Lott & Graham & Anor
[2013] FamCA 389
•31 May 2013
FAMILY COURT OF AUSTRALIA
| LOTT & GRAHAM AND ANOR | [2013] FamCA 389 |
| FAMILY LAW – CHILDREN – Best interests – With whom children should spend time – Whether time spent with children should be supervised – Where the subject children live with their mother and stepfather – Where the children do not spend time with their father – Where the children’s father wishes to spend supervised time with the children at a contact centre – Where there is a history of domestic violence perpetrated by the father against the mother |
| Family Law Act 1975 (Cth) |
| APPLICANT: | Mr Lott |
| 1ST RESPONDENT: | Mr Graham |
| 2ND RESPONDENT: | Ms Graham |
| INDEPENDENT CHILDREN’S LAWYER: | York Family Law |
| FILE NUMBER: | SYC | 660 | of | 2009 |
| DATE DELIVERED: | 31 May 2013 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Fowler J |
| HEARING DATE: | 29-30 April 2013; 1-3 May 2013 |
REPRESENTATION
| APPLICANT: | In person |
| 1ST RESPONDENT: | In person |
| 2ND RESPONDENT: | In person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Guterres |
| INDEPENDENT CHILDREN’S LAWYER: | York Family Law |
Orders
All previous orders with respect to the parenting of C born on … October 2002 and B born on … December 2004 (together, “the children”) be discharged.
The First Respondent, Mr Graham (“the stepfather”), and the Second Respondent, Ms Graham, (“the mother”) shall solely have equal shared parental responsibility for the children.
The children live with the mother and the stepfather.
The Applicant, Mr Lott (“the father”), save as hereinafter set forth, shall not spend time with the children.
The father shall be permitted to contact the children in writing through a child-focussed letter or email addressed to them personally at the following times each year:
(a) on the occasion of their respective birthdays
(b) on the occasion of Father’s Day
(c) at Christmas time each year.
At the time of such contact the father may send presents to the children.
The mother and the stepfather are to:
(a)facilitate the receipt by each of the children of unopened communications sent by the father to the children, provided that such communications are made in accordance with these Orders
(b)facilitate the receipt by the children of any reasonable Christmas or birthday present given by the father to the children
(c)provide to the father details of the children’s current address and particulars of the school which they attend from time to time and an email address at which each of them may be contacted
(d)do all such acts and things as necessary to cause the father to receive copies of all school reports in relation to the children
(e)provide to the father a report each four months, commencing four months from the date of these Orders, containing information on significant events in the children’s lives during the prior period of four months
(f)not do any act or thing or make any comment or permit any such comment to be made to the children, the effect of which would be to deny to the children the fact that the father is their father
(g)forthwith inform the father of any serious health problem of either child including, if applicable, details of any hospital admissions, and provide to the father the names and contact details of the children’s treating doctors and authorise the doctors to speak with the father in relation to the children’s illness or injury.
The father is to provide to the mother and the stepfather details of an email address at which he can be contacted, and likewise the mother and the stepfather are to provide to the father details of email addresses at which they can be contacted.
The father is to remain away from the home of the children and the school that they attend, unless such attendance is at the express invitation of the mother or stepfather.
None of the parties are to denigrate any other of the parties in the presence or hearing of the children nor permit, encourage, counsel, procure or aid any other person in denigrating another of the parties.
None of the parties are to discuss these proceedings with the children save to explain in neutral terms the outcome of the Orders made herein.
The father is to do all acts and things and sign all documents as may be necessary to procure the issue of a passport for each of the children and such passport shall be held by the mother or the stepfather at all times.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Lott and Graham and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 660 of 2009
| Mr Lott |
Applicant
And
| Mr Graham |
First Respondent
And
| Ms Graham |
Second Respondent
And
| York Family Law |
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Introduction
The proceedings before the Court are parenting proceedings in respect of two children: C, who is 10 years old; and B, who is 8 years old.
Mr Lott (“the father”) and Ms Graham, (“the mother”) were in a relationship for approximately four years. They separated in 2007 and have both since re-partnered.
The father is the Applicant in these proceedings and the mother is the Second Respondent. The First Respondent, Mr Graham, is the mother’s husband and the children’s stepfather (“the stepfather”).
The children have a half-brother and a half-sister. The children’s half-brother D is 18 years old and the child of the mother and her former partner, Mr E. The children’s half-sister F is the child of the mother and the stepfather. No orders are sought by any of the parties in respect of D or F.
Associate Professor G was appointed as a single expert in these proceedings (“the expert”). The expert is a consultant child and family forensic psychiatrist. She has prepared two written reports in respect of these proceedings and she gave oral evidence at the final hearing.
At present the children live with the mother and the stepfather in a four-bedroom home in Suburb H, NSW (“the Graham household”). F also lives in the Graham household and D visits frequently. The evidence of the expert is that the children are settled in the Graham household.
The father has not lived with the children since 2007 and does not presently spend any face-to-face time with the children. The last time that the father saw the children was in August 2008 (apart from occasions in 2011 and 2012 when interviews were conducted with the expert for the purpose of these proceedings). Between January 2009 and May 2012 the father had supervised telephone contact with the children pursuant to Court orders. A brief summary of the procedural history of this matter is set out below.
In his present application before the Court the father seeks orders to the following effect:
(a)That the mother and father have equal shared parental responsibility.
(b)That the children live with the mother.
(c)That the children spend time with the father supervised at a contact centre for three months and, thereafter, spend time with him on alternate weekends, during school holiday periods and on special occasions.
The mother and stepfather, who ran their cases jointly in these proceedings, seek orders to the following effect:
(a)That the father’s application be dismissed.
(b)That the mother be granted sole parental responsibility for the children.
(c)That the father be required to sign the necessary documentation to allow for passports to be obtained for the children.
After the conclusion of the evidence, the Independent Children’s Lawyer (ICL) sought orders that the mother and the stepfather have jointly and to the exclusion of the father parental responsibility for the children. An order was sought that there be no face-to-face contact between the father and the children and that the father’s contact be limited to once per year by letter or by card, and that the father be able to provide some Christmas gifts for the children. An order was also sought by the ICL that the mother and stepfather provide to the father reports on the children’s progress.
Brief Procedural History
In December 2008 the father commenced parenting proceedings in the Local Court. At that time, the children were living with the stepfather. The mother was in gaol having been found guilty of a fraud offence and sentenced to a period of incarceration.
In January 2009 orders were made which allowed for the father to have telephone contact with the children on the condition that the phone calls were supervised by Mr Graham Senior, the children’s maternal step-grandfather. The proceedings were thereafter transferred to the Federal Magistrates Court.
In March 2009 an Independent Children’s Lawyer (ICL) was appointed.
In April 2009, the order for supervised telephone contact between the father and children was suspended.
In June 2009, consent orders were made allowing the father to have weekly telephone contact with the children, provided that such contact was supervised by Mr Graham Senior.
The consent orders of June 2009 were in effect at the time of the final hearing, however, the Court is informed that the weekly telephone calls have not taken place since May 2012.
In February 2012 the matter was transferred to the Family Court of Australia.
Background Facts
Where in this judgment I make statements of fact they are, unless otherwise specified, my findings of fact.
In 1973 the father was born. He is currently 39 years old.
In 1974 the mother was born. She is currently 38 years old.
In 1977 the stepfather was born. He is currently 35 years old.
In 1995 the child D was born. He is currently 18 years old.
The mother and father do not agree on the date that their relationship commenced. The father asserts that they met in early 2000 and commenced cohabitation in February 2000. The mother asserts that they met in February 2001 but she does not give evidence as to the date that they commenced cohabitation.
The father asserts that at the time he met the mother he was known by his alias “Mr AB”, in honour of his grandfather. The father was a nominee for a club and the mother was working as a dancer. The mother also ran her own business, Business J.
In October 2000 the company A Pty Ltd was incorporated with Mr I, the father’s brother, listed as the sole proprietor.
In March 2002, while the mother and father were returning from a holiday together, the father’s car was searched by the Police and a liquid substance thought to be a drug was found in the boot of the car. The father was charged with drug manufacturing and held in remand custody for one month before being granted bail. The father was ultimately found not guilty of the charge in November 2002.
On 25 September 2002 the company K Pty Ltd was registered with the mother and father as directors.
In October 2002 the child C was born. She is currently 10 years old.
The mother asserts that in December 2002 the father assaulted her. According to the mother, the father threw her across the lounge room in front of C and D leaving her unconscious. The father denies that this alleged assault occurred.
On 1 January 2003 there was a violent altercation between the mother and the father in which the Police became involved.
From the material produced by the Police on subpoena it appears that the following events transpired. The mother was driving a car and the father and C were present in the car. The mother drove into a police station (following a turn of events which, the mother asserts, had seen the father become verbally and physically aggressive towards her). Whilst the mother was driving into the police station, the father grabbed the mother by her hair and shook her head violently, causing her to strike her head against the car door (this was witnessed by police, who had come out of the station to assist the mother). The father was taken to the ground and handcuffed. The mother got out of the car and collapsed; she was then escorted into the station to make a statement. The father was charged with actual assault, putting a child/young person at risk and interfering with the control of a vehicle.
Soon after the events of 1 January 2003, the mother requested that the charges against the father be dropped.
In May 2003, the mother purchased a personal services business and commenced working there full-time.
In August 2003 the mother and father married. They continued to reside separately.
The mother asserts that in January 2004 and March 2004 the father sexually assaulted her.
The mother asserts that in February 2004 she found an “ice pipe” (a device apparently frequently associated with the smoking of illicit drugs) and white powder in the father’s car.
In July 2004, the mother commenced treatment with a psychiatrist. She asserts that she was suffering from depression at this time.
The mother asserts that in October 2004 the father overdosed on the drug gamma-Hydroxybutyric acid (“GHB”). The mother says that the incident occurred in front of herself, D and C. The father admits that he had a problem addiction at that time to the drug GHB.
In December 2004 the child B was born. She is currently 8 years old.
The mother asserts that in March 2005 she and father separated under the same roof but on a final basis. The father asserts that separation occurred in January 2007.
In or around August 2005, a series of incidents occurred at the mother and father’s home which resulted in the mother making statements to the police.
The father concedes that he physically assaulted the mother on one occasion in around August 2005. The Court notes that this is the first of two incidents in which the father conceded that he “overstepped the mark” during his relationship with the mother. The father’s evidence is that he “pigeon chested” the mother after she blocked a doorway with her body in an attempt to refuse him passage through it. In addition to that incident, the mother gives evidence of the father breaking into the house, smashing windows and destroying property on other occasions at around this time.
On 29 August 2005 the father was charged with domestic assault and an interim AVO was granted in the mother’s favour. The mother asserts that the father breached the conditions of this AVO and that he was arrested as a result in October 2005.
In October 2005 the father attended a drug rehabilitation program at L Treatment Centre. He remained in the program until February 2006. Upon completion of the program, the mother and father cohabited intermittently for a period of approximately one year. They do not however appear to have reconciled for any sustained period.
In December 2005 the child D stopped living with the mother and commenced living with Mr E (his father).
In February 2006 the father was charged with common assault of the mother and destruction and/or damage of property. He received two suspended sentences and a 12 month good behaviour bond.
The mother asserts that in September 2006 the father sexually assaulted her.
In or around late 2006 the mother and the stepfather met.
In January 2007 the mother moved with the children from her mother’s house to a house in Suburb M. The father continued living with the mother’s parents.
In March 2007 the mother and the stepfather commenced cohabitation.
In July 2007 the mother was served with papers relating to a criminal fraud investigation with respect to the companies K Pty Ltd and A Pty LTd. The criminal investigation lasted one year. The mother was ultimately charged with the offence of obtaining financial advantage by deception and dealing with the proceeds of crime. The father’s brother was also charged however the father was not. The mother was remanded in custody and the children were placed in the full-time care of the stepfather.
In October 2008, the mother was found guilty of obtaining financial advantage by deception. She was later sentenced to a period of incarceration for seven years with a non-parole period of six years. The mother served three years and five months of the original sentence owing to a successful sentencing appeal.
With respect to her period of incarceration, the mother asserts and was not cross-examined on the following:
(a)for the whole period the children lived with the stepfather, who was helped by other family members. The children also spent time with D on weekends and during school holidays.
(b)from October 2008 to May 2009 (approximately seven months), the mother was placed in N Correctional Centre and O Correctional Centre. The mother spoke to the children on the telephone twice daily. B, who was not yet attending school, visited the mother each Tuesday. During the school holidays, C and D would join B on her Tuesday visits with the mother.
(c)between June 2009 and February 2010 (approximately eight months), the mother was placed in P Program Accommodation. The mother continued to speak to the children over the telephone twice daily. D visited the mother on weekends with the stepfather. The subject children visited the mother during school holidays.
(d)between February 2010 and February 2011 (approximately one year), the mother was relocated to Q Correctional Centre. The subject children and D visited each Saturday and Sunday, and they also visited during school holidays.
(e)from February 2011 to July 2011 (approximately five months), the mother was again placed in P Program Accommodation. During this period of incarceration, the mother was able to take the children out into the community. She did so on at least six occasions.
(f)in July 2011, the mother was transferred to R Centre. The children resided with her from Friday to Sunday each weekend and for all of the school holidays periods.
(g)between July 2011 and October 2011, the mother had three day leaves which she spent with the children.
(h)between October 2011 and her date of release in March 2012, the mother had weekend leave each week. She spent this time with the children.
On 11 June 2009 consent orders were made between the parties in the then Federal Magistrates Court of Australia, with the effect that the children would continue to live with the stepfather and have supervised telephone contact with the father each Friday at 6.00 pm.
On 17 July 2011 the expert released the first expert report (“the 2011 report”).
On 6 February 2012 the proceedings were transferred to the Family Court of Australia.
In March 2012 the mother was released from prison. She resumed full-time care of the children and began working part-time at a healthcare practice.
In August 2012 the child F was born. She is currently 8 months old.
In September 2012, the father was charged with driving a vehicle with a high range prescribed concentration of alcohol (PCA) in his system.
On 7 March 2013 the expert released the second expert report (“the 2013 report”).
The Orders Sought
The father seeks the following orders as set out in his Amended Initiating Application filed on 1 May 2012:
1.That the parties have equal shared parental responsibility for the children of the relationship, namely [C] born on … October 2002 and [B] born on … December 2004.
2. That the children live with the mother.
3. That the children spend time with the father as follows:-
(a) [Order 3(a) redundant as time has elapsed]
(b) From July 2012 onwards:-
(i)the close of school on Friday afternoon to the following Sunday at 6.0 0pm, each alternate week, during the school term; and
(ii)for one half of each school holiday period as it falls within this block at times and on dates to be agreed between the parties.
Such time shall be unsupervised.
AND THE FOLLOWING ADDITIONAL ORDERS
Christmas
4. [Order 4 redundant as time has elapsed]
5. From Christmas Day 2013 at 9.00 am to 5.30 pm.
6.From Christmas Eve 2014 at 4.00 pm to Christmas Day at
10.00 am and each alternate year thereafter;7.From Christmas Day 2015 at 10.00 am to 10.00 am on
Boxing Day and each alternate year thereafter.
New Year
8. [Order 8 redundant as time has elapsed]
Easter
9. [Order 9 redundant as time has elapsed]
10. From 4.00 pm on Good Friday to 4.00 pm on Easter Saturday 2014 and each alternate year thereafter.
11.From 4.00 pm on Easter Saturday to 4.00 pm on Easter Sunday in 2015 and each alternate year thereafter.
Father’s Day
12. [Order 12 redundant as time has elapsed]
Children’s Birthday
13.For a period of 2 hours on a school day and for a period of
4 hours on a non school day where the children do not otherwise spend time with the father and, failing agreement from 4.00 pm to 6.00 pm on a school day and 1.00 pm to 5.00 pm on a non school day, conversely the same for the mother.
Other Times
14. At all other times by agreement between the parties.
Telephone time
15.That the children have telephone contact every day with the parent with whom they are not living with at all reasonable times.
Parenting course
16.That the mother attend the following course in respect of the parenting:-
(a) Parents not partners; and
(b) Keeping kids in mind.
Other
17.That the parties do all acts and things and sign all authorities necessary for each of the parties to each receive a copy of all school reports, notices, circulars and other correspondence in relation to each of the children’s schooling, sport and behavioural issues and to attend parent teacher interviews, sporting and social events and any [sic] other time as requested or required.
18.That each party keep the other party informed in writing of any change to their residential address, landline and mobile telephone number within 24 hours of any such change.
19That each of the parents notify the other forthwith of any significant illness, medical emergency, hospitalisation or accident in relation to either or both of the children when the child or children is in their care and in the circumstances where attendance upon a medical practitioner relates to a significant illness or ailment. Each of the parties shall notify the other in writing of the names of hospital, medical facility or medical practitioner upon which the child attends in such circumstances and reasons for attending.
20.That each party be restrained from changing the residence of the children from Greater Metropolitan Sydney.
21.The mother and father shall be and are hereby restrained from removing or attempting to remove the children from the Commonwealth of Australia and it is requested that the Australian Federal Police give effect to this Order by registering the children’s name on the Watchlist. It is directed that the father forthwith serve a sealed copy of this Order on the Australian Federal Police.
22. Order 3 shall be suspended at times when Order 4 to 14 apply.
The mother and stepfather proposed the following orders as set out in their Case Outline Document dated 8 April 2013:
1. That the Applicant Father’s application be dismissed.
2.That the Mother have sole parental responsibility in relation to the children namely [C] born on the … October 2002 and [B] born on the … December 2004.
3.That there be no order for the Father to have contact with the children.
4.That within fourteen (14) days, the Mother shall provide to the Father original passport applications in respect of the children, [C] born … October 2002 and [B] born … December 2004.
5.Within fourteen (14) days of presentation of the passport applications, the Father shall do all acts and things and sign all documents to provide to the Mother an original executed and witnessed copy of Passport Applications for the children.
6.The parties shall execute all documents and do all things necessary to give effect to these Orders.
The orders proposed by the ICL were presented on the final day of the hearing during oral submissions and have been summarised above.
The Issues
At the commencement of the hearing the following issues were outlined by the ICL in his Case Outline Document as being key to these proceedings:
(a)Should the presumption of equal shared parental responsibility apply?
(b)Does the father pose a risk to the children by virtue of the following:
(i)Drug and alcohol use?
(ii)Exposure to violence?
(iii)Criminal or other antisocial conduct?
(c)Are the children being exposed to emotional harm in the care of the mother and stepfather by virtue of them maintaining the children in a state of fear of the father?
(d)Is either parent and the stepfather able to facilitate a relationship between the children and the other parent?
(e)What benefit is there to the children in any orders for time, having regard to findings the Court makes in relation to the issues above, as well as having regard to the views of the children and the weight to be attached to such views?
The Evidence
Each of the mother, the stepfather and the father gave written and oral evidence.
The following additional witnesses were called in the order set out below:
(a)Ms S, a close friend of the father’s
(b)Mr S, a friend of the father’s and the husband of Ms S
(c)Ms U, the father’s current partner
(d)Mr Graham Senior, the stepfather’s father and the children’s maternal step-grandfather
(e)Ms Graham Senior, the stepfather’s mother and the children’s maternal step-grandmother
(f)Ms Ms V, the mother’s sister
(g)Ms W, who worked as a babysitter for the mother and father during the period that they cohabited and
(h)the expert, who gave evidence by telephone on the final day of the hearing.
The expert’s final recommendations were, depending on the Court’s findings, that there may be a slow and gradual reintroduction of the children to their father, provided that such reintroduction was supported by ongoing therapy for the children in managing their anxiety and fear and that the situation be reassessed after a period of time. If and only if in a reassessment concerns were not raised that there was psychological harm to the children could contact with the father be progressed. Even then, such progression would be effected slowly and over a further period. In the event, however, of a finding by the Court that there was a danger of physical or psychological harm to the children in having contact with the father, the expert’s recommendation was that there should be no face-to-face contact and only recognition contact.
Credit
With respect to the father, the mother and the stepfather, the Court has no doubt that all of them were witnesses whose evidence was unreliable in parts. None of them made an entirely satisfactory witness.
Ultimately, the Court was able to come to some conclusions about the evidence they gave where that evidence was capable of being independently corroborated by other evidence. That included where the evidence from reliable sources (namely, Mr and Ms Graham Senior, the expert, COPS documentation and other reports and records made available to the Court) corroborated the evidence presented by the parties.
The father’s oral evidence was at times careless and imprecise. He was
non-responsive to some questions and gave lengthy answers to other questions, which were not confined to the question being asked of him. In an effort to explain inconsistencies between his evidence and the evidence of the mother and stepfather, the father on a few occasions told the Court that the respondents’ evidence had been “engineered”.
When questioned on inconsistencies between his evidence and the evidence produced by the Police under subpoena, the father’s response was that they had got it wrong. This was the same explanation given to the Court by the father for “errors” which he asserts are contained in the expert’s reports and which he asserts contradict his evidence. The father said of his own psychologist that he was wrong in his reporting of statements made by the father.
The father’s minimisation and description of his problems with drugs are counter to the information given by him on his admission to his rehabilitation care which included problems with cannabis, amphetamines, cocaine and ecstasy.
The father’s evidence as to his violent behaviour runs counter to the statements made by D to the expert who notwithstanding the husband's cross-examination and suggestion otherwise said that D was not coached in what he said.
The Court is not satisfied that the father was telling the truth at all times during his oral evidence; rather, it appears that he was prepared to tell the truth when it supported his case. Despite the imperfections in her evidence in relation to most areas of conflict between them, the Court unless otherwise specified accepts the evidence of the mother.
The mother presented as a witness of high emotion and the expert said of her that she tended to dramatise events.
The Court agrees that the mother’s dramatic quality was displayed by her during her oral evidence. The father it is noted declined to cross-examine the mother in response to an assertion by the mother at the commencement of the hearing that she would not be able to bear it, having regard to her suffering domestic violence at his hands in the past. Given her level of anxiety, it seems likely that that would have been true had the father cross-examined her. The father has to be commended for his willingness to accommodate the mother’s anxiety in this respect.
The stepfather was clearly committed to the mother and her version of events. During cross-examination he told the Court that the father made threats to him during an altercation at the Local Court in 2009. Upon further questioning, however, it became apparent that the stepfather had been responsible for provoking the father in this instance. It was only after being faced with the reality of a COPS Report containing the observations of a Court Officer who had been present during the altercation (produced under subpoena and tendered as part of Exhibit 4), that the stepfather was prepared to acknowledge that he had in fact provoked the father.
The failure of the stepfather to be frank about the above incident when first questioned on it was in the Court’s view concerning and reflected poorly on his credibility. The Court also notes that his failure in this regard is consistent with what appeared to be his position that the mother should and would be supported no matter what.
The oral evidence of Ms S was not in the Court’s view reliable and it also lacked probative value. Ms S described herself as the father’s best friend and a support person to the father. She made strong assertions about the father not being violent that do not seem to match the history of the father’s conduct, which can be gleaned from independent evidence before the Court.
The Court finds that the evidence from other sources with respect to the past violent conduct of the father is more reliable and will be preferred to that given by Ms S.
The evidence of Mr S did not appear to be unreliable but it was of limited probative value.
Ms U, the current partner of the husband, appeared to be a witness of truth who gave evidence to the Court as she saw it and in an apparently honest and direct manner. At the time of giving evidence, Ms U had been in a romantic relationship with the father for approximately 11 months. She was very supportive of the father however her evidence was not overly helpful to the Court.
It is the Court’s view that some of the more pertinent issues in the proceedings were cast aside by Ms U due to an overriding belief that the father had a “right” to see the children. In reality, the father has obligations towards the children not rights, except perhaps the right to fulfil his obligations and, whilst a concept difficult for many litigants in this court to grasp, that fulfilment must be considered within the overarching paradigm of what is in the children’s best interests.
Mr Graham Senior was in the Court’s view a witness of truth who gave direct answers to the questions asked of him. He gave evidence with respect to his role as supervisor of the phone calls between the father and the children for a period of approximately two years commencing in around June 2009.
Mr Graham Senior stated that he never observed the father saying anything directly inappropriate to the children during these calls. He did however state that there were times when he would have approached things differently to the way in which the father did. Mr Graham Senior explained that it was his view that the children were “relieved” when their calls with the father ended each week. The father declined to cross-examine Mr Graham Senior.
Ms Graham Senior also appeared to the Court to be a witness of truth. She gave evidence, inter alia, on her role as the school principal (now retired) of the primary school which the children attend.
Ms Graham Senior recalled to the Court an incident when the father had telephoned the school and requested information of her regarding the children. She declined to give any information to the father over the phone and explained that, as the school principal, she was not obliged to do so. Ms Graham Senior told the Court that that was the only conversation she has ever had with the father and that the children have never expressed to her a view about their father, positive or negative. The father declined to cross-examine Ms Graham Senior.
The evidence of Ms V was not in the Court’s view of high probative value. She was clearly in support of the mother. When asked by the father if she believed that a child should not see their father, Ms V answered that she did not believe children should be around a person who can cause harm to them.
The evidence of Ms W must in the Court’s view be treated with caution. Ms W was employed as a weekend babysitter for the mother and the father for the period, she says, from 2001 to 2006. During cross-examination of Ms W by Counsel for the ICL, it came to light that there existed a number of factual inaccuracies in her affidavit material.
Ms W was willing to say that whilst she fulfilled the role of the parties’ babysitter, the father was engaged in criminal activities in the home. No particulars were given of what that activity amounted to other than “business meetings”. In the Court’s view, Ms W was a witness who lacked particularity in her evidence and therefore credibility. Her evidence cannot be given any great weight.
Relevant Law
Legal principles
The principles governing this case are set out in the Family Law Act 1975 (Cth) (“the Act”). In deciding whether to make a particular parenting order I must regard the best interests of the children as the paramount consideration (see
s 60CA). In determining what is in the children's best interests, I must consider certain matters under s 60CC. Those matters are the "primary considerations" and the "additional considerations" which are also set out in that section.
I am required to ensure that any order I make is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence, to the extent that doing so is consistent with the children's best interests being treated as paramount (see s 60CG).
I will also be guided by s 60B which sets out the objects of the part of the Act dealing with the children and the principles underlying it.
In addition, I am required to consider matters set out under s 60CC(4) and (4A) of the Act. Without specifically setting out what those matters are I state that I have in these reasons dealt with those matters.
Section 61DA(1) requires that:
… When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child's parents to have equal shared parental responsibility for the child.
Subsection (4) provides as follows:
… The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Section 65DAA requires me to consider the children spending equal time or substantial and significant time with each parent, where the Court is proposing to make an order that the children's parents are to have equal shared parental responsibility.
Section 60CC Considerations
Primary considerations
(a)The benefit to the child of having a meaningful relationship with both of the child’s parents
It is the case usually that children should have a meaningful relationship with each of their parents, providing that such relationship best serves their interests and will not bring harm upon them, either physically or psychologically.
The benefit which flows to a child from having a meaningful relationship with each of their parents involves, inter alia, a consideration of the way in which a child presently and for the future sees or will see him or herself; it also involves a consideration of the benefit for a child flowing from the opportunity to have each of their parents contribute to their growth and development.
The father emphasises in this case that the children need the input of each of their parents to accommodate their needs and to promote their best interests. The Court formed the view that, whilst the father was certainly antagonistic towards the stepfather, he acknowledged the contribution that the stepfather had made to the children’s development and recognised the positive contribution that the stepfather had made to their care and development.
It is asserted by the father that his relationship with the children was, until the stepfather came on the scene, as described in the family report produced in 2006 for the purpose of Family Court of Australia proceedings between the mother and her former partner, Mr E (this report is in evidence and will be referred to as “the 2006 report”).
The 2006 report described the father, who was then the partner of the mother, in favourable terms. It is the father’s assertion that the difference in findings between that report and the expert reports produced in the current proceedings is attributable to the conduct of the stepfather not himself. That proposition was put to the expert who rejected the submission and said, in effect, that the children’s view of the father was sourced in experience and at least in a recounting of experience by D.
Ultimately, it is the Court’s view that the aetiology of the children’s anxiety and fear is not as important as the fact that it exists and is likely to be exacerbated to their detriment if contact with the father is ordered.
(b)The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The children in this case are mature, healthy, intelligent children. They are socially well adjusted and progressing well at school, as deposed by the expert. Despite these observations, the children are anxious and do not in the expert’s view wish to pursue a relationship with the father.
Of the children’s anxiety the father says that this is a response to the anxiety created in their household by their mother and the stepfather. To this end, he asserts that their anxiety has no basis in reality.
It is the father’s view that the anxiety has been created or fabricated by the mother and stepfather for the purpose of denying to the children the benefit of his input into their lives.
He further says that the children’s anxiety has been engendered by inculcating in the children the false belief that he wishes to “take them” from their mother. It is true that the father originally sought an order that they live with him at a time when the mother was in custody; however, he now seeks contact only, initially on a supervised basis, so that he can slowly establish a new relationship with the children.
The expert says that the children have a real fear of the father which has been engendered by personal experience, in the case of C, and by the recounting of experience by C and D to B, in the case of B.
There seems to be little doubt in the expert’s mind that the process of introducing contact with the father would make the children more anxious than they presently are, at least in part because the mother and stepfather would not be able to control their anxiety or keep it hidden from the children.
The Court is of the view that if the children’s anxiety stems from the anxiety of the mother and stepfather, even though that is in the father’s view exaggerated, it is still nevertheless an anxiety which is palpable. From whatever source it arises, that anxiety is the children’s reality which must be dealt with.
It seems to the Court that the mother’s anxiety as displayed in the witness box adds verisimilitude to this suggestion. Whilst the stepfather expressed an ability to cooperate with any order made, his history is one of confrontation and provocation and it seems unlikely that either he or the mother have the requisite self-control to prevent them from letting their anxiety be observed by the children. Even if they were to be able to achieve that degree of control, the Court is doubtful that the children would not know or be aware of their mother and stepfather’s views of and responses to the father, unspoken or otherwise.
It is suggested that that inability, coupled with the children’s present anxiety, would lead to a household in which the children could find no peace. An environment fuelled with such anxiety is not likely to facilitate the proper development of these children and would be likely to subject them to harm.
The expert did however say that there would be a danger if the Court came to the conclusion that the assertions made by the mother as to the past violence in the home with the father were without realistic foundation. Notwithstanding the danger, on a margin it would be desirable for the children to have some very carefully supported and supervised contact with the father, so that they may come to an acceptance of the reality and at least know their father in the light of the found reality. The Court does not however find that the violence alleged by the mother is without realistic foundation.
The Court finds that these children have endured enough and that the circumstances which give them reason to live in fear and be anxious must cease. If the Court were to make orders for the staged contact referred to by the expert, given the evidence in this case as to the conduct of the parties, it is highly likely that the children would continue to be assailed by the feelings of those around them to their detriment.
The position of weekly telephone contact has given the children no benefit and, having regard to the evidence, there is in the Court’s view no reasonable likelihood that this benefit might flow to the children in the foreseeable future.
Spending time with someone else has to provide a benefit to children. In some cases, that benefit might be acquired after some short-term discomfort. In this case, however, the Court finds that the strength of the mother and stepfather’s dislike of the father means that any discomfort borne by the children is unlikely to be of sufficiently short-term to warrant such an experiment.
If there is an absence of tension and the father can maintain both sobriety and a course of conduct which does not provide criticism of the children’s household, it may be that when the children approach majority they decide to seek and have the benefit of a relationship with him. For now, however, the children are in their formative years and the potential for damage to their development and welfare by being maintained in a constant state of anxiety is too likely to permit continuing contact with their father, other than for the purpose of recognition.
There are other asserted aspects of the father’s personality and behaviour which gave rise to concern in the expert. The father has admitted to drug use and has undergone rehabilitation for that problem. He claims that he is presently drug free and that since his rehabilitation he has not taken drugs, however these are self reports.
The Court would like to think that the father’s claims as to his present lack of drug use are true. It is, however, a matter of public record that the father was in September last year charged with driving with a proscribed amount of alcohol in his blood in the high range. The father’s explanation for this offence was that he was depressed and concerned about these proceedings. The Court has concerns that if the father reacts to stress by self-medicating on alcohol, this could at some stage occur in the presence of the children. Even though the Court cannot otherwise find that the father continues to take drugs, he does have a number of other problems which are adumbrated in the expert’s report.
The father clearly has been violent to the mother in the past. Although the extent and degree of the violence is in issue between the parties, the independent evidence from COPS reports convinces the Court that there has been a history of significant violence and violence witnessed and remembered at least by C. B’s anxiety might well be reflective of the experiences of her mother, her sister and perhaps her step-brother, D, who has also witnessed the violence. Whatever be the cause of the anxiety in C and B, in either child it exists and that is the factual reality which needs to be dealt with.
According to the expert, the father suffers from a number of personality deficits. At page 65 in the 2011 report, the expert said of the father the following:
[The father] presented his history in quite a grandiose way; he seems also to have the capacity to be quite engaging; these are some of the characteristics of a narcissistic personality. Also apparent from the way he presents is a strong externalising focus – responsibility for problems is generally located outside of himself – together with the likely history of violence, law breaking and substance abuse, this is suggestive of antisocial personality traits. His affect was labile and his thought processes were highly fragmented, which may be reflective of a borderline personality disorder but may also suggest more severe mental disorder or, possibly, the effects of stimulant drugs. The history of violence and impulsivity also suggest borderline traits. Overall his presentation was consistent with personality disorder of cluster B type (narcissistic, antisocial and borderline; see Appendix).
During the hearing, the expert was asked by the ICL how, in general terms, the above personality traits impact upon a person’s parenting. In response to this question the expert gave evidence as follows:
Well, it’s very serious. They’re very serious deficits in terms of parenting. In terms of the narcissistic features, a lack of empathy was very prominent in that, and that’s the very converse of what’s required for effective parenting. In terms of borderline, there’s difficulty with containing impulses and emotions, and that also has a very negative impact on parenting, and obviously antisocial creates extremely difficult circumstances for parenting.
From the above descriptions the Court has formed the view that the personality traits observed in the father are less than desirable in a person seeking to play a significant part in their children’s lives. Indeed, these personality traits give rise to concern for their potential to have an adverse effect on the children.
The father it appears may be unable to perceive matters from another’s point of view. The expert in her oral evidence described how the father, when interacting with the children during the assessment sessions, had a tendency to “pursue his own agenda rather than to tune into where [the children] were at”.
With respect to his criminal record, the father speaks in terms of “fabrications”, “set ups”, “manufactured charges” and the like. In the past he had also displayed paranoia and aggression on admission to hospital, seemingly under the influence of drugs. The father for his part denies that this is so.
The father says that he has acknowledged readily his past criminal record, of which he also says that he is not proud. He has said that the past is where such record rests. He denies any current criminal conduct and points to his employment and the reference of his employer. On the question of not accepting blame and blaming others, he points to the fact that he has not been convicted of all offences with which he has been charged. The Court can draw no conclusion from this other than that he was not convicted of the offence. If the father gave no reason to be charged one could readily understand his chagrin.
The father described his problems to his own psychologist, Mr X, during consultations which took place in late 2002 and early 2003. A report by Mr X dated 2 March 2004, which is in evidence, states that the father made certain acknowledgements during the consultations with respect to his mood and personality. The report of Mr X states:
In response to questioning [the father] acknowledged mood disturbance manifest by irritability, intolerance and explosive temper.
The father also appears to have acknowledged to Mr X that he assaulted his partner in a fit of rage. If the independently confirmed acts of violence are considered, this would appear to be likely. It should also be noted that the father, although relying apparently on this same report for other purposes, was prepared to say in respect of this observation that Mr X “got it wrong”.
Mr X also stated that the father had reported suicidal thinking. With respect to circumstances at the time the father was charged with methamphetamine production and consequently incarcerated on remand, Mr X stated that the father “spoke of excessive alcohol consumption in response to the elevated stress in his life.” The father was in respect of this charge not convicted of any offence.
In the Court’s view it has not been demonstrated that the father has regained full control of himself. He was highly emotional during the proceedings and reduced to tears at times. There is no doubt that his emotions were running high, nor is there any doubt that for him these children are important and that he does love them.
The father has undergone an anger management course but he did so believing it seems that he did not need to. In his oral evidence he described himself as someone who can be “very assertive, but not aggressive”. That description does not however seem to accord with events of the past.
The father asserts that he has been rehabilitated, having undergone a number of courses including the anger management course which he claims he did not need. He says that owing to his rehabilitation he is a changed man. Whilst one would hope that this is so, the mother does not accept the father’s assertions and remains extremely fearful of him, as the expert reported. The mother’s fear has been transmitted to the children and had the effect of sustaining fear and trauma in the present, irrespective of whether the father’s problems as described above are still operative. If the mother’s fears are well founded this may be an inevitable outcome.
In 2012 the father was convicted of driving with a proscribed quantity of alcohol in his blood in the high range and so it would appear that his rehabilitation is not complete. In any event, this case ultimately does not turn so much on the father’s rehabilitation as it does on the climate in which the children might be raised, the anxiety they might feel and the harm they might be subject to in the event of continuing contact (face-to-face or over the telephone) with the father, measured against the loss of such a relationship with the father before they turn 18 years of age.
As to the dangers for the children in continuing contact with the father, the expert in the 2013 report says as follows at page 27:
[C] has been significantly affected by the events of her early childhood years and she continues to manifest symptoms of trauma that focus on memories of [the father’s] violence; she would require the intervention of a clinical psychologist if there were to be a progression of contact. [B] is less affected but she too would require the support of a clinical psychologist if there were to be a progression of contact.
With respect to the risk of danger in their present care, the expert says as follows at page 26:
At present there is little to suggest that there is any risk of harm to the children in care of their mother and [stepfather] unless it is the case, as [the father] suggests, that they are teaching the children to hate him and to believe that he is a violent man by providing misinformation about alleged past violence;…
There is no evidence on which the Court is able to form a view that the mother and stepfather are teaching the children to hate their father as alleged by the father. Having said that, there is no doubt that the anxiety and fear displayed by the mother is reinforcing any anxiety the children might have. It seems in the Court’s view that the children’s anxiety stems from both report and experience.
The expert in the 2013 report wrote that the arrangement of weekly telephone contact was “unsatisfactory”. She further explained her opinion on that arrangement to be as follows:
The children are reluctant and it is difficult for them to sustain telephone contact when they have no relationship with [the father].
There seems on the evidence little doubt that that is right.
With respect to the prospect of a slow and graded introduction of contact, the expert said that this should be executed with extreme caution and be accompanied with review and reassessment processes, together with psychological support for the children. It must be noted, however, that it was the expert’s view that any attempt to introduce progressive contact ought not be made in the following circumstances:
If the Court were to determine that the father’s history cannot be relied upon and that there has been violence or threat of violence since 2006 and that there is a risk of harm to the children, psychological or otherwise, then this would raise a serious consideration of what benefit there would be for the children in attempting to establish some form of relationship between them and [the father].
An issue which arose in the proceedings is the contradictory accounts given by the parties as to the relationship between the father and his former partner,
Ms Y. The mother and stepfather assert that the relationship was one in which the father was violent towards Ms Y, however the father maintains those allegations are false and that he and Ms Y remain friends. An affidavit sworn by Ms Y was filed but she was not called by any of the parties to be cross-examined and the Court has therefore disregarded the affidavit. The Court is unable to make any findings in relation to this issue.
The father says that much of the mother’s allegations are exaggerated and at odds with the 2006 report which was produced in relation to proceedings between the mother and her former partner. He says that the true nature of his relationship with the children is demonstrated by that report and by a video which was taken by him on a visit with the children to Taronga Park Zoo in 2007.
The video has been viewed by the Court. It depicts two children eating ice cream and responding to a number of questions asked of them by their father. There is no fear demonstrated by the children of their father in the video, but it is noted that C at one point asks what the time is and the father, by way of assurance, says that it will be time to go shortly.
In contrast to the video are the conversations between the children and the expert, both alone and in company of the father. In the latter exchange, the father seemed to think that the process went well; the expert on the other hand said that it demonstrated the father’s lack of empathy and his inability to see things from the children’s point of view rather than his own. The Court considers that this is an important deficit in the father’s parenting ability.
One could readily understand the sense of injustice felt by the father in the event that contact with his children was denied to him because of something that he did not do. However, in cases such as this, the Court is obliged to consider the facts as they are, the effect of those factual situations on the children, and the likelihood of positive benefit flowing to the children in the event that orders are made for them to spend time with the father. It is their welfare, not the father’s needs, which is paramount.
Additional considerations
(a)Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The children made a number of statements to the expert during their consultations with her.
With respect to her interview alone with the older child, C, the expert stated as follows in the 2013 report.
C volunteered to the expert that some months ago, after a phone call from their father, she and B were both upset and both of them started vomiting.
The expert described C in the following terms:
[C] was preoccupied with memories of the past and continued reporting them: She can remember what happened in the past with [the father]: she can remember that ‘he hit mum and mum had bruises’.
C also recalled to the expert an incident where B fell out of a window and the father was at home but did nothing to help. She recalls D calling the mother, who came home and was angry with the father and that there was then an argument.
With respect to her life at present, the expert said that C was “anxious to emphasise that she is happy at home and at school.” In the expert’s view, C was clearly emphasising these matters because she remained anxious that she might be taken away from home. C also reported that she had nightmares about her father and that she was most likely to have these nightmares after his phone calls.
Given three wishes, it is reported that C said as follows:
She would wish that he never existed except that would mean that she wouldn’t exist. She wants to stay happy with her family and for ‘[the father] to leave us alone’. She would like to tell the Judge that she doesn’t want to see [the father] and she doesn’t want any more phone calls.
With respect to her interview alone with the younger child, B, the expert stated as follows in the 2013 report.
B said that she sometimes had nightmares about “[the father]” and explained that this is because she has heard about him from D and C, “so she dreams about him taking her mum away.” She said that when her mother was in prison she used to worry about mum and that C would awake in the night crying for her mother. The child’s anxiety seems to have found its genesis in what she had been told by others and, in particular, what she had heard that the father had done to the mother (the expert reported that B had “heard that he used to bash mum”).
B reported that she thought the father was scary when she met him. She said that she does not talk to him much on the phone and that it is hard because she does not know what to talk about. When asked about her three wishes, B said that she only had one, which was for Court to be over.
The expert gave oral evidence in relation to the wishes that the children had expressed to her. This evidence can be summarised as follows:
(a)the children (aged 8 and 10 years) are developing fairly normally and are at a normal level of maturity, however they are very anxious.
(b)the children had expressed to her quite strong wishes in respect of contact with their father.
(c)both children had expressed to her the wish that they do not want to see their father.
(d)those wishes should be strongly taken into account. To that end, the expert deposed as follows:
Given, the level of anxiety I think it’s hard – it’s difficult to do anything but take that very strongly into account. There would have to be very compelling reasons in the face of such high levels of anxiety, to insist that they nevertheless confront the situation that they’re afraid of.
(e)if the wishes of the children are not heard or listened to or given weight, the children’s levels anxiety are going to increase.
(f)the potential consequences of increased levels of anxiety would be risks to their development and their mental health if they are in a situation in which they are continually fearful.
(g)a further potential risk (of not giving weight to the children’s views) is that the children might loose faith in the adults who are tasked with their protection, which might undermine their sense of trust and confidence in the world and in authority figures. This may affect their view of their mother, as they may feel that she is not able to adequately protect them. The expert went on to suggest that the consequence of this for girls is that they are more likely to internalise their feelings, fall into depression or get involved in dysfunctional relationships.
In light of the above evidence of the expert, the Court will give strong weight to the wishes expressed by the children
(b)The nature of the relationship of the child with: (i) each of the child’s parents; and (ii) other persons (including any grandparent or other relative of the child)
The expert reported that the children are primarily attached to the Graham family and their father figure is the stepfather.
It is the expert’s view that there appears to be strong bonds of attachment between the children and their half-brother, D.
It was further reported that the children have no significant bond or attachment to the father. This is expected, says the expert, because B has not resided with the father since infancy and has no direct memories of him. What B knows of the father, says the expert, comes from what she has heard (chiefly negative things) from her siblings, mother and stepfather. It was the expert’s view that C might have had some early attachment to her father but that, with a long period of separation and entirely negative memories, it is likely that the bond has not been sustained.
The expert observed that the children C and D were distant from the father and reluctant to respond to him.
The expert also noted that the children appeared to have bonded to the stepfather’s extended family (Mr and Ms Graham Senior) and the mother’s extended family.
(c)The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
It seems clear on the evidence that the mother is histrionic in her behaviour, and she demonstrated in giving oral evidence an unwillingness to communicate with the father. It was for this reason that she sought (with the consent of the father) that no cross-examination of her be undertaken by the father. Given that the father was representing himself, this meant that the Court had the benefit only of the cross-examination of the mother by the ICL.
Whilst the stepfather told the Court that he would facilitate the children being with their father, if that is what was ordered, it is clear that neither he nor the mother would wish to be in that situation. It is also clear that the mother would experience heightened anxiety if that were the situation.
There is evidence before the Court, which the stepfather accepts, of an aggressive and provoking relationship between the stepfather and the father. It seems to the Court that having regard to the emotional nature of each of them, they would be unlikely, and probably more accurately unable, to promote a close and continuing relationship with the other parent.
The reference to the children having a “bad daddy” and a “good daddy” emanated in all probability from the attitudes displayed and engendered in the respondents’ household. This is not something, given the strength of the emotion shown and the history relayed, that the Court could have any confidence would be likely to change within the short-term future, and possibly not change during the children’s minority.
It seems probable that the father has an impaired ability to facilitate and encourage a close and continuing a relationship between the children and their mother and stepfather. Given the expert’s assessment of his personality, it seems that his lack of insight, his narcissistic personality, and his strong externalising focus (causing an inability to accept that he might be responsible for his own problems) would hinder this. The father’s tendency to deny external reports, which he considers unfavourable to him, is suggested to be further evidence of this type of personality. The evidence before the Court is that the father has difficulty containing impulses and emotions, which in the expert’s view creates difficulty for effective parenting. Further, the expert says that the father’s antisocial personality traits create extremely difficult circumstances for parenting and could potentially place the children at risk of harm.
Although the father has taken action in relation to his problems and seemed to the expert calmer on his second interview, it was not the expert’s view that his personality problems had disappeared. They are not such as to give rise to any confidence that the father would be promoting a positive relationship between the children and their mother and stepfather.
(d)The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from: (i) either of his or her parents; or (ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The expert reports that the children are fearful of the father and that they are concerned he might separate them from their attachment base with their mother and stepfather.
The father in response to this pointed out that he has not continued with his application for orders that the children live with him. He is pursuing only orders that the children spend time with him on a defined basis. Whilst this is true, the effect of any change on a child must be seen from the perception of the child, and the perception that the father might remove the children from their mother and stepfather remains very real in these children.
Unless the fear that these children have of being taken away by their father can be assuaged, the expert’s view is that it would be traumatic to progress with contact; the children need to be reassured that they will not be separated from their mother and that any contact will be supervised to ensure safety. Such “reassuring” arrangements in the Court’s view would more likely add to their anxiety rather than assuage it.
The expert describes a critical issue for these children as being their stability and safety. Maintaining the quality and consistency of care that they are receiving in their home from the mother and stepfather is part of that.
In relation to these children, whom the expert described as “particularly vulnerable” because of the critical incidents they have experienced in their young lives, any additional instability in their lives would accordingly render them in an even more vulnerable position.
(e)The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
There is no apparent practical difficulty in terms of geography or expense involved in the children spending time with their father.
The difficulties which arise from the situation of the children, and referred to in this judgment, provide a basis on which the children’s right to maintain personal relationships and direct contact with both parents on a regular basis is to be impaired, in the interests of saving them from further anxiety, stress, trauma and instability.
(f)The capacity of: (i) each of the child’s parents; and (ii) any other person (including any grandparent or other relative of the child), to provide for the needs of the child, including emotional and intellectual needs
The expert says of the history of these children that they have been the subject of compromised parenting and that their current presentation, as “developing fairly normally”, is therefore significant. The expert says that this is reflective of the parenting of the mother and stepfather.
The mother has, since the commencement of these proceedings, demonstrated a strong commitment to the children. The father says that this was not always the case, however, the mother and stepfather have provided for the care and wellbeing of the children and acted during the mother’s incarceration to mitigate the trauma of that event for them.
The father, since his rehabilitation courses, has worked hard to seek to restore a relationship with his daughters and to have contact with them. He has undergone parenting and other courses. It was suggested that these courses had been undertaken for forensic purposes (in part), rather than out of a clear acknowledgement by the father that he needed the help that the courses might have been able to give him.
There is a clear issue between the mother and father as to what happened during their cohabitation. There is some doubt as to whether the father has developed any insight into his behaviour when he said that he can be “very assertive, but not aggressive” and when he gave evidence that in his view, notwithstanding his assertions to his own psychologist to the contrary, he did not need any assistance in dealing with an “explosive temper”.
The father’s denial of the history given by him to the rehabilitation programme he undertook is concerning. His capacity for insight was brought into question by the expert, who suggested that the father’s own agenda and needs dominate his actions rather than the children’s interests. The expert also gave evidence that the father lacked a real understanding as to the nature of his conduct; this was reflected in statements which sought to minimise his conduct, such as when he gave evidence that his part in damaging the children was that he was “too kind and too gentle” (to the mother and the stepfather at the start of these proceedings). Clearly these are not acknowledgments of wrongdoing.
(g)The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
The expert described the mother as having some disturbance of personality with borderline histrionic features. Despite this, the expert says that the mother’s adjustment has stabilised over time. These traits may have been previously demonstrated because she was in a violent relationship, with drug-taking a feature of her life. The mother is now in a committed relationship with the stepfather and has been for some years. She has coped well with the stress of incarceration and the separation from her children, and she kept her focus on the children and their welfare throughout that difficult time. The mother says that she has separated from past connections. For these reasons, the expert concluded that the mother has stabilised.
Notwithstanding the above, the mother still presented as highly anxious and teary during her assessment by the expert. These same characteristics were observed in the court room and during the mother’s oral evidence.
The expert believes that the mother’s anxiety would be likely to be very significant in the circumstance that the children were spending time with the father. The expert also stated that, were this ordered, the mother would be unable to contain her anxiety in her home, which would flow on to the children. The expert further observed that the mother’s increased anxiety would be likely to affect her relationship with the stepfather and compromise her parenting.
The expert made some observations about the children’s half-brother, D, and his apparent humourlessness and grim vigilance. She concluded that D was fearful that the children might have to see their father and concerned about what would happen in that event. The expert said that this fear has had quite an impact on D in terms of his development.
As discussed above, the expert said of the father that his presentation in the assessments undertaken raised concerns as to his personality traits. She said that he has a strong externalising focus, meaning that he does not accept responsibility for his problems and sees other people as being responsible. Such people, says the expert, often see themselves as being “set up” by other people and often feel that the world has conspired against them in some way. The father's evidence that his own psychologist was wrong, that the COPS reports were wrong and that independent reports of his violence were incorrect are examples of this. The expert went on to say that this would be a particular problem for a child going through puberty and beginning to assert individuality and show signs of defiance.
In addition to the traits of the father described above, there is a risk that the children may be exposed to criminal activity, drug and alcohol use in the company of the father. The father gave evidence that the latter is no longer a problem however the high range PCA incident in late 2012 is of concern to the Court.
(h)If the child is an Aboriginal child or a Torres Strait Islander child: (i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right
This subsection is not applicable.
(i)The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The father has said that he recognises some of his past deficiencies as a parent and has undertaken courses with a view to enhancing his skills and ability to parent. The expert in the 2013 report noted that she had seen some difference in his approach and attitude.
The Court has some difficulties with the father’s claim to have rehabilitated when, notwithstanding his earlier statements about his explosive temper, he claimed that the course he undertook in anger management was unnecessary and that he was not an angry person, simply an assertive one.
The father’s acceptance of his criminal record was of course inevitable given that it was a matter of public record. Notwithstanding this, the Court was left with the impression that his acknowledgement of and regret for that record was less than fulsome. It was peremptory and lacked conviction.
There is, however, a continuing demonstration in the father of a need for his children and a love for them. The Court accepts this as a genuine expression on the part of the father.
The father has paid some child support but there appears little doubt that the major burden of the support of these children has fallen upon and been discharged by the respondents.
The children have a close attachment to the mother and the stepfather and the Court accepts that their discharge of the responsibilities of parenthood is currently demonstrated.
The Court cannot but find that the mother’s past behaviour, leading as it did to her incarceration, was a demonstration of irresponsible parenting. The undertaking of parental responsibility while the mother was incarcerated was assumed with attendant success by the stepfather, who has demonstrated that he discharged the parenting responsibilities reposed in him by circumstance very well. The father conceded as much.
(j)Any family violence involving the child or a member of the child’s family
There are conflicting accounts of the nature and extent of the violence in the children’s home during the mother and father’s period of cohabitation. The agreed violence is significant and the independent evidence seems to support the mother’s view of it rather than the father’s.
The father suggests that the children are being alienated by inaccurate or exaggerated accounts of his violence towards their mother. On this, the expert said as follows:
Whatever the facts of the matter, it is the case that the children fear [the father] so that any progression of contact with him would need to take this into account and their fears would need to be managed clinically.
The Court finds that there was violence in the relationship between the mother and the father. It accepts that the facts probably approach more accurately the account of it expressed by the mother than the account adumbrated by the father.
In their assessment with the expert, the children demonstrated what was described as “palpable” anxiety. It appears that the violence described above was clearly witnessed and recalled by C and by D. By reason of recounting by C and D to B, it has also affected B.
This has resulted in an attitude of fear in both C and B and, according to the expert, a high level of anxiety in both of the children arising from any association with their father. The expert says that the anxiety and fear evident in the children is consistent with and reflective of a history of domestic violence. So far as C is concerned, her presentation represents a demonstration of post traumatic stress symptoms.
(k)Any family violence order that applies to the child or a member of the child’s family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person
There are not currently any family violence orders that apply to the children or a members of the children’s family. However, the history set forth above and the criminal record of the father which is before the Court indicates that there were such proceedings in the past.
(l)Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
The orders that the Court will make are the best that it can do to achieve the outcome that proceedings in relation to these children will come to an end. That is not, however, the purpose of the orders. Rather, the purpose of the orders is to protect the children from the consequences of ongoing conflict and anxiety.
These parties have been in conflict for years. They dispute who is responsible for it and, not having been able to organise a simple telephone regime, there is no evidence on which the Court could repose confidence that the parties would be able to communicate with each other. Given that this is so, it may well be inevitable that when the children grow older there will be further proceedings in relation to them. One would hope that if the children evince a desire to meet with their father when they are older and do not demonstrate fear of him that that might be able to be arranged by consent. On past history, however, that is probably a forlorn hope.
(m)Any other fact or circumstance that the court thinks is relevant
The mental state of the parties was an issue in the proceedings and the expert offered the following insights:
Although [the mother] is anxious regarding these issues and remains fearful of [the father] in other respects she is functioning well at present. Her adjustment has been unstable in the past including during the period of her involvement with [the father] but it appears that she has matured considerably in recent years and that she has coped and possibly matured with the vicissitudes of incarceration and separation from her children. If these current issues were resolved in a way that assuaged her fears and anxieties it is likely that she would maintain her present stability and focus on her children.
As when previously assessed [the stepfather] does not present any disturbance of his mental state and continues to pursue a stable adjustment. If there is a basis to the allegations that [the stepfather] had been harassing [the father’s] former partner [Ms Y] this may be of concern.
When previously assessed [the father’s] mental processes were quite fragmented but at this second assessment his mental state was calmer and much more contained and there was less evidence of the previous grandiosity. Since his period of rehabilitation in 2006 it appears that [the father] has avoided a relapse of substance abuse at least until his recent offence of high range PCA.
It may be that [the father] has successfully maintained the rehabilitation he achieved at [L Treatment Centre] in 2005 to 2006 however successful rehabilitation is generally predicated on an acknowledgement of wrongdoing and taking responsibility for it. It is possible but less reliable that rehabilitation can occur in the face of continued denial of wrongdoing.
The history of substance abuse and of domestic violence together with [the mother’s] account of what has transpired may point to a somewhat sociopathic adjustment however on the basis of [the father’s] account of his present adjustment there is little evidence of current psychiatric disturbance.
In her oral evidence the expert further said of the father that whilst he presented more calmly at the second interview his problems remained the same.
Section 60CC(4) & (4A)
I have already touched on a number of matters which fall for consideration under this heading and I will not repeat those matters.
Balancing of all considerations under Section 60CC and the defined issues
Balancing the matters set out in section 60CC and the evidence recited in these reasons, I conclude that the orders I propose will operate to foster the best interests of these children for the reasons specified above.
Section 61DA
This section recites a presumption which is required to be applied by the Court unless one of the excluding factors applies. The section requires the Court to presume that it is in the children’s best interests for their parents to have equal shared parental responsibility for the children.
The presumption does not apply where there has been family violence. In this case there has been family violence as has been set out earlier.
Notwithstanding that there may have been family violence it would still be open to the Court to make an order for equal shared parental responsibility if it was determined to be in the best interests of the children.
The section further provides in sub section (4) that the presumption may be rebutted if it is determined to be not in the children’s best interests.
In this case there is reason for the presumption not to apply and, in addition to the history of violence perpetrated by the father against the mother, is the inability of the mother and the father to communicate effectively with each other.
The expert described them as not having any potential to work together. They have not been able to arrange simple telephone contact without this being supervised by a third party and it is not therefore reasonable to expect them to be able to do anything more complex as such an order for joint parental responsibility would require of them.
The mother appears emotionally disabled by the father. The level of communication and cooperation required to effect an equal shared parental responsibility arrangement would, in the Court’s assessment, prove so far as the mother is concerned not just difficult but probably impossible.
Section 65DAA
This section requires the Court to consider making an order for equal shared time for the children with each parent where it is proposed to make an order for equal shared parental responsibility.
The order the Court proposes to make will not as between the father and the respondents create an order for equal shared parental responsibility and, on that basis, the question of equal time is not for consideration.
The order will provide equal shared parental responsibility in the mother and stepfather. Given that they are married and live together, no orders for equal shared time and any time spent is appropriate.
The Orders to be made
I therefore propose to make the orders in relation to parenting as set forth above, which on the evidence serve the best interests of these children at this time.
An order has been made requiring the father to do all acts and things and sign all documents necessary to enable passport applications to be procured for the children. This order may not be legally required, given that an order has been made for the mother and step-father to solely have equal shared parental responsibility for the children. Counsel for the ICL indicated to the Court that it may not be legally necessary to make such an order but that in his experience there had been issues with the passport office even where orders for sole parental responsibility had been made. In the Court’s view it would be a great pity to deny these children the opportunity of overseas travel and it is for this reason and out of caution that the Court makes the order in the terms set out above.
I certify that the preceding two-hundred and sixteen (216) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Fowler.
Associate:
Date: 31 May 2013
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Procedural Fairness
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Remedies
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