MITFORD & LAIDLER

FEDERAL CIRCUIT COURT OF AUSTRALIA

MITFORD & LAIDLER

[2015] FCCA 1273

Catchwords:
FAMILY LAW – Parenting – whether the father’s abusive behaviour means that sole parental responsibility should lie with the mother of the parties’ two children – whether an order should be made requiring an almost eight-year-old child to spend time with the father contrary to her wishes.

Legislation:

Family Law Act 1975, ss.4, 60B, 60CA, 60CC, 61C, 61DA, 64B

Mazorski v Albright (2008) 37 FLR 518
Tait & Dinsmore [2007] FamCA 1383

Applicant:

MR MITFORD

Respondent:

MS LAIDLER

File Number:

MLC 8563 of 2007

Judgment of:

Judge Small

Hearing dates:

30 & 31 January 2015

Date of Last Submission:

27 February 2015

Delivered at:

Dandenong

Delivered on:

20 May 2015

REPRESENTATION

The Applicant:

In Person

Counsel for the Respondent:

Mr T. Weerappah

Solicitors for the Respondent:

Bayside Solicitors

Counsel for the Independent Children's Lawyer:

Ms J. Elleray

Solicitors for the Independent Children's Lawyer:

Victoria Legal Aid

ORDERS

All previous parenting orders in relation to the children [X] born [in] 1999 and [Y] (“the children”) born [in] 2007 are hereby discharged.
The mother shall have sole parental responsibility for the children.
The children shall live with the mother.
The children shall spend time with the father only according to their express wishes, those wishes first having been conveyed to the mother, and the mother at her sole discretion may facilitate that time by agreement with the father in writing.
Any decision as to whether any time spent between the children and the father should be supervised shall rest with the mother.
The father shall be permitted to send to each of the children cards, letters and gifts no more than six times per year, those six times to include Christmas and the particular child’s birthday.
The mother shall be permitted to read all communications the father sends to the children, and may withhold those communications from the children or either of them should they contain any material which she in her sole discretion considers likely to cause distress to the children or either of them.
Pursuant to s.68B of the Family Law Act 1975 the father is hereby restrained by injunction from:
(a)attending within 200 metres of the mother’s home or workplace unless expressly invited to do so by the mother in writing;
(b)attending within 200 metres of the children’s school or schools unless expressly invited to do so by the children or either of them and with the consent of the mother first obtained in writing;
(c)attending any extracurricular or sporting activities attended by the children unless expressly invited to do so by the children or either of them and with the consent of the mother first obtained in writing;
(d)contacting the children or either of them in any other form, save that he may respond to any letter, email, Facebook, Twitter or like electronic communication sent to him by the children or either of them. The father shall cease and desist any form of electronic communication with the children or either of them upon the particular child’s request that he do so.
The father shall be permitted to obtain at his own expense and directly from the children’s school or schools copies of the children’s school reports and photographs.
The parties are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other or any member of the other’s family in the presence or hearing of the children or either of them, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(b)discussing these proceedings or any parenting disputes or issues in the presence or hearing of the children or either of them, and from allowing them to remain in the presence or hearing of any third party who is engaging in such conduct;
(c)showing, reading or interpreting any part of the court’s reasons for judgement in this matter to the children or either of them save to explain the content and operation of paragraphs 3, 4, 6, 8 and 9 of these orders, and from allowing any third party to do so.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DANDENONG

MLC 8563 of 2007

MR MITFORD

Applicant

And

MS LAIDLER

Respondent

REASONS FOR JUDGMENT

Introduction

Mr Mitford (“Mr Mitford” or “the father”) has become estranged from his children [X] born [in] 1999 (“[X]”) and [Y] born [in] 2007 (“[Y]”) (“the children”).
He wishes to spend time and communicate with them, and to share parental responsibility for them with their mother.
Neither child wishes to spend any time or communicate with

Mr Mitford.
The children’s mother, Ms Laidler (“Ms Laidler” or “the mother”) seeks orders that she have sole parental responsibility for the children, that they live with her, that [X] spend time with Mr Mitford according to his wishes and that [Y]’s time with Mr Mitford be reserved.
She says that her relationship with Mr Mitford was characterised by volatility and family violence perpetrated by him, and that that violence and abuse has continued after separation.
By the time the trial of the matter reached its final conclusion,

Mr Mitford was no longer seeking orders that he spend time and communicate with [X], but he still sought orders that he spend time and communicate with [Y], and for equal shared parental responsibility in relation to both children.
The issues to be decided in this matter, as agreed between the bar and bench at the commencement of the trial may be set out as follows:
A.
Is there enough evidence before the court for a finding to be made that Mr Mitford has perpetrated family violence against

Ms Laidler and the children?
B.Who should bear parental responsibility for the children?
C.Should [Y] spend any time with Mr Mitford and if so should that time be supervised?

Background

Mr Mitford was born on [omitted] 1956 and is thus almost 59 years old.
Ms Laidler was born on [omitted] 1965 and is 49 years old.
The parties commenced cohabitation in June 2003 and finally separated in February 2007. There were several periods of separation between those dates.
[X] and [Y] are the only children of this relationship. [X] was born some four years before the parties began living together and [Y] was born about five months after final separation.
These are the third set of proceedings relating to [X] and [Y]’s care to come before this court.
Mr Mitford lives in the home in [omitted] that he shared with

Ms Laidler, he being the sole registered proprietor of that property. At the time of trial he was unemployed.
Ms Laidler lives with the children at an address whose precise location is unknown but is believed to be somewhere on the Mornington Peninsula. Ms Laidler is engaged in full-time home duties.

Procedural History

As a result of the first set of proceedings between these parties, Final Orders were made by consent by Federal Magistrate Hughes (as Her Honour then was) on 4 February 2008.
Final Orders in the second set of proceedings were made by consent before Federal Magistrate McGuire (as His Honour then was) on 20 July 2011.
Those orders provided for the parties to have equal shared parental responsibility for the children, that the children to live with the mother and spend specified time with the father.
The current proceedings began when the Father filed his Initiating Application on 18 September 2013 seeking parenting orders. He also filed a Contravention Application on that day.
The parenting orders he sought provided for the parties to have equal shared parental responsibility for the children; that [X] live with the Father; that [Y] live with the Mother; and for various spend time arrangements between the parties and the child not in their respective care.
On 26 September 2013 the mother filed her Response seeking that the Father’s Application filed on 18 September 2013 be dismissed and that the Final Orders made on 20 July 2011 remain in full force and effect.
The proceedings came before me for the first time on 2 October 2013 in the Duty List. At that hearing the parties and children were ordered to attend upon a Family Consultant for a s.11F Child Inclusive Conference. Further procedural orders were made and the matter was adjourned for an Interim Hearing on 12 March 2014.
On the return date on 12 March 2014, I made orders for the appointment of an Independent Children’s Lawyer and a Family Report, and set the matter down for Final Hearing on 13 November 2014.
On 2 June 2014, the Independent Children’s Lawyer filed a notice of address for service and joined the proceedings.
The Family Report of family consultant Ms O (“Ms O”) was released on 16 September 2014.
On 8 October 2014 an Interim Intervention Order was made in the Magistrates Court of Victoria, naming Ms Laidler, [X] and [Y] as Affected Family Members and Mr Mitford as the Respondent.
On 30 October 2014, the Applicant filed an Amended Initiating Application which sought for all previous parenting Orders to be discharged; that both children live with the Mother and spend time with the Father.
On 13 November, the matter was not reached for Final Hearing and was adjourned to 29 January 2015 for Final Hearing and procedural Orders were made.
On 29 January 2015, the proceedings came before me for Final Hearing. The trial ran for two days and due to time constraints, final submissions were adjourned for a Mention Hearing on 27 February 2015.
Witnesses were Mr Mitford, Ms Laidler and Ms O, all of whom were subjected to cross-examination.
Once final submissions were made on 27 February 2015 I reserved my decision.

Issues

A. Is there enough evidence before the court for a finding to be made that Mr Mitford has perpetrated family violence against Ms Laidler and the children?

The law in relation to family violence

The definition of family violence as set out in section 4AB of the Family Law Act 1975 (“the Act”) is as follows:
Section 4AB (1) 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.
Section 4AB(2)   Examples of behaviour that may constitute family violence include (but are not limited to):
(a) an assault; or
(b) a sexual assault or other sexually abusive behaviour; or
(c) stalking; or
(d) repeated derogatory taunts; or
(e) intentionally damaging or destroying property; or
(f) intentionally causing death or injury to an animal; or
(g) unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h) unreasonably withhold in 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
(i) preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j) unlawfully depriving the family member, or any member of the family members family, of his or her liberty.
Section 4AB(3) 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.
Section 4AB(4)      examples of situations that may constitute a child being exposed to family violence include (but are not limited to) the child:
(a)     overhearing threats of death or personal injury by a member of the child’s family towards another member of the child’s family; or
(b)     seeing or hearing an assault of a member of the child’s family by another member of the child’s family; or
(c) 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
(d)     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
(e)     being present when police or ambulance officers attended incident involving the assault of a member of the child’s family by another member of the child’s family.

The mother’s evidence

Ms Laidler’s evidence is that the relationship between her and

Mr Mitford was “stormy” from the beginning but that it was

Mr Mitford who was the perpetrator of physical, verbal and emotional family violence against her and the children both during the relationship and after separation.
Some examples of her allegations, which were unshaken by cross-examination at trial, are as follows:
·    Mr Mitford’s general demeanour and behaviour was coercive and controlling.
·    Mr Mitford suffers from depression and was often prone to outbursts of rage during which he would act in a violent and intimidating manner.
·    During the relationship, when Mr Mitford was stressed or angry, he would turn on the gas stove, light matches and flick them towards the stove.
·    Mr Mitford threatened to commit suicide on multiple occasions during the relationship and he provided details about how he intended to do so.
·
On 3 February 2007, when Ms Laidler was about four months pregnant with [Y], Mr Mitford pushed her and she fell against the cradle she had recently purchased for the expected baby.

Mr Mitford then punched her with a clenched fist to the face to which she retaliated by scratching him. He then punched her again to the right side of her face whereupon she defended herself by scratching him again and attempted to leave the premises. She was unable to do so because Mr Mitford had deflated her car tyres. Ms Laidler called the police who attended and assisted her to pack her belongings and inflate the tyres. She then left with [X] and the parties’ pets.
·    Upon leaving the family home on that day Ms Laidler drove to a petrol station and it was her evidence that Mr Mitford followed her in his car in order to intimidate her.[1]
·    Mr Mitford sent abusive, emotive and manipulative emails to [X] in an attempt to get [X] to spend time with him.
·    Mr Mitford has physically assaulted [X] leaving marks on his body.
·    Mr Mitford has criticised and denigrated her in [Y]’s presence.
·    Mr Mitford had coerced [X] into writing letters to her which contained false accusations of abuse and supported Mr Mitford’s case in this court.
·    Mr Mitford showed affidavit material and other court documents to [X], as a result of which [X] was so distressed that he attempted to self-harm, leading him to be under the care of a psychologist.
[1] I note that shortly after the separation date Ms Laidler obtained an eleven month Intervention Order against Mr Mitford. The Applicant for that Intervention Order was a police officer.

The father’s evidence

In his affidavit material Mr Mitford says that any “outbursts of rage” were as a result of Ms Laidler breaching court orders.
Under cross-examination at trial, Mr Mitford admitted having hit [X], leaving a red mark on him. He denied however that that action had been a “vigorous whack”.
He further denied having “outbursts of rage” or physically assaulting Ms Laidler.
He conceded that he had deflated Ms Laidler’s car tyres on the date of separation and that he had done so to prevent her from leaving the home with [X]. He denied that he had followed her to the service station, saying that he had gone there to buy cigarettes and milk and that it was a coincidence that Ms Laidler had driven to the same service station.
When asked whether deflating Ms Laidler’s car tyres would create a risk for Ms Laidler and [X] if Ms Laidler drove the car, Mr Mitford replied that she would not have been able to drive the car because the tyres had been flattened. When pressed further he said that if the tyres were flat Ms Laidler should not drive the car. He did not concede that his actions had placed Ms Laidler and [X] at any risk.
When asked whether he had punched the wall when [X] was present, Mr Mitford said he did not know. When pressed, he said that he may have done so, and if so, it had been on one occasion only. I did not find that evidence convincing.
He conceded that when he became aware that [X] had told Ms O in early 2014 that he did not wish to live with him, he had asked [X] on three separate occasions over the ensuing days whether he had changed his mind. Mr Mitford said that when his own father had thought he was lying he would persist with questions three times to ensure that he was telling the truth. He did not see anything untoward in that behaviour.
Mr Mitford counter-alleges that Ms Laidler was physically abusive towards [X] on several occasions, examples being that on one occasion she had pinned him against a wall, on another slapped his face, and on another had hit him on the hands with a crutch leaving red marks.
He makes a general allegation that Ms Laidler unreasonably disciplined both [X] and [Y].
Ms Laidler denies that she ever pinned [X] against a wall but concedes that she had blocked his way in order to ensure that she could speak to him, and that she had slapped him on the face once in response to abusive and profane language which [X] told her his father had told him to use. She otherwise denies Mr Mitford’s allegations.

The expert evidence

I note that a report received from the Department of Human Services (“the Department”) in response to a request made pursuant to s.69ZW of the Act, discloses that the Department had received several notifications about Ms Laidler’s care and treatment of [X] between 2003 and 2011, one of those, in 2008, resulting in Ms Laidler being assisted by Anglicare in relation to her parenting skills. However, it would appear that at least the later notifications were made by

Mr Mitford in the context of family law proceedings and no further action was taken by the Department.
The s.69ZW report also mentions notifications in relation to the children being exposed to family violence, although it notes that each parent blamed the other for that situation, and physical abuse of [X] by Mr Mitford.
The s.11F memorandum prepared by Ms O on 21 January 2014 notes cross-allegations of historical family violence being made by both parties.
Ms O also notes that Mr Mitford confirmed that he had shown affidavit and other court material to [X], and that he acknowledged that that behaviour was inappropriate.
In her full family report dated 16 September 2014 (“the family report”), Ms O says that the father was defensive when challenged about his behaviour or prompted to reflect on it.
She described his general presentation at interview as “a highly aroused and agitated state, fidgeting, rubbing his face and his head”.
Ms O did not observe the children with Mr Mitford for the purposes of that report because the children did not wish to see him, and

Mr Mitford was in “an aroused state”. Ms O wrote that she had no confidence in Mr Mitford’s ability to control his anger and frustration in the presence of the children.
Ms O reports the following in relation to [X]’s description of his father:
[X] explained difficulties in his relationship with his father. He described this (sic) father’s inconsistent and unpredictable moods, which include sadness (and crying for long periods) and include extreme anger and his father will “explode”. He described the stress he experienced not knowing what mood his father would be in when he arrived for weekend spend time. [X] described feeling more calm in the absence of having to worry about this.
[X] read text messages (from his phone) that his father had sent him up until July 2014. The text messages were all in response to him refusing contact and included threats and emotional manipulation. It was clearly distressing for [X] to have been held responsible for his father’s emotions[2].
[2] The family report of Ms O dated 16 September 2014, paragraphs 40 and 41.

[Y] reported to Ms O that her father teased her, that he had put cornflakes and eggs in her underwear, and that he had made her sit down on the eggs.
I note that when he was asked about that at trial, Mr Mitford was adamant that it was [X] who had put cornflakes and eggs in [Y]’s underwear.
In her evaluation of the family Ms O writes the following in paragraphs 55, 57 and 58 :
Ms Laidler has alleged that Mr Mitford perpetrated family violence throughout their relationship. The behaviours and violence that she described is coercive and controlling family violence. Coercive controlling family violence is a pattern of behaviour intended to cause fear in the “victim” and to control their behaviour. This form of violence is most commonly continued even after the parties have separated. Perpetrators of coercive and controlling family violence demonstrate vengeful behaviours and the abusive party will undermine the other party with intent to purposely breakdown (sic) the relationship that parent has with the child/ren. The perpetrator demonstrates possessiveness, extreme jealousy and can be insistent on sole authority in multiple domains such as childrearing, financial and social etc.
When coercive and controlling family violence is present cooperative co-parenting and resolution is very rarely achieved and the Family Law system is often misused by the perpetrator in attempt to regain “control”….
The information provided in the preparation of this report indicates that Mr Mitford has been perpetrating coercive and controlling violence towards [X]. His text and email messages include threats and attempts to manipulate [X] to feel guilt and responsibility for his father’s emotions and to “lure” him to spend time.
The description of Mr Mitford’s violent behaviours over time and more recently and that he demonstrates no insight into his behaviours indicates a high risk of ongoing abuse. Mr Mitford will amongst other things, continue to violate [X]’s emotional boundaries and undermine the mother-child relationship.
At trial Mr Mitford forcefully rejected Ms O’s description of him and again denied that he had perpetrated family violence against either

Ms Laidler or [X] other than in very minor ways.
On the basis of the above evidence, and after observing both parties and Ms O in the witness box, where the evidence of the parties conflicts I prefer the evidence of Ms Laidler.
On balance, I find that Mr Mitford has engaged in controlling and coercive behaviour, that he has committed physical, verbal and emotional family violence against Ms Laidler and the children, and that his lack of insight into the impact of that behaviour means that he is unlikely to change in the future.
I find further that on balance, Ms Laidler has also engaged in behaviour which falls under the definition of family violence in relation to her treatment of [X], but find that that is an historical issue and that

Ms Laidler has done what she can to address those issues by seeking the assistance of a counsellor.
I also find, on the balance of probabilities, that most of the physical violence Ms Laidler perpetrated against Mr Mitford during the relationship was in self defence against his aggression.

B. Who should bear parental responsibility for the children?

Mr Mitford seeks an order for equal shared parental responsibility for [X] and [Y].
Ms Laidler seeks an order for sole parental responsibility in relation to both children.
The law relating to parental responsibility for the children of separated parents is found in Division 2 of Part VII of the Family Law Act 1975 (“the Act”), and more particularly in ss.61C and 61DA.
Section 61C(1) and (2) state that each of the parents of a child who has not reached the age of 18 years has parental responsibility for the child, whether or not the parents are living together, are married, or have separated.
In Note 1 attached to s.61C(1), the Act makes clear that the above statement simply states the legal position that exists unless and until an order to the contrary is made by the court.
Section 61 DA states as follows:
(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.
(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 parents family (or that other person’s family); or
(b) family violence.
Subsection 4 of s.61DA states 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.
Given the findings I have made in relation to the question of family violence in this matter, I have no option but to find that the presumption of equal shared parental responsibility does not apply in this case.
I am therefore not required to consider whether the presumption is rebutted by evidence that it would not be in the children’s best interests for their parents to share parental responsibility for them.
The relationship between Mr Mitford and Ms Laidler has been so damaged that they cannot communicate with each other in any civil fashion at all.
In an affidavit he prepared himself, sworn and filed on 2 October 2014, Mr Mitford sets out what can only be called a diatribe against

Ms Laidler’s character. I set out here just a few extracts from that short affidavit to convey its tone.
Extract 1:
I [Mr Mitford] make this statement to the court which outlines the moral standing and character of Ms Laidler.
I Believe The Following Is A Criminal Negligence.
By The “Act Of Deception” And “Outrageous Misconduct”.
And It “Breaches A Duty Of Care”.
“Conduct That Falls Below The Standards Of Behaviour Of A Rational Person”
“Accordingly Established By The Law Of Deception (sic)
Extract 2:
What kind of person is Ms Laidler. Ms Laidler lies, steels (sic), manipulates, controls,
All very good qualities to teach children.
As I have found out later, Ms Laidler manipulated me into conceiving [Y].
He alleges that Ms Laidler became pregnant with [Y] against his specific wishes in order to obtain the government baby bonus and to avoid having to return to work.
Mr Mitford then goes on to discuss potential property claims which are not part of these proceedings.
His contempt for the mother of his children was very obvious in every affidavit he swore, and in every word he spoke about her in the witness box and from the bar table.
He also exhibited that contempt when he was interviewed by Ms O.
Even if Ms Laidler were prepared to share parental responsibility with him, his palpable hatred of her would make joint decision-making impossible in any practical sense.
For these reasons, as the presumption does not apply, I will make an order for Ms Laidler to have sole parental responsibility for [X] and [Y].

C. Should [Y] spend any time with Mr Mitford and if so should that time be supervised?

An order that a child spend time and communicate with a parent is a parenting order pursuant to s.64B(2) of the Act.
The objects and principles underlying orders to be made in relation to children are set out in s.60B of the Act, and I set out sub-sections (1) and (2) here in full for the benefit of the parties.
Section 60B(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 and 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.
Section 60B(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 communicating the bank 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).
Section 60CA obliges the court to take the best interests of a child as its paramount consideration when making any parenting order.
Section 60CC sets out the matters which a court must take into account when considering orders that are in the best interests of the child and I set those matters out here in full.
Primary considerations:
s.60CC(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.
Note:     Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
The question of what constitutes a meaningful relationship between a child and that child’s parents has been discussed many times in the published decisions of the Family Court of Australia and this court.
Perhaps the most quoted words are those of Brown J in the case of Mazorski v Albright where Her Honour said the following:
I proceed on the basis that when considering the primary considerations and the application of the objects and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.[3]
[3] Mazorski v Albright (2008) 37 FLR 518 paragraph 26
In another oft-quoted passage, in Tait & Dinsmore [2007] FamCA 1383, Cronin J said, at paragraph 170:
To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
Much time was spent at trial in examining whether Mr Mitford preferenced his relationship with [X] over that with [Y], and indeed whether he really wanted to spend time with [Y] at all.
He was adamant in the witness box that he loved his daughter and would “do anything for her”, although he expressed some considerable reluctance when presented with the idea that he might spend time with [Y] at a children’s contact centre.
In Mr Mitford’s Initiating Application, and for some time after that Application was filed, he was seeking orders that [X] live with him and that [Y] live with Ms Laidler. It was clear from his evidence at trial that he had not considered the effect on [Y] had those orders been made.
At the beginning of trial he had abandoned his wish for [X] to live with him and was simply seeking time with him and [Y]. It was midway through the trial that Mr Mitford informed the court that he was no longer seeking any orders in relation to [X] other than an order for equal shared parental responsibility.
In circumstances where [Y] did not see her father at all between January 2009 and early 2011, and her relationship with him has been intermittent at best between 2011 and early 2014, with no time being spent after that, it is difficult to see how [Y] can be said to have a meaningful relationship with her father in the terms set out by Brown J and Cronin J.
Ms O says that Mr Mitford stated very clearly at interview that if he was not to be spending time with [X] he did not want to spend any time with [Y]. She writes that Mr Mitford said that without [X] present, “he (Mr Mitford) would be vulnerable to allegations (made by Ms Laidler) that he is a paedophile. He considers that Ms Laidler is capable of making such serious allegations based on her behaviour and (alleged) contravention of the orders.”
At trial Mr Mitford denied having made the statement that any time he spent with [Y] would be conditional upon him spending time with [X] as well, but Ms O, referring to her notes made at the time of interview, was adamant that the statement had been made.
On the basis of Mr Mitford’s presentation at court and his evidence given in the witness box, where Mr Mitford’s evidence conflicts with that of Ms O I prefer the evidence of Ms O.
Ms O also says that while [Y] was able to think about her mother’s perception and feelings towards her, she was unable to do so in relation to her father, and Ms O states that there was little to indicate that [Y] shares a positive emotional connection with him.
Ms O concludes that “there is little indication that [Y] and Mr Mitford share a meaningful relationship.”
On the basis of that evidence, the evidence of family violence set out above, and the fact that it has now been more than a year since [Y] has had face-to-face time with Mr Mitford, I cannot find that [Y] has a meaningful relationship with her father in terms of s.60CC(2)(a).
The evidence of family violence as set out above, [Y]’s perception of her father as “being mean” to her as reported by Ms O, and

Mr Mitford’s apparent lack of concern at the impact on [Y] should orders be made that [X] live with him, satisfies me that there is a need to protect [Y] from physical and psychological harm at the hands of her father.
In accordance with s.60CC(2A), I put the need to protect [Y] from that harm ahead of any benefit she might derive from having a meaningful relationship with him.
Additional considerations:
Section 60CC(3) Additional considerations are:
(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;
[Y] is described by Ms O as “mature for her age, with a strong and forthright personality and a cheeky sense of humour”. While [Y] is not quite eight years old, she was well able to provide her views to Ms O.
She told Ms O that she was reluctant to consider spending time with Mr Mitford unless [X] was present.
Given that no orders are to be made in relation to [X] spending specific time with his father, [Y]’s views take on some significance, and while they do not have the same weight as similar views expressed by a teenager, I do take them into account.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
Ms O writes that [Y] had both described and displayed a warm and caring relationship with her mother.
However, as set out in paragraphs 85 to 97 of these reasons, the relationship between [Y] and her father is for all intents and purposes non-existent, even on Mr Mitford’s own evidence.
At trial, when Mr Mitford was being cross-examined by counsel for the Independent Children’s Lawyer, the following exchange took place:
Counsel: See, the problem with your evidence, Mr Mitford, is that I’ve got to prompt you to remember [Y]. You don’t seem to remember [Y] unless you’re prompted?
Mr Mitford: I spent 100 days with [Y] out of her life. I don’t know [Y].
Later in that cross examination Mr Mitford said the following:
I haven’t spent the time with [Y]. I don’t know what her favourite colour is….. I have not spent the time with my daughter. [X] and me are slightly different. Yes, it’s slightly different. I’m trying to teach [X]. I’ve taught him a bit about carpentry, or electric drills or handsaws or be careful, or something like that. It’s a little bit different. With [Y], I play games on the computer and it’s painting or it’s something like that. It’s a little thing. I’ve mucked around with more children in my life of [X]’s age than [Y]’s age. I don’t know what to do with a young child.
Those statements do not indicate that there is much substance to the relationship between father and daughter at all.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
There is no doubt on the evidence before the court that Ms Laidler has taken every opportunity to participate in decision-making in relation to [Y], and to spend time and communicate with her.
Mr Mitford has sought court orders in relation to [Y] and it appears that until these proceedings he had spent some time with her pursuant to previous court orders, although he claims that Ms Laidler has not facilitated his relationship with his daughter, and indeed he alleges that she has flagrantly breached previous court orders.
It is clear to the court from his own evidence, both in affidavit material and at trial, that Mr Mitford’s major motivation in these proceedings has been to obtain orders that he spend time with [X]. It appears that time with [Y], while sought, has not been pursued to the same lengths nor with the same ferocity.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
Ms Laidler, as the primary carer of both children, has provided accommodation, material support and all financial support for both [Y] and [X].
Mr Mitford has not paid assessed child support for [Y] for some years, he says because he is unemployed, and it is Ms Laidler’s evidence that he has refused to pay for any of her educational or material expenses.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
If I were to make orders that [Y] spend time with Mr Mitford, the father who for all intents and purposes she hardly knows, it is likely that she might experience some distress, especially in circumstances where it is most unlikely that [X] would accompany her. Indeed [Y] herself told Ms O that she did not want to see her father without [X] being present.
(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;
The parties live approximately 75 to 90 minutes apart. That distance would not prohibit [Y] spending time and communicating with

Mr Mitford, but it does mean that there would be expense involved, and given Mr Mitford’s failure to support his family after separation, that may present problems.
However, on its own, this is not particularly significant factor in this case.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) 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;

On the evidence before the court, I am satisfied that Ms Laidler is able to provide for [Y]’s needs, whether material, emotional, or intellectual.
In contrast, while Mr Mitford might well be able to provide for [Y]’s intellectual needs, I am not satisfied that he has any commitment to providing for her material needs, and I am even less satisfied in relation to his capacity to meet her emotional needs.
His preference for his relationship with [X], the manipulative nature of that relationship, his palpable hatred of his children’s mother, and his erratic, volatile and unpredictable behaviour throughout these proceedings can give the court no confidence that he is able to meet [Y]’s emotional needs.
(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;
The court has no concerns about any of these factors in relation to [Y], and any concerns in relation to Ms Laidler have been allayed by evidence that she has sought the assistance of a psychologist in relation to her parenting skills.
Again in contrast, the court has grave concerns about Mr Mitford’s maturity.
He told Ms O during his interview in preparation for the s.11 F memorandum in January 2014 that he would respect [X]’s wishes in relation to living with him. However, once [X]’s wishes to live with his mother were known, Mr Mitford did not abandon his application for [X] to live with him until he filed his Amended Initiating Application on 13 November 2014, which was shortly before the initial listing for trial and some two months after the release of the family report which was critical of him in that respect. Ms O writes that she has no confidence in Mr Mitford’s statements that he will abide by the children’s wishes in future.
The Facebook conversation between Mr Mitford and [X] on 22 March 2014, which Mr Mitford himself annexes to his affidavit affirmed and filed on 19 January 2015, displays a childish, somewhat narcissistic, manipulative, vindictive and victim-oriented personality. To use the vernacular, it’s all about him, and it clearly displays his immaturity. [X]’s part of the conversation shows an adolescent boy trying desperately to please his father while attempting to shield himself from his vitriol.
At trial Mr Mitford was at times evasive when under cross-examination by counsel for Ms Laidler and counsel for the Independent Children’s Lawyer, and appeared to change his evidence to suit his case when his previous evidence was shown to have been incorrect, again showing a lack of maturity.
Throughout the trial he exhibited an inability to reflect upon his own behaviour, or to see it in any other light than his initial perception. This is shown in his almost total rejection of Ms O’s report and its recommendations, and his constant justifications and rejections of any material before the court which showed him in a negative light.
He also agreed with counsel for the Independent Children’s Lawyer that he had a “victim mentality”, saying:
At the moment, yes. Every time I turn around I’m wrong. Every time I do something I’m wrong. I’ve been told in affidavits, whatever, “The children don’t want to see you.” So what’s the use of giving a present? What’s the use of making a phone call, if you had a phone to ring?
His whole demeanour at trial was that of a man who sees himself as a victim: of his children, their mother and the court system. He is unable to look at the world through any other person’s eyes, to reflect on his own behaviour, or to contemplate that that behaviour might be inappropriate, save to say when challenged: “I mucked up. I’m human.”
(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 a relevant consideration in these proceedings.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
It is again clear from the evidence before the court that Ms Laidler has shown a positive commitment to her children and to her responsibility as their parent, albeit that she has needed some assistance in fulfilling that responsibility in the past. There is no doubt in my mind that

Ms Laidler’s current attitude to her children, and to her responsibility as their mother, is positive and appropriate.
Mr Mitford on the other hand appears to have seen [X] at best as similar to an adult friend who might support him rather than as an adolescent son who needs his support, and at worst as a piece of property over which he ought to have control.
His attitude to [Y], as evidenced by his concentration on [X] as the subject child of these proceedings, demonstrates that he sees [Y] as somehow less important than [X], which shows an appalling lack of insight into his responsibilities as her father.
His evidence in relation to [Y]’s birth is quite confronting. He alleges that Ms Laidler tricked him into having [Y] and states his belief that her deception at that time was criminal. He confirmed his affidavit evidence in relation to his beliefs about that issue at trial. His anger about what he sees as Ms Laidler’s criminal deception is clear both in the content of his affidavit affirmed and filed on 2 October 2014 (see paragraphs 70 and 71 above), and in his demeanour in the witness box as he gave evidence about that issue.
Mr Mitford expressed a strong belief in the forms of discipline with which he himself was raised. When asked about a time when [Y] had “trashed” her room upon arriving at his home he said:
Apparently I’m not allowed to smack a child anymore and I think that’s absolute rubbish. But it’s discipline. It’s just called discipline. And, as I said, and I will state it again, I’ve never picked up a stick, I’ve never thrown her over a fence, I’ve never bounced her off the floor – both [X] and [Y], but if – if a child is doing something wrong, it’s a slap on the arse, “Go to your room and fix it.”
Counsel for the Independent Children’s Lawyer: But that may be out of step with today’s modern parenting?
Mr Mitford: Yes, and that makes me wrong.
In relation to his reaction to [Y]’s behaviour on that occasion the following exchange took place:
Counsel for the Independent Children’s Lawyer: What about going in there and sitting down with her and saying, “What’s wrong, love? Talk to Dad”?
Mr Mitford: Haven’t got – can’t. I’ve got to wait until she literally destroys her room for an hour. She’s – she destroyed it. She locked the – everything. She was inside the room. She pushed everything, and I mean everything, against the door.
His agitation when saying this displayed an inability to cope with any untoward behaviour on [Y]’s part, or to attempt to respond with anything other than what he called “discipline”.
These exchanges between Mr Mitford and counsel for the Independent Children’s Lawyer in particular displayed a rigidity and a lack of empathy and insight that does not speak well of his attitude to [Y] or to his responsibilities as a father.
(j) any family violence involving the child or a member of the child’s family
I have already set out evidence and findings in relation to family violence in paragraphs 31 to 57 of these reasons and will not repeat them here.
(k)     if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)      the nature of the order;
(ii)     the circumstances in which the order was made;
(iii)    any evidence admitted in proceedings for the order;
(iv)    any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
Two Intervention Orders have been made between these parties, both with Ms Laidler as the Affected Family Member and Mr Mitford as Respondent.
The first was made on the Application of a police officer on 27 March 2007 in the aftermath of the parties’ separation. Mr Mitford was present on that day and agreed to the Order being made until 15 February 2008. There do not appear to have been any allegations of breaches of that Order, and the court is unaware of any charges being laid.
In the latest Application, Ms Laidler obtained an Interim Intervention Order against Mr Mitford on 8 October 2014. That Order names

Ms Laidler and both children as Affected Family Members and was made ex parte. I am unaware of whether a final Intervention Order has been made as a result of that Application, or, if so, the circumstances under which that order was made.
I note that the Interim Order was made approximately one month before the initial Final Hearing date in this matter, and approximately one month after the release of Ms O’s full family report.
(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;
While the evidence before the court overwhelmingly leads me to reject Mr Mitford’s application for orders that he spend time with [Y], I will leave open the possibility that in the future [Y] may express a wish to spend time and/or communicate with him.
It would not be unusual for an adolescent child who has not seen a parent for many years to be curious about that parent, and to seek to make contact with him.
So that [Y] has some sense of who her father is in anticipation of those circumstances, and so that the currently minimal connection between them is not severed completely, I will make orders permitting

Mr Mitford to send cards, letters and gifts to both [Y] and [X]. In order to protect both children from any inappropriate content in those cards, letters and gifts, I will make an order that provides for Ms Laidler to monitor any communications.
Mr Mitford has in the past been dismissive when considering potential orders which would allow such contact, intimating to Ms O and stating directly in court that there was “no point” in such contact, but the orders I propose to make will at least allow for the possibility of some contact between Mr Mitford and his children into the future. It will be entirely in Mr Mitford’s hands as to whether he takes that opportunity.
I will also make orders that if [Y] and/or [X] express a wish to

Ms Laidler that they would like to spend time and/or communicate with Mr Mitford, the decision about that eventuality will rest with

Ms Laidler.
Those particular orders will ensure as far as possible that Mr Mitford is not able to manipulate [Y] to her detriment in the way that he has been able to manipulate [X].
While these are the third set of proceedings involving these parties and these children, it is to be hoped that the above measures will mean that there are no further proceedings in relation to [Y].
(m) any other fact or circumstance that the court thinks is relevant.
The father’s behaviour and personality have no known aetiology, and there is no evidence before the court that Mr Mitford has ever sought any professional assistance for any emotional, behavioural or mental health issues, nor that he believes that such assistance is necessary.
Based on that history, the orders I propose to make assume that he is not prepared to take any proactive steps in relation to changing his behaviour or coming to understand his personality vulnerabilities.
Mr Mitford displays no insight into or understanding of the nature and effect of his behaviour, and until he develops that insight and understanding the court must make orders to protect [Y] from the emotional and psychological harm that is likely to result from that fact.

Conclusion

For all the reasons set out above, I will make orders that restrain

Mr Mitford from contacting either of the children directly and from spending any time with them without them expressly stating their desire for that contact.
Being a parent is so much more than a matter of biology. It requires maturity, insight, selfless commitment to one’s children’s personal, emotional and social welfare, and the capacity to provide a role model for the children so they can learn who they are and how they ought to behave in relation to others.
The father in this case has unfortunately demonstrated that he is unable to fulfil those aspects of parenthood.
It is to be hoped that he might, with the assistance of long-term therapy, gain some insight into his behaviour which may, again in the long term, allow his children to trust him and feel safe in his care and company.

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

Date: 20 May 2015

[2015] FCCA 1273

20 May 2015

Key Legal Topics

Areas of Law

Family Law

Legal Concepts

Injunction

Remedies