MABART & HASELDEN

FAMILY COURT OF AUSTRALIA

MABART & HASELDEN

[2012] FamCA 793

FAMILY LAW – CHILDREN - Family violence – where the father has been emotionally and verbally abusive towards the mother and the mother reports concerns about the father entering her home, maintaining surveillance of her, possibly damaging her car, and harassing her with text messages and emails – where the children have been exposed to family violence by the father

FAMILY LAW – CHILD ABUSE – Emotional abuse - where the father has enrolled the children as advocates for his position – where the family dynamics and in particular, the father’s behaviour has caused significant psychological distress to one of the children

FAMILY LAW – CHILDREN - With whom a child spends time - Child's views – Where the children have strongly expressed their view that it would be fair if they spent equal time with each of their parents – where the expert evidence indicates that it is highly likely that the children’s views have been influenced by their father – orders that the children live with the mother and have substantial and significant time with the father – orders that the children’s counsellor explains the court orders to the children

FAMILY LAW – EVIDENCE – Hearsay – where the father relied on hearsay statements made by the housekeeper in relation to the mother’s alcohol use – statements admitted into evidence but given little weight due to the fact that the father failed to call the housekeeper either by affidavit or by subpoena

Family Law Act 1975 (Cth) div 12A, s 4

APPLICANT:

Mr Mabart

RESPONDENT:

Ms Haselden

FILE NUMBER:

SYC

8073

2010

DATE DELIVERED:

18 September 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

28-31 August 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr T Hodgson

THE APPLICANT IN PERSON:

Mr Mabart

COUNSEL FOR THE RESPONDENT:

Mr J Levy

SOLICITOR FOR THE RESPONDENT:

Dettmann Longworth Lawyers

Orders

That the children L born … February 2003 and V born … March 2005 live with the mother.
That the children spend time with the father, during school terms as follows:
2.1 Each alternate weekend from after school on Friday until the commencement of school on Monday and;
2.2 In the alternate week from Monday afternoon after school until the commencement of school in Tuesday morning.
2.3 That the father collect the children from school at the beginning of his time and return them to school.
2.4 That the father’s weekend time with the children commence on the first Friday after the school holiday period at the end of each of terms 1, 2 and 3.
2.5 That the father’s time with the children commence on the first Friday of the school term after the Christmas holiday if the children were with him for the first half of the preceding holiday; and on the first Monday of term if the children were with him for the second half of the holidays.
That during school holidays the children spend time with the father as follows :
3.1 For the first half of each of the school holidays at the end of terms 1, 2 and 3.
3.2 During the Christmas school holidays,
3.2.1In 2012 and each alternate year thereafter for the first half of the holiday period defined as in Order 3.1.
3.2.2In 2013 and each alternate year thereafter for the second half of the holiday period.
3.3 That the school holiday period be defined to commence on the day following the last day the children attend school and to conclude on the day before the first day the children attend on the following term.
That if the children are with the father for the first half of the Christmas holidays, then they shall live with the mother from 11.00 am on Christmas Day until 7.00 pm on 26 December.
That if the children are with the mother for the first half of the Christmas holidays, then they shall live with the father from 11.00 am on Christmas Day until 7.00 pm on 26 December.
That irrespective of any other order, the children shall spend Mother’s Day with the mother from 9.00 am until 7.00 pm; and shall spend Father’s Day with the father from 9.00 am until 7.00 pm.
That on the birthday of each of the children, the father shall spend time with both children from after school until 6.00 pm, if the birthday falls on a school day, and from 3.00 pm until 6.00 pm if the birthday falls on a weekend when the children are not with him.
That on the birthday of each child, if on that day the children are with the father, they shall spend time with the mother from after school until 6.00 pm, if the birthday falls on a school day, and from 3.00 pm until 6.00 pm if the birthday falls on a weekend.
That the children be collected by the father from school at the commencement of his time with them and delivered to school at the conclusion of his time.
That, where changeover cannot occur at school, the father shall collect and return the children from the front gate of the mother’s residence unless she elects to have the children delivered and returned by a third party in which case she shall give the father 24 hours’ notice by text message of the arrangements.
That the father is restrained from entering the mother’s home beyond the front gate and from asking the children to bring their mother to talk to him on those occasions.
That in the event that either parent wishes to travel overseas with the children during time the children would be with that parent, pursuant to these orders, then he or she shall give eight weeks’ notice to the other parent including evidence of booked flights and contact numbers and addresses for the children during their holiday.
That each parent shall sign any documents necessary for the issue of passports for the children and the passports shall be held by the mother unless the children are travelling with the father where the passports are to be returned to the mother when the children return.
That during any school holiday period, each parent shall ensure that the children telephone the other parent when the children wish, and in any event, not less than three times each week.
That the mother provide to her counsellor a copy of the report of Dr Q.
That the mother provide to the children’s school a copy of these orders.
That the parents do all things required to ensure that both children continue in therapy with their current therapist, Ms D, or such other practitioner as she may direct, and that each of the parents do all things required to ensure that the children, and the parents if requested, attend any appointment suggested by Ms D.
That the therapy conducted by Ms D be given the same protection from disclosure as is given to Family Therapy pursuant to the provisions of the Family Law Act.
That the mother provide to Ms D, before she next sees the children, a copy of the reports of Ms R, Dr Q and a copy of this judgement.
That Ms D be requested to explain the nature and effect of the orders to the children and that she be requested to do so at the earliest opportunity.
That the mother be restrained from telling the children what orders have been made before they see Ms D.
That the father’s time with the children, pursuant to these orders, is suspended until such time as Ms D has explained the orders to the children and will then commence on the first Friday after Ms D has explained the orders.
That pursuant to Sections 65DA(2) and 62B the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Mabart & Haselden has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 8073 of 2010

Mr Mabart

Applicant

And

Ms Haselden

Respondent

REASONS FOR JUDGMENT

Introduction

Before the Court are competing applications by the applicant, Mr Mabart (“the father”) and the respondent, Ms Haselden (“the mother”) relating to the parenting arrangements for their children.
In these proceedings the father sought parenting orders in relation to the children pursuant to his Further Amended Initiating Application filed 13 July 2012.
In essence, the orders sought by the father were inter alia that the children live with him for half of the time during school terms on a split in each week of two days with one parent and five days with the other, alternating from week to week.
The substantive orders sought by the mother were that the children live with her and have alternate weekends with the father from Friday after school until Sunday evening.
Each party sought orders in relation to holidays and special occasions about which there was little controversy.

Historical Background

The following brief relevant historical matters are not controversial.
The father is 52 years of age and works in the property industry.
The mother is 49 years of age and is a homemaker.
The parties met in August 2000 and were married the following year on 22 December 2001.
The parties separated on a final basis in about November 2009.
There are two children of the marriage L who was born in February 2003 and V who was born on in March 2005.
The children have lived in the primary care of the mother since the time of separation.
The father has repartnered. He is engaged to marry Ms M who is a professional aged 26 years. They do not live together but intend to look for a home together once these proceedings are concluded.
The mother has a relationship with Mr B who has been a friend since their teen years. For a time between about August 2011 and June 2012, they had what the mother described as a casual sexual relationship. They remain close friends and still socialise together.
The Court was assisted by two reports, the first from a Family Consultant, Ms R prepared in February 2012 and the second from Dr Q a Consultant Child and Family Psychiatrist, prepared shortly before the hearing.
Both of the experts identified the issues for this family to be, firstly the mother’s assertion that the father is emotionally and verbally abusive towards her, secondly the father’s assertion that the mother’s consumption of alcohol affects her parenting and thirdly the extent to which the children have been embroiled in the dispute between their parents to the extent that they are asserted to act as advocates for their father and, as a consequence of that concern, the weight which can be placed upon the children’s wishes.

THE MOTHER’S ALLEGATIONS OF ABUSE AGAINST THE FATHER

This matter was listed for hearing in the Federal Magistrates Court in March and each of the parties prepared trial affidavits for that hearing, the father’s affidavit being sworn on 29 February 2012 and the mother’s on 27 February 2012. Each of them prepared an updating affidavit and in addition the father had prepared a further affidavit dated 23 March 2012. The issue of the father’s inability to control his temper and his behaviour towards the mother was canvassed both in their trial affidavits and in their updating affidavits.
The issue was also canvassed in the interviews which the family had with Ms R for the preparation of her report, those interviews taking place in January, February and March of 2012. Ms R was not required for cross-examination. In her report Ms R reports the father as agreeing that he and the mother had “verbal interaction”. She says that although he originally denied using swear words in those interactions he ultimately conceded that he may have used words such as “shit” and “bullshit” during interactions with the mother and in the presence of the children. The mother, in her interviews with Ms R, described the father’s behaviour as “manipulative and insidious” and expressed a concern that the father has told the children that she is a liar. The mother told Ms R that the father behaves abusively, expresses remorse, and then behaves abusively again.
Ms R interviewed both of the children. L told Ms R that her primary dissatisfaction with her father’s care is that he swears when arguing with her mother, and that he gets cranky and “smacks her and [V] when they are fighting with each other”.
V told Ms R that she had heard her parents argue, and that her father swears, and she sometimes feels scared when her father swears. V said that the only time that she feels scared of her father is when he swears at her mother. Ms R spoke to the children’s teachers and the teacher of each child indicated that the child had raised this concern with the teacher. In conclusion Ms R said that the children had clearly identified that it is their father who gets angry, and swears at their mother, and that their father’s expression of anger has caused the children to be distressed and, at least for V, to be scared of him.
Ms R identified that, from the mother’s perspective, it is the father’s verbal abuse of her that is the cause of any feelings of her being overwhelmed and affected her capacity to care for the children.
Ms R, in her evaluation, says:
(The father) has reportedly completed two anger management courses, but from the mother’s perspective he seems unable to contain his anger when interacting with her, even when the children are present. These incidents appear to distress (the mother) immensely, disturb her routine with the children, cause her social embarrassment, impact upon her own self esteem and affect her ability to care for the children in the way she desires. (The father’s) expression of anger has caused the children to be distressed and, at least for [V] to be scared of him.
The mother and her witnesses assert that the father is not only abusive verbally towards the mother but also towards other people and other members of her family.
The maternal grandfather gave evidence of an incident between himself and the father on the morning of 23 November 2011 when the grandfather was caring for the children, so that the mother could attend to an appointment with her lawyers. The father in cross-examination gave evidence that the maternal grandfather is a man of integrity whom he held in respect. He conceded that the maternal grandfather is a man of his word and more importantly that the children love him very dearly and that it is important that they continue to have a relationship with him.
On the morning of 23 November 2011 the father went to the mother’s home to collect the children. He asked the grandfather where the mother was and was told that she was in the city for a 9.00 am appointment. The father then said to the grandfather “another fucking solicitor”. The grandfather gave evidence that both of the children were standing behind him in the doorway of the house. The grandfather says that L immediately burst into tears and V was standing behind L. The father says that the children were not visible. The grandfather explained to the father that he was there to help the children get ready for school and to care for L who had a sore throat. The father said in a demanding and aggressive tone “I am their father and I’ll take the children with me”. The grandfather said “[L] should not go outside in the rain and should stay home”.
The grandfather says that L continued to cry and the father, although he denies that he saw her crying, concedes that L said to him “don’t speak to my Grandpop like this”. The father continued, in the presence of the children, to speak loudly to the grandfather and said such things as “your Grandpop is no-one. My grandfather went to the war”. Clearly that remark was addressed to the children.
To the grandfather he said, he concedes, “you are a nobody. [The maternal grandmother] says and does everything”. The maternal grandfather says that the father also said to him “you are a disgrace. You lick (the maternal grandmother’s) arse anyway”. The father in cross-examination said that he did not believe he would have said that. The father agrees that he said “all the trouble has been caused by your family” and he agrees that he said “[The mother] is sleeping with [Mr B] and he is a no hoper”. Whilst the father agrees that he made the comment about Mr B to the grandfather he is not sure whether it was in that conversation or in another.
The grandfather said that L was crying and trembling. The father says that he was not aware of that. Having regard to the fact that, at least some of the comments to which I have referred above were directed to the children, the children must have been present. That the father did not observe the effect his behaviour was having on the children indicates his loss of control.
The father said loudly “I am taking the children with me” and when L said that she did not wish to go, the father said “you will come with me even if I have to come inside and put you over my shoulder.” Despite conceding that he said those words to L, the father maintained the position that he was having a discussion with the grandfather, although the father conceded that it was possible that the children might have heard.
On Sunday 27 November 2011 the grandfather wrote a letter to the father in relation to the incident. He said, inter alia:
You surprised me on your arrival I was not expecting such hostility. There was I at the front door with your children – you very loudly berated me and my family. The distress it caused to the children was fearful – they did not need to be witness to such upset. Your feelings expressed towards my family could have been held over for another time.
On 8 February 2012 the maternal grandfather made a statement to police in relation to the incident. He made notes immediately after the incident.
Insofar as there is any disparity, and the disparity is minor, between the maternal grandfather’s version of that event and the father’s, I accept the version of the maternal grandfather.
In his interviews with Dr Q the maternal grandfather said to her “(the father) goes right off his head. After the incident with me, he had to apologise. This happens he will lose it and apologise. This is how he treated (the mother).” The father in cross-examination agreed that the grandfather’s description was accurate as to his behaviour on 23 November 2011.
The father did apologise after that incident, sending the maternal grandfather a Christmas card which enclosed a roll of gaffer tape and the words “the product enclosed is truly amazing, developed by the US military the uses are mind blowing. It’s a shame I didn’t use it as a permanent airtight seal on my angry jealous mouth last month! Best regards, apologies, (the father).”
The father conceded that his behaviour towards the grandfather on that day was abusive but did not concede, and did not appear to understand, that it would have been damaging for the children. That it was distressing for the children is clear on the evidence of the grandfather. That he did not appear to understand that such behaviour towards the children’s grandfather in their presence was entirely inappropriate causes concern as to his understanding of the children’s needs, and is corroborative of the mother’s assertions that that is the way he behaves towards her.
The father has also been abusive to the maternal grandmother. He agreed that he had on two occasions written a letter of apology to her. In a letter dated 24 December 2009 addressed to the maternal grandmother the father said:
I am writing to offer a sincere heartfelt apology for the outrageously disrespectful and selfishly inconsiderate behaviour I have repeatedly subjected you to over the period of my marriage to your daughter (the mother).
I don’t imagine there is much that can be said to undo any of the hurt and upset that I have caused you and your family; however I want you to know that I feel a deep sense of regret and remorse for my disgraceful misconduct and that it is my desired intention to make amends in what ever way may be deemed possible or appropriate. I have thoroughly examined my actions and have come to understand that the abusive outbursts that you were wrongly subjected to were an inappropriate expression of my own feelings of inadequacy, insecurity, fear and frustration. I am ashamed to say my pathetic behaviour was entirely selfish, dishonest and manipulative and showed absolutely no regard for anyone other than my miserable self. I am truly sorry for the pain my actions have caused and for the division and disharmony that has resulted within the family. I have let a lot of people down and have thus far failed in my role as a loving and devoted husband to (the mother) and a kind, considerate and respectful son-in-law to both you and (the maternal grandfather).
I have sort (sic) ongoing advice and treatment from a qualified health professional to deal with my anger and resentment issues and as an active member of AA, I continue to work closely with older sober members to put into daily practice the principles and traditions of the Fellowship. (God willing I will be 8 years clean and sober on 22 January 2010.)
I humbly ask for your forgiveness and take this opportunity to thank you for being such a kind, loving and devoted Grandmother to my [L] and [V]. I wish you and the entire family a safe, happy and healthy Christmas and New Year and hope you have a wonderfully relaxing holiday in Bali.

The grandmother in her affidavit did not specify the matters that had caused the father to write the letter but they were clearly serious and significant.
The grandmother said that over the whole of the time that the mother and father were married the father has said things to her denigrating the mother, such as “she is a spoilt brat”; “she is lazy”; “why doesn’t she get a job”; “she drinks and smokes”; “(she) needs to get a job”; “she’s lazy. What does she do? She’s a spoilt brat”. The father agreed that he said those things and that he believed them to be true.
On 24 January 2012 the father sent to the maternal grandmother an email containing a story entitled “The Irish Funeral”. The story, which was presumably intended to be amusing, was about a man whose dog killed his mother-in-law. Not surprisingly the maternal grandmother was offended, insulted and also frightened to receive the email.
The father also sent to the mother a you-tube version of a song by a group called “The Doors”. He also emailed the lyrics to her.
The lyrics are quite disturbing and conclude:
kill kill kill kill kill kill
this is the end
beautiful friend
this is the end
my only friend, the end
it hurts to set you free
but you’ll never follow me
the end of laughter and soft lies
the end of nights we tried to die
this is the end
The father said he sent the message to the mother because she was a fan of the band. Given that it was sent on 29 January 2012 in circumstances where the father was very well aware that the mother was making allegations that he was verbally abusive and was harassing her, and that she had sought an apprehended domestic violence order in the local court, and been granted interim orders, I do not accept his explanation. The only reason, logically that the father would have sent that message to the mother was to upset her. Counsel for the mother suggested that the father knew the message was threatening when it was sent and the father conceded that he did.
The mother has asserted that the father has called her a liar in front of the children and the father denies that assertion. He did however admit to telling the children that their mother’s version of events, as she related them to the children, was not true. As he put it “when they’ve asked me about matters I have tried to answer them honestly and there seems to me that there was a conflict in what their mother was saying and the truth”. The mother gives evidence, which I accept, of conversations with the father where he accuses her of lying to the children. She says that, in addition to a conversation with the father in front of the girls on 9 January 2012 (to which reference will be made later in these reasons) where he called her a liar, she can recall him calling her a liar in front of the children on at least five other occasions. On at least three of those occasions, the girls have defended their mother against the accusation.
The main fixation of the father’s accusations of the mother’s lying is his insistence that Mr B is the mother’s boyfriend and that the children need to be told this. The mother gave evidence that she had made a deliberate and considered decision not to tell the children about Mr B and not to bring him into contact with them. After the father told the children about Mr B, she told the children that Mr B is a friend but they do not have a committed relationship like a boyfriend and girlfriend would have.
The mother in her affidavit gives numerous instances of times when the children, after the father has spoken to the mother, have asked the mother why their father shouts at her.
The mother’s version of the father’s behaviour towards her, both in the presence of the children and otherwise, was not seriously challenged in cross-examination. There was however a serious challenge to one allegation that she made which is that on 3 December 2011 the father in the presence of the children said to her “Tell [Mr B] to be very afraid of me. Tell [Mr B] he will need a lot of looking after, after I have finished with him. In fact you both will.” The mother says that she felt scared and threatened and that each of the girls was wide eyed and silent.
In order to evaluate the evidence in relation to this allegation it is necessary to put it into some context.
The parents separated finally on 5 November 2009. The night before, there had been an altercation between the father and V, and both of the girls became upset. The father in the presence of the children said to the mother “you should be gone. This is because of you” and L stood in front of her mother and said to her father “don’t blame mummy. It’s us”. The mother felt that the only thing she could do to calm the scene down was to remove herself. V came running out of the house behind her saying “mummy I’m scared.” The mother returned to the home and there continued to be aggressive behaviour from the father. The mother says that the father leant over and from a distance of about three feet spat in her face. The father denies that he spat in the mother’s face but he conceded that he spat at her. He then walked away and returned and said to the mother “I did not behave well” and he left the house.
The next day 5 November 2009 the mother had the locks changed. The mother believed that the father had found a spare key and was coming to the house when she was not present and on 31 May 2010 she changed the locks again. On 19 January 2011, again suspecting that the father had been in the house the mother changed the locks again.
On 20 October 2011 the father arrived uninvited at the mother’s home, walked past her, sat on the couch in the lounge room and said “I’m back for good. I’m not leaving. I’m moving all my stuff in while you are away.”
The mother was going away for the weekend with her mother. The father said, “I’m going to sit here all weekend and watch TV. When you get back I’ll be here”. The mother asked the father to leave and he said “No. I’m here for good. I’ve moved back. I’m going to be here when you get home.” The mother told the father that if he did not leave the house she would call the police, and the police arrived shortly thereafter, by which time the father had left.
The mother then changed the locks again.
On 12 November 2011 the mother was at home. The children were with the father. The mother invited Mr B for dinner. The mother and Mr B were sitting after dinner at the back of the house. The back of the house is not accessible from the street as there are security gates on either side of the house preventing access from the front yard. The mother’s bedroom is at the back of the house. Her bedroom cannot be accessed or viewed from the front garden and has security bars. In the course of the evening the mother walked back into the house and into her bedroom and saw that there was a wet patch in the middle of her bed about a metre in diameter. It appeared to her that water had been poured on her bed. The mother and Mr B were the only people in the house at the time.
On the next morning the mother could not find her car keys. She looked for them for over an hour and a half but had still not found them. The last time she had used the keys was the previous evening when she let herself into the house.
The mother arranged replacement keys for her car. The mother said that, in a telephone call from the father he said, in response to her asking him why he had been at the house on Saturday night “I came to get a mattock in the garden shed and I climbed over the gate”. He said “I came down the path and climbed over the gate. When I walked past your bedroom window I saw your keys on your dresser. I took them. I was then in the pathway and heard you talking with [Mr B] on the back step.” The father was then able to relate to the mother the substance of the conversations that she had had with Mr B over the period of about 45 minutes.
The father’s account of the events of that night, in answer to questions from counsel for the mother, was that he jumped the side fence and listened to the mother and Mr B talking on the back patio. He said that he had attended at the house to collect some garden utensils, a spade, and a shovel. He had called and knocked and didn’t believe that anybody was home, so he jumped over the gate. He proceeded to go the garden shed at the rear of the property at which point it became apparent to him that the wife and Mr B were in the back yard and indeed he saw the wife and Mr B in an embrace. He said that it was simply a co-incidence that on the same night the mother found her bed saturated and her car keys missing. He denied that he entered the house and says that he removed himself from the property “quick smart” after he realised that the mother was there with Mr B. He agreed that he told the mother that he had taken her car keys and then threw them back into the house where they fell down the back of the dresser in her bedroom. He also agreed that, in fact, was what he did. He denied that he had stolen the car keys but said that he had used the keys to unlock the back gate so that he could leave and that he put the key back on the window sill of her bedroom. It is likely that the father, in addition to unlocking the gate, used the keys to gain access to the house and poured water on the mother’s bed. There is no other logical explanation. The mother again had the locks changed.
On Saturday 3 December 2011 the mother took the children to church for a rehearsal for the Christmas service. The father arrived and said to the mother in front of other members of the congregation “You are glowing. At least someone is getting some.” He then asked her to speak to him outside. She walked outside the church and the father said to her “I want to talk to you about the girls”. She said “As long as you don’t abuse me”.
She says that the father then said to her “You’re fucking someone”. He denies that he said those words. The mother gave evidence that after the rehearsal was finished she walked outside and was putting the children in the father’s car. The father walked up to her and said to her, in the presence of the children, “Tell [Mr B] to be very afraid of me. Tell [Mr B] he will need a lot of looking after, after I’ve finished with him. In fact you both will.” The father denies that he said those words.
On Sunday 4 December 2011 there was a verbal altercation where the father said to the mother “why don’t you go hang out with your ex-junkie pot smoking loser of a boyfriend”. The father agreed he said those things.
Later in the same day the father telephoned the mother and said to her “You’re a fucking spoilt brat and you always want to have things your way why don’t you just follow my instructions”. The mother inquired whether the children were present and the father said “no” but the mother could hear the children talking in the background. Shortly afterwards the children called their mother and said “Daddy says sorry for using bad words to you. Go on daddy say sorry”. The father says that he does not recall the children saying those things but does not deny the balance of the conversation.
On 5 December 2011 the mother noticed that the new left tyre of her vehicle was deflated and shortly thereafter the mascot was ripped from the bonnet of her car.
On 8 December 2011 the mother attended at a Sydney police station and made a statement in relation to a complaint seeking an Apprehended Domestic Violence Order (ADVO). In the statement she set out the matters which have been referred to above but she did not mention specifically the threat she said the father had made, to cause physical harm to Mr B and to herself. The father asserts that the allegation of threats of physical violence is a recent invention because it was not included in the matters which were complained of to the police. In the statement she says “[The father] followed me up the road yelling loudly and swearing at me I can’t remember what he said it’s all a blur. I was more concerned that [the father] was going to hit me”.
A provisional (ex-parte) ADVO was made and on the face of the order the address of the father is noted as Property H which is the mother’s address. The father was in fact served with the documents at the mother’s home when he attended to collect the children on 9 December 2011.
The father agreed in cross-examination that L had been allowed to see the documents with which he had been served. He did not suggest that he had shown her the documents but rather she had picked them up when he threw them in the car.
L said to her mother, within the next few days, “Do the police sometimes get it wrong?” Her mother said “Not very often, why?” And L said “I saw it and daddy said you’ve got a boyfriend called [Mr B].” The father concedes that L was referring to the documents with which he had been served. In those documents in the outline of facts prepared by the police (but not in the mother’s statement) Mr B was referred to as the mother’s boyfriend.
In his affidavit sworn 29 February 2012 at paragraph 169 the father says “On the morning that I was served with an AVO I had a conversation with [L] who together with [V] witnessed me being served by the police.” In the course of that conversation the father said to the children “Mummy called the police because she was concerned that I might hurt her or her boyfriend [Mr B]”. Significantly, L replied, “But you wouldn’t hurt Mummy and Mummy doesn’t have a boyfriend.” It is clear, from the father’s evidence, that the first time that L learned that her mother had a boyfriend was from the father, not from reading the documents as he asserts. I accept the mother’s evidence that it was the father who told the children she had a boyfriend.
The only occasion upon which the mother asserts that a threat was made to hurt her or to hurt Mr B was the conversation outside the church on 3 December 2011. The mother does not assert that on any other occasion the father threatened physical harm either to her or to Mr B. I accept her evidence that the father made the threats that the mother asserts towards both Mr B and her on 3 December 2011.
On Tuesday 13 December 2011 L said to her mother “Mummy, daddy says that in the olden days in old Scotland he would kill [Mr B] by chopping off his head and putting it on a pike.” The father agrees that he did make that statement to the children in the context of their watching a television program called “Horrible Histories” which frequently dealt, he said, with such means of execution. The father’s evidence was that he was absolutely confident that the children would regard that as a joke.
L, clearly, did not.
The mother says that L went on to say “I’m worried mummy. I’m worried if daddy would do that to [Mr B] he would do that to my friend [T]” (referring to a school friend). The mother reassured L that the father would never do that. Later in the same day L said to her mother “Mummy, if daddy would do that to [Mr B] maybe he would do that to me” and the mother again reassured her that her father would never do anything like that.
There is nothing remotely amusing about the father’s telling the children that he would kill their mother’s friend by chopping off his head and putting it on a pike.
The mother, in her affidavit, gave evidence of an incident where the father was abusive to a neighbour and the father was cross-examined about an incident where he had an altercation with a teenage boy and threw the boy’s skateboard over the fence.
The mother’s assertions of the father’s rudeness and shouting and inappropriate behaviour in the presence of the children are corroborated by numerous text messages which she sent to the father complaining of his behaviour after occasions upon which he had shouted at her, particularly in front of the children.
Tendered as an exhibit were the text messages which passed between the father and the mother between 20 February 2012 and 1 August 2012. The exhibit contained 49 pages. The tenor of the father’s conversation with the mother by text is often, although not always, offensive and abusive. A further volume of text messages is annexed to the affidavit of the mother and again the tenor of many of the messages is offensive. The father agreed in cross-examination that the mother had on many occasions asked him to moderate his behaviour.
On some days the father sent more than 20 texts. Dr Q, in her oral evidence, said that such an intense level of texting is a manifestation of aggression.
I accept the evidence of the mother in relation to the manner in which the father behaved towards her.
The mother believed that the father was responsible for the damage to her car. He denied that allegation. I can make no finding as to the cause of the damage but the mother’s belief was, I accept, genuinely held and not unreasonable in the light of his harassment of her.
Similarly, the mother believed that the father was stalking her and having her followed. She saw a man driving the father’s car, near her home, whom one of the children recognised as having seen at school.
On 22 February 2012, which was the day of the hearing, and dismissal, of the AVO application, the mother arranged for the children to be cared for by her housekeeper, Ms E, and went to Mr B’s home. Both the mother and Mr B described her as exhausted and extremely upset. The mother fell asleep. After midnight, Ms E sent a text message asking the mother to come home, as Ms E needed to go. The mother did not hear the message tone. Ms E did not phone the mother. Ms E then phoned the father and asked him to collect the girls. She told him that her husband was ill and she needed to go home. The father was at Ms M’s home in Suburb O. He agreed to collect the children from the mother’s home in Suburb N.
Rather than proceeding directly to collect the children, the father and Ms M drove in the opposite direction to Mr B’s home in Suburb D to see if the mother’s car was there. Having ascertained that the car was there, they did not attempt to tell the mother she was needed by the children, but then drove to Suburb N. The father, in his oral evidence, said he was concerned that the mother might have had a car accident, and wanted to reassure himself that she was safe. The mother believes that he was more concerned with checking on her. Dr Q gave evidence that the father’s actions, on that night, gave rise to concerns that he was stalking the mother.
In mid 2012 the father, in a conversation with the maternal grandmother, said “Last Friday night (the mother’s) car was parked overnight at (her sister’s) place at ……”. In cross examination he conceded that he had not seen the car until just before 10.00 am on Saturday, and that he had spoken to the mother at her home at 9.00 am. The fact that the father told the maternal grandmother that the car was parked overnight (even though he could not possibly have known that), would only have reinforced the mother’s belief that he was stalking her.
On another occasion, when the mother had told the children she may go out during the evening when they were with their father, the father found a reason to telephone a female friend of the mother to check whether she had, in fact, been to the movies with the mother.
The father conceded that the mother had sent him a text message asking him to stop stalking her.
Dr Q noted in her report that, during the interview process, once the mother became aware of the father’s presence she became extremely tense, and more fragmented in her thought processes, and commented that such a response was often apparent in situations where there had been domestic violence.
V told Dr Q “mummy’s scared because men always yell and I get scared too”. Dr Q states “When dad yells, it makes her [V] feel like: what’s going to happen? Did I do anything wrong? He yells a lot but he doesn’t really yell just if there is a big problem like he lost his keys.” Dr Q commented that it was evident that V was trying to amend her comment about her father yelling.

In her report, Dr Q notes that the mother’s reports of the father’s behaviour, are consistent with his being emotionally and verbally abusive. Dr Q notes that the mother reports concerns that the father had entered her home, maintained a surveillance of her, possibly damaged her car, and both texted and emailed at an intensity that may amount to harassment. Dr Q says:
If there is some basis to this account then it would be of great concern; overall this is a pattern of behaviour seen in situations of domestic violence and generally is associated with a risk of harm to the other parent and to the children.
Dr Q goes on to say:
(The mother) is extremely anxious in regard to (the father) and this was observable during the assessment when he was in her vicinity. Her reported symptoms and her presentation are consistent with post-traumatic stress disorder (PTSD) as is commonly manifest in victims of domestic violence. If her account of the relationship can be relied upon to a significant extent, then it would constitute an abusive relationship and as such would pose a threat to her mental health and that of the children.
Dr Q said:
If these accounts of (the father’s) adjustment can be relied upon then certainly there would have to be concern about his personality style; they would suggest that he is volatile, controlling, and manipulative, possibly also with some sociopathic traits; such characteristics are not optimal for parenting and are likely to involve a risk of harm to the mother and the children.
(The mother) also reports a high frequency of texting and emails from (the father) and she has concerns that he has entered her home, that he has tracked her movements in regard to [Mr B] and that he may have interfered with her car. If there is some basis to these concerns then the implications are very serious; they would suggest stalking behaviour of a kind that is seen is (sic) situations of severe domestic violence and would also indicate a significant risk of harm to (the mother) and to the children.

THE MOTHER’S CONSUMPTION OF ALCOHOL

Both of the parents at earlier times of their lives had problems with alcohol and, in the father’s case, drug addiction.
The mother conceded both in her affidavit evidence and in cross-examination that in earlier times she had drunk to excess and had attended meetings of Alcoholics Anonymous. The mother gave evidence that she is a social drinker. That evidence was corroborated by both the maternal grandmother who said that she has observed the mother to have up to three glasses of wine and become “more chatty”.
The mother’s friend, Ms A, described the mother as having up to three glasses of wine when they have been together and the mother’s sister described the mother as drinking two or three glasses of wine, on occasions. The mother denied any assertion that she consumed alcohol to excess, particularly in circumstances where she was caring for the children, or that her consumption of alcohol had any effect on her ability to care for the children.
The father’s mother gave evidence that she had observed the mother drink to excess at Easter time in 2007. The mother did not dispute that observation.
Insofar as the paternal grandmother sought to implicate the mother, in 2007, in the use of cocaine, I reject that evidence as inherently unreliable.
The father relied, primarily, on hearsay evidence of statements made by Ms E, the housekeeper who is employed by the mother. Counsel for the mother objected to those portions of the father’s affidavit but, because this matter proceeds under Division XIIA of the Family Law Act 1975 (Cth), the relevant portions of the father’s affidavit were admitted into evidence. The issue therefore is what weight should be given to the hearsay allegations in relation to the mother’s consumption of alcohol.
The father had raised similar allegations in his affidavit of 29 February 2012. When the matter came before the Court for directions on 30 March 2012, the father indicated that he proposed to rely upon affidavits by himself and his partner, and that he proposed to issue a subpoena to the housekeeper, Ms E.
No such subpoena was issued and Ms E did not appear in Court to give evidence. In circumstances where the allegations are of a serious nature, and are material to the father’s case, I must assume that the failure to call the witness, either by affidavit or by subpoena, must have been because her evidence would not have assisted the father’s case. The mother and her witnesses deny the assertions which were put to them on the basis of the hearsay evidence. There was nothing in the manner in which they gave their evidence or in the nature of their evidence which was in any way unbelievable or not credible. I prefer the evidence of those persons who came to court and gave evidence to the hearsay assertions upon which the father relies.
The mother told Dr Q that she drank three to four drinks on three or four days each week. In her oral evidence the mother said she may have overstated the amount to Dr Q. On the basis of the mother’s statements to her, Dr Q recommended that she be assessed by a drug and alcohol counsellor.
In her oral evidence Dr Q said that the mother always appeared to her (even in an unscheduled telephone call on a Saturday evening) to be perfectly alert and functioning well mentally. Nevertheless, she said, the level reported by the mother was well above optimal.
The mother, in oral evidence, said that she was dealing with the cause of the drinking (I infer that she was referring to dealing with the effects of the father’s behaviour) in counselling but that she had no objection to raising that issue with a counsellor or having an assessment. I propose to order that the mother provide a copy of Dr Q’s report to her counsellor.
I do not accept that the mother’s consumption of alcohol, in any way, affects her care for the children, or her ability to care for children.

THE FATHER’S INVOLVEMENT OF THE CHILDREN IN THE PROCEEDINGS

There are two aspects of the father’s behaviour which have been raised by the mother in relation to his involvement with the children. The first is his decision to speak to the children about her relationship with Mr B in circumstances where she herself had determined not to introduce Mr B to the children or to tell them about her relationship with him. The second aspect of the father’s behaviour which is of concern, is the extent to which the children, and particularly L, have been involved as advocates for their father’s position.
Dealing firstly with the issue of Mr B, the Family Consultant, Ms R in her report of 21 February 2012 at paragraph 13 says:
There does appear to be at least one issue that is affecting (the father’s) ability to facilitate the children’s relationship with their mother. (The father) stated that [L] had raised concerns with him about her mother having a boyfriend and said he has reassured her regarding this. He acknowledged that he had spoken to [L] about [Mr B] being her mother’s “boyfriend” and that [L] had read part of the AVO paperwork. He stated that this was due to the papers being served on him by police in front of the children when he collected them from her mother’s home and [L] taking the papers to read in a search for answers regarding whether or not her mother has a “boyfriend”.
L reported to Ms R that she felt caught in the middle of her parent’s conflict, in particular with respect to the nature of her mother’s relationship with Mr B. L reported having read the paperwork associated with the AVO application, and appeared to know some detail of what was written in it, citing the term “PINOP”. L also indicated to Ms R that her father had involved her in conversations regarding Mr B and his relationship with her mother.
On 9 January 2012, the father collected the children for holiday time. In the presence of the children, he said to the mother , “Now you can go and have time with your fucking boyfriend.” L began to cry and, as the mother comforted her, the father said “Your mother is a liar”. In an exchange of texts that day the father said “[L] keeps asking me why you lie to her about your cigarette smoking & having [Mr B] as a boyfriend. I understand that you must feel a certain amount of shame on both counts, but lying to the girls just isn’t working”.
On 21 March 2012 during a changeover, the father, in the presence of the children, said loudly and aggressively to the mother, (referring to a hairdressing treatment for which he had paid) “When are you going to give me back the $560 I spent on you while you were fucking [Mr B]?” The issue of repayment for the hairdressing treatment was a constant theme in the father’s electronic and verbal conversations with the mother. When, on 22 March 2012, the mother sent a lengthy text message to the father about forthcoming arrangements for the children, his reply was “$560. I will collect the girls from….”.
On the evening of the same day, the father sent a text about arrangements for the children that concluded “you have a great weekend but do send me the $560 for the hairdo you needed to impress your talentless artist poet friend you are not having a relationship with.”
On 15 April 2012, L said to her mother “Mummy is [Mr B] your boyfriend?” The mother replied “No darling, but he is a good friend of mine”. L said “You know, Mummy, dad showed me the letter from the police that said he is”. The mother said “Really? When did that happen?” and L replied, “The morning the police came to our place. Daddy says if you keep carrying on with [Mr B], he is going to move in with [Ms M]”.
In her interviews with Ms R the mother told the family consultant that the father questions the children about her, sends messages through the children and seeks information about her through L. In that context Ms R noted that L presented with knowledge and opinions that appeared beyond her years and she commented that both L and V have clearly been influenced by the father regarding their views on the parenting arrangements.
In January 2011 there was a conversation between the parents in front of the children in relation to a proposed horse riding expedition. The father said, in a sarcastic tone, “see girls mummy doesn’t want to go horse riding with you.” The mother said “no darlings I’m just going to use this time to get you organised for your trip to Adelaide” and the father said to the children “mummy has SO much work to do, she can’t get herself organised to go horse riding” (mother’s emphasis).
On 29 July 2011 when the children were being prepared for school the father arrived before 8.00 am to collect them. He said to L “you should be ready” and L said “I am dad, stop. I am ready.” The father then said “No you’re not – if you’re not ready your mother should have got up earlier” and L said “She was. She was up before me.”
On 15 December 2011 the mother took the children to the market in Suburb N and V needed to go to the toilet. They were close to the father’s office and the mother suggested that V go to her father’s office and use the toilet there. About ten minutes later the father approached with the girls and L said to the mother in an urgent tone “Daddy’s coming mummy, you better run away”.
On 15 December 2011 the mother heard the father on a speaker phone talking to L about a birthday party. The father said to L “Yes I spoke to [Ms K] (the mother’s sister) she wouldn’t let me take you. See she doesn’t care.”
On 8 January 2012 L said to the mother “Daddy says the reason we are not flying to Adelaide is because you are taking Daddy to court”. The father was proposing to drive with the girls to Adelaide.
The mother gave evidence, unchallenged, that in the period from about January 2012 when she was talking to the children on the telephone she could hear the father in the background saying “Ask your mummy where she was last night when we tried to call her” and on another occasion in this period L said to the mother “Mummy we called you this morning” and the mother heard the father in the background say “Yes but she wasn’t there to answer it – ask her where she was”. The mother says that she sent a text to the father asking him to refrain from using the girls to find out where she was but his behaviour continued.
The father had a habit of asking the girls when he delivered them to the mother to go inside and ask their mother to come out and speak to the father. The mother says that she was put in a position where she did not wish to speak to the father but that the children would be upset if she refused.
On 20 February 2012 when the father was returning the children the mother saw the father go through the contents of her mailbox. He then turned and had a conversation with L about a graze on her leg. L said “I got it when I was at [Ms K’s] (the mother’s sister)” and the father replied “See. [Ms K] doesn’t care.”
The father has continually used the children to convey messages to the mother, particularly allowing the children to ring the mother and ask if they could have extra time with him.
In about February 2012 the mother’s sister, Ms K, was giving the girls a bath and L asked her “Why does mummy want to take daddy to court?” and said “Daddy says mummy has to get a job – why doesn’t she?”
The father deposes to having a conversation with L at about the same time when she said to him “Dad, I was listening to mum’s phone conversation with her solicitor last night and I was taking notes. Mum caught me and photocopied it and she kept the original and gave me this copy.” The father says that he said to L “Baby, I know you were trying to help but I have never asked you to do anything like that and I don’t want you to do anything like that again.” L replied “I hope mummy isn’t going to get you in trouble.” A week later L handed the father the original of her notes and said to her father “I took this from mummy’s desk.” The father said to L “I have asked you to stop doing this. Please believe me you should not be getting involved” to which L replied “Dad I am just trying to help us get equal time with you.”
In February or March 2012 the mother’s friend, Ms A, was at her home. The children returned from time with their father and L walked quickly through the house to the back door, opened it and went around the corner to the side of the house where the garbage and recycling bins were kept. Ms A heard the lid of the bins open and close. The mother said to Ms A “He’s got [L] on the case checking for bottles” and L then came back inside and greeted Ms A.
On 8 March 2012 the mother and the father, by text message agreed that the father would collect L after school and take her to the dentist and the mother would collect V from school. There was no doubt about those arrangements. At about 3.20 pm on that day L appeared unexpectedly at home and said to the mother “Mummy is [V] here? Do you have her?” The mother said “Yes darling, of course, because you’re going with dad this afternoon and I have picked up [V]. We talked about it this morning.” L said “I know mum but dad thought you may have forgotten. I told dad [V] would be at home but he wasn’t sure she was. Also dad wants the surfboard now for this weekend.”
It was the mother’s evidence that she believed that the father, in causing L to be doubtful about her mother’s reliability, was deliberately attempting to undermine L’s trust in her mother. The father gave no other logical explanation for his actions on that day.
Later on the same day L said to her mother “I can’t trust [Ms M] anymore, I can’t trust granny or grandpop or […] or pa or any of my family.” In the same conversation the mother said to L “You did know that I would be collecting [V] from school this afternoon?” L said “Yes mum you told us this morning.” The mother said “So why did you come in to check on [V]?” And L said “Dad said I had better check, that you may have forgotten her.”
On Sunday 11 March 2012 when the girls were in the care of their father, they dropped in at the mother’s home four times both in the morning and in the afternoon. On the last time when the mother answered the door L said quietly to the mother “Is there anyone else here mummy?” and the mother said “No darling but you can have a cruise around if you like”. Both of the girls then walked into each room of the house, the mother says as if looking for somebody.
In May 2012 L said to Ms M “I took notes while mummy was on the phone with her solicitor and she caught me and I’m worried she will blame daddy”.
On 11 May 2012 when the children were to be with their father, the mother told L that she was thinking about going out for the evening. L said to the mother “Mummy are you going out? Where are you going? When are you going? Who are you going with?”
On 21 May 2012 when the girls were dropped home by their father V said to her mother “Daddy says you’re a spoilt brat.”
On 17 June 2012 there was a conversation on speaker phone between the father, the mother and the children. The father said, in the hearing of the children, “…you prefer to hang out with [Mr B] more than your daughters”.
On 20 June 2012 the father said to the mother in front of V “Do you know (the mother’s solicitor) has sent my lawyer three letters on the same day? My lawyer thinks that is the biggest joke! Spending all your mother’s money!” The mother did not respond and walked away and the father walked up the street behind her yelling out at her “Gouger, Gouger.” V was next to him for the whole of the time.
On 16 July 2012 L, who was then in her father’s care, telephoned the mother and said “Mummy, are we staying with daddy tonight? Daddy says we are.” That night when the children returned they were upset and when L starting talking to her mother she said such things as:
·“Why do dad and you hate each other?”
·“Why do you always fight?”
·“Why am I the only child in the school going through this?”
·“When dad got sick he had to leave us. You told him ‘in sickness and in health’”
·“Dad’s best friend died when he was young and he didn’t stop crying.”
·“Dad didn’t know how to be a husband so he didn’t talk to you.”
·“When he was young dad’s stepfather didn’t speak to him for five weeks and dad was very sad.”
·“Dad’s father died and he never had a father so he needs us to be with him.”
·“You told Dr [Q] about my tantrum you promised you wouldn’t show anybody, you told the court too and you promised.”
·“Everybody hates me at school, I am fat and get low marks, I hang out with (three names) but they are mean to me.”
·“Dad was crying when you said you wouldn’t let me stay. He was crying, it made me cry more.”
On 28 July 2012, when the children were in the care of their father L called her mother in the afternoon and said “Mummy where were you this morning? We drove up and down the street, and up and down, looking for your car this morning and you weren’t there.” The mother said to L “I was at granny’s darling” and L said “Daddy didn’t know where you were.”
The father appeared to have no understanding of the effect on the children of his enrolling them on his side in his dispute with their mother or the effect on them of undermining their relationship of trust with her.

DR Q’S ASSESSMENT OF THE CHILDREN’S PSYCHOLOGICAL HEALTH

In the course of interviews, the mother showed Dr Q a DVD with three very brief recordings, each a few minutes. The mother told Dr Q about events which had taken place on 22 March 2012 which was V’s birthday. On that day the mother suggested to the father that rather than the girls going to gymnastics classes he should collect them at 4.30 pm and return them to her at about 7.00 pm. She explained in her message that the girls were to have afternoon tea with their maternal grandmother and their aunt from 3.30 pm onwards. She suggested that if the girls went to their gymnastics class and the father picked them up after gymnastics they would be very tired.

The father’s response was “$560.00 I will collect from … gymnastics class.”
The children had a long day. V opened her presents in the morning, they went to school, they had afternoon tea with their grandparents and their aunt, they went to the gym for gymnastics training and the father collected them after gymnastics. The father brought the children home at about 8.00 pm. They started getting ready for bed. At about 8.15 pm L started to whimper quietly. Her whimpering quickly built up into crying and from there to screaming and raging. The mother tried to calm L down but was not successful. She said that nothing that she did or said had any effect, “it was as if she could not hear me.” L started pulling aggressively at her hair, pulling at her eyebrows, punching herself, punching the walls with her fist, punching pillows, walking and crawling around the house howling and screaming. The mother said that she had never witnessed anything like this behaviour in L and that she was at a loss as to what to do to help her. L did not seem to be aware of any comfort and was oblivious of the mother’s presence. At about 8.40 pm the mother called her sister Ms K to come and help. The mother’s sister has a degree in social work and has worked in child protection. When the mother’s sister arrived she took V into the lounge room and cuddled up on the sofa with her, while the mother tried to assist L. L’s behaviour continued unabated. The mother felt that she could not put into words what she was witnessing and she used her I Phone to take a few short recordings.
At about 10.00 pm L was exhausted into quietness and the mother said to her “Darling girl, do you want to come into the kitchen and draw with me for a little while? Would that help now?” The mother said that she suggested drawing because L has always seemed to get relief from expressing how she was feeling in drawing. Dr Q said that was an entirely appropriate suggestion.
L then commenced drawing and the mother sat with her, also drawing but did not talk to her. After about ten minutes L seemed calmer and said to the mother “Mummy, I needed to express my feelings.” During the period that she was drawing she covered about ten pages. On one page was a drawing in red felt pen of a heart with the words “My heart is broken”. Over five pages she wrote the words in large letters “I want dad and you to stop fighting”. There were also two pages of double sided scribbling.
The recordings taken by the mother were tendered in the proceedings and were also viewed by Dr Q. Dr Q rejected the father’s suggestion that L’s distress on the occasion as described by the mother was contrived or prompted by the mother. Dr Q said that the manner in which L acted as described by the mother and shown on the recordings was entirely consistent with the impression she had gained from L in her interviews with her. In her report Dr Q said that she gained the impression from L’s behaviour in the interview with her father that L was troubled. She described L as a “highly adapted child” who is perhaps acting as an advocate for her parents, particularly her father. In her interview with L alone Dr Q describes L as giving highly adapted responses, her wishes all being focused on others and giving adult explanations. In the course of the interview Dr Q observed that L was weeping and manifestly sad or depressed and said that again it was obvious that she is a highly adapted child whose focus is on trying to make other people happy.
Dr Q’s assessment of L’s current mental state is set out as follows:
[L] doesn’t sleep well at night. She always worries and that keeps her awake. She particularly could not sleep after she saw a movie called Coralline; it was very scary and it kept her awake for a long time; the maternal grandparents took her to see it. Sometimes also she has nightmares about ‘some people aren’t happy and I want them to be.’ [L] described a particular nightmare.
Dr Q commented that L’s words reflected anxiety but it was impossible to interpret the conflict. L told Dr Q that she would like to have a coffee shop one day but said “Some people like mum don’t agree that it’s the best kind of job”. Dr Q commented that this is highly adapted and depressive thinking. L told Dr Q that sometimes when she is at school she worries about her family and that distracts her from her school work. The father told her about a little boy who didn’t know who to follow, L said:
He had two people inside of him. I feel like that sometimes. Dad said it’s like two feelings, like an angel and a devil. I find I’m in the wrong place at the wrong time. I feel I was born into the wrong family and I should have chosen a different family and someone inside me will say no, it’s the right family.
Dr Q again was concerned that this was depressive and disturbed thinking. When Dr Q asked L if she felt down in the dumps L agreed she did, probably six days out of seven and probably for 12 hours usually at night. Dr Q suggested that that comment was indicative of clinical depression and it was her assessment that L was both highly adapted and depressed.
In her assessment of V Dr Q concluded that V was not depressed but feels worried and is not able to sleep and in her oral evidence Dr Q said that V suffered from anxiety.
After the interviews Dr Q wrote to the legal representatives saying that L required urgent intervention and that the intervention should not wait until after the hearing. The parents made arrangements for L to see a counsellor, Ms D.
Dr Q notes in her report in relation to the incident on 22 March and her viewing of the video clips:
I noted a very disturbing scene; [L] is quite hysterical and also angry; the level of her distress is extreme and apparently this went on for 80 minutes. At one point [L] tells her mother ‘I wouldn’t feel comfortable doing this at dad’s place’.
The mother reported to Dr Q that L has gained weight and that her hair is falling out and has got quite thin and Dr Q noted that those are symptoms suggestive of depressive illness.
The father regarded L’s outburst as a “tantrum” and suggested that she had been coached by the mother. Dr Q emphatically rejected that suggestion.
In her report Dr Q said:
[L] is seriously affected by the family dynamics. It is apparent that she is functioning as an advocate for her father and that representing his interests has become more important than meeting her own. If [L] maintains this kind of position there is a risk that it will carry over into her adult relationships and that she will be at considerable risk of victimisation in later life. Whether [L] has adopted this position as a result of overt coaching or perhaps a more implicit induction is difficult to say. Over two interviews it was apparent that she is highly adapted and compliant and acutely attuned to parental needs and feelings; this was especially apparent when she was with her father. This adjustment has lead to her becoming depressed. The video clips were of great concern and show that she is experiencing a very severe degree of distress. In my view she requires urgent clinical intervention, and before the hearing that is scheduled for August; after completing these interviews, I advised the legal representatives accordingly.
[V] is affected also by this dynamic but her adjustment is different: she presents a bright defence and keeps rather more distance from the conflict and does not get as embroiled as does [L]; nevertheless she is quite anxious. [V] should also be assessed clinically.
I would recommend that the children be seen by a child and family psychiatrist or clinical psychologist. It is important that any psychological treatment they receive be provided to them by a clinician who is entirely independent of but can meet with each of the parents, separately, and involve them in the treatment process.

conclusion

Family violence, in the context of proceedings under the Family Law Act 1975 (Cth), means violent, threatening or other behaviour by a person, that coerces or controls a member of the person’s family, or causes a member of the person’s family to be fearful. Family violence is not limited to physical violence, but includes stalking and repeated derogatory taunts. In the present case the behaviour of the father falls within the definition of family violence.
A child is exposed to family violence when that child sees or hears family violence or otherwise experiences the effects of family violence. This includes overhearing threats to cause harm to another person, and when the child feels the need to comfort a person who has been affected by violence, whether verbal or physical. As described earlier in these reasons, there have been several instances where the children have been exposed to family violence by the father.
Abuse, in relation to a child, is defined under s 4 of the Family Law Act 1975 (Cth) to include causing a child to suffer serious psychological harm including when that harm is caused by the child being subjected to or exposed to family violence. It is clear on Dr Q’s evidence that L has suffered serious psychological harm as a result of the family dynamics and in particular, the father’s behaviour.
Dr Q expresses her concern that the pattern of behaviour, which the father has demonstrated, is associated with risk of harm both to the mother and to the children. Dr Q characterised the relationship between the mother and the father as abusive, and expressed the view that it would pose a threat to the mother’s mental health, and that of the children. As has been discussed, Dr Q has already assessed the children to be affected and in need of therapy.
It is in the context of those circumstances that the best interests of the children must be considered. Dr Q in her evidence described the dilemma of ensuring that the children have the benefit of a meaningful relationship with their father and the need to balance the protection of the children from the psychological harm of being subjected to family violence, directed principally towards their mother. In that balancing exercise, the law requires that the protection of the children from the effects of family violence be given the greater weight.
Dr Q expressed the view that the father’s personality is unlikely to change, and that the sorts of short term anger management classes which he has attended are unlikely to have had any effect upon him. She said that for there to be any real likelihood of change in the father’s behaviour, which she described as “characterological change”, he would need to undergo a long term course of behaviour modification therapy and he would have to have a genuine and strong wish to change. She was of the view that neither of those things is likely to happen. Therefore, when considering what arrangements are in the best interests of the children, it was her view that the Court should consider that the father’s behaviour would not abate.
Nevertheless Dr Q said that the children need to continue to see their father and they need to have a relationship with him. Balanced against that is the need to protect the children from the consequences of their father’s behaviour and, in accordance with the principles set down in the Family Law Act 1975 (Cth), Dr Q gave greater weight to the need to protect the children from violence. Therefore, she said, the time that the children spend with their father should be restricted, but she did not rule out overnight time.
In relation to the issue of changeover Dr Q said that it would be of benefit to the children if they were protected from their father’s attitude towards their mother at changeover and that ideally changeovers should take place from school.
The views expressed by the children are problematic. There is no doubt that they have strongly and consistently, to Ms R, to Dr Q and to their mother, expressed their view that it would be fair if they spent equal time with each of their parents.
L told Ms R that an equal time arrangement would be “fair”; would allow her and her sister to “get the best of both parents”; would allow her to make the best of having a father, which her father was unable to do as his father passed away when the father was six years old; and would allow changeovers to occur without her parents coming into contact with one another – which would prevent her parents from arguing. Those are very adult sentiments for a nine year old to express and mirror the father’s arguments presented in these proceedings.
V told Ms R that she wanted to spend a week and a weekend with each parent (equal time), she acknowledged that she had discussed this with L and their father. V told Ms R that she was aware that her mother wanted them to spend time during the week with the mother and weekends with the father but she stated to Ms R that this is “not fair” for her father to “just have two days with his girls”. Again that appears to be a very adult expression for V who was then almost seven.
V told Ms R that if the court were to decide that she live with her mother and see her father on alternate weekends, she would say that it is “not fair for my daddy”.
To Dr Q, L explained that “week about” is a good plan because they do different things with mum and dad. She said “with mum we do girly stuff like fashion and going to Westfield; with dad it’s more like activities”. Dr Q had the impression that L is a highly adapted child who is perhaps acting as an advocate for her father. L told Dr Q that she was never naughty with dad. When Dr Q asked L why she favoured a seven day turnaround L said “it would be good because they won’t have to see each other and it’s not good for V if they disagree. It really hurts. I don’t want that to happen to V. I love my little sister I don’t want her to be unhappy.” L also told Dr Q “with the seven day turnaround it would be good too because if mum wanted a boyfriend she could go out partying every night if she wanted to. The same with dad he could too and they wouldn’t have to see each other.” Again, these appear to be very adult perspectives, and Dr Q had the impression that L has been at least exposed to her father’s perspective and possibly coached.
V told Dr Q that she, too, would like an arrangement of one week with each of the parents “because then it will be even”. Asked if there might be problems with the arrangement, V thought that perhaps they might not always have their school uniforms in the right place. V doesn’t think she would miss one parent when she is seven days with the other (although Dr Q has said that an absence from a parent for seven days would be excessive for a child of her age). V felt that L, too, would be happy with the arrangement of seven days.
Dr Q said that both children expressed strongly a wish for equal parenting with a seven day turnaround, however it was apparent that they are much influenced by adult needs, particularly those of their father. It appears they have been inducted into this position, perhaps by overt coaching or perhaps more implicitly, but they have taken a position of advocating for their parents, especially their father. This is quite clearly the case with L but was also apparent with V. Thus, although the girls say this is what they want, it is not at all clear that this reflects their own wishes.
In her oral evidence, Dr Q said that the children, especially L, had been at pains to make representations, particularly for her father and that the comments of the children, supportive of their father’s position, suggested that possibly they had been encouraged to make those representations to her.
The children have never experienced a situation where their father cared for them for a week, other than in school holiday periods. Ms R in her report said that the children, particularly L, appear to view their mother’s primary role as caring for them on a daily basis and their father’s primary role as engaging them in enjoyable activities.
Ms R went on to say that L and V have clearly been influenced by (the father) regarding their views on the parenting arrangements. Their preference for equal time may be related to the positive relationships they have with each parent, but seems to be more related to them taking on their father’s perspective of fairness, a concept which they value and which removes them from the middle of their parent’s dispute.
Ms R went on to say:
If the father’s proposal of equal time were to be accepted, the children would be likely to feel relieved from the pressure that had been placed on them to desire that arrangement. Both children obviously love both of their parents. An equal time arrangement would likely give them a sense of loyalty to both parents that would free them from the dispute between their parents. Whilst these would be positive outcomes for the children, the same outcomes could be achieved through the parents modifying their behaviour, irrespective of the parenting arrangement.
In circumstances where I accept the evidence of Ms R and Dr Q that it is highly likely that the children’s views have been influenced by their father, their views will not be determinative.
There is no doubt that the children love both of their parents. Their mother has been their primary carer for the whole of their lives. Dr Q described the children as being more securely attached to their mother and said there was an element of insecurity in their attachment to their father.
Each of the parties has made the most of every opportunity to spend time with the children. To the extent that the father criticises the mother for choosing to have the children cared for by others on occasions, and particularly criticises her for spending time with Mr B when, in the father’s view, she could have been spending time with the children, I reject that criticism.
The issue of the financial arrangements for these children did not loom large in these proceedings, but I note that the father has not paid any periodic child support for the children in 2012, and the children are primarily maintained, financially, by the mother’s family.
An equal time arrangement for the children would be a significant change to the arrangements which they have experienced for the whole of their young lives. It would involve not only a change to their daily care arrangements but an adaptation to a household which, according to the evidence of their father and Ms M, would include Ms M, as they propose to set up a home together once orders in these proceedings have been made. The father and Ms M have not experienced living together as a couple and the children have not experienced Ms M as a member of their father’s household. She is 26 years old and has, not surprisingly, no parenting experience, and did not demonstrate a great deal of insight into the difficulties, for these children, which might be posed either by them becoming a part of this new household, or the difficulties which are caused to them by their father’s attitude towards their mother.
Dr Q expressed the view that the kind of seven day program which is proposed is difficult with very young children, especially with children as young as V, and is unlikely to be successful when the relationship between the parents is poor, as it is in this case. Further, Dr Q said, L is depressed and it is likely that a seven day separation, with the inevitable feelings of loss of the other parent, will aggravate her depressive condition.
Dr Q firmly ruled out an equal shared care arrangement as being appropriate for these children.
In terms of the capacity of each of the parents to provide for the needs of the children, Dr Q expressed the view that the mother is strongly child focussed and especially focussed on her concerns about the children. In her evidence before me the mother was careful and considered in her assessment of the children’s needs, and the effect of the family dynamics upon the children.
Dr Q’s view was that the father presented as quite child focussed and perhaps focussed also on presenting his own good parenting qualities. However the father’s involvement of L in the dispute between the parents raises concerns about his capacity to be child focussed.

The father’s apparent influence over the children in their current views about the parenting arrangements also, according to Ms R raises concern about his capacity to prioritise the children’s best interests over his own needs and desires.
Ms R also expressed concerns about the father, based on his reflections on his relationship with the mother about his capacity to interact with the mother as a co-parent.
Dr Q said that the father has prominent, obsessional character traits, and along with these goes a tendency to be controlling, and it is likely this has characterised his relationships in the past. She expressed concern that this might cause conflict with the children, as they grow older, and become less compliant.
I have set out earlier in these reasons my findings in relation to the issue of family violence. Even in the absence of these findings Dr Q was of the view that the father’s proposal for equal shared care was inappropriate. In her report she says:
In my view this is a high conflict situation and therefore not one that is suitable for an equal parenting arrangement (Mcintosh et al, 2008). It is unlikely that the parents could implement this or communicate with each other as required in such arrangements. In an equal parenting situation it is likely also that the children will become further inducted into acting as advocates for their parents, especially [L], who is already functioning as an advocate for her father and is emotionally quite disturbed and in particular need of protection from further embroilment in the parental conflicts.
The orders which I will make will be sufficient to ensure that the children are able to maintain their relationship with their father whilst protecting them from exposure to continued family violence and from being subjected to further abuse.
Equal shared time is inappropriate for these children. The orders which I will make provide for substantial and significant time to the extent that that time is consistent with the children’s welfare.
Dr Q strongly recommended that both of the children should be attending therapy and that the therapy should be confidential. Both of the parties have agreed that I should make orders which restrain the issue of any subpoena for counselling notes and maintain the confidentiality of the therapy.
Both of the parties have agreed that it would be appropriate that the children’s counsellor should be the person who explains to the children the orders that the Court has made.
Whilst I would not presume to instruct the therapist on the way in which she should explain the orders to the children, I wish to make it clear that I have heard their wishes. I understand that their wish is that they should spend equal time with each of their parents. They could not have advocated more strongly or more clearly for those wishes. However my responsibility is not to make orders in accordance with the children’s wishes, but to make orders in accordance with their best interests. The orders which I propose to make are not the orders which were sought by their father and they are not the orders which were sought by their mother. The responsibility for the making of the orders in mine alone.

I certify that the preceding one hundred and eighty-one (181) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 17 September 2012.

Associate:

Date: 18 September 2012

[2012] FamCA 793

Key Legal Topics

Areas of Law

Family Law

Evidence