Lewis and Dyer (No. 2)

[2008] FamCA 717

FAMILY COURT OF AUSTRALIA

LEWIS & DYER (NO. 2) [2008] FamCA 717

FAMILY LAW – CHILDREN – No relationship between the father and children - children resistant to introduction - the father agrees to orders that provide for correspondence - question about what children should be told – Comprehensive reasons for judgment and findings of fact made notwithstanding general consensus as to outcome

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336
Godfrey & Sanders (2007) 208 FLR 287
Goode & Goode (2006) FLC 93-286
Mazorski & Albright (2008) 37 Fam LR 518

APPLICANT: MR LEWIS

RESPONDENT: MS DYER

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLF 24 of 2006

DATE DELIVERED: 26 AUGUST 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Albury

JUDGMENT OF: THE HONOURABLE JUSTICE CRONIN

HEARING DATE: 9, 10 & 11 JULY; 18 AUGUST 2008

REPRESENTATION

COUNSEL FOR THE APPLICANT: MS WHEELER

SOLICITOR FOR THE APPLICANT: FARRELL LUSHER

COUNSEL FOR THE RESPONDENT: MR O'SHANNESSY

SOLICITOR FOR THE RESPONDENT: ADAMS LEYLAND

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: MS COX

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: ROBB & ASSOCIATES

Orders

1. That the parenting orders be discharged.

2. That the mother have sole parental responsibility for the children J born … January 1997 and G born … January 2000.

3. That the children live with the mother.

4. That the father be at liberty to communicate with the children as follows:

   (a)save for the restriction referred to in paragraph (8) hereof, by cards, letters and presents addressed to the children care of the Independent Children’s Lawyer until 1 March 2010 which shall be vetted by the Independent Children’s Lawyer and if in her discretion, the cards, letters and presents are appropriate to be seen by the children, she shall forward them to the children care of the mother’s post office box address at Albury;

   (b)from 1 March 2010 by cards, letters and presents to the child J addressed to him care of the mother’s post office box address in Albury;

   (c)from 1 March 2010 until 1 September 2011 to G care of her mother at the mother’s post office box address at Albury and during such period, the mother shall have the right to vet the material addressed to G and if she determines that it is inappropriate, she may return it to the father;

   (d)that from the period 1 September 2012, the father be at liberty to send such things addressed directly to G care of the mother’s postal box at Albury.

5. That the order for the appointment of the Independent Children’s Lawyer be discharged as and from 1 March 2011 and that a copy of this order be brought to the attention of Legal Aid New South Wales by the Independent Children’s Lawyer.

6. That the mother be restrained from explaining the outcome of these proceedings to the children or discussing the proceedings with them until such time as she is otherwise advised by Mr Y.

7. That it is requested that the Independent Children’s Lawyer make arrangements with Mr Y to advise the children in age-appropriate language that their perceived understanding of their father’s sexual impropriety towards G as a baby and J’s view about having had a gun held to his head as a baby were untrue and that the Court has found them to be untrue but that the mother is mistaken about those issues and the Court has found that she is mistaken about those issues.

8. That the father be restrained from writing to the children other than by cards and presents without messages until Mr Y advises him that he has spoken to the children about the orders referred to above.

9. That subject to discussion and agreement between Mr Y and the Independent Children’s Lawyer, the Independent Children’s Lawyer be present when the issues relating to paragraph 7 above are discussed.

10. That the Independent Children’s Lawyer be at liberty to provide Mr Y with a copy of the reasons for judgment published this day.

11. That Ms B of the Albury Registry of the Family Law Courts be at liberty to read and examine the reasons for judgment published this day and the orders made.

12. That the Independent Children’s Lawyer be at liberty to discuss the outcome of the proceedings with the school principal and teachers of the children if she is advised by Mr Y that it is appropriate for them to understand what has occurred.

13. That all extant applications be otherwise dismissed and all proceedings be removed from the list of cases awaiting a hearing.

14. That all material produced under subpoenae be returned to the recipient of the subpoena.

15. That all exhibits be returned to the parties.

IT IS CERTIFIED:

1. That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

2. That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

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

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLF 24  of 2006

MR LEWIS

Applicant

And

MS DYER

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. There are two children of the relationship between Mr Lewis and Ms Dyer; J is 11 years of age and knows little about his father other than what his mother has told him and his own distant recollection.  He is certainly negative towards his father.  G who is 8 years of age does not know her father at all.

2. To complicate matters, J and G have a younger sibling aged three years from their mother’s relationship subsequent to the conclusion of the relationship with Mr Lewis.  Mr Lewis also has a three year old child from a relationship subsequent to the conclusion of his relationship with Ms Dyer and for whom, he has sole parental responsibility.

3. For the purposes of these reasons, I shall refer to Mr Lewis as “the father” and Ms Dyer as “the mother”.

4. On the fourth day of these proceedings, I indicated to the parties that I saw enormous difficulties in the father endeavouring to create any relationship with the children. 

5. After considerable discussion, the father adopted a pragmatic solution which has formed the basis of the orders that I make now.

The issues

1. Having determined not to proceed to seek face to face contact, the dispute between the parties related to two main things:

   (a)what findings of fact should be made; and

   (b)what should the children be told having regard to their strident views about the father.

The orders

1. I have determined that in respect of orders, there is a need to regulate the relationship between the parties and the children by:

   (a)making parenting orders restricting the communication between the father and the children to cards, letters and presents;

   (b)ensuring that all of the correspondence will be vetted by the Independent Children’s Lawyer for 18 months from now and in turn, the Independent Children’s Lawyer in her discretion, shall determine whether that correspondence is appropriate to be seen by the children;

   (c)ordering that after 18 months from now, the father be at liberty to send material addressed directly to:

   i.the child J; and

   ii.G care of her mother who for a further period of 18 months shall have the right to vet the material addressed to G and if inappropriate, to return it to the father;

   (d)ordering that after the second period of 18 months, the father be at liberty to send material addressed directly to G as well as J.

2. It therefore goes without saying that I intend to order the Independent Children’s Lawyer to stay in place and active for the next 18 months.

3. I have determined that it is necessary to make findings about the majority, if not the whole of the historical background of the parties’ relationship and the lives of the children so that each party may at some distant future, be able to say that that is what the Court found.

4. I have determined that it is necessary for the children only to immediately know:

   (a)that the prospect of face to face contact with their father is not going to occur; and

   (b)that certain views they currently hold about their father are not the views of this Court.

5. The complexity of conveying the messages to the children that I have foreshadowed is one over which I have agonised.  If the children are told that all of their beliefs as reinforced by their mother’s views are untrue, their secure attachment to her may be damaged.  Conversely, if they are told that their father’s conduct as a parent has given rise to the absence of any relationship with them, that will reinforce in their minds his worthlessness as their parent and their justification for his rejection.

6. The two solutions I have determined which are less than satisfactory, but which I think are in the best interests of the children, are that they be told:

   (a)by the Independent Children’s Lawyer only that the proceedings have ended and that they will continue to live with their mother.  Further that they will not see their father but that he will write to them from time to time and that it is this Court’s decision that they should accept, read and think about what their father has to say;

   (b)by Mr Y in age-appropriate language that their perceived understanding about their father’s sexual impropriety towards G as a baby and J’s view about having had a gun held to his head as a baby were matters which this Court says was a misunderstanding between their mother and father and that as a consequence, they should not think badly of their father because of those misunderstandings and that they should not, as children, think that way again.

7. To give efficacy to the orders, if that is at all possible, I intend to restrain each of the mother and father from:

   (a)in the case of the father, writing to the children other than by cards and presents until Mr Y advises the father that he has spoken to the children about the two issues to which I have referred; and

   (b)in the case of the mother, discussing with the children any of these issues other than that the court case is finished and that the Independent Children’s Lawyer and Mr Y are going to explain all about it to them.

8. I appreciate that I am imposing on Mr Y but I am led to believe he is willing to assist.  To that end, he should have a copy of my judgment provided to him by the Independent Children’s Lawyer.

9. The sudden turn at the end of this case could not really have been anticipated having regard to the positions that each party adopted.  Each will no doubt have some difficulty accepting all of the findings I am about to make.  I make no apology for that because each asked me to determine the role each has had in the sad and dramatic lives of these two children.

10. I considered the prospect of some sort of embargo on the children not being told of the full findings until they were adults.  I have decided not to do that as I would hope that they will ultimately treat both of their parents as having made mistakes and to determine their later teenage or adult relationships with their parents on the basis of how their parents treat them from now on.

11. To understand the dynamics of the lives of these children and why this dramatic outcome has occurred, it is important to look at the history of the parents.  As I said, the parents may not accept the findings and in other cases, endeavour to justify their conduct.  However, I set out the history and my findings on the evidence as I perceive it.

The proceedings

1. This case was about whether any relationship could and should be established between the father and the two children leaving aside any issue of the sharing of parental responsibility.  The mother was strongly resistant to any form of relationship developing.

2. Counsel for the father opened the case on the basis that he wanted time with the children and not that they live with him as was his position in his written application filed 27 November 2007.  In that written application, filed after the family report had been released, the father sought sole parental responsibility for the children and also that they live with him.  That position was not so much optimistic as unrealistic and unhelpful.  When asked in his evidence in chief by his own counsel what his position was then, he said he was not sure what was in the children’s best interests but he felt that there was no alternative but for them to reside with him.  He said if that was not to happen, he would continue to seek contact.  The case did not get off to a good start.

Background

1. Even the facts of the background were contentious.

2. Family consultant Ms B saw the children in September 2007.  She had an impression of J which she described as disturbing and of his emotional well-being as of significant concern.  As for G, Ms B said that it was unknown whether she would bond with her father.

3. Importantly, the family consultant said that the impact of the dispute upon the children was profound albeit to different degrees.  She said the children were utterly unreceptive to their father.

4. The family consultant opined that the alternative to seeing their father now was to be raised in the mother’s “psychological milieu” which could be very costly to the welfare and development of the children.  Why was that so?  How did the situation of this relationship deteriorate to that level? 

5. The father is a 37 year old part-time driver.  Predominantly, he is at home caring for his daughter.  Looking back over the history of the relationship, he does not appear to have any history of regular employment.

6. The mother is a 29 year old full-time mother.  Apart from a short period of employment when the relationship began, she too has not had a history of regular employment. 

Dr E

1. Pursuant to an order that I made, the mother was examined by psychiatrist Dr E.  In that evaluation, Dr E learned that the maternal grandmother had died when the mother was six years of age and that that had been traumatic.  He learned that the mother was brought up by her father who was injured and lost a leg in an accident.  Her own description of her life was that she lived as a child on her own notwithstanding that she had siblings.  She described herself as depressed and suicidal.  She was accustomed to self-harm.  She described episodes of sexual abuse which when cross-examined about, she tendered to water down or dismiss.  At the age of 12 she was put in a “mental ward” by the Department of Community Services.  When questioned about that, she talked about only being in a mental ward for two weeks but that otherwise, was living in a refuge. She said she quite enjoyed the social life but acknowledged that there was violence. Her extended family now includes her father and her brother and sister. There is little evidence as to the nature of the relationship there. The mother produced a photograph showing a family outing in recent months but not much more. The tragic childhood would not have made for emotional stability or sound judgment, and that was evidenced in the years to come. 

The relationship beginning

1. The parties met in country New South Wales in 1995.  The mother was 16 years of age and came into town to live from her family’s farm.  She obtained a job in a shop.  As perhaps might be understood, the mother had significant freedom and was living a very social existence when she met the father who was aged 24 years.  That lifestyle in which both indulged included significant alcohol and marijuana use whilst receiving government benefits. 

2. The mother was asked about the initial relationship.  She said she thought she had loved the father in her “young naïve way” and that she was seeking “a happy family”.

3. In about April 2006, the parties moved in to live together and the mother became pregnant with J.  She was only just 17 years of age.  To the father however, the age difference meant nothing.  In his view, he was “fairly immature” notwithstanding he was then 25 years of age but he did concede that he should have taken more responsibility.

4. To that point in time, the facts are uncontroversial.

Credit

1. Before returning to the contentious facts, I wish to set out some observations about what I have seen and heard as it relates to the credibility of the parties.

2. I have listened carefully to the evidence of both parties and their witnesses.  They were endeavouring to tell a sad story which spanned more than 10 years.  In particular, the contentious part of their lives in this case was almost 10 years ago.  Each had a different view about what happened.  Each endeavoured to explain behaviour that was inconsistent with the general picture they had portrayed in their affidavits.

3. For example, the mother’s description of the transient, aggressive and irresponsible attitude of the father was hard to reconcile with the thoughtful and loving birthday cards she provided to him.  Her description of the drug-fuelled and impoverished lifestyle was inconsistent with the photograph taken as a family in 1999 in which much attention was clearly paid to deportment.

4. Notwithstanding the apparent inconsistencies, there was a strong ring of reality about her reporting of other factual issues.  In his final address, Mr O’Shannessy on behalf of the mother urged me to find that whatever embellishment or exaggeration I might think about the mother’s evidence, one thing that I could rely upon was that she was truthful.  With that statement, I agree.

5. The father whom I might describe as a loquacious person, conceded on a number of occasions that he could not remember some of the things that had happened in his background.  As I shall set out, his blasé attitude to his history of aggressive behaviour subsequent to the conclusion of the relationship was troubling in terms of his lifestyle and his proposed future as a role model for these children.

6. In a very blunt answer to a poignant question, he said he was not a violent man.  His aggressive behaviour has some remarkable similarities to the assertions by the mother about aggression and violence.  His portrayal of a picture of being a parent not knowing the whereabouts of the mother of his children, a picture he had had his mother believe, suggested he was being wronged until, under some pressure, he conceded he had known of a postal address and made no contact.

7. It was not so much his prostestation about his belief that the mother would not have responded to his letters as much as his insistence that he did not have the detail of her whereabouts that was troubling.  In addition, whilst endeavouring to explain an inaccuracy in his affidavit filed in the Local Court, he said it was a “typo” and was not “misleading”. Whilst that might be an acceptable and plausible explanation, he subsequently repeated the same assertion in his next affidavit.  His view was that he was layman and didn’t understand these things.  Having regard to the answers he gave in cross-examination, it was clear he knew exactly what he was doing. He was lying to achieve an end.

8. The credibility of both parents was therefore significantly tested by cross-examination. Having watched the witnesses and their responsiveness, together with what I have just set out, wherever there is a conflict in the evidence, I have preferred the mother’s version.

9. Having said that, the respective positions put by each party were matters each had to prove according to the requisite standard. In cases where there was a serious consequence as a result of a finding by me, I have taken the cautious approach dictated by the provisions of s 140(2) of the Evidence Act 1995 (Cth). For the sake of clarity, I say that I have approached s 140(2) on the same basis as I would have if I was applying the principles set out in Briginshaw v Briginshaw (1938) 60 CLR 336. All matters have been determined on the balance of probabilities.

The mother’s first pregnancy

1. The mother said that when she fell pregnant with J, she stopped the party lifestyle.  Bear in mind that at this point in her life, she was just 17 years of age.  She said she stopped drinking alcohol and to this day, only consumes alcohol on important celebration occasions.  She was then smoking marijuana and said that she cut down during the pregnancy.

2. Notwithstanding the relationship was very new at that point, according to the mother, her relationship with the father deteriorated.  She said he continued to take drugs including drugs other than marijuana.

3. The mother said that she undertook all of the housework and embarked upon all of the necessary medical appointments associated with her pregnancy by herself.

4. She complained that the father brought people into the home who used intravenous illicit drugs. 

5. The mother asserted that there were arguments about money.  That is probably not surprising having regard to the fact that both were in receipt of Centrelink income.  According to the mother, she was paying the relevant bills whilst the father did what he wanted to do with his money.

6. The mother complained about their sex life in the sense that there was not any equality in the relationship.

7. The mother was adamant that drugs were a very significant part of the lives of the parties including questions of trafficking.  All of this occurred during the pregnancy.

8. The father had the affidavit of the mother by the time he filed his evidence in chief.  About this particular period of the couple’s relationship, he was remarkably silent.  However, he was cross-examined about it.  He denied the mother’s assertions about his dominant behaviour.  He denied he was selling drugs and as for the marijuana to which they both had access, he said there was a communal sharing amongst friends depending upon who had money.  He maintained that the mother was a willing participant.

9. The father denied all of the assertions about his aggressive sexual demands, his inappropriate friends and his lack of household contribution.  In respect of the latter, he said that whilst he did some of the domestic chores, in hindsight, he was young and probably not as helpful as he could have been.

10. I have little hesitation in respect of this period in accepting the evidence of the mother.  I accept that the mother was young, immature and dominated by the father who despite his protestations, was an adult.

11. It was into this household that J was born.

12. J was born in January 1997 and was brought into this household virtually immediately.

13. The contrast between the parties’ versions of what happened immediately after J’s birth is interesting in the sense that it was to foretell what would happen over the ensuing years and more importantly, what is happening now.  There were no building blocks in place for any form of relationship of substance between the mother and the father let alone between the father and the child J.

The period in W, southern New South Wales

1. The mother asserted that the father had no patience with J’s crying.  She said he demanded that J be breast fed to settle him.  She asserted the father did not have anything to do with J such as bathing him and preparing his bottles or his bed.  She said that the father lost his temper when J was crying and shoved her around the room demanding that she stop J’s distress.  The father’s response to all of this was to deny that it happened.  Quite the contrary, he said that he and J had a “terrific relationship” and J adored him.  He said he kissed and cuddled J and took him for walks in the pram.  He conceded that the mother breast fed J for quite some time and that she was possessive of him and often excluded him from doing things.  Interestingly enough, he conceded that at night, they would become frustrated with each other because J was constantly crying.  That concession seems to me to be consistent with what the mother said occurred.

2. The mother complained that when she went to the toilet or showered, she would have to take J with her or leave him in the pram so that he could see her.

3. For the reasons that I have earlier set out about credit, this is a period of time about which I accept the mother’s version was right.

4. More importantly, this was the first period of time in which the police became involved in the lives of the parties.  The police were attending their disputes.  As the mother said in her affidavit, she could not remember who called the police but sometimes it was either of them and other times it was the neighbours.  The father did not deny those assertions.

5. The mother pointed to the fact that money was tight in the household bearing in mind that both parents were recipients of Centrelink benefits and that the father pawned things to get money for drugs.  As a consequence, she said, she had to seek assistance from charities for food or bills such as the electricity and telephone accounts.  The father denied that but conceded that there were times in winter when they would seek assistance from “St Vinnies” with the power bill but he did not ever recall obtaining food from charities.

6. This particular period of time was the subject of some intense cross-examination of the father. He agreed that the police were called “occasionally”.  It was put to him that the records of a police attendance in May 1997 portrayed him as the aggressor.  His response was that it “took two to tango”.  In reality however, he conceded he could not remember the details of the incident in May 1997 even though he recalled the police attendance.  He conceded that it was over his intoxication and the mother’s refusal to allow him to handle J.  There was no suggestion of the mother’s intoxication.  The police removed him from the situation, no doubt for the sake of the safety of the mother and J.

7. It is on the basis of those concessions and cross-examination that I have every reason to accept the mother’s version of the events for the period up until the middle of 1997. 

Middle of 1997

1. In the middle of 1997, the maternal grandfather offered the parties a home.  He intended to buy it and they were to rent it from him with the long term objective that it would one day be theirs.  The parties found the home in W and the mother’s father entered into a contract.  Before the contract was complete, the house was struck by a fire and burnt down.  However, it was covered by insurance as a result of which, the parties ended up with a brand new home.  The maternal grandfather set the rent at $100 per week and the parties moved in to live together.

2. According to the mother however, the father refused to pay one half of the rent and all of her money was being used for living expenses.

3. Each party but particularly the father, seemed content to keep separate their financial resources but the father made clear throughout his evidence that he expected the mother to pay one half.  His version of what was happening is best set out in his own words.  He said:

   She constantly whinged to me using words to the effect of:

   “You’re always drinking, you do nothing.”

   At other times she would say to me words to the effect of :

   “Well fuck off and go to the pub then, we don’t need you”

   At this time we were both still engaged in smoking cannabis on a regular basis.  I was at this time working on a casual basis driving trucks and also on a limited Centrelink benefit.

4. Having regard to the attitude that the quote conveys, and the lifestyle that the father was living, it was only a matter of time before the relationship foundered.

New Year’s Eve 1998

1. On 31 December 1997, the father went out with friends leaving the mother at home caring for J who was then not quite one year old.  The father agreed that he went out for a celebration.  The mother said that early on New Year’s Day, the father returned to the house and there was an argument.  She said she did not want him there and he spat at her, pushed her and threw her around.  She said this woke J who was crying.  She said she picked J and was holding him and the father punched her and hit J too.  She said she then went and hid in a wardrobe in J’s bedroom where the father attended pointing a gun at her.  There was much dispute about this particular version.  The father said that he arrived home around 1.00am to find the mother furious at not being able to go out herself.  An argument ensued.  He said that she was so furious with him that she began to kick and punch him.  He said she hit him in the genital area and he retaliated by punching her once with his left hand.  He said he then left the house and stayed at a friend’s house for the night.  When he returned the following morning, everything was calm and the incident was not mentioned.  However, having arrived, so did the police.  The police went to a spare room upon the direction of the mother and there found a “dismantled antique rifle”.  His evidence was that the police assembled the rifle and charged him with assault and the possession of a firearm.  He said he pleaded guilty to both charges but no conviction was recorded in respect of the firearm charge and he was given a good behaviour bond in respect of the assault.

2. There are some significant features of this incident.  The first is that there was a celebration but the mother was not part of it.  The second is that the police attended and collected a gun.  The third is that there was an altercation between the parties.  The fourth is that a domestic violence order was sought not by the mother but by a senior constable of police.

3. The father was cross-examined about this incident.  When it was put to him that the mother “set” him up, his response was “undoubtedly”.  Notwithstanding his evidence that the firearm was dismantled, he maintained that the police had assembled it effectively so that they could charge him with a firearms offence.  The record appeared to show that the police withdrew that charge.  One would be excused for concluding that the proceedings were therefore trivial.  However, the father conceded in cross-examination that it was a “shortened firearm” and that the police prosecutor had some difficulty because the mother withdrew her statement of complaint.  Notwithstanding that, the court made an apprehended violence order.

4. The father agreed he punched the mother but was quick to say that it was in retaliation for her kicking him “between the legs”.

5. The gun incident and the threat to kill were both denied but the father agreed that he had said to the mother that she had ruined his life.  Asked whether he felt that he had had to end the relationship, he volunteered that she had “got” him “a conviction” and that that was wrong.

6. The father said he had reported the mother to the police for her behaviour because he needed to have her “on record”.  Such was the nature of the relationship at that time from the father’s perception.

7. The mother’s version was as I have set out above that the father pointed the gun at her.  Her evidence to the police was inconsistent with that.  The police brought the apprehended violence order application on the basis that the father had “punched” her to the head.  Her explanation for the inconsistency was that she had not told the truth because he had a fear of the intervention in her life by the Department of Community Services.  When the mother was cross-examined about the incident, she could not remember the precise details of the argument between she and the father but was adamant about the use of the gun.

8. Despite the close and proper probing by the father’s counsel of the mother’s evidence, while she did not recall precise details of conversations and explained the inconsistency in what she told the police at the time, her evidence about the rest of the matters on that particular night is more believable than that of the father.

9. I accept that on that night, the mother feared for her safety.  I accept she was assaulted by the father.  I accept she gave the police information about the gun.  I do not accept it was some form of “set up” by the mother. 

10. Much was made of this incident by both counsel.  It is of significance that J believes that his father held a gun to his head.  I do not accept that that is what the father did.  I have no hesitation in finding that the father did pick up the gun and used it to threaten the mother.  The precise details of what occurred do not matter.  I have accepted the mother’s version.  What is important however, is that J understand now and forever hereafter that the gun was not pointed to him so much as used as a threat by the father towards his mother.  That conduct by the father was reprehensible.  More so because of the fact that he had been celebrating. 

11. Counsel for the father said that I should take no notice of what the mother’s evidence was in relation to that incident because on the following morning, everything was calm and the parties had a cup of tea together.  I reject that.  The mother’s evidence was that there was a sullen silence between the parties.  Having regard to the fact that the police arrived soon thereafter, her version is the more probable.

Post January 1998

1. After this incident, the parties parted ways.  It would seem however that the parting was not permanent or more importantly, that the relationship was not entirely at an end.  That conclusion can be drawn from the fact that in January 1998, only days after this incident occurred, the father celebrated his 27^th birthday and the mother provided a birthday card to him in glowing terms.

2. What is important about the ensuing time, however, is that the father did not see J for almost a year.  In September 1998, the mother sent the father a Father’s Day card.  To that extent, the relationship was not entirely dead.  In his evidence, the father thought that he saw J twice during the twelve month period but in hindsight, he thought that may have been only telephone calls.  During this particular year, the mother remained living in the home of her father in W in southern New South Wales and the father moved to Melbourne.  This must have been a significant period of time in J’s developmental life.  It was a period of time during which his attachment was entirely with his mother. 

December 1998 onwards.

1. In December 1998, the mother and J went to live in the Melbourne suburb of C with the father.  They remained there until July 1999 and during that period of time, the mother became pregnant with G.

2. According to the mother, in December 1998 the father asked her to move to Melbourne to live with him. In her view, it was an attempt to make the relationship work.  The father’s view was that the impetus came from the mother rather than from him. 

3. She described the house in C as disgusting and filthy.  She said the backyard was filled with rubbish and there were rats and mice in the home.  She said that homeless people often slept under the veranda at night and that there were overdue gas, electricity and telephone bills that she had to pay.  The father denied the house was in that condition.  He agreed that they paid half of all bills.  The mother tendered in evidence some photographs of this house but not specifically to corroborate the evidence that she had given as I have described it.[1]  The photographs show nothing extraordinary about the old house either at the front or the back.  The photograph purports to have been taken in January 1999 so that the timing may have had some impact upon the condition of the house.  There is no need for me to make any finding in respect of this issue and it may be that the mother’s claims were an embellished extravagance.  However, having regard to the lifestyle that the parties had earlier lived in W, I find that it is probable that that was the condition of the home when the mother first went there.

   [1]          Exhibit M3

4. The mother gave evidence of what can only be described as a recurring theme.  Fights occurred between she and the father but this time, J was present and in her words, he tried to push the father away from her.  The father acknowledged the statement of the mother saying as follows:

   I had always been concerned about [J] witnessing the arguments between the two of us and had always maintained that [J] shouldn’t have to put up with the constant arguing between us.

5. It is quite clear therefore that the relationship between the parties was not good.  This time, J was old enough to understand.

6. Again as I have previously indicated, there is also the inconsistency in the mother’s position in that in January 1999, she gave to the father his 28^th birthday card in which she, J and the dog “[R]” expressed lots of love.  I have kept in mind however that the mother was then 20 years of age, and in her expressed view, wanted to be a family.  As I discussed with counsel for the father in final address, there was a strong ring of resemblance to the domestic violence cycle in which the mother was trapped.

7. During that period of time, the mother joined a young mother’s group which she described as the highlight of her week.  The father formed a musical band.  Musical equipment was set up in the spare room in the C home.  The mother described arguments in which the other band members were critical of the father for using drugs.  The father’s response to this was that no such arguments occurred “as a consequence of” his drug use and that that statement was a complete fabrication.  I am not entirely sure what the father meant by the denial but I have presumed that it related to arguments and not his drug usage.  It matters little if that is the case.  I accept the evidence of the mother.

8. The mother gave evidence that in the room in which the musical equipment was kept there were items such as pornographic magazines.  She complained that the magazines were graphic and portraying models to look very young.  The father did not dispute that the room contained pornographic magazines but he was at pains to point out that at no stage did he have child pornographic material.  The mother did not say that he had child pornography.  The mother’s evidence about this issue was that the material was contained in a locked room and with that, the father agreed.  He said it was locked because it was off limits to J as well as for security reasons.  He pointed out that he kept his prescription medication of antidepressants, sleeping tablets and Valium in there. 

9. It was in this period of the relationship that the father believed that the mother was having a relationship with one of the members of the band.  This gave rise to his view that she was promiscuous.  The band member was at the house at times when he did not need to be.  In a candid statement, but which indicates the level of respect that the father had for the mother, he described a confrontation with her, best put in his own words as follows:

   [I] said to her at the time in a very angry tone:

   “Are you fucking [TM]?”.

   She said to me “No”.

10. The father was cross-examined at length about this issue and he said in his words that she was “a slut”.  He agreed that he called her that although he was quick to say “not frequently”.  He said he felt he could not trust her in respect of issues of fidelity and that made him angry.  Again, candidly, he conceded he became angry every time he thought about it.  To a question from the Independent Children’s Lawyer, the father agreed that he had used words such as “vexatious delusional” to describe the mother.

11. This was at period of time when the mother was pregnant with G.  The father’s version was that he did not think that the relationship could continue and it would be best if they separated notwithstanding the pregnancy.  To implement that, the father contacted the police to get them to evict the mother from the home.  Somewhat surprisingly, the father indicated that the police did attend and the mother decided to leave.

12. It was the mother’s case that at the C home she was thrown down stairs.  Counsel for the father showed to the mother her own photograph of the front of the C home which clearly depicts only one step rather than stairs.  In cross-examination, the mother endeavoured to say that she was referring to some steps and not necessarily those depicted in the picture.  This is not an incident of any great note.  The entire relationship at the C home seems to have been fraught with difficulty and it was ultimately the intervention of the police in arranging for the mother to leave that brought about the end of the relationship.  The parties even differed on that issue.  The mother said that she was not given sufficient time to pack all of their things but just left whilst the father indicated that the police had calmed the situation for sufficient time to enable her to leave without haste.  It seems that either version is plausible.  Again it matters little because the mother, on any view, was being evicted with a young child and in a pregnant condition. 

The Dungeon allegation

1. Before turning to the next phase in the lives of these parties, I turn to an incident which was quite contentious.  According to the mother when she found she was pregnant she telephoned the father’s sister.  According to the mother, in that conversation, the sister expressed concerns about her having a girl child because of her view about the father.  According to the mother, the sister said that when she and the father were about seven and eight years of age, they had a playroom called “the Dungeon” and in that room, the father had “sex” with the sister.  The issue of what “sex” meant as between a seven year old and an eight year old was not explored nor was it explained by the mother.  Presumably it could not have been because she was describing what she said the sister told her.  The father’s response was to deny that he had any form of sexual relationship with his sister. 

2. The sister swore an affidavit only days prior to the commencement of the hearing.  Her evidence was that there was a conversation with the mother at the time that the mother announced the pregnancy of G.  She was shocked because she did not know that the parties were living together at that time.  She recalled expressing the view to the mother to be careful about resuming any relationship with her brother because whilst it would be attractive at the start, it would deteriorate as the mother had told her it had previously.  She described the earlier relationship, presumably on the basis of what the mother had told her, as “disastrous”.  I would agree.

3. According to the sister, she was “somewhat annoyed” that history seemed to be repeating itself and she telephoned the mother and criticised her for resuming the relationship.  The sister was emphatic in her denial that she had ever had any conversation with the mother about a sexual relationship with the father notwithstanding agreement as to the existence of the dungeon.  She repeated that evidence when cross-examined and added that she found the suggestion insulting and disgusting.

4. According to the mother, having had the telephone discussion with the father’s sister, she confronted him.  She said he was abusive.  This brought about the end of the relationship and the intervention of the police.

5. It was strikingly odd that the mother having heard about this incestuous relationship should then go to live with and be friendly with the husband’s sister.  The two women were close friends for quite some time.

6. The mother was carefully cross-examined about the statement that she made concerning what the father’s sister told her.  She said that the subject had been discussed often.  She said she was aware that both the father and his sister denied any such relationship.  She was emphatic that she did not raise the subject publicly or otherwise because the father told her that he would sue her for defamation and it was only after she had canvassed the issue with her lawyers that she felt protected enough to say anything about it.  Importantly, the mother said that the sister “alluded” to the relationship being one of rape but that when she and the sister had the falling out, the sister referred to is as “consensual”.  When asked why she continued to stay with the sister particularly after indicating that there was such a consensual arrangement, she said she felt sorry for the sister whom she believed was the victim.

7. The sister was cross-examined about the issue and indicated that there had been no childhood games mentioned to the mother nor had she ever mentioned anything about sexual activity with the father.  She did, however, certainly concede that she had discussed the playroom or dungeon.

8. On the evidence, I could not find that the conversation occurred between the mother and the sister as the mother described it.  It may have been something that was misconstrued or even fantasised by the mother.  I would certainly not find that there was anything of concern as between the father and his sister.

The mother leaves Melbourne for W

1. Ironically, it was to the father’s parents that the mother turned for assistance after being evicted from the C home.  She caught the train to W and moved into their home at a time when they were away on holidays. 

The father writes to the Local Court

1. Not long after the mother moved to W, she said that there was a telephone call from the father in which he expressed the view that he was in love with a former girlfriend, wanted to marry her and have children by her.  The subject was raised, according to the mother, on the basis that he did not want to tell the girlfriend about the mother’s pregnancy.  He accused the mother of ruining his life.  To make matters worse, he said that he had been evicted from the C home and had to move to live with a friend.  The only importance of this conversation was that the father emphatically denied that it ever occurred.  His assertion was that it was a complete fabrication.  He said that any relationship he had with the named woman had long ended.  His view was that the mother’s evidence on this issue was “conjured up” when he asked her to leave the home.  In contrast to that, the father wrote a letter,[2] sometime around 2000 or 2001, which was taken from the Local Court file in which he requested an order from the Court restraining the mother from being within 20 kilometres of D in northern New South Wales.  I quote from the letter as to the reasons why the father needed the order:

   So as to not interfere with my future wife and myself, as doing so would cause conflict.  If (the mother) feels she has anything to fear from myself then she would agree to these terms/conditions without respite.  I personally feel (the mother) would not hesitate to destroy any personal relationship I have built with a certain person she felt was a threat to our relationship in the past (my future wife), whom I have known for the past nine years prior to meeting (the mother).

   [2]          Exhibit M2

2. Challenged about this letter which apparently came from the Local Court file, the father said he was “retaliating” and it was not meant to be a court document. I reject that as the letter was addressed to “Your Worship”.  He added that he could not remember writing it.  It is apparent from reading the letter and the events to which the mother refers about the ending of their relationship that the father had some other relationship under way.  When pressed in cross-examination about the letter, in a surprising response, the father said he did not profess to understand it himself. He then added that there were other pages.  Those other pages were not produced.

3. As I shall now turn to, this was a period of time when the father said in his affidavit that:

   It was upon my move back to [G] that I discovered that [the mother] no longer resided there.

   and

   For some time I was unaware of where [the mother] was residing with the children.

4. These unexplained inconsistencies are either deliberate lies or the father’s memory is so faulty that he has completely forgotten the important events of the period.  It is to be remembered that the father said, referring to this new relationship asserted by the mother:

   I deny any such conversation with [the mother] in relation to my former girlfriend.  This conversation is a complete fabrication.

5. I reject the father’s view.  I find the father did say what the mother alleged.  Its importance lies in indicating the lack of interest that the father had in J’s life and later, in respect of G.

The birth of G

1. After a short period of time in W, the mother moved into a community housing flat.

2. In January 2000 G was born.  The mother had assistance at that time from the father’s family but not from the father.  The evidence indicates a remarkable silence about the father’s attitude to his new-born child.

The father’s first visit with G

1. In February 2000, the father attended at the mother’s home.  She asserted that he arrived whilst drunk, demanding marijuana.  The mother said that she asked him to sign G’s birth registration form and he declined saying that she was simply seeking more child support.  On the father’s own evidence, he had not seen J “for some time”.

2. The mother deposed to the fact that she saw the father with G on the bed and he was taking off her clothes.  When challenged by the mother, he said that he was seeing whether G needed her nappy changed.  G was only months old at that time.  Both parties agree that the mother reacted by yelling at the father to get away from G and insisting that he leave the house.  She said that as he did so, he took J and ran out the front door.  She then called the police and it was the police who subsequently returned J to the home.  In cross-examination, the father conceded that there was “trouble” on that very first visit and in respect of both visits he made to that particular address, he said the mother made it difficult for him to see the children.

3. The mother was properly and carefully cross-examined about the nappy change incident and asked what it was that the father had done wrong.  The mother said that he took G to her bedroom rather than to G’s.  She said that G was clean and the father had no nappy wipes for the purposing of changing a nappy.  Her concern was that this was the first time that he had met G.  When it was put to her that she took G off him, her reply was that he had not made any mention of nappy changing but rather that he was going to spend some time with G.  It was when she walked past the door of the bedroom that she saw that the child was being undressed.  In a very pointed question, counsel for the father asked whether the mother wanted me to accept that the father was a paedophile and she responded that that was not her view at all. 

4. The family consultant gave evidence about this issue and was referred specifically to her notes of exactly what the mother said.  The notes record the mother as saying that the first time the father met G, he “stripped her off” and claimed that he checked if she needed a change of nappy.  That statement is not inconsistent with what the mother said in cross-examination.  What was telling was the mother’s comment that this was the first time he had met G. 

5. This is an important issue because of the fact that G told the family consultant that the “scariest experience of her life” was when the father was “mean” to her as a baby.  The family consultant did not probe the child but concluded that the reference was made to the father “removing” her nappy to examine her.  That was a conclusion by the family consultant that was not necessarily consistent with the statement that the mother had made and certainly not consistent with the evidence that I heard.  The evidence was clear to me that the father had not removed the nappy.  Just exactly what G and J have been told and what they believe are hard to know. 

6. Mr O’Shannessy on behalf of the mother, candidly and properly, conceded that the evidence was not such as would enable me to find that there was any sexual impropriety on the part of the father.  I agree.  Based on the evidence of the mother, I would not find that there was anything sexually improper in what the father was doing. 

7. At the time that this incident occurred, the mother conceded that she screamed at the father as a result of which the father left with J.  Counsel for the father put to the mother that what he was doing was removing J from the situation that would have been quite distressing.  I reject that proposition.  Having regard to the limited relationship that the father had with J at that time and the clear distress of the mother, to simply remove J was highly inappropriate.

The father lives in Melbourne

1. The evidence as to what happened between that first visit and November 2000 is very unclear.  The father was living in Melbourne and remained there until June 2001.

2. The mother’s evidence was that “sometimes” the father would take J, including to the movies.  The “sometimes” was not identified or clarified.  However in her complaint for an apprehended violence order in November 2000, the mother said that the father had “very infrequent contact with the children, the last occasion being in September 2000”.  It would seem therefore that there were some visits leading up to an incident that gave rise to the application for the apprehended violence order. 

Proceedings in the Local Court

1. At the same time that the mother applied for an apprehended violence order, she also brought proceedings in the same local court under the Family Law Act (Cth) (“the Act”) relating to the two children. According to the complaint document seeking the apprehended violence order, the catalyst for the application was that on 9 November 2000, the father telephoned her and was abusive and threatening. She asserted that at that time the father was under the influence of drugs. Ironically, the father seemed to agree that the telephone conversation occurred as described by the mother. There can be no question that he called her “bitch”.

2. What puts some light on the father’s insight into parenting, was his concession about statements he made in the telephone conversation.  He said that he told the mother that she could not stop him seeing “the kids” because there were no orders and no apprehended violence orders in place.  The lack of any meaningful relationship with these children at that time seems to have been lost on the father.  To make such a candid concession in the affidavit is a clear indication of the father’s lack of insight.

3. The application under the Act disclosed the father’s Melbourne address and in that document, the mother sought that she have sole parental responsibility for the children and that the Court dispense with the requirements that the application be served. I am not clear why the application was granted on an ex parte basis. If it was, I cannot see why that should be so. On 13 November 2000 the Local Court made an order under the state family violence law that the father:

   Must not engage in conduct that intimidates the protected person or any person having a domestic relationship with a protected person nor stalk the protected person.

4. The usual orders were made that he not assault, molest, harass, threaten or otherwise interfere with the protected person nor enter her premises at W.  The usual orders were also made that he was not to approach the mother except for the purposes of arranging or exercising time with the children.  It is significant that the order included the two children as “protected persons” as well as the mother.  There is a specific order noted that the father was not to approach the mother or the children within 12 hours of consuming intoxicating liquor or drugs.  Those orders were made on an ex parte basis and the matter was otherwise adjourned to 28 November 2000.  It is not clear on the evidence what happened on the return date.

5. In respect of the family law proceedings, the court appeared to grant the mother’s application for an ex parte hearing on 13 November 2000 giving the mother sole responsibility for the children and permitting them to reside with her.

6. All of this evidence remained unchallenged.  It would seem that whatever the relationship was between the mother and the father, two important things must be said.  The first is that notwithstanding they were separated, the aggression and family violence continued to the extent that the court was required to intervene and secondly, there was very limited contact between father and children such that it was improbable that there would be any form of serious parenting relationship.

The father moves to W and the mother moves to O

1. Both parties agreed that the father moved back to Win 2001.  The father said it was June, by which stage the mother had already left and moved to O, on the New South Wales north coast.  On the other hand, the mother said that it was prior to her move to O.  She gave evidence that there was one occasion when the parties met at the Local Court.  The mother identified that period of time as around when she obtained an apprehended violence order which seems to have been granted on 6 March 2001.  In that same time, she sought to move to O and said that the court permitted her to go.  She identified that as March 2001 and that seems consistent with the evidence of the father.

2. In O, the mother rented a post office box.  She said that that was for the purposes of enabling the father to write to them.  She produced a copy of the application and receipt dated 30 April 2001 indicating that a post office box for O was sought.  Importantly, the father’s sister and her husband lived at O. 

3. In paragraph 50 of his affidavit, the father said:

   For some time I was unaware of where [the mother] was residing with the children.  She was not willing to advise me of her current address or telephone number.  Fortunately my sister also lived in [O] and was friendly with [the mother].

   The father said that as a result of the intervention of his sister, he was able to get the post office box number which would in turn enable him to communicate with the children.  The mother’s view was that she had no recollection of the father writing to the children or speaking to them at any time that they lived in O.  That was clearly wrong having regard to the fact that on the mother’s own evidence, the father came to O on at least one occasion in the period of 2001.  The parties’ versions diverge about when it was that the father came to O.  The mother said that it was in the middle of 2001.  However, she also made reference to the fact that the father’s “contact” petered out after December 2001.  The father’s evidence was that his visit to O must have been around Christmas 2001 at which time, he spent three days with J and spent some time with G at the mother’s unit.  The mother said that this three day visit was with the father’s grandparents and there was tendered in evidence a photograph of them with the two children.  The photograph is not dated but G in the arms of her great grandfather certainly appears very young.  The date really does not matter.  What is important is that it was the only visit between father and children.  The mother’s version was that the father told her that she had to give him the children and she declined.  However the children spent time with him at a family barbeque the following day.  The father’s view was that the mother told him not to come back and see the children again. 

4. The father was of the view that at that barbeque, he took J horse riding.  The mother was emphatic that no such incident occurred.  She was able to recall the fact that the father was not at the barbeque for very long and left.  She said that it was not a good day. 

5. The mother’s version about his demand to see the children is certainly consistent with his own version as set out in paragraph 46 of his affidavit.  In other words, the children were his and he was entitled to see them.

6. The father gave evidence that on the visit to O, J and he had a very good relationship and it was apparent that J knew him as his father and cared for him, as he in turn did for J.  J at that time was almost five years of age and had only seen his father on a handful of occasion in the preceding years.  I therefore have great difficulty in accepting the reality of what the father says. I accept the evidence of the mother as to that period of time.

7. The father’s evidence was also that he did not use the post office box to send mail because he had telephone contact.  The mother’s evidence was that she could not remember any such call.  I find on the balance of probabilities that it was unlikely that the father made any telephone calls and even if he did, they were infrequent.

The father’s knowledge of the mother’s address and the mother’s move to Albury

1. I have been critical of the father’s behaviour and lifestyle up until this point.  Insofar as it might be thought that his behaviour only had something to do with his relationship with the mother, he was cross-examined about an incident that occurred on 14 February 2001 whilst he was living at W with his parents.  It was put to him that the police had to be called to intervene in a dispute between himself and his mother’s partner.  Although his recollection was unclear, the father conceded that the intervention of the police was necessary and it was because of him.  The father’s aggressive behaviour was not just restricted to his relationship with the mother.

1. The mother says that in December 2001, she moved to Albury.  Whilst there was some evidence about the circumstances under which that occurred, I find that it is not relevant to any issue that I have to determine.  It seems that the mother spoke to the paternal grandmother about whether she should return from O to W.  At that point in time the relationship between the paternal grandmother and the mother seemed quite amicable.  It was perhaps not quite the same for the paternal grandfather.  According to the paternal grandmother, she was asked about how she felt about the mother’s return to W and whilst she was effusive in saying she would have loved to have the mother and the grandchildren back and would help, she said she told the mother of her husband’s view:

   You just have to understand that […] (my husband) isn’t so forgiving.

   Sadly, that seems to have ended the relationship between the paternal grandmother and the grandchildren. 

2. Importantly, the question of whether the mother vanished or not became relevant.  In the hearing, the mother produced the application and subsequent receipt for payment of a post office box in Albury.

3. According to the mother’s evidence, she left the post office box address with everybody so they could write and there is certainly an indication of that in correspondence that was produced.

4. The father’s evidence was that he endeavoured to “reinstate” telephone contact with the children and was able to speak with the children on approximately six occasions but the mother made that very difficult.

5. In cross-examination, the father acknowledged that he knew that the mother and children were living in the Albury area.  He knew of the mother’s post office box.  Despite that, he did not send birthday cards nor presents despite his evidence about the telephone calls.  When asked why he had not sent things in the mail, his response was that there was no address to send them.  At the time that the father made that comment, he knew it not to be true.

6. The father’s own mother swore an affidavit in the proceedings and said that after the mother moved to Albury, she did not hear from her again.  She said:

   I have not had an address to send anything to the grandchildren.

7. The paternal grandmother expanded on that evidence in chief saying that she had not spoken to the mother because she had “no phone, no address, no nothing”.  She was cross-examined about that statement and said that had she known of the address, she would have sent cards and similar things.  She said that her son told her that it was impossible and he did not know where the mother and children were.  She conceded however, that she was not aware that her son had the post office box address and had he told her, she would have sent things.  My impression, however, was that she was prevaricating because she thought that the last discussion with her son about the issue was before 2002.  There can be little doubt that the father knew of the post office address all along.

8. Matters did not improve when the father’s sister gave evidence.  She said that no presents had been sent to the children because she had no address.  However, she conceded that her grandparents had it and her reason for not doing anything about the address was that the grandparents had said that the mother did not want her to contact them.  Her explanation for not pursuing it through the father was that she did not have his address either.

9. The father’s position in respect of this issue was not improved when it became clear that he had issued proceedings in the Local Court and sworn an affidavit in support of an application for a Commonwealth information order.  In that affidavit he said he did not know the residential address of the mother and in respect of any address, he said that it was “not known”.  I accept it was, strictly speaking, correct about the residential address but very misleading not to have made known to the court that he had the post office box address.  In that same affidavit, he said he was travelling from W to O “approximately every three months and spending a week with the children”.  Asked to explain that, the father said it was a “typo”. 

10. In addition to the “typo”, the father also swore that in approximately mid-2001, he moved to W and when he did so, the mother moved to O.  He should have stopped there but went further to say that he “continued to have contact” during his leave from work.  Challenged about that, the father said he was trying to convey the message that he was having contact as often as he could.  He would not concede that even that message was misleading.  Those sorts of matters give me little confidence in his truthfulness.  There could not possibly be any misunderstanding or confusion about those things.  The father knew he had not been spending time with the children.  He was lying.  Worse still, the lies relate to a period where I find that he showed no real interest in the children at all.

The father’s conduct in W

1. Nothing happened between the parties between 2001 and 2005.  However, in cross-examination, the father portrayed a disturbing picture of what he was doing during that time.  In paragraph 26 of the affidavit he filed on 30 November 2005 in the Local Court, the father said this:

   There are no factors that might affect my or [the mother’s] ability to provide a safe physical or emotional environment for the children.  Previously when [the mother] and I first separated she applied for an apprehended violence order through the Local Court.  This AVO was granted and expired 12 months thereafter.  There have been no subsequent incidents.

2. Contrary to that picture, the father’s life was far from stable.  On 20 October 2002, he was involved in a neighbourhood dispute.  Although vague, he conceded that sometimes they involved him as the aggressor and sometimes as the victim.

3. Mr O’Shannessy for the mother put to him that on 27 July 2003, he was searched for drugs.  Rather than indicate some sort of moral outrage, he indicated that it was “pretty common” for random searching to occur and in any event, the police found nothing.  In his view, drugs were everywhere.

4. On 1 January 2005, the father was the victim.  He was asked whether he was able to recall being bashed outside a hotel and he responded that it was one of many incidents over the years.  He conceded that he was drunk at the time.  The bundle of police records associated with this period of the father’s life were tendered in evidence.[3]

   [3]          Exhibit M6

5. The brief cross-examination of the father gave a reasonable indication that what was reported in the police report was close to accurate.  It appears that the father left the local hotel and was assaulted by four or five persons.  He stated that his wallet and some beer was stolen from him.  He was admitted to hospital.  Some weeks later when the police went back to interview him about the matter, he indicated that he was back working, had found his wallet and was unsure whether his cigarettes and beer were on him at the time that the robbery took place.  He told the police that he had quite a bit to drink and could not remember very much of the night.  He indicated very clearly that he would not go down to the police station and talk to the police, as a result of which the investigation came to an end.

6. On 22 May 2005, the father was drinking in a hotel in the local area when searched by police who were accompanied by a drug detection dog.  Nothing was found.  This report led counsel for the mother to inquire of the father when he had ceased using drugs.  He said that he could not remember “off the top of his head” but he thought it was “2004 or 2005 or 2006” and that in any event, he did not know.  It was put to him that as a heavy user of drugs he had been remarkably lucky, this having been the second time that a search had occurred without any drugs being found and his response was that he was careful about his drug usage.

7. In July 2005, the father was involved in a dispute in relation to the daughter who is now living with him.  He had gone to the home of the child’s mother who was then caring for S.  Whilst playing with his daughter, he was verbally abused by a woman who also threatened him.  According to the police report which the father did not deny, he told the woman to “fuck off”.  This was in the presence of his daughter.  The involvement of the police however arose from the fact that later that same day a number of males attended at his home presumably arising out of what had occurred earlier in the day and he was attacked.  He was punched and the police were called.  The attending police noticed the injury to the father.

8. In October 2005, the father was banned from a local hotel by his step-father who was the publican.  According to the father, the ban was as a result of being argumentative. When pressed a little further, the argumentative issue was a bit more serious.  The father had threatened to kill the bar manager.  The father readily acknowledged the threat and said it was similarly reciprocated.  He did however concede that to keep him away from the hotel required the intervention of the police. 

9. In November 2005, the father was the subject of a neighbourhood dispute.  It was alleged that he punched the neighbour a number of times.  The father chased his victim whereupon the father picked up a shovel and threatened his victim.  When the victim ran to the safety of his home, it would appear that the father followed and subsequently smashed the front windscreen of his victim’s father’s car.  Having been arrested, the father’s response was that he assaulted the victim only after being provoked.  He was charged with malicious damage.

10. Late on the night of Friday 9 December 2005, the father was at a local hotel and became involved in a fight.  This somehow centred around the mother of S.  It was the father who was punched in the face and treated as the victim by the police.  According to the police report, he declined any formal medical treatment. 

11. Around this time, the father filed his affidavit in the Local Court.  The picture painted in the affidavit in support of the application was not anywhere near consistent with the lifestyle that I have just set out. 

12. On 3 August 2006, the father swore an affidavit for the purposes of this Court’s proceedings.  He repeated the same matters that he had sworn months before.  The same “typos” appeared.  His explanation was that it was a mistake and he had not deliberately gone out to mislead the Court.  I reject that.

13. At the time that the proceedings in this Court began, the father was in the process of having his then 16 month old daughter S out of the care that she was in with the Department of Community Services.  Soon after, he took up the care on a full-time basis of S.

The mother’s new relationship

1. Whilst in Albury, the mother too had problems associated with a relationship involving the father of her child K.  Unlike the father’s behaviour which indicated immaturity, irresponsibility and anti-social behaviour, the mother made a second mistake in relation to the type of relationship into which she entered.  Whether that was part of the well-known domestic violence cycle or not, was not a matter about which I heard any evidence or upon which any submission was made.  However, it has a remarkable ring of truth about it.

2. The importance of what occurred in the mother’s household is that the two children witnessed the variety of aggression and police intervention and that may very well have contributed to the terrible position that the children have both adopted towards their father.  Counsel for the father probed away at the mother about her involvement with K’s father.  She compared the reaction of the mother to both men and pointed to starkly different outcomes.  According to the mother, K’s father has some involvement in that child’s life notwithstanding his problems with alcohol and violence.  Notwithstanding those difficulties, K’s father seems to have at least had a consistency about the relationship unlike the father of J and G.

3. The police reports tendered in evidence of their intervention in the mother’s life is not pleasant reading.  On 12 February 2003 the police attended an incident involving the mother and her partner where her partner’s brother was abusive and threatening.  An interim order for family violence was then sought and obtained.

4. There was clearly a feud going on between the two brothers and the mother became embroiled in it because of her relationship with K’s father.  Breaches of the apprehended violence order seemed to have occurred and, notwithstanding in cross-examination that the mother had no recollection of it, in one incident, a plaster wall was punched creating a hole.

5. In November 2003 the mother was groped by an acquaintance of K’s father only to be interrupted by the appearance of the children.  The mother reported the incident but decided not to pursue the matter.  A more serious incident occurred in which K’s father and the mother were involved in an argument and each struck the other.  At that point one of the children hit K’s father with a golf stick and despite the attendance of the police, the mother declined their intervention. 

6. In October 2004, the mother and K’s father had an altercation at a bus stop at which she was assaulted and abused.  Sensibly, the police attended and removed the offenders from the area.  Another apprehended violence order was granted and charges were laid.

7. Since the cessation of any formal relationship with K’s father, the mother seems to have settled well and has avoided all of the aggression that would normally be associated with those sorts of relationships.  Importantly, according to the Independent Children’s Lawyer, evidence from the school of the children shows that they are settled and have no difficulties.  That must indicate to some extent a settled home life.  The mother produced photographs of activities of the children including photographs with their friends.  Life seemed normal.

8. It was at that point in time that the proceedings were transferred to this Court.  In the final day of her cross-examination, the mother conceded that the last three years had been extraordinarily difficult and disruptive in many ways.  I have little doubt that the subject of the court proceedings was a significant subject of discussion in the mother’s household and that the children were cognisant of all of what was going on.  It is hard to imagine how they could not be so involved having regard to the fact that the mother had to travel by public transport and obtain financial assistance just to participate in the proceedings. 

Orders of the Family Court of Australia

1. On 6 July 2006 this Court ordered that the two children be separately represented under s 68L(2) of the Act.

2. On 21 September 2006, the parties appeared before Senior Registrar FitzGibbon.  Agreement was reached that the parties do all things and sign all documents necessary to arrange a two hour fortnightly visit at the Albury/Wodonga contact centre and that the father spend time with the children there.  When questioned about why she consented to that order, the mother said that she was told by her lawyer that that was what had to happen.

The contact centre

1. It is clear that the contact arrangement did not occur satisfactorily.  There was a waiting list which ultimately delayed the start of any arrangement.  In November 2006, the mother notified the contact centre that J had said he would kill himself and wear a paper bag over his head if he went along to the contact centre.  The mother complained about her inability to travel and the contact centre looked at obtaining taxi vouchers for that problem to be overcome.  That was arranged.  The purpose in the initial voucher was to enable the mother to attend for the relevant interview.  During this time, arrangements were made for the children to speak to a counsellor Mr Y.  The first session of face to face contact at the contact centre was to take place on 17 March 2007. 

2. Before the first contact session occurred, the father posted to the mother at her post office box address a mobile telephone with an accompanying letter.  The letter indicated that the telephone was for the children to call and receive calls from him. The tone of the letter was hardly encouraging.  It read:

   It (the telephone) is not for you to abuse it, it is theirs, so you will have to ask them if you can use it for emergencies etc only!  This phone is not to be sold, lent or taken out of the house where my kids live.  They must share it.

   I have selected a charge plan which allows the kids to call me for free anytime, although you can charge it at any time.  Do not let the phone get stolen as I will hold you liable for its cost/re-registration and cost of keeping the same number, although police would find it as it has global positioning satellite tracking (GPS).  When [J] is 10 he will be responsible for its safekeeping.

3. The letter then went on in a similar tone.  Having regard to the nature of the relationship or lack of it, the letter was not sensible.

4. The observations of the case worker at the contact centre were a reasonable indication of how unsuccessful the implementation of an order was going to be.  J told the co-ordinator that he hated his father and was going to hurt him.  The co-ordinator told J that that could not be allowed but J said he was going to kill his father.

5. J’s first words to his father were to the effect of “I hate you”.  J then threw the mobile telephone which was in pieces towards his father and told him that that was what was in the bag.  J then went to his father and punched him on the arm and despite being told not to do that by the worker, J did it again.  The father endeavoured valiantly to open some dialogue by indicating that he loved J very much but J was entirely resistant.  J then ran from the contact centre followed by a worker.  J said he wanted to jump into a river and he ran to the nearby creek.  J produced a cigarette lighter and told the worker that he wanted to burn something.

6. Whilst this was going on, the father and G had a short conversation.  Again, to his credit, the father endeavoured to strike up a conversation but G was resistant saying that she hated him and wanted him to go.  G yelled at him that he had looked at her “private parts” when she was very young.  G was wearing a beanie and sunglasses despite it being a hot day and when asked to remove those, G responded that she was wearing them so that he could not see her properly.  At that point in time, the father told the worker that he was leaving.  G then took off her beanie and sunglasses.  J was told that his father had gone and that his father had been sad.  J’s response was to say “Good”. 

7. It was put to the mother that G, unlike J, had not run away from the contact centre.  The parties all agreed that the records of the contact centre should be admitted into evidence.  The notes of the contact centre indicated that G certainly wanted to go outside the centre but was prevented from doing so by the worker leaning against the exit gate.  At that point G clung to the fence and said that she wanted her father to go away.

8. After the aborted attempt at making some form of relationship work, the worker at the contact centre noted the conversation between mother and children was very negative and the mother told the children that she was not going to make them come back unless they wanted to.  On the other hand, the father later rang the contact centre to say that he was disappointed about the way things went.  Ironically, his concern was that J had had the bag of broken telephone bits and that the gate of the contact centre should have been locked to have prevented J leaving because he could have been run over by a car.  The father’s view was that the actions of the children were pre-meditated.

9. There can be little doubt that at the conclusion of the attempt at the contact centre in March 2007, there was no relationship.  However, almost a year later, in Albury on 16 February 2008, the father was on a motor cycle having lunch and saw the children ride up on their bikes to the McDonalds restaurant.  He said G was with a friend and went inside to order food but J remained outside looking after the bicycles.  He said he did not believe that J recognised him because of his changed appearance including the fact that he was wearing sunglasses.  He said he struck up a conversation with him.  At the end of the conversation, he said he would mind the bikes whilst J went inside to join his sister and he then gave J $5 adding “I’m your Dad”.  He said J then went inside and subsequently, G came outside with him.  He said he spoke to G and again repeated that he was the father of the children to which G replied that he was not.  He said he then left.  It is hard to know what to make of that evidence because none of the professionals had had an opportunity to comment upon it.  The mother’s evidence in chief was filed prior to the affidavit of the father.  She made no comment on it.  The father was cross-examined about that issue and simply repeated what he had already said.  If it did occur the way the father described, it is puzzling that nothing further was done about it.

1. On 22 March 2007 by consent of both parties, the Court ordered that the children continue receiving counselling from Mr Y and the mother undergo individual counselling, as may be recommended by the Independent Children’s Lawyer, in relation to assisting her facilitate a relationship between the children and their father. In addition, an order was made under s 11F of the Act.

2. The matter came before me on 29 November 2007 at which time, the parties agreed to the process of the less adversarial trial and I fixed the hearing for 13 February 2008.  In the meantime, I ordered that J attend upon Dr R for assessment and further appointments as she may have felt appropriate.  Other orders for various reports were also made.

3. When the matter came on before me on 13 February 2008, unfortunately, the mother’s solicitor and the mother did not appear.  As a result of what I was told that day, I ordered that the Department of Community Services in New South Wales be requested to intervene.  I also ordered that the mother undergo a psychiatric assessment by Dr E subject to funding.  Further, I ordered that Dr R be requested to advise the Court and all parties in writing as to why she had determined at that stage not to have any further appointments with J.

The expert evidence

Family Consultant Ms B

1. Family consultant Ms B interviewed the parties in September 2007.  She made considerable observations.  She read the Court’s file and made inquiries about the children.

2. Much of the background in the report has already been covered by the facts that I have described.

3. Of G, Ms B had an overall impression that the child was simply expressing the views acquired from her mother.  G at that time was seven years and nine months of age.  She was described as very typical of her age, happy in herself and pragmatic about life.  Many of the things that she described in vague detail could only possibly have come from the mother.

4. Importantly, Ms B said that G’s perceptions of her father were unlikely to change unless she had an opportunity to experience him.  She went on to opine that if G did not change her perception, it would place her in an intolerable conflict with her mother unless there was a change by the mother of her attitude to the father.  Bluntly put, Ms B said that the father was a stranger to G.

5. The interview of J by Ms B was starkly revealing.  Like G, several of the things that he said to Ms B could not have come from any other source than his own mother.  He described the father as an evil bad man who was a pervert.  Frighteningly, he said that the father should be dead and that he intended to kill him.  He said he hated his father.  He made reference to an incident in which the father “nearly killed” him with a gun.  That incident could only have been the reference to the incident when he was a very small baby. 

6. J was aware of the nappy changing incident and described an occasion in which his father pushed his mother “down stairs”.  That incident could only be something to do with the C home and as I have earlier said, there were no “stairs” at that house.

7. Ms B said that the impression she gained of J was disturbing.  Notwithstanding all of the things that J had told her, she found him a likeable and gentle boy.

8. Ms B expressed concern about J’s emotional well-being.  She made reference to J’s level of animosity towards G and to what I would describe as night terrors.  In the scheme of things, having regard to the concessions made by the father, all of these matters become academic.

9. Ms B said she had concerns about the stated desire of J to kill his father as having serious consequences in adulthood.

10. Ms B had little doubt that G had been primed to fear her father as a stranger and in the same way that J’s desire to hurt his father was as a result of being primed by his mother.  All of this clearly indicated to Ms B that the mother’s capacity to parent the children was compromised notwithstanding the fact that she had managed to meet their daily needs in difficult circumstances.  Regardless of that, the mother is the only person that these children know as their security blanket.

11. In cross-examination, Ms B added little to what she had already said in her report 11 months ago.  Much of the evidence of Ms B focussed on how the children should be told of the outcome of these proceedings and I have already addressed these issues at the start.

12. In September 2007, Ms B made a number of recommendations.  I have contemplated all of those but, having heard the evidence, I am satisfied that what I have proposed is the best course of action for these children and their future.

Dr R

1. Throughout the course of the proceedings there have been other professionals involved.  Dr R is a child and adolescent psychiatrist in Albury who wrote a report dated 25 February 2008 describing her observations of J.  It is a sad report but one in which Dr R found J to be a highly anxious boy who was very much in tune with his mother.  J has a very high awareness of his mother’s level of stress.  The very involvement of his mother in the counselling process seems to exacerbate the problems for J.  Dr R felt that J could not manage counselling at this point in time but that is a matter to which I shall return below in relation to Mr R.

Dr N

1. Dr N is a psychologist in Albury.  On the contact centre file tendered in evidence there is a report from Dr N dated 12 May 2006 addressed to the solicitors for the father.  She had seen J and G and wrote that the children were adamant that they did not want to have access with their father and that J was very hostile to meeting with his father.  She said he was observed to become distressed and angry during part of the session when he thought that seeing his father may be a possibility.

2. Dr N made an important observation.  It reads:

   I was careful to attempt to question the children about the possibility of parental alienation by the mother.  I am not convinced that the mother has been engaging in parental alienation behaviours.  I feel that part of [J’s] observed hostility towards his father can be dated back to his early childhood development during which his father was part of their lives until he was 2½ years old.

3. It is significant that the evidence of Dr N was not called.  It was not mentioned by any counsel.  It was, however, part of the material in the Independent Children’s Lawyer’s evidence tendered to the Court.  Having regard to the fact that the report was addressed to the solicitors for the father, I can only presume that they were aware of it and did not make mention of it because it was inconsistent with the father’s instructions to them that the mother had orchestrated the parental alienation.

Dr E

1. Pursuant to the court orders, the mother attended upon Dr E who is a consultant psychiatrist.  His report about the mother was enlightening.  He described her factual background in great detail.  He referred to the fact that stressors made worse a skin condition which included acne and eczema.  Dr E found the mother depressed, tearful and lonely.  His opinion was that the mother suffered from chronic dysthymia, high levels of anxiety and was self-harming.  He described her as a woman who was struggling with the role of being a mother, who was enmeshed with her children and clearly influencing them against their father. 

2. Based upon those views, Dr E had little doubt that the prospect of the development of an independent relationship between the children and their father was indeed “very dim”.

3. Dr E opined that the mother had little insight or realisation about how damaging all of these problems were to the children and that she would not be likely to benefit from psychological counselling.

Mr Y

1. Mr Y provided a report dated 8 March 2007, which was tendered in evidence without objection, in relation to J.

2. Mr Y seemed to have difficulty initially working with J.  He described him as “a little eccentric”.

3. Mr Y raised with J the subject about meeting his father and J was emphatic in saying that he did not want to have anything to do with him.  This report was prepared prior to the appointment at the contact centre to which I have earlier referred.  Everything that was contemplated in that report soon became the reality.  Clearly, much of the material such as the threat with the gun when discussed with Mr Y indicated that J had no independent recollection of those matters.  He could not have as he was just a baby.

4. Importantly, Mr Y said that the contact with J was a positive one.  He was at ease and freely expressed his feelings notwithstanding he was an anxious child.

5. Mr Y’s view was that there should be substantial time spent in written contact between J and his father before any face to face meeting was contemplated.  That has now become the reality.  Although Mr Y has not had recent contact with J, it seems that he has some prospect of working with the child and has offered assistance.  From my part, if that is so, it is encouraging for J’s future benefit.

Conclusion on the expert evidence

1. The only conclusion I can draw from all of the views of the professionals is that:

   (a)therapeutic counselling for the mother should not be ordered;

   (b)counselling of some description between Mr Y and the two children should be undertaken only if Mr Y believes there is some benefit in it; and

   (c)the constant pressure upon the children to revisit a part of their lives that they have left behind is not in their best interest.

2. I draw some comfort from the fact that the school at which the children attend do not see them as troubled children.

3. The orders I propose that the father send cards, letters and presents may have the same effect as the constant pressure to which I have just referred but if it is sensibly handed by the father, it just may be that curiosity activates an interest in the children which is otherwise long gone and closed.

The Law

1. Part VII of the Act provides the structure for the determination of any parenting dispute.

2. S 60B(1) of the Act provides as follows:

   (1)  The objects of this Part are to ensure that the best interests of children are met by:

   (a)  ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)  protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)  ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

3. In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount but not the only consideration.

4. Section 60CC(1), provides that in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).

5. Sections 60CC(2)(a) and (b), provide as follows:

   (2)  The primary considerations are:

   (a)  the benefit to the child of having a meaningful relationship with both of the child’s parents; and

   (b)  the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.

6. There is no legislative definition of “meaningful relationship” but for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. 

7. In Mazorski & Albright (2008) 37 Fam LR 518 at paragraph 26 Brown J said about a meaningful relationship:

   “meaningful”, when used in the context of “meaningful relationship”, is synonymous with “significant” which, in turn, is generally used as a synonym for “important” or “of consequence”. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive [sic] one. Quantitive [sic] concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant. 

8. In Godfrey & Sanders (2007) 208 FLR 287 at paragraph 36 Kay J said:

   what the legislation aspires to promote is a meaningful relationship, not an optimal relationship.

9. It is important to consider, from the respective proposals of the parties, how the children will benefit from having a meaningful relationship as it has been defined above.

10. To persevere with the sort of relationship that the father proposes would place further stress on the mother and risk the security of the relationship she has with these children. That in turn may adversely affect the benefit the children have from the meaningful relationship with her.

11. The parties have agreed on the format of the way in which the children will have some prospect of knowing that they have a father. That can hardly be a meaningful relationship but as Professor Parkinson wrote:

    …courts cannot by order, create meaningful relationships between parents and children; they can only create or maintain the circumstances that make meaningful relationships possible. [4]

    [4] ‘Decision-making about the best interests of the child:  The impact of the two tiers’ (2006) 20 Australian Journal of Family Law 179, 185

12. The orders that I propose will do no more than possibly leave the door ajar.

13. The issue of equal shared parental responsibility is integrally bound up in the consideration of what is in the best interests of the children. The presumption as the starting point cannot be realistically examined until a determination is made of what is in the best interests of the children.

Section 60CC

1. In respect of the second of the two primary considerations in s 60CC, I say that it is no longer a consideration having regard to the fact that the parents will have nothing to do with each other and the children will no longer witness the abusive nature of the relationship that I have found.

2. In respect of the views of the children, whilst G is probably too young to understand fully what this is all about, J articulates very strongly his desire to have nothing to do with his father. His expressed desire to kill his father indicates a level of understanding that is significant. It is a clear articulation of his views and which, despite the seriousness of the threat, should be heard and followed.

3. I find that there is no relationship between J and his father but a strong, loving and secure relationship with his mother.

4. I find that in the most critical developmental period of the lives of these children, their father did not endeavour to participate. Even setting aside the periods of time that he did spend with them as I have found above, it was minimal and certainly not time which could have been said to have been close. On the other hand, the mother has not pursued or facilitated the relationship of the children with their father and in the circumstances sadly, that was understandable and justifiable.

5. I am obliged to consider what effect any order would have on the children being separated from their parents. It is not an issue in this case whether they are to be separated from their mother. The absence or separation from their father seems to me to be in their best interests for all of the reasons I have earlier set out.

6. There are no practical reasons in this case which affect the orders that I propose. Section 60CC(3)(e) requires a court to contemplate “direct contact” and “personal relations” but in this case, having considered that prospect, I find that it would be counterproductive and contrary to the best interests of the children to force them to now endeavour to build a relationship with their father where there is no foundation stone upon which it can commence. Nothing could be more evident of that than the aborted attempt at contact at the contact centre.

7. I find that the mother has to capacity to provide for the physical and emotional needs of the children and despite the times that she has fallen at the hurdle, such as with her relationship with Mr ES, she has otherwise done a good job under trying conditions. I have taken into account in that statement that she had a difficult and disturbed childhood, an unguided teenage period and a disastrous start to adulthood.

8. I find that the father has the capacity to provide for his daughter. There is no evidence to the contrary. He too had a troubled background in early adult life and despite a dysfunctional adulthood after the cessation of the relationship with the mother, he seems to have been able to have satisfied the relevant NSW welfare authority that he was a better carer than S’s mother or some other state carer. It was always his case that this was evidence of his capacity to overcome all of the criticisms levelled at him by the mother. Sadly, he was not available and responsible during the formative years of the children’s lives and to a very large degree, that precludes the creation of an attachment now. His capacity as a parent of his daughter does little to assist me in determining what is best for J and G.

9. There have been serious issues of lifestyle for these two children and they have been traumatised by what their mother has done which, as I said earlier, I suspect was part of the well-known domestic violence cycle. However, the evidence also shows that in recent years, she has endeavoured to establish a settled routine and lifestyle in the trying circumstances of this litigation. The advice of the school presented through the Independent Children’s Lawyer shows that they are not a problem. The evidence of the mother showed the children happily playing with peers and relatives. There was a sense of normalcy about that.

10. There are no cultural issues here that affect my determination.

11. I have already been critical of the father for his attitude to parenthood as demonstrated by the evidence over a number of years. The mother too has had difficulties but in many ways, I attribute that to the unfortunate start in life to which I have already referred. In essence, the mother has a responsible attitude to parenting notwithstanding her desire to exclude the father from the life of the children. In her doing so, I find that she has adopted a reasonable view that after all that has occurred, the children are best suited without significant involvement of their father in their lives at this time. I would hope that as the children grow and mature, their interest in their father may change, but much depends upon whether the father takes a responsible attitude to the orders that I now propose to make. If he does not take a careful approach but rather, writes material such as the letters he wrote during a turbulent period in his life or of the type written about the mobile telephone, I would suspect that the door will be unlikely to remain ajar.

12. I do not propose to revisit the family violence and family violence orders again but rather to say that they have had a significant impact on my determination as to what is in the children’s best interests.

13. I had contemplated whether to make interim orders but the parties have agreed that these children as well as the parents need finality. I agree.

14. I have considered s 60CC(4) and (4A) of the Act. My reasons above cover those issues.

15. I do not accept that the father has been responsible not only in relation to his pursuit of the time with the children but also in respect of the financial support of them. In cross-examination, the father conceded in the very early period of time in the life of J, he was pursuing a musical career which included owning equipment the cost of which would have been significant in terms of the physical needs of the children. The financial burden of these children fell on the taxpayers of Australia and with his current financial circumstances and responsibilities, will continue to do so for a long time.

1. Accordingly, the orders proposed by the parties as amended by me are in the best interests of the children.

The presumption of equal shared parental responsibility

1. As the Full Court pointed out in Goode & Goode (2006) FLC 93-286 at paragraph 43:

   When making a parenting order in relation to a child, the court must apply the presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility.

2. In the end, the father did not propose an order for equal shared parental responsibility. He could not do so because such an order leaves the parties to their own devices about making decisions for the future long term welfare and development of their children. Section 61B provides that parental responsibility for a child means all the duties, powers and responsibilities and authority which by law, parents have in relation to children.  In a case where the intensity of the hatred by the mother of the father was palpable in the court room and there has been no civil dialogue for years, it is absurd to talk about the sharing of decision making for children.

3. For the sake of formality however, I find that pursuant to s 61DA(4) of the Act, it would not be in the best interests of the children for their parents to have equal shared parental responsibility.

The outcome

1. At the commencement of these reasons, I set out the two main things about which answers needed to be given.

2. I have set out clearly what the findings are as I have seen them.

3. In respect of the second issue of what the children should be told, I have little doubt that the children are very conscious of what is happening.  On the last day of the hearing, I observed the mother whilst being cross-examined by the father’s counsel vacillate between extreme distress and anger to a calm, rational and responsive approach when cross-examined by the Independent Children’s Lawyer.  It defies logic to suggest that the children would not be aware of all of those emotional states caused by these proceedings.

4. The children therefore should only be told that they will not be having face to face time with their father and that their views that their father was evil, a bad man and a pervert who did bad things to G are not correct and that the Court has found those matters not to be true.  They should be further told that the father did not hold a gun to J’s head and that the Court has so found.  In so far as those statements may create confusion in the minds of the children because those ideas have clearly emanated predominantly from the mother, the children should be told in age-appropriate language that their mother has misunderstood what happened and that the Court has found that she has misunderstood what happened.

I certify that the preceding Two Hundred and Thirty Five (235) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin

Associate: 

Date:  26 August 2008