Leitch and Border

FEDERAL CIRCUIT COURT OF AUSTRALIA

LEITCH & BORDER

[2014] FCCA 2385

Catchwords:
FAMILY LAW – Parenting – high conflict – concerns about both parents’ parenting capacity – on children’s best interests not to finalise proceedings but review arrangements in 6 months.

Legislation:

Family Law Act 1975, Pt VII, ss.60B, 60CC, 61DA, 65DAA

Applicant:

MS LEITCH

Respondent:

MR BORDER

File Number:

DNC 555 of 2013

Judgment of:

Judge Harland

Hearing dates:

30, 31 July 2014 and 1 August 2014

Date of Last Submission:

1 August 2014

Delivered at:

Darwin

Delivered on:

17 October 2014

REPRESENTATION

Counsel for the Applicant:

Ms Bolton

Solicitors for the Applicant:

Northern Territory Legal Aid Commission

Counsel for the Respondent:

Ms Torney

Solicitors for the Respondent:

Torney Legal Pty Ltd

Counsel for the Independent Children's Lawyer:

Ms Romeo

Solicitors for the Independent Children's Lawyer:

Margaret Orwin Barrister & Solicitor

ORDERS

That this matter be listed for mention on 28 April 2015 at 9.30am.
That the mother be at liberty to obtain a passport for X born (omitted) 2000 and Mr N’s consent is dispensed with.
That the Independent Children’s Lawyer have liberty to relist this matter on 7 days’ notice to the other parties.

Notation:

The court notes that the interim orders the parties agreed to on 1 August 2014 will continue.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 555 of 2013

MS LEITCH

Applicant

And

MR BORDER

Respondent

REASONS FOR JUDGMENT

Introduction

This is a concerning case. X is 14 years old. Y is 4 years old. X’s biological father is Mr N but she grew up in a household with her mother and Mr Border. X refers to Mr Border as her father. He is her psychological father. X knows Mr N is her biological parent but she does not have a relationship with him. I will refer to him as Mr N. She has had superficial contact with him via Facebook. The mother and Mr Border are Y’s biological parents. For convenience I will refer to Mr Border as the father throughout this judgment.
The mother and father were in a de facto relationship for 10 years. They separated in April 2012.

Issues in dispute

This three day hearing has been confronting for both parties. Both parties had to hear very difficult things about their parenting deficiencies and the negative impact of their behaviour on their children. There were no outbursts by either of them. I watched them carefully and both appeared to take in what was being said.
To their credit the parents agreed to some orders early in the proceedings. They also agreed to further orders at the end of the hearing. This is also to their credit as it would have been difficult for both of them. By agreeing to those orders the parents have shown a willingness to implement change. The challenge now is for them to follow through.
The issues I still have to determine are:
a)On what terms the orders should be made being:
i)An interim basis for six months;
ii)A final basis but with the Independent Children’s Lawyer (“ICL”) remaining involved for six months with the ICL having liberty to apply; or
iii)A final basis with the ICL remaining involved for nine months with the ICL only being able to relist within six months and the parties having liberty to relist for a three month period after that.
b)Whether or not the mother should be able to obtain passports for the children without the consent of the father and Mr N.
c)What orders should be made obligating the parties to attend counselling and or courses;
d)Whether or not the father should be restrained from attending the children’s school/daycare.
e)Whether or not there should be orders restricting telephone contact.

Final consent orders

The parties agreed to consent orders on a final basis which provide for in summary the following:
a)the father to attend the ‘For the Kids’ parenting course as soon as possible;
b)The parties to have liberty to provide a copy of the orders to the children’s schools, day care and Department of Human Services (“DHS”);
c)the parties keep each other advised of their residential addresses and contact numbers;
d)the parties advise each other of any medical or other emergencies concerning the children;
e)the parties be restrained from denigrating each other in the presence or hearing of the children;
f)that the parties be restrained from being under the influence of alcohol or illicit drugs while the children are in a party’s care or 12 hours prior;
g)that the parties promptly remove the children from the presence of any person who denigrates one of the parties or is under the influence of illicit drugs;
h)the children spend Father’s Day weekend with the father and Mother’s Day weekend with the mother;
i)they noted that the parties agree that Mr Border will have suitable accommodation if he has a separate bedroom for X.
I have real concerns about both parents’ parenting capacity. Both parents lack insight.

Interim consent orders

The parties also agreed to interim consent orders summarised as follows:
a)the mother have sole parental responsibility for the children subject to the mother seeking the father’s input before she makes decisions;
b)children live with the mother;
c)the children spend time with the father as follows:
i)during school terms from 5.00pm Friday to 5.00pm Sunday on alternate weeks;
ii)during Christmas school holidays in 2014 and 2015 on a week about basis;
iii)from 2016 for half of the school holidays.
d)parties be restrained from allowing the children to remain in the presence of persons who are intoxicated in a private residence;
e)the father be restrained from communicating to X any negative comments about her mother and agrees to tell X they will not discuss her mother;
f)the father will encourage X to attend counselling and will participate in any session with X’s counsellor as requested;
g)the father shall collect the children at the commencement of his time at (omitted) and the mother shall collect the children from the father’s residence at the end of the children’s time;
h)the parties also agree to notations that there needs to be some flexibility about handovers as both parents are relying on third parties for transport.

The mother

The mother says that the father has been doing all he can to undermine her relationship with X. There is strong evidence to support this which I will detail further later in this judgment.
On Friday, 20 June 2014 the mother was charged with high range drink driving. She says she received a phone call from a friend who was upset who asked her to come and meet him to have a chat. She had had about five drinks of Jack Daniels and mixers at that time. She says she stupidly drove instead of walked. Her drink driving case was mentioned in the local court on 29 July 2014. It has been adjourned until 9 September 2014 to enable her to complete the For the Kids parenting program. The mother says she has been advised that she will lose her licence for 12 months. At the hearing the mother was still seeking the father have supervised time at CatholicCare NT until he completed the parenting ‘For the Kids’ course but that is not practical as the father does not have a driver’s licence and soon the mother will lose hers for a year.
The mother will lose her job in (occupation omitted) as she is required to do a considerable amount of driving each week visiting clients in their homes. The mother says she used to do (occupation omitted) around (omitted) and will pick up that work again. The mother also intends to continue her certificate studies. She says she will be able to finish her remaining certificates before she is able to take up her employment in (occupation omitted) again.
I am concerned that the mother may have a drinking problem she fails to recognise. The mother says her mother was an alcoholic. The mother’s definition of an alcoholic is someone who starts drinking in the morning and continues until bedtime. The mother gave evidence that she drinks on Friday and Saturday nights. She says she doesn’t drink when she has work the next day. A person can have a problem with drinking even though they do not drink every day. I accept that the mother does not perceive that she has a drinking problem. However there are indicators that she may have such a problem. A strong indicator is the fact that she has been charged with high range drink driving. She says that occurred after she had been drinking at home alone. A friend called her in some distress and she decided to drive. She acknowledges that it was poor judgment. She also gave evidence that she drinks six bottles of beer on average on Friday and Saturday nights. Her friend Mr W who gave evidence said that he sees the mother drink two to three times a week. He said he has often seen her drunk although ‘not falling down drunk’. It may be that the mother has a problem with binge drinking. Alternatively it may be that the family consultant is correct when she said that the mother’s drinking is a habit rather than a dependency.
The mother agreed with the ICL’s suggestion that if X sees her drinking a couple of drinks she may be unsure at her age whether one or ten drinks makes a person drunk. The ICL put to the mother that X may think her mother is an alcoholic because she sees her mother drinking often. The mother conceded this was possible.
The mother has agreed to consent orders that require her to have a zero alcohol reading when the children are in her care. The children will be in her care for the majority of time with the children spending alternate weekends with the father. It will be a test for the mother whether or not she can abstain from alcohol for that period of time. I hope that she can. Both children, X in particular, will benefit from seeing her mother abstaining from alcohol given X’s perceptions of the mother’s drinking.
The mother says she has not used amphetamines since she was a teenager and has not smoked cannabis since before X was born.
The mother was open in giving her evidence. It is indicative of her not seeing her drinking as a problem. Some of her behaviour with her friends is immature. She embarrassed X when she stood up on a chair in a pub showing her bikini under her shirt. She acknowledged she embarrassed X and her reply was rather glib saying that that was not the first time. It is an issue about parental role modelling. It is more serious than X being embarrassed because of the mother wearing thongs and socks which the mother referred to. The mother is behaving in an immature and sexual manner in front of both her children. It shows poor judgment. When cross-examined by the ICL about this incident she still did not show any insight about the undesirability of painting herself that way in front of the children.
I gained the impression from her evidence that a fair bit of time is spent on the weekend with adult friends drinking and socialising. There are children there as well who are friends with the children. The concern is that the children are often seeing adults drunk and may not be getting the attention they need from the mother. Both children need one on one time with their mother. X complains about hearing her mother and her friends talking about sex. The mother says they don’t talk about these things “right in front of her”. By this she means X was not sitting with them in the room. My impression is that the mother is not as careful as she should be about what topics are discussed when children could be within earshot. I think X hears a lot more than the mother realises. She admitted this when being cross-examined by the ICL and said “I wasn’t aware”.
Soon after the mother’s relationship ended with the father she commenced a relationship with Mr P.
I accept the mother’s evidence.

The father

I have real concerns about the father as well. The father’s evidence about violence and anger issues is not convincing.
The father has an extremely poor driving record. The father does not have a driver’s license. In his affidavit he says he had too much to drink and was caught with a couple of drink-driving charges about 15 years ago and had his licence suspended. There is much that the father leaves out of his affidavit about that period.
The father was charged with assault occasioning actual bodily harm on 7 October 1995 in Queensland. The victim complained he head-butted her in the nose breaking her nose. He was convicted and fined on 23 October 1995
Exhibit C is the father’s criminal record from Queensland police. On 30 October 1997 he applied for a fine option order regarding the drink driving offence and was ordered to do 113 hours of community service. On 14 January 1998 Mackay Magistrates Court found that the father had breached the fine option order and it was revoked. The record showed he had completed no hours of community service. On 17 November 1999 he was charged with dangerous driving whilst adversely affected and was sentenced to 6 weeks imprisonment. On 20 March 2000 he made further applications for first fine options in regard to a drink-driving charge and a driving while disqualified charge and was given community service of 187 hours and 200 hours respectively. On 17 July 2000 the Cairns Magistrates Court revoked the fine option order because he had breached the orders again.
This subpoena was made available well before the trial affidavits were due. The father makes no mention of the assault charge in his affidavit and minimises his appalling driving record and attitude towards court orders, which is made all the worse because he applied for the fine option orders on multiple occasions and did not comply with them at all.
The mother says that when they were together the father drank alcohol most nights. The father says in his affidavit that he has two cans of beer two to three times a week. The father says there are occasions when he has drunk more and become intoxicated. He says there are times when he has drunk too much to dull the pain in his back.
The mother claims that when they were together the father smoked cannabis daily. She says the father told her that it helped with his back pain. (The father injured his back at work several years ago.)
The father says he was using marijuana for pain management but stopped a few months ago.
The father was verbally abusive to the family consultant when she rang to speak to him. He was intoxicated. The father apologised the next day. He said that he had taken painkillers as well and had not slept for two days because of his back pain. At times when the father is in severe pain his ability to care for the children, particularly Y will be compromised.
The father says the mother obstructed his time with the children post separation. The mother says she stopped his time because he was continuing to be abusive of her at handovers. I accept the mother’s evidence that the father was abusive at handovers and that the children were exposed to this.
The father says he travelled to Queensland and stayed there for a couple of months in late 2013 for the court case to obtain his driver’s licence back.
Exhibit D is the father’s criminal record of the Northern Territory which shows the driving whilst unlicensed charge which was aggravated by driving with a mid-range blood alcohol content on 2 December 2009.
Exhibit E is an extract from the Northern Territory police subpoena for an entry on 1 December 2013 where X called the police and said the mother left the house with her 3 year old brother and that she does not know where they were and that her mother drinks a lot. Police noted that they could hear the father in the background possibly telling her what to say. When police members spoke with the father he was agitated and aggressive and said he wanted his son back. When asked what his concerns were he brought up the criminal history of Mr P and said “get ready for a murder”.
Exhibit E is a record of the police attendance at the mother’s home on 1 December 2013. The police had attended the mother’s home earlier that evening to perform a child welfare check at the father’s questioning. X then later called the police and said she and the mother were arguing and the mother was always drunk. The mother voluntarily participated in a breath test which returned a zero reading. I do not believe that X would have done this without the father’s encouragement.
When asked in cross-examination the father could not think of a single positive thing to say about the mother and could not say anything positive about her parenting skills. In spite of this he goes on to talk about the children being ‘beautiful kids’, reasonably healthy and X is doing reasonably well at school. X has a 99% attendance record at school. The father does not give the mother credit for any of this and even this shows a concerning lack of insight by the father.
The parties referred extensively to the section 69ZW material produced by the Department of Children and Families (DCF). On 11 January 2013 the Department interviewed the family. Significantly X described a positive relationship with her mother. This took place after a complaint that the mother was neglecting the children and not supervising the children properly. X denied ever being locked out of the house. She says her mother would leave the door open and she had a key. X spoke positively about her mother and described having fun with her mother. She said she wanted to see her father but her mother would not let her.
The Department records note that the parents were interviewed on 14 September 2010. The father presented as shocked by the visit and told the writer of the record that X could talk to him about the situation at home. He presented as being very angry with the visitor for coming and carrying out an investigation. He presented as being angry with the visitor rather than angry with X. X was worried that the father would be angry about the visit.
The entry on 13 September 2010 records X’s school complaining about both parents’ care of X, problems with X having nits and a very bad rash over her body which the mother only took X to the doctor about after strong insistence from the school. X told school staff that the mother’s partner (Mr Border) bashes the mother and X has seen him do it. She asked if she could stay with the school staff as she was afraid to go home. Staff noted that they were very concerned that if the mother’s partner finds out about what X has told the school staff he will “go off his rocker”. X also spoke to the Department directly after having spoken to Kids Helpline. She said that her father was angry most days. X expressed fear that if her father found out that she said anything he would hurt her and her mother. The school principal advised the Department that the family had relocated from Western Australia, the mother presents as being very quiet, the child has been talking to different people at school about her home situation and about family violence. He said when the school contacted the mother about X having head lice the mother appeared concerned about the stepfather not finding out. The mother refers to things not going well at home with lots of arguments. X had increasingly been talking about her home situation at school and the stepfather hitting the mother.
The Department substantiated emotional harm of X with responsibility attributed to both parents. In the child protection investigations summary report, X said that her mother is happy when her stepfather is happy. She said her stepfather doesn’t drink when he is angry and drinks sometimes when he is happy. She said he swears a lot and smacks her. She said he yells at her mother really badly and punches her. X reported that her stepfather tells her mother that she can’t look after the two children. The writer noted that she was subjected to angry and intimidating behaviour by the stepfather because of DCF’s involvement. The writer stated that whilst there were further concerns for X’s emotional well-being of the stepfather’s anger management issues it was thought that DCF’s involvement would likely further inflame the issue. Also the school is able to monitor the situation as X attends regularly. The writer also noted that there was no information to indicate that there had been involvement by the police or child protection authorities in Western Australia or the Northern Territory because of family violence issues.

There is an entry about the father’s attendance at the daycare and the removal of Y on 18 December 2013. The entry notes that Y had been attending the centre consistently over the past couple of weeks since the new directors started and the child was happy and clean. There had never been any signs of bruising or anything to indicate that the mother has been physically abusive towards him. Staff members advised that they were concerned about X’s behaviour towards the stepfather as she appeared to be infatuated with him.
The father was not as open when giving his evidence. I prefer the evidence of the mother with respect to the parties’ alcohol use and family violence.

Mr W

Mr W is a friend of the mother’s. He prepared an affidavit during the final hearing because of allegations X made a few weeks before the hearing. He was cross-examined.
Mr W says X called him upset and told him that Mr D said that Mr D had told her he wanted to sleep with her. He went round to see her and confronted the mother and later Mr D. Mr W says he has known Mr D most of his life. He says Mr D is drunk most of the time. He says he never heard Mr D say anything like “I want to fuck your daughter” to the mother. He says if he had he would have “belted him”.
Mr W sees Mr D most days and says Mr D drinks every day after work.
He also says that X was upset at seeing her mother sitting on Mr D’s lap when she was drunk. He says in his affidavits that it wasn’t really appropriate “just stuff the teenage girl doesn’t really want to see.”
Mr W sees the mother four or five times a week and the mother drunk “maybe twice a week” usually on the weekends but says she is not “rolling drunk”.
Mr W gave his evidence candidly. He was very nervous when giving his evidence and he explained that a close friend of his had just died in a car accident the night before and he was shaken up by that. I accept his evidence.

Family violence

The mother alleges that the father was violent during the relationship and post separation.
The mother says the father verbally abused her in front of the children.
The mother says there are occasions where the father assaulted her in front of the children. She says the first time was when X was in her arms and was about 2 years old. She says the father shoved her off the veranda onto the gravel. She says she called her stepfather who came and collected her and X and took them to Perth where she stayed with her mother and stepfather. She says while she was in Perth she and the father reconciled and they lived in Perth together. The father says the mother was drunk and fell off the veranda.
In 2011 the mother says that she was in the car taking the children to the park when the father started accusing her of cheating. She says the father reached across to the passenger side of the car and started clawing at her. She says X started screaming and she put a foot down on the accelerator and left. She says she had scratch marks on her arm and shoulders.
In early February 2012 the mother says the father put his hand around her throat and squeezed it and said “I will snap your fucking neck you cunt”. She says the children were present and saw it.
The mother says that for a while things were amicable between them post separation and she dropped the children off to the father on the weekends. She says that the father started verbally abusing her in front of the children each time she dropped the children off so she stopped the visits in June 2012. The father did not see the children for about 6 months until they entered into a parenting plan although he remained in telephone contact with X.
She says that soon after they agreed to the parenting plan the father stopped adhering to it, verbally abusing her and refusing to return her belongings so she did too.
There were also periods in 2013 when the father went to Queensland without telling the mother.
The father says he never initiated any physical violence. This is implausible, particularly given the anger he has displayed at times.
The mother says that the father’s behaviour was erratic after he came back from Queensland in November 2013. He attended X’s school and abused and threatened X’s teachers. The mother says that the school was going to seek a restraining order against the father but decided it was not necessary as it was near the end of the school year.
On 18 December 2013 the father attended Y’s day care centre and removed him. Ms C works at the centre and called the mother to tell her. She swore an affidavit in these proceedings. She says the father threatened a staff member which was reported to police. She was to be available for cross-examination but was overseas at the time of the hearing and attempts to contact her as arranged failed.
The father said he spoke to Ms C in a quiet tone and told her that he would be “after her job” as she had no right to hide Y from him.
The father knew that what he was doing was confrontational. He went about things completely the wrong way.
The mother went to the day care centre and saw X getting in to a car with the father. A friend of his, Mr J, was driving. She saw Y sitting in the back seat without a car seat. She says she followed them but they drove up to 130 kilometres an hour. She was talking to police who advised her to stop following them. She did so.
The mother applied for a recovery order. I made the recovery order. The father appeared in court by phone and refused to hand the children back. The police had to retrieve them.
This whole episode reflects very poorly on the father. The mother was not cross-examined about her version of events.
It is also inexplicable that the father did not seek any interim time with the children even after he was legally represented.
I am satisfied that there has been family violence and that the family has instigated violence against the mother, at times in front of the children.

The mother’s relationship with X

Currently the mother’s relationship with X is damaged. The mother knows from comments that X has made that she does not like the amount of drinking the mother does with her friends and is uncomfortable with the mother having boyfriends. If the mother wants to repair her relationship with X she needs to prioritise her. This does not mean that she cannot see her friends and cannot have a boyfriend but it seems clear at the moment that X does not feel that she is a priority. The mother has to deal with X’s perception that she is not her mother’s priority even though she disagrees with that perception.
The family consultant notes at paragraph 143 of her report that a recurring theme that X has raised, which appears in subpoenaed documents, is that the mother does not talk to her and does not listen to her. The mother says they talk all the time. The mother says because she did not always give X the answer she wanted does not mean that she is not listening to her.
At paragraph 152 of the family report the family consultant says that the mother needs to give X the time and attention that X appears to be craving. The family consultant also notes that it will be hard to rebuild trust between X and the mother. One of the benefits of the mother losing her licence may well be that she will have time to focus on X. The mother needs to make herself available for one on one time with X and needs to be persistent about it even if X rejects her.
The mother says she had a close relationship with X until after separation. She says X did not like the fact that she had a relationship with Mr P. The father sent Mr P threatening text messages on his phone in December 2013 and March 2014. The mother says the relationship started to improve after she broke up with Mr P in February or March 2014.
The mother says she thinks X has made up hurtful things about her because she wants to live with the father. The mother says that she gets whatever she wants when she is with the father and there is no discipline in his household.

The father’s relationship with X

The father has been undermining X’s relationship with her mother for months. He has helped drive a wedge there. It is telling that even when under scrutiny of cross-examination he could not say a single positive thing about the mother. This is concerning because if he spends time with the children, unless he changes, he will undermine the relationship both children have with their mother. This has the potential to cause serious long term psychological damage to the children. He has already damaged X. Even after reading the family report he has done nothing about it. He sees nothing wrong with his behaviour.
Although he probably sees gains in his approach now as X is expressing strong views about wanting to live with him there is a real potential for this to work against him in the future. He has failed to consider that X will realise that part of what makes her comes from her mother. It also comes from her father. It is part of her sense of identity. It is damaging for her to hear nothing positive about her mother from the person she considers her father and who she is close to. He shows no capacity to provide for X’s emotional and psychological needs.
The father has been actively undermining X’s relationship with her mother. That is very clear from the text messages exchanged between them. X knows how much the father disapproves of her mother. Whether intentionally or not he has encouraged her to say bad things about her mother and he reinforces this. He says that teenage girls need their mothers yet he has been driving a wedge between them. Y is too young to be influenced by the father in this way but it is of concern that he may be subjected to the same treatment when he gets older. The father does not recognise this is emotional and psychological abuse.
I accept the mother’s evidence that she did not understand the term grooming to be a sexual reference. The mother understood the term grooming to mean the father putting words into X’s mouth and telling her what to think and what to feel. The mother is not sophisticated. She said that some people have suggested to her that there could be something sexually inappropriate going on between X and the father. The mother says her concern about X’s relationship with the father is that the phone calls and text messages were constant. The mother says she spoke to her counsellor about that she did not feel she could do anything.
The mother says that X only felt negatively about her boyfriend Mr P because of things the father put in her head. The father was certainly vitriolic towards Mr P and sent him threatening messages. Sometime after the mother’s relationship with Mr P ended the mother started a casual sexual relationship with her friend Mr D. Again it shows a lack of insight as in response to the ICL’s question about this the mother said the problem for X is that they are not her father. It is not to be unexpected that a teenage girl would find it unsettling for the mother to have these relationships with men when she has not been able to see the person who she considers to be her father. Whilst the mother may feel that X’s attitude is unjustified it is to be remembered that X is still a child. The mother is the adult in the relationship. It may also be unsettling for Y.
The mother says she and Mr D are not boyfriend and girlfriend and are just having a casual relationship. That being the case it would be better for the children’s sake if the mother sees Mr D away from her home or when she does not have care of the children. It would be a different matter if the mother was in a serious committed relationship which she believed to be long-term. Parents need to be sensitive to the children having to adjust to having someone new in the household.

The father’s undermining of X’s relationship with her mother

At paragraph 65 of the father’s affidavit he says:
“I have in no way tried to influence X against the mother rather it has been X’s experiences which has had led her to form the view of her mother and thus resulting in a poor relationship with her.”
This paragraph is telling as it is clear from the text messages that the father himself tendered in the DVO proceedings that he has actively encouraged X’s negative views of the mother. I refer to some examples below.
The father also says in his affidavit that he has told X to call the police if she thinks the mother is drunk or unable to care for them. He says that X did this on one occasion and the mother returned a zero reading.
The mother says that the father is determined to undermine her relationship with X in order to make her life difficult. She says that there was an incident where she was at home making dinner and wondering where X was. She found out that X was at the pub with her father. She told X that she had to arrange that in advance and couldn’t just go. The mother went to the pub and confronted the father. She says the father stood very close to her face and said “I’m going to make sure your world ends in misery and pain.” X was standing behind the mother at the time. The mother says other people started to stand as they thought the father was going to head butt her.
The mother believes the father encourages X to spy on her. She has password locked her computer and can tell if someone has tried to access it. She has found that someone has tried to access it on a few occasions and also found evidence that someone has been in her bedroom.
Exhibit A is a bundle of the text messages between the father and X for the period April 2013 to February 2014 being 163 pages of closely typed text. Some examples of the texts are:
Father to X 27 December 2013 “mum was in court it is all, I’ve got adjourned till the 10^th of Jan, she has opposed what we have asked for, must want to continue being a useless drunk.”
Father to X 16 February 2014 “you know your the better person (omitted) sorry have to put up with this shit luv it both so much” [(omitted) is the father’s nickname for X.]
Father to X 11 February 2014 “you know by now not to let what she says get to you (omitted), asked three have a great life ahead it will be worth the wait”
There are several text messages where the father keeps X updated about the court proceedings. In one message he asks X to take photos of bottles because she should be contacted soon about her solicitor. He asked X to note down the mother’s numberplate and give it to him. These are clear examples of the father involving X inappropriately in the proceedings as well as undermining her relationship with her mother. He is asking X to gather evidence against her mother in support of his case. The father denied asking X to “spy on her mother and dob on her”. His own text messages show that this is exactly what he has done.
The father shows an extraordinary lack of insight by sending X a copy of a threatening message he sent to Mr P for her “entertainment”.
There is no single instance in the numerous text messages where the father encourages X to think positively of the mother. There is the opposite. He tells X that she is a better person than her mother ever could be. When X called the mother a “troublemaking bitch” the father just asks “what’s she done now?” He also encourages her to put things up on her Facebook page so that everyone can see.
The father also discourages X from having a relationship with Mr N and from meeting him saying “you don’t go near him without me, make that clear to both the dopes please darlin”.
Exhibit B is Mr P’s affidavit from the DVO proceedings where he sets out threatening text messages the father sent him in December 2013, January 2014 and February 2014. The father candidly admitted when cross-examined that he sent those text messages.
The father said in cross-examination that he does not believe he has been emotionally abusive. He could not see that he has asked X to take his side against the mother. The father lacks insight into the impact of his behaviour on the children.
The father had great difficulty, when being cross-examined, accepting the possibility that X tells him bad things about her mother because she knows that is what he wants to hear. In fact he rewards her for that. X can be in no doubt that the father feels nothing but disdain for the mother. X receives a lot of attention from her father and receives positive reinforcement from him when she reports to him negative things about the mother.
The text communication between the father and X is extensive. Although as Ms Torney pointed out in re-examination many of those are a single conversation taking place over several messages. This gives some context to the volume of texting, although the amount of texting is of concern. It is the content of those texts which is extremely concerning.

Much of this case has focused on X but it is important not to forget that Y’s best interests also need to be considered.
Y and X have a very close relationship.
Y has been more sheltered from the conflict between the parties because he was so young when they separated. I am satisfied that he has been exposed to the conflict, particularly at handovers.
Hopefully the parents will be able to better protect both children in the future but this will be dependent on their gaining insight and modifying their behaviour. It will be hard for both of them and will require their commitment.

Mr N

Mr N found X about 18 months ago and has tried to reconnect with her. The mother says that she wants X to have a relationship with her biological father but that she cannot force it and it is something that X will need to make a decision about.
The mother and Mr N say that he called the mother and father’s household when X was about two years old. The mother says she heard the father say to him “you come anywhere near us and I’ll shoot you in the fucking head” or words to that effect.
After the mother and father separated Mr N contacted X on Facebook. The mother says that during this period the father was away X communicated with Mr N. The mother says X was excited about communicating with Mr N and talked about meeting him and her half siblings. The mother says that when the father returned from Queensland X’s attitude changed and X stopped talking to Mr N.
Mr N was initially named as second respondent in these proceedings. He appeared by telephone at the first couple of directions hearings but did not comply with orders to file any material. He was interviewed by the family consultant by telephone and swore an affidavit in support of the mother’s case. He was called as a witness in her case.
He says he and the mother were in a relationship for about 4½ years and separated when X was 8 months old. He says he has tried to have a relationship with X.
He says that in about 2002 the father told him to stay away from X and threatened to “put a bullet in my head” if I tried to contact her. He says that sometime between August and December 2013 he managed to make contact with X via Facebook and talked quite a few times on the phone. He says he introduced X to his 16-year-old stepdaughter Ms C and that the two girls hit it off and spoke on the phone several times. He says that around the time of the incident at the daycare centre when the father attended and took Y, X cut off all contact with him and Ms C.
He also says that since the mother started the court proceedings the father has called him and made derogatory comments about the mother and asked him to “be on my side”. He says that the mother also asked him to be on her side but that he does not want to risk any possible relationship with X by getting in the middle of the dispute. Of course he has got in the middle of it by providing an affidavit for the mother instead of filing a response and affidavit in his own right as he was entitled to do and encouraged to do.
He says he thinks X should remain living with the mother. His comments about the mother’s parenting capacity are not helpful to the court as he has not had any contact with her and seen her in a parenting role since X was a baby.

Mr N was not an impressive witness.

The family report writer

The family report writer described the father as a “controlled, but slightly self-righteous man”. His mother was violent and abusive towards him when he was growing up. He said that the mother “brought all of the current difficulties upon herself”. He denied being violent towards the mother saying he only ever acted in self-defence of himself and the children.
The mother also had a difficult childhood. Her mother was an alcoholic. Her father killed himself when she was 3. Her step-father also killed himself after her mother died from cancer connected to her alcoholism.
The mother feels that the father is manipulating X. She says X would never leave Y therefore she must be cast as a bad mother so both children can live with the father.
The father told the family report writer that he remembered child protection authorities coming to the home. He said he thought it was because X wanted to speak to someone about the mother but they blamed him instead. His version conflicts with the records produced by DCF. X was reporting family violence and being afraid of her father being angry with her and the mother.
As the family report writer notes both parents had childhoods characterised by violence and neglect. This has impacted on both of them as adults.
The family report writer commented that the mother appeared child-focused and credible but that she has also potentially exposed X to events and people she should not have. She is holding down a job and studying which is inconsistent with allegations of her drinking to excess. With respect to Ms Leitch’s drinking what she describes is a pattern of binge drinking. As I have stated elsewhere I think the level of her drinking is concerning. I think the father downplays his drinking.
The family report writer noted that a contributing factor to X aligning herself with the father is that she has not been getting the attention she needs from her mother. The father makes her feel grown up and special. She receives positive reinforcement from him for spying on her mother.
She says X has been taking on too much responsibility for Y but has also taken on a role with the father which has led to her being parentified and both parents need to take responsibility for this and address it. She refers to instrumental parentification which is what the mother has asked X to take on with respect to carrying out physical tasks for the family. Whilst the father has engaged X in emotional parentification by having her taking on the role of confidant and placing her in the middle of the conflict.
The family report writer expresses the view that people with a history such as the father often defend themselves by deflecting blame onto their ex-partner, describing their ex-partner as irresponsible or dangerous and themselves as responsible and safe. This is certainly consistent with the father’s presentation in court. He sees things in very black and white terms. Everything about the mother is bad whereas everything he has done has been for the children.
She expressed the view that the father has successfully alienated X from her biological father and is trying to do the same with the mother. I agree with this assessment.
When cross-examined by the ICL the family report writer expressed concern that the relationship between X and the father is not healthy. X described the father as her best friend. Her knight in shining armour. The references in the text messages between them do not reflect a relationship which is a normal developmental stage for a 14 year old. The content of the conversations between them are concerning. The father very much portrays himself as the knight in shining armour, she just has to wait a little longer and he will come and save her. He is giving her false expectations rather than telling her that the adults are sorting things out and she should concentrate on other things. Neither parent has given X this message.
The family report writer has recommended that the father and X not text for about 6 months so that the mother can concentrate on strengthening her relationship with X without being constantly undermined by the father, which is what is happening currently. The family report writer acknowledged that this is impossible to monitor and relies on the father not colluding with X.
The family report writer says the father’s strong sense of entitlement and self-righteousness would have contributed to his conduct at the child care centre. I think this is a significant statement. I think the father can be aggressive and angry with people but does not perceive himself that way.
The family report writer says she encourages Mr N to write to X and to keep writing to X even if she doesn’t respond and throws the letters away. This is because it is important for X to know that her biological father has maintained an interest in her and will be there for her when she is ready. It is also important for the father to give X the freedom to explore her relationship with Mr N.
The family consultant indicated that there are risks in finalising the matter now. Both parents have deficiencies. She also acknowledged that there is a risk that if the proceedings are not finalised now and the father continues to undermine X and the mother’s relationship, the parties will be back in court in 6 months time with nothing having changed.
With respect to Mr N the family consultant said there is no relationship between him and X and she has been so influenced by the father that it will take a long time for any relationship to develop. She noted that the father has no curiosity about his biological parents but that is unusual and most young adults become curious about their history.
She expanded on what she meant by instrumental and emotional parentification. She also expressed concern about the father talking about X needing to know the truth, as parents, as the adults, need to shield children from the adult conflict. It is also the father’s truth in his eyes not the objective truth.
The family consultant also expressed concern that at 14 years old X is still at an impressionable age where she starts to fantasise about future partners. The concern here is that she does not have a healthy normal relationship with her father. One day X may look back at all the negative comments that the father makes about the mother and might start to wonder what that says about her given she has a biological connection with her mother. She pointed out that often the parent engaging in that contact gains in the short term but it does and often does backfire later.
On balance the family consultant thinks that the mother is the better parent currently. X needs to be encouraged to seek out her peers as confidants rather than her father and the mother needs to take the opportunity to strengthen her relationship with X.

Family consultant recommendations about counselling courses and other programs

To her credit at the time of the final hearing the mother commenced in the For the Kids course. The mother says that she was already finding the course beneficial. The father who has not even enrolled in the course has now consented to orders requiring him to do so.
The mother says she has made enquiries about domestic violence counselling as recommended by the family consultant but has not been able to find any such counselling available in Darwin. The mother does have a counsellor that she sees in (omitted) but says her counsellor only works on Thursdays and she often cannot see her because of her own work commitments. This will change once she loses her licence.
With respect to counselling services being available in Darwin the issue then arose as to the availability of public transport. I told the parties that I would need them to provide information about that.
The mother says X has been extremely resistant to her attempts to take X to attend counselling either through the (omitted) clinic or Headspace in (omitted) which specialises in counselling for teenagers.

Passport

The mother wants to be able to obtain passports for the children so that she can take the children on a holiday in future if she can afford it. The father opposes this. In effect he said the children can go overseas when they are adults and that the mother can’t even look after the children in Australia. His response was harsh and short-sighted. Children can benefit from overseas travel. It is possible that the children may have overseas schooling excursions in the future. With respect to Y, I do not need to determine this now as the mother does not have a holiday planned. This can be revisited in six months’ time. With respect to X given Mr N’s lack of involvement in X’s life it is appropriate to dispense with his consent now to avoid the potential need for the mother to make a further application in the future.

Applicable law

In cases about children under Part VII of the Family Law Act 1975 the court must regard the best interests of the child as the paramount consideration: s.60CA. What this actually means in an individual case is informed by a number of statutory provisions which I will briefly discuss below.
There are objects set out in s.60B that help to clarify what Part VII aims to achieve when it talks about best interests: s.60B(1). There are also principles that underlie these statutory objects: s.60B(2).
The concept of best interests is explained in s.60CC. The primary considerations are set out in s.60CC(2) and include the benefit to the child of having a meaningful relationship with both parents, and protecting the child from harm arising from abuse, neglect or family violence.
There are additional considerations set out in s.60CC(3). These include: the views of the child, the nature of the child’s relationship with parents and other persons; the willingness and ability of the child’s parents to facilitate and encourage a close and continuing relationship between the child and the other parent; the likely effect of change on the child; issues of practical difficulty and expense associated with contact; the parents’ capacity to provide for the child’s needs; the maturity, sex, lifestyle and background of the child and parents; special considerations if the child is of Aboriginal or Torres Strait Islander culture; attitudes to the child and to the responsibilities of parenthood; family violence or family violence order; issues of finality; and any other fact or circumstance that the court thinks relevant.
At the core of Part VII of the Family Law Act 1975 is a presumption of equal shared parental responsibility. Thus s.61DA creates a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. This presumption may be negated in certain circumstances (s.61DA(2)), or rebutted (s.61DA(4)).
If the presumption applies, the court is required to consider certain time arrangements as between parents and children: s.65DAA. Thus the court is required to consider equal time, or substantial and significant time, but only if this would be in the best interests of the child, and is reasonably practicable: s.65DAA (1) and (2). Equal time means what it says, and substantial and significant time is explained in s.65DAA(3):
Another important concept used in s.65DAA is that of reasonable practicality. That is explained in s.65DAA(5).

Applying the law to the facts of this case

Primary considerations

The children have a meaningful relationship with both their parents.
Both children have been exposed to family violence and high conflict by their parents. I am satisfied that X in particular has been exposed to the father being physically and verbally violent to the mother. I do not accept the father’s evidence that he has only acted in self-defence. Although the father has not realised this, he has been emotionally abusive of X. His relationship with her currently is not healthy for either of them.
The need to protect the children from harm must be given greater weight than the benefit of the children having a meaningful relationship with both their parents.
The orders I propose to make will ensure that the children continue to have a meaningful relationship with both parents but also addresses the protective factors but not finalising the proceedings as this stage. Both parents know that they are under the scrutiny of the Court and know they are being given a chance to address the deficiencies which have been identified in their parenting capacities.
X has expressed strong views about wanting to live with her father. Y is too young to express a view although clearly he enjoys spending time with both parents. There are other factors at play, which I have detailed above which means although I recognise X’s views I cannot accede to them as it would not be in her best interests to do so. It is concerning that X’s views of her parents are so polarised when in 2012 evidence from the DCF records show they were not.
I am not going to make final orders at this stage so it will be possible to review the living and spend time with arrangements to see if the parents have been able to improve. Ordinarily there would be concerns about the real possibility of X voting with her feet and moving to her father’s home. Her bond with Y is such that she won’t leave Y behind. I have concerns about the father’s ability to look after the children full time. He has not had the children in his care on his own for long periods of time. There are physical challenges in looking after a young child. It is clear that at times the father is in real pain from his back. His evidence about taking painkillers and not sleeping for two days was of concern in this regard.
I have discussed the nature of the children’s relationships with their parents, particularly X’s, above.
The orders that the parties have consented to allow the father to spend time with the children after a lengthy gap.
The practical difficulty and expense of the children spending time with their parents is a real issue in this case as for at least the next several months neither parent will have a driver’s license. Neither party produced any evidence about the availability of public transport in and around (omitted) and between (omitted) and Darwin but I do not believe it to be extensive. Both parties are relying on friends to help them with the handovers as the parties do not live within easy walking distance of each other. The mother will soon lose her job when she loses her license. The father is reliant on disability benefits. The mother would have preferred to have the father’s time supervised at a supervised contact centre but she acknowledged this was impracticable because the closest centre is in Darwin.
I have discussed the parenting capacity of the parents at length elsewhere.
I have also addressed the parents’ attitudes towards the responsibilities of parenthood. Both have been found lacking. Both have put their own needs ahead of the children. In the mother’s case this is particularly with respect to her relationships with men and her friendships. In the case of the father it is putting his emotional needs ahead of the children. Both parents have lacked insight about this. The difference between them is that the mother, to her credit, has taken on board the recommendations in the family report. She is currently undertaking the For the Kids course. The father came to court having done nothing about the recommendations and not seeing the need to. He has now consented to an order requiring him to do the For the Kids course.
I have addressed family violence elsewhere.
I think it is in the children’s best interests that final orders not be made now but that the parents remain under the court’s scrutiny for a further period. Both parents have much work to do. It remains to be seen as to whether they can turn things around and develop healthy relationships with their children.

Conclusion

I considered the alternatives put to the court including making final orders now and extending the appointment of the ICL and allowing the ICL to bring the matter back. That proposal and the variation to that proposal are not attractive because it may be that as a result of concerns the ICL has the final orders would need to be revisited in any event. It would be different if this was a discrete issue in dispute.
The mother seeks an order restraining the father from attending the children’s school / day-care because of the incident where the father removed Y from day-care. The father knows what the consequences are if he acts in such a manner again. There is no evidence to suggest that he approached X’s school or Y’s day-care in the months since even though he was not seeing the children at all. I am not satisfied that an injunction is necessary.
It is important to see if X’s and the mother’s relationship improves and the father supports that relationship rather than undermine it. This will have an impact on the final orders that are made in terms of the regular time the children should spend with each parent.

I certify that the preceding one hundred and forty-nine (149) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate:

Date: 17 October 2014

[2014] FCCA 2385

17 October 2014

Key Legal Topics

Areas of Law

Family Law

Civil Procedure

Legal Concepts

Consent

Jurisdiction

Procedural Fairness