MALLARD & HERBERT

[2014] FCCA 77

FEDERAL CIRCUIT COURT OF AUSTRALIA

MALLARD & HERBERT [2014] FCCA 77

Catchwords:
FAMILY LAW – Contested parenting proceedings – child under three years – father’s attitude towards mother hostile and demeaning – father’s attitude likely to seriously undermine child’s relationship with the mother – child suffering anxiety and vomiting on way to handovers – father’s complete disregard for authority of the Court – wants child in his possession but not one on one time – child exposed to father’s poor attitude toward the mother – father’s current wife overtly hostile towards the mother.

Legislation:

Family Law Act 1975, Part VII, ss.60 CC, 61DAA

MRR v GR [2010] HCA 4
Marzorski & Albright [2007] FamCA 520

Applicant: MS MALLARD

Respondent: MR HERBERT

File Number: BRC 5145 of 2012

Judgment of: Judge Willis

Hearing dates: 22 & 23 July 2013, 10 September 2013

Date of Last Submission: 10 September 2013

Delivered at: Cairns

Delivered on: 14 February 2014

REPRESENTATION

Solicitors for the Applicant: Self-represented

Solicitors for the Respondent: Self-represented

IT IS ORDERED BY CONSENT THAT:

1. That the child [X] born [in] 2010 (“the child”) live with the Mother.

IT IS ORDERED THAT: 

Parental Responsibility

1. The Mother is to have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the child, subject to the communication and notification of such decisions to the Father, including but not limited to:

   (a)a child’s education (both current and future);

   (b)a child’s religious and cultural upbringing;

   (c)a child’s health;

   (d)a child’s name;

   (e)changes to the child’s living arrangements that make it significantly more difficult for the child to spend time with other parent.

2. Notwithstanding order 2 herein:

   (a)The Mother is to be responsible for the day-to-day care, welfare and development of the child when she is living with her.

   (b)The Father is to be responsible for the day-to-day care, welfare and development of the child when she is spending time with him.

Father’s Time with the child

1. The Father is to spend time with the child only at times agreed between the parties in writing and failing agreement, from 9:00 am Saturday until 4:30 pm Sunday, each alternate weekend commencing as and from today NOTING that the coming weekend, namely 15 and 16 February 2014, is the child’s weekend with the mother.   

2. Up until the commencement of the school holidays in 2015, this time will continue through school holidays SUBJECT TO the mother being permitted to suspend one of the father’s weekends during either the June/July or September/October school holiday periods each year to enable her to have a holiday away with the child.  The holiday in which the mother wishes to suspend the contact will be at the mother’s election, and the mother is to provide no less than 21 days notice to the father of the weekend to be suspended. 

Holidays after the commencement of the school holidays in the year 2015:

1. After the school holidays commence in 2015,  the father is to have one half of all gazetted school holidays NOTING that the first Christmas holidays at the end 2015 are to be taken one week at a time (rather than one block of 3 weeks) with the child to be returned to the mother in the alternate week. 

2. In the Christmas holidays in 2016 and thereafter the father will spend one half of the Christmas School Holidays with the child, to be taken in one block.  Unless agreed otherwise, the Father will have the first half in 2016 and each alternate year thereafter, and the second half in 2017, and each alternate year thereafter.

3. Notwithstanding the provisions of any other orders, the child shall spend time with the parents as follows:

   (a)The child will spend the Mother’s day weekend with the Mother and the Father’s Day weekend with the Father (except when it falls in the holiday time provided for in these Orders of the other parent) and the regular weekend time provided for in Order 4 herein is to be swapped to ensure that this occurs;

   (b)The child will spend time with the father on the child’s birthday for one half of the day up until the child commences school and thereafter,  from after school until 6:30pm when the birthday falls on a school day or one half of the day if the child’s birthday falls on a non-school day;

   (c)The father is permitted to attend school events at the school or events at the child’s day care centre that the child attends to which parents are invited to attend, subject always to the discretion of the school or day care authorities;

   (d)Upon the child turning 4 years of age, the father will have telephone communication (or Skype if agreed) with the child on one occasion each week.  The mother is to nominate the day of the week and the time (and this may be changed from time to time to accommodate the child’s activities).  The call is to be no longer than ten minutes, after which time the mother is permitted to terminate the call.  The mother is also permitted to terminate the call if the child becomes distressed;

   (e)The father is restrained from recording the telephone calls or allowing any other person to record the telephone calls (or Skype call if on Skype);

   (f)The father is to do all acts and things to ensure that the call is not placed on speaker phone;

   (g)The father is to do all acts and things to ensure that Mrs H does not intervene or take part in the phone call or Skype call.

Restraint

1. The father is restrained from making derogatory comments about the mother in the presence or hearing of the child and he is to remove the child forthwith from the presence or hearing of any other person making derogatory comments about the mother. 

Changeovers

1. Up until the time that the child commences schooling, all changeovers are to occur to and from a Contact Centre, other than those which can occur to or from the child’s day care centre.  Thereafter, once the child commences school, changeovers will occur to or from school on a school day and to or from a Contact Centre on a non-school day.  The cost of the Contact Centre is to be shared and paid equally by each party.

2. At the time these Orders are issued, the Contact Centre is to be the [E] Contact Centre and when not available, the [L] Centre is to be utilised.  Thereafter, if such contact centre is unavailable, the Contact Centre will be a Contact Centre as nominated by the mother, from time to time. 

3. In the event that it becomes necessary for the use of a Contact Centre other than the [E] Contact Centre or the [L] Centre, the mother is to advise the father in writing of the name and address of the alternate Contact Centre.  Thereafter the father has 21 days to attend to and complete the intake procedures for that Contact Centre.  In the event that the Contact Centre is still waiting for the father to complete the intake procedures, interviews and sign and return documents which are part of the intake procedures or do any other act or thing required of the alternate Contact Centre to enable the parties to use that Centre, after he has had 21 days notice, the father’s time with the child pursuant to these Orders will be suspended until he does complete those processes and/or  execute all documents necessary to allow the parties to use the Centre.  An Affidavit from the mother deposing to the father’s failure to properly complete the intake and do all acts and things necessary to enable the parties to utilise the alternate Contact Centre will be sufficient evidence to suspend the father’s time. 

4. In the event the parties are awaiting a position at a Contact Centre and provided the father has complied with his obligation to undertake the intake procedures and done all acts and things to enable the parties to utilise the alternate Contact Centre within 21 days of being requested by the mother or the Court to do so (as provided for in Order 12 herein),  the parties will do handovers to and from day care or school where possible, and all other changeovers will occur at the [U] Police Station until such time as the alternate Centre becomes available.  THE COURT NOTES that the father has today been directed to undertake the intake procedure with the [L] Centre.  If the father fails to do so within 21 days of the date of this Order, the father’s time with the child pursuant to these Orders will be suspended until such time as he completes the intake procedure. 

5. In relation to all  handovers:

   (a)The father is restrained from bringing any third party (including his current wife, first wife and any of his children from his first marriage or step children from his current marriage) to the handover centre or location or within the car park of the handover location.

   (b)The father is restrained from driving through the car park attached to the handover location or parking within the car park attached to the handover location.  

   (c)The father is not to linger around the handover location before or after collection of the child.

   (d)The father is restrained from recording in any way, the handover or the mother or child at the handover location which includes the mother and child arriving or leaving the handover location.

   (e)The father is to do all acts and things to ensure that no other person (including his current wife and children from his first marriage) record any events prior to, during or after handovers.

6. The father is to file and serve an Affidavit confirming when he has engaged in all of the intake procedures with the [L] Centre. 

Miscellaneous

1. All outstanding Applications are to be removed from the pending cases list. 

NOTATION:

A.The Court notes that the father and his current wife Mrs H have been engaging in intimidation of the mother at handovers, even when conducted at a Police station foyer.  The intimidation has continued in Police station car parks and when the mother enters or leaves.  The State Police are requested to offer all assistance to the mother in the event of her request for intervention. 

B.The Court has determined that handovers should occur at a contact centre to protect the child and the mother from further conflict.  The use of the Police Station foyer will only occur if the parties are awaiting a place at a Contact Centre and provided the father complies with the obligation to complete and return all documents requested to attend to the intake procedures as referred to in Order 12 and 13 herein.

C.The Court notes that the father has today been directed to undertake the intake procedures at the [L] Centre and he has 21 days to do so.  Thereafter, the father’s failure to comply with this direction will result in his contact being suspended until such time as he completes the intake procedure.  For the following 21 days, the [U] Police Station is to be used for the Sunday changeovers (noting that the [E] Contact Centre has no vacancy for a Sunday changeover and the father is yet to enrol with the [L] Centre). 

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRC 5145 of 2012

MS MALLARD

Applicant

And

MR HERBERT

Respondent

REASONS FOR JUDGMENT

1. The parties in this matter are unable to agree upon the amount of time that the child of their relationship, [X], who was born [in] 2010 (“the child”), spends with the father.  It is not contested that the child should remain living with the mother.  The father is Mr Herbert and the mother is Ms Mallard.  These parties have been in litigation post-separation about both property and children’s matters.  Prior to the trial commencing, the parties were able to settle their property orders in approximately February 2013.

2. The parties (each self-represented) have each provided a minute of orders specifically sought which I have marked as exhibits.  Initially, the mother sought an order in her application filed on 13 June 2012 for equal shared parental responsibility.  Notably, in the orders sought by her now in July 2013, the mother is seeking an order for sole parental responsibility. 

3. The current arrangement is that the father collects [X] each alternate weekend commencing at 8 am on Saturday and concluding at 5 pm on Sunday and each and every Wednesday night.  The father’s proposal is to extend the time to include Friday night and maintain the Wednesday night each week, and extend Sunday to Monday morning.  This means an arrangement seeing [X], who is not 3 until December, spending four nights and five days a fortnight with the father. 

4. The father also seeks an order that he have block time of up to seven days with [X] and that the seven days occur during the first half of the Queensland school holidays each year.  Upon the child commencing primary school, that is, in her prep year, the father seeks an order that [X] spend the first half of all of the Queensland gazetted school holidays with him.  He also seeks an order that when the child turns 10, [X] spend time with the father on a week on week off basis.

5. The father at the start of the trial sought time with [X] initially twice during the week, however, in his closing submissions, he sought once a week on a day that [X] is not with him.  In the event the Court orders midweek contact, the father nominates Wednesday afternoon/evening.  There are specific orders sought about special occasions set out in the orders.  The father, who is now married to his second wife who has a [omitted] background says he now wishes to spend time with all of his children, including his two step-children on Christmas Eve, which he says is the special Christmas celebration time for his current wife. 

6. As for handovers, the father seeks an order that handovers occur by any authorised party collecting or returning the child to and from day care, and to and from school.  On non-school days, the father prefers to still use the police station but seems to reluctantly concede that given the conflict that has been occurring, that the use of a child contact centre may alleviate that stress. 

7. The mother seeks an order that the child live with herself, which I said is not contested, and that [X] spend time with her father from 8 am Saturday until 5 pm Sunday each alternate weekend.  Rather than [X] spending time with the father for overnight each and every Wednesday, the mother proposes instead that the father spend two afternoons each week with [X] for a period of up to two hours, with that time occurring to and from her current day care centre and that she be collected between 3 and 4 pm on a Monday and a Wednesday and returned to the centre no later than 5.30 pm.

8. Initially the mother sought orders providing for time increasing from when the child turns four up until age eight and at that stage the orders were to move from 5 pm Friday until 4.30 pm Sunday each alternate weekend, and still with the Wednesday afternoons each week.  However, by the conclusion of the trial, the mother has withdrawn from that position and leaves it to the discretion of the Court as to whether or not there should be any further increase in the time between [X] and the father.  The mother is most concerned at the hostility she says is shown towards her by the father’s current wife, in the father undermining her relationship with [X] and the non-co-operation by the father in her attempts to co-parent.  The mother took account also of the expert evidence and increasing hostility towards her, by the father and his wife which was becoming apparent through the child’s remarks to her and the child’s own distress when heading to changeovers, which includes the child becoming physically ill. 

Background

1. The father has four children from a previous relationship.  He was born [in] 1970 and is currently 43 years old.  He has had at least three significant relationships in his life so far.  The father commenced a relationship initially with Mrs B who he refers to as his ex-wife.  That relationship with Mrs B resulted in four children:  [A] born [in] 1994, [B] born [in] 1998, [C] born [in] 2002 and [D] born [in] 2002.  At the time of the trial, the father’s children were aged approximately 19, 14 and 11, [C] and [D] being twins.  

2. [B], [C] and [D] live with the father.  The father says that they have been living with him since orders were made in the Federal Magistrates Court in Brisbane on 27 October 2008.  [A], at the time of this trial, lived away from the father with his own partner and, at 19 years of age, [A] has a two year old son and a three week old daughter.  After the father separated from Mrs B, the father then took up a relationship with the mother in this matter.  The father had a contested hearing against Mrs B and was assisted by the mother both with the litigation and care of his four sons throughout their relationship. 

3. The father and mother began living together in May 2007 and separated on 6 November 2011, a relationship of 4 ½ years.  It is from that relationship that the child [X] was born and, at the date of the trial, [X] was aged two years and seven months.  It is not disputed that since separation, [X] has remained living primarily with the mother.  Since the father ended his relationship with this mother in October 2011, he commenced another relationship in November 2011 with his now second wife and third long-term relationship that the Court is aware of with Mrs H.  They met, it seems at the end of December 2011 and had taken up cohabitation by February 2012, only two months later. 

4. The father married his current wife on [omitted] 2012.  The husband’s new wife, Mrs H (known as Mrs H), has two daughters from her own previous marriage.  Those children are [E] born [in] 2006 and [F] born [in] 2009.  At the time of the trial, [E] and [F] were aged 7 and 4 respectively.  I am told that [E] and [F] spend equal time with Mrs H and their father, Mr F. 

5. Whilst it seems that in this matter the issue for the Court to decide is simply a matter of whether or not there is additional overnight time and when that should occur, the issues that have accompanied the separation of these parties and the dynamics involved in the father moving swiftly into another relationship following separation, have been characterised with domestic violence orders, allegations of stalking type behaviour, video filming at handovers, the involvement of the father’s sons in the dispute and generally much conflict between the parties.

6. I have heard evidence from each of the parties over three days, 2 days in July and one in September. Whilst they have been legally represented in the past, each was self-represented.  It is not easy for parties to be self-represented and this was particularly so in this matter where there is obviously so much ill-feeling, mistrust and distress.  In these reasons, a statement of fact represents a finding, unless otherwise stated. 

The Law

1. This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“The Act”). In making parenting orders, the best interests of the child are the paramount consideration. The Act provides for two primary considerations. The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s.60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s.60CC (1). The Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011 made significant changes applying to matters filed on or after 7 June 2012, which this application is.  As a result of those legislative changes, when applying the primary considerations under s.60CC (2) the Court is required to give greater weight to the second consideration, that is, protecting the child from harm.

1. When I determine the best interests of [X], I will consider also the several additional considerations set out in s.60CC(3) when evaluating  each of the parties proposals for [X]’s future living arrangements.  Reference will be made to the allocation of parental responsibility. If an order for equal parental responsibility is to be made, section s.65DAA (1) of the Act is invoked.

2. In MRR v GR [2010] HCA 4 3 March 2010 the High Court stated that ss.65DAA (1) (a) and (b) and 65DAA (2) (c) and (d) are expressed in imperative terms and oblige the Court to consider both the question of best interests and whether it is reasonably practicable that the child spend equal or if not equal, significant and substantial time with each parent. A determination as a question of fact that it is in the child’s best interests and reasonably practicable that equal time (or significant and substantial) be spent with each parent is a statutory condition which must be fulfilled before the Court has power to make a parenting order of that kind. It is only when both questions are answered in the affirmative that the Court may give consideration to making an Order for equal time, or if not equal significant and substantial time.

The Witnesses

The Mother

1. The mother was cross-examined by the father.  This was not an easy process for the mother.  The mother presented as exhausted and deeply affected by all of the conflict involving handovers, telephone calls and her ongoing attempts to include the father in making long term and day to day decisions and arrangements regarding [X]. The mother’s evidence and descriptions of her mothering techniques and routines gave me a strong impression of being a very organised mother, very capable and competent.  I consider she is an extremely child focused parent who is well in touch with the emotional and educational needs of young [X].

2. I am satisfied that the mother has been under enormous pressure, going through the Magistrates Court regarding domestic violence and this Court litigation in contested matters with the father.  The mother gave her evidence factually and rationally and despite questions from the father which were clearly irrelevant (such as him quizzing the mother as to her current income and how it was that she was going to financially support this child even though he agrees the child should remain living with the mother), she remained child focused and respectful towards the father.  At times she was deeply distressed at recounting the conflict and hostility which has been directed to her by the father and the father’s current wife. 

3. The author of the Family Report in this matter considered that the mother had been unfairly criticised by the father.  I agree with the report writer.  Prior to commencing a relationship with him, the mother worked with the father in the workplace and it is apparent from their history that she took on the significant responsibility of helping the father raise and parent the four children he had living with him when they commenced living together, the father having left his first wife.  The mother helped the father with his litigation against his first wife and helped him put a case forward to have the boys, all four of them, live with the father and herself.    

4. This was quite a significant contribution on her part and the difficulties for her in helping to raise four step-children, four boys, including twins, cannot in my view, be underestimated.  The father says in his affidavit that the mother’s attitude changed towards his other children, when she gave birth to [X].  There is little acknowledgement, in my view, by the father of the mother’s stresses involved in adapting to and raising and breast feeding and caring for a newborn baby as well as four other stepchildren.

5. The father diminishes the mother’s significant efforts in this respect by saying he was around there to help and, in fact, he taught her how to do some of the parenting in the early days.  The father has always worked full time and has never been a full time parent. 

6. I am satisfied that the father in his role as a parent has always had assistance from either his first wife or the mother to help him raise these children.  The father has also had ongoing help from his own mother who lived close enough to come around two or three days each week and who still comes on Wednesday afternoons and any other time requested.  Post separation the father moved seamlessly into a new relationship within four weeks of separation and the father now has assistance from his new wife to help raise his remaining three children from his first wife and also young [X].   

7. The mother was a credible witness, who I consider has been long suffering in her post separation relationship with the father.  I consider she has been the target of a campaign conducted by the father and his new wife to cause difficulty, intimidation, trouble and chaos in the mother’s life.  The mother was prepared to make admissions against her own interest.  She impressed as a person still trying to make allowances and to make compromises despite being treated with hostility, contempt and arrogance by the father and also his second wife. 

The Father

1. In terms of the evidence of the father, unfortunately the father is a most dishonest and unreliable witness.  I am satisfied the father has actively discouraged the children from his first marriage to dislike and mock the mother. 

2. Time and time again, throughout the trial, the father gave evidence and when confronted with a previous inconsistent statement, he refused to make the concession that what he had just said was dishonest.  The father unfailingly asked for questions to be repeated when the answer would likely be against his own interest and I had a strong impression that he was thinking up what to say while the question was being repeated.  He often refused to admit that he had just said something minutes earlier that was in contradiction to what he subsequently said.  I concluded it would be extremely difficult to have any regular arrangements or discussions with the father as he is untruthful, if it suits his position to be so and he does what he wants to do, despite any arrangements made with the mother or Orders of the Court.  The father was extraordinary in his willingness to continue to give untruthful testimony when confronted again and again with the shortfall or obvious disparity or dishonesty in what he was saying.  The father would feign confusion or pretend that he did not understand the question.  This type of behaviour occurred in his dealings with the mother when he failed to make and keep to agreements and then deny that he had made the agreement originally. 

3. The father was given a very specific direction by the Court before he went to lunch on the first day of trial and it was that he was not to have lunch with his current wife and his mother and that was because they were also witnesses who were yet to be cross examined.  He was told very plainly by the Court that he was to walk out of the courtroom and tell these witnesses if they approached him, that the Judge had told him not to talk with them and that he was to have a separate lunch.  I ordered security to observe this process.

4. After the father returned from lunch, the mother raised with the court and subsequently put it to the father in cross-examination that he had, in fact, gone to lunch with his wife and mother.  The father tried to shift the blame to an associate to say that even though he was told not to do this by the Judge, the associate said it was all right as long as they didn’t talk about the trial.  I reject that explanation.  His conduct was entirely contrary to a specific direction.  The father has shown he has little regard for this Court and his breach of a domestic violence order shows he has little respect for the domestic violence orders. 

5. It is fair to say that the father’s evidence is riddled with inconsistencies and that he will say whatever needs to be said to support his case.  I note and accept the mother’s evidence that the father, on 28 February 2013, told Judge Spelleken in relation to the changeovers that:

   She has been coming three nights a fortnight for seven months now, without the issues that Ms Mallard appears to think there is.  Like, we don’t change her clothes as soon as we get home, we don’t do – you know, it’s a very good transition.  Where the difficulty is, is that the transition takes place at a police station on a Saturday morning, early on a Saturday morning.  I have my other children with me, because they do sporting events.[1]

   [1] Transcript 28 February 2013, page 16 line 25. 

6. In the communication book, the father can be seen writing advice to the mother as to how it is that the child’s clothes are removed as soon as they get home from changeover.  This is a complete contradiction to the statement by the father to Judge Spelleken.  It is also completely dishonest for the father to assert, as he has done in this matter, that the only problem with the handovers is that it has been it happening at the police station.  The father overlooks his and his current wife’s intimidating behaviour at changeovers. 

7. Misleading and untruthful evidence was given by the father in his material (and to the report writer, police and others) that the mother “broke into” his residence on an occasion after separation.  The mother denied she broke in and gave evidence that the father in fact gave her a key and that the key turned out not to fit because he had changed the locks.  When the mother told the father, who was at work and after she had called by his office to collect the right key which still did not fit, that she was at his home and that the replacement key did not fit, he told her to break in.  The father would not ever concede in his evidence that this was the position and that he told the mother to break in.  When the mother produced the text message wherein the father said, “Please break in” the father’s testimony was seen to be dishonest. 

8. At that point, in his explanation to that whole saga, the father still insisted that he did not give the mother a key and he did not authorise her to break in, despite the fact that he had sent an earlier text message saying, “Just realized I never left a key out for u, sorry, had to have locks changed due to [B] losing key and your family having copies.  Will give u one tomorrow….” and later “Try to break in and I will fix when I get home ok”[2] that he did not give the mother a key.  His explanations were illogical and implausible and inconsistent with his own evidence.  I was deeply troubled by the overt dishonesty of the father and his willingness to say anything that suited his purpose over and over and over.  I was also most troubled by his inability to admit his own obvious dishonesty to the Court, the Report Writer, the mother and the police. 

   [2] Annexure 8, mother’s Affidavit affirmed 15 July 2013. 

9. The father also shows a significant lack of insight into any child focused arrangements.  I accept the position of the mother that the father loves [X] however he will only spend time with her when it is convenient for his own arrangements.  This was seen in evidence of him regularly cancelling or forfeiting time with [X]. The father diminishes and under-acknowledges the efforts of other women in his life helping him to look after his children.  It is this help which enable him to go out for work full time, go to conferences such as the one he says he goes to on State of Origin night, go away to interstate visits and go away to conferences on occasion overseas.

10. The father has been dealing with the mother in a dismissive and cavalier manner and treating her with complete disrespect.  An example is the Easter 2013 holidays, when the father sought to have Easter with [X] to which the mother agreed.  The mother decided to nonetheless check with him that he was taking her on Good Friday morning, only to receive a text message at 8.45pm in reply on the Thursday the night before from the father saying he is no longer able to take [X] for Easter.  He said he was instead going camping with the rest of his family.  He told the mother “it is a shame [X] cannot come.”  He relied on the mother to drop her own arrangements on this and other occasions and assume responsibility for [X].  The father’s reasons for cancelling his time with [X] late in the evening prior to Good Friday were never explained satisfactorily.  His current wife’s explanation was also unsatisfactory.  Each feigned an ability to recall why the decision not to have [X] was taken so late the night before.  I had the impression neither wanted to say what had really happened.     

11. The father was a man of total contradiction.  He has the habit of saying things and using rhetoric which bears no resemblance to the real facts.  I would go so far as to say that wherever the father’s evidence and the truth are the same, it is purely coincidence. 

12. Wherever the mother’s evidence contradicts that of the father and in the absence of any independent evidence, I prefer the evidence of the mother. 

Mrs H (Mrs H)

1. Mrs H entered the Courtroom and immediately took the stand and the Courtroom by storm. She announced very loudly, after a couple of questions from the mother, that she had always wanted to be a police woman just so that she could arrest people like the mother who continually told lies. I observed Mrs H glaring and staring at and talking over the mother, who was attempting to ask her questions.

   
   

   Mrs H leaned out of the witness box and almost hysterically ticked off the mother and engaged in overtly intimidating behaviour. 

2. I have not ever seen a witness show such contempt or open hostility towards a person cross-examining them.  Mrs H was in my view on the brink of completely exploding emotionally and seemingly enraged with the mother.  I was left wondering about her mental wellbeing and certainty about her ability to regulate her emotions and hostility.  The mother was overborne by Mrs H.  It was quite an extraordinary court event.  Mrs H supports the father unequivocally and pushes his case and his grudge against the mother in an overtly hostile manner.  Her evidence was also untruthful.  This was seen on various topics, particularly her evidence suggesting she and the father were home on the night of State of Origin and her explanation of what occurred in the various car park incidents by her and the father. Mrs H denied that she was in front of the mother, in charge of the car, however the photo produced by Mrs H had (obviously unbeknown to Mrs H) included an image of the mother’s car behind as seen in the reflection in the driver’s side rear view mirror. 

3. Wherever Mrs H’s evidence is contradicted by the mother, in the absence of independent evidence, I prefer the evidence of the mother.  I am satisfied that Mrs H has been a willing partner for the father in a joint campaign of intimidation and smear tactics against the mother. 

Family Report Writer, Mr M

1. Mr M has prepared a report in this matter after conducting interviews with all of the relevant parties including the mother, father, the father’s new wife and his children from his first marriage and observations of [X].  I have found the report very helpful and quite insightful.  Mr M noted that there was a degree of conflict in this matter and that the relationship between the parents has deteriorated due to a combination of factors.  He notes that the parties’ history entails conflict with the father’s ex-wife and the mother’s support of the father through that previous Court process. 

2. Mr M considered that the father was unnecessarily critical of the mother in her role in supporting him during the previous litigation.  In terms of the mother’s relationship with the father’s children, [B], [D] and [C], Mr M noted that the mother had accompanied the father all through his previous Court process and supported him in his concerns about the welfare of the father’s children with their mother, and that it appears more likely that the mother had engaged in and formed an attached bond with his older boys.   That bond is now in tatters. 

3. I agree with Mr M that the father gives the mother no credit or acknowledgement for all of her previous parenting of his boys.  It was very convenient for the father during this relationship to have this mother helping him raise his four children.  The father now seeks to demonise the mother who was the very person that he enlisted to help with his contested litigation about the living arrangements of his four children with his first ex-wife Mrs B.  He has now enlisted Mrs B in support and she has filed an Affidavit to support the father against the mother.  The father, in my view, fails to see the irony in what he is now doing in also engaging his current wife Mrs H against his now former second de-facto wife, the mother.   

4. Mr M was most concerned at the willingness of the father to involve his three children who remain living with him from his previous relationship in this dispute, even to the extent of enlisting [B] (aged 14 years) to videotape the mother at the handover.  During the father’s questioning of Mr M it was very clear to me that the father, despite having read of Mr M’s concerns, still shows no sign of understanding the harm and inappropriateness of involving his children from a previous marriage (and who were children raised also by the mother) directly in this conflict and at handovers.  The father shows significant lack of insight into many child related matters and this issue is a significant concern for the Court.  The father could not appreciate the harm caused in destroying the mother’s relationship with the children, who she raised for over 4 years and who are half siblings of [X].      

5. The father was also criticised by Mr M for discussing matters to do with the litigation in the presence of the children, and in particular for discussing with Mr M an incident that the father said occurred in

   
   

   Mr M’s rooms.  The father alleged in the presence of the children, that his children told him that the maternal grandmother made a face of some sort at his children within Mr M’s building during the family report interviews and that the children were upset or intimidated. 

6. Further, when Mr M spoke to the children about it, they were not distressed at all.  The only description that arose when the boys were interviewed was that, Ms Mallard’s mother had a “certain look on her face which they interpreted to be anger.” 

7. As I said, the father raised this issue with Mr M in front of the children, and as Mr M explained during his cross-examination by the father, that once the father raises such an issue in front of the children, he is directly involving the children in the dispute.  The father tried to then justify this conduct by saying to Mr M that the children had asked him to raise this issue, the premise being, as confirmed by the father, that because the children had asked him to raise it, it was therefore all right to discuss such matters in their presence.  Again, the father’s lack of insight into understanding the concern raised by Mr M was most troubling for the Court as was his position that if the children asked him to do it, he would do so regardless of the consequences.    

8. The father’s capacity to understand the harm he causes in denigrating and demeaning the mother or her family directly or indirectly and in the presence of the children, who were previously raised by the mother, is a feature of the father’s conduct in this matter.  The father also considered, as noted in the report, that in having 14 year old [B] video tape the handover between himself and the mother, he felt this was appropriate because [B] is “mature and old enough to understand what has been going on.”  The father proceeded to say also that he speaks openly with the boys, saying, “I tell them anything.”  Having said this spontaneously, the father then tried to backtrack from this position somewhat when I asked him for specifics and he realised that this admission was not helping his own case.  Mr M says:

   “It is relatively evident, as exemplified by his complaint in front of them, that he has nebulous boundaries over some issues.”

1. I have, as will be seen elsewhere in these reasons, come to the same conclusion as Mr M.  Mr M considered that the father’s views have affected the children of the previous marriage and their relationship with the mother and that their views have been imposed upon them by the father.  Mr M was very concerned that the siblings now have a very strong negative view about the mother, and noted that siblings have a very strong influence with younger siblings, and they have less boundaries in such things with other children.  The risks to young [X] exposed to these attitudes and behaviours in the father’s home are a significant concern for the Court.   

2. Mr M has noted that if the children’s attitudes remain the same as they currently are, that [X] will be directly exposed to that sort of discussion and attitude, and that this will undermine her relationship with her mother.  Mr M noted that ultimately [X] will either align herself with the father or the mother, and that this will create an emotional schism for most children and that in these circumstances they become insecure, confused and quite angry.  The Court is most troubled at the high likelihood that the father’s negative attitude and contempt for the mother will affect [X]’s relationship with her own mother. 

3. On being advised of some of the other evidence that the Court heard at the trial, Mr M concluded that the father’s behaviour is probably unlikely to change, and noting that he had enlisted the assistance of his first wife to now give scathing evidence against the mother, together with his current wife, that the antagonism and conflict was far greater than he had thought, and that the evidence sounded as though there was a vendetta between the father and his current wife against the mother. 

4. This being so, Mr M considered that he would not contemplate recommending increasing the father’s time with [X].  He also noted that having heard some evidence about the child’s anxiety as her time to spend time with the father approaches, and hearing further evidence of the escalating of the past conflicts, that more weight should be attributed to [X]’s anxiety.  Mr M stated he would be very cautious about increasing any time for the father, and that the Court would have to give serious consideration to even maintaining the current arrangement, given the depth of the antagonistic behaviour of the father and his wife, and now his children, towards the mother.

5. In terms of the telephone time, Mr M said that he did not see any value at all in telephone time with a child so young.  I note that telephone time has been in place twice a week to occur within a period of an hour, since young [X] was 18 months old.  Mr M stated that the telephone calls were just a lure for further conflict and very stressful for the child and, obviously, very stressful for the mother, with her having to assist [X] to have the phone calls.  As well, the father accused the mother of interfering with the phone calls and subjected the mother to criticisms from both himself and his current wife during this time.    

6. Mr M considered that, in light of the hostility by the father, his current wife and the father’s other children toward the mother, that the time [X] has with the father should be much more limited than it would be in relation to other parents who did not carry their level of conflict toward the other parent.  Mr M considered that the father needed to develop some respect for the mother, which he currently does not have. 

7. In terms of the mother herself being permitted to go on holiday, noting that the father has not agreed to the mother suspending the regular weekend time on any occasion to enable her to go away for any period of time (this is despite the father making his own arrangements for holiday time when he felt like it), the father asked Mr M if it would be detrimental to [X] to allow the mother to go on a vacation for anything longer than seven days.  Mr M did not agree that seven days was a sufficient holiday for the mother.  Mr M stated that the effect on [X] of not having contact with the father, whilst being away with her primary carer, was going to be a lot less than the effect of her being away from her mother.  The father wanted orders restraining the mother from going on holidays for longer than 7 days. 

8. In terms of the father taking the opportunity to spend one on one time with [X], during the father’s cross-examination of Mr M, the father stated, when asking Mr M questions about his proposed continued mid-week time and whether or not he should have overnight night, the father said, at one point “My concern is that, being 50 minute away from home, it is not practical for me to have only two hours”.  The father’s position has been that he must have the overnight period or it is not worth it for him given the travel. 

9. Mr M has noted that, practically, it might mean that is inconvenient for the father.  However, the underlying issue is what was, generally, in [X]’s best interests, given all of the facts and issues that the Court is aware of.  As to whether there should be overnight midweek, Mr M noted that, “It depends on the conflict between you and the mother.”   If it continues as it has in the past, he did not consider that it was appropriate.  The father suggested that [X] would not cope with only spending two hours with him and Mr M stated that, if it was a regular thing, most children would get used to that and that [X] is old enough to get used to that happening and that, presumably, she would look forward to that.  This comment was made, also, in relation to the prospect of the father, as was suggested to him by the mother and the Court, of spending some one-on-one time with [X] during the midweek.  The mother had suggested that the father (who says he has flexible working hours) drive to [X]’s day care take her for local outings and drop her back to day care.  The father, having indicated to Mr M that he lived 50 minutes away from the day care then said, “I am considering moving halfway down to the Gold Coast.”  It seemed to me that the prospect of just spending time alone with [X] was not a priority or interest of the father and he did not wish to have a couple of hours enjoying quiet intimate time with [X]. 

10. When the father was later asked about his moving to the Gold Coast in a different context, the father then once again changed his evidence and said that he had never said that he himself was moving down to the Gold Coast.  He said that his previous evidence was that his firm was contemplating moving somewhere closer to the Gold Coast, not him.  As with so many of the father’s assertions from the bar table and throughout his evidence, this was in total contradiction of his earlier sworn evidence, as deposed to in his affidavit material. 

11. The father stated, very clearly in his own sworn evidence, that he was considering moving his home to somewhere nearer to the Gold Coast[3].  When this was read out to the father, he stubbornly refused to acknowledge that is what the paragraph said and also refused to acknowledge that is what he had indicated to the Court.  This was one of many occasions when the father simply stood and stared back at the bench and just tried to deny what he had previously sworn to and said.  The father then started saying that he would be living in his home for at least another five years.  This continued inconsistent testimony and dissembling was a feature of the father’s testimony. 

    [3] Father’s Affidavit filed 16 July 2013, paragraph 62. 

12. Mr M was questioned by the father as to not spending what the father considered to be enough time interviewing his current wife and her children.  The father also suggested Mr M did not spend enough time with the children from his first marriage.  As noted by Mr M, there was no issue at all taken with the role of the step-children in this matter.  There was nothing to assess them about.  I am satisfied that Mr M spent sufficient time discussing and observing matters with the father’s three children and I reject any suggestion that Mr M spent “five minutes talking” with the father’s current wife. 

13. I accept Mr M’s evidence that he had a page full of notes and spent approximately 15 to 20 minutes with the father’s current wife. 

14. Mr M was not in favour of progressing the father’s time and expressed serious concern as to the exposure of [X] to the attitudes of the father and his wife in the father’s house, and his children.  This issue is one of the single biggest issues of great concern for the Court, in terms of considering the father’s time with [X]. 

15. I note in the family report the father denied that the mother’s entry into his home was with his consent.  The Family Report noted that the father reported this alleged break in to the police and subsequently the mother was interviewed by Police as a result of the father’s complaint.  I note, also, that Mr M confirmed that the father told him that he knew the mother was going to attend at his home on the day [X] had her immunisations but that the father reported he told the mother, in a text message before she went, that he had changed the locks.  The father told Mr M that she then came to his work to threaten him. 

16. The father’s evidence and narration to the family report writer was completely untruthful as demonstrated when the father was cross-examined about his own emails and text message telling the mother to break in.  The father has not only lied to the Court and the mother and the Report Writer, he has made a false complaint to the Police with a view to having the mother criminally charged with a break in.  The mother was interviewed by the police as a result of the father’s complaint. 

17. I agree with the observations and concerns of the report writer Mr M and his recommendations are supported by the evidence. 

Section 60CC considerations

1. I now turn to discuss the evidence in the context of the additional considerations which are relevant in determining the best interests of [X] set out in s.60CC(3).  I will discuss the primary considerations after that. 

S.60CC(3) The additional considerations are:

S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views

1. The child in this matter is less than three years old and is not in a position to express a view.  In terms of either party and in particular the father suggesting that the child is distressed on leaving him I do not regard that as anything other than issues to do with the separation of a child from one loved parent to another at that age.  I do not accept any suggestion that the child is mature enough to express any views about where she wishes to live or how long she spends with the father, as suggested by the father.

S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)

1. I am satisfied that the child has a close and loving relationship with the mother.  The mother is the primary carer of this child and the person for whom the child turns to for her major emotional support.  In terms of the child’s relationship with the father I am satisfied that the child has enjoyed some of her time with the father and that the father loves [X] very much, however there are other issues to be considered. 

2. The difficulty in this matter is that the father is not mindful of or aware of nor does he acknowledge, the difficulties with separation that [X] is experiencing when being separated from her mother.  Although the father says he has raised four children, I consider that to be an overstatement.  He shows very little awareness of the emotional needs of [X].  The father says to the Court that [X] loves the interaction with him on the phone calls.  The father suggested to the Court that even when [X] was 18 months old she enjoyed the phone calls and that [X] is very clever and ahead developmentally and that he had good telephone discussions with her when she was 18 months old.  I reject the father’s evidence and assertions.  I have heard phone calls that have been taped and played during this trial both by the mother and father.  The phone calls taped by the father showed that the phone calls were more about pleasing the father than any benefit or joy obtained through the phone call by [X].  The father asks the child questions in a very stilted fashion and the child is asked “how did your day go, what have you been doing, how are you.”  Questions of that nature.  The child typically did not answer the questions and when she did talk, even on the phone calls recorded by the father, it was my observation that the father did not understand what the child was saying.

3. I noticed also that obviously for a child of this age to even be on the phone it would be necessary for an adult at the other end to be holding the phone or continuously guiding the child back to the phone.  The mother at times can be heard on the phone trying to get the child to engage.  The father shows no signs of understanding any of the difficulties and can be heard continuing with his questions.  I concluded that the telephone contact was of no benefit to the child.  The whole process was difficult and it required the mother to be constantly vigilant to make the communication occur. 

4. At times when the mother can be heard trying to get the child to talk or encouraging her to talk, the father is heard telling the mother not to interrupt.  Throughout his evidence, the father and his current wife have accused the mother of interrupting their phone calls.  Having heard the phone calls I do not regard anything that the mother did or said to be obstructive or done with the intention of interrupting the phone call.  Quite the contrary is the position.  I consider that the mother was using her best efforts to engage the child in what was clearly a difficult process for a child 18 months and up two years and seven months at the time of the trial, to actually have dialogue and on a phone as if she was a much older child. 

5. The concept of having telephone contact for a child this young is clearly difficult.  It requires an adult to engage [X] to try and get her to stay focused. [X]’s language development is not fluent or sophisticated.  The father seems oblivious to the difficulties and completely misdescribes and misinterprets what is actually happening on the phone calls.  Concentrating on an ongoing telephone call is clearly beyond the capacity of young [X]. 

6. The mother also played some recordings of phone calls of [X] and the father and those phone calls were very distressing for [X].  The father is heard continuing on with phone calls when [X] can be heard saying over and over and over, “no” with the mother asking her to talk, to which the father eventually starts to say (together with his current wife at one point) “who is telling you to say no?”  This illustrates my further concern in relation to telephone contact with this manner.  The father does not have any insight into how he overtly undermines the mother and how he engages inappropriately in that kind of dialogue with someone aged two and a half or any child for that matter.

7. There is no suggestion that the mother was telling the child to say, “no”, and the father’s protestations that she is show again a complete lack of understanding of how tired this child must be of being available twice a week between the hours of 6pm and 7pm to have the phone calls which are obviously creating such difficulty in the mother’s household.  The father rings at a time convenient to him, he chooses anytime in the hour and he expects the mother is to have the child ready.

8. I accept the evidence that the father has phoned when the child has been in the bath and on the toilet and that mother has been requested to put the child on to the phone.  I was deeply troubled by the telephone communication between the child and the father and his wife and I have concluded that telephone contact is of no value to [X].  I am satisfied it is used as a method of surveillance by the father.  The mother says the father is controlling and is trying to cause difficulty in her life with [X].  I accept that this is so.

9. I can only conclude that the father has persisted with these telephone calls with [X] from the age of 18 months onwards because of his desire to simply intrude into the child’s time with the mother and to create difficulties.  The phone calls have been an opportunity for the father’s current wife to intervene and much distress has been caused.  The father typically steps back from any responsibility in these phone calls yet pleads with the Court to enable him to continue ringing.  The phone calls are tantamount to an abuse of the time offered to him.  Mr M a very experienced Family Report Writer considered that the value of any phone calls to a child so young is non-existent and I agree with his view on that matter.  Phone calls will only be appropriate when [X] is 4 or 5 years old and then at a time to suit her schedule and for no longer than 5 - 10 minutes. 

10. In terms of the rest of the relationship between the father and child I am satisfied that the father is very keen to involve [X] with what he regards as his new family, namely his wife, her two children and the children from his first marriage.  I am less than satisfied that the father is actually interested in spending any one on one time with [X].  The father seeks an order that he have [X] overnight on a Wednesday evening commencing from day care late afternoon and back to day care in the morning.  The father drives 50 minutes home after he collects [X] and says when he gets home around 5.30pm or 5:45pm, that they have dinner and play and sometimes he puts [X] to bed, sometimes his new wife does.  He says they are up early the next morning to be back at the day care centre at 8am, so leaving home not long after 7am.

11. When questioning the father about what it is that he does on a one on one basis with [X], the father really could not answer.  He was puzzled at the question and was somewhat taken aback at having to explain what it was that he does one on one with [X].  The most the father could come up with was that the child wakes up in the morning and comes in for cuddles.  As I said to the father, that involves going into the father’s bedroom presumably where the father is with his new wife.

12. The father also said that he reads a story sometimes to both children, making a reference to his youngest step-daughter and [X].  The father had little idea what was meant by one on one.  I had a very strong impression that the father is used to ferrying children around, putting them together at the same place, inviting relatives over, having his mother over very regularly to help and all of this being done in the presence of himself and his current wife who assists the father.

13. There was no sign of the father even looking to spend one on one time with [X].  When it was suggested that he could spend time with [X] one or two afternoons each week for a couple of hours by picking her up early from day care and taking her for some afternoon tea or an outing in the area such as a library or an animal farm, the father did not show any desire to engage in such activities.  He appeared quite puzzled as to why he would do that. 

14. In fact, he made submissions to the effect that those activities are what the mother does with the child and he wants to do different things.  His constant assertion was he needed to take the child back to his home and have her exposed to her four half- brothers, one of whom is 19, one I think is 14 and the other two are 11, his wife and/or his mother and two step children. 

15. The father gave evidence that they all play games together.  However, his description of the 14 year old sitting down playing snakes and ladders with [X] at two and a half years old and his four year old step daughter did not have the ring of truth about it.  The evidence that the father gave of sitting playing, as I said, did not persuade me that that is what in fact occurs. 

1. I consider that the orders that are in [X]’s best interests are that she spend from Saturday morning at 9 am until Sunday at 4.30 pm with the father each alternate weekend.  The midweek overnight is my view is just another opportunity for conflict and for [X] to be exposed to the negativity and hostility in the father’s household towards the mother.  I do not accept that there is any benefit for [X] in the midweek time, and I consider that it will simply result in further anxiety and distress for [X]. Also, the father made it clear he is not interested in spending a few hours with [X] in the off week during an afternoon.  Having said that, I am confident that in the future, if the father changed his attitude towards the mother and [X] was coping better and the hostility was reduced, I am confident that the mother would offer afternoon time in the off week to the father, as she has done in the past.

2. In regards to block holiday time, I do not intent to order block holidays between [X] and the father until the first school holidays in 2015. Up until that time, the mother is at liberty to suspend the mid weekend regular contact period of the father, in either June/July holiday period or September/October period, in order to have a holiday away with [X] herself.

3. During the school holidays commencing with the first school holidays in 2015, [X] will spend one week block with each parent. In the first Christmas holidays at the end of 2015, the father’s one half will be taken as one week blocks alternating with a week [X] spends back with her mother, as I am concerned about her ability to cope with 3 weeks away from her mother until 2016 Christmas school holiday period. The father’s one half of the Christmas holidays in 2016 will be taken in one total block of 3 weeks.

4. I do not intend to make orders sought by the father that the child spends every Christmas Eve in his care.  His new wife may be [omitted] and Christmas may be of significance to her, however, I do not consider it is [X]’s best interests to never spend Christmas Eve with her mother.  Under the orders I am making, I do not intend to make Orders that [X] spends Christmas Day or Christmas Eve shared between the parties as I am concerned that this will just result in conflict on what is otherwise a very special time for [X].  [X] will spend the Christmas days with which ever parent has the first half of the holidays and that will alternate each year.

5. I do not intend to order that the child start spending seven days away with the father.  Whether or not he has a reunion in New Zealand does not warrant the child being removed from the mother for that length of time.  I do not consider that [X] is developmentally ready for such a move and time away from the mother, and given the level of hostility, I would be most alarmed at the attitudes of [X] upon her return, having spent so much time under the influence of the father and or his children and his current wife.

6. Phone calls are currently not in [X]’s best interests. They have been a constant source of conflict. When [X] turns 4, the father can spend time by phone (or Skype if agreed) once a week with [X], on a day and time nominated by the mother from time to time.  The phone will not be put on speaker phone by the father and the phone contact time (or Skype) will not include the father’s current wife.  The phone call/Skype call will be no longer than ten minutes and shorter if the child is distressed.  The mother is at liberty to terminate the call if the child is distressed or the call continues for longer than 10 minutes.   

7. All through these proceedings the mother demonstrated that if the father would only co-operate genuinely and respectfully with her, the issues before the Court could have resolved.  In my view, the mother has shown a willingness to try and encourage and maintain a relationship between the father and [X] even through the barrage of hostility from the father and his wife.  Regretfully, whilst in other circumstances I would have anticipated making Orders for the father’s time with [X] to increase upon her starting school, to commence on a Friday afternoon, there is however simply no evidence in this matter to support any increase in time.  Quite the opposite is the case.  As the report writer opined, the facts of this matter suggest that the father’s time with [X] needs to be restricted.  The father has been determined to act in a certain way towards the mother as referred to in these reasons.  If he and his wife demonstrated a complete change in attitude, I am satisfied that further time in the years ahead would be agreed to by the mother.

I certify that the preceding one-hundred and fifty-five (155) paragraphs are a true copy of the reasons for judgment of Judge Willis

Associate: 

Date:  14 February 2014