MACKLEY & MACKLEY

FEDERAL CIRCUIT COURT OF AUSTRALIA

MACKLEY & MACKLEY

[2015] FCCA 1577

Catchwords:
FAMILY LAW – Equal time interim orders not on best interests of children due fathers violence towards mother – demeaning behaviour and racial vilification of the mother – emotional abuse of the children – presumption of equal shared parental responsibility rebutted – sole parental responsibility to mother – three month break of children spending time with father to enable relationship with mother to be repaired – re-introduction to father moderated by changeover at a contact centre.

Legislation:
Family Law Act 1975

B & B [1988] HCA 66
M & M (1988) 166 CLR
Goode & Goode [2006] FamCA 1346

Applicant:

MS MACKLEY

Respondent:

MR MACKLEY

File Number:

SYC 3175 of 2012

Judgment of:

Judge Henderson

Hearing dates:

13, 14 and 15 May 2015

Date of Last Submission:

15 May 2015

Delivered at:

Sydney

Delivered on:

12 June 2015

REPRESENTATION

Counsel for the Applicant:

Mr Schonell SC

Solicitors for the Applicant:

Barkus Doolan

Counsel for the Respondent:

Mr Brewer

Solicitors for the Respondent:

Ciaglia Legal Solicitors & Attorneys

ORDERS

All prior parenting orders are hereby discharged.
The mother to have sole parental responsibility for the children X born (omitted) 2003 and Y born (omitted) 2005.
The children live with their mother other than as specified in these orders.
The children spend no time with their father for a period of three calendar months following the making of these orders.
Commencing on the first weekend after the expiration of three (3) calendar months after the making of these orders, the children spend time with the father as follows:
(a)For four weekends being each alternate weekend from 9am Saturday to 4pm Sunday or at such other times as the contact centre can accommodate, with changeover to occur at a contact centre nominated by the mother
(b)Thereafter each alternate weekend from after school Thursday or 3pm until before school on Monday or 9am with the father to collect and return the children to and from school;
(c)For the first half of the school holiday periods falling at the conclusion of Term 1, Term 2 and Term 3 in 2015 and each alternate year thereafter;
(d)For the second half of the school holiday periods falling at the conclusion of Term 1, Term 2 and Term 3 in 2016 and each alternate year thereafter;
(e)From 3pm on the last day of school term at the conclusion of Term 4 until 12 noon on 24 December in 2015 and each alternate year thereafter;
(f)From 12 noon on 24 December to 12 noon on 25 December in 2016 and each alternate year thereafter;
(g)From 12 noon on 25 December to 12 noon on 26 December in 2015 and each alternate year thereafter;
(h)From 12 noon on 26 December to 12 noon on 1 January 2016/ 2017 and each alternate year thereafter;
(i)For a period of two weeks from 12 noon on 1 January to 12 noon on 15 January in 2016 and each alternate year thereafter;
(j)From 12 noon on 15 January to 12 noon on the Sunday prior to the commencement of the school year in 2017 and each alternate year thereafter;
(k)In the event that Easter falls outside of the school holiday period:
(l)From 9am on Good Friday to 5pm on Easter Saturday in 2016 and each alternate year thereafter;
(m)From 5pm on Easter Saturday until 5pm on Easter Monday in 2017 and each alternate year thereafter;
(n)In the event Easter falls within the school holiday period the children will spend time with the father in accordance with Order 5.c and d;
(o)In the event that the children are not otherwise in the father's care, from after school on Friday or 3pm until before school on Monday or 9am on Father's Day;
(p)In the event that the children are not otherwise in the father's care, on X's birthday from after school or 3pm until 8pm in the event that it falls on a school day and from 9am to 1pm in the event that it falls on a weekend or during a school holiday period;
(q)On the father's birthday ((omitted)) from after school or 3pm until the commencement of school on (omitted) if it falls on a school day and in the event the father's birthday falls on a weekend or day of the school holiday period, from 10am until 10am on (omitted);
(r)In the event that the children are not otherwise in the mother's care, from after school on Friday or 3pm until before school on Monday or 9am on Mother's Day weekend;
(s)In the event that the children are not otherwise in the mother's care, on X's birthday from after school or 3pm until 8pm in the event that it falls on a school day and from 9am to 1pm in the event that it falls on a weekend or during a school holiday period;
(t)On the mother's birthday from 10am (omitted) to 10am on (omitted);
(u)From 5pm on the Eve of (religion omitted) holiday until 5pm on the day following (religion omitted) holiday;
(v)At other times as agreed between the parties in writing.
During the school term, changeovers for the purpose of the children spending time with each parent are to take place at the children's school unless as otherwise agreed and in the event that the time is unable to be facilitated at the children's school, the mother will deliver the children to the father's residence at the commencement of the father's time and the father or his nominee, will deliver the children to the mother's parents’ residence at the conclusion of his time.
The father's time pursuant to Order 5.b be suspended during school holiday periods.
For the purposes of calculations of school holiday periods, school holidays are to commence at the conclusion of school on the last day of the school term and to conclude on the first day of the school term (unless otherwise specified in these Orders) and in addition, "Pupil Free Days" form part of the school holiday periods.
The children have telephone communication with the father each Tuesday, Thursday and Sunday from 7pm to 7.30pm and for the purposes of this Order, the wife will facilitate the children contacting the father.
The children have telephone communication with the mother during school holiday periods they are spending time with the father each Tuesday, Thursday and Sunday from 7pm to 7.30pm.
Each party notify the other, as soon as possible and in any event within 24 hours, of any serious injury or illness suffered by the children whilst with that party.
Each party notify the other, not more than 24 hours after any change to their address and/or landline and/or mobile telephone number and/or their email address.
Each party notify the other of the address and telephone number/ s of the place/s where the children will be staying during holidays spent away from their residence, and not later than 48 hours prior to the commencement of any holiday period.
Both parties forthwith authorise any school the children may attend to provide to both parties photocopies of reports, newsletters and announcements of the school activities, or otherwise pertaining to the education of the children, or if none have been made available in writing, then the party provided with that information shall provide written particulars, which includes by email, of such reports and/ or activities to the other party within 48 hours of such document or particulars being received by that party from the school and the parties shall authorise staff members at any school the children may attend, to discuss the children's progress with both parties.
The husband be and is hereby restrained from:
(a)assaulting, molesting, harassing, threatening or otherwise interfering with the mother and/or the children;
(b)engaging in any conduct that intimidates the mother and/or the children.
(c)approaching the mother or attending upon the mother's property or any place at which the mother is residing or working without first obtaining the mother's consent in writing.
Both parties refrain from denigrating the other party or that party's immediate family in the presence or hearing of the children.
Both parties refrain from discussing these proceedings with or in the presence of the children.
Each party be permitted to travel overseas with the children during each parties' time with the child during school holiday periods pursuant to these Orders subject to providing written notice to the other party no less than 28 days in advance of the departure date and notifying the other party of the address and telephone number/s of the place/ s where the children will be staying during holidays and flight details and booking information, not later than 14 days prior to the departure date.
Each party sign all documents necessary to facilitate the children's travel overseas pursuant to these Orders and ensure the children's passport is provided to the travelling party at least three weeks prior to the proposed travel.
The passports are to be kept by the travelling parent until the other parent requests same.
The parties will ensure that the children have a current passport at all times and the costs of renewal for each of the children’s passports will be met equally between the parties.
That the parties do all things and sign all documents necessary to facilitate the children attending upon Mr P (or Dr K) for the purposes of these Orders being explained to the children and in particular, to note that these are Orders made by the Court and not by either party and for the purposes of this Order:
(a)The costs of the children's attendance are to be met equally between the parties;
(b)The parties will abide by any recommendations of Mr P as to the ongoing attendance of the children;
(c)The mother will facilitate the children's attendance at each appointment with Mr P.

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

FEDERAL CIRCUIT COURT OF AUSTRALIA

AT SYDNEY

SYC 3175 of 2012

MS MACKLEY

Applicant

And

MR MACKLEY

Respondent

REASONS FOR JUDGMENT

The matter of Mackley is an application concerning the parenting arrangements for the parties’ two children: X, born (omitted) 2003 and Y, born (omitted) 2005. At present, the children live with their parents in an equal time arrangement with changeover at school. These were orders made by consent in 2013.
The parties resolved their property matter on 7 May 2014 and orders were made. The issue before the Court at the final hearing was the parenting arrangements.
The applicant mother was represented by Mr Schonell SC. The father was represented by Mr Brewer of counsel.
At the commencement of the hearing the mother tendered a minute of the order she sought which amounts to a significant change to the current week-about. Her orders were that she have sole parental responsibility, that there be a gap of three months from the date of the handing down my judgment where the children spend no time with their father, that time with the father recommence thereafter from Thursday after school to the commencement of school Monday each alternate week together with the usual orders for holidays, Father’s Day, birthdays, Christmas and the like, including overseas travel.
The mother also sought that if I made such orders the orders be explained to the children by a skilled clinician such as Mr P given the absence of an ICL.
The father’s proposal at the commencement of the hearing was the orders remain the same except for some minor changes to the commencement of holiday times at Christmas and for the father’s birthday. At the conclusion of the hearing the father said 6 nights with him and 8 with the mother
At the conclusion of the hearing I asked the mother through Mr Schonell and the father that if I made the order she contended for, in particular a three-month gap of time should there be an introduction period for the children when they re-commenced spending time with their father.
Secondly whether that introduction should for a period of time be moderated by a professional organisation such as a contact centre until such time as the children are able to transition between their parents from school. The mother could see sense in these proposals as could the father although he did not contend I make the orders the mother sought.
It is agreed by the mother, the father, the family consultant who prepared a report and clear from evidence that the parties have no ability to communicate with each other at any level or on any issue. As the evidence unfolded it became clear that the type of communication the parties had during their relationship, continuing post separation and going on for 15 years, has had significant negative impact on each of the parents functioning and is now having a similar deleterious impact upon their children.
The current interim orders provide for equal shared parental responsibility and equal time. Mr Schonell SC submitted at the conclusion of the hearing that the nature of the parents’ relationship, the manner of communication, their behaviour and in particular the father’s behaviour to and conduct towards the mother during the relationship, and continuing, is contraindicated to the sharing of parental responsibility or an order for equal time. The evidence supported this submission for the all the reasons that follow.
The material I read for the parties was as follows.

For the wife.

·Trial affidavit filed 17 April 2015.
·Affidavit of her husband, Mr A, sworn 17 April 2015.
·Affidavit of her cousin, Ms K, sworn 16 April 2015.
·Affidavit of her psychologist, Dr S, sworn 20 April 2015.

The mother, her husband and Ms K were all cross-examined. Dr S was in (country omitted) and her affidavit went in unchallenged.

For the father.

·His response.
·Two affidavits, the trial affidavit filed on 20 April 2015 and an earlier affidavit of 3 May 2013. The father’s trial affidavit had virtually no information within it about his care of the children, his arrangements for the children and was only an affidavit in reply.

The mother’s exhibits were.

·Mother’s exhibit 1. A letter from Relationships Australia confirming that the father attended four sessions on 18 June, 25 June, 9 July and 16 June 2014 of a post-separation parenting and post-separation communication course. He confirmed orally that he had attended two further sessions on 23 July and 30 July 2014.
·Mother’s exhibit 2. An entry in a COPS report dated 6 April 2014 concerning an incident between the father and his neighbour. Mr Brewer raised objection to this going in on the basis of relevance, and although he did not address me on the weight of this document in closing submission I accept his earlier claim that I could attach no weight to the entry as the report of the incident had no input from the father.
·Mother’s exhibit 3. Counselling notes concerning X from her school counsellor.
·Mother’s exhibit 4. The family consultant memorandum dated 12 April 2013.

For the father.

·Exhibit 1. A report by Dr L, who is carrying out family therapy for the parties. Parts of the report were, by consent redacted The redacting concerned any material in which Dr L had made recommendations and what was left were, her observations and conversations with the parents. I found this evidence of little assistance

In addition I read the minutes of order sought by the mother.
The family report was marked court exhibit 1.
Neither the report writer nor Dr S were cross examined.
The wife did not seek to cross-examine the children’s paternal grandmother.
The parties who were cross examined were the mother, father, the mother’s husband and the mother’s cousin.

The short chronology.

The father was born in 1960 and the mother in 1972.
The parties commenced cohabitation in 2000 and were married on (omitted) 2002.
X was born on (omitted) 2003.
Y was born on (omitted) 2005.
The parents had an initial separation in April 2009.
They finally separated on 13 August 2010.
The mother commenced proceedings in this court on 22 February 2013.
The matter came before Judge Altobelli on 6 May 2013 and the interim consent orders were entered into.
It is the mother’s case that throughout the parties’ relationship the father has physically assaulted her, and continuing now for 15 years belittled her, made derogatory and racially pejorative comments to her, about her, towards her family and husband, has denigrated her to the children and in front of the children and has coerced, controlled and bullied her. The racial denigration is a particular concern as the mother is of (nationality omitted) descent and thus so is the children.
The father denied all such allegations in both the family dispute memorandum in 12 April 2013 and to the family report writer. He agreed each of the parties would at times yell at each other. He put forward the view that the mother was just as physically aggressive as him but that he had never perpetrated family violence on the mother.
He supported his position in his affidavits 20 April 2015 and in his affidavit on 3 May 2013. He said that a Local Court Magistrate had found the mother’s claims of family violence bogus and that they were dismissed.
His counsel opened his case by saying that in this matter I would be satisfied the father had a consistent, organised and well-established routine for the children, that they were, to use his words, doing well both academically and at school, that he was a superior parent to the mother in that he was never late, always punctual, routines were consistent, the children knew where they stood and that he had with the mother been a primary carer of these children.
He emphatically denied ever perpetrating family violence against the mother. He complained in paragraph 18 of his affidavit of 3 May 2013 that he did not accept the mother was the primary carer of the children because she spent so much of her time devoted to her work and he believed he was the primary carer.
At paragraph 28 of his affidavit of 3 May 2013, the father said :
We’ve had many verbal fights. I have never been physically aggressive towards the applicant. The applicant’s allegations are complete lies. The applicant has on many occasions assaulted me by kicking, slapping, scratching, digging nails, drawing blood.
Paragraph 34:
I have never been physically aggressive towards the applicant.
Paragraph 35:
We have both sworn at each other face-to-face and on occasions it may have occurred in front of the children.
Paragraph 45:
I never physically abused her.
Paragraph 48:
In heated arguments we both gave as good as we got.
Under instructions, Mr Brewer told me that the father’s view was that the mother has since separation mounted an unwarranted and unjustified smear campaign against him to convict him of violence against her, which is completely unwarranted all done in order to minimise his time with the children, maximise her time and gain a tactical advantage.
As the evidence unfolded, nothing could be further from the truth and, ultimately for the reasons that follow the mother’s allegations of family violence, denigration, racial slurs, intimidation and coercion by the father are accepted by the Court and not the father’s flimsy denials.
The family consultant in 12 April 2013 has unfortunately foretold the future. She reported
“Ms Mackley raised concern that the children have started mimicking Mr Mackley’s behaviour and have been disrespectful to her, unsympathetic by laughing at her when she was almost in a car accident and violent with each other. Mr Mackley believes the children are fine”
The family consultant opines “if these allegations are true, then there may be significant risk to the children’s emotional development as they risk learning antisocial behaviours.”

The recommendations in Court exhibit 1 at paragraph 65:
If the Court finds the mother’s allegations of violence and denigration against the father are substantiated, then it is recommended that the children live with their mother and spend time with their father each alternate weekend and one night in the alternating week. In order to minimise the children’s exposure to the denigration and allow the children’s relationship with their mother to improve, whilst maintaining their established bond with their father. It’s also recommended the mother have sole parental responsibility.
Paragraph 66:
If the Court finds the mother’s allegations of violence are unsubstantiated, it’s recommended that the children remain in an equal time arrangement to not further negatively impact upon their relationship with both parents and parental responsibility is shared.
At the conclusion of the hearing and in stark contrast to the opening address Mr Brewer’s submissions which were both correct and appropriate were;
“Your Honour will be making findings that my client has been violent towards the wife during the relationship and that continuing and has denigrated her.”
This is the truth. Despite this submission I propose to give examples of this denigration as it is most important the father realises the impact on the mother and children of his disgraceful and constant belittling behaviour towards the mother and their all-important relationship with her.
The family consultant noted at paragraph 14 of her report that the mother said the father was a bit rough with his words to her which were intended to criticise, control and ridicule her. Her parents liked the father, but he was initially disrespectful and he used to refer to her parents as “peasants”. As the relationship progressed, the mother said they argued about everything, from trivial to significant, such as her appearance and driving skills. The father would grab her around the neck, swear and call her names. She witnessed Mr Mackley spitting on her, pulling her, grabbing her, bruising her, hitting her across the face and dragging her down the hall, locking her out of the house, hitting her, picking up her handbag and throwing it out the window. The mother said she did not report this because he was a (occupation omitted) at a (employer omitted), which profession he continues in today, and she knew this may cause him to lose his job.
The mother admitted both in the witness box and to the family consultant that she may have some responsibility for the conflict because she probably nagged and pushed back when standing up for herself, but she does not believe she is aggressive.
The mother told the consultant that she believes Mr Mackley disrespects her and the children mimic his behaviour and are disrespectful towards her. This is consistent with her comments to the family consultant in 2013.
The mother said X acts disrespectfully towards her and ridicules her. Her concerns about her children were that they were growing up witnessing their parents’ inability to resolve conflict, that they may resort to violence themselves to address conflict, that they lack confidence, they have been manipulated by the father, associate with children from lower grades and do not have much self-expression in their father’s care.
The mother said “I’ve picked the wrong man in a relationship and there’s no sense of family.” The mother agreed that the children are in a much better routine and structure than was the case prior to the consent orders being made. However structure routine and stability are only one of the factors I must consider.
The father complained to the family consultant about the mother’s lateness, her lack of organisational skills, and the time she spent at work and on the computer. He said “We pushed each other, but not in a physical way” and that the mother’s allegations of violence against him fire him up. The father would not adopt his use of the word “fire up” in the witness box. The word he used was “I was frustrated.”
I have no doubt that the mother’s description of the father’s violent and disgraceful behaviour towards her during the relationship and continuing does fire him up and cause him to be frustrated because he knows this to be true. The father described the mother as neurotic and a bit nutty, but the children are not at risk of harm with her. He does not trust her husband, Mr A, but does not have concerns other than Mr A consumes alcohol to the point of losing control and smokes.
At paragraph 34:
Mr Mackley believes the children’s exposure to the post-separation parental conflict is upsetting for the children, but he does not take responsibility for it. His frustration stems from the mother’s repetitiveness. He has no concerns for the children’s behaviour and although they fight like siblings they get on well. The current orders are working well. Tension only arises when the mother doesn’t follow orders. He prefers an arrangement which ensures they don’t have to cross each other’s path. That is an arrangement that suits the parents, not necessarily the children. He prefers not to see the mother. She is angry and bitter towards him.
That was a feature of the father’s evidence both orally, in his written material and to the family consultant. What suits him is what everybody needs, including his children. His lack of child focus was breathtaking at times.
Mr A, was one of the more impressive witnesses I have seen. He described to the family consultant an incident where the father forcibly took his phone from him and that that he was charged with assault. He added that the father swears and name calls and has accused he, Mr A, of being a paedophile. The father admitted he had done that. There was an improvement since orders had been placed, but he has continued to call him names at changeover. However, these men do at times get on. Mr A was calm and clear and not derogatory of the father at all.
The family consultant noted at paragraph 39 that during the day the parents had difficulty communicating. The father ignored the mother when she spoke to him and tended to leave in the midst of conversation when she was present. This could be seen as the father minimising the mother. When the family consultant raised with the parents their inability to communicate, the father’s reaction was this:
Mr Mackley appeared frustrated about what he perceived to be the mother making attempts to present herself in a positive light.
The father could not see the point of the question and turned the focus of the enquiry onto his needs. This is not child focussed attitude or behaviour.
X told the family consultant that she wanted to spend more time with her father, but there were no complaints about time at her mother’s home. Y had difficulty in expressing her views and was uncomfortable. Paragraph 50:
In observations with the father, the children appeared comfortable and cheerful and X sought affection from him.
Paragraph 51:
In observations with their mother, the children appeared disrespectful. They each took turns in mocking their mother with drawings representing her in a negative light, such as drawing her as an animal and drawing their mother next to a coffin.
Paragraph 59:
The parental relationship appears to be quite dysfunctional.
Mr Schonell submitted that comment is an understatement, and it is. The parental relationship is toxic. The parental relationship has been, and continues to be, marked with mistrust, unfaithfulness and a high degree of conflict. For the father it is also marked by his denigration of the mother, behaving as if she had no value as a mother and person, racial slurs and intonations with not one positive comment by him of her.
The mother made serious allegations the father was a controlling physically and verbally abusive person whose disrespectful attitude towards her is having a negative impact on the children’s behaviour and her relationship with the children. That is unfortunately what is happening.
The family consultant says the mother’s relationship with the children is problematic. “The children appeared to have courage to mock their mother, and X, in particular, whined about wanting to go with her father.” The observed problematic relationship could be, the family consultant said, “due to the mother’s problems relating with the children, or the children witnessing the father’s violence and denigration of their mother who may in turn model his behaviour.”
After hearing all the evidence I find that the problematic relationship the consultant observed with the mother and children is as direct consequence of them modelling their father’s disrespect, denigration and ridicule of their mother. That this is the correct finding is borne out by the following evidence.
The children have observed their father treating their mother in a most disrespectful manner. He has called her “nothing but a peasant”, “garbage”, “a dog”, saying “go hide under a rock”, “pathetic”, “useless” and other pejorative terms. The children witnessed this behaviour and heard these words. The children have seen the father hurt their mother. They have seen him push their mother, seen him hit their mother.
The mother asserts he has been physically rough with the children particularly when they were younger. He would lose his temper, or to use his words, get frustrated , smack them and roughly treat them
Although I gave the father the opportunity to do so the father was unable to say in oral evidence one positive thing about the mother. The father was unable to make even one positive comment and his affidavit is replete with criticisms of the mother at every level.
Despite the treatment the mother has received from the father she was most positive of him as a father: She said he loves the children, he does great things with them such as sport, he wants to be involved in their life, they love him, and he is a very good father.
The family consultant went on to say that whatever is the cause of the disrespect she observed it is beneficial the mother engage in therapy. The mother took this advice on board and has so engaged. The consultant said from her observations the relationships are in danger of breaking down of their own accord in the future if matters are not addressed now.
The mother’s affidavit is replete with allegations of the father’s poor behaviour, violence, denigration, racial vilification and coercive behaviour and many of her allegations are supported in the affidavits of her husband Mr A and her cousin Ms K.
The allegations of the father’s intimidating and disrespectful behaviour towards the mother Mr A and Ms K as set out in their affidavits were not seriously challenged and I accept the evidence contained in those affidavits in relation to the fathers’ behaviour.
I will read the relevant parts of these affidavits onto the record so that the record is clear for the mother and the father.
The mother was concerned after the AVO proceedings were dealt with on 4 June 2012 that the father would continue in his aggressive and threatening behaviour at changeovers and would ignore the AVO. Thus she requested that her cousin, Ms K, attend at changeovers with her. Ms K confirms the mother’s allegations of his disgraceful behaviour and disgusting language in 2012 at paragraph 31C of her trial affidavit:
On 27 April my cousin Ms K came to changeover. Mr Mackley became abusive to me and Ms K and had physically backed into Ms K with his body. Mr Mackley swore at Ms K and said, “Go away. Fuck off”. The children were in the car and heard this.
Ms K says at paragraph 8 of her affidavit:
I saw the father approach the mother’s driver’s side of the car. I couldn’t hear what they were saying, but the father appeared agitated. He was angry and yelling. I was concerned for the children. I approached Ms Mackley’s car and heard Ms Mackley say to him, “I just want to leave. Please close the door.” I said to Mr Mackley, “Mr Mackley, please be conscious that the girls are in Ms Mackley’s car. Do you have to do this now? Can’t your solicitors work it out?” “Go away. Fuck off”, he said. Then he said to me, “So are you going to stand there like that?”
I had my arms crossed. Mr Mackley turned his back to me, crossed his arms mimicking my stance and purposely backed his body into me. He then said to me, “You are rude. You were rude to my solicitor at court.” I said, “I would like to leave. We have plans”. “Oh, you have plans. Well, don’t bother making plans for Tuesday and Friday or she won’t get them.” Mr Mackley said to Ms K, “Mr C is such a good guy. I feel sorry for him that he has you. It clearly runs in the family.”
Ms K said she felt threatened. Her evidence was not shaken in cross-examination. Ms K was only present to help her cousin and the children. She was there to assist the children and this is how the father treated her.
When he was pressed on why he behaved in this fashion the father had no answer other than to say he gets frustrated. With what was he frustrated? It is not clear to me and I do not know.
The mother went on to say at paragraph 35 that she asked her husband, to accompany her to a changeover in about February 2013. The father became aggressive, poked Mr A in the chest and called him a “black cunt”. Mr A is of (nationality omitted) descent. He stuck his finger up at the mother and then he kicked her in the shin. Mr A confirms this event and others.
On 5 February 2013 the father called her a stupid bitch.
On 18 February 2013, he called her a fat oompa-loompa. The children were present while he spoke to their mother in this disgraceful manner.
At paragraph 71 the mother refers to a text message the father sent on 5 February 2013. He says “Go see Ms S”. Ms S is the mother’s lawyer:
Stop wasting my time. The schedule is no longer a bargaining tool for you; it’s a plan, fifty-fifty put in concrete or nothing. Until that time, nothing changes with the current schedule. You start making changes like your stealing of the girls over the holidays. The sooner you pull your finger out the better. You’re damaging the girls because you can’t stick to a schedule.
The father is a person who must have a routine and a schedule and does not take kindly to his all-important schedule being interrupted. The mother says at paragraph 91B:
Mr Mackley swore at me in front of the children. He referred to me as a stupid mole, irrelevant mother, moron stupid bitch, pathetic, ugly slut, diseased slut, peasant, fat, fuck wit, ugly immigrant, invalid mother and dumb.
The mother said he has spoken to her as follows: “Fuck off”, “Go fuck yourself”, “You’re fat and lazy and you don’t go to the gym”.
The father is into fitness, an activity he shares with his daughters.
The mother describes the difficulties of the father’s behaviour swinging from loving and caring to abusive and demeaning of her. This see-sawing is described by Mr A as he says they can communicate at times and then the father loses it and becomes an aggressive, threatening pejorative man.
The mother describes two hitting incidents when they went to (country omitted) to visit the father’s sister. She was hit in her face once with an open palm and another time when she sustained a black eye. She recalls the father’s sister being very angry with him. The family were staying at his sister’s at the time, and she recalls him and his sister fighting over his treatment of the mother.
Mr Schonell submitted that as his sister was not called to refute this evidence, I was entitled to draw an adverse inference from this failure. I accept that submission and accept the father hit the mother and caused her to sustain a black eye which the children would have observed.
At paragraph 95 of the mother’s affidavit she says the father said to her in 2012:
You’re so pathetic. Fancy looking at a house two doors up from your parents. You won’t boss me around, as you pathetically do with Mr A - and you think I’m dumb enough not to see your sneaky plan. When you buy the house in (omitted) with the rest of the peasants I won’t be dropping them off there. Peasant is a reference to the mother’s parents.
At paragraph 96 the mother describes the father undermining her role, as the children’s mother, in June 2012 when they were trying to work out arrangements for the children prior to the consent orders:
Are you fucking delusional? If only you knew what a nut case each teacher at the school thinks you are. They know how disruptive you are and how disorganised. They’re more interested in playing iPad than talking to you each night.
It’s me that makes them face reality. They hate Mr A - and think he’s creepy. Dinner with your parents must have been interesting. What a laugh. What interesting conversation.
Under cross examination the father admitted there was no reason for this message and that it was derogatory and demeaning.
All this poor behaviour and vile e-mails were put to the husband in the witness box and not once did he demonstrate to me by his demeanour, his answers to questions or his conduct that he was remorseful for this behaviour, understood the destructive impact it had had upon his children and the destructive impact it has had upon what could have been a professional business-like relationship with his wife in their care of his children.
13 January 2014 in front of the children he said:
You are still such an idiot.
14 January 2014 in front of the children:
You spastic. You’re a miserable person. Just as pathetic as usual. Go fuck yourself.
10 August 2014 the mother was speaking to the children on the phone and heard the father say, “You’re a peasant, pathetic joke.”
When under cross examination the father leant on the edge of the witness box, put his right hand on his right check and looked only at Mr Schonell SC as if to stare him down. I asked him 3 times to remove his hand so that I could hear his answers.
His demeanour was indicative of a person who was merely in Court under sufferance and was not taking the matters being put to him seriously. I found he affected an air of casual mild disinterest in the proceedings.
This demeanour is inconsistent with any submission that the father had a tough time in the witness box, has heard what was said, realises the error of his ways and will now engage in therapy to address his significant malfunctioning as a parent. In other words that he had experienced an epiphany. I reject that submission which was put by Mr Brewer. I fear the father will never change in his demeaning of the mother and belief she is a worthless parent and he the superior parent.
After cross examination the father could not maintain his lie that he had never been violent towards the mother as on one occasion in 2010 he said he was sorry.
The mother received an email from the father on 29 November 2010. It says:
I just wanted to let you know as much as you think I don’t care, it troubles me and disturbs me terribly the way I have treated you. I’ve added a screen shot of a page where I want you to know I’ve taken my oath and I’m also going to seek further help. I’ve donated money to help with awareness.
This was White Ribbon Day, anti-domestic violence day. The oath he took was not to perpetrate domestic violence against his wife.
When pressed on this the father concocted a story, a thin tissue of lies indeed. The father’s explanation was that the email was about an ad he and his wife had seen whilst still together about domestic violence, or anti-domestic violence, which did not sit comfortably with him and he did not like it and the wife got upset at his non acceptance of the ad and he was saying sorry about that. I reject that evidence entirely.
The mother responded and this is contained at paragraph 103 of her affidavit when she says:
“So what happened to you? You’re going to seek help? You have no idea how troubled I am by what you did.”
His response, “Oh, don’t Ms Mackley, and, yes, I have been and I don’t need you to remind me. I snapped, okay, and I don’t want to go into it.”
Not everything that I do I have to tell you, so let me deal with it and the people I see.

That’s the key to the problem. The father cannot face his appalling conduct and until he does he may continue to behave as he does.
I do not know whether the father sought help or not for his violence against the mother and obvious anger issues. In any event if he sought and received help it has not changed his behaviour. His demeaning, belittling, disgraceful conduct continues.
The mother has sought counselling for the treatment she received at the father’s hands and shows insight into the impact of that upon the children in her affidavit, her oral evidence and to the family consultant. The mother says at paragraph 111 the father would engage in road rage-type activities when she would remonstrate. On one occasion he said:
Shut the fuck up. Don’t tell me what to do. Did you not see the (nationality omitted) pull out in front of me?
His children are of (nationality omitted) descent and may themselves have (omitted), I do not know, but this is an extraordinary comment to make when your wife and mother of your children is (nationality omitted).
At paragraph 112, the mother says the father complains about her English:
You’re pathetic. Learn to speak English properly.
On 17 February 2015 almost 12 months after the report of the family consultant had been released and knowing this hearing was coming up, the father writes to the mother the following SMS:
What part, you ignorant woman, don’t you get? I have things planned. Lonely, haha. Life without you is an absolute blessing, and it’s me that feels sorry for you as you’re turning into an (nationality omitted). It’s sad that you think you can buy the girls. “Let’s get dogs, let’s buy a farm.” 100% of the time my girls would choose to go to my mum’s and that pisses you off, so go crawl under your rock and live your pathetic life.
This is but three months ago. The father has a serious and deep rooted problem in dealing with his children’s’ mother.
On 14 April 2014, the father criticises the mother’s grammatical skills:
Your parenting is atrocious. I’m a bit worried. You’re sending text back too fast. Are you sure Mr A can comment on them in time and proof read them?
22 May 2014:
Almost, I said. Maybe come sit with me and the girls each night when I read to them so as to improve your reading and punctuation skills. They’re starting the next (omitted) book tomorrow.
The father admitted none of this was necessary and that his e-mails were demeaning.
19 July 2014:
Grammar is still not your highlight in life, is it, Ms Mackley. You’re disgusting in your behaviour and I don’t need you. My girls are smart enough in their communication to me to clearly see what’s going on.
9 August 2014:
Did the child-abusing, wooden-spoon threatening (nationality omitted) help you write this? It’s slightly scripted different to your normal grammatical atrocities. You’re pathetic with your warped views and lies.
The mother admitted to hitting the child X with a wooden spoon lightly on the leg on one occasion as she said her behaviour was out of control and as described in her affidavit. The mother also said she regretted this reaction and deals with X’s challenging behaviours differently now.
The father told Mr Schonell SC in cross-examination that the mother has hit the children six times with a wooden spoon since the first time which was in about June 2014. On the second occasion when X reported this to him he observed the bruise, he took a photograph and reported the matter to the police. The father was and is most upset that neither the police nor the Department of Community Services took any action.
The reason no action was taken is that there is no action to take. The mother admitted she tapped the child with a wooden spoon, not hard enough to leave a bruise, will not do it again, is learning new strategies all evidence I accept. The father used this event to obtain a forensic advantage and has maintained this issue consistently.
I have formed the view that the children and X, in particular will tell her father whatever he wanted to hear in order to placate him. Having read X’s counsellor’s notes, which I will refer to later, X is highly attuned to her father’s emotional needs. There is some evidence that he is emotionally needy and uses these girls as an emotional crutch. X is aware of this and she will do whatever it is to fulfil his needs and placate him. No doubt she observed her mother behaving in this fashion as well. The girls mimic their father’s behaviours and so to do they mimic their mother’s behaviour. The mother describes her placating and acquiescing to the father to maintain the peace during and post the relationship. The mother also describes standing up to the father as well.
X’s behaviour makes the father happy. If the girls come home and describe bad things happening at their mother’s house, this fits in with his attitude to the mother and justifies what he knows is his appalling behaviour and treatment of this woman going on for 15 years.
On 16 February 2015 the father wrote:
How embarrassing that your clients read the message below. Great use of English grammar.
The children have said to their mother recently, “(nationality omitted) are bad drivers. I don’t want a brown brother or sister.” This is most distressing as the mother and Mr A are due to have child, a sibling for the girls and yet these are the comments they make to their mother when the reality is they would be very excited about this birth. “(nationality omitted) in our area can’t cut hair properly. I want to go to dad’s hairdresser.” “Ma can’t speak English or drive a car” – Ma is their maternal grandmother. “Ma’s house is small not like my grandma’s”, grandma is the paternal grandmother.
The father denied any hand in his daughters making such a racial slurs to their mother however I reject that evidence. The words used fit neatly with the father’s own words about Mr A and the mother’s heritage and the girls extended family.
At paragraph 16 the mother reports. On 18 October 2013, the father sent the following message to the mother:
It’s okay, Ms Mackley, my girls can read. I’ll let them read your lies in your text.
From his own mouth the father tells the Court that he lets his daughters read the appalling correspondence between the parents as I accept at times the mother’s replies are offensive as well. This is how the girls have become so aware of the issues and have taken sides, superficially at least and joined with their father in ridiculing and belittling their mother because their father lets them read his email trail to satisfy some need in him and or to justify his belief he is the superior parent or for some other reason. Whatever the reason the behaviour is at the higher end of extremely poor behaviour and bespeaks a total lack of child focus and understanding of the negative impact of such behaviour on his children’s emotional and social functioning
On 18 October 2013 the father writes:
Another example of how you’re losing them. What a pathetic person you are. No wonder you ended up with that droop Mr A, now that’s karma, k-a-r-m-a. Lol. If you misspell karma, it comes up as korma, k-o-r-m-a. How appropriate for Mr A.
This is a racial slur, pejorative and likely illegal under the Racial Discrimination Act. The father again agreed the e-mail was unnecessary and offensive
The girls are involved in Girl Guides with their mother. At paragraph 121, the mother reports. They were involved in the Clean Up Australia Day campaign. The father said to them, “Why would you want to waste your day picking up rubbish?”
He wrote an email to the mother on 9 August 2104. Set in paragraph 114(d) .
“Go read the family report, it clearly states that you need to seek help to stay in touch with your children. I in fact think its past that but you do your best. Give up (omitted) and write trashy novels, you are very good at the rubbish you send me. I can’t type anymore, I’m still laughing at what you think the girls get from Brownies. You always have been so outdated and unfashionable”.
I put to the father that the girls may like to do activities that he did not necessarily think were of value and could he see that this was what parents did to foster their children’s needs, not their own world view. He agreed with me but I have no faith he knows how to carry out such child focussed behaviour day to day.
I will refer to the father’s lack of understanding of the family report later. However it can be seen from this disgraceful communication that the father is content, happy, pleased, satisfied or whatever gloating word is more apt that the children’s’ mother needs help to stay in touch with his daughter’s and believes there is little hope that she can keep in touch with her children.
Further there is nothing in his material of his concern for his daughters that they have little or no relationship with their mother or what consequences will flow from such a disastrous set of circumstances, or how he proposes to sort this out this sad state of affairs for his daughters’ benefit.
Finally there is no insight that he is the architect of this sad state of affairs for his children.
In 2011 the mother became concerned about X’s grades and wanted her to have some tutoring. At paragraph 126 the mother says the father responded, “You’re typical (nationality omitted) mother who’s just all about homework. She’s doing great at school.” This view of the father was incorrect as her school counselling notes revealed.
The family report writer spoke to the children’s school teacher, who reported this.
“Y seemed happy at school and was affectionate. She did not have much contact with Mr Mackley but the mother would regularly check in”
I take from this that the father has little to do with their education but criticises the mother for taking a child-focused and appropriate step.
X’s behaviour has been of concern at the school for some time. In 2012 the mother was taken aside by her school teacher about X’s difficulty with friendships and being aggressive at times. Concerns echoed by the mother from the children witnessing their father’s aggressive and intimidating style.
The mother reports that Y says she has nightmares and wants to sleep with her mother. X said, “I get angry. I can’t help feeling like that.” “We’re scared to tell daddy we’re sick.” “Daddy won’t let us stay at home.” The mother is concerned that the children are under emotional stress and cannot articulate this stress to their father. The mother is correct they cannot as for him all is well in his home and any fault is with the mother and in her home.
Going to X’s counselling notes, 26 March 2015:
Things okay in general. Friendships okay. Had an argument with her mum this morning. Didn’t get a lunch order. Four hours of tutoring this afternoon. Needs to read more.
17 December 2013. Discussions:
X forming new friends. Enjoying her fitness. Likes that she can beat the boys. Happier this week. Looking forward to going to her mum’s to see her new puppies, two labradoodles. Does a fair bit of fitness training with her father and sister.
Decided that she’d like the counsellor to check in with her weekly, that way any problems can be nutted out and strategies developed.
The father did not even know X was attending counselling until this case or that she was “looking forward to going to her Mum’s”. The mother knew of the counselling as she is the one who attends the school. This evidence does not support the father’s case that the children have a close emotional attachment to him. It is to the contrary. The children cannot tell their father what is really upsetting them as they know this would be inconsistent with his world view and his world view is the priority. It is apparent that the children’s’ closest emotional attachment is to their mother.
The counsellor’s notes for X say on 17 December 2013. .
We discussed that she’s got to look at how she wants to be treated, and treat people the same way. Not be a perfectionist, everyone has faults.
Visit with dad. Looking at social skills. Talking and being friendly and nice to people.
Feeling a bit sad about not seeing mum for a few days. She lives half the week with her father at (omitted) and half the week with her mother at (omitted). Custody battle has seen rules of custody strictly adhered to. X finds these issues difficult.
These words are the opposite of the father’s position that his daughters do not enjoy time with their mother and her husband, do not need or value her and that she is a minimal influence in their life. The father’s affidavit is replete with how important schedules, routines, appointments are, that the mother is hopeless with managing her time, cannot get herself or the children anywhere on time. That the mother constantly wants to swap weekends as an example of her lack of routine. That he cannot accommodate these changes because he has planned things and these changes do not suit his daughter X. How would the father know if a change put forward by the mother suited his daughters; I doubt they could tell him what they really thought if it was different their father’s position.
The lack of flexibility with the father is clear and present. X wants something her father cannot give her - a flexible care arrangement and for she and her sister to be able to agree and be together.
This concrete like thinking of the father has resulted in the girls missing out on extended maternal family events such as weddings.
X reported to her counsellor.
Father would not bring her to a wedding on mother’s side of the family, and mother said the change in the wedding could only occur if her sister would change. She becomes attached to the parent she is with at the time.
The Father would do well to read those notes and take heed of what his daughter is saying to an independent person.
Examples of the concrete inflexible behaviour of the father were given by the mother as follows.
In the CDC memo held on 12 April 2013 the mother reported.
The mother was in a minor car accident with the children and the girls said when they told their father of this, the father laughed. The girls mocked their mother too.
The mother has tried to arrange for the children to attend important functions for (religion omitted) holiday in 2015. The mother invited the father to swap weekends so that the children could attend a Girl Guide camp and (religion omitted) holiday celebrations; he refused.
At paragraph 142 of her affidavit.
The mother let the father know on 16 February that she wanted to swap weekends in March in March for Brownies at the like.
The father responded. “No, not enough notice. I can’t do it. Has it ever crossed your mind I may have things planned.”
The father would not agree to the children travelling to (country omitted) to be involved in their uncle’s wedding in (omitted) 2014. This is despite the mother setting out her travel proposals and seeking his agreement in March 2014. He simply refused and his reason “Organised family activities with cousins and aunties.”
The mother’s brother then had an Australian wedding ceremony on (omitted) 2014 in Sydney. The girls were to be flower girls as they had been unable to attend the (country omitted) wedding.
6 September 2014 was father’s day. The father refused to allow them to attend the ceremony because , “ it is father’s day, it is the children first little athletics function which is important to them and the father has organised a number of pre-arranged activities”.
In cross examination the father attempted to justify his unreasonable and non-child focused attitude to this family wedding by saying the girls did not want to go because they would be bored. Again the father laid blame for his behaviour on his children.
I reject that evidence. I do not accept that the girls were not excited at being part of a wedding ceremony as flower girls. I accept they may have told their dad they did not want to go however I do not accept that this was their true wishes. This is but a further example of the girls being unable to tell their father what they really wanted to do when they know he did not want them engage in that activity. This is the father’s needs overwhelming the children’s needs. The father was mean and cruel in preventing his children from being a significant part of a family event which will never be repeated.
On 29 July 2013 the mother made a request to the father to take the children to (omitted) for her cousin’s wedding on the weekend of (omitted) 2013. The mother made a detailed itinerary of travel times etc, sent it to the father as she knew this was the same weekend as the father’s grandparent’s 70^th wedding anniversary and she was keen to ensure the children attended both family events.
The father would not agree. He would not accept any plan the mother made to have the children attend this event. He would not attend (omitted) to collect the children, he made no attempt to have his girls enjoy both events. Instead he used this occasion to further deride, ridicule and demean the mother and threaten her with comments such as “you pull this stunt Ms Mackley you will never see them on my weekends etc”.
In a telephone call he said “ fuck off you mole “ His written response to the mother is at paragraph 142 E a) onwards:
Was this your sneaky idea or did (omitted) put you up to it? You’re tight-ass putting my kids on Tiger. You sneaky bitch. Booking the flight without my permission.
The mother did not need the father’s permission to book a flight.
You do not have my permission to take the girls to a wedding in (omitted). You pull this stunt, Ms Mackley, and you will never see them on my weekends for any of your family functions. If both your mum and dad died tomorrow, and have their funerals, and the girls are in my care, they will not be going. Keep them away from my family. How rude you are thinking you will see any member of my family. It won’t happen, so stop harassing. I hope you have no future family commitments when the girls are in my time. Sorted. Email sent.
You and your fat arsed partner can’t even get to an airport apparently until after 9.30 because he’s still pissed from the night before.
The father’s reaction was out of control and over the top and again in outrage at the mother’s actions his daughters’ best interest went out the door. He simply would not accept any change or make any attempt to accommodate his children attending two special events. He could not be flexible. He ridiculed the airline the mother chose to fly to (omitted), Tiger Air he ridiculed her planning to enable the two events to be enjoyed, he stood firm and his daughters missed out. On the four occasions the mother has tried to vary the orders because of special and out of the ordinary events, he would not agree.
True to his word he has not agreed to one event that the mother has wanted to swap a weekend so that the children could attend family events or even a child focussed event such as guide camp and I find this behaviour will continue. He is like a raging bull if the mother has the temerity to seek to vary the iron clad concrete encased consent orders.
Even under cross examination the father would not concede his actions were not child focussed. He maintained his outrage and fiction that his children did not want to attend these special events to justify his poor attitude to his daughters’ right to a relationship with their mother and enjoy time with their extended family.
The father has made derogatory comments to the mother about her solicitor calling her a “half-assed part-time solicitor”.
He said to the mother in a telephone call on 20 January 2014:
It’s inappropriate for you to be actually living on this earth. Let’s get on to a different point you fat oompa-loompa.
He also called the mother “pathetic”, “stupid”, and “dumb”.
On 27 December 2013, the father sent the mother an email:
Remember this, I hope none of your family have a wedding, birthday, engagement, or even a funeral in my time because it won’t happen.
25 February 2015:
As you are so ignorant, have zero manners, zero class, and zero taste, I will make it easy for you. Don’t even ask for a weekend swap, no matter what the occasion.

The father has behaved in a mean spirited and cruel fashion to his daughters at times as he has made decisions based upon his needs and not what was best for his children. The father said to the mother that he will not take the children to any activity that is organised by her on his time and has stuck to that plan.
Contra this with the mother’s child focussed attitude where she agrees to vary weekends at the request of the father.
Paragraph 142C:
When Mr Mackley’s grandfather passed away, and a memorial service was held in (omitted) 2013, the children were meant to be with me. I agreed to swap the weekend.
The mother again made that offer in (omitted), when his grandmother passed away however the father did not respond.
The mother describes the concerns she has about X’s behaviour.
She hits, torments and teases Y. She slams doors when she is angry. Demanding to speak to her father when she is in trouble. Sneaking out of her bedroom and stealing the home phone to call the father. Walking into myself and hitting me.
Mr A described the house having been trashed on one occasion by X because she was so angry. Y is much better behaved than X, but at times, as the mother described, she will say, “You don’t love me. You’re not listening to me. You don’t care about us”.
The mother says the children have a good relationship with Mr A. That was confirmed at the family report writing interviews.
At paragraph 171 of the mother’s affidavits she records emails from the father after the release of the family report.
On 20 April 2014 the father sent this message to the mother:
Whatever, you fool. Go marry that creep. His drinking problems are yours. It is so funny you mention his drinking problems in the family report trying to counteract what I thought I might say. I had said nothing at all. Like your Saxon reference. Lies, you’re full of them. But I don’t see where I’m an issue in the family report. I’m not the one requested to seek counselling to get in touch with my children. Rather confronting that report is for you. But as usual, self-denial will kick in. And I think I applaud the counsellor to write what she did.
The father would do well to re-read that message and substitute the word “I” for you. The father is the problem. The family report is a problem for the father. Self-denial kicks in for him not the mother. He cherry picked the family report and did not see where the problem with his daughters’ behaviour stems from which is his behaviour and attitude to the mother not anything the mother has or has not done.
The father became quite unhinged in his belief of a victory over the mother after the release of the family report.
On 22 May 2014 the father SMS’s to the mother the following.
Yes, go see a counsellor so you can stay in touch with your children.
Then he puts in a picture of a smiley face.
Approaches me when not necessary, considering she’s fearful of me. Strange.
Then he puts in a picture of a smiley face.
Children drew derogatory pictures of their mother at the interview, including their mum with a coffin next to it.
Then he puts in a picture of a smiley face.
This behaviour is of real concern to the Court.
I take from this that the father believed the family report was in his favour. That he was both encouraging of and revelling in the fact that his children acted in a disrespectful and concerning way about their mother by drawing her next to a coffin, and describing her as an animal in picture . Was he happy that they associated death with their mother?
The father had no answer to this under cross examination.
That they describe their mother as a dog in a picture is not surprising as when the mother calls them the ring tone on the father’s phone is a barking dog. The father has called the mother a dog and the children have heard this.
The father’s justification for this demeaning conduct was that the girls like dogs and/or they wanted this ring tone to signify their mother. I reject that evidence.
The father cannot even take responsibility for his poor choices and seeks to blame his children.
The father’s implacable denigration and poor attitude to the mother has clearly come through to his daughters and has been at the expense of their all-important relationship with her. His relationship is no more important with the children than is the mother’s yet this is not the father’s position.
The mother’s affidavit is replete with this style of email from the father. Not all have been read as there are too many.
The violence against the mother commenced early in the relationship as evidenced by the father’s own hand in an e-mail he sent to the mother on 3 November 2000:
Yes, I understand, I’m sorry. I didn’t mean to. I pushed you on the shoulder and my hand slipped up to your chin.
If you want to be a stubborn shit, when I tell you to leave and get out of bed, then you deserve it every time.
This is how the father has continued to treat the mother for 15 years. He was still in 2015 justifying his behaviour in 2000 because she had come into his bed. He has learnt nothing and is sorry for nothing. The accidental hitting is the same response he gave to the mother’s evidence of his violence to her in (country omitted). The father said in his material his hand accidentally hit her face. I have rejected his evidence on this and other issues of family violence.
The father said he was concerned his children mocked their mother but he has taken not one step to address this. How could he as I find the children model their behaviour on his. He has taken every opportunity to mock and be disrespectful to the mother yet the father would not admit this.
He has rubbished her language skills, her parenting, her choice of partners, her family and background, choices of activities for the children and her choice of lawyer yet asks that I maintain and equal time arrangement and the sharing of parental responsibility.

Going to the Law and the orders to be made.

In M & M (1988) 166 CLR [1] the High Court dealt with the concept of unacceptable risk in parenting proceedings at paragraph 25:
Efforts to define with greater precision the magnitude of the risk justifying a Court in denying a parent access to a child have resulted in a variety of formulations…
To achieve a proper balance the test is best expressed by saying a court will not grant custody or access to a parent if that custody or access would expose a child to an unacceptable risk of sexual abuse or as here “abuse”.
[1] (1988) 166 CLR.
In B & B [1988] HCA 66[2] the High Court endorsed the Full Court’s statement that the assessment of the risk to a child is the ordinary civil standard. At paragraph 7:
If a trial Judge considers upon the balance of probabilities that the welfare of the child may be endangered or there is a risk that the child may be physically, sexually or emotionally harmed if access were to occur then a trial Judge may, in our view, suspend access.
[2] [1988] HCA 66.
The law is not that a child must have a relationship with each parent at any cost.

Going to the legislative pathway I am to follow.

The first task is whether I rebut the presumption of equal shared parental responsibility.
Section 60B of the Act sets out that the objects of part VII are to ensure the best interests of children are met and ensure children have the benefit of both parents having a meaningful involvement in their lives to the maximum extent consistent with the best interests of the children, protecting children from physical or psychological harm from being subjected to or exposed to abuse, neglect or family violence; ensuring that children receive adequate and proper parenting to help them achieve their full potential; and ensuring that parents fulfil their duties and meet their responsibilities concerned the care, welfare and development of their children.
Section 60CA determines that the Court must, in deciding whether to make a particular order in relation to a child, regard the best interests of the child as the paramount consideration.
Section 65D gives the Court the power to make a parenting order and section 64B defines the terms and identifies the matter that may be dealt with by a parenting order.
Parenting orders are subject to the presumption under section 61DA(1). The Courts should presume that it is in the best interests of a child for the parents to have equal shared parental responsibility.
When the presumption is not rebutted by virtue of section 65DAA I must consider whether the child spending equal time with each of the parents would be in their best interests and to answer this question I must consider both whether it is in a child’s best interests to spend equal time by reference to the section 60CC (2) & (3) factors and whether such an order is reasonably practicable.
If I do not find such an order is appropriate then I must consider whether a child spending significant and substantial time with a parent is in their best interest and to consider that question I follow the same pathway.
Significant and substantial time is defined in the Act to mean days that fall on weekends and holidays; days that do not fall on weekends or holidays; days that include part of the child’s daily routine; special occasions and events.
The matters to be taken into account in determining what is “reasonably practicable” and the interplay of best interests and reasonably practicable was considered by the High Court in their decision of MRR & GR [2010] HCA 4 where the Court said:
Each of subsections 1(b) and 2(d) of section 65DAA require the court to consider whether it is reasonably practicable for the child to spend equal time or substantial and significant time with each of the parents. It is clearly intended that the court determine that question. Subsection (5) provides in that respect that the court must have regard to certain matters such as how far apart the parents live from each other, the capacity to implement the arrangement in question and such other matters as the court considers relevant in determining for the purposes of subsections (1) and (2) whether it is reasonably practicable for a child to spend equal time or substantial and significant time with each of the child’s parent.
The High Court went on to say that section 65DAA(1) is expressed in imperative terms and obliges the Court to consider both the question whether it is in the best interests of the child to spend equal time with each parent or significant substantial time and whether it is reasonably practicable for either order to be made and it is only where both questions are answered in the affirmative that consideration may be given, under paragraph (a), to the making of an order for equal time or significant and substantial time.
The decision of Goode & Goode [2006] FamCA 1346 sets out the pathway to take when making a parenting order.
I propose to rebut the presumption of equal shared parental responsibility for the following.
It is neither practical, realistic nor in the children’s best interest this responsibility be shared.
The father deals with the mother is the most demeaning, pejorative racially vilified and disgraceful manner and has done so for 15 years and will on the evidence continue to so deal with her. He has no respect for her as the mother of his children and the children have begun to mimic his behaviour to the detriment of their relationship with her.
There is no communication about the children’s needs with the father and mother and this sadness for the children lies solely at the father’s feet.
It is not in the children’s best interest that their mother is continually demeaned and ridiculed by the father when she attempts to discuss arrangements for the children with him which is what will occur if parental responsibility is continued to be shared. It minimises her in the children’s eyes and puts further stress on her parenting capacity.
The father has not been as involved in their education as their mother as reported by Y’s teacher nor did he know X was having counselling. He criticises the mother when she wishes tutoring for the children and tells the Court the children were doing well scholastically and socially at school when this was not correct.
The father cannot give the children what they desperately want namely a flexible parenting arrangement and his rigid and concrete structures are stifling the children’s emotional and psychological needs. The mother is the only parent who demonstrates any capacity to fulfil this need.
The father sees the children’s needs as the same as his and his need to be seen as a superior parent to the mother in the eyes of the children have overwhelmed the children’s right to a meaningful relationship with both parents.
Only the mother has demonstrated insight into the needs of the children and the negative impact upon them of their parents’ poor relationship and has shown a willingness to assist her parenting by counselling and taking on board alternate methods of discipline.
For those reasons I will rebut the presumption of equal shared parental responsibility.
Having so found I need not consider an order for equal time or significant and substantial time.
On the evidence there is ample reason for limiting the father’s time going into the future as recommended by the family consultant to weekend time and one other night each alternate week. The evidence would support even less time so destructive do I find is his influence on the children’s emotional functioning and relationship with their mother and the destructive consequence for the children of the father’s flawed and rigid parenting style and demeaning attitude to their mother.
However the children have lived in an equal time arrangement for 2 years now and the mother is most desirous of them having a meaningful relationship with their father given their affection for him and her belief that he is a good father. Had this not been the mother’s position the father’s time would have been limited indeed.
Thus I will now consider the factors under section 60CC (2) and (3) of the Act to determine the order for time I should make.
The father seek arrangements stay as they are or if I do not so find that the children live with their mother 8 days a fortnight and he 6 days a fortnight.
The mother seeks a lesser period of time with their father and for them to primarily live with her. Importantly she seeks a break in time with the father of three months after these orders are made. Her case is that she needs to get them back into her care without their fathers’ unrelenting running down of her to them, let them express their real emotions and give the children and she time to repair their damaged relationship and settle into primary care in their mother’s home.
The children benefit from a meaningful relationship with each parent. The mother has praise for the father as a father. The father could not utter one positive word of the mother however I find each parent has much to offer their children.
The children have been subjected to significant emotional abuse in their father’s home by his constant demeaning and ridiculing of the mother to the children, racial slurs of her ethnic background which is also their background and minimising her importance to the children. His likening her to a dog and being happy when the children drew a picture of their mother next to a coffin is psychological abuse of his children.
The children are at risk of emotional and psychological harm in their father’s care.
I find the children are at no risk of harm in their mother’s care.
The wishes of the children.
The wishes in the family report were from X to spend more time with her father. I attach little weight to that expressed wish for the following.
Firstly her father makes no such application for more time.
Secondly that wish is inconsistent with her expressed sadness and missing of her mother to the school counsellor. Given the father took the children to the report interview and that they had been in his care, I cannot take account of or give weight to their expressed wishes given my finding of the father’s emotional abuse of the children and X’s attenuation to her father’s needs.
The children’s relationship with their parents and others. I find the children have a close relationship with their father. However he is not as attuned to their needs or able to put their needs above his own as is the mother. X in particular is much attuned to what her father needs and is desirous of fulfilling that need.
I find the children’s closest emotional relationship is to their mother and that is why they act out at her home because they feel comfortable enough to do so.
I find they have a comfortable relationship with Mr A and will soon have a sibling in their mother’s home.
Neither parent has ever failed to spend time with, be part of their child’s life or communicate with their child.
Both parents have financially supported the children to the best of their ability at all times.
There is no practical difficulty or expense in the children spending time with either parent.

The parent’s capacity.

The father is seriously flawed when it comes to carrying his duty to foster and maintain the children’s right to a relationship with their mother. He has significant anger issues which overwhelm his children’s needs and cloud his judgement. He has no demonstrated capacity to promote a positive attitude to and relationship of the children with their mother and has taken every opportunity to run the children’s mother down in an attempt to minimise her importance to the children.
He is rigid in his thinking and structured in his approach and cannot provide the flexible parenting X in particular craves. He has little capacity to allow the children to speak about their mother positively and thus he only knows a part of his child and not the whole child.
The mother on the other hand shows insight, capacity to promote a positive attitude to the father in the children, takes on new approaches to discipline and is flexible and child the focused in her approach.
Attitude to the child and responsibilities of parenthood. Each parent takes their responsibility to their children seriously. The mother is focussed on them maximising their education and social networks. The father does not have a similar approach and is focussed on their physical health and wellbeing. Combining these strengths means these children have parents who can provide for a great number of their needs. However if the father persists in his demeaning and ridiculing attitude to the mother, he will further damage his children’s emotional functioning and he must change his ways if he is to take this responsibility seriously.
Impact of change upon the children. The orders sought by the father will have minimal change on the children however to maintain what has been the care arrangement going on for two years is not in their best interest and there must be a change.
The orders sought by the mother amount to a significant change to their current living arrangement of equal time. The mother is most cognisant of this and has asked that I give her time to “get her children back” and thus the three month break and explanation to the children by a professional of the reason for the orders.
The mother knows the children will be upset and there will be further periods of acting out particularly by X. However she and Mr A are prepared and accepting of this belief that within a short period she will be able to undo all the harm the father has done and her children return to their prior strong and attached relationship with her and again value her as their mother as well as maintain their all-important relationship with their father.
As Mr Schonell SC the making of orders is a balance and this is the balance the mother has struck and I accept her position and the thought involved in having come to this decision.
The children will go from seven nights with each parent to four nights with the father and eight with the mother.
If I am to make an order in the children’s best interest I cannot let the current orders remain or vary them to 6/8. They must change.

I have at this time no faith that the father can desist from his continuing poor attitude to the mother in the presence of the girls. If I continue any significant or substantial time as is contended, the father will merely continue to use his children as he has done in the past as a means of running the mother down and that would be the worst case scenario for the children.
The mother’s orders are the orders I prefer as they are the most child focussed. They provide for a break in time for the children from their father’s campaign and will allow them to return to a full relationship with their mother.
These orders provide for good quality time four nights a fortnight in their father’s care with pick up and drop off to school to avoid the parents coming into contact. These orders give the children the best opportunity to restore their relationship with their mother to its prior level and maintain their relationship with their father and thus I will accede to the mother’s request that the children spend no time with their father for three months following the making of these orders.
It is essential that the mother and children be given the best possible opportunity to repair their hitherto close and attached relationship and heal any rift that the father has caused by his demeaning and ridiculing attitude to the mother witnessed by the children and by his encouragement that they so behave to their mother.
If this is the length of time the mother asserts is needed then I will accept what she says although I may have said a period of six months was required. This is yet a further example of the mother’s capacity to put the children’s needs before her own as she knows they will miss their father.
Once that period has expired the father will be re-introduced to the children and they to him and I hope he is a changed father.
The re-introduction will be four periods of time with the children being each alternate weekend from Saturday 9 am to Sunday 4 pm or such time as the contact centre can accommodate with changeover to occur at a contact centre nominated by the mother. I am conscious to avoid the father unwittingly or not taking out on the children or mother the grief he will experience from the orders I have made and the contact centre will provide that place of safety.
Thereafter the father is to spend time with the children from after school Thursday to the commencement of school Monday each alternate week.
I will make the orders sought by the mother as to holiday special days and the like as they were in great part agreed to by the father and are again appropriate.
Further the orders for overseas travel are appropriate. Neither parent is a flight risk and the girls have a right to experience their (nationality omitted) heritage at its source.

I certify that the preceding two hundred and thirty-eight (238) paragraphs are a true copy of the reasons for judgment of Judge Henderson

Associate:

Date: 12 June 2015

[2015] FCCA 1577

12 June 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Procedural Fairness

Injunction

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