MARTIN & MARTIN
[2014] FCCA 2838
•19 December 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MARTIN & MARTIN | [2014] FCCA 2838 |
| Catchwords: FAMILY LAW – Parenting – child’s best interests ill-served by adversarial process – family violence – nature of coercive and controlling family violence – family violence as a form of terrorism – family violence best practice principles – fundamental and integral importance of family violence to the determination of children’s best interests – allegations of “brainwashing” unsupported by evidence – impact of family violence on children – views of adolescent children and weight to be given to such views when clearly expressed and independently formed based on lived experience. |
| Legislation: Family Law Act 1975, ss.4, 4AB, 60B, 60CA, 60CC, 60CF, 60CG, 60I, 60J, 61DA, 65DAC, 65F, 67Z, 67ZA, 67ZB, 67ZBA, 67ZBB, 67ZBB(2), 68B, 68C, 68N-68T, 69ZN, 69ZW International Convention on the Rights of the Child |
| Re F Litigants in Person Guidelines (2001) FLC 93-072 Jones & Dunkel (1959) 101 CLR 298 Browne & Dunn (1893) 6 R 67 (HL) Tate & Tate (2000) FLC 93-047 Powell v Alabama 287 U.S. 45 (1932) Brewer v Williams 430 U.S. 387 (1977) Dietrich v R [1992] HCA 57 R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 A.C. 42 The Queen v Crawley and others [2014] EWCA Crim 1028 Haset Sali v SPC Ltd [1993] HCA 47 Aon Risk Services & ANU [2009] HCA 27 Dennis v United States 339 U.S. 162 (1950) New York v United States 331 U.S. 284 (1947) Amador & Amador (2009) 43 Fam LR 268 Cameron & Walker (2010) FLC 93-445 Re L Contact: Domestic Violence [2000] 2 FLR 334 (UK case) H & W (1995) FLC 92-598 Re R Children’s Wishes [2000] FamCA 43 |
| Articles Cited: Richardson, E, Sourdin, T and Wallace, N, ‘Self-Represented Litigants: Literature Review’, Australian Centre For Court and Justice System Innovation 2012. Pagone, Justice T, ‘Divided Loyalties? The Lawyer’s simultaneous duty to Client and the Courts’, (VSC) [2009] VicJSchol 19. Access to Justice Arrangements – Inquiry Report, the Australian Productivity Commission, December 2014. JB, Kelly & MP, Johnson, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions’ (2008) 46 Family Court Review 476 |
| Applicant: | MR MARTIN |
| Respondent: | MS MARTIN |
| File Number: | PAC 247 of 2012 |
| Judgment of: | Judge Harman |
| Hearing date: | 7 November 2014 |
| Date of Last Submission: | 7 November 2014 |
| Delivered at: | Parramatta |
| Delivered on: | 19 December 2014 |
REPRESENTATION
| The Applicant appeared in person |
| Counsel for the Respondent: | Mr Kenny |
| Solicitors for the Respondent: | Champion Legal |
| Counsel for the Independent Children’s Lawyer: | Mr Cook |
| Solicitors for the Independent Children’s Lawyer: | Adams & Partners Lawyers |
ORDERS
The Application of Mr Martin filed 16 May 2013 is dismissed.
Ms Martin shall have sole parental responsibility for the children:
X born (omitted) 1999;
Y born (omitted) 2011; and
Z born (omitted) 2003.
The children shall live with their mother, Ms Martin.
Mr Martin shall be restrained pursuant to section 68B of the Family Law Act1975 from entering upon, approaching or being within 500 metres of the schools attended by the above children or any of them or the mother’s home.
Ms Martin the Respondent shall be granted a Certificate pursuant to section 10(2) of the Federal Proceedings (Costs) Act 1981 that in the opinion of the Court it would be appropriate for the Attorney-General to authorise a payment under that Act to her in respect to such part as the Attorney-General considers appropriate.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
All outstanding Applications and Responses are dismissed and all issues are removed from the list of matters awaiting hearing.
Upon the expiration of the Appeal period and in the event that no appeal is lodged all exhibits shall then be returned to the party who tendered same and that all material produced on subpoena shall be returned to the person or organisation who produced same.
IT IS NOTED that publication of this judgment under the pseudonym Martin & Martin is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 247 of 2012
| MR MARTIN |
Applicant
And
| MS MARTIN |
Respondent
REASONS FOR JUDGMENT
The proceedings
These proceedings involving competing parenting applications with respect to three children, namely:
X born (omitted) 1999 (aged 15 years);
Y born (omitted) 2011 (aged 14 years); and
Z born (omitted) 2003 (aged 11 years).
A discrete issue also arises regarding an Application for a Costs Certificate regarding an earlier listing when the matter could not proceed due to difficulties with the Court’s transcription system.
The parties to the proceedings are the children’s parents, namely, their father Mr Martin, who is the Applicant, and the mother Ms Martin who is the Respondent.
The interests of the children are represented in the proceedings by an Independent Children’s Lawyer.
Ms Martin is legally represented and counsel has appeared on her behalf to conduct the hearing.
Mr Martin was, at the time that the proceedings were commenced, legally represented. Mr Martin has, for some significant time, including at the final hearing, been self-represented.
Mr Martin seeks order for time with the children if only on a supervised basis. Ms Martin opposes any order.
Mr Martin’s self-representation and the conduct of the trial
I propose shortly to turn to:
a)The material that has been considered by me in dealing with these proceedings;
b)A discussion of the evidence;
c)The application of the legislative pathway to the evidence; and
d)The conclusion of the proceedings and orders to be made.
Before dealing with the substance of the proceedings I propose to raise a number of matters regarding Mr Martin’s self-representation and the conduct of these proceedings.
On the afternoon before this trial I had cause to be involved in a discussion with a colleague regarding the role of family dispute resolution in proceedings. During that discussion my colleague expressed his opinion that “the adversarial system has served us well for hundreds of years”. As part of a lively discussion between us I had opined that the adversarial system might be seen to have served certain portions of society well or served some better than others and that if the adversarial system was viewed from the perspective of Marxist jurisprudence or from the perspective of those without legal representation, that the utility and efficacy of the adversarial trial might not be so universally embraced. This case was heard the next day.
In dealing with this case the accuracy of the above proposal, that the adversarial system “serves us well” (or who may be the “us” who are served well), is significantly tested.
Before commencing the trial I have outlined various matters for Mr Martin as to the conduct of the trial. I endeavoured to explain the rules of evidence, the right of any litigant to cross-examine witnesses, object to questions, tender documents and to participate fully in the trial.
Each of the matters set out in paragraph 253 of Re F Litigants in Person Guidelines (2001) FLC 93-072 was addressed with Mr Martin and for the sake of clarity I set out that paragraph below:
253. Finally, we think it useful to list the set of guidelines as altered by our consideration of them above.
10. A judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
11. A judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
12. A judge should explain to the litigant in person any procedures relevant to the litigation;
13. A judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
14. If a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
15. A judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
16. If a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
17. a judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);
18. Where the interests of justice and the circumstances of the case require it, a judge may:
·draw attention to the law applied by the Court in determining issues before it;
·question witnesses;
·identify applications or submissions which ought to be put to the Court;
·suggest procedural steps that may be taken by a party;
·Clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
In this case and many others before it I have been aware that the 20 minutes or so devoted at the start of a trial to addressing the Re F Litigants in Person Guidelines criteria with a self-represented litigant is ineffective in addressing the deficiencies and disadvantage experienced by the vast majority of self-represented litigants.
Mr Martin listened patiently whilst I attempted to explain, as simply as possible and in plain language and using illustrative analogies, legislated and common law rules of evidence that, truth be told, are little or poorly understood by some legal practitioners and which create significant difficulties for others.
To expect that such an outline of matters, at the commencement of the trial, would imbue Mr Martin with the skills necessary to properly conduct his business before the Court or that it would achieve a “Eureka moment” for Mr Martin is fanciful.
In popular fiction such as “The Castle” (although that involved a lawyer out of their depth rather than a self-represented litigant) such “David slays Goliath” moments might arise but in reality they rarely do. In real life when Daniel is thrown to the lions (to mix or change metaphors for one moment) he is consumed. An outline of trial processes does not operate as an “angel” to keep Daniel safe from the lion’s jaws. They close and the lion’s jaws tear the mythical Daniel apart.
It would be wonderful if a brief discussion of trial procedure and the rules of evidence could have real impact and achieve some movement towards a level playing field. It would be gratifying if, as occurred in “The Full Monty”, when Gerard is attempting to teach a dance sequence to a group of unemployed Sheffield men, a litigant could so clearly “get it” as “Horse” did explaining for the collective benefit of the group “it’s the Arsenal offside trap - he’s Tony Adams and he wants us all to step up to him and wave our right arm about”. But that does not occur. Instead, litigants such as Mr Martin simply look bemused and perplexed.
With the greatest of respect to Mr Martin he is, as a self-represented litigant, a person who would generally be referred to as “unsophisticated”. Mr Martin is not an unintelligent man but his background and reading is not in legal texts. Accordingly, I have no confidence whatsoever that the outline of concepts such as the rules in Jones & Dunkel (1959) 101 CLR 298 and Browne & Dunn (1893) 6 R 67 (HL) would leave any mark upon Mr Martin’s understanding of that which was about to be engaged in, namely, a contested trial to determine the best interests of his three children and the orders, if any, that would be made as to his involvement in their parenting. The fact that Mr Martin failed to cross-examine Ms Martin on any area of the evidence of importance or relevance confirms that pessimism is well placed.
My lack of confidence is all the deeper having regard to both the stress and anxiety afflicting Mr Martin and made all the more so as the subject matter of the proceedings was something dear and of great importance to him, namely, his three children and his relationship with them. Taking into account those factors I have no doubt whatsoever that my address of the matters which must be addressed by me as a consequence of Re F Litigants in Person Guidelines may as well have been a lecture on Soviet era collective farming delivered in the Russian language.
In a paper prepared by the Australian Centre For Court and Justice System Innovation titled ‘Self-Represented Litigants: Literature Review’ Richardson, Sourdin and Wallace opined (page 15):
…many SRLs could find themselves at a disadvantage to adequately understand court procedures, rules of court, the language of the law and to represent their cases in courts.
In a similar vein but far more pointedly the American commentator Harry Browne opined:
A fair trial is one in which the rules of evidence are honoured, the accused has competent counsel and the Judge enforces proper Courtroom procedures – a trial in which every assumption can be challenged.
I respectfully concur with the recently deceased Mr Browne and particularly as regards the importance of the rules of evidence and the representation of parties and their interests (and for that matter the representation of the best interests of children) by competent counsel as being fundamental to a “fair trial”.
In circumstances such as those that have arisen in this case, with Mr Martin prosecuting his own case and through no fault of his own predictably doing so very poorly, a “fair trial” simply cannot be achieved. That is a matter of profound significance bearing in mind that the best interests of children is the subject matter of the trial.
In this case Mr Martin was required to meet the case of Ms Martin, (with some significant support from both the Family Report writer whose evidence was admitted unchallenged, and the Independent Children’s Lawyer), that there should be no order for time or communication between the three children and their father.
There is some force to the analogy whereby the role of a judge at trial is viewed as comparable or analogous to a referee in a game of football.
It is not the role of the judge (or the referee) to take sides. The judge/referee must apply the same rules to both teams without favour.
It is the role of the judge/referee to ensure a fair and even contest in which the rules are applied consistently, uniformly and equally. The judge/referee cannot, for example, apply the rules to one side of the contest only and turn a blind eye to infringements committed by the other team to give them a helping hand. 10 metres is 10 metres whichever team has the ball.
Similarly, the judge/referee cannot join in the game and must resist the temptation to do so. The judge/referee cannot begin to join with one team against the other, picking up the spilt ball and running down field with it to score a try beneath the posts which the weaker team is incapable of doing themselves.
To continue the analogy I make clear that to be the judge/referee in a trial such as this, with a self-represented litigant with no comprehension of how to conduct a case and matched against two highly competent counsel with well-prepared cases and many years of experience in the conduct of a trial, is akin to and, no doubt, as satisfying as refereeing a rugby league match between the Mascot under 12’s and South Sydney.
It is unclear how Mr Martin has come to be self-represented. Ultimately, it is irrelevant. It is simply a reality. However, the subject matter of the proceedings is the welfare of children.
As section 60CA of the Family Law Act 1975 dictates the best interests of children are the paramount consideration. Those best interests cannot be fully ascertained nor prioritised in circumstances whereby the evidence presented by Mr Martin is minimal and the testing or meaningful testing of evidence non-existent. The process (the adversarial trial) by which those best interests are to be determined has not served the children’s best interests well.
Since the Universal Declaration of Human Rights in 1948 the “family” has been recognised and regarded as the fundamental unit of society - to be protected from undue interference other than by due process of law. Due process cannot be afforded in any meaningful way when a party such as Mr Martin is self-represented. As a consequence due and proper consideration of the best interests of children is not fully or properly achieved. The children’s rights, under the International Convention on the Rights of the Child, (incorporated in its totality into the Family Law Act as objects and principles) similarly cannot be fully or properly advanced.
I make clear that I do not believe that the outcome of the case has been compromised by these difficulties. If I had felt that were so I would have adjourned the proceedings and made appropriate orders to endeavour to remedy evidential defects. In this case, as will be addressed by these reasons, I am satisfied that the only outcome that could occur is no order for time. I propose to conclude the matter on that basis – with no order that time occur rather than a positive order that precludes time.
These are discretionary proceedings and Mr Martin has not persuaded me that I could safely make the orders he proposes. As the Full Court described in Tate & Tate (2000) FLC 93-047 “…it was incumbent on the [father] to establish [his] case by admissible evidence and seek to persuade the Court to exercise its discretion in [his] favour on such evidence”.
These proceedings have been heard and determined on the basis of the evidence presented and the application of the law thereto. However, “every assumption”, as referred to by Browne above, has not been tested. Very few assumptions have, in reality, been tested.
In the criminal jurisdiction circumstances such as these have long been recognised as having the potential to give rise to injustice. It is for this reason, no doubt, that the sixth amendment to the United States Constitution creates the “right” to the assistance of counsel at least when deprivation of liberty is a possibility (as discussed in cases such as Powell v Alabama 287 U.S. 45 (1932) and Brewer v Williams 430 U.S. 387 (1977)).
The deprivation of a relationship between a parent and a child and the massive interference that this represents in the affairs of the family is surely of equal importance to a loss of liberty.
In Commonwealth jurisdictions similar discussions of the right to a fair trial for the accused in criminal proceedings have occurred specifically as regards adjournment or stay of prosecution (see for example, Dietrich v R [1992] HCA 57 as regards the High Court of Australia and R v Horseferry Road Magistrates’ Court, Ex parte Bennett [1994] 1 A.C. 42 and The Queen v Crawley and others [2014] EWCA Crim 1028 as regards the English experience).
I do not suggest that repeated adjournment or stay of parenting proceedings would better serve the use of the Court’s resources (for a discussion of the Court’s obligation to manage the use of its resources by individual litigants and the community at large see, for example, Haset Sali v SPC Ltd [1993] HCA 47 and Aon Risk Services & ANU [2009] HCA 27), the interests of justice or the best interests of children. Indeed they would not.
In this case, where Mr Martin has spent no time with nor had any real or effective communication with these children for over four years and where Ms Martin seeks to continue that arrangement, adjournment would be counter-productive.
The children’s best interests, and those of the parties’, would be better served by the conclusion and determination of the proceedings. However, that determination comes without any meaningful or active involvement or presentation or testing of evidence by Mr Martin.
In well over 30% of cases before the Federal Circuit Court (per the Court’s annual reports) one or both parties are self-represented. Circumstances such as those which Mr Martin has faced are far from unique.
The adversarial system and its processes have largely evolved in an environment whereby parties have been legally represented and legal practitioners have had an important, indeed integral, role to play in ensuring the effective conduct of proceedings. In circumstances whereby such a significant number of cases are absent players key to the process (i.e. legal practitioners) it is unsurprising that the conduct of a trial, such as this trial, represents such stresses and strains upon “fairness”.
Civil courts have, historically, been the domain of the financially privileged. In the latter half of the 20th Century access to courts, to redress wrongs and resolve disputes, has grown significantly. That is as it should be. Justice should be for all. The consequence for courts of such ready community access without competent representation, Courts created in an environment where parties are, by and large, competently represented, is problematic.
The adversarial process can be made “informal” or “less adversarial” but the inherent problem remains that it is an adversarial system in which the “adversaries” are anything but equal. In that regard one is reminded of the sage words of United States Supreme Court Justice Felix Frankfurter in Dennis v United States 339 U.S. 162 (1950) that “there is no greater inequality than the equal treatment of unequals.” Or as expressed by Frankfurter J in New York v United States 331 U.S. 284 (1947), “It is no less inequality to have equality among unequals”.
In an adversarial system where possession and understanding of certain knowledge (e.g. trial practice, the art of cross-examination, rules of evidence, etc.) is assumed and required then it is inherently unequal for one party to be self-represented and the other represented by competent counsel. Whilst most are familiar with the legal maxim “ignorance of the law is no excuse” the reality remains that the vast majority of the community (i.e. non-lawyers) are ignorant of the law and do not possess the knowledge or skills to effectively participate in an adversarial trial as a self-represented litigant.
The interaction of the Court and lawyers in the administration of justice was eloquently described by Justice Pagone of the Victorian Supreme Court in a speech ‘Divided Loyalties? The Lawyer’s simultaneous duty to Client and the Courts’:
The judge, and the integrity of the system, is peculiarly vulnerable to the advocates who appear on behalf of clients. A judge cannot undertake independent enquiries into the facts and issues of cases which require judicial determination. Judges do not have the staff, the financial resources, the knowledge or the skills to make or to order their own enquiries about the matters they need to decide cases. It is neither efficient nor proper for judges to take on such tasks. It is efficient to leave the task of evidence gathering to the parties who are best placed to know what to investigate, what matters to pursue, where to find the facts, evidence and expert knowledge that needs to be pursued, and how best to present those matters to a judge when identified and obtained. It would also be inappropriate for judges to assume those tasks because it would expose the decision maker to the criticism of having ceased to be an impartial decision maker deciding between conflicting parties and to have become, in practical effect, a partisan in the dispute. The losing party to any conflict, and the public as a whole, can have greatest confidence in the fairness of an outcome where the process is manifestly impartial and where decisions are made by a neutral decision maker. Such confidence is likely to be maintained where the parties, including – if not especially – the losing party, have had effective control of the elements which went into the decision of a neutral and impartial decision maker.
An effect of this reality, and of these objectives, is that the judge relies heavily upon what lawyers advance on behalf of their clients. It is in that sense that the decision of the judge, and the integrity of the system, is vulnerable to the advocates who appear on behalf of clients[emphasis added]. Judges need to be confident about what they are told by the lawyers on behalf of their clients.
I do not suggest that self-represented litigants can be treated differently. There is one set of rules and they must be consistently and evenly applied. Due process must be afforded to all parties equally and that requires a demonstrated and perceived impartiality of the bench. Whatever the rules or processes may be they must be adhered to and applied consistently and uniformly.
But a process which better protected against such manifest inequalities in contests between the competently represented and the incompetently represented, including the “unsophisticated self-represented litigant”, and which allowed a more level playing field, can only enhance the perception and attainment of justice and ultimately the best interests of children.
Self-representation by litigants is, and has for some time been, a reality. We have been slow as Courts to recognise this reality or contemplate its implications. Meaningful responses to that reality are, perhaps, overdue.
The adversarial process with which self-represented litigants engage is a process which has always “worked” on the basis of competent representation of all. Perhaps what is needed is collective conscientização.
It is not an issue of modernity or change for change sake to recognise that the conditions in which the adversarial process has developed and flourished have changed. Democracy and justice are living concepts that change and have changed over time. The trial processes of the 21st Century have evolved and have not been immutably fixed since time immemorial. Laws and legal processes change and evolve and must be recognised as doing so. It is a strength.
Trial processes are a means to an end and not an end in themselves. The trial process has evolved to allow justice to be obtained. It is the role of the law and of courts to deliver justice. If the process can be questioned as to its efficacy in achieving justice in all circumstances then the question is valid and important. After all the steam engine served industry well but changing conditions saw its demise at the hands of the (arguably more “efficient” though vastly more polluting) oil engine. If the effective attainment of justice is the goal of the court then an equally valid question might be posited as regards the adversarial trial in circumstances such as these.
These strains are recognised, for example, by the Access to Justice Arrangements–Inquiry Report of the Australian Productivity Commission and in submissions made to that Commission by bodies such as ACT Legal Aid (calling for the Australian legal system to adopt aspects of the European “inquisitorial” court process and reduce reliance upon the “lawyer driven adversarial system”). Indeed, if lawyers are the drivers one might ask who is “driving” in the one third of cases with no lawyers.
I am concerned that in the absence of some attention to this issue and relevant and appropriate responses being made to the way parenting trials are conducted that fairness, justice and the best interests of children will inevitably be disadvantaged or perceived to be so. Moreover, such “unequal” trials, with unsophisticated and poorly prepared self-represented litigants conducting their own case against competent and experienced advocates (and I make it clear that counsel for the Respondent and Independent Children’s Lawyer had been most generous, accommodating and even-handed in their dealings with Mr Martin and no criticism is raised of them as they have acted properly and appropriately) have the potential to reflect the type of trials which led to the partial emptying of English slums through the conviction and transportation of self-represented working class criminal defendants in the late 18th Century and their involuntary deportation to Australia.
I am bound by my oath of office to “do right by all manner of people”. By the terms of that oath I am obliged to hear and determine cases which come before the Court and to do so in accordance with the law, both as legislated by Parliament and as defined by the common law. I am satisfied that I have done so in this case. I propose to do so in all others. However, the frustration which arises in seeking to “do right” to self-represented litigants such as Mr Martin when the preparation and presentation of his case is, with the greatest of respect to him, incompetent, is extreme.
Material considered
These proceedings were commenced by Mr Martin by an Initiating Application and Affidavit filed 16 May 2013. At the time that those documents were filed Mr Martin was legally represented. No interim orders were sought by Mr Martin. Accordingly, the Affidavit that was filed was intended to identify issues in dispute and nothing more. The Affidavit was not intended to be relied upon at trial nor intended to set out all of the evidence that would be relied upon in seeking relief sought.
The above Initiating Application and Affidavit are the only documents filed in these proceedings by Mr Martin and the only material relied upon by him. He was granted leave to rely upon them.
When Mr Martin took the witness box he was invited to give further, oral evidence. Mr Martin did not give any further evidence.
In the case of Ms Martin have read and considered each of the following documents, namely:
a)Response filed 26 June 2013;
b)Amended Response filed 29 August 2014;
c)Form 4 Notice of Child Abuse, Family Violence or Risk of Family Violence filed 26 June 2013;
d)Affidavit of Ms Martin affirmed 25 June 2013 and filed 25 June 2013; and
e)Affidavit of Ms Martin affirmed 29 August 2014 and filed 29 August 2014.
In Ms Martin’s case and relating to the discrete issue regarding the issue of a Costs Certificate I have also read and considered an Application in a Case and Affidavit filed 23 October 2014.
A case outline document was also provided by Ms Martin’s counsel setting out a chronology of events and an outline of submissions. That document has been read and considered.
A case outline document was provided by the Independent Children’s Lawyer and that document has also been read and considered.
Four exhibits have been tendered and considered comprising:
a)Exhibit A - A Family Report by Ms B dated 10 June 2014. Ms B was not required for cross-examination by either party or the Independent Children’s Lawyer.
b)Exhibit B - A Child Inclusive Conference Memorandum produced by Ms B 30 July 2013.
c)Exhibit R1 - Material produced on subpoenaed by (omitted) Primary School
d)Exhibit R2 - Material produced subpoena by the New South Wales Police.
In relation to the Family Report it is to be noted that Ms Martin (and the children) live with Ms Martin’s mother (the children’s maternal grandmother) Ms C. Ms C has not sworn an affidavit in these proceedings nor has she been called to give evidence. Ms C did attend the Family Report interviews. Paragraphs 40-45 inclusive of the Report set out that which is suggested to have been stated by Ms C.
During submissions I raised with counsel for Ms Martin and the Independent Children’s Lawyer the issues which might arise from the failure to call Ms C including but not limited to a possible Jones & Dunkel (1959) inference and Makita & Sprowles (2001) 52 NSWLR 705 issues. Those issues were raised with counsel as Mr Martin would not have been aware of his ability to do so. I will deal with those issues in more detail in a consideration of the evidence to which I will turn shortly.
I make clear that I have not read or considered the above paragraphs of the Family Report and, to the extent that it is clear from the Family Report that reliance has been placed upon anything stated by Ms C during the Report interviews (as suggested to be corroboration or otherwise) I have disregarded that material also.
Chronology of events
I propose to incorporate the chronology of events set out in the case outline document prepared by Ms Martin’s counsel. The chronology, whilst potentially partisan, is extensive and referenced to the evidence of Ms Martin.
Whilst the chronology is clearly prepared for the purpose of and to advance Ms Martin’s case, I am satisfied that reliance can be placed upon it as an accurate reflection of the chronology of past events as I, by and large, I accept Ms Martin as a witness of truth. Further, as her evidence has not been seriously challenged, I accept it and make findings of fact in accordance with it.
DATE
EVENT
EVIDENCE
(omitted) 1971
The Father, Mr Martin is born, presently 42
Mother’s Affidavit affirmed 25.06.2013 (“MA26.06.2013”)
(omitted) 1975
The Mother, Ms Martin is born, presently 39 years old
MA26.06.2013 P1p2
(omitted) 1997
The Mother and Father are married
Father’s Affidavit sworn 15.05.2013 (“FA15.05.2013”)
MA26.06.2013 P1p4
1999
The Father loses his temper and drives the couple’s (omitted) motor vehicle into the front gate of the maternal grandmother’s house at which they were residing
MA26.06.2013 P3p18
(omitted) 1999
X born, presently 14 years old
FA15.05.2013 P2p2
MA26.06.2013 P2p6
March 2001
The Father loses temper and throws a pair of pliers at the Mother, who was pregnant at the time. The pliers hit the Mother in the stomach and foot.
MA26.06.2013 P3p20
(omitted) 2001
Y born, presently 13 years old
FA15.05.2013 P2p2
MA26.06.2013 P2p6
April 2003
While the Mother was pregnant, the Father lost his temper and pushed the Mother causing her to fall
MA26.06.2013 P4p21
(omitted) 2003
Z born, presently 11 years old
FA15.05.2013 P2p2
MA26.06.2013 P2p6
(omitted) 2005
Police called to incident of an apprehended violence order. The mother was the named AV victim.
Report states that the couple were in the middle of separating. The father (POI) has been making threats of a sexual nature in front of the children. Reported that previously there had been physical abuse but recently only psychological. Mother requested an AVO.
Police documents produced under subpoena (sleeve 14)(Event ref # (omitted)
2007
The Father loses temper and, while the children were asleep, threw a glass at the Mother which smashed onto the floor. This woke and upset the children.
MA26.06.2013 P5p27-29
2007
Mother reports the Father’s violence to (omitted) police
MA26.06.2013 P2p11
2007
Mother takes children to live at maternal grandmother’s home for approximately 2 months
MA26.06.2013 P5p30
2007
Mother returns to the matrimonial home with the children, shortly after, the Father tells the Mother that he has gambling problem and has lost approximately $30,000.
MA26.06.2013 P5p32.
14.02.2007
Police report shows incident of further DV, apprehended violence order sought, father as a person of interest, mother and children victims
Police documents produced under subpoena (sleeve 14)(Event ref # (omitted)
2008
The Father commences counselling for his gambling addiction at Centre Care
MA26.06.2013 P5p34
2008
Father watches children while the Mother takes the Maternal Grandmother shopping. When the Mother returns, X tells her that the Father had made them sit on the couch the entire time and if they got off the couch he would hit the child. When X asked the Father if she could call the Mother, the Father slammed the phone down, grabbed her by the back of the head and threw her onto the bed screaming at her.
MA26.06.2013 P11p78
2009
Mother reports the Father’s violence to (omitted) police
MA26.06.2013 P2p11
07.02.2009
Police called, incident type was child/young person at risk, offence against another person, malicious damage. The father was a named person.
Report says that father said to the mother “I think I would be better off if you would drop dead.” Father throws against the wall near the mother’s head.
Mother the named victim
Police documents produced under subpoena (sleeve 14)(Event ref # (omitted)
18.02.2009
Police report shows incident of apprehended violence order with the father as a person of interest
Mother the named AV victim
Police documents produced under subpoena (sleeve 14)(Event ref # (omitted)
04.03.2009
Police report shows incident of apprehended violence order with the father as a person of interest
Mother the named AV victim
Police documents produced under subpoena (sleeve 14)(Event ref # (omitted)
2009
The Father ceases employment and receives worker’s compensation for “Mental Health Issues”
MA26.06.2013 P6p38
October 2010
Father stops providing mother and children with basic needs not providing money for food, electricity, water bills subsequently electricity and water cut off Mother and children eventually forced to move to Maternal Grandmother’s home.
MA26.06.2013 P8p59-60
October 2010
Mother states Final separation occurs between the Mother and Father living under one roof
MA26.06.2013 P1p5
October 2010
Mother commences employment as a (occupation omitted)
MA26.06.2013 P2p8
January 2011
Father states Final separation occurs
The Mother moves out of the former matrimonial home and refuses Father access to children
FA15.05.2013 P2p2
FA15.05.2013 P3p5
24.01.2011
Provisional AVO made by Mt Druitt Local Court against the Father
MA26.06.2013 P2p12
24.01.2011
Mother gives statement to police for the Father’s charges of assault and malicious property damage
MA26.06.2013 P2p13
24.01.2011
Police called for AVO with Father as person of interest
Incident found by police to be assault, child/young person at risk and malicious damage (CAN (omitted))
Mother the named AV victim
Police documents produced under subpoena (sleeve 14)(Event ref # (omitted))
25.01.2011
Father is charged by police with Common assault and destroy or damage property
Documents produced under subpoena to NSW Police, sleeve 15
January 2011
The Mother and Father argue about a phone bill at which time the Father slapped the Mother across the face, causing the Mother to fall. The children had heard the Mother and Father arguing and had entered the room to witness the Father slap the Mother.
The children became upset and the Father said words to them to the effect of “Shut up”.
The Father left the room and the Mother tried to call the police but the phone was dead. The Mother later found out that the Father had pulled the wiring out of the Telstra box.
From the episode, Z said words to the effect of “I’m scared. I am going to vomit.” After which he was physically ill. Y was crying and X kept saying “Everything is going to be OK.”
The Mother was too scared to drive with the children to the police station so she took the children to the Paternal Grandparent’s house. The Mother told the Paternal Grandmother and Paternal Aunt what had happened and the history of violence. The Paternal Aunt took the Mother to the police station.
MA26.06.2013 P6p42-44
MA26.06.2013 P7p45
MA26.06.2013 P7p46
MA26.06.2013 P7p49
MA26.06.2013 P7p50-57
31.01.2011
The Mother is given a Final AVO against the Father for a period of 2 years.
Mother the named AV victim
MA26.06.2013 P8p58
Police documents produced under subpoena (sleeve 14)(Event ref # (omitted))
02.03.2011
Father arrested and charged for stealing (CAN (omitted)) is given $400 fine
Documents produced under subpoena to NSW Police, sleeve 14
14.03.2011
Father charged at Mount Druitt local court with common assault and destroy or damage property. Given a 12 month Bond s9.
Documents produced under subpoena to NSW Police, sleeve 15
23.12.2011
Father ceases employment
FA15.05.2013 P3p3
February 2011
AVO made against the Father for a period of 2 years (expire February 2013)
FA15.05.2013 P3p5
23.01.2012
Police called, found incident of domestic violence (no offence) and child/young person at risk with the Father as person of interest
Mother was the named victim
Police documents produced under subpoena (sleeve 14)(Event ref # (omitted))
09.02.2012
Police called, found incident of domestic violence (no offence) and child/young person at risk with the Father as person of interest
Mother the named victim and responsible party for the children
Police documents produced under subpoena (sleeve 14)(Event ref # (omitted))
23.02.2012
Final Property Orders made between the Mother and Father
MA26.06.2013 P2p9
20.07.2012
Z tells his school counsellor that he could recall many instances of being hit and punched by the Father. On one instance he can remember the Father picking him up by his hair and throwing him.
Subpoenaed material from (omitted) Primary school, sleeve 13, tab 5
13.09.2012
Police called. Domestic violence (no offence) found with the Father as the named person.
Mother the named victim.
Police documents produced under subpoena (sleeve 14)(Event ref # (omitted))
11.10.2012
Z tells school counsellor that the Father is hanging around the school again causing him to feel scared.
Subpoenaed material from (omitted) Primary school, sleeve 13, tab 5
08.11.2012
Z tells school counsellor that the Father yelled out in the school yard “Hey I am your Father.”
Subpoenaed material from (omitted) Primary school, sleeve 13, tab 5
30.11.2012
Both Y and Z express to the school counsellor that they would absolutely not see their Father. Z said that he would be “Terrified” to see him.
Subpoenaed material from (omitted) Primary school, sleeve 13, Tab 5.
February 2013
AVO against the Father expires
FA15.05.2013 P3p5
February 2013
Divorce hearing between the Mother and the Father, divorce granted
FA15.05.2013 P4p11
27.02.2013
Z tells counsellor that he had seen the Father the day before outside the school parked near the Mother’s car staring at the children with an “angry look.” Z felt such anxiety that he threw up.
Subpoenaed material from (omitted) Primary school, sleeve 13, Tab 6
March 2013
Interim AVO taken out against the Father alleging that he was stalking the children at school
FA15.05.2013 P5p12
06.03.2013
Y and Z describe incident to school counsellor where the children and the Mother were driving to a dance class and the father was following in his car with the paternal grandfather.
Y also says that the Father had called the house at 3am and then every hour after that.
Subpoenaed material from (omitted) Primary school, sleeve 13, Tab 7
13.03.2013
X tell school counsellor “He hates me and he’s told me that.” Referring to the Father.
Subpoenaed material from (omitted) Primary school, sleeve 13, tab 8
20.03.2013
Z tells the counsellor that the Father has begun calling the house late at night and early morning and has been driving slowly past the house staring at them.
Subpoenaed material from (omitted) Primary school, sleeve 13, tab 8
27.03.2013
Y and Z tell counsellor of incident yesterday where they were riding their bikes with friends and the Father kept driving past causing them to go inside because they were scared.
Subpoenaed material from (omitted) Primary school, sleeve 13, tab 8
21.03.2013
Divorce of the Mother and Father becomes final
MA26.06.2013 P1p5
April 2013
Ms L (school counsellor at (omitted) School) contacts the Mother and says word to the effect “I am concerned about the children, they have all expressed fears about their Father.”
MA26.06.2013 P14p101
03.04.2013
Police called, incident of domestic violence (no offence) and child/ young person at risk. Father was the person of interest.
Mother named as victim.
Police documents produced under subpoena (sleeve 14)(Event ref # (omitted))
01.05.2013
Blacktown Local Court grants provisional AVO against the Father
X says to school counsellor words to the effect of “I hope an AVO is granted so we can have a break from always wondering if He will be waiting somewhere.”
MA26.06.2013 P2p15
(omitted) School Subpoena Documents, sleeve 13, tab 4.
04.05.2013
Father attends (omitted) Soccer Club to watch Y train. He did not approach Y and Y did not approach him. Father went to watch sons train each night after but the boys did not attend.
FA15.05.2013 P5p13
10.05.2013
Father asks the children’s soccer coach where they were and the coach tells him that the Mother would not be bringing them any more as the Father had been there watching.
FA15.05.2013 P5p13
17.05.2013
Ms L accompanies the Mother to police station to give statement regarding the children’s fears of their Father and his behaviour since separation.
Ms L also advised the Mother that due to the children’s disclosure she had to do mandatory reporting to DOCS
MA26.06.2013 P14p102
MA26.06.2013 P14p103
05.06.2013
Mother and children given Interim AVO against the Father
MA26.06.2013 Annex B
05.06.2013
Police issue AVO against the father. Order expired 17.07.2013
Mother named as victim.
Police documents produced under subpoena (sleeve 14)(Event ref # (omitted)
13.06.2013
The Father attends (omitted) Dance Studio. When X saw the Father she hid in the bathrooms and refused to come out until he left. The Father remained despite being asked to leave by the secretary.
MA26.06.2013 P12p86
13.06.2013
Police called. Incident was domestic violence (no offence) and child/young person at risk with the father as the person of interest. Mother named as victim.
Police documents produced under subpoena (sleeve 14)(Event ref # (omitted)
26.06.2013
Orders made by Judge Harman ordering CIC with family consultant and appointing an ICL
17.07.2013
Final hearing of AVO. Interim AVO expired
(The judge did not grant the final AVO but cautioned the Father to stay away from the children until the conclusion of the family law proceedings – occurred after the Mother’s Affidavit sworn and therefore not included.)
MA26.06.2013 P2p15
13.08.2013
Orders made by Judge Harman, ordering a family report
30.04.2014
The mother tells the school counsellor that following the children’s supervised time with the Father at Court, they were all visibly distressed and upset.
Subpoenaed material from (omitted) Primary school, sleeve 13
03.06.2014
Z tells the counsellor that the Father has been calling the house again late at night and early morning and that a friend told him they had seen the father driving around the house.
Subpoenaed material from (omitted) Primary school, sleeve 13
10.06.2014
Order made by Judge Harman for family report to be released
Discussion of evidence
I do not propose to enumerate and discuss each and every portion of the evidence. Suffice to say that each of the documents referred to above and the evidence given by the parties and each of them during their cross-examination has been considered.
I will briefly discuss the evidence of the parties and particularly by reference to the major issues that they have raised. I will also touch upon specific aspects of the evidence when appropriate and particularly when discussing the application of the legislation to the facts of this case.
A central issue in the proceedings is the suggested perpetration by Mr Martin of family violence.
It is to be noted that the children’s best interests are the paramount consideration and the case will be determined by reference to that paramount consideration. The centrality or otherwise of issues is not to conflate those issues with the paramount consideration. The issues that will be identified, including the somewhat central issue of family violence, speak to that paramount consideration and do not replace it.
What is clear from the chronology of events is that following the separation of these parties in October 2010 Mr Martin has not spent time or communicated in any meaningful or consistent fashion with the three children or any of them.
What is also clear from the chronology of events are the number of allegations of family violence and repeated police intervention with respect to those allegations. More concerning than the allegations themselves is the suggestion that incidents of violence have significantly impacted upon these children who are suggested, through a variety of sources, to express fear and anxiety with respect to their father.
In closing submissions counsel for Ms Martin opined that “there have been fathers who’ve done worse”. This submission was put, not to undermine Ms Martin’s case but to concede that the level of physical violence involved in many of the incidents referred to and relied upon in Ms Martin’s case were not extreme.
What is of profound significance in these proceedings is a consideration of:
a)The definition of family violence contained within section 4AB of the Family Law Act and its focus upon “coercive and controlling violence;”
b)The impact upon these children and Ms Martin of the suggested behaviours of Mr Martin. To borrow from the tortious jurisdiction “one takes one’s victim as one finds them” and thus a mathematisation of the level of violence is of little validity or assistance; and,
c)Mr Martin’s response to the allegations of family violence. This has involved a purported rebuttal on two bases, namely:
i)A complete denial of allegations save to concede that on one occasion Ms Martin was slapped and, with respect to that concession, an asserted justification on the basis of self defence or provocation; and
ii)The suggestion that the children’s reports of violence, fear and anxiety and their behaviours in response thereto are as a consequence of “brainwashing” by Ms Martin and her mother Ms C. No evidence was led by Mr Martin in support of this proposition or “theory” (as it was described by Ms Martin’s counsel in submissions). Ms Martin was not cross-examined with respect to the proposition and, in Mr Martin’s closing submissions and when asked “where is the evidence of brainwashing Mr Martin?” Mr Martin responded “there is none”.
The relevance of family violence to parenting proceedings
Family Violence is highly relevant to all that is done by the Court in parenting proceedings.
The Federal Circuit Court and Family Court have jointly devised and promulgated the Family Violence Best Practice Principles which discuss and emphasise the importance of family violence in both the Court’s work and the lives of adults and children.
The document commences with a statement of principles and which includes, to the extent relevant to proceedings before the Federal Circuit Court:
The Best Practice Principles recognise:
The harmful effects of family violence and abuse on victims
The place accorded to the issue of family violence in the Family Law Act
The consideration of family violence assumes relevance even before proceedings are commenced, being, as it is, one of the bases for exemption from attendance at or assessment of unsuitability for Family Dispute Resolution.
Once proceedings are commenced allegations of family violence trigger the Court’s obligations pursuant to section 67ZBB(2), namely:
(2) The court must:
(a) consider what interim or procedural orders (if any) should be made:
(i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii) to protect the child or any of the parties to the proceedings; and
(b) make such orders of that kind as the court considers appropriate; and
(c) deal with the issues raised by the allegation as expeditiously as possible.
Family violence is otherwise raised as a consideration or the trigger of action in sections 60B, 60CC, 60CF, 60CG, 60I, 60J, 61DA, 65F, 67Z, 67ZA, 67ZB, 67ZBA, 67ZBB, 68B, 68C, 68N-68T, 69ZN and 69ZW. The term “Family violence” is used more often within Part VII of the Family Law Act that any other expression. This reflects both its importance in decision making and its impact upon children.
The definition of “family violence” as contained in section 4AB is both broad and connected with the definition of abuse in section 4 of the Act.
Since June 2012 family violence has focused specifically upon “coercive controlling family violence” (which phrase and typologies of family violence types are not in themselves helpful nor specifically considered for this determination). One might consider JB Kelly, MP Johnson, ‘Differentiation Among Types of Intimate Partner Violence: Research Update and Implications for Interventions’ (2008) 46 Family Court Review 476 as referred to in the Best Practice Principles.
The definition of Family Violence is in the following terms:
For the purposes of this Act, family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful.
Examples of behaviour that may constitute family violence include (but are not limited to):
an assault, or
a sexual assault or other sexually abusive behaviour, or
stalking, or
repeated derogatory taunts, or
intentionally damaging or destroying property, or
intentionally causing death or injury to an animal, or
unreasonably denying the family member the financial autonomy that he or she would otherwise have had, or
unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support, or
preventing the family member from making or keeping connections with his or her family, friends or culture, or
unlawfully depriving the family member, or any member of the family member’s family, of his or her liberty.
For the purposes of this Act, a child is exposed to family violence if the child sees or hears family violence or otherwise experiences the effects of family violence.
Examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family, or
seeing or hearing an assault of a member of the child’s family by another member of the child’s family, or
comforting or providing assistance to a member of the child’s family who has been assaulted by another member of the child’s family, or
cleaning up a site after a member of the child’s family has intentionally damaged property of another member of the child’s family, or
being present when police or ambulance officers attend an incident involving the assault of a member of the child’s family by another member of the child’s family
The Family Law Act 1975 recognises that family violence may be a form of abuse and to this end there is some degree of overlap between the definition of family violence in section 4AB and the definition of abuse in section 4 which definition is in the following terms:
abuse, in relation to a child, means:
an assault, including a sexual assault, of the child, or
person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person, or
causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence [emphasis added], or
serious neglect of the child.
In this case both family violence and abuse are alleged and I am satisfied and so find that both are made out.
In dealing with allegations of family violence and their proof, the Full Court of the Family Court stated in Amador & Amador (2009) 43 Fam LR 268:
Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission.
The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted.
The above statement is of some particular importance in this case as:
a)The children did witness family violence including physical and verbal violence directed towards the mother in their presence, hearing or perception; and
b)There is corroborative evidence in the nature of contemporaneous reports to the Police, Police attendance and observation (and recording) of events as well as the children’s disclosures to school counsellors of their exposure to family violence.
In light of the above evidence I am satisfied and so find that there has been family violence.
The children, and especially Z, are reported to be experiencing significant anxiety and distress. These reports are contained in the evidence of the mother, the school counsellor’s notes and in the reportage of the children’s interviews with the Family Consultant. All three children are reported clearly, (and as regards the Family Report and as I will address in more detail shortly as regards the children’s views) as rejecting a relationship with their father based on their lived experience and memories of their father’s violence towards them and their mother and, more significantly, being afraid of their father. In the case of Z this extends to nausea and physical distress at the prospect of seeing his father.
On the basis of the above evidence and the evidence in its totality, I am satisfied that the children and especially Z have experienced serious psychological harm as a consequence of exposure to family violence and that there would be, in the future and if time between the children were to be ordered an unacceptable risk, of further psychological harm.
On the basis of this finding I am satisfied that both family violence and abuse are established.
As regards the finding of family violence I am concerned that this is also, post separation, established by Mr Martin’s behaviours including:
a)Driving by the children’s home slowly and looking at the children but not seeking to engage with them in any way. When challenged as to why he would do this Mr Martin responded “there is no law that says I can’t drive by”;
b)Refusing to contribute financially by way of child support or contribution to the children’s private school fees. Mr Martin, when cross-examined on this issue, responded “if I don’t see the kids I don’t see why I should pay. I have no control”;
c)Phoning the mother’s home each day at a particular time and continuing to do so over an extended period in the full knowledge that the calls would go unanswered. In addition Mr Martin called in the middle of the night and sent abusive and angry texts;
d)Seeking out the mother’s father (from whom she is estranged) and texting the mother about this. For example, the evidence makes clear that in recent times Mr Martin has communicated with Ms Martin’s father, sent him a copy of the parties’ wedding video and threatened Ms Martin that he would call the father as a witness. There could be no basis whatsoever for Mr Martin to call the paternal grandfather as a witness as he has never met these children. When cross-examined with respect to that threat Mr Martin responded to the effect “I wanted her to know what she’d have to deal with”. As indicated, there could be no direct purpose for calling the paternal grandfather and I am satisfied, consistent with Mr Martin’s evidence, that the “threat” was purely to intimidate and unsettle Ms Martin; and
e)Attending football games and dance classes the children are participating in and not seeking to interact with them but his attendance causing alarm to the children, Ms Martin and other parents and children.
The essential nature and importance of family violence is gauged by the impact upon the victim. There need not be physical violence or ongoing family violence. Family violence can be far more subtle and insidious than physical assault and yet still effective or perhaps more effective in achieving its purpose of coercion and control. Subtle reminders to the mother and these children of the father’s presence and that which has occurred in the past and is capable of being perpetrated in the future is enough.
The reactions reported by and described of these children in hearing mention of their father makes clear that supervision is not a cure or remedy. There is and can be profound impact upon the victim of violence by exposure to their abuser (and family violence is most assuredly a form of abuse). To impose supervision in a matter such as this would be:
a)Artificial. The children do not desire a relationship and have articulated their reasons for this. I am satisfied (as will be discussed) that the children’s reasons are well thought through and independent;
b)To re-traumatise these children. It is suggested that physical symptoms are experienced by the children at the mention of their father or the suggestion that they physically meet him let alone the reality of such a meeting;
c)Entirely contrary to their clear articulated views;
d)Potentially injurious to the mother’s capacity to care for the children or continue her meaningful relationship with them; and
e)Contrary to the children’s best interests.
Coercive and controlling family violence is a form of terrorism. The Collins English dictionary defines “terrorism” as:
“Systematic use of violence and intimidation to achieve some goal.”
If one considers the definition of “terrorise” (the verb connected with and underscoring the noun and accepting that a terrorist is someone who terrorises) then that offered by the Macquarie dictionary is an accurate description of the father’s actions:
“To fill or overcome with terror; to control or force by the use of terror.”
The goal to be achieved by the father is personal rather than political. However, his coercive and controlling behaviours are and remain “terrorism”.
The father’s drive-bys, repeated early morning calls and attendance at events with no attempt to interact with the children and no intent other than to ensure that the mother and children see he is there and that they are powerless to restrain him, is terrorising for this mother and these children. It is family violence. Those actions are intended to and result in the mother and children being unsettled, made fearful, made to feel unsafe (including in public places and their own home), intimidated and controlled. The father’s actions signal to the mother and these children “Don’t relax. I am still here. You are powerless to stop me.”
These behaviours by the father might well be viewed, as Mr Martin urges, as an innocent attempt to “see” the children. However, I reject that interpretation in preference to the alternate explanation of those behaviours as part of an ongoing campaign of intimidation and stalking by Mr Martin. He has made clear that the intention of attending was not to interact or practice a relationship with the children but to remind them (and the mother) that he could attend whenever he wished, an inherently coercive and controlling behaviour.
I am satisfied that the above conclusion is also supported by that reported of Ms Martin at paragraph 38 of the Family Report namely:
Ms Martin reported current concerns regarding family violence and said “I feel like I’m being followed by him”. She stated that, recently, her mobile had been ringing as soon as she returned home “is if to say ‘I know you’re home’”. Ms Martin also said that Mr Martin seemed to know her whereabouts all the time.
As regards telephone calls Mr Martin has, for the period that the practice applied, phoned each day at the same time with the certain knowledge that his calls would not be answered. I am concerned and satisfied that these behaviours by Mr Martin were more directed towards ensuring that Ms Martin and the children knew he could approach them and contact them when he wished, that he would not and could not be constrained. The behaviour had less to do with interacting with the children than unsettling the peace of Ms Martin and the children and to ensure they could not relax or feel free of anxiety.
The Best Practice Principles provide that they are “…a voluntary source of assistance to judicial officers and legal practitioners and are not a fetter to a court’s discretion (Cameron & Walker (2010) FLC 93-445). These Best Practice Principles are not a substitute for evidence in individual cases”.
I make clear that to the extent that I have and will now, again refer to the Best Practice Principles, I do not consider them a substitute for evidence. The Principles are not evidence but a helpful document for informing and applying the legislative provisions to the facts of the case and providing, to some extent, a lens through which the evidence might be examined and put within its proper context.
The Principles make specific reference (at footnote 25) to the “ Sturge & Glaser report, which discusses the effect on children of being exposed to domestic family violence and the circumstances in which a child should have no contact with a parent who has used or exposed the child to family violence, referred to in Re L Contact: Domestic Violence [2000] 2 FLR 334 (UK case).” In reliance thereupon the Principles offer the following:
The following factors are likely to be central to the determination of whether the Court should order that a child does or does not spend time with a parent against a specific finding has been made of family violence or abuse (or whom the Court considers poses a risk to the child of future exposure to family violence or abuse):
i. The effect of the family violence or abuse on the child.
ii. The effect of the family violence or abuse on the parent with whom the child is living.
iii. The degree of insight or motivation of the parent against whom a finding of family violence or abuse has been made. In particular, is that parent motivated by the child’s best interest or a desire to either intimidate or control the other parent?
iv. Where a parent who has been found to have exposed a child to family violence and wishes an order to be made to spend time with that child:
o the degree of acknowledgement by that parent that family violence has occurred
o whether that parent has accepted some or all of the responsibility for the violence
o the extent to which that parent accepts that family violence was inappropriate and the degree of insight exhibited of the likely ill-effects on the child of such behaviour
o has the parent concerned expressed regret or remorse for his or her behaviour?
o does the parent concerned recognise that he or she has been an inappropriate role model for the child concerned?
o has the parent concerned participated, or are they willing to participate, in any program or course of treatment designed to prevent a recurrence of family violence by him or her in future?
o does the parent concerned have the capacity to sustain an ongoing arrangement to spend time with the child and is he or she genuinely interested in the child’s welfare?
o does the parent have any understanding of the impact of his or her behaviour on the other parent concerned, both in the past and currently?
o the capacity of the parent found to have been the perpetrator of family violence to provide adequate care for the child, and
o the nature of the relationship between the child and the parent found to have been the perpetrator of family violence.
v. In cases where the Court is considering that the child have limited or no time with the parent concerned:
o what will be the effects on the child of a deprivation of relationship with that parent?
o what will be the consequences for the child of losing the opportunity to know that parent at first hand?
o what will be the consequences for the child of losing the opportunity to know grandparents and other relatives on that parent’s side of the family?
o what will be the consequences for the child of losing the opportunity to interact with a parent who loves him or her and is able to provide some benefits for the child concerned?
o what will be the consequences for the child and parent concerned of being deprived of the opportunity to repair their relationship and undo the harm done as a result of the parent’s violent behaviour?
o will such an outcome diminish the prospect of the parent and child reconnecting when the child is older and more able to make a mature and personal decision about whether he or she wishes to have a relationship with that parent in future?
vi. What are the views of any child concerned in respect of spending time with a parent who has been found to be violent and what weight should be given to those views?
I have already touched upon the effect of violence upon these children (and to a lesser extent Ms Martin).
As regards the degree of insight and acknowledgement of Mr Martin (against whom a finding of family violence has been made) one need look no further than his brief and frugal cross examination of Ms Martin. None of Ms Martin’s allegations of family violence were challenged. Mr Martin instead sought to focus upon:
a)Eliciting from Ms Martin a concession that she had smacked the children. One was forthcoming. The allegations regarding Mr Martin’s striking of the children go well beyond issues of reasonable parental chastisement and yet it was clear that Mr Martin sought to establish some parity or equality of actions between her and Ms Martin. I do not accept this as established;
b)Eliciting from Ms Martin a concession that she had been struck by her mother. One was forthcoming. The forensic purpose of seeking this concession was entirely unclear. I can only assume that the concession was sought to establish that Ms Martin was “used to” being struck and that Mr Martin’s actions are thereby lessened. If that was the intention then that proposition is false, insightless and as outdated and misogynistic as the reference in Noel Coward’s “Private Lives” that “Certain women should be struck regularly, like gongs”. It would appear that Mr Martin was suggesting that Ms Martin would not or should not have been significantly affected by any violence directed towards her by Mr Martin or perhaps that Ms Martin was under the control and influence of her mother and thus allowed and permitted Ms C’s campaign of “brainwashing” and/or joined it that campaign. If either proposition were intended I reject them;
c)Eliciting from Ms Martin a concession that she had jammed Mr Martin’s fingers in a door and this was the reason for his “reaction” of slapping Ms Martin hard across the face and yelling at her “dumb bitch”. No such concession was made. Even if such a concession had been made I would not have accepted, as Mr Martin urged me, that he had been “provoked” into this action. His action or, on his version, “reaction”, is controlled by him and entirely his responsibility. Mr Martin’s inability to acknowledge this (and noting that the assault upon Ms Martin occurred in the children’s presence) causes me real concern as to Mr Martin’s ownership of his own behaviour.
A further example of the absence of insight and acknowledgement is found in the portion of the Family Report addressing the children’s introduction to and observation with the father. It warrants inclusion in its entirely:
Observation of X, Y and Z with Mr Martin
79. The children accompanied the family consultant to the observation room and entered the room without looking at Mr Martin, who was seated on a sofa; the family consultant remained in the observation room. The children walked to the far side of the room with Z and Y sitting at a table facing away from Mr Martin and X standing facing the boys and Mr Martin, but looking down at her mobile. Mr Martin made no attempts to interact with the children and the children appeared to be pointedly ignoring Mr Martin, playing on their mobiles.
80. Mr Martin subsequently asked the report writer if he could speak to the children and it was confirmed that he could. Mr Martin stated “hi kids” and the children did not respond. He subsequently called X’s name a number of times; she did not respond and continued to look down at her mobile and Z and Y. Mr Martin asked the children if they wanted to see him and X said they did not. He queried why and X state this was because he had hit the children. Mr Martin denied this and Z stated, in a sarcastic tone “Oh yeah”. The children all appeared to become upset and referred to incidents that had allegedly occurring during the relationship.
81. Mr Martin repeatedly asked the children if they did not want to see him and the children adamantly responded that they did not. One of the children, it was unclear who, stated that they “hate[d]” Mr Martin. Mr Martin stated t the children that they had been told what to think and the children adamantly and vocally denied this. X became further distressed, crying heavily, and stated in response to Mr Martin’s attempts to engage the children regarding their previous experiences of him, “you knew nothing about me”. The observation was terminated due to the children and Ms Martin presenting as distressed and upset. The children return to the Court childcare while Mr Martin was briefly spoken to regarding his experiences of the observation.
82. Mr Martin reported that the children usually ignored him when he saw them. He identified that his proposals had not changed and that he wanted to have a relationship with the children. When asked if there was anything he would have done differently in the observation, Mr Martin said that he “wanted to find out how [the children] feel” and that the children did not usually speak to him and it was the first time he had heard the children’s voices in three years.
I am satisfied that:
a)Mr Martin has perpetrated coercive and controlling family violence upon Ms Martin both during the relationship and following separation;
b)The children and each of them have been, at best, harshly and unnecessarily physically chastised by Mr Martin. At worst, and as would be consistent with Mr Martin’s evidence, Mr Martin has physically struck the children whilst angry and as a consequence of his anger;
c)Mr Martin has damaged property including, on at least one occasion, punching a whole in a wall of the former matrimonial home whilst verbally abusing Ms Martin;
d)The children have been exposed to repeated, loud and frightening verbal altercations between Mr and Ms Martin. The evidence also makes clear that the children have been exposed to similarly loud and frightening verbal altercations between Ms Martin and her mother Ms C. Ms Martin concedes this, as well as its impact (negative) on the children;
e)The children have been exposed by Mr Martin to his anger and violence;
f)As a consequence of the above exposure the children have suffered, at least, emotional harm if not psychological harm. Each of the children have, at different times, attended counselling to address these concerns. Ms Martin’s evidence, both in her affidavit material and in that reported in each of the Child Inclusive Conference Memorandum and the Family Report, is littered with references to the children’s reactions when their father has been present or mentioned.
Children’s views
The three children have participated in two forensic interview processes, being the Child Inclusive Conference 30 July 2013 (exhibit B) and the Family Report interviews 22 April 2014 (exhibit A).
At the time of the Child Inclusive Conference the children and each of them expressed clear views.
X (then 13 years and 9 months of age) is reported as follows:
When asked about Mr Martin, X stated that he was a very violent man and that, when he became angry, he would hit her, her siblings and Ms Martin. She indicated that, during her parents’ relationship, Mr Martin would take issues that he had at work out on her, her siblings and Ms Martin when he returned home. X also indicated that Mr Martin tended to blame Ms Martin and said that everything that Ms Martin did was wrong in Mr Martin’s view. X said that Mr Martin never wanted her and her siblings to do anything other than sit. She said that, if they did not follow Mr Martin [sic] orders, he would hit them and referred to him having hit her with a vacuum cleaner.
Y (then aged 12 years and one month) is reported as follows:
Y spoke positively about Ms Martin and stated that she had always been supportive and cared for him, commenting that this was unlike Mr Martin. Y spoke positively about his activities with Ms Martin and said that she was good to talk to and supportive. Y identified no negative attributes regarding Ms Martin but reported concerns that Ms Martin became upset due to Mr Martin’s behaviour. He referred to Mr Martin “stalking us” and said that Ms Martin was scared. Y also reported that Mr Martin drove past their home, stopping to look, and frequently phoned the house between 12 midnight and 4am.
When discussing Mr Martin, Y stated “I don't really know that much about him” but also stated that he had experienced him as scary. He referred to an incident when Mr Martin became angry while driving and drove in a manner such that he (Y) bumped his head on the window. Y reported that Mr Martin’s sister died when she was three years old and that, on the anniversary, Mr Martin did not attend family celebrations but started arguing with Ms Martin and smashed things. Y also reported that, when Mr Martin was caring for him and his siblings, Mr Martin had been angry with him when he was playing and had hit and kicked him. He stated that he sometimes told Ms Martin about the incidents but that Mr Martin had told him not to tell Ms Martin.
When asked about any positive experiences of Mr Martin, Y reported that he and Mr Martin had previously gone fishing together but said that Mr Martin would never let him fish. He also stated that Mr Martin had previously taken him to the shops to look at toys but indicated that Mr Martin had stolen items while he was looking at the toys. Y identified no positive attributes of Mr Martin and stated that Ms Martin thought that the best things that came out of Mr Martin was him and his siblings.
When asked what he thought Mr Martin could do to improve the situation, Y stated that previously, Mr Martin could have “let me be a kid”. When asked what Mr Martin could do currently, Y stated that he “can't do anything” and added “I don't want him”.
Y stated that, if the Court Ordered that he spent time with Mr Martin against his wishes, he would feel a bit better if the time was supervised but reiterated that he did not want to spend time with Mr Martin. Y stated that he would feel really upset if he was to spend unsupervised time with Mr Martin. Y also stated that he would be really happy if it was ordered that he spent no time with Mr Martin. He indicated that he would not want to receive letters, cards or presents from Mr Martin and stated that Mr Martin sending these “wouldn't change the fact that I hate him”. Y stated a number of times during interview that he had forgiven Mr Martin heaps of times previously.
Z (then aged 10 years and one month) is reported as follows:
When asked about Mr Martin, Z stated that he felt really scared and reported that Mr Martin had previously hit him for no reason. Z said that he felt sick when he saw Mr Martin and that his stomach felt like he was going to throw up. Z identified that he was scared that Mr Martin might “try to get me” and clarified that he thought Mr Martin might try to grab him. Z provide a very limited information regarding Mr Martin and denied that he had any positive memories regarding Mr Martin. Z reiterated that Mr Martin had previously hit him and also reported that Mr Martin had screamed at him. However, Z was also unable to provide further information regarding this.
Z stated that it would be “not good” if he spent time with Mr Martin and stated that Mr Martin would “keep on hitting us and swearing at us”. He stated that Mr Martin had sworn at him during the relationship if he did not do what Mr Martin asked and provide a narrative regarding Mr Martin swearing at him when he was attempting to assist Mr Martin to fix a fishing rod. Z stated that he would feel good if it was decided that he spent no time with Mr Martin and said that he would feel scared if he spent unsupervised time with Mr Martin.
By the time of the Family Report interviews, some 9 months later, the children’s views were similar if not more strident. The children’s views, appropriately having regard to the ages, are elicited and discussed at length.
The Report of the interview with X commences by observing her as “… articulate and somewhat forthright during interview, also appearing teary and upset at times, particularly when discussing reported incidents involving Mr Martin”.
X confirmed that she continued to spend no time with the father. She then indicates:
Mr Martin “comes around school and home and that”. She stated that Mr Martin stood, with his arms folded in, the waiting area near her school, called out to and her siblings’ names and walked towards them. X stated that she felt “horrible” about this and that she hated it and it “makes me feel like I can’t be free”. She said that she had to “look everywhere to see if [Mr Martin was] there.”
X is then reported as providing a detailed narrative of past incidences of family violence and Mr Martin’s anger. She describes herself as having stood up for her mother during incidents of family violence. X is then reported to have “spoke [n] negatively about Mr Martin describing him as “angry, secretive [and] aggressive””.
X is, again, able to recall positive memories of her father. When asked about any changes she would like made by her father she included “not hit us”.
When asked directly about her views X “stated that she wanted to stay with Ms Martin and did not want to see Mr Martin at all. She said the Mr Martin had “hurt me permanently [and] can’t take back what happened.” X appeared teary when discussing this and stated that Mr Martin’s reported behaviour towards her “affects me now””.
X is otherwise reported to have given “… a small smile and stated that she would feel “safer [and] free” if it was determined that she spent no time with Mr Martin and added that she would feel “a lot happier”. X said “I’d end up being depressed” if it was ordered that she spend time with Mr Martin and again appeared teary. Further, “she reported that she had experienced nightmares thinking about what would happen if she spent time with Mr Martin.”
As regards the concern expressed by Mr Martin that the children had been “brainwashed” it is to be noted that X:
…said that Ms Martin told her and her siblings that Mr Martin was “still our dad” and that they could see him if they wanted. She identified that Ms Martin was “scared” of Mr Martin and attributed this to the look on Ms Martin’s face when Mr Martin “comes around.” X stated that Mr Martin “just wants to make us feel uneasy” and reported that he had felt he “had power over us” during the relationship and wanted this back.
The above portions of that related and reported with respect to X gives me confidence that the findings made above are both accurate and in accordance with X’s perceptions.
The interview with Y commenced with him reporting concerns regarding ““phone calls at night that we get from [Mr Martin]”...and said that these occur daily between midnight and 3am”. Y also said of his father that he had ““seen him around” because Mr Martin attended his school.” He reported that Mr Martin drove around his school and sometimes went into Z’s school and “stare[d]” at Z. Y also stated that Mr Martin sometimes called out his and his siblings’ names and said “I’m still your father”. Further, “Y identified that he felt “scared and nervous” when Mr Martin attended the schools or house and attributed this to having a “terrible past with him” and being scared Mr Martin would behave this way again”. Examples are then related of what is meant by the “terrible past”;
Y reported that, when angry, Mr Martin has “hit us”, “smash[ed] things” thrown things, broken windows and threatened to break expensive items.
Y was unable to identify any positive memories of his father and spoke negatively of him describing him as “scary, angry and a terrible family” and reported that his father had “… hit him and his siblings, smashed his toys, “been mean to us” and “stalks us”. On occasions when Y had seen his father at his soccer games he described that he had “… felt “scared” and as though he “sort of lose[s] my breath””.
When asked to express a clear view Y stated that:
…he would feel “a lot happier” if it was determined that he spend no time with Mr Martin. He said that Ms Martin, X and Z would be happy too and that Ms Martin’s stress would “go away”. Y stated he would feel “a lot angrier as a person” and very upset if it was determined that he should spend time with Mr Martin. He said of this “I wouldn’t go” even if it resulted in negative consequences for Ms Martin.
Z similarly complained of Mr Martin attending at his school and said of these attendances that “… he felt “really scared” and “I feel like trapped [sic]””.
As regards his views the following is reported:
“When asked about his views regarding spending time with Mr Martin, Z stated “I never want to see him at all”. He attributed this to Mr Martin being “really mean [and] scary” and reported that Mr Martin had previously argued over little things and the arguments had gotten bigger and bigger… Z said that he would feel “more happy” if it was determined he should spent no time with Mr Martin because he would know he was safe with Ms Martin. He added that he “wouldn’t have to be in hell” if he did not spend time with Mr Martin. Z attributed this to Mr Martin having previously “scream [ed] at or hit him if he did not do what he wanted…Z stated that he would feel “sad” if it was determined that he should spend time with Mr Martin because he would know that Mr Martin’s reported behaviour was going to reoccur… He said that he had “had enough” and that he felt scared “every second”.
As indicated at the outset of this discussion of evidence I do not propose to canvass each and every portion of the evidence. It has all been considered and I will refer to further specific portions of the evidence in discussing the legislative pathway to which I now turn.
Legislative pathway
As section 60CA of the Act reminds the Court must, in all that is done in parenting proceedings, treat as paramount the best interests of the children the subject of the determination.
The Court must then turn to section 60B of the Act setting out the objects and principles. Whilst the objects and principles do not form part of the substantive law to be applied to the facts and circumstances of any case they assist the Court by informing the manner in which those provisions should be applied and interpreted and creating, as it were, philosophical considerations which the Court must keep in mind and achieve where possible and save where it is demonstrated to be contrary to the children’s best interests.
The objects and principles provide as follows:
Objects of Part and principles underlying it
(1)The objects of this Part are to ensure that the best interests of children are met by:
(a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
(2)The principles underlying these objects are that (except when it is or would be contrary to a child's best interests):
(a)children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b)children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c)parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d)parents should agree about the future parenting of their children; and
(e)children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
The objects and principles would support the relief proposed by the Independent Children’s Lawyer and the mother.
Whilst the objects and principles do not form part of the substantive provisions to be applied to the facts and circumstances of the case, they warrant some brief attention.
There is a real issue in this case as to the children’s protection from psychological harm. The children and, in particular, the two eldest children, each describe real and overt impacts on them, their happiness and functioning of both past behaviours and the recollection of those behaviours. Importantly, the father’s behaviours, as reported by the children post separation, if true would have a significant reinforcing effect on the children’s negative recollection and perception of their father.
That each of the children have described how they feel they would emotionally respond to any requirement for them to spend time with their father (whom they recall as a perpetrator of violence and demonstrator of anger both towards their mother in their presence, hearing and towards them directly) causes some significant issue and cause real doubt as to the extent that the children would benefit from involvement with their father let alone meaningful involvement.
As regards the children’s right to know and be cared for by each of the parents it is an inescapable reality that these children express a clear and strident desire to spend no time with their father and practice no communication with him. Again, the two eldest children report distress at the recollection of their father the alone the prospect of interacting with him.
As regards the children’s narratives in interview with the Family Consultant (paragraph 89) it must be noted that the children’s narratives, with each other and with their mothers, are:
similar in content to information provided at the Child Inclusive Conference… It is possible that the similarities are due to the children providing accurate accounts of their shared lived experiences during both family report and CIC interviews. However, the possibility of the children’s narratives have been influenced, either wholly or in part, cannot be excluded.
As set out above Mr Martin concedes that there is, before the Court, no evidence to support his assertion that the children have been “brainwashed”. To the extent that it is possible that the children’s narratives have been “influenced” by their mother, I am satisfied that there is nothing to suggest other than that the children’s views have a substratum of fact, founded in the children’s lived experience of their father, which is relied upon by the children and each of them in expressing their views.
It may well be, and I accept that it is possible if not probable, that Ms Martin and/or Ms C have had some influence or impact upon the strength of the children’s views. I do not doubt that conversations have occurred between the children and Ms Martin regarding the father’s behaviours and that this is both a means by which the children have obtained information and by which the force by which the children’s views are expressed is impacted. If nothing else it is likely, if not probable, that Ms Martin has kept alive in the children’s minds the negative events which they recall involving their father and that Ms Martin has transferred her stress to the children or contributed to and compounded the children’s stress.
The above matters are not, by and of themselves a criticism of Ms Martin. Ms Martin, as a consequence of Mr Martin’s behaviours towards her, would have been genuinely and reasonably distressed. On some or all of these occasions of distress Ms Martin has had the children in her care. Ms Martin might be criticised for failing to shield the children from her open displays of distress and dislike, if not hatred for Mr Martin. However, it is inescapable that these children would have been impacted by witnessing and perceiving the abuse of their mother by their father and their mother’s subsequent distress. This is all the more so having regard to the closeness of their relationship with their mother, Ms Martin having always being their primary carer and having always provided the predominance of care to them.
This position, I am satisfied, is supported by the Family Consultant’s unchallenged Report and especially that found at paragraph 94:
…Mr Martin and Ms Martin both attributed responsibility for the ruptures in the children’s relationships with Mr Martin to the behaviour of the other and demonstrated no understanding of any contribution of their own behaviour. It is likely that the breakdown in the children’s relationship with Mr Martin is due to a combination of factors including the behaviour of both parents, the children’s experiences of both parents, Ms Martin’s willingness to support the children to have a relationship with Mr Martin and the poor parenting relationship between Mr Martin and Ms Martin.
Whilst I accept the above position and concur with the Family Consultant that Ms Martin has made some contribution to the deterioration in the children’s relationship with the father, I am satisfied that the most significant cause of the deterioration in the father-child relationship has been Mr Martin’s behaviours and his failure to address or change those behaviours.
Such is the level of trauma experienced by these children and each of them through exposure to their father’s anger and violence (albeit that this has been primarily verbal outbursts rather than repeated significant, physical assaults) that their memory of their father is contiguous with that violence. From the children’s perspective and as regards the impact of behaviour there is nothing to be gained from differentiating physical and non physical violence. They are significant, profound and damaging.
To this end the Family Consultant has opined:
Exposure to domestic violence of this nature is known to have a detrimental impact on children (referencing “In the name of the child: A developmental approach to understanding helping children conflicted and violent divorce” by Johnston, J, Roseby, V and Kuehnle, K (2009));
and
If it was determined that there was veracity to the allegations [of family violence], the children are likely to experience spending time with Mr Martin as difficult. This may result in the children experiencing emotional and/or behavioural difficulties, including anxiety
I am satisfied that there is veracity to the allegations of family violence and I accept as probable the consequences alluded to above which are, to a large extent, already apparent in the children’s presentation, expression and behaviour.
Next I must to section 61DA of the Act and determine whether the presumption of equal shared parental responsibility applies and, if it does apply, determine whether the presumption is rebutted.
Section 61DA provides:
61DA Presumption of equal shared parental responsibility when making parenting orders
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Note: The presumption provided for in this subsection is a presumption that relates solely to the allocation of parental responsibility for a child as defined in section 61B. It does not provide for a presumption about the amount of time the child spends with each of the parents (this issue is dealt with in section 65DAA).
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b) family violence.
(3) When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4) The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
As I have made a finding that the father has perpetrated family violence upon the mother the presumption does not apply. There are clearly reasonable grounds to believe that a parent (Mr Martin) has perpetrated family violence.
Lest I am wrong as regards the above finding I make clear that I am satisfied that it would not be in the interests of the children for the presumption to apply and it would be rebutted. There is no communication whatsoever between the mother and father and no realistic prospect that communication could effectively occur in the future. Accordingly, equal shared parental responsibility would be, if nothing else, impractical. Without communication the parties could not consult, communicate and make a genuine effort to resolve major issue decisions as section 65DAC of the Act would require if an order for equal shared parental responsibility were made.
I will, in due course, make an order for sole parental responsibility as is sought by Ms Martin and as is supported by the Independent Children’s Lawyer.
As the presumption of equal shared parental responsibility does not apply I am not obliged, by reference to section 65DAA, to consider equal, substantial or significant time. I am not precluded from considering such arrangements, although they are not sought by either parent. I propose to consider all time arrangements at large by turning to and considering each of the matters addressed by section 60CC and incorporating therein section 65DAA (5) of the Act.
Primary considerations
The primary considerations are:
(2) The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
The need to protect children is prioritised above all else by subsection (2A). In particular the need to protect children is prioritised over the . potential benefit to a child of a meaningful relationship with both parents
I am not satisfied that a benefit to these children from a relationship with their father is established.
The children do not, at present, have a relationship with their father let alone a relationship of meaning. The children are expressed, in each of the family counselling reports prepared, to have difficulty in recalling positive memories of their father. The children and each of them have expressed negative memories of their father, coupled with negative feelings and attitudes towards him.
Each of the children are described as rejecting their father. Perhaps more significantly each of the children has described some degree of emotional reaction to their father in discussions of him, including, suggestion that such reaction extends to, incorporates and includes physical reaction.
In those circumstances, I am not satisfied that the children presently enjoy a relationship of meaning with their father. I am not satisfied that it is reasonably foreseeable that such a relationship could be established. Finally, I am satisfied that there is a risk to the children’s emotional safety of seeking to implement and force an arrangement upon these children having regard to their ages, their clearly related past, lived experience of their father, their fear of their father as expressed by each and their active, strong rejection of their father.
In light of that stated by the children and each of them as to their present anxieties in recalling and discussing their father and their physical and emotional reactions on occasions when they have seen him at their school or extracurricular activities, at their home or when he has phoned, I am concerned that the children may well experience emotional if not psychological trauma if, contrary to the views and wishes, an attempt was made to force them to spend time with their father.
This view is reinforced by that opined by the Family Consultant at paragraph 102, namely:
Given the assessed limitations in Mr Martin’s ability to appropriately identify and meet the children’s needs and repair the ruptures in the children’s relationships with him, significant concerns are raised regarding the children’s emotional well-being if they were to spend time with him. It is would (sic) therefore not be recommended that the children spend time with Mr Martin unless this was initiated by the children.
Additional considerations
Views
I have set out at length that reported by the Family Consultant, at both the Child Inclusive Conference and the Family Report interviews of the children’s views. The Family Consultant had recommended that “… some weight be given to the children’s expressed views”.
By reference to authorities such as H & W (1995) FLC 92-598 and Re R Children’s Wishes [2000] FamCA 43, I am satisfied that significant weight should attach to the views of these children. Their views are expressed clearly and plainly and with force. Their views have been ascertained along a longitudinal axis. Their views are cogent and reasoned and I am satisfied:
a)Largely based upon their lived experience and memory; and,
b)To the extent that their views (and their anxiety and fear with respect to their father) may have been impacted by or increased as a consequence of their mother’s anxiety, I am satisfied that this does not render the views that the children express as their own as other than genuine views; and,
c)The children have not been “brainwashed” as alleged by Mr Martin (but as to which Mr Martin concedes there is no evidence). They have responded to Mr Martin’s behaviours.
The views of these children require serious consideration, regard and weight not only based upon their chronological age and apparent maturity but also as a consequence of their clear expression of a reasoned consideration of their own interests. I do not suggest that the determination of the children’s best interests should be delegated to them. I am conscious, however, that the children’s views are based on their lived experience and the trauma that they perceive and feel they have suffered. That deserves and demands weight.
These children in the circumstances in which they find themselves, having been immersed in parental conflict and exposed to significant anger and violence, primarily verbal but including physical violence, acted out and demonstrated by their father, deserve to have their voice heard. Their voice is clear, reasoned and cogent. If their voice is heard then no order could be made which compelled them to spend time with their father.
Nature of the children’s relationship with each parent and others
The children clearly enjoy a close, loving and meaningful relationship with their mother. Some difficulties in the children’s relationship with their mother are identified particularly in the Child Inclusive Conference Memorandum. However, these difficulties are transitory, are not founded in fear and anxiety in the children.
The children are observed to interact warmly with their mother. The children are reported as expressing warmth and affection for their mother. Perhaps, somewhat concerning, all three children express what might be described as a protectiveness of their mother particularly relating to their father’s behaviours towards her, to which they have been exposed in the past. The shared experience of trauma has, I am satisfied, likely contributed to the greater depth and meaningfulness of the relationship between these children and their mother.
The children do not presently enjoy a meaningful relationship or, in fact, a relationship with their father other than one typified by fear, anxiety and rejection.
The Family Report observations of the meeting between the children and their father suggest a very troubled relationship, the repair of which is unlikely to be possible. As a consequence of those observations and interactions as set out above, the Family Consultant concluded at paragraph 93:
Mr Martin presented as self-focused during the observation and demonstrated little ability to integrate with the children in a manner sensitive to their needs. Mr Martin’s attempts to interact with the children, particularly his repeated questions regarding the children not wanting to spend time with him, appeared to directly contribute to the children’s distress. Furthermore, he made no attempts to modify his behaviour in response to the children’s reactions and did not appear able to identify any alternate strategies to engage the children. Mr Martin’s behaviour during observation raises significant concerns regarding his ability to appropriately identify, meet the children’s needs and repair the significant rupture in the children’s relationships with him.
As regards any prognosis for the future relationship between the children and their father (and noting the Family Consultant’s recommendation that no order for time be made) there is some real wisdom in that recommended by the Family Consultant (paragraph 103):
In the event that orders were made that effectively meant that the children spent no time with Mr Martin, it would also be recommended that orders be made restraining him from attending the children’s school or home for the purpose of seeing the children. Mr Martin attending the children’s school and/or home against their wishes is likely to be experienced as difficult by the children, may result in the children experiencing anxiety and it is also likely to have a detrimental impact on the children’s willingness to pursue a relationship with him in future.
The above evidence in its totality satisfies me that:
a)The children enjoy a relationship of meaning with their mother; and,
b)The children do not enjoy a relationship of meaning with their father.
As previously indicated and on the basis that neither Ms Martin or Mr Martin had called any other family member I do not consider it appropriate and cannot, by reference to the evidence, establish with any satisfaction the children’s relationship with any other person.
The extent to which each parent has participated in spending time with, communicating with, and making decisions about the children
Mr Martin’s delay in commencement of these proceedings is significant. In closing submissions Mr Martin suggested that this had arisen as a consequence of the apprehended domestic violence order which had been made against him. However, one would have thought that any genuine desire to engage with these children and pursue a relationship with them would have stimulated action far earlier than has occurred. It is also to be noted that during this period of inaction Mr Martin travelled overseas for a period and remained overseas for some months. That is inconsistent with his suggested desire to pursue a relationship.
During the time that these proceedings have been on foot there has been no interim application by Mr Martin to spend time or communicate with the children. Further, during that period Mr Martin has engaged in the behaviours described above, approaching the children, their home and their school, to “see” them and has made no active attempt to engage with them.
Prior to the 2012 amendments this provision was contained within subsection (4). The prior provision directed the Court’s attention also to a consideration of the extent to which each parent may have interfered in the capacity of the other to spend time or communicate with the child. Further, the previously drafted subsection (c) directed the Court to consider the extent to which each parent has demonstrated their capacity to facilitate and encourage a child’s relationship with the other parent. I propose to consider all three factors.
The Family Consultant opined (paragraph 100) that:
The children presented as aware of Ms Martin’s negative views regarding Mr Martin, her reported fears regarding the children spending time with Mr Martin and her general emotional wellbeing. This is likely to have a detrimental impact on the children’s willingness to maintain a relationship with Mr Martin.
That the children are aware of their mother’s negative views and impact upon her emotional well-being is far from remarkable. Ms Martin has had the full-time care of these children and has, at all times since their respective births, provided the predominance of care to them.
I am not satisfied that Ms Martin has sought to undermine (or at least actively undermine) Mr Martin’s relationship with the children. It may well be, as observed above, that Ms Martin’s attitudes and emotions have impacted upon the children’s feelings and reactions towards their father. However, it is but one of the many factors which have brought matters to the point where they presently stand and, as already found, the most significant factor is, I am satisfied, Mr Martin’s own behaviours.
Ms Martin is not in a position to support, encourage or facilitate a relationship between these children and their father. Based upon an acceptance of her allegations in relation to that which she has endured at the hands of Mr Martin this is explicable and, to the extent that she holds fears as to the children’s well-being through interaction with their father she has acted upon those fears and that is appropriate.
This factor supports the relief sought by the mother and supported by the Independent Children’s Lawyer.
The extent to which each parent has fulfilled or failed to fulfil their obligation to maintain the child
Mr Martin has not, since separation, paid child support or provided financial assistance to Ms Martin. This is a substantial criticism of Mr Martin. It is not, however, determinative or dispositive of the issues in this case.
Mr Martin opened his evidence clearly stating that he is presently in employment and is living with relatives paying modest board of $150 per week. Mr Martin indicated that his income was about $780 per week (it is unclear whether this is gross or net). In any event Mr Martin is clearly able to provide for these children financially and has chosen not to do so.
The likely effect of change including separation from a parent or other person
I am satisfied that this factor is addressed above.
There would be a detrimental impact upon the children of separation from the mother. That is not to suggest that these children cannot separate from the mother and do not do so. However, as far as the children are suggested to be concerned (whether appropriately or otherwise) to be protective of the mother, separation for the purpose of spending time with their father, time which they neither desire nor express a feeling of safety in experiencing, would be contraindicated. In fact, based upon the totality of evidence and consistent with the children’s views, it would be detrimental to them and counter-productive to the development of a relationship between them and their father.
Practical difficulties and expense
I incorporated herein a consideration of section 65DAA (5) of the Act.
The parents do not live any significant distance apart from each other. However reasonable practicality is defined by reference to criteria far broader than matters of logistical possibility.
The parents have no capacity at present, and as demonstrated by their inability, over a period of some four years since separation, to implement any arrangement for these children to spend time with their father let alone an arrangement for equal or substantial and significant time (assuming for one moment that this were proposed by the parents or capable of acceptance as appropriate and being in the children’s best interests).
The parents have no current or future capacity to communicate with each other. As already indicated this would contraindicate any order for equal shared parental responsibility. Somewhat tragically the Family Report writer concludes the evaluation at paragraph 104 with the following:
Mr Martin and Ms Martin’s parenting relationship appeared characterised by poor communication, hostility and a lack of trust. Both parents appeared to attribute responsibility for parenting relationship to the other and demonstrated no understanding of the impact of any of their own behaviour. Furthermore, neither parent demonstrated any motivation to make significant and substantial changes to their own behaviour in order to improve the parenting relationship. This raises concerns regarding Mr Martin and Ms Martin’s ability to effectively exercise shared parental responsibility.
As regards the impact of arrangements upon these children I am satisfied that this is addressed above and that the impact of any order which required the children’s presentation to spend time with their father would be detrimental and contraindicated by the evidence.
The capacity of each parent to provide for the child’s needs including emotional and intellectual needs
These children are doing well at school. Their schooling is addressed solely by Ms Martin. Leaving aside the children’s own efforts and natural abilities this must reflect positively upon Ms Martin’s capacity to meet the children’s intellectual meets.
I am satisfied that Ms Martin is meeting the children’s emotional needs. Ms Martin took protective action to end the relationship with Mr Martin following an escalation of violence (violence she describes as having been perpetual throughout the relationship). Ms Martin has engaged counselling and other supports for these children to address their traumas.
Ms Martin has met the children’s physical and day-to-day needs perfectly well and without assistance from Mr Martin, including financial assistance.
Mr Martin has demonstrated, to a significant extent, his inability and incapacity to meet the children’s needs. He has caused trauma to the children by his past behaviour and has continued to rekindle that trauma if not exacerbate that trauma through his behaviours since separation and as discussed above (which, as I have found, would represent something akin to, if not in fact stalking - the term by which one of the children described those behaviours and their feeling towards those behaviours).
Mr Martin has failed to meet any financial obligation as regards the children and has failed in his legal and moral obligations to support his children. This reflects very poorly on Mr Martin and his insight and capacity as a parent indicating, as he does, that he feels no compulsion to provide financial support to the children if he is not seeing them. Presumably, Mr Martin believes that if the children are not seen by him that they do not need to be accommodated, clothed, fed, entertained or educated.
The Family Consultant is highly critical of Mr Martin’s behaviour at the observation session when, for the first time in nearly four years, he came into face to face contact with the children and had an opportunity to interact with them. Whilst it may be explicable that Mr Martin might ask the children bluntly and directly whether they wished to see him, his focus upon wishing to extract a response from the children and as demonstrated by his position throughout the case that he wants them to know that he is “not a bad man” is problematic. Mr Martin’s time with the children would have been much better spent by his seeking to interact with them more warmly and in a less pressured style.
Overall, I am left with concern as to Mr Martin’s insight and capacity as a parent.
Maturity, sex, lifestyle and background of the children
These children are of an age and level of maturity whereby it will be difficult in the foreseeable future, if not already, to require them to spend time with a parent and practice a relationship with them if they do not wish to do so.
Upon an acceptance of the children’s allegations of fact as to that to which they have been exposed and noting their past and present reactions to the rekindling of those memories through either discussion or introduction to their father, I am satisfied that I must both:
a)Give significant weight to the children’s views; and,
b)Be conscious to ensure that the children are not re-traumatised and required to continuously revisit past events, emotions and trauma as would occur through either a continuation of these proceedings or an order which provided for time with their father.
I am conscious that Mr Martin has submitted that he is content to have an order in his favour for supervised time. There is some real difficulty with even that arrangement:
a)Firstly, I am conscious that any service undertaking diligent intake would likely refuse service;
b)Secondly, I am conscious that even if such time were to occur that the emotional trauma that the children would experience through that time would outweigh any potential benefit; and
c)Thirdly, I am conscious that any order for supervision made must be a means to an end. Supervised contact services cannot assist parties indefinitely and an order for supervision would be required as a step towards reintroducing a relationship and moving this family towards self-management of relationships (i.e. unsupervised time).
I could not be satisfied that unsupervised time would be appropriate at any time in the foreseeable future. Even absent the first and second of the above concerns the third concern would, I am satisfied, be the death knell for Mr Martin’s application.
As indicated early in these Reasons I am satisfied that Mr Martin has not positively established benefit to these children of spending time with him and, accordingly, I do not propose to make any order for him to spend time with them.
I am satisfied by reference to the evidence discussed above that there would be benefit to the children’s feeling of security and emotional well-being of no time. This might also, in the long term, aid their relationship with their father. That would potentially be viewed by Mr Martin as ironic but, as explained by the Family Report writer at paragraph 103 of the Report, there would be benefit by the possibility of the children’s relationship with their father being achieved in the future. Similarly, there should be restraints made and imposed upon Mr Martin with respect to him approaching the children’s home or school. His approaches to “see” the children is counterproductive.
Aboriginality
Neither parent identifies as an Aboriginal or Torres Strait Islander person. The children are not Aboriginal or Torres Strait Islander children.
The attitude to the child and responsibilities of parenthood demonstrated by each parent
Each parent could be criticised and substantially criticised regarding their attitude towards the other and towards various aspects of their responsibilities as parents. Those criticisms have been discussed above and weigh more heavily, perhaps, against Mr Martin.
I do not propose to consider the effect further as I am satisfied that the above discussion of evidence satisfactorily addresses this issue.
Family violence involving the child or member of a child’s family
I have discussed this factor at length in the consideration of the evidence. I do not propose to repeat those comments and observations.
I accept, substantially if not wholly, the veracity of Ms Martin’s allegations and those of the children with respect to family violence and hence the findings made by me that Mr Martin has perpetrated coercive and controlling family violence against Ms Martin and has, at the very least, exposed these children to that coercive and controlling family violence. This has had significant impact upon the children’s health and sense of safety as well as the children’s view of and relationship with their father.
To the extent that the children are rejecting of a relationship with their father at this time and accepting that the strength of the children’s views may have been impacted by Ms Martin’s fears and anxieties on the bases discussed above, I am satisfied that this is largely reflective of “the chicken coming home to roost” meaning that the children’s accumulation of negative experience, fear and anxiety as a consequence of that which they have endured, had inflicted upon them and been required to live with has now led to the present state of affairs.
Family violence orders
There was, in recent past, a relatively extensive family violence order in force placing prohibitions upon the father. That order has now expired such that there are no orders in force at present.
Whether it is preferable to make orders that will least likely lead to the institution of future proceedings
I am satisfied that orders as sought by Mr Martin, supervised time, would maximise the potential for future proceedings, whether by way of enforcement or variation application.
I am satisfied that future proceedings will best be avoided and the children’s best interests met by me making orders for sole parental responsibility in favour of Ms Martin, for the children to live with her and making no order as to the children’s time with their father. In addition, I am satisfied, as is sought by the mother and supported by both the Independent Children’s Lawyer and the Family Consultant, that restraints upon the father approaching the children’s school or home are appropriate and beneficial to the children’s best interests providing, as they will, a sense of some security and an amelioration of their sense of fear and anxiety.
For all of the above Reasons, I am satisfied that the children should continue to live with their mother who should have sole parental responsibility for them and that no order for the children’s time with the father should be made.
Costs certificate
Before concluding these Reasons and pronouncing orders I must deal with the application made by Ms Martin for the issue of a Costs Certificate regarding the adjournment of proceedings from September 2014
The application is made reliant upon section 10 of the Federal Proceedings (Costs) Act 1981. That section provides:
10 Costs certificates—incomplete proceedings
(1) This section applies to the High Court, the Federal Court, the Family Court, the Federal Circuit Court and a court of a Territory.
(2) Subject to this Act, where any proceedings in a court to which this section applies are rendered abortive by reason that the person, or a person, before whom the proceedings are being conducted dies, resigns, or is removed or dismissed from, his or her office, suffers a protracted illness or otherwise becomes unable to continue with, or to give judgment in, the proceedings, the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
(3) Subject to this Act, where:
(a) the hearing of any proceedings in a court to which this section applies is discontinued and a new hearing is ordered; and
(b) the discontinuance and new hearing are not attributable to the neglect, default or improper act of any party to the proceedings;
the court may, on the application of a party to the proceedings, grant to that party a costs certificate in respect of the proceedings.
(4) The certificate that may be granted under subsection (2) or (3) by a court to a party to proceedings that have been rendered abortive or the hearing of which has been discontinued, as the case may be, is a certificate stating that, in the opinion of the court, it would be appropriate for the Attorney‑General to authorize a payment under this Act to that party in respect of such part as the Attorney‑General considers appropriate of any costs incurred by that party in relation to those proceedings.
(5) A reference in this section to proceedings in a court includes a reference to proceedings by way of an appeal to that court.
As is highlighted in the evidence of Ms Martin the proceedings were listed for trial 5 September 2014. The matter could not proceed on that date and as was noted in the orders issued by me on the date as recording or transcription services were not functioning. They were not fixed until shortly before what would have been the lunch adjournment. At that time the Court’s work had commenced, comprising a number of mentions and an interim hearing. It was intended that those matters would have been dealt with between 9:30am and 10:30am. Those matters were not, in fact, concluded until after 2pm and at which time there was no possibility of this matter commencing and finishing.
In light of the above, the proceedings were marked not reached and adjourned, thankfully, to an expeditious hearing date. The accommodation of that listing involved cancellation of a day of approved conference leave.
Clearly Ms Martin did not cause or contribute to the inability to deal with the matter on the date allocated. Ms Martin incurred significant costs as regards her solicitors and counsel and that cost has been duplicated in returning to address the hearing on the second day.
In light of the above and the evidence led by Ms Martin in support of the Application in a Case, I am satisfied that Ms Martin is entitled to the issue of the Costs Certificate as sought. Ms Martin has sought a sum certain with respect to the certificate. That was not pressed by her counsel in submissions and accordingly the Certificate will issue confined to the appearance 5 September 2014.
I certify that the preceding two hundred and twenty (220) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 19 December 2014
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
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Evidence
Legal Concepts
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Procedural Fairness
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Appeal
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