Morrison and Comaco

[2014] FamCA 22

FAMILY COURT OF AUSTRALIA

MORRISON & COMACO [2014] FamCA 22

FAMILY LAW – CHILDREN – Application by father to discharge previous final orders and have the children live with him based on assertions that the mother was harassing him, threatening his family and assaulting the children – All allegations fail despite a State Magistrate finding against the mother and making a three year intervention order against her – Father threatens to walk out of the children’s lives – Thus, no contact orders made.

Evidence Act 1995 (Cth)

Family Law Act 1975 (Cth)

Briginshaw v Briginshaw (1938) 60 CLR 336

APPLICANT: Ms Morrison

RESPONDENT: Mr Comaco

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 475 of 2009

DATE DELIVERED: 28 January 2014

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 9, 10 and 13 January 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Weerappah

SOLICITOR FOR THE APPLICANT: Bayside Solicitors

THE RESPONDENT: In Person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Agresta

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Septimus Jones & Lee

Orders

1. That all existing parenting orders are discharged.

2. That the mother have sole parental responsibility for the children J born … February 2001 and K born  … November 2002.

3. That the children live with the mother.

4. The mother is at liberty to provide a copy of these orders to the principals of the children’s schools and all health professionals involved with the children  that the Court has made no order for the father to spend time with the children as the father has not sought any such orders.

5. That the Independent Children’s Lawyer is forthwith discharged from the proceedings.

6. A copy of these orders and the reasons for judgment this day be made available to Family Consultant Ms B.

7. That all extant applications are otherwise dismissed.

8. That pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Morrison & Comaco 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 MELBOURNE

FILE NUMBER: MLC 475 of 2009

Ms Morrison

Applicant

And

Mr Comaco

Respondent

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. In this hearing, Mr Comaco, (“the father”) asked the Court to discharge final parenting orders made in 2008 concerning his two children J aged almost 13 and K aged 11 years.  Although he was the respondent in the proceedings and the orders he sought were not entirely precise in their particulars, it was clear that he wanted the children to live with him and that he be solely responsible for major long-term decisions about them.  To make those orders would be a radical departure from the status quo.

2. The applicant in the proceedings was Ms Morrison, (“the mother”).  She had begun the proceedings in April 2012 in the Federal Circuit Court because of an allegation of violence made by one of the children against the father.  She then sought the father’s time be supervised. 

3. At trial almost two years later, after the proceedings were transferred by the Federal Circuit Court in May 2012, the mother’s position was that the status quo should remain.  That is, the father have contact with the children every second weekend and some time during school holidays.

4. For the reasons that follow, the children should live with the mother but the dilemma is what to do about the father’s time with them.  That dilemma arises because the father, who had represented himself throughout the proceedings, began the trial with an ultimatum that if the Court did not order that the children live with him, he would walk away from them and their lives. 

5. During the hearing on a number of occasions, the father repeated the mantra about walking away.  His wife, who was not initially a witness, gave evidence that she supported her husband.  That is very sad for these children.  The position adopted by the father was based on a number of propositions that, on the evidence, I reject having regard to the burden of proof which lay with the father.

6. The father’s position may be summarised by saying that he had no doubt that the mother has orchestrated a campaign of threats, harassment and intimidation against him, his wife and their two daughters.  Further, that the mother had threatened violence to J and K and finally, that the mother was an incompetent parent as a carer of the children.  The father’s wife went further to say that the mother’s campaign of what she saw as mistreatment of particularly J, was malicious and designed to thwart the relationship between the father and the children.

7. It goes without saying that the mother denied all of those fundamental allegations.  I find there is no evidence that would justify a finding of the type urged by the father.  In saying that, I am conscious of two things.  First, there is little doubt that someone has orchestrated and carried out a sustained campaign of harassment and intimidation against the father.  Some of it has been childish but others quite concerning.  The second issue is that a State Magistrate found on the balance of probabilities that an intervention order was justified against the mother on the basis that she had made threats and was likely to do so again if an order was not made.  On the evidence before me however, I would not come to a similar finding because of the different focus of this Court to that of the State Court but also because (I suspect) I had much more evidence.

8. The Independent Children’s Lawyer supported by the mother, urged the Court to make self-executing orders that if after two weeks from the making of orders for contact, the father still maintained his walk-away mantra, those contact orders should be discharged to avoid the mother worrying about whether the father would attend.  The father bluntly said he would not agree to such a position.  Such was the strength of his conviction that I consider it not in the best interests of the children for such an order to be made.  I have little doubt that he meant every word of his blunt statement.

9. The father is a 43 year old tradesman who has married and has two children from that relationship.  The mother is a 32 year old retail employee.  She is assisted in the care of the children after school and during the evenings when she is at work, by her mother. 

10. The parties live on opposite sides of the city of Melbourne and more than an hour apart.  The tyranny of distance between the parties makes extension of time between the parents relating to the children difficult but it also raises questions about whether it would have been likely that the mother would travel to the father’s home during the dark of night to harass him whether she had the care of the two children or not.

11. The mother said that she was the victim of serious family violence inflicted by the father both before and after separation.  That is specifically denied by the father and little evidence was led about what happened such that I could not make any specific findings.  However, the father conceded reluctantly that he had been convicted of assaulting the mother by kicking her and had been fined.  His perception of the event was that he had not been guilty of any offence, had kicked at the mother and had pleaded guilty simply to bring the matter to an end.  Having regard to the seriousness of the outcome, I would not draw that conclusion.

12. On the other hand, evidence was led by the father, contested by the mother, about his allegations of family violence against her.

13. The allegations against the mother included making threats to harm the father’s family, harassing him by driving past his house and attending at his house, making a statement encouraging J to hurt the daughter of his present marriage and so forth.

14. It ought not be surprising to learn that amongst the numerous court hearings between the parties, each has been the recipient of a State Court family violence order.  There has been considerable State police and Department of Human Services involvement in their lives.

15. This case was very difficult because of the inconsistency and indeed, irrationality of the father’s position as indicated earlier.  If the children were to live with him and were to spend time with the mother for example, why would the harassment, threats and intimidation stop?  If he walked out of the children’s lives, why also would it necessarily follow that the same conduct of the mother would stop?  This conflict has been going on for years.  It is time to end the litigation.  Sadly, the children will miss out during their formative years on their father’s care but also having a relationship with their siblings and their step-mother with whom they otherwise appear to have a very close relationship.  However, the Court cannot force the father to persist in a course of action which he finds unacceptable.

16. The mother was represented by her solicitor and the father was not represented.  The Court had the benefit of experienced counsel for the Independent Children’s Lawyer.

17. The mother’s list of documents to be relied upon included old affidavits and applications.  Ultimately, as required by the rules of the Court and indeed the order made setting the matter down, it was the mother’s trial affidavit that she relied upon.  She indicated she also wanted to rely on an old affidavit by a psychologist but ultimately resiled from that position too.  In the course of the proceedings, she called her mother who gave viva voce evidence.

18. The father’s list was similarly long and included a list of what the father described as objections. When he was informed that the document was not really helpful, he, like the wife, agreed that the Court should apply the evidentiary provisions of Division 12A of Part VII of the Family Law Act 1975 (Cth) (“the Act”).

19. Division 12A (and specifically s 69ZT) provides that certain provisions of the Evidence Act1995 (Cth) do not apply to child related proceedings. Those evidentiary issues relate to such things as cross-examination, dealing with documentation and important things such as hearsay, opinion, admissions, evidence of judgments and convictions, and relevantly in this case, coincidence evidence.

20. It was the father’s case that the magistrate had accepted that there were too many coincidences not to draw the conclusion that the mother had engaged in threatening conduct. 

21. The father also said that he was initially not calling his wife because her affidavit (which he had endeavoured to file) had been rejected by the Court.  I was unable to find any reason why that might be the case and without objection from anyone, the father’s wife was called and she relied upon an affidavit that she filed for interlocutory proceedings in 2012.  She also gave evidence about the current problems.  I shall deal with her evidence below.

History

1. The parties began living together in 1999 and separated in October 2005.

2. Parenting orders were made by the Federal Circuit Court in October 2008 which were varied in April 2012. 

3. Despite the orders being made as such, a contravention application was filed by the father and an interim order was made on 9 May 2012 by Curtain FM (as he then was) transferring the proceedings to this Court.  On 14 June 2012, the Independent Children’s Lawyer was appointed to assist the Court in relation to the children.

4. In July 2012, with all parties represented, Senior Registrar FitzGibbon made an order for an assessment under s 11F of the Act. That culminated in the first of two involvements by family consultant Ms B. Her evidence is dealt with further below.

5. In September 2012 after the receipt of the assessment by Ms B, the parties were again before the Court and again, all were represented by lawyers.  Orders by consent were then made that the father spend time with the children during each alternate weekend from Friday night to Sunday night and for one half of all holidays.  Before those orders were made, the father had not seen the children for months.  During those months, there appear to have been a number of hearings including where the father was represented by counsel and where he consented to orders that had the effect of delaying the resumption of his time with the children.  That was all rectified by orders in September 2012.

6. Thus it can be seen that from separation until now there have been consistent problems between the parties often involving litigation.  The final orders that were made on 24 October 2008 occurred in circumstances where the father was unrepresented.  He was then the applicant.  He had sought that the children live with him.  That had not been his position in 2007 when he, as the applicant, sought that the children live with the mother and he have time with them on each alternate weekend.  In 2008 the father not only consented to the opposite position but also agreed to an order that the mother have sole parental responsibility for the children.  No provision was made in those orders for any notification to be given by the mother to the father about decisions concerning the children.  That was rectified later. 

7. In May 2012, the father brought contravention proceedings arising out of a dispute over something that the children had said but again, these were compromised by the father agreeing to a minor variation to the parenting arrangements. 

8. Thus, since separation, there have been a number of periods where the father has not had contact with the children for lengthy periods of time arising out of disputes between the parties.  It has usually been the Court that has reactivated the father’s time with the children as a result of proceedings but only after considerable time had elapsed.  Despite those lapses, the relationship between the father and the two children remained strong.

9. It is interesting to observe also that the proceedings before the Court this time were the first in which there had been an extensive examination of what was in the best interests of the children.  It is important therefore to put an end to eight years of litigation.

10. A number of observations need to be made about these proceedings. 

Discussion

1. First, although the father was not represented, he said he understood the nature of the proceedings.  He began by saying that he had not come prepared to cross-examine the mother but as he contemplated his questions, they were generally well-targeted.  His affidavit, although at times repetitive and containing comment rather than evidence, covered all of the things he wanted the Court to know.  The Court had the advantage of a very experienced counsel for the Independent Children’s Lawyer who thoroughly tested the evidence particularly where the father had been unable to do so because of his lack of understanding or knowledge of the process. 

2. Secondly, to the extent that documents might have supported the father’s contentions about the mother’s behaviour and her care of the children, the father agreed that police inquiries had not been such as to have the mother charged with any offences and, in relation to the children’s schooling, the reports indicated the progress of the children was good.  It was the father who cross-examined about the second semester report for 2013 culminating in its admission into evidence.  Although the father’s focus was on one particular aspect of that report, the reality was that it showed the children were doing extremely well.

3. Thirdly, because the father alleged that the maternal grandmother was not caring for the children at times when the mother was working, I insisted that the maternal grandmother be called to give evidence.  It was the father’s evidence that the children had told him that they were home alone whilst their mother was out.  The father put to the mother that there were times when the maternal grandmother just called in and checked on the children.  The maternal grandmother’s evidence showed the exact opposite.  Not only was her evidence enlightening about the mother’s lifestyle and that of the children, it debunked the assertion of the father.  The father had the opportunity to cross-examine the grandmother about a range of things.

4. Fourthly, there were final orders made in 2008 as I have indicated.  The father has to therefore show that there was some basis to change the status quo.  He did not produce any evidence to justify such a finding.

5. Fifthly, both parties were subjected to searching cross-examination.  Each endeavoured to tell the truth.  This is not a case in which I could make a finding that I preferred one party’s version over the other.  To the extent that I am unable to accept evidence, I shall specifically say so in relation to the particular facts.

6. The sixth point is that the Department of Human Services has had significant involvement in these parties’ lives.  According to the records and in particular the s 69ZW report which has been admitted into evidence, there were 18 reported notifications.  The report indicates that the majority of these notifications were closed at “intake” but two proceeded to investigation and assessment.  Two of the reports were deemed inappropriate.  The report sets out a litany of complaints which the father conceded had come from him.  They related to the children being exposed to loud music each night, environmental neglect, paranoid behaviour by the children, poor general care, the mother using drugs, concerns about the mother’s mental health, inappropriate clothing for the children, psychological abuse by the mother of the children including not meeting their day-to-day needs, neglect of the children’s medical needs, violence by the mother towards J including kicking him, inappropriate discipline by the mother and the fact that she was not coping with the children.  The Department’s report is enlightening.  Of those complaints, nothing was deemed suitable for the Department to intervene.  The Department often found that there was no significant risk of harm to warrant further action.  Files were therefore closed.  The Department did not simply dismiss those allegations.  They reported having spoken to people such as the school and the police, the contact centre and the maternal grandmother.  Nothing suggested that there was a problem of the nature about which the father complained.  These reports were all recorded between October 2005 and March 2013.

7. In March 2013, the Department received a report that the mother was drinking alcohol daily, sleeping all day and that the children had to look after themselves.  That is exactly what the father said in his evidence.  The children were interviewed by protective workers from the Department and they indeed made those allegations as they did to their father.  They reported to the Department that the house was always dark, their mother slept all day and they felt threatened by her conduct.  The mother was interviewed and denied any of that conduct.  The assessors reported that the mother spoke warmly of the children and was able to articulate age-appropriate discipline techniques that she was using.  They reported that she denied drinking alcohol on a daily basis and the school did not identify any protective concerns about the children.  All of that evidence is consistent with what the mother said, the grandmother said and indeed what the school reports reflect.  What was disconcerting however was that the Department recorded that the interviews with the children seemed to be “rehearsed to a certain extent” as if they had gone over what they would say when asked about their mother.  The Department recorded that the children used language which appeared adult-like.  Just exactly who the Department was pointing the finger at is unclear but the objective evidence tends to support the mother’s version rather than that of the father which is entirely reliant upon what the children have said.  It was disconcerting to read in the evidence of the father that he was recording things that the children said.  Whether that amounted to manipulation, I am unable to so find.  However, in respect of the question of which version is the more plausible, having regard to the views adopted by the Department, I do not find that the father’s allegations as articulated to the Department and repeated in his affidavit material can be found to be of any substance.

1. The next issue is that the police had constant involvement in the lives of these parties even to the extent that during the very weekend during which the proceedings were adjourned, the father said that he had to contact them because of an anonymous harassing telephone call.  No evidence was called by any party to corroborate the father’s assertions that the police believe the mother is the threatening or harassing party.  That is significant because the mother gave evidence that she had made herself available for interview by the police and they indicated not only that they were not interested but that if the complaints continued they might have to do something about it. 

2. The next issue is that the family consultant who prepared the family report agreed in cross-examination by counsel for the Independent Children’s Lawyer that she had based her opinion it might be appropriate to have the children live with the father on a conclusion that the mother was not only the perpetrator of family violence against the father but that her harassment was likely to occur again in the future.  She conceded that if that finding was incorrect then her opinion could not stand.  When the family consultant was given a comprehensive overview of the evidence that I heard and the likely findings I would make, she agreed that there was no basis for a change of the residence of these children. 

3. Finally, the father’s case was substantially based on the statements of the children as I have indicated.  I do not accept that those statements form a proper basis for the father’s assertions unless they are corroborated.  They were not.  Indeed, tested under careful scrutiny, none of the allegations with the exception of the one in relation to the mother’s statement about J poking C’s eye have any independent support.  In relation to that allegation, the versions are diametrically opposed.  The mother’s evidence was that she should not have said what she said to J and she apologised for having done so.  Her evidence was that the child J was in a plaster cast and at the father’s home, C was climbing over him causing him distress.  Having returned to his mother, she said he complained about that and she remarked that he should poke C in the eye and that would get her off him.  That conversation was corroborated by the maternal grandmother who said she was there at the time.  The father’s version was that the child told him that the mother had said that he should get a knife and stab C in the eye.  The troubling feature is that when this conversation was reported to have occurred with the father, the event had concluded a long time before.  It is not entirely clear to me on the evidence when the father learned of this statement from J but the mother and her mother agreed that it was said at a time when J was in about Grade 3, in plaster and C was about 18 months of age.  Those facts all seem to add up to the version consistent with that of the mother and the maternal grandmother.  Just exactly what J said to his father and the circumstances under which it was said remain unclear.

4. Based upon the assertions of the father and the denials of the mother about physical violence to the children, having regard to the evidence set out in the s 69ZW report and the indication from the school, I do not find there is any evidence of any threats by the mother of physical violence to her children.

Mr D

1. The incident which seemed otherwise to cause serious problems in this case concerns the telephone call to the father which emanated from a man named Mr D in May 2012.  The uncontroversial evidence is that Mr D’s phone call was traced and the police charged him and Courts somehow or other dealt with him.  It was the father’s evidence that he heard the voice of the mother during that conversation.  As best I can understand the vague evidence, the conversation took place over a period of eight minutes.  Despite the fact that I gave the father ample opportunity to expand on exactly what was said and similarly in respect of his wife, I am not any the wiser as to what other things were said.  At its highest, the father’s evidence was that he heard a laugh by the mother which was consistent with the laugh that he heard when they were together and he therefore concluded that she was participating with Mr D in the threatening of the father’s family.  It is clear that the magistrate who made the intervention order did not have the extensive picture that was painted before me nor did the family consultant.

2. This incident deserves considerable thought because of its consequences.

3. Mr D was an acquaintance of the father whose interaction with the mother and the father when they were together over eight years ago seems to have been negligible.  It was the mother’s evidence supported by the maternal grandmother, she had not seen Mr D since the time that she was with the father.  Indeed her evidence was that she had had nothing to do with him nor had she heard from or of him other than in the course of the intervention order proceedings and this court case.

4. For the first time, the father told a more comprehensive picture to this Court.  He said that he was lying on his bed one day and he thought of Mr D with whom he had not had any contact for a number of years.  He found his telephone number and contacted him and then invited him to his residence.  The father’s wife did not take a shine to Mr D.  Indeed, she was disquieted by his behaviour.  Again under distinct questioning, the best I could ascertain from the father’s wife about what Mr D was saying was that he knew of the mother and said that any contact by the father’s wife with the mother required her to have “balls”. 

5. The father and Mr D at the house that day were drinking considerably and in the wife’s view, were affected by alcohol.  At some stage, Mr D left the father’s home and shortly thereafter police arrived inquiring of the father whether he had called them.  He indicated that he had not and they went away.  Mr D was then seen sitting outside the house in the driveway rocking backwards and forwards.  He then returned to the home and although he was in an intoxicated condition, he asked for the return of his car keys.  As an aside, I questioned the sensibility of the father’s wife handing over the keys to a man who was clearly intoxicated.  Whether he drove or not is unclear. 

6. Two weeks later, Mr D contacted the father and apologised for his behaviour (whatever it was) and invited the father to attend his home.  The father’s wife was distinctly disquieted by the invitation and said so.  She was very reluctant for him to go but he went alone. 

7. At Mr D’s home, the father and he drank considerably.  In the course of the evening, the father went to the toilet and whilst sitting upon it, the door opened and Mr D lunged at him and grabbed him by the throat.  They struggled and he described how he managed to pull his trousers up only to be punched and kicked by Mr D.  He went outside and eventually was attacked again but got away and went home.  This version of the assault was corroborated by two pieces of evidence.  First, it would seem that Mr D was charged by the police with assault and was convicted.  The second and more vivid picture however came from the father’s wife.  She described her husband as coming into the home after the assault wearing someone else’s clothes which were badly torn and he was covered in blood from head to toe.

8. Doing the best I can, the only connection between Mr D and the mother relates to two things.  The first is the association during the relationship some eight years before but even there, Mr D was a friend of the father.  The second issue relates to the fact that the father asserted that he heard the mother’s voice in the conversation which was clearly from Mr D.  If that conversation was limited to a laugh, I certainly would not be prepared to make a finding that it was the mother. 

9. There is no plausible reason why this Court should accept that the mother had anything to do with Mr D.  Mr D had the motivation to be upset with the father after being dealt with by the courts for the assault even if that was an unreasonable view.  He knew of the mother but that is not surprising having regard to what had occurred eight years before.  There is also the fact that the wife of the father was distinctly disquieted by Mr D’s behaviour.  It is therefore hard for me to find on this evidence that there is or was any connection between the mother and Mr D.  In addition, it was the father’s evidence that Mr D and the mother lived in the Town E area but that is also unclear because it was the father’s wife’s evidence that she understood Mr D (at the time of the interaction with her husband) was living in the same suburb as they were.

10. The evidence is so disjointed that I could not make any finding along the lines asserted by the father.

The mother’s former acquaintance

1. The other incident that came up in evidence was an assertion by the father’s wife (and not by him) that the mother had had a relationship with a man subsequent to the separation from the father.  She saw this man with the mother at a court hearing and decided to follow him up.  She said that this man told her that he had ended his association with the mother and that the mother had been involved in some appalling behaviour relating to the children and the father.  That evidence is so unreliable having regard to the fact that the primary witness making the assertion was not called to give evidence but more importantly, it appears that this man was the recipient of an intervention order made against him on the application of the mother.  Not only that but it appears that he conceded to the wife that he went to gaol for breaching that intervention order.  To use the wife’s words, he told her that he “flipped out”.  Just exactly what that meant in terms of behaviour and/or mental health, I am unable to say.

The issue of the allegations by the father of harassment by the mother

1. The concern of the family consultant to which I return below, arises out of not just conduct of the mother alleged by the father which the family consultant thought amounted to emotional abuse of the children, but also a very enticing finding against the mother by a State Magistrate on the father’s intervention order application.

The family violence order against the mother

1. The learned magistrate’s statements were reported in an annexure to the father’s affidavit.  No-one challenged the question of the authenticity or accuracy of the transcription which presumably (but not necessarily) came from an authorised taping of the hearing.  The document provided by the father referred to a “Certification by Translator” the address of whom was given from a city in China.  The translator certified that he or she was “conversant” with the English language and had transcribed the “video” (whatever that meant) to “my best abilities”. 

2. The learned magistrate apparently said:

   The court may make a final order if it is satisfied on the balance of probabilities that the respondent has committed family violence against the affected family member and is likely to do so again…

   …

   [The father and his wife] both gave evidence that on 11 May 2012, two days after a family court hearing in …, two telephone calls were received on [the father’s] mobile phone which he put onto speaker so that the calls were audible to those present and during the second of those calls, police were telephoned and also listened to the calls.

   …

   The caller was breathing heavily and he also heard a female laughing like a witch.  He identified [the mother] as this female.  At approximately 10pm he received a second call and said a female, who he identified as [the mother] was doing most of the talking, inviting them to come outside, threatening himself and his wife’s lives, calling his daughters names, also inviting them outside and he said that there were two males also involved in this second call, one he had previously identified as [Mr D].

   …

   [The father’s wife] also gave evidence that she recognised the female voice as that of [the mother] who she had heard speaking on a number of previous occasions.  I accept the evidence of [the father and his wife] as to this incident; that is that they received the two calls that they recounted and that [Mr D] was one of the callers.

   …

   I also accept the evidence of [the father] identifying [the mother’s] voice.  He was well familiar with her voice having been in a relationship with her for a period of five years.

   …

   I am accordingly satisfied to the requisite standard that she has committed family violence as defined…

3. It is apparent from reading those remarks that the learned magistrate was satisfied on the balance of probabilities of the identification of the laughing and then the talking by the mother in respect of the second telephone call.  The difficulty I have is that the father emphasised that he heard only the cackling laugh which he identified as the mother.  In his affidavit of evidence in chief in this Court, he described the person in that second call as a “female caller”.  He identified that person as the mother.  Despite being pressed in cross-examination, he was unable to say what was said and a similar observation has to be made arising out of the cross-examination of the father’s wife.  Both referred to the fact that this call lasted eight minutes.  No matter how they were pressed, nothing they said indicated the nature or content of the call giving me little understanding of the nature of the call.  That is important in this case because the mother emphatically denied in her affidavit that she made any such call.  It is also important to observe that the father acknowledged that the police had had access to this material since May 2012 and had charged Mr D but not the mother.

4. The far more comprehensive evidence tested in this Court gives me grave reservations about simply adopting the finding of the learned State Magistrate.

5. Section 69ZT(1) of the Act provides that the evidentiary rules relating to hearsay, opinion, tendency and coincidence, and importantly, evidence of judgments and convictions do not apply to child-related proceedings. Thus, the Court may give such weight to this evidence as it sees fit once it is admitted.

6. Section 69ZN is a mandatory provision which requires the Court to conduct the proceedings in such a way as far as is possible to promote cooperative and child-focussed parenting by the parties but also without undue delay and with as little formality and legal technicality and form as possible.  It would be very simple in this case to adopt the fact that a comprehensive hearing had taken place in the State Magistrates’ Court and a finding had been made that the mother was responsible.  In my view, the evidence does not support such a conclusion.

7. Section 69ZX(3) permits the Court to receive into evidence the transcript of evidence in any other proceedings before another court and draw any conclusions of fact from that transcript that it thinks proper.  This Court can, but is not bound to, adopt the findings of that other Court

   
   

   (s 69ZX(3)(b)).  “Transcript” is defined in the Family Law Rules dictionary to mean a written record of a hearing or trial prepared by a contractor providing transcription services to the Court for the case.  I am unaware whether the contractor for this Court would transcribe a tape from a State Court.  I do not know whether the transcription was done by the State Court.  I do not think it matters in this case because no-one challenged the authenticity of the recording and it makes sense that the father could simply say that is what he heard in the courtroom before the State Magistrate because he was present.  It may be a problem in future if the recent amendments to s 60CC(3)(k) mean that “any evidence” admitted in proceedings for a State family violence order has to be proved by production of a transcript.

8. The standard of proof is the balance of probability.  That standard should be applied to any evidence admitted under s 69ZX(3).  After all, the Court is required to be satisfied that the conclusions are proper.  In this case, I conclude that the magistrate did make a family violence order but I too heard the same sort of evidence (if not more) that was tested in the Magistrates’ Court.  I do not accept that the father reached the required standard.  That is because of the approach I have adopted to working out what probably happened.

9. As I have observed, the standard of proof is the balance of probability. That arises from s 140 of the Evidence Act 1995 (Cth). The decision in Briginshaw v Briginshaw (1938) 60 CLR 336 provides guidance as to the qualities of the required civil standard of proof. There is the well-known statement of Dixon J in that proceeding. Rich J however said that the court must, after carefully considering and weighing the testimony, be comfortably satisfied of the alleged facts. His Honour considered that this satisfaction should not be produced:

   …by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion.

   His Honour acknowledged that the absolute certainty of alleged facts was not required.  The starting point therefore is that the Court must be comfortably satisfied about the alleged facts.  I am not.  His Honour’s cautionary words about “slender and exiguous proofs or circumstances” is very relevant in this case.

10. The evidentiary rules relating to coincide and tendency evidence do not apply.  It is helpful to understand how the Court would approach the issue if they did.  It is also helpful to look at what the father saw as the purpose of the evidence.  Evidence which is relevant may be admitted but if it is admitted for the purposes of proving that the series of events were all the doing (in this case) of the mother, this Court (unlike the State Magistrates’ Court) should be cautious about the conclusion pursued by the father because of the consequences of such a finding.

11. The coincidence and tendency provision (s 98 of the Evidence Act 1995) says that evidence of two or more events occurring is not admissible to prove that a person did a particular act on the basis that, having regard to any similarities in the events or the circumstances in which they occurred, it is improbable that the events occurred coincidentally unless, inter alia, the Court thinks the evidence has significant probative value.

12. Here, two observations must be made. First, that rule does not apply because of s 69ZT(1). Secondly, the major criticism of the mother by the family consultant, premised as it was on the mother being responsible for the harassment of the father, was that she was emotionally abusing the children. Thus, the evidence must be seen to have significant probative value if admitted and accepted.

13. Whilst the evidentiary rule does not apply, the definitional approach should be read here. Am I satisfied that the series of events accepted as being similar, give rise to a finding that it is improbable that they are just a coincidence? Because of the nature of each of the events set out hereafter, I struggle to see the similarity but even overlooking that, at least more than one would have to have been found to have been caused by the mother. That test focusses on the words in s 140(2) of the Evidence Act and those of Rich J.

14. Although counsel for the Independent Children’s Lawyer suggested to the father in cross-examination that the incident of substance which began this dreadful series of problems for the parents was the poke or stab in C’s eye, the events as I perceive them, relied upon by the father, really began in about May 2009. 

15. The final orders were made in 2008 and amended in February 2009.  In his affidavit, the father referred to the mother taking photographs of his heavily pregnant wife and following her in 2009.  He said that the mother initially denied that but later admitted it.  She claimed according to the father, that it was being done for the purposes of child support.  I am at a loss to understand what all of that means but presumably, it arose out of a dispute by the father as to his obligations to pay child support.  The significant difference between that event and those subsequent to it was that the latter ones were clearly surreptitious unlike what the mother was alleged to have then done. 

1. The father also referred to the mother failing to comply with her obligations to tell him about corrective surgery to J but that hardly seems consistent with harassment.

2. Importantly, the two events just referred to would seem to have little impact of an emotional nature on the children.

3. In September 2010, the statement about the “poke” or “stabbing” of C arose.  There were clearly two different versions of this event.  The father highlighted the fact that, when he was told by his son of the mother’s statement, it had not long occurred.  The mother’s version of facts related to an incident approximately one year before.  How it came about that the child raised the subject with the father and repeated it, remains unclear to me.

4. To that point, none of the events relate to harassment, coercive behaviour or indeed family violence.  Frustrating as they may have been for the father, they do not fit within a course of conduct under which I could conclude that the mother was embarking upon behaviour directed at the father and which had the effect of emotional harm for the children.  The maternal grandmother whose evidence was tested gave no indication of an intention by her daughter to harass the father or indeed to participate in any such conduct. 

5. The father said that in January 2011 when he had the children, a very large broken “padlock snib” was thrown up into his driveway and left beside his truck.  The connection with the mother escapes me.  If it was the father’s intention to indicate that there was a subtle message from the mother, I could not see it.  The father’s connection was that the mother did this because she was a “known thief”.  How he concluded that arose from his dealings with her in relation to their own property because there was no other evidence to support such an allegation.

6. The father asserted that in June 2011, the mother parked outside the contact centre in the wrong place.  That conduct was hardly surreptitious.  Just what that was about is unclear and to the extent that the father took umbrage, he should have taken it up with the relevant authorities at the time.

Father’s Day 2011

1. Father’s Day in 2011 exposed an incident of an innocuous nature but which I find arose out of confusion.  The parties had attended a round table mediation and reached agreement.  The changeover point which had previously been one place was changed to another.  There were telephone calls between contact centre workers and the parties which were unsuccessful trying to sort out the time and the place of the handover.  The father had a conversation with a police officer who was presumably dragged in by the parties to try and mediate and quite alarmingly, the father taped the officer’s conversation.  Leaving aside the issue of the legality of that taping which was not disputed by anybody, all it showed was that the parties had a different view about where they were supposed to be and what the agreement said.  Having heard the mother being cross-examined, I do not accept that there was anything more in this incident than confusion.

2. Within that Father’s Day dispute were also comments made by the father about a white hat and key ring pinned to one of the T-shirts of the children.  Whatever that meant, he decided that he had been “set up” by the mother and sadly, that involved the police.  It would seem that the police were not particularly interested in the father’s complaints and it ultimately led to proceedings being instituted.  The father’s time with the children ceased for four months as a consequence of whatever happened that day.  The contact centre apparently had decided that the father was abusive and were no longer prepared to be involved.

3. I find at best, there was confusion that day and I am certainly not prepared to attribute that to any deliberate conduct on the part of the mother.

4. The father then referred to what occurred in December 2011.  He said that he was told by the children that their mother had put a song on an Ipod with the words in the lyrics:

   Drop to my knees and I’m pleading trying to stop you from leaving, you won’t even listen so fuck it, I’m trying to stop you from breathing.

5. No objection had been taken to much of this material but in the context of the father’s assertion of harassment and surreptitious behaviour by the mother, I fail to see how this was relevant.  To the extent that the father thought that the mother had inappropriately put an adult content song on an Ipod, it may have had some relevance but if it was intended for the purpose of showing coincidence and tendency, I fail to see the connection.

The accusation of manipulation of the children by the father against the mother

1. The father said that the children told him of what was happening in the mother’s home.  He gave evidence that he was told of assaults on the children, deprivation, neglect, the mother not getting out of bed and so forth.  It is important to note that the unchallenged position of the Department of Human Services was that the mother was an appropriate and caring parent.  That evidence was corroborated by the maternal grandmother. 

2. The family consultant had reservations about the children being manipulated so there was no evidence that would enable me to say that there was a course of conduct by the mother directed towards destroying the father’s relationship and certainly no conduct that I can see to this point about emotional damage to the children.

Changeovers

1. The father complained that the mother smirked at him.  He pointed to photographs that he annexed to his affidavit.  The pictures do not depict whatever he said they did.

2. Even during the court proceedings, the father asserted that the mother had smirked at him.  I find there is an element of paranoia creeping into these proceedings.

Threats to kill

1. The father said that the mother took place in calling his home and threatening to kill his wife on 17 October 2011.  That was denied by the mother specifically.  It hardly supports a conclusion of harassment even if it was accepted that it did occur.  The difficulty I have is that the mother’s evidence was that she had never telephoned the father.  She referred to an offensive telephone call involving the father’s wife but that was in 2006.  No subpoenaed material of telephone records was called for or produced nor was there any evidence about police investigation.

2. Having regard to the provisions of s 140(2) of the Evidence Act, I do not accept that that call occurred as alleged by the father.

3. There were other incidents which the father maintained were harassment such as the mother enrolling the children in scouts straight after the August 2013 orders were made such that he was precluded from his telephone contact with the children.  Again, all of this was unclear and denied by the mother.  He did not challenge the mother in cross-examination about it.

Harassment at the father’s house

1. The father gave evidence that on the very day of the contravention hearing, a car was “reving” outside of the front of his house and the same occurred two weeks later.  The mother’s response was that she was not there on that occasion and she gave a plausible explanation corroborated by records to show where she was at the time.

2. It would appear that a number of events like this have occurred outside of the father’s home including one that troubled the State Magistrate in respect of the intervention order.  The father identified the mother but the State Magistrate rejected the father’s assertion.  The father repeated the assertion in these proceedings.  Apparently in an interim hearing relating to the intervention order, the father was ordered to provide particulars of what the mother had done.  The father’s evidence was that thereafter, a car with a “mocked-up” registration plate came past his house with the words “No E G”.  I have presumed that that message meant that there had been no examples or particulars given but the magistrate was not prepared to draw a conclusion that that had anything to do with the mother and nor am I.

Other accusations of harassment

1. The father said that he received some hairpins in the mail which were consistent with what the mother had worn in a court case.  There were no markings on the delivery package to identify the mother and the father simply left all of that to the police to sort out and they had not come up with any answers.  The father did not pursue the apparent source of the material which I understood to be Ebay. 

2. The father also told the Court that a similar package arrived with a bra strap in it apparently posted in Singapore from an Ebay site, the pattern of which was consistent with the pattern on a bag that he and his wife took to court carrying their court documents.

3. Responsibility for buying and/or posting the hairpins and the bra strap were denied emphatically by the mother and the police have done nothing about either.  The father had ample opportunity to pursue a source of those packages through the subpoena process of this Court and has failed to do so.

4. The father gave evidence about a person who was observed on his CCTV recording in his garden but that evidence too was conceded to be “grainy” picture.

5. There is little doubt in my mind that the father has been harassed by someone but the connection with the mother is so tenuous that I would not be prepared to find on the balance of probabilities it was her.  Having heard the evidence about Mr D in a much more comprehensive way than what the magistrate had available to her court, it is open to me to find that the mother had nothing to do with Mr D and had nothing to do with these events.  I do not find on the balance of probabilities that there is any connection and certainly no connection such as to indicate a course of conduct by the mother intent on emotional harm to the children.

6. There are a number of other incidents of a relatively minor nature including the fact that the father found a greeting card in the back of his utility which made reference to a person by the name of “[F]”.  Nothing in the evidence connects a person “[F]” with the mother and whilst the father described the card as a birthday card, his wife described it as a Christmas card.  I would not be prepared to make a finding that that had anything to do with the mother either.

7. The evidence of the maternal grandmother was that her daughter leads a solitary life and is a good mother in a stable environment.  I could not find that the person who would have driven for over an hour in the middle of the night to somehow or other attend outside the father’s home, could be the mother.

8. There is another incident to which the father pointed as harassment by the mother relating to a note being left attached to a house stump underneath his house.  The circumstances of that are equally bizarre but also do not fit within the definition of coincidences that might enable me to make a conclusion that it was something to do with the mother.

9. Most of the father’s case revolved around the conduct of the mother.  Very little evidence was given as to how he would care for the children.  That evidence really becomes unnecessary to consider in any detail unless there is some basis to change the status quo and remove the children from the mother.  Having regard to all of the evidence I heard, there is no basis here to connect the mother with any abuse of the children physically or emotionally or exposing them to the emotional harm of criticism of their father.  Indeed, the evidence of the mother corroborated by the maternal grandmother is that there are photographs of the siblings in the mother’s house.  Apart from the period of time where contact did not occur arising out of specific incidences, the mother has otherwise complied with court orders.  The mother is generally on time to deliver and collect the children.  Counsel for the Independent Children’s Lawyer put to the father and his wife that perhaps there was an element of paranoia creeping into what was happening to them and perhaps they should simply ignore it and move on.  Whilst the father and his wife both rejected that situation, I think it is probably what is occurring but in any event, none of that evidence would justify me changing what is otherwise a settled environment for these children.

10. Both children were interviewed by the family consultant.  Her view was that without some very clear evidence of misconduct by the mother in relation to the children as I have described, there was really no basis to make a change.  The views of the children were considered by the family consultant.  Both children were saying they wanted more time with the father although in different ways.  Having regard to their ages and level of maturity as viewed by the family consultant, it would seem that what they were really saying is that they wanted more time with the father.  They did not seem to have a real problem with the care provided by their mother.  Whilst their complaints were made as I have outlined above, it is hard for me to reject the suggestion of the Department of Human Services by its report under s 69ZW that these statements have become part of the mindset of the children.  I find that it is more likely that they are learning those sorts of concepts from the father’s home rather than the mother.  I draw that conclusion from the evidence of the maternal grandmother who saw nothing but happy and settled children in the time that she spent with them.

The family consultant’s evidence

1. The family consultant gave evidence as I have indicated earlier.  Nothing much more can be said other than the fact that she was no longer prepared to support a conclusion earlier indicated in her report that there should be a change of residence.

2. Ms B also gave evidence that it was very concerning that the father was indicating that if he did not have the children living with him full-time, he would withdraw from their lives.  She saw that statement as manipulative and unfortunate for the children but she was not really surprised that the father might say it.

3. I accept the evidence of the family consultant.

The maternal grandmother

1. The maternal grandmother was called at my instigation.  Her evidence arose mostly through cross-examination.  The father did not challenge the maternal grandmother in any serious way.  I learned a lot about the life of the mother and the children from questions that I asked.  It is quite clear that the maternal grandmother is present for most of the time that the mother is absent and that when the mother is with the children, she cares for them appropriately.  There is a routine in the household which would appear to be normal and appropriate and no suggestion of aberrant behaviour or drug usage as had been alleged to the Department of Human Services.  The grandmother was able to tell me of the activities in which she was involved with the children all of which indicate a settled and appropriate parenting regime by the mother.

The husband’s wife

1. Ms G simply supported the evidence of her husband and the position that he had adopted in relation to the children.  She, like her husband, adopted the mantra that enough was enough and that it was time to move on.  Whilst I accept that there has been harassment of her, counsel for the mother put to her that some of it was of her own making or that of her husband.  For example it was suggested that having contacted the former partner of the mother was inappropriate because he was a violent man and had been imprisoned.  It was further suggested that she did not stop her husband from attending upon Mr D knowing her disquiet about Mr D’s inappropriateness.  None of those matters are of any great significance in this case. 

2. The reality is that the wife of the father believes the mother is the perpetrator of the harassment and threats but I find there is not sufficient evidence on the balance of probabilities to enable me to make such a statement and accordingly, the evidence of the wife is in the same position as that of the father.

The legal issues 

Statutory Framework

1. Part VII of the Act guides the exercise of the Court’s power to make parenting orders. As the proceedings began before June 2012, the recent amendments do not apply.

2. Section 60B of the Act sets out that the objects of Part VII are to ensure that the best interests of children are met and it details how those objectives are achieved (s 60B(1)) together with the principles which underlie those objects (s 60B(2)).

3. Section 60B(1) provides:

   (1)The objects of this Part are to ensure that the best interests of children are met by:

   (a)ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and

   (b)protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and

   (c)ensuring that children receive adequate and proper parenting to help them achieve their full potential; and

   (d)ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

4. The principles underpinning those objects focus on children having rights to know and be cared for by their parents. The unusual feature of this case is that unless the children live with their father, accepting that he means what he says, they will have no relationship with him at all. The same applies in respect of their siblings and indeed their step-mother who has had an important role in their development. Thus, if the Court cannot find it is in the best interests of the children to make the order sought by the father, they will not be able to achieve one of the significant objects which the legislation desired.

5. Section 65D of the Act provides the source of the Court’s power to make a “parenting order” and s 64B sets out the types of orders that a court can make if it decides to exercise the power.

6. Section 65D is subject to s 61DA which requires the Court to apply a presumption that it is in the best interests of a child for the parents to have equal shared parental responsibility. However, that presumption does not apply where the Court finds there are reasonable grounds to believe that a parent has engaged in (relevantly in this case) abuse of the child or family violence. Ironically, the most recent State intervention with family violence orders was against the mother. The legislation does not distinguish between parents in that regard.

7. Abuse in relation to a child is defined to mean an assault, inappropriate sexual activity, causing a child to suffer serious psychological harm or seriously neglecting a child.

8. Despite the assertions of the father to the contrary in relation to the two children of this relationship, I have found that there is no evidence here that would indicate that that definition is satisfied.

9. The relevant family violence definition was found in s. 4 and, amongst a number of things, relevantly refers to conduct, whether actual or threatened, by a person towards a member of the person’s family that causes that or any other members of the person’s family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.   

10. The father’s evidence, supported by his wife, is that they fear for their safety and that of their family members. The difficulty is that whilst I have accepted the father and his wife do have that fear, I cannot find on the evidence that the mother’s conduct has caused it. The making of the family violence order and indeed the finding of the learned State Magistrate do not assist the father or the Court in relation to this issue.

11. Apart from that evidence, the mother’s affidavit asserted the following:

    There was extreme perpetuated violence by the father towards me which has been outlined (in the notice of risk filed 4 April 2012).

    The father did not pursue what all that meant.

1. The presumption may also be rebutted by evidence that satisfies the Court that it would not be in the best interests of a child for the parents to have equal shared parental responsibility (s 61DA(4)). 

2. There is no trust or communication between the parties. There is ample evidence that each party only considers the worst in the other in relation to parenting matters. The father strongly believes that the mother in association with others has been harassing him and he has given numerous examples of how he perceived that.

3. During the hearing, this issue was pursued by counsel for the Independent Children’s Lawyer about how either party could move from their stagnated view of the other. The father’s position which was supported by his wife, was that there was no way it could happen and he had no desire to have anything to do with the mother. The mother saw no prospect of beginning a conciliatory approach either.

4. Thus, there is no indication that the parties will be able to communicate about anything concerning their children in the future. The children will not benefit from having important decisions discussed between their parents.

5. Section 65DAC gives a good example of the required standard of parenting about decisions that the legislation expects of parents. It provides that if two or more persons are to share parental responsibility about major long-term issues, any order is taken to require the decision to be made jointly by those persons. That, as the legislation provides, requires each of those parents:

   (a)to consult the other person in relation to the decision to be made; and

   (b)to make a genuine effort to come to a joint decision.

6. I find that previously, the father agreed for the mother to have sole parental responsibility and even when there was an opportunity to later be involved in the areas of decisions about the children, he did not persevere. The reality is that consultation has not occurred. I find that there is ample evidence for me to find that no such co-operation or consultation will occur regardless of who has the primary care of the children.  I find the evidence supports the conclusion that the presumption must be rebutted because it would not be in the children’s best interests for their parents to have that joint responsibility.

7. As to how decisions of a major long-term nature are made, there is no reason for me to change the reality of what has been happening.

8. I turn then to what orders should be made in this case.

9. Section 60CA of the Act requires that, in deciding whether to make a particular parenting order in relation to a child, the Court must regard the best interests of the children as the paramount consideration. The best interest principles are guided by the matters that the Court is required to consider as set out in s 60CC.

Section 60CC Considerations

1. Section 60CC refers to primary considerations and additional considerations. The primary ones require the Court to focus on the benefit to the children of having a meaningful relationship with both parents but also to protect them from physical and psychological harm from (relevantly) being exposed to abuse or family violence.

2. The fundamental question is whether, after taking into account the proposals of the parties and all of the matters in s 60CC that follow, a change of residence should occur. If not, there is no basis to be concerned about protecting the children from the conflict because there will be no further association between the parents.

Section 60CC (2)

1. The “primary considerations” that the court is to consider as to what orders achieve the children’s best interests are:

   (a)the benefit to the child of having a meaningful relationship with both 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.

2. The family consultant contemplated the children having a relationship of substance with their father by living with him if there was some foundation to the allegation of the mother’s ongoing harassment of the father because that would be the only way they would avoid the emotional harm of the exposure to their mother’s destructive behaviour. Absent that allegation having any substance, the mother was otherwise caring for the children appropriately. Having found that to be the case, there is no basis to make a change in the children’s residence. The father’s stated position that he would therefore walk away means that the children will not benefit from having a relationship with him let alone a meaningful one.

3. To simply remove the children from the mother to the father would also be problematic because, based on the relationship of the parents and also the father’s wife, there is little prospect that the mother would have any role in these children’s lives thereafter. I find there would be little or no prospect that the father would encourage that relationship. He made his position very clear in his evidence.

4. I find that any orders that the Court could make after finding that there is no basis to change residence will not achieve the objective in s 60CC(2)(a).

5. Similar findings can therefore be made that with the father removing himself from the lives of the children, there is no risk to them being subjected to or exposed to abuse.

6. The father’s case was that the mother was violent and abusive to the children as well as neglectful. I find there is no substance to those allegations and refer back to the findings earlier.

Section 60CC(3)(a) to (i)

1. J expressed a wish to live with his father and K wanted more time. Indeed, K’s view about a sharing of his time between the parents was delightfully fair but completely impractical because of the distance between the parents.

2. When examined carefully, the family consultant thought that what the children were saying was that they wanted the conflict to stop and to spend more time doing what they enjoyed. The father volunteered evidence that when he returned home from Court, J wanted to know whether the decision had been made. Because J was living at his father’s home during a long holiday period and in the midst of seriously unpleasant litigation, it is hard to know what weight to give that statement. The father did not give evidence because he did not ask J how he would feel about living away from his mother or indeed, not seeing his father at all. The child has experienced not only the conflict of his parents but also the absence of his father previously. What concerned the family consultant about the views of the children was that they had been subjected to repeated interviews and assessments and because of the high conflict, the Court should be cautious about giving weight to what they said.

3. I accept the views of the family consultant that it is difficult to place any weight on the views of the children at this time.

4. There is currently a very close relationship between the mother and the children even though the father thought otherwise. She has been their main carer and subjected to numerous investigations by welfare authorities yet only the father seemed to rely upon the statements of the children about a dysfunctional, dangerous and unhappy homelife.

5. The father’s relationship with the children has always been one involving active and enjoyable things. His household seemed organised and busy. But, nothing about the mother’s household appeared problematic. The maternal grandmother’s evidence pointed to a stable, loving and functional home which was the antithesis of what the father was portraying based on what the children were telling him. I find that whilst the nature of the parent and child relationships of the parents is very different, there is nothing in the evidence that justifies a criticism of the mother such that I could say it warranted a removal of the children from her care.

6. There is little doubt that neither party makes any serious effort to encourage the relationship of the other in a positive way. The mother’s evidence about pictures of the father’s family was slightly different from that of her mother which was limited to saying that there was a picture of the boys’ siblings in their room. Apart from some perfunctory reference to what sort of activities they did with their father, I find there is little else said. That is understandable having regard to the constant litigation, welfare interviews and court cases. This Court is realistic enough to think that after years of bitter and protracted litigation, these parties are not going to suddenly have an epiphanous event to work together in harmony.

7. The father too wanted nothing further to do with the mother and saw no prospect of having any dialogue about the children.

8. The father’s position of walking away is indicative that he sees no prospect of change. As the family consultant said, she was not surprised at his move even if she thought it was manipulative and not child-focussed. She thought the reaction of the children would be one of grief, anger and rejection but importantly, they will think they have done something wrong to cause this. Hearing that view did not move the father.

9. Even if the father did not walk away, the family consultant thought that two possible other options were really not practicable. First, the parents could move closer together. The prospect of their war being unresolved would make that not a good idea. The second is that the father’s time could be extended to Monday morning, more weekends per month than at present or extended holidays. None of those was palatable to the father and in any event, with at least an hour driving distance between them at present, the prospect would be problematic. Just why that would be so is questionable. Although the father’s affidavit portrayed himself as a tradesman, he said for the first time in evidence that he had not been working for months and it was the plan of he and his wife that she would work and he would stay at home. Why he could not then drive the boys to school with the extra time available to him remains unsaid.

10. I find on the evidence after hearing the contested facts that there is nothing about the mother’s capacity to provide for the children’s intellectual and emotional needs that would concern me. The same could not be said of the father. Apart from the manipulation and lack of focus as described by the family consultant, I know little about how well he would care for the children. His wife described the schools that they would go to and how the boys would fit into her busy household. Again, nothing about the mother’s evidence justifies a change.

11. A court is required to consider the attitude of the parents to the responsibilities of parenthood. The father’s approach is perplexing because of his not-negotiable stance. I agree with the assertion to the father put by counsel for the Independent Children’s Lawyer that perhaps he needed to ignore all of the things he said were happening around him and just get on with his life. His focus of discussing all of the things in the mother’s household as articulated by the boys was very destructive because he would not countenance any other possibility as being true. That approach has meant that the litigation has continued.

Section 60CC (3)(j)-(k)

1. I have covered the family violence issues and the orders arising from all of that. I find there have been orders made by State Courts. Those orders were not made without some foundation. I do not intend to repeat the evidence about family violence.

Section 60CC(3)(l)

1. The Court is obliged to consider whether or not final orders should be made. Counsel for the Independent Children’s Lawyer and supported by the mother submitted that the father should have some time to contemplate whether what he said, he meant. Because his wife strongly articulated the same message and he convinced me that he believes that these children will come to him of their own volition in the future, I find that he has had ample opportunity to contemplate the position he was putting. It is not appropriate for a parent to put such a position as did the father. It was not in the best interests of the children that he do so. In my view, there is little prospect of any relationship between the parents working in the future if it is desirable that they co-operate to achieve the objectives that I earlier set out. Those objectives are what the Australian community expects for its children. These two children will miss out on a significant part of their life even if their father comes back into it as they edge closer to adulthood.  Thus, I find that final orders should be made and to the extent that the father wishes to have some position in his children’s life, he can deal direct with the mother.

I certify that the preceding One Hundred and Forty Six (146) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 28 January 2014.

Associate: 

Date:  28 January 2014