately three months. I do not know how quickly this will get off the ground and, because I am leaving the discretion to the contact service how frequent the times will be arranged or for how long those times will be, the service needs to be given a reasonable amount of time for things to happen and for there to be a report.
So the matter will be adjourned for mention in Launceston at 9.30 am on Wednesday, 9 October 2013. For the father’s benefit, it is only a mention of the matter and not a further defended hearing. I will simply be asking for a “progress report”, essentially to see where the matter is going.
I should also add that I contemplated making orders that the father attend some counselling and/or a post-separation parenting course but I concluded that, unless he is willing to avail himself of such assistance, an order to that effect would be pointless. However, it is my view that the father needs some assistance and I would suggest to him that he either speak to his general practitioner about some possible counselling or that he approach Relationships Australia, Centrecare or some similar organisation for assistance on the North-West Coast. It is up to him whether he does that or not.
I certify that the preceding ninety-four (94) paragraphs are a true copy of the reasons for judgment of Judge Roberts
Date: 31 January 2014
Key Legal Topics
Areas of Law
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Family Law
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Equity & Trusts
Legal Concepts
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Injunction
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Remedies
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Procedural Fairness
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