M and M
[2006] FMCAfam 419
•16 August 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| M & M | [2006] FMCAfam 419 |
| FAMILY LAW – Parenting orders – relocation – history of family violence against mother and children – mother went to women’s refuge then interstate – father unaware of children’s whereabouts for six months – children well settled in new location. |
| Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160; FLC 92-852 Tefler & Tefler (1996) FLC 92-688 Walls v Robinson (2006) FLC 93-251 |
| Applicant: | CJM |
| Respondent: | CDM |
| File Number: | SYM 2958 of 2006 |
| Judgment of: | Riley FM |
| Hearing dates: | 17 & 18 July 2006 |
| Delivered at: | Melbourne |
| Delivered on: | 16 August 2006 |
REPRESENTATION
| Solicitors for the Applicant: | Humphreys & Feather Solicitors |
| Counsel for the Applicant: | Mr J Levy |
| Solicitors for the Respondent: | Jones & Newell |
| Counsel for the Respondent: | Mr W Moss |
| Solicitor Advocate for the Independent Children’s Lawyer | Ms E Karagiannis |
THE COURT ORDERS THAT:
The children of the marriage, namely D born 29 May 1994, J born
7 July 1995, S born 30 June 1999 and N born 11 July 2000 (“the children”) live with the respondent (“the mother”).The mother is to have sole parental responsibility for the children.
The mother is permitted to relocate the residence of the children to Melbourne.
The children are to spend time with the applicant (“the father”) as follows:
(a)in the event that the father continues to live in Sydney:
(i)on one weekend during each school term in Sydney from Friday after school until Sunday afternoon (or Monday afternoon if the Monday is not a school day), such weekend being the weekend closest to the middle of the term, or otherwise by agreement;
(ii)if the father wishes, on two additional weekends during each school term in Melbourne from Friday after school until Monday before school (or Tuesday if the Monday is not a school day), being the weekends closest to one quarter and three quarters through the terms, or otherwise by agreement;
(iii)during the first half of each school holiday period except that in odd numbered years, the children are to spend the first half of the Christmas school holiday period with the mother and the second half with the father, or otherwise by agreement;
(iv)at such other times or places as may be agreed between the father and the mother;
(v)by telephone between 6.30pm and 7.30pm on Monday and Friday, and on each of the children’s birthdays, the father’s birthday, Father’s Day and Christmas Day, or otherwise by agreement;
(b)in the event the father lives in Melbourne:
(i)on alternate weekends during school term from Friday after school until Monday before school (or Tuesday if the Monday is not a school day), provided that the children are with the mother from 9.00am every Mothers’ Day;
(ii)the first half of each school holiday period except that in odd numbered years, the children are to spend the first half of the Christmas school holiday period with the mother and the second half with the father, or otherwise by agreement;
(iii)on Fathers’ Day each year from 9.00am until the commencement of school on the following day;
(iv)on each of the children’s birthdays and the father’s birthday from 2.00pm until 5.00pm if the birthday falls on a weekend and from 5.00pm until 8.00pm if the birthday falls on a school day;
(v)at such other times or places as may be agreed between the father and the mother;
(vi)by telephone between 6.30pm and 7.30pm on Monday and Friday, and on each of the children’s birthdays, the father’s birthday, and Christmas Day, or otherwise by agreement.
The father is to arrange and pay for the children’s travel by commercial airline to enable them to spend time with him in Sydney and is to arrange and pay for his own travel to enable the children to spend time with him, if he so wishes, in Melbourne.
If the father wishes to spend time with the children in Melbourne, he is to arrange and pay for suitable rental accommodation for himself and the children for the weekend or weekends in question.
If the father wishes to spend time with the children in Melbourne, he is to collect the children from their schools immediately after school finishes on Friday and return them to their schools on Monday morning (or Tuesday morning if the Monday is not a school day) in good time for the start of school, or otherwise by agreement.
When the children fly to Sydney to spend time with the father, the father is to arrange for the children to travel on the flight that leaves Melbourne closest to 6.00pm on the Friday and the flight that leaves Sydney closest to 4.30pm on the Sunday, or otherwise by agreement.
The mother is to deliver the children to the airport in good time to catch the relevant flight provided that the father notifies her at least forty-eight (48) hours in advance of the details of the departure and arrival times and the name of the airline.
The mother is to have responsibility for decisions relating to the children’s day to day care, welfare and development during periods when the children are with her.
The father is to have responsibility for decisions relating to the children’s day to day care, welfare and development during periods when the children are with him.
The father is restrained from hitting, smacking, physically disciplining or intimidating any of the children in any way for any reason.
The father is restrained from passing notes or letters to the mother through the children and is restrained from communicating with the mother through the children in any way.
The father and mother are restrained from denigrating each other, or any member of each other’s families, in the presence of the children, and each of the father and mother are to use their best endeavours to ensure that no other person denigrates the father or the mother or any other member of their families in the presence of the children.
More particularly, the father is restrained from conveying to the children in any way that the mother is to blame for the children not seeing their father for a considerable time or for the children not living closer to the father.
The father is to attend and complete the parenting course starting in August 2006 that he is currently enrolled in and is to otherwise use his best endeavours to learn appropriate methods of managing children’s behaviour and to acquire parenting skills.
The mother is to forthwith attend an appropriate counsellor to address issues relating to:
(a)the children’s reaction to the family breakdown;
(b)matters relating to her future parenting of the children; and
(c)any other matter relating to the children’s welfare at the discretion of the counsellor.
The father and the mother are restrained from:
(a)discussing any matter relating to these proceedings with the children; and
(b)showing the children any document relating to these proceedings.
The Independent Children’s Lawyer (“ICL”) is to continue to represent the children for a period of 18 months from the date of these orders or for such longer period as she sees fit.
The ICL has liberty to apply generally and on the question of costs specifically.
The children are to attend such further counselling as maybe directed by the ICL.
Leave is granted to the ICL to provide to the children’s counsellor or counsellors a copy of the Family Report filed in this matter and released to the parties on 23 June 2006.
The mother is to forthwith execute the appropriate authority at the children’s schools and at any other school the children may attend, to permit the school to forward to the husband, at the husband’s expense, copies of the children’s school reports and similar documents.
Each of the father and the mother shall notify the other, as soon as is practicable, of any medical or other emergency concerning any of the children.
The father and the mother are to keep each other advised of a telephone number on which they and the children can be contacted.
The father is restrained from discussing any matter with the mother other than matters directly related to the children without her consent.
The father is to permit the children or any of them to speak to the mother by telephone at their request when the children are spending time with him within a reasonable time of the request being made and is to permit the children or any of them to speak to the mother for as long as the child or children wish.
The father is restrained from knowingly approaching within 100 metres of the mother or the mother’s residence in Melbourne, except with the consent of the mother.
Pursuant to s.65DA(2) of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYM 2958 of 2006
| CJM |
Applicant
And
| CDM |
Respondent
REASONS FOR JUDGMENT
Overview
This is the father’s application for final parenting orders in respect of D born 29 May 1994, J born 7 July 1995, S born 30 June 1999 and N born 11 July 2000 (“the children”). The father was born on 29 April 1955 and is now 51 years old. The mother was born on 14 February 1958 and is now 48 years old. The parents of the children met at church. They married on 17 July 1993 and lived in the Hills district of Sydney. The parents of the children separated on 1 July 2005 when the mother went with the children to a women’s refuge. There had been a long history of family violence by the father against the mother and by the father against the children. The family violence consisted of physical assaults as well as social isolation and excessive financial control.
In late August 2005, the father discovered the location of the women’s refuge where the mother and the children were staying. The father went there and demanded to see the mother but was refused admission. As a result of the father’s actions, the acting coordinator of the women’s refuge became concerned for the safety of the mother and children and became concerned for the safety of the other residents of the refuge. On 31 August 2005, the mother and children left the women’s refuge and went to Melbourne, where the mother had a sister who was able to offer her financial and other support. The mother did not tell the father where she or the children were and he did not find out that she and the children were living in Melbourne until 2 February 2006. The father filed the present application on 24 February 2006.
Interim orders were made by Federal Magistrate Sexton on 20 March 2006 in Sydney which, among other things:
a)permitted the mother to remain living with the children in Melbourne;
b)provided for the children to spend Easter and half of the June school holidays with the father in Sydney under the supervision of one or the other of his parents;
c)provided for the children to have telephone contact with the father;
d)ordered the father to attend an anger management course and a parenting skills course;
e)restrained the father from approaching the residence of the mother; and
f)restrained the father from physically disciplining the children or hitting or shouting at them.
Those orders appear to have been substantially complied with, although at the time of the final hearing, the parenting skills course in which the father was enrolled had not yet commenced.
Final orders sought
The father principally sought orders that:
a)the father and mother have equal shared parental responsibility for the children;
b)the mother cause the children to reside at the parties’ West Pennant Hills property (by implication, with the mother);
c)upon the sale of that property, the mother be restrained from causing the children to live more than 10 kilometres from the West Pennant Hills Post Office;
d)the children live with the father for alternate weekends, Wednesday nights and half of school holidays;
e)the father and the children spend frequent time together by telephone.
The mother principally sought orders that:
a)the children live with the mother;
b)the mother be permitted to remain living with the children in Melbourne;
c)the children spend one week of the short school holidays and two weeks of the long school holidays with the father, in groups of two;
d)the children stay at their paternal grandparent’s house on such occasions;
e)one of the paternal grandparents substantially supervise the time shared by the father and the children;
f)the father pay for any airfares and arrange any flights that are necessary to enable the father and the children to spend time together;
g)the father have frequent telephone contact with the children;
h)the father be restrained from physically disciplining the children;
i)the father be restrained from approaching within 100 metres of the mother’s residence.
The independent children’s lawyer (“ICL”) principally sought orders that:
a)the children live with the mother in Melbourne;
b)the mother have sole parental responsibility for the children;
c)if the father continues to live in Sydney, the children spend one weekend per month and half of each school holiday with him;
d)if the father moves to Melbourne, the children spend alternate weekends and half of school holidays with him;
e)the children spend time with the father by telephone for two evenings per week from 6.30 to 7.30 pm;
f)the father be restrained from physically disciplining the children;
g)the father be restrained from communicating with the mother through the children;
h)both the father and the mother be restrained from denigrating each other;
i)both the father and the mother be restrained from discussing the legal proceedings with the children;
j)the mother and the children attend counselling, with the children to attend such counselling as the ICL directs;
k)the father and mother pay the ICL’s costs of the proceeding, which were stated to be $3,112.15, unless the costs were waived.
Agreed matters
Certain matters were agreed by the parties and the ICL. It was agreed that the children should live with the mother. It was agreed that the children should communicate with the father by telephone on Monday and Friday evenings between 6.30 pm and 7.30 pm. It was agreed that, if the father and the children live in the same city, the children should spend time with the father between 2pm and 5pm on Father’s Day, the father’s birthday and each of the children’s birthdays, if those days fell on a weekend, and between 5pm and 8pm if they fell on a week day. The ICL also indicated that she would recommend that the ICL’s costs be waived and indicated that it would be appropriate for the court to order the ICL to continue to act in the interests of the children for 12 to 18 months.
The issues in the proceeding
The principal issues in the proceeding are:
a)whether there should be equal shared parental responsibility;
b)whether the mother and children should continue living in Melbourne;
c)how much time the children should spend with the father and where that time should be spent;
d)whether the children should spend time with the father all together or in twos;
e)whether the time spent by the children with the father should be supervised and if so how;
f)who should bear the costs of travel, if any; and
g)who should pay the ICL’s costs, if any one.
Incidents of physical disciplining of the children
The father said in oral evidence that he had had a philosophy that it was appropriate to smack children. He said he mostly smacked the children with a feather duster and agreed that the feather duster caused more pain than an open hand. He admitted that his disciplining of the children in the past had been too harsh and sometimes got out of hand. He also admitted hitting the mother on three or four occasions. The father agreed that the mother was absolutely opposed to the father hitting the children with a feather duster or an open hand. He agreed that the father and mother had had “boisterous” arguments about this issue that were loud enough for neighbours to hear and which took place in front of the children.
The mother gave evidence that the father had hit D when he was only six months old because he had crawled into a pumpkin patch and was pulling at the flowers. In cross examination, the father admitted that this incident had occurred and sought to justify his behaviour on the basis that he had already told D twice not to go into the pumpkin patch.
The mother gave evidence that in 1999, shortly after S was born, there was an occasion when she would not stop crying. The father became agitated and approached the baby in a threatening manner. The mother crouched over the baby to protect her, and the father, on his own admission, proceeded to hit the mother. In oral evidence, he at first admitted hitting the mother, but denied bruising her. However, he later admitted that he vaguely recalled a bit of bruising. Overall, the father admitted hitting the wife on a number of occasions. I find that the father hit the wife on numerous occasions, including an occasion when the mother put herself between the father and S, a new born baby, to protect her, and that the father hit the mother hit hard enough on that occasion to cause bruising.
The mother gave evidence that in about May 2005, while on a family holiday, the youngest child, N, went to bed but instead of going to sleep turned on the television. The father became enraged and hit him with a feather duster in front of at least some of the other children. The father said in oral evidence that he had warned N that if he got out of bed again, he would smack him. The father admitted that he lost control and that there may have been bruising. On the mother’s evidence, the bruises remained for nearly two weeks. I find that the father hit N savagely on that occasion and that he was left with substantial bruising.
The mother gave evidence that shortly after this incident, on another occasion, N was delaying going to bed. The mother said that the father again became enraged and shook N. When the mother sought to intervene, the father subjected her to a barrage of verbal abuse. The father denied in oral evidence that he shook N, though he had previously admitted it in an affidavit he swore on 23 February 2006 at paragraph 9. The father also said in that affidavit that N, at the age of about four or five years, was “being very disobedient on a frequent basis” and was “effectively being openly defiant”. I find that the father did shake N on that occasion.
B, the mother’s oldest son from a previous relationship, swore an affidavit in which he said that the father hit S on the legs, causing redness and swelling, at a time when S could not have been more than six years old. B went on to say that while she was crying, the father insisted that she say “thank you Daddy for loving me enough to punish me when I need it.” B said that when S did not say the required words, the father hit her again until she did say them. B was not cross examined and I accept his evidence on this matter.
The father admitted that he smacked N every day in the week before the mother and children left for the refuge and that he smacked S about three times in that week. N at that time was about five years old and S was about six years old. The father admitted that the children were sometimes bruised as a result of his disciplining of them but said that was not really an indication of how hard he had hit them because it does not take much to bruise a small child.
The apprehended violence order
In his own affidavit evidence, the father admitted to consenting to an apprehended violence order (“AVO”) taken out against him after he “slapped” the mother. He also admitted to having hit and pushed the mother at other times and admitted to having thrown food at her in anger. The mother’s affidavit evidence about the incident leading to the AVO was that the father had hit her several times after which she fell to the floor.
The circumstances leading to this, according to the mother were that her three older boys from a previous relationship had attended church with the family and the middle boy, D, had bought some chips with his own money. The father became enraged, told the mother that the boys were undisciplined and should not have been allowed to buy chips. After his mother fell to the floor, D, at the age of 12 years, grabbed a kitchen knife and said to the father, “Don’t hit my mother.” The father admitted in oral evidence that the basis of the AVO was that he had hit the mother and that she had fallen to the floor. He said he did not remember the incident being associated with the purchase of chips. I accept the mother’s evidence on this matter. This incident occurred in 1996.
The AVO permitted the father to continue living with the family but restrained him from hitting or harassing the mother. The mother said that while the AVO was in force, there were two occasions when the father spat at her. He said on one of those occasions that while he could not hit the mother, he could spit at her. In cross examination, the father did not deny these incidents, but sought to argue that he had not actually spat at the mother because no liquid had left his mouth. In his view, it was more like an imitation of spitting. I find that the father did, in effect, spit at the mother on two occasions.
The suggested anger management course
It was put to the father in cross examination that he had been approached by a member of his Church, the Hillsong Church, and told that he would not be permitted to attend Church unless he attended an anger management course. The father said that he vaguely recalled that event. It was also put that the father was told that he would be removed from his leadership positions in the Church if there was another violent incident. The father said that he vaguely recalled that event as well. I find that the events which the father said he vaguely recalled actually occurred. The father admitted that he had in fact been removed from all leadership roles in the Church and admitted that he did not attend an anger management course. He said that he did not attend the anger management course because he did not appreciate the seriousness of the situation and also because he blamed the mother and he did not know how to get help. That was despite the fact that he had been advised by a member of his Church to get help by attending an anger management course.
Incidents of neglect
There was evidence that on an occasion in 1998, the father was meant to be minding D, then aged 4, and J, then aged 3, while the mother was at work. The father left them at home alone. A neighbour noticed that D and J were walking alone in the street at the front of the house and notified the police. It was put to the father that he had left D and J unattended for three hours. He denied that it was for three hours but did not deny that he had left D and J unattended. In a police report tendered by the ICL, the father was recorded as indicating to the police that he had left the children alone for two hours as he had to see a person around the corner. The police report noted that the front door was open. I find that the father left his four year old child and his three year old child alone for at least two hours in an insecure environment for no good reason.
The mother gave evidence that in April or May 2005, the father drove away from the Church without waiting for D to get into the car because he was taking too long and the father wanted to look at tiles. The father eventually went back to collect D, but he was left alone for some time without knowing where his parents had gone. (This was one of the occasions when the father spat at the mother, in the context of her begging him to return to pick up D.) I find that this event occurred as described by the mother.
There was evidence, which I accept, that in about June 2005, the father brought D home from the football after his game but left behind S and N, then aged five and four years old. The father did not deny this incident and said in oral evidence that he just forgot about them. I find that it occurred.
Carrying bricks
It was common ground that the father would sometimes take D to work with him. The father was a bricklayer. The mother was concerned that the father made D work by carrying bricks for him and that the excessive weight had caused damage to one of D’s knees. There was no medical evidence to that effect and I place no weight on the mother’s claims or opinion in that regard. The father said that he had taken D to work with him from the time he was about six years old. The ICL asked the father what D was required to do when he went to work with the father. He said that D was required to pick up a few bricks and then said, “as a child he [D] did not carry bricks”. The ICL pointed out that D was only about 11 years old when he had left Sydney with his mother.
Social isolation
The father caused the mother and children to be socially isolated. There was evidence, and I find, that the mother was not permitted by the father to have friends and she in fact had no friends, except, at the end of the marriage, she was provided with support and friendship by a member of the Church, JM. There was also evidence, which I accept, that the mother was not allowed by the father to telephone her sisters and parents, who lived in Brisbane and Melbourne, for reasons of cost. I accept the evidence that the father would examine the telephone bills and berate the mother for making telephone calls and the father required the mother to wait for her family members to telephone her.
There was evidence that the father frequently prevented the children attending birthday parties to which they were invited because of the cost of buying a present. They were rarely permitted to have friends over to play. The father said they were too busy. The family activities largely consisted of attending Church twice on a Sunday. I accept that evidence. The father was unable to name any friends of the two younger children and only one or two friends of the two older children. The father, in answer to a question, said that he now appreciates that children do need children of their own ages to play with and develop friendships with. I accept that the father now understands that intellectually, but I am not convinced that, at least at the time of the hearing, he would have been ready to put the children’s needs ahead of his own convenience in this regard.
Football
One child based activity that the father did allow and participate in was D’s football. However, in this connection, I accept the evidence that there was an occasion while the father was on the sidelines in which there was, at the least, an exchange of abuse between the father and another person, which the father admitted. The father said this would not have caused embarrassment to D because he would not have heard it. I also accept that the father was warned at one game that he would be given a “yellow card”. Such cards are given for the verbal abuse of umpires, children or parents, and prohibit the person being yellow carded from attending further games. I accept the evidence that if the father considered that D did not play well, he would berate him. I find that D would have been aware that his father was abusive at football games and that this would have caused D embarrassment.
Financial abuse
There was also a degree of financial abuse. There was evidence, which I accept, that the father would not pay for the children to have haircuts and instead gave the boys a crew cut himself and the girls a fringe trim. The mother said that the children had told her that they found this embarrassing. The father said that the mother had reported this to him but he did not take it very seriously. As noted above, the father also limited expenditure on petrol, presents for the children’s friends and telephone calls. I accept the evidence that J had to stop attending dance lessons because the father did not want to pay for them and that the father would not pay for the children to have swimming lessons.
The mother gave evidence that the father usually refused to pay for school excursions. The mother would on those occasions go to the school and beg that the children be allowed to go on the excursion notwithstanding that they had not paid. If the mother asked for new clothes, the father would tell her to lose weight so she could fit into her old ones. The mother and children usually wore clothes that were given to them. I accept this evidence. I note at this point that in the last few years, the parties have been paying for the construction of a large house with a swimming pool at West Pennant Hills, which the mortgagee has valued at $1,000,000.
The mother’s older boys
The mother had three sons from a previous relationship. At the time that she met the father in the present proceeding, the mother had custody of her three sons. However, they went to live with their father after the marriage of the mother and the father in the present proceedings. B, the oldest of the three sons, swore an affidavit filed in this proceeding in which he said that the father constantly told the three boys that they were lazy and punished them for completing tasks in a supposedly unsatisfactory manner by locking them out of the house and hitting them with rulers, feather dusters, wooden spoons and similar items. When the youngest of the three boys was only five years old, the father hit him in such a manner as to leave welts on the back of his legs.
B also swore that the father would regularly berate the mother and state that he had to punish the three boys or they would grow up to be lazy and useless. B said that the father insisted that the boys attend church on Sundays and would not allow them to visit friends in other areas as he said it was a waste of time and money. When the three boys went to live with their father, the father in the present proceedings would sometimes not allow the mother to pick them up on the grounds that it would waste petrol money. Eventually, the boys rarely visited the house and preferred to see their mother at the shops or another nearby location so that they did not have to see the father. The contact between the boys and their mother was irregular until B obtained his driver’s licence in 1998.
B was not cross examined. I accept his evidence. The father objected to his affidavit on the grounds that it was backward–looking. However, the affidavit was admitted into evidence on the basis that it provided evidence of the father’s approach to children from a person who had experienced that approach at first hand. Having said that, matters going to the father’s conduct in relation to his own children are obviously more relevant and have been given more weight.
Communications through the children
After the separation, the father also behaved inappropriately by trying to pass messages and letters to the wife through the children, by reading to the children a letter from him to the mother, by telling the children that he and the mother may have to re-partner, and generally by discussing issues with the children that should only have been discussed between the parents. The father says that he now recognises that this behaviour was inappropriate. However, in oral evidence, he did say that he would still use the children to pass a message to the mother if he there was no other way of communicating with her. He said that he thought it was preferable to send a letter via the children rather than via a solicitor because that was too expensive. He said that he still thought it was a good idea to have passed letters to the wife through the children because he considered that he did not have any other option.
The father admitted that during the children’s visit in March, he had told J that the parents might need to re-partner. The father admitted that this resulted in J crying uncontrollably for about an hour. The father then said that S, who was nearby, started to cry as well, because J “started her off”. He said that possibly on a few occasions he had asked the children what the mother wanted to do, as far as the relationship was concerned. He agreed that it was not appropriate to speak to the children about these matters but that he had wanted to speak to the mother and he found it “a little frustrating” that she would not speak to him and that he was “desperate” to find out what she was thinking. He said that he had “not really” sought to communicate with the mother through the children for financial reasons but did it because he thought that the mother did not know what she wanted.
The father admitted that at Easter, he had read to J a letter that he had written to the mother. He gave then gave the letter to D to deliver to the mother. The letter concerned financial matters and a possible reconciliation. The father said in evidence that he thought it was appropriate to have read the letter to J and to have asked D to deliver it to his mother.
The father admitted that he had used the children in an attempt to communicate with the mother because he thought he would not get a direct answer from her. He admitted that in June he had read to the children a letter from himself to the mother because he wanted the children to know how much he had missed them and what efforts he had made to locate them. It was put to him that he could have just told them. He then said that he was surprised the wife was not getting his letters and normally, he would not have needed to read the letter to the children but the mother was not speaking to him.
The women’s refuge
The mother admitted that she left the family home with the children on 1 July 2005 without letting the father know that they were safe. I accept that the father feared that there may have been a car accident and did not find out until the following day from the police that the family was safe but that their whereabouts could not be disclosed.
The father learned that J had a dental appointment on 17 August 2005 from a reminder letter that was delivered in the mail to the family home. The father attended the dental appointment and spoke to the mother and J. I accept that J was pleased to see him and gave him a hug. I accept the father’s evidence that the three of them went to McDonald’s for a bite to eat and the parents spoke civilly to each other. By arrangement, the mother telephoned the father that evening and they spoke for about one hour.
Carol Harding, the acting coordinator of the women’s refuge where the mother and children were staying, gave unchallenged affidavit evidence, which I accept. Her evidence included the opinion that she classified the mother and children “as textbook examples of a woman and children who have experienced and been affected by ongoing and prolonged domestic violence.” Ms Harding said that the mother appeared to be very frightened when she first moved to the refuge. She said that “the children appeared to have developed behaviours reflecting the violence and trauma they had experienced.” Ms Harding also said that the mother attended parenting programs at the refuge and the children attended counselling to deal with the effects of domestic violence.
After the husband attended the women’s refuge in August 2005, Ms Harding says that she formed the view that it was no longer safe for the mother and children to remain at the refuge and that the mother had become hyper vigilant. Ms Harding also said that, as the mother “could not obtain emergency housing and several other avenues to settle her family in Sydney did not work out, it appeared to [Ms Harding] that the move to Melbourne was the preferred option.”
The mother gave evidence, which I accept, that the manager of the women’s refuge in about August 2005 expressed concerns to the mother about her safety and the safety of the other residents, given that the father knew of the mother’s whereabouts. The mother felt that she had to leave the refuge, though if the father had not found out her whereabouts she would have been allowed to stay there for a year or even longer. In addition to safety issues, the refuge was less than ideal accommodation as the mother and four children were sharing a single room. Also, the children were attending a local school which they did not like.
It was put to the mother in cross examination that she went to the refuge because a member of the Church, JM, had threatened to report the family to the Department of Community Services (“DOCS”) if she did not leave. The mother denied this and said that JM had actually said something to the effect that what was happening to the children was very bad. It was put to the mother that JM had played a big part in her leaving. The mother said that JM had played a part, but the mother had been attending a domestic violence course before that.
It was alleged that the mother was pressured into leaving the marriage by a friend who threatened to report the family to DOCS if she did not take the children away from the father. The friend, JM, denied this in cross examination. JM gave evidence that she had seen serious bruising on N’s buttocks and lower back shortly before the separation. She understood that the bruising had been caused by the father hitting N.
JM said that she had said to the mother that where one parent is abusing the children and the other does nothing to protect them, it could be a situation where DOCS would have to be called. She said that she had not said to the mother that she, JM, would report the family to DOCS but said that the children’s school might lodge a report. I accept the evidence of JM and the mother on these matters.
The mother was asked in cross examination what troubled her about DOCS becoming involved. The mother said that when government agencies become involved decisions can be made that are not always right and she knew the children would be better off and safer if she removed them from the situation herself. She was asked whether she thought DOCS may have been able to help the family and she said no.
The move to Melbourne
The mother gave oral evidence that she tried to get public housing in Sydney but that there was an extremely long waiting list. She said that she tried to get emergency housing, but she did not have the points to get priority. Priority is given for such things as having disabled children. She said that she also tried to get community housing but none was available. She said she was only able to nominate two areas for public housing, and she chose the Northern Beaches and East Sydney. She admitted that she did not nominate the Hills area, where the father lives. She said she was looking for a good church, good housing and good schools. She said she also tried the private rental market but she did not have the money for the bond and one month’s rent in advance. She admitted that when the father found out where she was staying, she did not try to get a place in another refuge in Sydney. She said that before leaving home, she had arranged to get the pension. She admitted that she made no arrangements for the children to see the father before she left Sydney. She agreed that he would have liked to see them and that they would possibly have liked to see him. I accept the mother’s evidence on these matters.
The mother’s parents and siblings live in Brisbane, except for one sister who lives in Melbourne, JG. Otherwise, the mother only has her sons living in Sydney. I accept that the mother was unable to afford private accommodation in Sydney, as she was on a supporting parent’s pension and had no cash reserves to pay a bond and rent in advance. JG told the mother that JG would be able to help if the mother and children came to Melbourne. They left the refuge on 31 August 2005 and arrived in Melbourne on 1 September 2005.
I accept the evidence that initially the mother and children stayed with JG and her husband in St Kilda Road, but the mother soon found a unit in Caulfield. JG provided money for the bond and a month’s rent, and also bought a refrigerator and various household items for the mother. JG also took the mother to various charitable institutions to buy furniture. JG continues to assist with financial support, especially for the children’s activities, such as the sponsorship for D’s football, school lunches, clothing, ballet lessons and such like. She said in oral evidence that she often pays for things for the mother and children because she is on hand and can see what they need. When the mother and children travelled to Sydney to see the ICL and the family counsellor, JG travelled with the mother to help her with the four children, and also paid for accommodation and car hire. JG said, and I accept, that the mother would never ask for money, and, if the mother and children were in Sydney, JG would not be as aware of the financial needs of her sister and her children so it would not be so easy for her to help out financially.
In cross examination, the mother was asked whether she would concede that the move to Melbourne was not in the best interests of the children. She said definitely not. It was put that she had to move a long way away or JM would report her to DOCS and basically, JM forced her to move to Melbourne. The mother said definitely not. It was put to the mother that she had moved to Melbourne based on what other people had told her to do. She denied that and said that she had done what she decided herself. She denied that she was influenced by JM, the coordinator of the women’s refuge or her sister. She said that in moving to Melbourne she had given the children a very settled, happy and normal life. She said that if the Housing Commission offered her a house on the Northern Beaches tomorrow she would not take it.
In my view, the mother probably was somewhat influenced by others in coming to her own decision to move to Melbourne. However, the decisive factor was that she would be able to get help there from her sister to establish herself and her children in separate accommodation for herself and her children and that help was not available in Sydney. If the mother and children had moved to a different refuge, they may well have needed to continue all sharing a single room rather than having a normal home. Moving to a different refuge would have required one move to the refuge and at least one more move after that, with changes of school also likely. All in all, the move to Melbourne was the best option available.
Life in Melbourne
I accept the mother’s evidence that since arriving in Melbourne, she has regularly attended a local domestic violence support group. She also attends counselling to assist with her feelings of guilt for not taking steps earlier to protect her children from the father’s violence. The children also all attend counselling to help them understand that their father’s behaviour was unacceptable and that there are better ways of managing stress, anger and frustration. J additionally is part way through the Star Program, which provides counselling to children from abusive families.
The mother gave unchallenged evidence, which I accept, in an affidavit sworn on 10 March 2006, that since arriving in Melbourne, the children have all settled well into school. They have all formed good friendships and are allowed to visit their friends after school and on weekends. The children are developing strong social networks. They attended and enjoyed Little Athletics. J has been given a leadership role at school and is now confident enough to seek a speaking part in a school play. The family attends church weekly and have made friends there. J has been offered free singing lessons because of her potential in that area. They go on family outings and JG assists by paying for movie tickets and other entertainment. D has developed a close friend at school and he goes on family outings with him. The children have all had swimming lessons and learned to swim. JG’s husband, MG, has taken D cycling on a number of occasions. D has been accepted into an accelerated learning program and there is some prospect of him being accepted into Melbourne High School, a high achieving selective government school.
The mother updated that evidence in an affidavit sworn on 6 July 2006. The mother said that D was in Year 7 at Glen Eira Secondary College. He had developed strong friendships with two boys who he regularly sees after school. He attends Australian Rules football training with one of these friends and another friend regularly invites him to play at his house. D attends youth group at church. He spends time with his aunt and uncle. The uncle occasionally takes D to AFL games and on bike rides. Between July 2005 and April 2006, the mother has seen an increase is D’s confidence. After spending time with the father in Sydney in April and June, D had displayed a more aggressive attitude to the mother and J. I accept that evidence.
D’s school report for semester 1 of 2006 was exhibited to the affidavit. It says, among other things, “D has made a brilliant start to secondary school with impressive reports in all areas of study” and “D is a pleasant, highly capable student who has worked consistently in Maths this semester”.
The mother said in her affidavit of 6 July 2006 that J is enrolled in Year 6 at Caulfield Junior College. Her photograph appears on the home page of the school’s website. She was selected as a school leader following an interview and selection process. J was being considered by the school for an annual school trip to New Zealand and the school was prepared to pay some of the travel expenses. J has made strong friendships at the school and has a core group of two or three friends who regularly participate in stay-overs, movies and special celebrations. She is also invited to a range of events by members of her class. J is receiving encouraging comments relating to her social and personal development, and in literacy and creative areas such as drama and visual arts. She is participating in extra-curricular activities including tap dancing, ballet and art lessons. J is keen to audition for a place at the Victorian College of the Arts (“the VCA”) for dancing. The VCA is an exclusive school offering free tuition for talented dancers. J did not have these opportunities in Sydney as the father would not take an interest in them or pay for them. A dance teacher has offered to train J at no charge. J’s aunt takes her to ballet lessons on a Thursday night and J stays overnight there. J has a place in a concert scheduled for the end of the year. The aunt is an artist who has offered to mentor J in that area. I accept this evidence.
The mother also said in her affidavit of 6 July 2006 that during telephone conversation with the father, he has implied that J was responsible for the mother and children leaving and causing him financial problems and he has said that he may need to re-partner. These conversations have left J in tears on an almost weekly basis. J was distraught and in tears for nearly a week after each of her trips to Sydney to see her father. After the trip in June, J told the mother that the father had discussed the family report with J and D and said it was all in his favour. I accept this evidence.
J’s school report for June 2006 was exhibited to the mother’s affidavit sworn on 6 July 2006. It says, among other things, that “J shows great creativity and attention to detail in her visual arts work. She has demonstrated great technical skill in collage and created fantastic pieces of art using mixed media”. In relation to her personal and social development, J was given an “excellent” for “Has developed friendships”.
The mother said in her affidavit of 6 July 2006 that S is in Year 2 at Caulfield Junior College. The mother said that in Sydney she was assessed as average, but she is now progressing well academically and her reading skills have been assessed as being 18 months ahead of her chronological age. I do not accept this claim as it appears to conflict with the school report exhibited to the affidavit. The affidavit goes on to state that S has made several close friends who she sometimes visits after school and during the holidays. The school has an international accreditation and a multicultural focus. S has participated in French lessons and has some French speaking friends. This linguistic opportunity is rare in a public school. S attends ballet lessons on Saturday afternoons and has a place in the end of year concert. S attends church and has joined the “planet kids” group where she has made friends. S is taking swimming lessons at school and looks forward to them. After visiting Sydney in June to see her father, S vomited all night. I accept this evidence.
The school report in respect of S indicates that in most areas her achievement has been acceptable though her effort is very good and her development of friendships has been very good.
The mother’s affidavit sworn on 6 July 2006 says in relation to N that he is in Year 1 at Caulfield Junior College. He is the youngest in his class but has shown steady improvement. Since moving from Sydney, his bedwetting has reduced from every night to about once a month. His confidence has increased and he has found playmates at school and has been invited to birthday parties. The school has been given special funding for specially tailored education programs for boys. It has a high proportion of male teachers which provides N with positive male role models. N is undergoing speech therapy and specialised learning programs to assist his communication skills. This “treatment/assessment” was not discussed or offered in Sydney even though his vocal problems were apparent. I accept this evidence.
The mother also says in her affidavit in relation to N that he is now enjoying swimming lessons. He is in the “Planet Kids” group at church and has many friends. N was anxious before visiting his father in Sydney and did not want to go without the mother. After returning on both occasions, the bedwetting resumed and after the last occasion, N had diarrhoea for a few days. In the first week after returning from Sydney, N uses inappropriate language and is more prone to fight with S. I accept this evidence.
Financial matters
The wife is currently in receipt of a pension and family allowance of $1,184.50 per fortnight, rent assistance of $82 per fortnight and income from part-time work in a shop of between $240 and $360 per fortnight. That works out to about $783 per week. Her rent is $225 per week.
The husband is self-employed as a brick layer. The wife claims that he has been able to earn $1,500 to $2,000 per week. The husband says that he is no longer able to earn a lot because he is getting older. He did not mention any health problems. The wife provided a copy of the 2005 tax return of a partnership consisting of the father and the mother. It disclosed a gross income of $56,453 and a net income of $17,382. The father said in cross examination that he had worked for about 20 days since the separation. During 2005, he did considerable unpaid work on the house at West Pennant Hills. I find that the father would be able to earn a good income, and certainly more than the mother, if he chose to do full time paid work.
The possibility of the father moving to Melbourne
The father said in cross examination that he had not given serious consideration to finding work in Melbourne and that he had not enquired about what work was available for brick layers in Melbourne. He said that the factors against him moving to Melbourne were that his parents were not well, particularly his father, he had only known the building industry in Sydney and it would be hard to adapt at his age to a new city. He also said that the type of work he can do now is limited and that he did not have contacts in Melbourne. He said that he has been a member of his Church, the Hillsong Church, for 20 years, and he wished to remain a member of its congregation.
The paternal grandparents
In cross examination of the mother, she said that the children had reasonable relations with their paternal grandparents, though they did not see each other regularly, and the children rarely stayed over with the grandparents and were rarely minded by them. I accept this evidence. The mother admitted that if the time spent by the children with the father were supervised by one or the other of the grandparents, it would limit the type of activities that could be undertaken as the grandparents are elderly.
Supervision of time spent together
The mother said in cross examination that she sought orders for the time spent by the children with the father to be supervised for their safety. The mother said that the father may have been sorry for his past actions but that he may not have changed and that some areas needed constant work. She said that the children would definitely need to be disciplined if they had a weekend or a week with the father. She said that it would be easier for him to cope with the children in groups of two and also that it would be easier for the father to transport them two at a time.
The family report
a. The father
A family report was prepared by a counselling psychologist. It was based on the counsellor’s examination of the family after the children had spent Easter with their father but before they had spent the June holidays with their father.
The counsellor reported that the father wished to spend alternate weekends with the children but recognised the impracticality of that while the children were living in Melbourne. He told the counsellor that he had considered moving to Melbourne but only on the basis of a reconciliation.
The father told the counsellor that in the past, he had done the work of three men. He said that he recognised that his behaviour towards the children had overstepped the limit on two occasions and he was now contrite. He said that on one occasion, he had lost his temper with D and was “really rough with him”. The other occasion involved hitting N with a feather duster.
However, the counsellor noted that the father told her that his actions were not his anger but “the devil’s problem”. He said that he had started to attend the anger management program but that its philosophical base was not consistent with his faith. He said that he would continue to attend the program but felt more optimistic that he would be able to deal with his anger by “natural means”.
The father told the counsellor that he had told J and S that if he was not able to reconcile with the mother, the father and mother might both have to re-partner. The father reported that the children appeared devastated by this possibility.
The counsellor also reported that the father had told her that he was drawing on his faith as a born again Christian to be understanding of the mother’s actions as he believed she had been “deceived by the devil”. In cross examination, the father said at first that he may have said that but later he denied saying that the wife had been deceived by the devil. I prefer the evidence given by the counsellor in her report and I find accordingly.
b. The father’s parents
The father’s parents were also interviewed by the counsellor. They told her that both the mother and the father were to blame for the separation. They said that the father realised he had been “dreadfully out of line” in his discipline of the children and that he feels “deeply sorry” for what had happened. They said that “God had done the work” of enabling their son to become a more loving person and the father’s father described his son as having become “one of the nicest men you would ever meet”. He also said that he had observed the children being extremely affectionate with their father when they spent time with him over Easter.
c. The mother
The counsellor reported that the mother seemed listless and flat in the interview with her. She said that the mother said that the father had controlled and dominated her. The mother said that the father had always worked very hard and was a very capable breadwinner, but he was exhausted and edgy when at home. She said the husband did not see anything wrong with smacking the children. She said that she left the marriage hesitantly for the sake of the children. She said the impetus to leave was disclosures made by the children to a friend shortly before the mother left the marriage.
The wife told the counsellor that she would like the children to have a positive relationship with their father and visit him, but she harboured some fears for their safety.
The mother also reported to the counsellor that the children now seemed safer and more relaxed and she herself was becoming stronger and more resilient. She believed her strength was rubbing off onto the children. The mother also told the counsellor that D had not been able to immerse himself in school work in Sydney because his father did not value an education but he was now doing very well at school.
The mother reported to the counsellor that she “still had feelings” for the father and would consider reconciling with him if she could be confident that “it would be good” but that she could not take the risk. The mother said that the father and the children tell the mother that the father has changed but the mother is unconvinced that the changes can be sustained. She said that she would prefer to live in Melbourne because returning to Sydney would be too disruptive for the children who are now well settled. The mother said that the children love their father and he loves them and she wants them to be happy and do things together. She thought that N in particular was still a little scared of the father.
d. D
The counsellor noted that D seemed proud of having been accepted into an accelerated class at school. He reported that he enjoys the school he currently attends. He said that he was happy to see his father on the day of the interview and was sad and upset over what had happened to the family. He said that the father would give the children a smack when they did something bad but also said the father was good fun. When asked specifically what the father did that was fun, D said that the father came to training and helped the coach and he was good at rugby. He preferred some aspects of living in Melbourne but would prefer that the family was back together. He would like to live in Sydney so they could see their father every week. He thinks a lot about living with his father and is not sure that the mother knows how much the children are missing their father. D also said that the children are missing their paternal grandparents.
e. J
The counsellor reported that J presented as a sensitive and distressed child. She sobbed throughout the interview. She said that before her mother left, she would come into J’s room every night and say she was thinking of leaving the father. The mother denied this in cross examination and said that she had just told J the night before she left because J saw her packing things in the car. J said that she had sometimes agreed with her mother that it would be better to leave, but that she did not realise how horrible it would be. She said that D blames her for contributing to the separation. On balance, I accept that the mother did discuss with J that she was thinking of leaving. It was obviously inappropriate to discuss such a matter with a 10 year old child. As indicated by the counsellor, it has made J feel somewhat responsible for the separation and has created conflict between her and her brother.
J told the counsellor that the mother’s friend had forced the mother to leave by saying that she would report the family to DOCS if she stayed. As noted above, I do not accept that JM said that she would report the family to DOCS, but did say that the family might be reported to DOCS. J said that while they were at the refuge, she really wanted to see her father but everyone at the refuge kept convincing the mother to stay away. She said that everyone at the refuge thought the father was “a really mean guy but he isn’t”. She wishes her parents could get back together again and she sometimes tells her mother that she feels like killing herself. J told the counsellor that she likes her parents equally and likes being with them equally.
f. S
The counsellor reported that S presented as a gregarious and friendly child. She said that she missed her father and was looking forward to seeing him in the June holidays. She enjoyed ice skating and bowling with her father when she was with him at Easter.
g. N
The counsellor reported that N presented as a joyful and happy six year old. He said that he was happy about seeing his father and misses him and would like to see him more often.
h. Observations of interactions
The counsellor reported that the children were observed interacting with their father and grandparents. They were often openly affectionate towards their father and the younger children initiated affectionate physical contact with him. The younger children took turns sitting on his lap. The interaction between the children and their father appeared relaxed and spontaneous. They spoke with enthusiasm about their forthcoming visit to Sydney. At the end of the visit, the children hugged the father and kissed him goodbye.
Conclusions
In the counsellor’s opinion, the separation of the mother and father was psychologically ambiguous. The father still hoped to reconcile and the mother was ambivalent. It appeared to the counsellor that the mother had left a relationship that she found controlling and replaced it with equally controlling influences. The counsellor considered that the mother is struggling to develop strength and to build skills that will enable her to negotiate arrangements that might be in the children’s best interests. The counsellor considered that the children perceive the mother as being emotionally fragile and in need of support. The counsellor expressed the view that the mother saying that she left the relationship for the protection of the children left the children with considerable anger and guilt, especially J.
The counsellor considered that the father externalises his anger and sees it through the lens of his spiritual beliefs which minimises the role he takes in his own anger management. The counsellor thought that this raised questions about the father’s ability to accept responsibility for his own emotions.
In the counsellor’s view, the children were all longing for their father and unequivocally want their parents to reconcile. The counsellor said that D is externalising his anger and projecting it onto his mother and J. In the counsellor’s view, if D were denied the opportunity to visit his father regularly, his attitude to his mother may harden and the possibility of living with his father may become more beguiling.
The counsellor considered that J and S had heightened sensibilities, and J in particular was at risk of complications with her mental health. The counsellor recommended counselling for J to help her to understand that she is not responsible for the separation.
The counsellor said in conclusion in her report that she found it difficult in this case to make clear cut recommendations. She said that the children had a “deep yearning for their father” and it was important that arrangements were put in place to optimise the time they can spend with him. The counsellor did not see any need for the children’s visits to the father to be supervised. She thought that an order requiring the children to return to Sydney would be destabilising for them just as they appear to have achieved some stability. The counsellor noted that the father relocating to Melbourne was an option although he seemed averse to such a move unless reconciliation was possible. The counsellor suggested that an alternative would be for the father to visit the children in Melbourne.
The counsellor’s oral evidence
In her oral evidence, the counsellor noted that D was really responding well to his new school and that he had been recognised as a child with special abilities. In response to a question about whether the children would be at risk of physical abuse from their father, the counsellor said that she hoped that an anger management course would help him to develop some alternative strategies. She also said that the father was extremely remorseful about his past behaviour. In relation to the mother, the counsellor said that in order to preserve her separate status at this stage she needed distance from the father and support. The counsellor said that returning to Sydney could expose the mother to pressure to reconcile, she had stronger supports in Melbourne and there would be further destabilisation for the children with a return to Sydney. The counsellor also said that it would be a disappointment to D particularly to not have more contact with the father.
The counsellor said in cross examination by the mother’s counsel that her understanding of the physical punishment inflicted by the father was that it occurred on isolated occasions but was quite punitive. When told that the physical punishment was, in effect, frequent, and when asked about whether that made her more or less optimistic about the benefits of an anger management course and such like, the counsellor said that it was her belief that people can change and that she had some optimism that the father will have some insight into the inappropriateness of his behaviour. The counsellor also said that new skills become self-reinforcing and that courses provide some alternative paradigms but that there was always a risk of a relapse. She said that it was important for the children to maintain continuity in relation to the counselling that they were presently undergoing, and that if they moved back to Sydney they would need to reengage with the new counsellors and they would need to tell the new counsellor about their experiences.
The counsellor said that D had been elevated to an adult role, at the age of 12 years, and that he needed to be allowed to be an adolescent. She said that he seems to be finding himself in his new school. The counsellor considered that it would be better for all of the children to visit their father together, rather than two at a time, as they had done at Easter. She said that the father was very motivated to overcome his anger management problems. She said that the cycle of violence in the family had a text book pattern.
It was put to the counsellor by the father’s counsel that the nub of the problem was trying to weigh up the detriments of destabilising the children against them having less contact with the father. She replied that either way, there were losses for the children. It was also put to the counsellor that the children, particularly D, might feel resentful if he could not see his father and that might outweigh the benefits of staying in Melbourne. The counsellor replied that the children had seen their father only once after nine months when the counsellor saw them and that monthly visits and school holiday time together would address that issue.
When asked about the benefits and detriments of the father moving to Melbourne to be closer to the family, the counsellor said that the father moving would help to maintain continuity, would enable the children to see their father often and would allow the mother to have her supports and her job. However, the counsellor also said that there would need to be very clear boundaries minimising contact between the father and the mother.
The counsellor also said that the mother needed counselling to build her own emotional and ego strength so that she could support the children as they entered adolescence. The counsellor said that a move back to Sydney would make it much harder for the mother to build her own ego and this would impact adversely on the children.
Overall, I accept the counsellor’s evidence. However, I do note that her report was based on a misapprehension that the father hit the children less often and less severely than he actually did. I also note that, when she said in her oral evidence that she believed that people could change, and that she had some optimism that the father will have some insight into the inappropriateness of his behaviour, she did not sound entirely convinced.
The mother’s removal of the children from their father
The mother was asked in cross examination whether she accepted that the children were grieving the loss of their father. The mother said that she agreed that they were grieving the loss of the family unit and did not know if they were grieving the loss of their father. She denied that in removing the children from the family home she had caused difficulties for the children. It was pointed out that J had told the counsellor that while she was at the refuge, she had really wanted to see her father. The mother said she was not aware of that, and said that “she really didn’t request that many times at all to see her father”. The mother then said that she did not recall J ever saying she wanted to see him. The mother agreed that she did not allow visits while she was at the refuge because she was trying to stabilise the family and keep them safe. She said that the children did not ask to see the father. In relation to J’s statement to the family counsellor that she had kept telling her mother that she wanted to see the father, the mother said that J had not said that to her.
The mother’s attention was drawn to D’s comment to the family counsellor to the effect that the mother did not know how much the children were missing their father. The mother replied that she had thought deeply from day one about her children and their needs. She denied that her decision to remove the children from their father had affected them badly. She said that she had acted in their best interests. The mother’s attention was drawn to N’s comment to the counsellor that he wished to see the father more often. She said that it was normal for a child to want to see his father. The mother’s attention was drawn to S’s comment to the counsellor that she misses the father. The mother conceded that that was true and conceded that the children had been looking forward to seeing their father in June.
In relation to the comment in the family report that the children had a deep yearning to see their father, the mother said that the children had not expressed that to her but she was happy that the children were happy to visit their father. She denied that there was any consequence for the children’s relationship with the father in her decision to restrict the children’s contact with him. She denied that there was any consequence for her relationship with the children that she had restricted contact.
I find that the mother’s action in removing the children from Sydney has limited the relationship that was possible between the father and the children in the last year and that has been to their detriment. I find that the mother does not have sufficient appreciation of the loss and grief the children have suffered as a result of being deprived of their father. I find that the mother placed an absolute priority on the children being removed from a violent situation and did not give adequate thought to safe ways in which the children could have had some contact with their father, even by telephone.
However, I also accept that, in the circumstances of this case, the mother’s actions are understandable. I accept that the mother and children are text book examples of people who have been subjected to prolonged and serious family violence. I accept that mother needed to place distance between herself and the father. Ideally, she would have been able to find accommodation and family support in Sydney, but none was available to her. In the circumstances of this case, the mother’s acceptance of her sister’s offer of emotional and financial support in Melbourne was a natural consequence of the many years of the father’s violent and controlling behaviour. The mother’s inability to find a way of facilitating contact between the father and the children is, in my view, a by-product of the father’s oppressive treatment of her over many years.
The possibility of the mother returning to Sydney
The mother said in cross examination that she could not live at West Pennant Hills property pending its sale because it was too expensive for a person on a pension to run. She said that as well as council and water rates, there was electricity for the pool and electricity for the 100 lights that had been installed. She said it was a house for a wealthy person. I accept that the West Pennant Hills property would be too expensive for the mother to live in.
It was put to the mother that upon the sale of the West Pennant Hills property, and her property settlement, she might receive $800,000 which would be enough to buy a house in Sydney. She agreed with that proposition. It was put to the mother that if she returned to the West Pennant Hills area, the children could return to their old school and resume their old friendships. She said they did not really have friends at their old school whereas now they had deep and flourishing friendships. She also said that the school was zoned and she would need to make an out-of-zone application that may not be successful. I accept this evidence. I find that there would be no advantage for the children in returning to the West Pennant Hills area, except for the proximity to their father if he remains living there, as he presently intends, and the proximity to their grandparents.
Submissions
The ICL made submissions as follows. This is a sad case. The father is clearly a distressed parent. He urges the court to concentrate on the future, but his past behaviour is clearly very relevant. He needs to be told that striking children with a feather duster is unacceptable. The father has not denied that he hit the mother in the presence of the children, which is inappropriate and damaging. The father’s views always prevailed on issues of discipline. Accordingly, joint parental responsibility would be a recipe for disaster. The picture given by B, who was not cross examined, was sad and distressing. There were numerous serious incidents of physical violence as well as numerous instances of neglect. Given the mother’s emotional state, she may not cope if she were forced to return to Sydney. This would impact on the children. They are now settled into school and are doing well. It is of concern that the father made unrelenting attempts to get his point of view across to the children about why the relationship broke down and used the children as a conduit for communicating with the mother. It is obviously damaging to involve the children in the dispute between the parents. The wishes of D, as expressed to the counsellor, should be understood as D wishing to spend more time with his father than the short time he had spent with him at Easter after about nine months without seeing him.
The father made submissions as follows. In the event that the father and children do not live in the same city, consideration should be given to the father and mother sharing the costs of airfares equally, as neither of them is in receipt of significant income. The father will not be moving to Melbourne. The mother’s answers were non-responsive. The mother has a limited understanding of the children’s needs to have a full and meaningful relationship with their father. The mother does not appreciate that cutting the children off from their father could affect their relationship with him as well as with her, if the children blame her for not being able to see him. The decision to go to Melbourne was a spur of the moment decision hatched by JG. Supervision would not foster the development of a full and meaningful relationship between the children and their father. There was no untoward incident during the visits in March or June. The father has shown genuine contrition. He unconditionally admitted that he chastised the children inappropriately but he has a close and loving relationship with them. The house at West Pennant Hills is available. The balance is in favour of the children returning to Sydney. The benefits of remaining in Melbourne will have little point if the children hold it against the mother. If the children remain in Melbourne, there is the possibility that neither parent will be able to afford the airfares. At some point, the mother will have to accept that the father has changed. The father should be permitted to have a role in important decisions. If the children spend time with the father all together, he will get a large enough car.
The father also relied on written submissions, filed before the evidence was heard, as follows. The children had had a close relationship with the father in the past. There is no evidence that the court would accept that abuse has taken place. The children want to see their father and full weight should be given to those views. The children are developing an ambivalent relationship with the mother. The children would suffer dire consequences if the current separation from their father continues. The move to Melbourne has created great practical difficulties and the only practical option is for the wife to return to Sydney. The mother lacks the capacity to provide for the children’s emotional and intellectual needs. She is unable to put the children’s needs before her own. The father has an exemplary attitude towards the children and the mother has derogated her responsibilities. The father’s proposed orders are least likely to lead to further proceedings. The mother has prevented the father from participating in long term decision making and taking a role in the children’s lives. The father maintained the children during the marriage. He was unable to do so afterwards because the mother did not make an application for child support and concealed her whereabouts.
The mother made submissions as follows. The father found the money for airfares at Easter and in June. He has no dependants and is living in a property owned by the parties. Joint parental responsibility requires the parents to be able to communicate with each other. These parents are not able to communicate effectively. The father dominated the household in the past and this does not bode well for the parties being able to reach agreement in the future. The mother would be content with loose supervision of time spent together. The father behaved properly during his time with the children at Easter and June but he has not really been tested yet. The mother’s answers were not non-responsive. The father’s admissions were light on detail. It is immaterial that mother went to Melbourne after speaking to her sister. It was the best option in the circumstances. What must be considered are the children’s best interests in the circumstances thrust upon them. The father has been on his best behaviour. It is to be expected that there would have been no incidents of violence in March and June. That is not to say that there is no risk in the future.
The mother also made submissions as follows. The children are progressing really well in Melbourne. Their aunt is assisting emotionally and financially. The children are engaged in counselling programs. That should not be disturbed. It would be devastating for the mother to be forced to return to Sydney. She is emotionally fragile and does not have supports in Sydney. The mother is the undisputed party with whom the children are to live. The scales are heavily tipped in favour of the children staying in Melbourne. Equal time with each parent is impracticable. The father’s inappropriate conduct continued over many years. He chose to use a feather duster because it caused more pain. He even hit a six month old child. The father’s reading of a letter to the children and trying to use them to communicate with the mother does not bode well for his capacity to provide for the emotional needs of the children.
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 father, mother and children are all active, church-going Christians. While they attended the Hillsong Church in Sydney, the mother and children are now attending another church in Melbourne. There is nothing to suggest that the children are either especially mature or immature for their ages. The two boys will need suitable male role models, particularly as they enter adolescence. There are no particular issues about the lifestyle of the children or any other of their characteristics. There are no particular issues about the maturity, sex, lifestyle or background of the parents, unless one considers that the father becoming enraged at the behaviour of his children is a result of his own emotional immaturity.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother on the whole has had a commendable attitude to the responsibilities of parenthood and to each of her children, though ideally she would have addressed the issues relating to family violence at a much earlier stage. Also, ideally, she would not have discussed with J the possibility of leaving the family home when J was so young.
The father accepted the responsibility of parents to provide for their children and worked very hard for that purpose. However, he does not appear to have understood that he had a responsibility to not hurt his children physically or emotionally. Also, he does not appear to have understood that as a parent, he had a responsibility to develop appropriate parenting skills to help his children to each mature with their own unique personalities and interests in life. Having said that, there is no doubt that the father loves each of his children, and works hard to achieve what is best for them as he sees it.
Any family violence involving the child or a member of the child’s family
There were many instances of family violence which are referred to elsewhere in these reasons for decision. I will not repeat them here.
Any family violence order that applies to the child or a member of the child’s family, if the order is a final order or the making of the order was contested by a person
There is no family violence order that is presently in force, though in the past, there was an order restraining the father from acts of violence against the mother.
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
In the circumstances of this case, it would be preferable to make the order that would be the least likely to lead to the institution of further proceedings in relation to the children. Legal proceedings are costly and stressful for all concerned, particularly the children. The uncertainty produced by the possibility of further legal proceedings would undoubtedly make it difficult for everyone involved to properly adjust to the new arrangements.
Any other fact or circumstance that the court thinks is relevant
Other than the matters stipulated by the legislation, I do not consider that there are any relevant matters that should be taken into account.
The extent to which each of the child’s parents has fulfilled, or failed to fulfil, his or her responsibilities as a parent and, in particular, the extent to which each of the child’s parents:
(a)has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long-term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child; and
(b)has facilitated, or failed to facilitate, the other parent:
(i)participating in making decisions about major long-term issues in relation to the child; and
(ii)spending time with the child; and
(iii)communicating with the child; and
(c)has fulfilled, or failed to fulfil, the parent’s obligation to maintain the child.
Some matters relating to this factor have been addressed above. In addition, I accept that both parents have taken the opportunity to the extent they were able to participate in making long term decisions about the children, to spend time with the children and to communicate with the children. However, the mother prevented the father from doing any of those things when she took the children away. It is easy to understand why the mother did that, and, in fact, she was driven to it by the father. Nevertheless, it is regrettable that the children were deprived for so long of the possibility of spending time with their father.
Both parties have fulfilled their obligations to maintain the children, except that the father has not paid child support since the mother left. He says that she did not make any application for child support and he did not know where she was. Whether the mother made an application for child support or not, the father still has an obligation to maintain the children. He has known since February where they were.
The events that have happened, and circumstances that have existed, since the separation occurred.
Again, these are matters that have been addressed above. Most significantly, the father has not engaged in any violence towards the children on the occasions when he has seen them. The children have become well settled in good schools in Melbourne and are developing friendships. They are part way through counselling programs to assist them to recover from the very difficult circumstances that they have endured.
In considering what order to make, the court must, to the extent that it is possible to do so consistently with the child’s best interests being the paramount consideration, ensure that the order is consistent with any family violence order and does not expose a person to an unacceptable risk of family violence
There is no existing family violence order. However, there is a real issue in this case as to whether either the mother or the children might be exposed to an unacceptable risk of family violence. As noted above, it may be that the mother’s move to Melbourne will be a long term circuit breaker in relation to the violence inflicted by the father against the mother. However, to preserve the mother’s physical safety, it seems to me that it is important that there be minimal contact between the father and the mother, unless the mother wishes otherwise. Similarly, it is necessary that the children be protected from violence against them.
Conclusions
Parental responsibility
As discussed above, the presumption of equal shared parental responsibility does not apply in this case, because there has been family violence. An order that the parents have equal shared parental responsibility would require the parents to communicate with each other on a more or less equal footing. The father has not been able to do this in the past. On the major issue of contention between the parties, namely, whether the children should be physically disciplined, the father showed no respect for the mother’s opinion and acted in complete disregard of it, even to the point of violently asserting his will. While the father now acknowledges that his approach to managing the behaviour of the children was inappropriate, I have grave doubts about the father’s willingness and ability to engage in a reasonable discussion with the mother about major decisions affecting the lives of the children and about the father’s willingness and ability to modify his views in the light of the mother’s opinions.
The father’s unwillingness to allow the children to develop friendships with other children also showed a lack of understanding of his children’s developmental needs. His disregard of their embarrassment about the haircuts he gave them showed an unwillingness to see things from the children’s point of view. His excessive financial control showed an inability to give appropriate priority to the family’s immediate financial needs. These matters are not indicative of good judgment on the father’s part about the needs of his children.
Overall, the mother’s judgment about the long term interests of the children has been better than the father’s. The mother was opposed to them being hit and she was entirely correct about that. She has encouraged D to achieve academic success and has taken appropriate steps to help him enter an accelerated learning program, whereas the father discouraged academic achievement. While the mother would ideally have acted earlier to address the issue of family violence against both herself and the children, and while ideally she would have been able to find a solution that did not separate the children from their father for so long, I accept that her actions in going firstly to the refuge and then to Melbourne were her best options in the actual circumstances of the case. Since then, she has acted in the best interests of the children by settling them into Melbourne well, arranging for them to have counselling and, perhaps belatedly, facilitating the children seeing their father. Additionally, it is common ground that the children should live with the mother.
It may be that the father not having a legal right to share in the parental responsibility in relation to the children will diminish the meaningfulness of the relationship between the father and the children. However, I consider that any such effect would be small and could be offset in other ways.
Taking into account all of these matters, and the other matters specified in the legislation, I accept the submission of the ICL that the preferable course in the best interests of the children is for the mother to have sole parental responsibility for the children. Having said that, it may be that the mother would be prepared to take into account any reasonably expressed views that the father wished to put to her about the major issues affecting the children’s lives, though, of course, she would not be obliged to accede to them.
Equal time or substantial and significant time
Section 65DAA of the FLA provides that, if a parenting order provides that the parents are to have equal shared parental responsibility for the children, the court must consider whether the children spending equal time or substantial and significant time with each of the parents would be in the best interests of the children. As I have decided that the mother is to have sole parental responsibility for the children, I need not consider the question of equal time or substantial and significant time. I note that neither parent nor the ICL sought orders for equal time. The father sought orders for the children to spend substantial and significant time with him, on the assumption that the children return to Sydney. That is the question to which I now turn.
Where the children are to live
The parties and the ICL were all in agreement that the children should live with the mother. The only issue was where they all should live. The father said the children, and by implication, the mother, should live within 10 kilometres of the West Pennant Hills Post Office in the Sydney area and the mother and ICL said that the mother and children should be permitted to relocate to Melbourne.
There are no particular provisions in the FLA dealing with relocation. Sub-section 64B(2) of the FLA provides that a parenting order may deal with the question of the person with whom a child is to live but says nothing about the question of where the child is to live. Nevertheless, s.67ZC empowers the court to make orders relating to the welfare of children. In doing so, the court must regard the best interests of the children as the paramount consideration. Section 68B of the FLA empowers the court to issue injunctions for the welfare of the children. These powers are sufficient to enable the court, if it deems fit, to make the orders sought by the father.
The authorities relating to relocation were recently reviewed by Carmondy J in Walls v Robinson (2006) FLC 93-251. Essentially, the enquiry takes the best interests of the children as the paramount but not the only consideration. Other relevant considerations include the needs of the parent with whom the children are to live. Kirby J in the High Court explained the relevant principles in AMS v AIF (1999) 199 CLR 160; FLC 92-852 as follows (citations omitted):
142First, each case depends on the application of the governing legislation which, in turn, is in a constant state of amendment and re-expression. Care must therefore be observed in applying propositions advanced in particular jurisdictions where the legislative duties of the courts are relevantly different. Necessarily, the facts of each case are unique. Those facts call forth a "careful and delicate analysis", which renders previous decisions of limited assistance, except in so far as they offer illustrations which may tend to promote a general consistency of approachhttp://web2.westlaw.com/result/result.aspx?cite=199+CLR+160&cxt=DC&fcl=False&rp=%2fFind%2fdefault.wl&ss=CNT&docsample=False&cnt=DOC&n=1&rlt=CLID_FQRLT363923118&service=Find&ReferenceSDU=214&ReferencePositionType=T&ReferencePosition=FN%3BFFN%2E140&AP=&fn=_top&rs=WLW6.07&mt=WestlawAustralia&vr=2.0&sv=Split&sp=famcourt-2004.
143 Secondly, unless legislation provides otherwise, no single factor is dispositive of decisions governing the residence of a child in a context of the proposed relocation of the parent with whom the child resides. It is necessary for a court, making decisions affecting the child's place of residence, to attempt a resolution of often irreconcilable considerations. Statute may, and commonly does, instruct that the "welfare" (or "best interests") of the child should be the paramount consideration. It may provide a list of considerations or "principles" to be applied in the exercise of the court's powers. However, the "paramount" consideration is not the same as the "sole" or "only" consideration. The relevance of enumerated statutory principles will depend upon the circumstances of the particular case. Preconceived notions as to the weight which must be given to particular factors are incompatible with the exercise of an individualised judicial discretion such as is mandated by Australian legislation.
144 Thirdly, a statutory instruction to treat the welfare or best interests of the child as the paramount consideration does not oblige a court, making the decision, to ignore the legitimate interests and desires of the parents. If there is conflict between these considerations, priority must be accorded to the child's welfare and rights. However, the latter cannot be viewed in the abstract, separate from the circumstances of the parent with whom the child resides. If it were otherwise, a universal rule would be established whereby the custodial or residence parent (usually the mother) would virtually always be obliged to reside in close proximity to the other parent (usually the father) so as to facilitate contact between the latter and the child. There is no such universal rule Fourthly, the applicable legislation is enacted, and the relevant discretions exercised, for a society which attaches high importance to freedom of movement and the right of adults to decide where they will live. That is doubtless why courts have expressed themselves as reluctant to make orders which interfere in the freedom of custodial (or residence) parents to reside with the child where they wish, at least where such parent is the unchallenged custodian or has been designated the sole guardian of the child. One of the objects of modern family law statutes (including FLA 1975 and FCA 1975) is to enable parties to a broken relationship to start a new life for themselves, to control their own future destinies and, where desired, to form new relationships, free from unnecessary interference from a former spouse or partner or from a court. Courts recognise that unwarranted interference in the life of a custodial parent may itself occasion bitterness towards the former spouse or partner which may be transmitted to the child or otherwise impinge on the happiness of the custodial (or residence) parent in a way likely to affect the welfare or best interests of the child. This said, the touchstone for the ultimate decision must remain the welfare or best interests of the child and not, as such, the wishes and interests of the parents. To the extent that earlier authority may have suggested the contrary, it has now, properly, been rejected.
146 Fifthly, whilst legislative reform sometimes reflecting international law, has laid increased emphasis upon the rights of the child who is separated from one or both parents to maintain personal relations and direct contact with each of them on a regular basis, the rule is not an absolute one. Courts recognise the implications of the application of that right for the custodial (or residence) parent, and particularly because most of them are women. To avoid unnecessary derogations from women's equality or the "feminisation of poverty" resulting from the effective immobilisation of a custodial (or residence) parent, some Canadian judges have lately proposed a presumptive deference in favour of the right of the custodial (or residence) parent to reside where she or he decides unless good reason, relevant to the welfare or best interests of the child, is demonstrated to the contrary. Although this presumption was supported by a minority in the Supreme Court of Canada in Gordon v Goertz, it was rejected by the majority as incompatible with the individualised assessment required by the statute, addressed as it is to the best interests of the child. The objective of the minority was understandable. However, the reasoning of the majority is preferable, at least so far as the applicable Australian legislation is concerned.
147 Sixthly, in evaluating disputes concerning an expressed desire of a custodial (or residence) parent to relocate the residence at which the child will reside in circumstances which necessarily diminish the opportunities of the other parent to have access to, and contact with, the child, courts have suggested, rightly in my view, that a more relaxed attitude should be adopted to relocation within Australia than relocation overseas. This approach is connected with the ready availability of reliable transport and telecommunications, social and cultural factors, the absence of many dangers which exist in other parts of the world and notions of national community. But even where the proposal is made to remove the child to another country, courts will not necessarily restrain such moves, despite the inevitable implications they have for the child's contact with, and access to, the other parent. Proof that the custodial (or residence) parent has remarried and wishes to join a new spouse overseas; wishes to return to a supportive family in the land of origin, or has a well thought out and reasonable plan of migration may suffice to convince the court having jurisdiction over the child, that the best interests of the child favour continuance of the custodial (or residence) arrangement in another jurisdiction but with different orders as to access and contact.
148 Seventhly, just as, depending upon the legislation, conditions may be placed upon a custodial (or residence) parent as to where the child may reside according to its best interests, when it is proposed that residence arrangements change, the very fact of disturbing them (particularly if likely in practice to alter access to, and contact with, the other parent) will present a consideration that must be taken into account in judging whether new arrangements should be approved. If a parent seeks to change arrangements affecting the residence of, access to or contact with the child, he or she must demonstrate that the proposed new arrangement is for the welfare of, or in the best interests of, the child. Because the child's access to, and contact with, the other parent will necessarily be diminished to the extent that relocation of its residence disturbs a physical proximity which has hitherto existed, it will often be necessary to adjust orders as to access. This will be done to offer new and different facilities of access and contact such as longer periods of residence with the other parent during school holidays and at other times.
149 Eighthly, although at common law the concept of custody was indivisible, statute has altered this position. Joint custody and guardianship became increasingly common even before recent legislation made shared parental responsibility for a child the modern norm. Yet even now, courts necessarily retain the power to order otherwise. Under the legislation, before it was changed, the determination of whether joint or sole guardianship should be ordered was within the discretion of the court. Departure from the norm of shared parental responsibility is also within the court's discretion.
In applying these principles, the best interests of the children are to be ascertained in accordance with s.60CC of the FLA. Applying the factors mentioned in that section, as discussed above, I accept the submissions of the ICL and the mother that the mother should be permitted to relocate the residence of the children to Melbourne. That is, in my view, it is in the best interests of the children that they remain in Melbourne. They are well settled and progressing well academically, socially and, in J’s case, artistically. Any disruption at this stage could jeopardise the progress they have made in those areas, as well as in recovering, with the benefit of counselling, from their very difficult experiences. This is a particularly important factor for J.
Except for D, the children did not express a view about whether they preferred to live in Sydney or Melbourne, though they did all say that they wished to see a good deal more of their father than they had. D saying that he preferred to live in Sydney is best understood as a wish to be closer to his father to be able to see more of him. Those wishes can be accommodated by orders for the children to spend a considerable amount of time with the father, which would also promote the children having a meaningful relationship with the father.
The children would benefit from seeing their grandparents, but that can be accomplished by the occasional visit to Sydney, rather than by actually living there. J and D, in my view, are benefiting more from the involvement of their aunt and uncle in Melbourne, and stand to benefit more in the future, than all of the children would benefit from proximity to their paternal grandparents.
There are practical difficulties and additional expense with the children remaining in Melbourne, particularly concerning air travel. As mentioned above, I do not consider that the children should have to travel by air to Sydney more than once during each school term. It would be preferable for the father to fly to Melbourne on two extra occasions each term to enable the children to spend time with the father in Melbourne. Orders will be made to that effect.
As regards costs, and further to the discussion of this matter above, the evidence available indicates that father has the capacity to earn a substantial income. His earnings in the past year or so, when he was working without pay on the West Pennant Hills property, are not indicative of his actual earning capacity. There is also considerable equity in the house at West Pennant Hills. The father chose not to put detailed evidence before the court about his financial capacity. All in all, the reasonable inference is that the father has the capacity to fund frequent visits between Sydney and Melbourne.
The mother is on a pension though she is also receiving a small wage. She has not received child support from the father. The mother has four children to house and feed and otherwise support. I do not consider that she should be required to contribute to the cost of the children travelling between Sydney and Melbourne. Orders will be made in accordance with these conclusions.
I would also note that additionally to being in the best interests of the children, it is in the interests of the mother that she remain in Melbourne. I accept the counsellor’s evidence that the mother needs distance from the father to build her own emotional strength. Doing so would also have a flow on benefit for the children. Even if the father were to move to Melbourne, provided that he did not approach her or her residence without her consent, the mother would still be in an emotionally stronger position remaining in Melbourne as it has now become her territory, so to speak, and she has the emotional support of her sister.
How much time should the children spend with the father?
The mother sought orders that the children spend one week during each of the short school holidays and two weeks during each of the long school holidays with the father. The father sought orders that the children spend alternate weekends, Wednesday nights and half the school holidays with him. The ICL sought orders that, if the father remains in Sydney, the children spend one weekend per month and half of school holidays with him and if he moves to Melbourne, the children spend alternate weekends and half of school holidays with him.
In my view, applying the factors set out in s.60CC of the FLA, as discussed above, the best interests of the children require that the children spend at least half of the school holidays and at least one weekend per school term with the father. If the father chooses to continue to live in Sydney, this time should be spent with the father in Sydney, unless the parties agree otherwise. In addition, the father may wish to visit the children twice each term in Melbourne. This would also have advantages for the children, but I do not regard it as essential in the interests of the children that the father avails himself of this opportunity. It is also in the children’s best interests that they communicate with the father by telephone for up to two hours each week, at Christmas, on birthdays and on Father’s Day.
If the father chose to live in Melbourne, in my view, it would be in the best interests of the children for them to spend alternate weekends with the father, half of school holidays, Father’s Day and three hours on each of their birthdays as well as the same arrangements for communicating by telephone as mentioned above. In my view, there would be many advantages for the children in the father moving to Melbourne, which are discussed above.
Supervision
The mother towards the end of the hearing submitted that there need be only loose supervision by the paternal grandparents of the children’s time spent with the father. The ICL did not submit that there be supervision and the father opposed it. I accept the father’s submissions that supervision by his elderly parents would hinder the types of activity that the father could undertake with the children. This could adversely impact on the children maintaining a meaningful relationship with their father.
On the other hand, there has been a history of serious abuse by the father in the form of severe physical punishment of the children. The father says that he now appreciates that his approach was inappropriate. The counsellor has said that she considers the father to be highly motivated to change his behaviour, though she did not sound entirely convinced that he would actually be able to do so. The father had little regard for an anger management course he attended, and the parenting skills course that he was ordered to attend in March had not started at the time of the final hearing.
On balance, I am prepared to accept that the father is highly motivated to change his behaviour and I am prepared to accept that he does recognise that his past behaviour was inappropriate. The father gave an undertaking at the final hearing that he would attend and complete the parenting skills course that he was ordered to attend in March. I think it is reasonable in the circumstances to give the father the benefit of the doubt, and not order supervision.
Nevertheless, for the protection of the children, there will be an order prohibiting the father from physically disciplining or intimidating the children. If there is any indication that the father has breached that order, it will be possible for the mother or the ICL to bring the matter back before the court. In that event, the father may be punished for contravening a court order and the orders may be varied for example by imposing supervision or decreasing the time that the children are to spend with the father.
Also, there will be an order that the father attend and complete the parenting skills course he is enrolled in, and an order that he use his best endeavours to acquire appropriate parenting skills.
Whether the children should see the father all together
The mother sought orders that the children spend time with the father in twos. The father and the ICL sought orders that the children spend time with the father all together. The counsellor recommended that all four children spend time with the father together. The mother submitted that it would be easier for the father to manage the children two at a time, both from a logistical point of view and from the point of view of minimising his frustration levels. However, the father indicated that he would get a bigger car to enable him to transport all of the children together. The father’s counsel submitted that in some ways, it may be easier for the father to manage all four of the children together, as they would occupy each other to an extent.
There are benefits and detriments with each configuration. All in all, I accept the counsellor’s recommendation on this matter and I will make orders accordingly. However, in the future, it may be that other arrangements can be negotiated by consent between the parents and the children, to accommodate particular needs or activities. The orders will also make provision for the arrangements to be altered by consent.
Other orders
Given that the father in the past has attempted to communicate with the mother inappropriately through the children, there will be an order that the father be restrained from doing so.
I accept the proposal of the ICL that the mother should be ordered to attend counselling to address issues relating to her future parenting of the children, and any other further matters the counsellor deems fit. The mother has not shown due recognition of the children’s sense of loss for their father and it would be helpful if she had a better understanding of this. Also, the mother needs some ego building, in the counsellor’s words, to better parent her children, particularly as they enter adolescence. Orders will be made accordingly.
Both parents have inappropriately discussed matters with the children relating to their separation. I accept the ICL’s proposal that orders should be made restraining the parents from discussing the proceedings with the children or showing the children any documents relating to this proceeding.
I accept the offer of the ICL that the ICL continue to represent the interests of the children for 18 months. Orders will be made accordingly, and, in case it should prove necessary or useful, the ICL will be given liberty to apply. One of the reasons for the ICL remaining involved is to enable the ICL to direct the children to attend such counselling as the ICL deems necessary. On the counsellor’s evidence, the children would be expected to benefit from counselling for some time to come. Orders will be made accordingly. It would obviously be beneficial for any of the children’s counsellors to be apprised of the work that has already been done in this matter. To this end, it is appropriate that such counsellors be given copies of the Family Report prepared in this matter. Orders will be made to permit that.
The usual orders should be made regarding the provision of school reports to the father and notification in the event of medical emergencies.
To facilitate telephone contact between the parents and the children, it is necessary that each parent keep the other informed of a telephone number on which the children can be contacted. Additionally, as it may be necessary to notify of emergencies, and liaise about air travel, it is also necessary for each parent to provide to the other, a telephone number on which he or she can be contacted. However, as the father in the past has sought to overbear the mother, it is necessary that the father be restrained from abusing his knowledge of the mother’s telephone number. He will be restrained from discussing any matter with the mother, except matters directly relating to the children, without her consent.
As the father in the past has inappropriately limited the use of the telephone, he should be restrained from restricting the time the children spend on the telephone to the mother when they are with him. Orders will be made accordingly.
For the protection of the mother, and for the indirect benefit of the children, it is imperative that the mother not be physically threatened by the father. Accordingly, orders will be made under s.68B of the FLA that the father be restrained from knowingly approaching within 100 metres of the mother or the mother’s residence.
In my view, the orders outlined above are in the best interests of the children, in the light of the matters set out in s.60CC of the FLA.
Costs
The ICL applied for costs in the sum of $3,112.50. The general rule in family law proceedings is that each party bear his, her or its own costs: s.117(1) of the FLA. The ICL is not strictly speaking a party. The court nevertheless has power to make a costs order in favour of the ICL in an appropriate case: Tefler & Tefler (1996) FLC 92-688. The relevant factors are those set out in s.117(2A) of the FLA, supplemented by s.117(4) and (5) and s.70NFB. Section 117(4) provides that the court must not made an order that a party pay some or all of the costs of the ICL if the party is legally aided, of if the order would cause the party to suffer financial hardship. There was no suggestion that either party was legally aided. While the wife is on a pension supplemented by a small additional wage, and the father claims to have had only about 20 days of paid employment in the last year, the parties do have substantial equity in the matrimonial home at West Pennant Hills. I do not consider that either party would suffer financial hardship if he or she had to pay half of the $3,112.50 claimed by the ICL. In accordance with sub-s.117(5) of the FLA, I disregard the fact that the ICL is funded under a legal aid scheme. Section 70NFB of the FLA, which concerns contraventions, does not apply in this case.
Turning to the factors in s.117(2A) FLA, I note that the financial circumstances of the parties permit them to pay the amount sought by the ICL. There was no suggestion either party was in receipt of legal aid. Neither party conducted the proceedings in an unreasonable manner, or in a manner which unnecessarily prolonged or complicated the proceedings. Neither party has failed to comply with a previous order of the court. Neither party has been wholly unsuccessful in the proceedings. There was no suggestion that the ICL put forward a settlement proposal that the parties unreasonably rejected, though obviously settlement discussions could not have been disclosed to the court prior to this judgment being delivered. However, as the ICL did not formulate her position until well into the hearing, it appears to be inconceivable that there could have been such a proposal.
On the existing material, although the parties do have the capacity to pay the ICL’s costs, I do not consider, in view of the s.117(2A) factors that a costs order should be made in this case. However, in the unlikely event that the ICL may wish to put forward evidence and submissions that a settlement proposal was unreasonably rejected, I give the ICL liberty to apply on the question of costs.
I certify that the preceding two hundred and ten (210) paragraphs are a true copy of the reasons for judgment of FM Riley.
Deputy Associate: Jacqueline Brodie-Hanns
Date: 16 August 2006
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