MATTHEWS & FARMER

FAMILY COURT OF AUSTRALIA

MATTHEWS & FARMER

[2012] FamCA 672

FAMILY LAW – CHILDREN – Sole parental responsibility – Where the parents are unable to communicate – Where the parents have engaged in longstanding hostility and conflict – Where the children’s wellbeing has suffered as a result of the long course of litigation – Best interests – Where the children have a very strained relationship with the father and do not wish to have any contact with the father – Where the children would be unable to develop a meaningful relationship with their father without suffering emotional and psychological harm – Orders that the children are to live with the mother and spend no time with the father.

Family Law Act 1975 (Cth) – Part VII; s 60B; s 60CA; s 60CC; s 60CC(2); s 60CC(3); s 60CC(4); s 61B; s 61C; s 61DA(1); s 61DA(2); s 61DA(4); s 65AA; s 65DAA(1); s 65DAA(2); s 65DAA(3)

B and B (1993) FLC 92-357
Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422
MRR v GR (2010) 42 Fam LR 531

APPLICANT:

Ms Matthews

RESPONDENT:

Mr Farmer

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW, Parramatta Family Law

FILE NUMBER:

LNC

520

2008

DATE DELIVERED:

14 August 2012

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney and Parramatta

JUDGMENT OF:

Johnston J

HEARING DATE:

20 & 21 September 2011 (Sydney), 12 & 13 April 2012 (Parramatta)

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Kennedy

SOLICITOR FOR THE APPLICANT:

Marks Griffiths & Bova

COUNSEL FOR THE RESPONDENT:

Mr Henness

SOLICITOR FOR THE RESPONDENT:

Bowring MacAuley & Barrett

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Clifford

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Nielsen, Legal Aid NSW

Orders

The following parenting orders are made in respect of the children L born on … May 1999 and R born on … August 2000 (“the children”).

Previous Orders

That all previous parenting orders in relation to the children be discharged.

Parental Responsibility

That the mother have sole parental responsibility for the children.

Live With

That the children shall live with their mother.

Spend Time With

That the children shall spend no time with their father.

Communication

That other than as specified in order 7, the father is restrained from communicating directly with the children.
That the father shall be at liberty to provide the children with his current contact details, including residential address, phone numbers and email address.
That the father shall be at liberty to send the children cards, photos, letters and gifts, and the mother shall ensure that the children receive anything sent to them from their father.
That the mother shall continue to provide the father with contact details where he may post the items referred to in the above order.

Specific Issues

That the mother be at liberty to obtain and action a referral for the child L to obtain immediate counsellor / therapeutic assessment and assistance.
That the mother continue to be restrained from taking either child to attend upon Ms F.
That the mother continue to be restrained from taking either child to the Q Health Centre generally, other than for crisis intervention.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY AND PARRAMATTA

FILE NUMBER: LNC 520 of 2008

Ms Matthews

Applicant

And

Mr Farmer

Respondent

REASONS FOR JUDGMENT

Introduction and Applications

These are final parenting proceedings. L and R are 13 years and 12 years of age respectively. Their parents are Mr Farmer and Ms Matthews. For convenience I shall refer to them as the father and the mother.
Unfortunately for the children their parents have been engaged in litigation about their parenting arrangements for more than 11 years. It is common ground that the litigation has been very damaging for the children. The children and their parents are exhausted by it.
The mother seeks orders identical with the orders sought by the Independent Children’s Lawyer (“ICL”). These are to the effect that the mother have the sole parental responsibility for the children, that they live with her and that they spend no time with their father. Orders were also sought restraining the father from communicating directly with the children but enabling him to send the children cards, photos, letters and gifts.
On the other hand, the children’s father seeks orders to the effect that he have sole parental responsibility for them, that they live with him and have no contact with their mother for a period of between six and twelve months, other than by telephone or email. The father proposes that at the end of the six or twelve months period, an assessment be made by an appropriately qualified behavioural scientist to determine whether it would then be appropriate for the children to resume their relationship with their mother.

Background

The mother, 48 years of age and the father, 59 years of age commenced cohabiting in late 1998 and separated in October 2000.
As indicated above, there are two children of the relationship namely, L, who was born in May 1999 and is currently 13 years of age and R, who was born in August 2000 and is currently 12 years of age.
The father has four children from two previous relationships, all of whom are now adults. They are X, V, E and C. The father is not certain that C is his child and has never seen her.
In late 1999, the parties relocated their residence from Sydney to Town D on the South Coast of New South Wales.
Following the parties’ separation the father moved to Town K, a few kilometres away. The children were very young, L being approximately 17 months and R approximately 10 weeks of age. The father saw the children frequently and for short periods.
In April 2001, the mother moved from Town D to Sydney with the children. She said that she had become frightened by the father’s behaviour.
In May 2001, the father commenced proceedings in the Federal Magistrates Court, Canberra seeking to restrain the mother from moving the children’s residence to Sydney. Orders were made on 14 May 2001 in effect preventing the children’s residence being changed from Town D pending further order.
Later in May 2001, the mother returned with the children to live at Town D.
On 12 June 2001, an interim Apprehended Violence Order (“AVO”) was granted for the mother’s protection against the father. This was extended by the Local Court for 12 months in August 2001.
On 6 October 2001, the father was charged with breaching the AVO. He had attended at the home in Town D and was threatening and abusive. On 23 October 2001 he was convicted and placed on a good behaviour bond for 12 months. A further interim AVO was granted on 12 August 2002.
On 22 August 2002, Federal Magistrate Brewster made final parenting orders (in the absence of the father) to the following effect:
·That the mother be at liberty to relocate to Sydney;
·That until she relocated, certain earlier orders were to remain in force;
·That upon the mother relocating to Sydney, all previous orders in relation to contact concerning the children were to be discharged;
·That until L commenced school the father was to have contact with the children for what was to be a five day period each fourth week;
·That upon L commencing school the father was to have contact with the children each fifth weekend during school term, one half of each of the midyear holidays and what would become one half of all Christmas holidays;
·Telephone contact between the father and the children once a week;
·That changeovers be at a Canberra contact centre or at McDonalds if the contact centre was unavailable; and
·Imposing certain restraints on the father’s behaviour for the protection of the mother.
In October 2002, the application to extend the interim AVO made on 12 August 2002 was dismissed, the mother having failed to attend at court.
In October or November 2002 the father failed to return the children after contact. This Court made orders on 8 November 2008, in the absence of Federal Magistrate Brewster, for the children to be available at G Police Station for collection by their mother.
In January 2003, the father brought unsuccessful contravention proceedings against the mother alleging that she had failed to facilitate a number of phone calls between him and the children. The father appealed and his appeal was dismissed.
On 16 May 2003, L was referred to a Child and Family Counselling Service (“Q Counselling”) by M Children’s Contact Centre. There was concern about the level of distress that L was displaying when being handed over to her father for contact
In mid 2003, L was diagnosed with asthma and was required to take daily medication.
On 14 November 2003, the mother contacted the Department of Community Services regarding an alleged complaint made by L of inappropriate behaviour by the father. I shall refer to this matter in more detail below. The police applied for an AVO on L’s behalf. On 26 November 2003 an interim AVO was made for the protection of the children.
On 19 November 2003 the executive director of M Children’s Contact Centre wrote a letter to the father expressing concerns which they had regarding his refusal to accept prescriptions for L’s asthma medication, the children’s insistence that they did not wish to go on contact with him and what was described as his verbally aggressive behaviour towards staff in the presence of the children.
On 26 November 2003, M Children’s Contact Centre suspended their facilitation of changeovers because the father had informed them that he would not accept a prescription for asthma medication for L.
On 8 January 2004, Q Counselling made a notification to the Department of Community Services to the effect that L had said that her father hits her “all over”. Another notification was made on 11 March 2004 following R having said to the counsellor on 9 March 2004 “Daddy sticks his finger in my bottom”.
On 19 February 2004 an application to extend the interim AVO made on 26 November 2003 for the children’s protection was dismissed and the AVO ceased operation.
In July 2004, contact visits resumed with changeovers facilitated by a private changeover service.
On 15 September 2004, Federal Magistrate Brewster varied the final orders by making orders to the following effect:
·That the children reside with their mother;
·That both parents have joint responsibility for the long-term care, welfare and development of the children, and day-to-day responsibility for them whilst they are in their care;
·That the children have contact with their father for what amounted to substantial school holiday periods and special days, changeovers to be facilitated by Moore’s;
·That the father administer medication required by the children; and
·Mutual non-denigration orders.
Federal Magistrate Brewster also noted various matters including that the father would undertake an anger management course and the mother would undertake counselling.
In January 2005, L told her mother and her counsellor that her father was not administering her asthma medication.
On 5 September 2005, the private changeover service terminated their facilitation of changeovers.
The father filed an appeal against the orders made on 15 September 2004. The appeal was heard and dismissed on 21 September 2005.
In late 2005, M Children’s Contact Centre agreed to resume their changeover service after the father signed a written agreement to administer medication for the children.
On 21 March 2006, M Children’s Contact Centre again suspended their facilitation of changeovers having taken the view that the father had not complied with their requirements and had not observed the Court Orders in relation to administering L’s asthma medication while she was in his care.
In June 2006 the father filed a contravention application which was subsequently dismissed.
In July 2006 the father filed an application seeking variation of the substantive parenting orders which he subsequently withdrew.
In September 2006 the father filed a further variation application and this was dismissed by Federal Magistrate Henderson in December 2006.
On 27 November 2006, Queenscliff Counselling made a notification to the Department of Community Services following the children having said that they had witnessed a physical fight between the father and their half-sister, E.
On 22 December 2006, contact visits between the children and their father resumed with changeover at M Children’s Contact Centre following orders of the Federal Magistrates Court.
In February 2007 and April 2007, Q Counselling made notifications to the Department of Community Services about various further complaints the children had made about their father during counselling.
In March 2008, the father moved from Town D to Tasmania.
In July 2008 the father had the children for school holiday contact. Without informing the mother, he drove the children to Melbourne and then put himself, the children and his car on the ferry to Tasmania.
On 11 September 2008, the father filed an application in the Federal Magistrates Court, in Tasmania seeking to vary the orders. These proceedings were subsequently transferred to the Parramatta Registry and the father’s application was dismissed on 14 August 2009.
By mid-2009 the father had moved from Tasmania to Town O, in the Snowy Mountains. The children had contact with their father during the October 2009 school holidays.
On the way home from this contact, L complained to her mother that her father had made the children sit on a chair for a long time, that they were not allowed to move and that if they did move, the father would smack them with a wooden spoon. She said it really hurt and that R got hit really hard, and more than her. The mother said that the children were reserved, tired, clingy and needing attention.
Two days later L attended her school camp from Monday to Friday. Upon her return she became angry to the point of developing a rage. She behaved very aggressively and was lashing out and hitting R. This bad behaviour continued over the next couple of days. The mother contacted the Department of Community Services.
On 27 October 2009 the children attended their counsellor Ms F at Q Counselling. Ms F made a further notification to the Department of Community Services about things the children had said about their time with their father during their recent contact at Town O.
On 12 November 2009, the mother filed an Initiating Application in the Federal Magistrates Court, Canberra seeking that the orders of 15 September 2004 for the children to have contact with their father be suspended and that any contact be supervised. The mother ceased making the children available for contact.
On 15 November 2009, the children were interviewed by police in relation to their complaint about the wooden spoon and chair incident.
On 11 December 2009, Federal Magistrate Halligan ordered that an ICL be appointed.
On 16 December 2009, the mother filed a Notice of Child Abuse or Family Violence alleging that the father had physically abused the children.
On 5 January 2010 the mother withheld the children from holiday contact. The father filed a contravention application which was subsequently heard and dismissed.
On 29 April 2010, the father filed a Contravention Application alleging that the mother failed to provide the children for contact with him on 2 April 2010. On this same day the parents and the children had appointments to attend the Children’s Services section of this Court for interviews by the family consultant.
The father’s mother was on holiday in Australia in June 2010. The solicitors for each of the parents made an arrangement that the children would attend the a café in Suburb N, Sydney on 13 June 2010 to see their paternal grandmother. The mother and the children attended and waited a long time. But the father and his mother failed to attend.
On 7 July 2010, the father filed a further contravention application alleging that the mother failed to provide the children for contact with him on 3 July 2010.
On 13 September 2010, Justice Cleary suspended the contact orders and ordered that the children have supervised contact with their father at CW Contact Service (or a centre nominated by the ICL) for three months, then up to two occasions per month at a contact centre or in the presence of the father’s niece Ms A. One of those occasions could be 10:00 am Saturday to 4:00 pm Sunday in Ms A’s presence. Both parents were restrained from using corporal punishment on the children. Her Honour also restrained the parties from taking the children to Ms F or any other therapist, counsellor or child psychologist without the written consent of the other parent or order of the Court.
In January 2011, L commenced high school.
On 17 February 2011, I made orders that a Family Report be prepared in the matter.
By February 2011 the father decided that the supervised contact was not assisting the children and he decided that it would not be in their interests for it to continue.
In April 2011, the Family Report was released.
The hearing before me commenced on 20 September 2011.
On 21 September 2011, the second day of the hearing, all parties agreed that the hearing should be adjourned to enable a report to be prepared by a family and child psychiatrist as single expert. On 11 October 2011 I ordered that Dr B be appointed to report on matters relevant to the welfare of the children.
Dr B’s report was released to the parties in January 2012.
Shortly before resumption of the hearing on 12 April 2012 L had been engaging in troubling behaviours.
On 13 April 2012 I made orders to facilitate an overseas holiday for the children.

Credit

The mother

The mother had a poor recollection for details and answered many of the questions in a somewhat general manner. For example the mother was unable to recall the precise words which she alleged L had used to inform her that her father had sexually abused her.
I did not have a sense that the mother was being untruthful in her evidence. But in my view she has placed too literal an interpretation on many things which the children have said to her about events and statements made during their periods of contact with their father. In my view it has been most unfortunate for the children that their mother has not been able to weigh things said by the children in the context of the very poor relationship between the parties and the ongoing litigation between them. It would be tempting to think that the mother has put a negative interpretation on much of the reporting back by the children of things which have occurred in their father’s home. I do not do so. But my view about this matter leaves me in the position where I regard significant parts of the mother’s evidence to be quite unreliable.

The father

On the other hand, although the father was somewhat long-winded in his responses to questions, once the answer came I had the impression that he was telling the truth. It is true that on occasions, in his responses he used the opportunity to provide information of peripheral relevance but which appeared to me to be perceived by him to favour his case. In interpreting the father’s evidence I make some allowance for the fact that he is enormously frustrated and angered by what he perceives as problems which he has had with the legal and counselling systems. He is understandably very frustrated about the fact that his relationship with his children has broken down and that he has not been able to have any contact with them now for well over a year. He has not spent regular unsupervised time with them for more than two and a half years.

I have a more favourable view about the reliability of the father’s evidence generally than I do about that of the mother.

The maternal aunt

The maternal aunt is the mother’s sister. The maternal aunt knows the children well and has quite a close relationship with them as their aunt. She also has a very close relationship with their mother with whom she would discuss issues about parenting on a weekly basis. The maternal aunt answered questions in a forthright manner. She readily made concessions. I regard her as a truthful witness.
In the main I regard her evidence as being reliable although perhaps at times a little tempered by the closeness of her relationship with her sister and the children which would make it difficult for her to be in any way critical of the mother’s interpretation of things said by the children. For example, it was suggested to this witness that the mother remained of the view that whatever the children reported to her of their experiences at their father’s home was 100 per cent accurate. The maternal aunt responded, in terms which I regarded as somewhat diplomatic, that she thought the mother believed her children.

Submissions

Independent Children’s Lawyer (“ICL”)

It was submitted on behalf of the ICL that it would be impossible for these parents to be able to co-parent. So that the presumption of equal shared parental responsibility would be rebutted in the best interests of the children. It was submitted that whichever of the parents the Court determines the children are to reside with should have the sole parental responsibility for the children.
In terms of the children’s residence, it was submitted that the circumstances of this family have deteriorated to the point where each of the parents now has the view that the children must lose their relationship with their other parent, at least for some time. Each of the parents holds the other responsible for having largely caused the children’s distress and the current situation.
It was submitted that in determining what orders would serve the best interests of the children, the Court first needs to consider the current harm to the children, the future risk to the children and the capacity of each of the parents to be able to assist the children now and into the future.
It was submitted that each of the children is suffering from emotional harm. It was submitted that each of them has expressed a strong view, to both the family consultant Mr P and also to Dr B, that they do not wish to have any contact with their father. Dr B described L as a vulnerable twelve year old who is in need of urgent intervention. She described L as engaging in escalating poor behaviours as a consequence of her not being listened to.
Dr B assessed R as being at a slightly different development stage from that of L. But she said that his development has been compromised and was likely to continue to be without significant change in the circumstances. Dr B said that both children need stability.
Dr B described R as a rather anxious eleven year old who has been exposed to parental conflict and multiple legal proceedings throughout his life. She said that he is not learning mature conflict resolution skills by this process. Dr B said his development is likely to be compromised in other ways by the chronicity of these events and L’s aggression towards him.
Dr B described L as a vulnerable twelve year old who was currently in the hypersensitive, easily aroused, temperamental state of early to middle adolescence. Dr B said that L had good awareness of interpersonal interactions, although her history of anxiety and aggression indicated that she had yet to adaptively process and express frustrations and strong feelings. Dr B said that L will need to develop reasonable competency in those areas of development in the next four years or she will be at risk of developing a mood/conduct disorder or maladaptive personality traits.
It was submitted that the risk to the children in the future is that they would be likely to be caused continuing emotional harm if the stressors for them are not dealt with. Dr B has expressed the view that it is no longer possible for the children to be co-parented. Accordingly one or other parent will have to have sole parental responsibility for them with the children living with that parent and not seeing the other parent. It was submitted that it is a question of which parent has the capacity to better manage this difficult situation.
It was submitted that on the one hand the children have lived primarily in the care of their mother and in recent times solely in her care. She has been able to manage their schooling requirements and assist them to develop extended relationships as well as managing their extra curricular and sporting activities.
On the other hand the children’s relationship with their father is quite dysfunctional. It was submitted that the father did not have a plan and was not able to say where he would live with them, what schools they would attend and other significant parenting matters. It was submitted that in these circumstances how could the Court be confident that the children would be more likely to do better with their father, particularly given the very difficult position that each of them is now in and the difficult stage in terms of their development. It was submitted that in addition to these concerns, the father did not demonstrate awareness and understanding of the difficulties of the children and how he would deal with these. He did say however, that he would engage some professional assistance to support him and the children in the transition.
It was submitted that a further matter for concern was that notwithstanding the detailed observations which Dr B had made about the children’s difficulties and the inability of their father to moderate his approach to them, there was no sign of any shift by the father in terms of his lack of insight into the children’s situation and his insensitivity towards them and their needs.
Learned counsel for the ICL next addressed the various relevant s 60CC3 considerations. She then submitted that the interests of the children required the presumption under s 61DA(4) of the Act, that the parents have equal shared parental responsibility, to be rebutted. She said that this was on the basis that these parents have shown themselves unable to communicate, that they have engaged in longstanding conflict which continues with little abatement, that they have quite different parenting styles and that each still believes that they need to protect the children from the other parent. It was submitted that shared parental responsibility would simply be unworkable and contribute to further conflict and distress for the children.
The ultimate submission was that the best interests of the children require that their mother have sole parental responsibility for them, that they reside with her and have no contact with their father other than by cards, email or similar communication.

The mother

Learned counsel for the mother endorsed the submissions by counsel for the ICL.
It was submitted that the father’s proposal was completely unrealistic, inadequately thought through and his suggestion that after the initial period of six to twelve months he would then consult the children about where they would like to live was quite inappropriate.
It was submitted that L’s troubling acting out behaviour needed to be addressed urgently and that the only parent who would be able to do that was her mother. It was submitted that, as Dr B said, it would be essential for the Court to demonstrate to L that it has listened to what she has been saying by putting in place orders which reflect her views. As Dr B has indicated, if this was not done and L was forced into her father’s care, or even to spend time with him, it was almost certain that her self harm and other worrying behaviours would be escalated.
It was submitted that Dr B’s view, that she thought that the mother had not alienated the children, should be accepted by the Court for the reasons referred to by Dr B.
Learned counsel for the mother then addressed the various relevant considerations in s 60CC(3) of the Act.

The father

Learned counsel for the father submitted that the Court grant the unusual request that in addition to submissions by the father’s counsel on his behalf, that the father also be permitted to address the Court. There was no objection by either of the other parties to this course and I indicated that in the special circumstances of this case I would be prepared to give leave to the father to address the Court personally.
He submitted that he had been able to demonstrate a good level of parenting skills in the past and that he had previously had a good relationship with his children. The father submitted that he was extremely frustrated with the court process having spent five times more time in court than he has had with his children since separation.
The father submitted that there was no basis whatsoever in the mother’s allegations that he has sexually abused the children. He submitted that these complaints were taken to the relevant authorities including the Local Court. He said that the complaints were either found to be not substantiated, or in the case of the court proceedings, dismissed. He said that within forty hours of dismissal of the mother’s allegations by the Local Court she made further sexual abuse allegations against him.
The father said that the mother had been threatening to stop the children spending time with him over many years.
The father said that the mother has failed to comply with numerous court orders that she facilitate the children spending time with him yet she complied with the orders which restrained her and him from taking L to counsellors. He said that it suited her case to do so.
The father said that when the orders were varied so that the children and he were to spend time together supervised at J Contact Centre, initially the children had a great time. He said that on the next occasion they had to watch a movie and the children were not enjoying their time there. So he stopped the contact at the Centre out of his concern that there was an artificiality about spending time with them in this setting.
The father said that the parents had a difference of view about whether L had asthma or not. He said that he took L to a Dr W in G who said that if she did have asthma then it was only very mild.
The father submitted that if the Court was to place the children solely with their mother and they spent no time with him, that would leave their mother to parent the children in the inadequate way in which he says she has done this in the past.
The father submitted that when L was with him she did not wet the bed and that she has only done so when in the care of her mother.
The father said that he is most frustrated with the court process which he feels has let the children and himself down. He said that now that L appears to have scratched her arms in an exercise of self harm, this Court has blood on its hands.
Learned counsel for the father submitted that if the children were to live with their mother then it is clear that they would not have a meaningful relationship with their father. Whereas under the father’s proposal, which anticipates that after six or twelve months the children would have a relationship with their mother, the requirements of the legislation would be met because the children would then have a meaningful relationship with each parent.
It was submitted that this case involves a long history of alienation of the children by their mother against their father. It was submitted that this was an abusive and harmful situation for the children which would only conclude if the children were to live with their father.
It was submitted that obviously there would be a period of adjustment during which the father and children would be supported by clinical intervention.
It was submitted that the mother has maintained her belief that the children have been sexually abused by their father and that this was psychologically harmful for the children. It was submitted that this subject was not addressed by Dr B.
It was submitted that the children’s views as expressed have involved a collective view and therefore should be given limited weight. It was submitted that the Court should regard their comments as disproportionately critical of their father and not representative of their true views. It was submitted that the Court should be cautious in weighing these views particularly given the lack of any contact between the children and their father and the children’s alienation from their father by their mother.
It was submitted that the children have some pleasant memories of their father upon which they would be able to build during the period of transition to his care. While there would be disruption and adjustment for them, this should be weighed against the likely long term benefits of the children being able to have a relationship with both of their parents if they were to reside with their father.
Finally, it was submitted that the father agreed with the mother that it would be impossible for them to share parental responsibility. It would follow therefore, that the father would have sole parental responsibility for the children.

Allegations About Sexual Abuse

The mother continues to hold a belief that each of the children has been sexually abused by their father.
She said that on 14 November 2003 she was sitting on the lounge at home stroking L’s forehead when L said that her father put his finger in what the mother described as the child’s vagina. She said that she could not remember exactly what the child had said. But she said that the child said it was hurting. She also said that the child said words to the effect that her father bites her on the lip. The mother said that the child said her father had said it was a secret.
The mother said that she remembered being shocked and numbed. She said that she believed L was telling the truth about the matter. She phoned her sister, the maternal aunt that evening. The maternal aunt is a school principal. The mother said that the maternal aunt suggested she telephone the Department of Community Services, which she did.
The mother also said that when she was changing R’s nappy on 17 December 2003 (the child then being three years of age) he said that his father had made a joke of pretending to put his finger in the child’s anus. Again, the mother discussed this matter with her sister and, on her advice, contacted the Department of Community Services.
Subsequently the mother and L were interviewed by the Joint Investigation Response Team (“JIRT”). An interim AVO issued for the protection of the children but this was not extended when the matter came before the Local Court in February 2004, as indicated above. No abuse has ever been substantiated by the Department.
The father denied the allegations describing them as “baseless”.
As also indicated above, contact between the children and their father resumed in July 2004.
The mother informed Dr B during her interview on 8 November 2011 that when “sexual stuff” came up in 2003, she thought it was possible that something happened at that time, but not since then.
In the context of the entirety of the issues which presented during the hearing, the mother’s allegations of sexual abuse did not hold prominence. In any event, there was no suggestion that for the children to spend time with their father based on allegations of sexual abuse, would constitute an unacceptable risk for them. This of course is the relevant test as set out in B and B (1993) FLC 92-357 where the Full Court said as follows at page 79,778:
The “unacceptable risk” test is therefore the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
In all the circumstances, in my view, it has not been established that for the children to spend unsupervised time with their father would cause them to be at an unacceptable risk because of the allegations of sexual abuse.

The Applicable Law

The statutory provisions which guide the Court in its consideration and determination of parenting proceedings are set out in Part VII of the Family Law Act 1975 (“the Act”).
When considering making a parenting order the Court is to bear in mind the objects of the legislation and the principles underlying the objects as set out in s 60B of the Act.
The objects in this context are to ensure that the best interests of the children are met by:
·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
·Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
·Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
·Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
·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
·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
·Parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
·Parents should agree about the future parenting of their children; and
·Children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
In deciding whether to make a particular parenting order in relation to a child the Court must regard the best interests of the child as the paramount consideration (s 60CA and s 65AA). Section 60CC of the Act sets out specific criteria which must be considered in determining what is in a child’s best interests.
Section 61C of the Act provides to the effect that each of a child’s parents has parental responsibility until such time as the child attains the age of 18 years unless the Court makes an order which alters that joint parental responsibility.
Section 61DA(1) of the Act provides that 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.
Section 61DA(2) of the Act provides in effect that 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 abuse of the child or family violence.
Sub-section 61DA(4) provides to the effect that 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.
If a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the Court must first consider making an order for the child to spend equal time with each parent if this will be in the best interests of the child and be reasonably practicable. Such is provided by s 65DAA(1) of the Act. If equal time is not in the best interests of the child or reasonably practicable, s 65DAA(2) of the Act requires the Court to consider whether the child spending substantial and significant time with each of the parents would be in the child’s best interests and would be reasonably practicable.

The above principles have been examined in numerous authorities including the decision of the Full Court of this Court in the case of Goode and Goode (2006) FLC 93-286; (2006) 36 Fam LR 422 and the High Court case of MRR v GR (2010) 42 Fam LR 531.

Parental Responsibility

Parental responsibility is defined by s 61B of the Act to mean “all the duties, powers, responsibilities and authority which, by law, parents have in relation to children”.
As indicated above, s 61DA(4) of the Act provides in effect that the presumption may be rebutted by evidence that satisfies the Court that it would not be in the best interests of the children for their parents to have equal shared parental responsibility for them.
It is clear that this is a case where the presumption of equal shared parental responsibility is rebutted by the matters which go to the best interests of these children.
A rare area of agreement between these parents was that they would be unable to share parental responsibility. Each of them made it clear that they should have sole parental responsibility for their children.
I accept this. The parties agreed that they were unable to communicate. As indicated above, they have been engaged in longstanding hostility and conflict. They have very different parenting styles and this has contributed to the conflict. The most recent example of them being unable to agree on an important decision about the children was in respect of the mother’s proposal to arrange for a holiday for each of the children to the United States. I shall refer to this again below.
In all the circumstances, in my view it would be essential for the parent with whom it is in the best interests of these children to reside, to be placed in the position of having the sole parental responsibility for the children.

Section 60CC Considerations

How the Court is to go about determining what is in a child’s best interests is set out in sub-sections 60CC(2) and (3) of the Act.

Primary Considerations

The primary considerations are set out in s 60CC(2) of the Act. These are:
·The benefit to the child of having a meaningful relationship with both of the child’s parents; and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Having noted these primary considerations at this point I shall return to discuss these below.

Additional Considerations – s 60CC(3)

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

The children have expressed a strong view that they do not wish to see their father.
In March 2011 L said to Family Consultant Mr P that she had attended the interview “so that we can tell you why we don’t want to see him”. She said that “he’s mean to us and he scares us”. She was asked whether she thought she would have a relationship with her father in the future and she said “no”. She was asked “too late is it?” and she nodded. She was asked whether there had been a time when she hoped her father would be a better Dad. She started to cry and said “I sort of wish he was one, he’s not one”. After the session with her father she told the Consultant that she did not want to see her father and that she hated him.
On the same occasion Mr P also saw R. R said that he had attended the interview “so we don’t have to see him”. R said that his father was mean, that he whacks and hits them and reiterated that his father was “really mean”. Mr P asked R about seeing his father in the future. R said “if he was usually nice, yes” and he subsequently added “that’s unlikely, impossible”.
Dr B saw the children in November 2011. She reported that R’s message to the judge was that he did not “want to see my dad … nothing else”. Dr B also reported that if L could change one thing in her life she would “not have him around” which would make a difference “on (her) personality … not get sad or stressed as much”.
Dr B said that L had informed her that the previous night she had a nightmare about seeing her father in interview that day. In the dream her father had dragged her down the stairs and street while she was calling “help, help and everyone was just watching”. Upset, she said there was no one to protect her and if the court made R and her see their father no one would be there to protect them, that their mother would try but she wouldn’t be able to protect them. Dr B said that L then started crying. Dr B also said that if given three magic wishes L’s first wish would be for their father not to be in their lives. Dr B said that L’s message to the judge was “I don’t want to have any contact at all” with her father.
Dr B was cross examined about her opinion in respect of the children’s expressed views. She was asked by learned counsel for the father whether, notwithstanding that the children had expressed such views, it would be possible that what they said actually did not represent their real views. Dr B indicated that she had considered that possibility but formed the opinion that what the children expressed was what they really meant and held as their genuine view.
In this regard, Dr B said the first thought that came into her mind was how petty they were being and she thought about whether there was any substance to what they were saying. She said that she thought about L being 12 years of age and throwing a bit of anger around about her father being 58 years of age and about his physical appearance. But Dr B said that she came to her conclusion about the genuineness of their expressed views because of the nature of the interaction between the children and their father. That is, that both the children and their father were all behaving like young adolescents. Dr B said that she was hearing the whole picture not just particular criticisms, such as he is mean or scary or ugly. Dr B said that when she saw L by herself (in the absence of her mother) the distress L showed was not that her father was an old man, rather it was that he did not listen to her, he was sarcastic.
Dr B said that the court should place weight on the children’s views. She said that the children had been quite damaged by the long course of litigation and the uncertainty which it has caused in their lives. She said that they need to have a sense that they are being listened to. She said that L has been protesting that the adults involved, including the court, are not listening to her and this is a component in L’s escalating poor behaviour.
I accept Dr B’s opinion about these matters.

Sub-section 60CC(3)(b) – the nature of the relationship of the child with each of the child’s parents and other persons (including any grandparent or other relative of the child)

Mr P said that the children both presented with a very strained relationship with their father.
He also said that they have a functional, if not positive relationship, with their mother. During their interview by Mr P there was a very happy exchange between them involving affectionate messages written on the whiteboard, the last of which was R writing “Mum, [R] and [L] are awesome”.
When Dr B arranged at interview for the father and children to draw together, the children used it as an opportunity to offer their father insults. She said that their encounter was unpleasant to observe because clearly neither the children nor their father enjoyed the interactions.
Doctor B said that R displayed an adolescent style of engaging with his father. She said that in this he was influenced by L and his father because they all interacted in a similar bickering, hectoring manner, as if they were peers.
As indicated above, Dr B said that L experienced her father’s style of communicating as mean and sarcastic. Dr B said that this was a more recent generalised perception because she believed that in the past the children have had fun with their father. Dr B said that the father engenders heightened arousal in L which would be stressful for L.

Sub-section 60CC(3)(c) – the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent

Overall, the father has demonstrated that he has been able to facilitate a relationship between the children and their mother. Apart from the time in Tasmania referred to above, there have not been real problems in terms of him handing back the children into her care after time spent with them.
Having said this, the father has been unable to protect the children from his very strong and negative views about their mother. Dr B reported on an instance during the meeting she arranged between the children and their father. The children were arguing with their father and L had asserted that he had made up a story about a fat princess called L which he denied. He then told her that she makes up ugly stories because of what her mother tells her. Dr B also said that in the same session, after R referred to a nasty picture he alleged his father had drawn, he was told by his father “another thing where your mother got her hands on and (blew) up into a piece of shit”.
On the other hand, in my view the Court must have considerable reservations about the mother’s willingness and ability in this regard. The reality is that after more than ten years since the parents separated the children have been left with no relationship with their father. In my view the mother must accept a considerable part of the responsibility for this tragic situation. Dr B was asked by learned counsel for the father whether she thought that over the last ten years the mother had alienated the children from their father. Dr B gave the impression that she did not regard the mother as having done so. She said that she did not have evidence that the mother had chronically undermined the children’s relationship with their father. She thought that the father had failed his children by his poor parenting at times and she thought that his relationship with the children had been undermined by his inappropriate behaviour, particularly in not being able to listen to the children and to be sensitive towards them, rather than being sarcastic. Dr B also said that she thought that the uncertainty caused by the lengthy and ongoing litigation had undermined the children’s relationship with their father.
Dr B said that at times, including in the more recent period of holiday contact, the mother seemed to be going to some effort to support time spent between the children and their father until it all broke down in 2009 when she stopped the time. Dr B also said that if she accepted what the mother said to her at face value, then the mother had tried to be positive in supporting the children’s relationship with their father.
I must say Dr B expressed a more generous opinion of the mother’s interest in supporting the children’s relationship with their father than I have. In my view, she has not paid anywhere near appropriate attention to supporting their relationship. As indicated above, in my view the mother has been much too quick to believe the worst that the children have said from time to time about their father. It has been easy for her to take this approach because she has such a poor opinion of the father.
The mother gave an account of an incident when the children were hitting one another. She pointed out to them that it was not acceptable for anyone to hit anyone else and that it was especially important for a man never to hit a woman. She said that R asked her how come she got with Dad. The mother said that her response to R was that she did not realise that his father was like that when they got together. It appears that the child was left with the misapprehension that his father had been physically violent to his mother. It is difficult not to infer that it simply suited the mother to leave R with this misapprehension.
During Dr B’s interview of the mother and children, the children were saying rude things about their father. The mother did not intervene and correct the children and point out that it was quite discourteous to make those sorts of criticisms about any person, let alone their father.
In any event, the position that the mother has taken now for some years is that the children are not safe with their father and that she does not consider it to be consistent with their interests to support a relationship between them and their father.

Sub-section 60CC(3)(d) – the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents or any other child or other person (including any grandparent or other relative of the child), with whom the child has been living

Dr B said that to feel confident about the likely success of a change of primary residence for the children she would want to see some evidence that there remained a relationship with the parent who was about to become the resident parent or if that relationship had been undermined, confidence that it could be quickly regained. Dr B said that in the present case she did not have the impression that the children could get much comfort from living with their father. So to remove them from the parent with whom they had always lived would cause them great distress and they would need to be with a father who would be able to comfort them. She said that these children do not have a good enough relationship with their father, that his parenting skills were not good enough, that he was not sensitive enough and had not sufficiently advanced his thinking about how he would manage the transition, for there to be confidence that he would be able to manage the behavioural challenges the children would be likely to present.
Dr B said that if the children were placed resident with their father there would almost certainly be a significant deterioration in their emotional well being.
She said that in L there was already the challenge of a (then) almost thirteen year old child who had been truanting, possibly self harming and bed wetting which Dr B described as a very significant symptom of a child in distress. Dr B also said that L is hypersensitive and easily aroused so that she would be at risk of running away. This might well place her in danger and her development would not be “on track”.
Dr B said that in the case of R, he copies L to some extent but he also copies his father in some of his father’s aggressive behaviour. She said that the effect for R of being required to live with his father would possibly be running away, getting into drug taking and using alcohol as a form of self harm.

Sub-section 60CC(3)(e) – the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis.

As indicated above, each parent proposes that the children reside with them and have no time with the other parent. This consideration has very little relevance in these proceedings.

Sub-section 60CC(3)(f) – the capacity of each of the child’s parents and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs.

Dr B described the mother’s presentation as that of a caring and committed mother who was stressed by the ongoing court proceedings but did not have a psychiatric disorder. She said that the mother has had a significant brain injury but there was no evidence of obvious organic impairment, nor that the mother’s capacity for misperception was any greater than that of the average person.
In my view, there is no question that the mother has provided well for the physical needs of the children. There was some disputation between the parties about whether L suffered from asthma. The mother took her to a Dr Y. He made a diagnosis that she suffered from asthma and he prescribed Seratide and Ventolin. The father took exception to this and presented L to a different doctor, Dr W. According to the father, this doctor said that L did not show symptoms which would support such a diagnosis and if she did have asthma, such condition would only be very mild. On this basis the father took considerable exception to L being administered any medication for asthma. As indicated above, this issue became the subject of adjudication by the Federal Magistrates Court.
The children are doing well at school and appear to be happy in their schools.
But in my view, there must be some concern about the mother’s capacity to appropriately attend to the children’s psychological and emotional needs. Looking objectively at what has occurred for the children, that is that they no longer have a relationship with their father, in my view at least part of the responsibility for this situation must rest with the behaviour of the children’s mother, as I have said above. As I have also said, this is a somewhat different view from that expressed by Dr B. But Dr B did not have the benefit of considering all of the evidence which has now come before the Court.
In my view, on numerous occasions, the mother has been incapable of interpreting in a balanced way things which the children said had occurred while in their father’s care.
There are many examples including many of the matters enumerated above as alleged risks for the children. The mother seems to have been unable to regard some of the children’s complaints “with a grain of salt”. That is, she appears to have interpreted their complaints literally and to have failed to contemplate that the children might have been exaggerating, or that the context in which the events referred to by the children occurred was quite different from that presented by them. Or that only a part of what the children were saying was accurate and when the full details or context in which they occurred became apparent, the meaning of what was conveyed by the children would be quite different from how it might have appeared initially.
For example, the mother said that the children complained about an occasion when their father failed to give them breakfast. The father’s explanation was that the previous day a friend had given the children $5.00 each and they had spent it on lollies. He said that they wanted to go to McDonald’s for breakfast and he did not think that this was appropriate. He thought that they had eaten more than enough sugar. So he took them to the fruit shop and bought them fruit for breakfast. The children were most unhappy about this.
In relation to the complaint by the children of their father’s action towards them when required to sit on the chairs, the father said that he did this as a disciplinary measure. He said that it lasted only a short time and after that, he turned it into a game which he demonstrated in the courtroom. So while there was some truth in what the children described to their mother, it would appear that they exaggerated the disciplinary component and did not inform the mother about the game component. This matter was also conveyed in its distorted form to the children’s counsellor and ultimately became the subject of a notification of child abuse to the Department of Community Services, as I have indicated above.
There are numerous other examples and some of these have had similar consequences. That is, the mother, and on many occasions the children’s counsellor, appear to have failed to bring validity testing to many things which the children have related.
In my view, this deficiency on the part of the mother has had very serious emotional and psychological consequences for the children. It has added fuel to the litigation and exacerbated the conflict and hostility between the parents. It has caused the children to be involved in referral, to and questioning by, numerous authorities. Most importantly, it has had a devastating effect on the prospects for the children being able to continue to have a relationship with their father.

This does not mean however, that the blame for the breakdown of the children’s relationship with their father rests solely with their mother’s behaviour. In my view, there are serious deficiencies in the father’s parenting capacity.
Dr B reported that the father presented as “a prickly but vulnerable and troubled individual”. She said that he demonstrated multiple signs and reported symptoms indicative of paranoid functioning. Dr B said whether this was reactive to the chronic recurrent legal proceedings, his personality style or from major psychiatric or organic disorder was unclear. She said that she was unable to make a diagnosis because of the absence of what she described as “unbiased data”.
I had the opportunity to observe the father being cross examined on two occasions. These occasions were separated by approximately six months because of my view that the Court’s consideration of the applications would be assisted by an assessment of the family by a child and family psychiatrist. On each of these occasions, the father demonstrated personal characteristics and a presentation consistent with that described by Dr B. He was angry and appeared to be very upset on both occasions. The more so on the later occasion when he was quite agitated, even unpleasant at times, and unable to restrain himself from using four-letter words. At times he was shouting and thumping the edge of the witness stand in an endeavour to make his point. On more than one occasion he berated counsel for the ICL describing the question she had just asked him as “a stupid question”. Some people might have found such behaviour rather intimidating.
To be fair to the father, when I offered him an opportunity to explain his behaviour he said that he was particularly upset because he had only just learned that morning that L had been causing harm to herself and had been acting out in a more elevated manner than previously. In addition to this, since the earlier part of the hearing, unfortunately the father had been diagnosed as suffering from lymphoma. Amongst the consequences for him of this medical condition have been that he has had his spleen removed and he has undergone a course of chemotherapy. He informed the Court that he had only two more sessions of chemotherapy to complete and that his prognosis was good.
The father did not volunteer this information about his medical situation and he was reluctant to answer questions by me about his state of health. He said that this was because he thought that the other parties to the proceedings would be likely to use such information against his interests.
And I note that on the last day of the hearing, when the father came to personally present his oral submissions, he appeared to be more settled in his mood than he had been the previous day.
In my view, even taking these matters into account, the father’s presentation at court on the previous day was somewhat extreme. Clearly, he was unable to moderate his behaviour to a level more appropriate to a court setting. This appears to me to be consistent with the observations and view of Dr B that the father appeared to be unable to moderate his behaviour to the needs of the occasion and particularly to suit the requirements of his children.
In her Report, Dr B said that the father’s parenting capacity was significantly compromised. She said that he could not engage the children in a sensitive way and that they played up to his unpleasant, sarcastic and at times aggressive manner. She said that their description of some of his dealings with them seemed to accord with his irritable reports of his grossly negative feelings and perceptions about their mother. She said that he attributed malicious intent, arising from greed, to Ms Morrisey, and he did not keep his opinions and feelings to himself when with the children.
Dr B said that whatever positive connections the father had previously made with the children, he was unable to demonstrate positive attunement to them at the assessment. She noted that this had also been the case when he had been seen at the contact centre with the children.
Dr B said that it appeared that the enjoyable times which the father and the children had been able to have together had been outweighed by the times that the children had been intimidated and made anxious by him. She said that he has not tracked their development, moderating himself appropriately to match their temperaments and ages. She said that he had also negated his parental responsibility by failing to suggest what he would provide for the children if they were to live with him.
I note in this regard that the father said that for him to determine parenting arrangements including schools and where he and the children would reside, would depend on him having discussions with the children about these matters after an initial settling down period. Dr B said that consulting with children is appropriate but that these children need to feel that a parent is in charge in order for them to feel secure.
Unfortunately the father has found it very difficult to put the children’s interests ahead of his own. He remains very angry and frustrated with the mother and a system which he perceives as having been very unfair to him.
This was apparent during the interview by Dr B of the father and the children. Dr B reported that during the interview L made a reference to the wooden spoon and chair incident and the father having used a wooden spoon on the children. Dr B said that the father responded to this in an intense manner. Dr B asked the father whether it was useful to speak to the children in such a way and that he responded “the shit has to come to the surface”.
Dr B said that the children and the father tended to “wind each other up” and that the father and children began to argue with one another “as equals”. She said that the father used understatements and sarcasm in a jovial manner which the children clearly did not enjoy. She said that at times during the interview the father spoke to the children in a “jeering manner”.
Another example of the father apparently being unable to put the children’s interests ahead of his own was his attitude to the proposed overseas holiday for the children to visit Disneyland and Hawaii. An application by the mother for permission to remove the children from Australia for a brief period this year for them to have a holiday to the United States was made to me in the final stages of the hearing. I made orders along the lines that she sought. The father had opposed the application. Prominent in his reasons for opposing the application was that he thought it most inappropriate that the parents of a friend of R would be spending time with his children in circumstances where he had been unable to do so for a long time. The father appeared to be unable to see past his own needs and frustrations about this application to weigh these with the joy and educational value which the proposed holiday would be likely to offer the children.
Dr B said that the father’s parenting style was not a parenting style which would be appropriate for any children and that it was not appropriate for his children. She said that while it was fine for him to be true to himself, the inference being that in certain circumstances it would be appropriate for him to say what he thought, in his manner of engaging the children he needed to moderate himself and find a way to make contact and communicate with the children at their level. She said that good parenting was also about being very child focused and she did not consider the father to have the necessary child focus.
In this regard Dr B also said that R said during the interview that he would like to have a father, but a nice father. She interpreted this to mean a father who could relate to him in a way that he was wanting to be related to, that is a father who was not scary, who did not shout and who did not treat him in the way which he has been complaining about.

Sub-section 60CC(3)(g) – the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant.

There is nothing relevant to this consideration which has not been dealt with elsewhere in these reasons.

Sub-section 60CC(3)(h) – if the child is an Aboriginal child or a Torres Strait Islander child: (i) the child's right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and (ii) the likely impact any proposed parenting order under this Part will have on that right;

This is not applicable.

Sub-section 60CC(3)(i) – the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents.

Unfortunately the responsibilities of parenthood have been relegated by each of the parents below their own needs to indulge themselves in ongoing conflict and hostility. This has had a devastating effect on the children’s emotional wellbeing and has destroyed their previously good relationship with their father.
The father in particular, has not been able to rise to meet the challenges of the children’s escalating behaviour and deteriorating relationship with him. He has not shown the insight and the sensitivity required to moderate his own behaviour towards the children and particularly his manner of communicating with them which has been quite confronting and inappropriate.
The mother has failed to restrain the children’s rudeness towards their father which appears to have caused even more frustrating and inappropriate behaviour by the father.
On the positive side, the mother has managed to arrange for the children’s attendance at school and their involvement in their extra curricular and social engagements.

Sub-section 60CC(3)(j) – any family violence involving the child or a member of the child's family;

As indicated above this is not a case where I am concerned that there has been physical violence.
The mother said that when she was living at Town D she was fearful of the father. She said that he did a lot of shouting and she alleged he threatened her.
The mother described the father to Dr B as being controlling, judgmental, verbally and emotionally abusive, volatile, shouting and scary.
When the father was asked by Dr B whether he shouted and screamed, he replied “[the mother] would make you.”. After she said horrible things, he “exploded” and might hit a wall, damage himself, vocalise (shout f…) or break things. He asserted the mother taught him not to get upset and hit things because, with her provocation, he “realised dumb things to do … learnt not to react”, even though he still gets “f….. furious”.
In my view, it is more probable than not that the father has been verbally and emotionally abusive towards the mother. After all, I am satisfied that his behaviour has at times been emotionally abusive of the children. And my own experience of the father in the courtroom was that he was unable to restrain himself from demonstrating his anger, from using four-letter words and behaving at times in a noisy, volatile way as I have referred to above.
The mother did not include any details in her affidavits of any physical contact between the father and herself. She conceded during cross-examination that he had never hit her.
I have referred above to many complaints by the children to their mother about their father’s behaviour. My view about these matters is that it is more likely than not that the complaints have not been an accurate report of the facts involved, that there has been considerable exaggeration by the children and misinterpretation by their mother about those matters.

Sub-section 60CC(3)(k) – any family violence order that applies to the child or a member of the child's family, if: (i) the order is a final order; or (ii) the making of the order was contested by a person;

As indicated above there had been interim AVO’s made for the protection of the mother and the children. But there is no current AVO against the father.

Sub-section 60CC(3)(l) – whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child

These parents have been involved in litigation for most of the lives of their children. The litigation has involved numerous courts. Although all members of the family appear to be exhausted by the litigation, given the long history, one could not be confident that their exhaustion would be any guarantee against one or other of the parents making further applications.
In these circumstances I would not be optimistic that any particular order this Court might make would be least likely to lead to further proceedings.

Sub-section 60CC(3)(m) – any other fact or circumstance that the court thinks is relevant

Dr B said that clearly L is in need of psychological intervention.

Dr B said that it would be appropriate for L to be assessed preferably by a child psychiatrist who would also be able to prescribe medication for her if necessary.
But Dr B also said that it would be important for any intervention and therapy to be managed in a way which would make it clear to L that it was not reportable and was being done quite outside the context of the litigation.
Dr B said that for this reason, there would be no point in the Court ordering such intervention and it would have to be brought about by the parent in whose favour the Court ordered sole parental responsibility.

Sub-section 60CC(4) – Extent to which each parent has fulfilled or failed to fulfil their responsibilities as a parent

These difficulties which have confronted the parents about decision making in relation to the children, communicating about the children and in the father spending time with the children have been referred to above.
The father has paid only a modest amount of child support.

Conclusion

Because in my view it is not in the interests of these children for their parents to have equal shared parental responsibility for them, the legislation does not require the Court to consider the children spending equal time, or substantial and significant time with each of their parents. Rather, what is required is to determine what arrangements would be in their best interests.
Turning to the primary considerations in s 60CC(2) of the Act, as I have observed, these are as follows:
·The benefit to the child of having a meaningful relationship with both parents and
·The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
There is no question that the children have a meaningful relationship with their mother. But, as indicated above, their relationship with their father has broken down. They have not spent any face to face time with him for at least 18 months.
The question arises whether the children can be provided with opportunity to develop a meaningful relationship with their father without being exposed to real danger of emotional and psychological harm, or even perhaps, physical harm, in the sense of their acting out behaviour.
It is clear that the children are suffering a considerable amount of emotional and psychological harm. What should have been a normal childhood development trajectory for them has been interrupted and compromised by the ongoing conflict and hostility between their parents. As indicated above, the children are exhausted by the litigation and extremely frustrated that, despite informing numerous professionals that they wish to live with their mother and have no contact with their father, they still live in limbo in this regard.
As Dr B has indicated, L is in need of psychological assessment and probably some form of therapy.
Given the ages of the children, namely 13 years and 12 years, this Court would usually give weight to their expressed views. Dr B has said that if the Court does not act in a way to indicate to L that her views are respected, then the almost certain consequence will be more risk taking behaviour and possibly real difficulty in managing her behaviour. And Dr B said that it was also important to indicate to R that the Court has acknowledged his opinion and feelings because she saw no evidence that his father had been able to do so.
Each of the children’s parents recognise that things have deteriorated to the point where the children can only live with one or other of them with no contact, at least for the immediate future, with the other parent.
Dr B expressed the view that if the children were required to live with their father in circumstances where they have expressed the strong wish not to have any contact with him, there would almost certainly be very serious emotional and psychological consequences for them. She said that, unquestionably, they would be extremely distressed and would be likely to run away. Their development would fall “off track”. Dr B also said that L’s self harming behaviour and other bad behaviours would be likely to become elevated, possibly involving very dangerous circumstances for her.
Dr B did not regard the father as having the appropriate child focused and interpersonal skills to be able to help the children through such a distressing period. She also said that in any event there was not a sufficient strength in the relationship between the children and their father to enable the children to be sustained emotionally through what subsequently would be a very challenging period in their development. She said that in terms of acting out adolescent behaviour, R was not very far behind his sister. So he would be at risk of running away, getting involved in drug-taking and alcohol abuse as a form of self harm.
I accept the opinion of Dr B. The mother, in my view, must be regarded as having some serious shortcomings in her parenting capacity. As I have said, in my view, her behaviour, at least in part, has also been responsible for the situation that the children now find themselves in. Having said this, the children do have a good relationship with her. She has been able to attend to their physical needs, as well as to manage their schooling and other activities.
I accept the opinion of Dr B, and the submissions by learned counsel for the ICL and the mother, to the effect that the Court could have some confidence that the mother would be able to provide a stable situation for the children. This must be regarded as one of the highest priorities for them so that appropriate intervention can be made and hopefully, much of the emotional harm which has been done to them can be repaired.
But of course there will be a terrible price for the children being restricted to living with only one of their parents and not spending time with their other parent. That being that these children, at least for some years, will not be able to have a meaningful relationship with their father.
Tragically, in my view, there is no alternative in the interests of L and R.

I certify that the preceding two hundred and twenty-four (224) paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Johnston delivered on 14 August 2012.

Associate:

Date: 14 August 2012

[2012] FamCA 672

14 August 2012

Key Legal Topics

Areas of Law

Family Law