Muir and Colley
[2014] FCCA 2445
•31 October 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MUIR & COLLEY | [2014] FCCA 2445 |
| Catchwords: FAMILY LAW – Parenting – applications relating to parental responsibility – with whom children, aged 8 and 6 years, are to live and spend time – serious concerns in relation to the father’s psychological harm to the children – benefits to the children of any time with the father – established meaningful relationship – consideration of principles to be applied in parenting matters – need to protect children from psychological harm – limited opportunities for time to be spent by father until children attain adolescence. |
| Legislation: Family Law Act 1975 (Cth), ss.60B(1) and (2), 60CC(2)(2A) and (3), 61DA, 65DAA |
| Lansa & Clovelly [2010] FamCA 80 AIF v AMS (1999) 199 CLR 160 U v U (2002) 211 CLR 238 Chappell & Chappell (2008) FLC 93-382 |
| Applicant: | MS MUIR |
| Respondent: | MR COLLEY |
| File Number: | BRC 685 of 2011 |
| Judgment of: | Judge Coker |
| Hearing dates: | 19-21 March 2014 |
| Date of Last Submission: | 17 April 2014 |
| Delivered at: | Townsville |
| Delivered on: | 31 October 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr Carmody |
| Solicitors for the Applicant: | Raniga Lawyers |
| Respondent: | In Person |
| Counsel for Independent Children’s Lawyer: | Ms Sweetapple |
| Solicitors for Independent Children’s Lawyer: | SJP Law |
ORDERS
That the Mother have sole parental responsibility for decisions in relation to the long-term care, welfare and development of the children, X born (omitted) 2006 and Y born (omitted) 2008, subject to the communication and notification of such decisions to the Father prior to the Mother making any final decisions, such consultation and communication shall include but not be limited to:
(a)a child’s education (both current and future);
(b)child’s religious and cultural upbringing;
(c)a child’s health;
(d)a child’s name.
That the children live with the Mother.
That the Father spend time with the children at all reasonable times as may be agreed, and failing agreement or order of a court of competent jurisdiction, supervised at Relationships Australia or other centre in close proximity to the Mother’s residence as arranged between the Father, the Mother and the contact centre.
That the time that the Father spends with the children is to be for periods no more frequently than each fortnight and if less frequently, as Relationships Australia or other centre can otherwise accommodate.
To give effect to Order 3 herein, the Mother and the Father are to do all acts and things required of them and to participate in any intake requirements of Relationships Australia, or other centre, within 14 days of the date of this order.
The costs of the use of the centre are to be the sole responsibility of the Father.
Telephone communication shall occur with the Father to telephone the children each Thursday at 6:00pm and should the children be spending time with the Father, the Mother shall be at liberty to telephone the children at all reasonable times on a number provided by the Father prior to any unsupervised time being spent by the Father with the children.
When it is necessary to exchange information or to discuss issues about the child the parties shall do so by email.
Emails shall be limited to such matters as:
(a)Any special medication required by the child;
(b)Any other unscheduled or periodic activities or events of which the other parent should be aware; and
(c)A list of preferred medical practitioners recommended by the child’s medical practitioners;
and shall not include any other matters such as observations or comments upon the other parent’s parenting.
That each party keep the other informed of their address, telephone number and email address and give notice of any change within 48 hours of such change.
That these Orders are sufficient authority for the children’s educational and health service providers to provide to the Father any information, document or thing in relation the children (including but not limited to reports, letters, photographs and the like) and to discuss all matters pertaining to the children’s education, health and wellbeing, with the parent seeking such information, document or thing to be responsible for the costs associated with obtaining same.
That each parent refrain from making critical or derogatory remarks about the other parent, members of the other parent’s family or partner in the presence of the children and that each parent shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the other parent, members of the other parent’s family or partner in the presence of or within the hearing of the children.
That neither party shall discuss these proceedings or the orders of the Court with the children nor permit any other person to discuss these proceedings or the orders of the Court with or in the presence of or hearing of the children.
Unless otherwise agreed previously by the parties, on a date following (omitted) 2020, the 12th birthday of Y, the parties shall take steps to consult with a Family Dispute Resolution Practitioner to consider any changes to the time to be spent by the Father with the children and/or the conditions attaching to such time to be spent by the Father with the children and:
(a)The parents shall pay the costs of the Family dispute resolution Practitioner equally;
(b)In the event that they cannot agree on a Family dispute resolution Practitioner, the Mother shall nominate three practitioners and advise in writing details of their fees, experience and availability;
(c)The Father shall choose one of the listed practitioners within 7 days of receipt of the list;
(d)If the Father fails to choose, then the Mother may choose.
Before an application is made to a Court for a variation of these orders compliance with Order 14 herein is required and the production of the appropriate certificate relating to Family Dispute Resolution having been attempted.
IT IS NOTED that publication of this judgment under the pseudonym Muir & Colley is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT AT TOWNSVILLE |
BRC 685 of 2011
| MS MUIR |
Applicant
And
| MR COLLEY |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 2 February 2011 Ms Muir, whom I shall refer to as the mother, filed an application in this court seeking orders with regard to the parenting of two young children, X and Y. The two children are the children of the mother and Mr Colley, whom I shall refer to as the father.
The application at that time sought urgent orders in relation to the parenting of the children and in particular, sought a recovery order for the apprehension and delivery up of the children. On 2 February 2011 Federal Magistrate Lapthorn, as he then was, made orders in relation to the children living with the mother, for the recovery order sought by the mother to issue and then normal directions were made to the Marshal and all appropriate officers of the Australian Federal Police and of the State Police Forces, as well as for the matter to be adjourned to 28 March 2011 in the Federal Magistrates Court at Brisbane.
Little did the mother or, I would think the father, anticipate that what would follow thereafter would be a three year court case involving various assessments and reports in relation to the parents, as well as the appointment of an Independent Children’s Lawyer. Quite simply, the matter has gone on for such a period of time and has involved so many issues in relation to the parenting of these children that there is obviously now a concern as to the future wellbeing of the children and the recognition of the need for there to be an end to the continued dispute in relation to the parenting of these children.
I note that because there is a real concern in relation to the proceedings, no matter what might be ordered in respect of the application currently before the court, there is little likelihood of orders being made which would lead to a cessation of further litigation. The reason for that will become clear during the reasons but can be summarised simply as, the father does not accept that there are concerns with regard to his behaviours and their effect upon the children, such that there may be some limitations placed upon the time that he spends with the children.
The father’s own indication in court was that, if that was to be the case he would, without hesitation, appeal the decision of the court. The alternative, recognised particularly by the Independent Children’s Lawyer, as it is noted in the final written submissions in relation to the matter, is that the only orders that might then result in an end to the proceedings, at least from the father’s perspective, would be orders which would provide for him to have, in the very short timeframe that he suggests in his material, equal time with the children and equal shared parental responsibility.
That is not recommended by the Independent Children’s Lawyer and of course one could only suspect that if such an order were to be made so as to appease the father, then the mother, or perhaps even more specifically, the Independent Children’s Lawyer, would lodge an appeal upon the grounds that orders made were not reflective of the evidence, as to what may or may not be in the best interests of the children.
This matter has all the hallmarks of the most significant emotional and psychological harm being perpetrated upon these children. It is a tragedy and a matter that must be addressed if there is to be any possibility of these children, in the future, growing up with anything other than a jaundiced and misguided view of what are the expectations that arise in relation to families and perhaps more generally, the expectations that arise in relation to interaction of children with adults and young adults, with each other, insofar as what constitutes a relationship.
THE PROPOSALS:
The final position taken by the mother, in relation to the proceedings, is very different to what she originally sought in her application filed some three years before. There her proposals could be summarised as follows:
·The children not be removed from the State of Queensland without the written consent of the parties.
·The children live with the mother.
·The father spend time with the children each alternate weekend from 6 pm Friday until 5 pm Sunday.
·The father be responsible for the collection and return of the children.
·That each party provide the other with information as to their address and telephone numbers.
The mother’s final position, as detailed in her case outline filed in relation to the proceedings, sought orders in these terms:
1. That the children live with the mother and the mother have sole parental responsibility of the children X born (omitted) 2006 and Y born (omitted) 2008.
2. The children spend supervised time with the father at the (omitted) Contact Centre each alternate Sunday for a period of two hours, and should the father be unable to attend for the said time with the children, the father advise the contact centre and the mother at least 24 hours prior to the said time.
3. The father to telephone the children each Thursday at 6 pm.
4. That the father refrain from questioning the children about the applicant and from discussing adult issues with them.
5. That the orders act as an authorisation for the children’s educational and health service providers to provide to the parents any information, document or thing in relation to the children (including but not limited to reports, letters, photographs and the like) and to discuss all matters pertaining to the children’s education, health and wellbeing and to ensure that all day care and school records include both parents as persons to be notified in case of emergency, with the costs, if any, arising from the provision of such information, to be borne by the parent requesting such information.
The father’s position in relation to the matter is very different to that sought by the mother. The father’s original response filed on 5 May 2011 sought orders which could be summarised as follows:
·That the mother and father have equal shared parental responsibility for decisions to be made in relation to the long‑term care, welfare and development of the children.
·That the mother return to Melbourne with the children, or alternatively the father be permitted to collect the children from the mother and the father be permitted to return to Melbourne with the children, and that the children live with the father.
·In the event that the mother is ordered to return to Melbourne with the children, the children live with the mother and the father on an alternate weekly schedule, with changeovers occurring at 9 am each Monday.
·The children spend equal time with each parent during each school holiday period.
·The children spend time with each parent on special days on a shared basis.
·In the event that the children return to Melbourne and the mother remains in Queensland, then the mother spend time with the children as may be agreed between the parties.
·When the children are living with one parent for a period of time pursuant to the orders, the other parent have the opportunity for telephone communication and communicate with the other parent by way of telephone and each parent is to ensure that the children are available to participate in such communication and to arrange for the children to be in a private and quiet environment.
·That the mother and father exchange information with regard to residential address and means of communication, as well as to provide authorisation to schools and health professionals, in relation to provision of information.
·That each parent shall respect the privacy of the other parent, not question the children about personal life of the other parent, speak of the other parent respectfully and not denigrate or insult the other parent in the presence of hearing of the child.
The final position of the father was not exactly clear, in relation to the matter, at the time of hearing. Although the father indicated in his initial address to the court that he was proposing a period of perhaps three or four months for there to be a “re‑acquaintance” between he and the children, perhaps involving weekends from after school Friday until Sunday afternoon or before school Monday but that thereafter, there be an equal time arrangement spent between the children and he and the children and the mother.
The father did not provide great particularity, in relation to what other arrangements should be made. For example, with regard to school holidays, special days and the like, though it would appear from his position in relation to the proceedings that there would be equal time spent with each parent on such occasions, in his written submissions, provided in relation to the proceedings, the father, at particular length, detailed other very specific orders that he might seek in relation to the children and in particular, to restraints or constraints placed upon each parent, but I might note particularly upon the mother and her family or friends.
For example, the father sought to restrain each parent from exposing the children to excessive alcohol consumption or illicit drug use and from driving under the influence of alcohol or illicit substances, as well as to seek to restrain, no doubt, the mother from allowing others, including the paternal grandmother Ms M, and the mother’s brother, the maternal uncle Mr J, from driving the children. Additionally the mother, it was suggested, should be restrained from leaving the girls in the care of Mr D, Ms M, Mr J or Mr A.
The father then detailed requirements that he additionally had with regard to the children and their time with each parent. These included:
1. That he be able to travel to different destinations within Australia.
2. That the children’s names be placed on an international travel watch list.
3. That both parents consent to the issue of a passport for the children.
4. That the children only be known by their birth name and that there be no changes to the names that the children are known by.
5. That the children, when transported in a private vehicle, shall only be transported in a vehicle driven by a person holding a valid driver’s licence and in a registered and insured vehicle and the children were to at all times be restrained by an Australian regulation compliant restraint apparatus, appropriate to the child’s age, height and weight.
The father sought, obviously, to impose a number of constraints and controls upon the mother and failed, interestingly, to recognise that what he outlined in the written submissions provided in relation to the matter, were an absolutely stark example of the control that the father sought to continue to exercise, in relation to the mother and her life.
In that regard the father continued to take a position, which was evident throughout the material provided in relation to this matter and more particularly, evident in the totality of his evidence, which was to the effect that there was only really one point of view to be accepted in relation to the parenting of the children, and that was his.
The father’s understanding, however, was not that he was being in any way controlling or manipulative of the circumstances, but simply a recognition of the fact that he was “right” in what he sought to require, in relation to the parenting of the children. It was, if you like, a stark re-emphasis of the father’s lack of insight and his intransigence, when it came to any arrangements proposed in respect of the parenting of the children.
As is perhaps obvious from what has already been said in relation to this matter, the position taken by the court early on, was to request the appointment of an Independent Children’s Lawyer. As early as 28 March 2011, the second occasion that the matter came before the court, Federal Magistrate Lapthorn, as he then was, ordered that Legal Aid be requested to arrange representation of the children by an Independent Children’s Lawyer, it being clear that there were many concerns that arose with regard to the parents’ capacity to provide for and to meet the needs of the children and in fact it being perhaps clear, even at that early date, that the parties were unable to communicate and perhaps, even more troublingly, unwilling to communicate with each other or to consider to any real extent, the position or perspective of the other parent.
As a result of that the Independent Children’s Lawyer was appointed and has set about a lengthy investigation and inquiry into the proposals of each parent and has put before the court recommendations in relation to what orders should be made. Those orders were detailed in the case outline document, which was filed electronically on 10 February 2014 and included in totality 27 orders with regard to parenting.
It was noteworthy that orders 8 and 9 of those proposed orders provided an alternative to the orders which were more strongly recommended, in relation to the parenting of the children, which could be described as:
·The children living with the mother;
·The mother having sole parental responsibility for decisions to be made in relation to both the long‑term and day‑to-day care of the children;
·For the father to spend, unless otherwise agreed, only supervised time with the children at the (omitted) Contact Centre on a fortnightly basis, with such time to be determined by the availability of the contact centre, to provide supervision.
The alternative suggested by the Independent Children’s Lawyer in relation to the matter was to have a phased‑in period of the father spending time with the children:
·Such that the father would initially have a period of three consecutive Saturdays with the children from 9 am until 4 pm and thereafter, upon completion of those three consecutive Saturdays;
·Would have the children spend time with him every third weekend from 4 pm Friday until 4 pm Sunday for a period of three months;
·The Independent Children’s Lawyer then suggested that upon successful completion of that particular time to be spent by the father with the children, that there be an ongoing arrangement for the children to spend time with the father each alternate weekend from 4 pm Friday until 4 pm Sunday.
The Independent Children’s Lawyer recognised that there had been difficulties in the past with regard to time spent by the father with the children and therefore sought to include a self‑executing type clause, which provided that if the father were, without reasonable excuse, not to spend time with the children, then the father’s time was to revert to the original proposal so that there was, if you like, a consistency and a constancy in relation to the father spending time with the children, developing toward the alternate weekend arrangement.
There was no suggestion by the Independent Children’s Lawyer that there should be more lengthy periods of time, for example school holidays or otherwise provided pursuant to the orders, even if the alternative of phased‑in additional time was to be provided.
It is also obvious from the orders that were proposed by the Independent Children’s Lawyer, that these orders were to be the maximum amount of time or opportunity for interaction between the children and the father, until such time as the children attain their majority.
That indication of possible alternative arrangements in respect of the parenting of the children was put forward by the Independent Children’s Lawyer, prior to the commencement of the hearing. However at the conclusion of the proceedings, directions were made for written submissions to be provided by the Independent Children’s Lawyer in relation to the orders and it was noted under the heading, “Proposed orders” as follows:
The ICL proposes that the following orders set out in the ICL’s case outline document filed on 10 February 2014 be made:
(a) Orders 1 to 7 inclusive; and
(b) Orders 10 to 27 inclusive.
Quite clearly the position taken by the Independent Children’s Lawyer following the adducing of evidence in relation to the matter, was to consider that it was not appropriate that there be any other opportunity for time to be spent by the children with the father, other than of the supervised nature detailed in the case outline document filed on 10 February 2014. The orders therefore recommended by the Independent Children’s Lawyer are as per the case outline document, excluding orders 8 and 9 with regard to alternative graduated phasing of time, and are in these terms:
1.That the children of the relationship X born (omitted) 2006 and Y born (omitted) 2008 live with the mother.
2.That the mother has sole responsibility for making decision in relation to the day to day care of the children.
Contact Arrangements
3.That the children spend time with the Father as agreed between the parties but failing agreement as set out hereunder.
Supervised contact
4.The father is to spend time with the child, supervised at the (omitted) Contact Centre as arranged between the father, mother and the contact centre.
5.The time that the father spends with the child is to be for periods each fortnight or as that (omitted) Contact Centre can otherwise accommodate the father.
6.To give effect to Order 6 herein, the mother and the father are to do all acts and things required of them to participate in any intake requirements of the centre.
7.The costs of the use of the centre are to be shared equally by the mother and the father.
Telephone Communication
8.Telephone communication shall occur with the father to telephone the children each Thursday at 6:00pm and whilst the children are spending time with the father, the mother shall be at liberty to telephone the children at all reasonable times on a number provided by the father.
Communication between parents
9.When it is necessary to exchange information or to discuss issues about the child the parties shall do so by email.
10. Emails shall be limited to such matters as:
a. Any special medication required by the child;
b. Any other unscheduled or periodic activities or events of which the other parent should be aware; and
c. A list of preferred medical practitioners recommended by the child’s medical practitioners;
and shall not include any other matters such as observations or comments upon the other parent’s parenting.
Living Arrangements generally
11.That each party keep the other informed of their address and emergency telephone number and give notice of any intended change to either as soon as possible once known.
12.That these Orders are sufficient authority for the children’s educational and health service providers to provide to the parents any information, document or thing in relation the children (including but not limited to reports, letters, photographs and the like) and to discuss all matters pertaining to the children’s education, health and wellbeing and to ensure that all day-care and school records include both parents as persons to be notified in case of emergency. The costs, if any, of such information shall be borne by the parent requesting same.
13.That the father refrain from making critical or derogatory remarks about the mother or members of her family or her partner in the presence of the children and that the father shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the mother or members of her family or her partner in the presence of within the hearing of the children.
14.That the mother refrain from making critical or derogatory remarks about the Father or members of his family or his partner in the presence of the children and that the mother shall do all things reasonably necessary to ensure that no other person makes any critical or derogatory remarks about the father or members of his family or his partner in the presence or within the hearing of the children.
15.That each parent be entitled to attend all events involving the children including but not limited to:
(a) Sporting fixtures;
(b)Extracurricular activities that allow for parental attendance or participation;
(c)School/day care functions and events that allow for parental attendance or participation and the parent who has the child in their care on the day of such activity will be responsible for the day to day care of the child at such event including the child’s transportation to and from the event unless otherwise agreed upon between the parents.
16.That each parent will keep the other informed of their current residential address and telephone numbers.
17.That neither parent will expose the children to excessive alcohol consumption or to any illicit drug use.
18.That the children, when being transported in a private vehicle, shall only be driven by a person holding a valid driver’s licence and in a registered and insured private vehicle and the children shall at all times when driving in a private vehicle be restrained by a compliant restraint apparatus appropriate to the child’s age, height and weight.
19.That the father will foster and encourage the relationship between the children and the mother.
20.That the mother will foster and encourage the relationship between the children and the father.
21.That neither parent will assault, harass, threaten or intimidate the other parent in any way.
22.That neither party shall discuss these proceedings nor permit any other person to discuss these proceedings with or in the presence of or hearing of the children.
23.That the father refrains from given the child Y any dairy products and the mother will provide the father with a list of her dietary requirements.
24.That the Father and Mother and their servants and/or agents be and are hereby restrained by injunction from removing or attempting to remove the children from the Commonwealth of Australia.
25.That the Marshall or all Officers of the Australian Federal Police and of the police forces of the various States and Territories are requested and empowered to take all necessary steps to give effect to these orders including all things necessary to include and retain the said children’s names on the Airport Watch List in force at all points of arrival and departure in the Commonwealth of Australia and to maintain the children’s names on the Watch List until further Order of the court.
THE EVIDENCE:
It is necessary in this matter to consider the significant evidence that was called in relation to the proceedings. In particular, the father and his fiancé, Ms N were called on behalf of the father. The mother and her partner, Mr M gave evidence. Also required, and in fact, providing at least two reports and lengthy oral evidence, was the report writer, Ms S, and, whilst not called, reliance was also placed upon the evidence of Dr G as contained within his affidavit and annexed reports of 24 October 2013.
I intend to address the evidence called in relation to this matter, at some length.
THE PSYCHIATRIC EVIDENCE:
I turn first to the unchallenged evidence of Dr G, a consultant psychiatrist. Dr G confirmed that he attended, pursuant to orders previously made in June of 2013, with the mother on 2 September 2013 and with the father on 6 September 2013. He subsequently prepared reports which were, as I indicated, annexed to his affidavit filed 24 October 2013.
In relation to each of the parties, Dr G indicated that he did not assess there as being any psychiatric illness present, in respect of either of the parents. Interestingly, however, and Dr G had the opportunity of considering the two family reports prepared by Ms S, dated 22 September 2011 and 18 February 2013, he did suggest that there should be some specific restraints or boundaries put in place, with regard to the interaction between the parents and, to some extent, between the father and the children.
With regard to the mother, he simply concluded his report with the following statement:
To this end from a treatment perspective, I make no recommendations for Ms Muir, believing her to be of sound mind and capable of having an ongoing, loving relationship with her children.
Insofar as the father is concerned, he concluded his report with an almost identical statement. It was:
Overall however, I do not believe there is any psychiatric illness present with respect to Mr Colley that prevents him from having an ongoing loving relationship with his children.
However, Dr G noted as follows:
Mr Colley appeared understanding of the reasons why the concern as expressed by the report writer but was able within the interview also state that what he felt were legitimate concerns about boundaries being maintained between his daughters and Mr M.
From a DSM-IV perspective Mr Colley does not present with a constellation of symptoms consistent with a Major Axis 1 Psychiatric Diagnosis. He does however have a somewhat rigid personality style which has led to difficulty comprising with respect to the ongoing raising of his children in concert with Ms Muir. I believe that it may be appropriate for him to talk with a culturally appropriate counselor or support person to assist him in being able to negotiate this difficult post-separation period with respect to Ms Muir. I believe this may assist him in being able to gradually spend more time with the children.
Dr G also goes on to note:
I agree with Ms S that Mr Colley needs to be more child centred with respect to the issues surrounding this custody and access dispute. Perhaps the assistance of a psychologist may be helpful in this regard.
And, finally, after noting, as I have already recorded, that there is no evidence of a psychiatric illness present with respect to the father, Dr G says:
I also believe that there should be strict boundaries with respect to the nature of the interactions between Ms Muir, Mr M and Mr Colley.
Quite clearly, Dr G had no doubt, with the assistance of having read previous material filed in relation to the matter and consideration of the reports prepared by Ms S, that the father does not suffer from a psychiatric illness which would necessarily preclude him from having a proper and meaningful relationship with the children, but Dr G also recognised the rigid nature of some of the father’s beliefs and recognised the effects of that rigidity on the father’s capacity to interact both with the mother and with the children.
The suggestion of discussions with a person of appropriate cultural sensitivity, as well as with a psychologist, recognised that there is not simply an easy road forward in relation to the father’s re-establishment of a comprehensive and beneficial relationship with the children.
As indicated, Ms S has filed two reports in relation to these proceedings being annexed to affidavits filed on 28 September 2011 and 21 February 2013. Additionally, she was required for cross‑examination and provided lengthy oral evidence, in relation to this matter. In light of the matters that were touched upon by Ms S in relation to this matter, I intend to refer to her evidence, following comments to be made with regard to both the mother and the father and their respective partners.
THE PARENTS AND THEIR PARTNERS:
Insofar as the mother was concerned, firstly, I should indicate that I was enormously impressed with her and her desire to ensure that there was a proper arrangement and relationship with the children. The mother initially proposed that the children should live with her, considering, obviously, that that was in the best interests of the children. But she also strongly submitted that there should be appropriate arrangements made to ensure that the father’s opportunity for interaction with the children was to continue.
Her position has changed over time, however, and is reflected now in the final proposed minutes of orders which were detailed in the case outline to which I have already made reference.
The mother has formed another relationship with Mr M, however, she does not, at the present time, live with Mr M. Rather, her evidence was to the effect that he lives in the same locality as her, at (omitted) in the south-east corner of the state and that there is regular interaction between them, perhaps on an alternate daily basis during the week and on weekends when he is in the area. There are some constraints in that regard, however, as Mr M continues to spend time with his children, who reside in Victoria.
The mother was asked whether discussions had been held with Mr M in relation to their cohabiting, and she indicated that there had been such discussions but that there was a need to resolve, as she put it, “many issues”, before they could establish a joint household.
The mother was frank in her evidence with regard to her concerns with regard to interaction between the children and the father and the effect upon the children of such interaction. The mother indicated, for example, that whilst the children spent time with their father, they enjoyed their opportunities for interaction. They returned home in an appropriate state, not distressed or experiencing difficulties, but that when the father previously had the opportunity to spend time with the children, the children were generally distressed and unhappy.
It was clear that the mother was seeking to walk what I might describe as a fine line between recognising the importance to these two young girls of having a proper relationship with the father, who loves them and supports them, and at the same time recognising the need to ensure that the children were protected from circumstances where, for example, they were subject to, at the very least, emotional and psychological abuse and harm, as a result of the attitudes of the father.
As a result of concerns that the mother had with regard to the parenting of the children, she acknowledged that since mid-January of 2013 the children had not had any physical time with their father, until some arrangements were made in early March of 2014, for there to be some supervised time.
When asked specifically to explain why she had taken the steps that she had done, and, obviously, therefore, had left herself open to criticism as a result of failing to comply with previous orders, she said words to the effect, “Because the father has constantly badgered the girls about Mr M. The girls get upset about it, and they beg with me not to go.” She continued, “Over time the children have become very distressed, particularly when they have indicated that they have been told by the father that they were lying to him if they said they did nothing with Mr M.”
The mother was obviously distressed about the situation and recognised, I think, with considerable insight, the effect upon the children of them not spending time with their father. She acknowledged, for example, that the children did miss their father after time for interaction with him had been stopped, but she noted that they appeared content to not be upset and, as she put it, “they lived happy lives.”
The mother still facilitated telephone communication between the father and the children, and whilst she indicated that initially that communication was seen by the children as a chore, it had gradually gotten easier, and the communication between the children and their father had improved and progressed.
The mother acknowledged that she had little trust of the father. She referred to the father’s proposals for equal time being unworkable as she simply did not believe that he would, as he indicated was his intent, live in the same locality as her. Her belief was that he would, in fact, continue to reside primarily in Melbourne and would commute when required to do so to spend time with the children, thus not providing them with the stability of a settled home. Her mistrust, she said, was based on previous experiences of what she believed were untruthful behaviours on the part of the father.
That mistrust was also reflected in the mother’s position with regard to alternatives to equal time, such as the father spending time with the children on alternate weekends or thereabouts, but with such time to be unsupervised. The mother simply said that the father had had his chance.
She went on to note that the father was, in her opinion, unable to restrain himself from questioning the children, and accusing them of lying, for example, in circumstances where they indicated they had not interacted in any way socially with Mr M. The mother noted that the children were, at least in her assessment, distressed by such behaviours and that this was reflected in what she described as fearful reactions when spending time with their father, on the basis that they were of the belief that he would further question them and, therefore, cause them distress.
The mother said that she had continued to encourage the children to spend time with their father, noting, in particular, that if time was to be spent with him, for example, on a supervised basis, then such questioning would not be able to occur. She indicated that they still displayed reluctance to spend time with him, and was asked whether she believed after some time had passed and the father was, for example, able to show restraint in relation to questioning of the children, whether there might then be greater desire on the part of the children to spend more time with their father, she indicated that she did not believe that would occur, and, in fact, as she put it, did not believe that “the children could get past it”.
When asked about what her position might be if the children were older, she indicated that she did not think even when they were older that they would be able to spend more time with their father, particularly if it were unsupervised, and noted, in particular, that the older of the two children, X, was an emotional child and experienced concerns with regard to even the most limited time being spent with their father, though she acknowledged, without hesitation, that the children both love their father very dearly. The mother, therefore, suggested that time spent by the father with the children should be supervised until, as she put it, “they can say they can handle unsupervised time with their father.”
The mother gave me the distinct impression that her views in relation to this matter were not maliciously held, or formed in a situation where she sought without reason to preclude any real involvement by the father in the children’s lives. More particularly, I gained the impression that she recognised the importance of the father in the children’s lives, but also recognised the importance and the significance of ensuring that the children were protected from harm of any kind, including psychological harm.
I was impressed by the mother. I was particularly impressed by the way she handled and dealt with disturbing and distressing cross‑examination by the father. I do not intend to detail at great length the hours of cross‑examination that the father directed to the mother. Rather, I intend simply to refer to certain aspects of that cross‑examination, the way that the mother responded to that cross‑examination, and my assessment of such reactions.
The father cross-examined the mother about their relationship and living together. He cross-examined her about her family, including whether her mother had used drugs and whether her mother was a drug addict or an alcoholic. The mother remained calm. She answered the questions that were directed to her in a courteous and civil way. She did not seek to deny that she had made arrangements in relation to the children spending time, particularly, with their maternal grandmother, and noted, when questioned about it, that she had done so at times when she was satisfied, exercising her parental role, that the grandmother was not using drugs.
The mother impressed me in her ability to remain calm in, no doubt, stressful circumstances and yet to maintain an honest and open demeanour, acknowledging that there may have been circumstances that could perhaps have given rise to certain concerns held by the father.
The father was determined to get concessions from the mother that would, no doubt, have been pleasing for him to hear, but distressing for the mother to even be asked to answer. For example, she was asked directly whether she acknowledged that her father was a paedophile. She responded that he was not, and when more particulars were provided by the father by way of a question to the effect, “Your father slept with you mother’s sister.” She responded that she did not know. The fact is that the mother remained, in the face of most distressing and difficult cross‑examination, calm and reserved.
She acknowledged that her father had stayed at her home on occasions when the children were in her care, but she noted that he had stayed in the garage and that there was no occasion where the children were left unaccompanied with her father. It is interesting, and, in fact, troubling, that the father would, like the rest of those present at the court, have heard those answers but either refused to acknowledge them, or refused to accept them as truthful, as he persisted throughout his cross‑examination to speak of contradictions on the part of the mother’s evidence, particularly relating to the fact that she had left the children in the unaccompanied care of her father.
The father went on to question the mother about her beliefs in relation to him. He opened what could only be described as a can of worms, however, when he asked her, “Why am I here?” She answered quite honestly and frankly, “It’s because you want to have contact with the kids.” He then asked the question that he did not know the answer to, and which led to the following evidence from the mother. He said, “What is my reason for wanting time with the children?”
The mother answered with words to the effect, “Because you love the children, but you don’t understand what is appropriate to say to them. You refuse to listen to me or to them. You don’t understand what the children need. I want you to have time with the children but you can’t act properly.”
The mother’s answer was impassioned and, I think, absolutely true. The mother recognises the father’s love for the children, but also recognises the hurt that the father’s behaviour has caused to the children, and, unfortunately, also recognises that the father cannot or will not accept that his behaviours can in any way be harmful or hurtful to the children. The mother was most impressive in relation to that aspect of her evidence and that line of questioning.
Similarly, the father sought, I thought, to manipulate and control the mother, but also to, with respect, mislead the court when he asked the mother about issues in relation to the children’s participation in music. He asked the mother whether she had asked him to pay for music lessons, and the mother replied that she had. The father then said, “Did you take them?” And the mother responded that she had not, but that was because the father had specifically arranged the time to occur at a time when she was not able to arrange the transportation and delivery and collection of the children.
More particularly, the mother indicated that she had advised the father of that difficulty, and that when Saturday lessons were organised, and she had not originally been told of that, there had been a call, no doubt made from the music teacher’s residence, in which the father seemed to suggest that he was entirely in the right, and the mother was refusing to recognise the needs of the children.
It was a prime example of the father’s intent to get his own way, to manipulate the situation, to control the mother and the children, and, unfortunately, an additional example of the father’s intent to involve others wherever he could in the matter, perhaps to gain favour from them as a caring and loving father, and the impression to also be given that the mother as the uncooperative and manipulative mother. Again, it did him no real credit.
The father questioned the mother about her attitudes during the relationship. He indicated, for example, that the relationship was a happy one, and when he questioned the mother about it, she gave an answer which, I thought, was, again, a clear indication of a person who attempted as best they could, to make a life out of a situation that eventually became unbearable and one that had to be stepped aside from.
When asked whether the relationship was happy between she and the father, the mother responded that she had pretended to the outside world that all was happy, that she had tried her hardest to make the relationship work, but her impression, and what finally broke the relationship, was that she and the father could not go for even a few days without there being an argument about something that she or the father considered important, and she indicated that she was, as she put it “stuck” in an unhealthy and unworkable situation.
The father could not, or perhaps more tellingly, would not accept that the mother felt trapped in the relationship and that the mother felt that she had done all she could to make the relationship work. Rather, the father was determined to reinforce only his view that all was well and that it was the mother’s fault if anything had gone wrong in the relationship.
When questioned about her relationship with Mr M, the father seemed to suggest that there was some inappropriate relationship as early as 2002, or thereabouts, when the mother and the father were also in a relationship. The mother denied this, but the father seemed either, again, unwilling or unable to accept that there might be another view as to the relationship between the mother and Mr M, than that which the father held.
When questioning the mother about whether the children had at any time been left in the care of her mother, and she acknowledging that she had done so, she indicated further that her mother was an amazing mother, and although there were difficulties in her life, the relationship was still positive, and the relationship between the children and their maternal grandmother was an important one.
The father challenged the mother about much that he says was his recollection of the relationship. He raised with her repeatedly statements that he intimated had been made by her, and the mother, to some extent, summed up her attitude to the eight years of the relationship when responding that it was hard to remember every incident that might have been discussed between she and the father, because the talk between them was just constant, leading to the end argument.
The mother went on to make almost what could be described as a cry from the heart when she said words to the effect, “I tried my hardest to make a relationship, but it was impossible. I kept giving you another chance, but, finally, I had a ‘light bulb’ moment.”
The father failed in any way to appreciate the hurt that he has caused to the mother, and, more particularly, the hurt that he directly brought upon her as a result of his lengthy cross‑examination, based almost entirely upon his views and perceptions of what was right for him and the children. He asked, “What have I ever done bad for the kids?”
She responded with words to the effect, “What you are doing now. You can’t let go of the past. You can’t just be a father to the children and have fun with the children. The children are required to keep things inside. They can’t talk to you. They’re afraid of getting into trouble. They’re scared to talk to you.” The mother then went on to say that she did not consider that the father would physically abuse the children but had no doubt that they were mentally harmed by the children and they were uncomfortable with him.
The father continued in that line of questioning, and it was noteworthy that counsel for the mother objected to the question as the mother was being browbeaten. The mother was distressed by the whole situation, but still the father could not see the hurt that he caused by his attitude and his behaviours directed to the mother.
The mother has, without doubt, done her level best to protect the children from the father’s lack of appreciation of the hurt that he causes them. I gained the distinct impression that, as the mother described it, a light bulb moment had come upon her, and she simply could not continue with the arduous task of putting the children back together when they had spent time with the father, of ensuring that the children were not frightened by the father’s constant questioning and accusations directed both to the children and in the children’s hearing, directed toward the mother and Mr M.
The impression that I gained in relation to this matter is that the mother had simply tried all that she could and was unable to continue to put the children in a situation where she saw the children as being hurt. The father, unfortunately, still failed to recognise the mother’s dismay or to, in any way, appreciate the effect of his actions. It was telling and tragic that the very last question that the father delivered to the mother after hours of cross‑examination and distress that he caused her was, again, one that stemmed purely from his appreciation of his rights and, if you like, of the mother’s wrongs. He asked, “Why are you making it harder for me to see my girls?” The mother almost, in complete exasperation, simply replied, “Because you hurt them.”
I was enormously impressed with the mother and her determination to protect her children. She gave me the distinct impression that if there were a possibility of these children having a meaningful and beneficial relationship with their father, then she would facilitate that relationship, but that, in the end, she had determined in a proper parenting role that she had a greater obligation to protect the children, and notwithstanding that she no doubt expected to be the subject of significant criticism by the father, she acted to protect the children and to ensure that they were not continually placed in a situation where they were stressed, frightened and harmed as a result of the behaviours of the father. The mother’s stance in relation to all of these proceedings has been exemplary, and she is to be commended.
I also had the opportunity of seeing the mother’s partner, Mr M, give evidence in relation to these proceedings. Mr M, in his trial affidavit, filed 15 January 2014, indicated that it was his belief that the father was:
…desperately trying to cause ongoing problems for me because he is jealous and vindictive. He does not want me around Ms Muir or their children, X and Y.
Mr M spoke of providing support for the mother, and, in particular, noted that he had provided that support by way of being present with the mother at times of handover, though noting the terms of earlier orders, had not sought to be physically present for the purpose of any interaction with the father. He was simply in the car. He was there, as he put it, to “ensure she is safe when entering or exiting the vehicle.”
Mr M also was able to provide information about his observations of the mother and the children together, and also his specific observations of the children’s reactions when they have had the opportunity to spend time, particularly unsupervised time, with the father. He says at paragraph 11 of his affidavit:
I also have witnessed the girls being severely distraught a few times after weekends they have spent time with Mr Colley. This upsets me as I know it is his intention to totally try to have them not interact with me at all. They are crying whilst saying “we can’t touch Mr M, sit on his lap and give him massages but we want to but (omitted) (dad) gets angry with us.”
It appears clear that Mr M has a positive relationship with the children, and, of course, a positive relationship with the mother, but it is also clear that the mother, having formed another relationship, has led to an exacerbation of the difficulties that she suggests arise with regard to her communication with the father.
Mr M was required for cross‑examination and confirmed in cross‑examination, particularly by counsel for the Independent Children’s Lawyer, the evidence that is contained within his affidavit.
Mr M particularly noted that he had a positive relationship with his own children, that he spent time with them, and that there were already opportunities taken for his children to meet with and interact with the children, the subject of these proceedings. It led to him being asked about time to be spent by the father with the children if that could occur, and I think quite significantly, he responded that it was important that that occur, but went on to say that it was still upsetting for the children, and it was for that reason that he supported the mother in suggesting that time to be spent by the father with the children should be of a supervised nature.
Mr M was also cross-examined by the father. The father’s determination, particularly to have acknowledged that the mother and Mr M had been in some form of relationship 10 or more years ago was evident when the father’s first series of questions were directed to Mr M about when he first met the mother, how long he was seeing her for and whether he was married at the time.
The fact was that the father, whilst suggesting at all times that his primary and only goal was to facilitate a relationship with the children, was immediately on the offensive. He was seeking to gather information which was in no way reflective of the best interests or needs of the children, but rather to support his view that the mother had in some way been unfaithful or that the relationship with Mr M and the mother in the early years, 2001/2002, was a morally reprehensible one, because Mr M was married.
Mr M indicated that the time that he spent with Ms Muir, a period of a few months, was during a period that he was separated from his wife. I accept that evidence absolutely.
Mr M is not liked by the father. It is clear that the father has some proprietal view in relation to the mother, and the fact that she longer wishes a relationship with him does not preclude him from still seeking to exercise control over the mother, thus explaining the actions of the father when there comes to any interaction with the children.
I am not at all satisfied that there is even a skerrick of evidence that would suggest that Mr M has in any way acted inappropriately with the children. He has a positive relationship with the children. When asked about whether the children had given him a massage, he could have been evasive, but he was open and frank and honest. He indicated that when, on occasion, he had complained of a sore neck or shoulders, these two little girls had, on occasion, indicated that they would give him a massage and had rubbed his shoulders and his neck. There was no suggestion of anything inappropriate in those behaviours, but the father latched onto it.
The father suggested that Mr M had pointed to his groin and made some inappropriate suggestions with regard to the children. I find that that did not occur, and, at best, the father had misinterpreted an innocent statement on the part of Mr M. More particularly, however, I am inclined, unfortunately, to the view that it is a fabrication and a means by which the father seeks to justify the unreasonable controlling and manipulative stance that he takes, in relation to the mother and these children.
The father was also suggesting that Mr M had fabricated evidence, because there were no recordings produced of complaints made by the children about statements made by the father to the children about not sitting on Mr M’s lap, not massaging his shoulders, not holding his hand, or not in any way interacting with Mr M.
The father, somewhat conspiratorially, also seemed to suggest that there was evidence of Mr M following him and photographing him when in Melbourne. Mr M denied that that had occurred, and, of course, there was no evidence to the contrary. Again, I find, without hesitation, that such a suggestion is simply wrong and is either fabricated or, at best, a misunderstanding and false identification by the father.
Mr M was challenged about his evidence with regard to the incident which occurred at a restaurant at (omitted) on the (omitted), following the handover of the children to the father on 22 October 2011. Mr M said that he was confronted by the father, that the father was abusive and derogatory of him, calling him a “fucking (omitted)”. The father denied that that had occurred and that, if anything, it was Mr M who was aggressive and inappropriate in any interaction that had occurred at the restaurant. Again, and without hesitation, I am absolutely satisfied that Mr M’s evidence in relation to this matter is an accurate and truthful recounting of what occurred on that day.
I have no doubt that, unfortunately, the father, having seen Mr M in the mother’s car, had reacted angrily, and had specifically sought the mother and Mr M out, to confront Mr M. I am satisfied, beyond any doubt, that the father instigated the incident, and that he did so in a circumstance which could only have caused further distress and humiliation to the children and to the mother, as well as placing the children in a situation of some considerable risk, as it appears clear from Mr M’s evidence that the father left the children unaccompanied on the footpath or area outside the restaurant, so as to approach he and the mother in the restaurant.
Mr M remained composed and, I thought, genuinely recognised the importance of a relationship with the father if it were beneficial, and indicated strongly, when it was suggested to him, that he was not in any way seeking to manipulate or control the mother, and, in fact, recognised the importance of a relationship.
Again, and it is telling that it occurred, the father’s final questions directed to Mr M, similar to those directed to the mother, indicated that the father had heard nothing except what he wished to hear in relation to the evidence of Mr M. Notwithstanding, the father asked Mr M “why does the mother think (country omitted) nationality or (religion omitted) faith is a problem only since you are on the scene?” Mr M simply responded, “Your attitude is the problem.”
Finally then he was asked whether, “if he was the mother’s partner, he could do anything to make the relationship between the father and the children better or whether he was going to create problems.” Mr M indicated that he had never set out to create problems or to in any way preclude the relationship. He said, “They are upset because of what you do.” And when asked why, indicated it was, “Because of your vindictive nature.”
Finally the father said, “Do you want to help my kids?” Mr M responded that he did. Again, the father, however, could not let go of his own position or even consider that there might be a different perspective when he finally directed to Mr M a question, “Are you controlling the mother, and, therefore, affecting my relationship with the children?” Mr M simply responded, “No. The mother and I are encouraging the relationship.”
I accept Mr M as an honest and forthright witness. I was impressed with Mr M, particularly in light of the difficulties inherent in the continued relationship with the mother, as a result of the attitude and behaviours of the father.
I turn now to the evidence of the father and his fiancée, Ms N. The father’s evidence in relation to this matter was troubling from the very beginning. When asked to provide an opening in relation to the matter, it being the case that he had not filed affidavits, he says, because of difficulties with the portal and otherwise difficulties with regard to understanding the process or even the language, the father, at length, detailed issues with regard to his life. He commenced this recitation with, “I had a bad time in my life in the past. I cry because I can’t talk to my girls. Everyone makes mistakes.” And thereafter went on to describe his move from (country omitted) to Australia, the difficulties that he had in establishing himself in the country.
He denied being violent towards the mother. He attempted to give the impression that he was, in every respect, what can be described as a perfect partner and father. He indicated that the questions that he had directed both to Mr M and to the mother were based on fact and statements made by the mother, in particular, statements to him. For example, with regard to the suggestion that her father was a paedophile, her mother was an alcoholic, and that Mr M was controlling of her.
He gave evidence of the positive relationship as he saw it between himself and the mother for a period of eight years, and spoke of the outside world’s observations of their relationship. He failed, unfortunately, and entirely to recognise that the mother was bitterly unhappy in the relationship, and that she was doing the best she could in a difficult situation to work the relationship through, and to provide for the children. The father’s lengthy opening, which was given in relation to this matter, was a self-centred diatribe which was as troubling as any of the other evidence that was given in relation to this matter.
The father says that when he spoke to the children, he spoke to them properly. He indicated that he liked to teach the children. He wanted to protect them and to give them good manners. Finally, he indicated that the reason he was at court was because he never gave up on the children and can look after the children perfectly.
It was noteworthy that the very last words said in the opening was that he could care for the children “perfectly”, rather than properly, and certainly suggested that it was the situation where he was better able to recognise the needs of the children and to provide for the children.
In cross‑examination, however, real indications of the father’s behaviour, attitude and character became clear. The father, though I acknowledge having difficulties with the English language, was able, almost invariably when he chose to do so, to clearly understand what was being asked and answered questions without the intervention of the interpreter. It was only when questions were difficult, or showed the father in a bad light, no matter what might be the answer, that he would indicate that he did not understand and needed the assistance of the interpreter.
The father indicated that he had not done anything wrong, that he had always told the truth, and, as he put it, “played no games”. The father clearly inferred that it was the mother who played games, manipulated the situation and controlled the circumstances that now existed. The father was determined to get across his own view as the only view worthy of consideration in relation to or in respect of the relationship between the children and Mr M.
The father was asked whether he had particularly told X not to kiss or cuddle or take lollies from Mr M. The father said that that was not the case and that he had told the children they can play with Mr M, but had said, “Don’t sit on any male lap.” When asked why he had said that, interestingly, his response was, “Because Ms Muir had been abused as a child.” When asked then if because of that there was a risk of abuse by Mr M, the father answered, “Yes.”
Here the father, again, reflected his lack of any respect of the mother as a parent or any appreciation of the actions taken by her to seek to protect the children. The father’s view was that the mother had been abused as a child. Whether that is true or not is unclear on the evidence, but to draw the connection that suggests that because of that the mother would not be able to protect the children, or that because of that the children sitting on Mr M’s lap gave rise to a risk that they would be abused is little short of mindboggling and reflects the father’s total lack of appreciation of what his behaviours, actions and attitudes might be and how they affect the children.
The sad truth in relation to this matter is that the father in many instances fails to recognise at all, that what he says may be hurtful or distressing to the children and may on many occasions fail to recognise even that he is saying hurtful things to the children. To that end, it may be absolutely true therefore that the father does not believe that he harms the children with what he says because he has no appreciation, firstly of what he says, or of the consequences of the words that he uses.
Interestingly, and perhaps the most obvious example of the father’s determination to be seen in a positive light and to suggest that it was the mother that was causing difficulties was in relation to questions with regard to the listing of the matter for trial on 20 November 2013.
The father was present at court on that day. He was asked whether he came to court on 20 November 2013 and he indicated that he did. He also confirmed that Judge Lapthorn made orders on that day and that there were directions with regard to registration and intake procedures being completed at the various contact centres. The father initially answered that he knew of that, but then very quickly asked which one when he was asked whether he had, in compliance with the directions, registered at the (omitted) and (omitted) contact centres. He suddenly suggested that he was unable to answer or understand the questions and sought the assistance of an interpreter.
Finally, however, he acknowledged that, whilst ordered to do so, he had not initially registered at the (omitted) and (omitted) centres, but at a later time had registered at (omitted). The interesting information that flowed from that was that the father insisted on handovers at the (omitted) Centre, having already been aware that the mother had moved to (omitted). The father suggested, it would appear, that that was the fault of Judge Lapthorn because he had made reference to the (omitted) Centre, but the real impression I gained was that the father feigned a lack of understanding of the orders, or of convenience for the mother when it suited him to place pressure upon the mother, for example, by requiring significant additional travel, so as to be convenient for the father spending time with the children.
Interestingly, when asked about his love for the children, he of course immediately, and understandably, acknowledged that he loved the children very much. He said, however, when asked whether he would do anything for them, that he would not do anything, but would only do the correct thing. When asked then why he had not followed the recommendations, for example, of Dr G, with regard to talking to a culturally appropriate support person or perhaps seeking some psychological assistance, the father, showing a very acute understanding of English and grammar, noting that what Dr G had suggested, was only a recommendation and “he didn’t have to go”.
The fact is that the father knew much more of what was going on in these proceedings and understood fully both his obligations and responsibilities in relation to the matter, but chose to use a shield whenever it suited him, of a lack of understanding of English or appreciation of the obligations or responsibilities that fell upon him.
The father was also very quick to take exception to the use of the English language when it suited him to do so. For example, when asked about the situation when he removed the children from the maternal grandmother’s residence, when the mother was absent, leading to the institution of the proceedings, he indicated that he had not taken the children. He didn’t take the children, but rather indicated that he was worried for the children and he “picked up my girls nicely”.
I am troubled here that the father is very much inclined to pick and choose when he understands English and when he does not, and is also very quick to always find positives in his actions and negatives only in what might be the behaviours or actions of others. To that end, in particular, he challenged aggressively any findings that were made by Ms S in relation to her report, and in particular the evaluation and recommendations that she made.
Unfortunately I am very much of the view in relation to this matter and to the evidence of the father, that the father is knowingly seeking to manipulate and control the situation. The troubling aspect of the father’s interaction with the children is that it is the one situation where I am unable to be convinced that the father knows what he is doing, but rather acts in a manner which is harmful to these children, without any appreciation whatsoever of the fact that he could remedy such a situation.
I was not impressed by the father. I gained the distinct impression that he lacked any insight whatsoever into the effect of his behaviours upon the children, as well as the harm that is caused as a result of his questioning of the children, his challenging of the children’s relationship, particularly with the mother and Mr M, and the challenges that were raised directly with the children, to the effect that they were lying if they did not tell him what he wanted, specifically at the time that he sought such information.
The father’s lack of insight and appreciation of his own harmful actions is perhaps the overriding factor of trouble and concern that arises in relation to these proceedings. I will further come to that particular aspect of the matter when commenting upon the law and its application in this particular case.
The father also called his fiancé, Ms N, in relation to the matter. Ms N gave evidence in relation to this matter, both in-chief and in cross-examination. Ms N indicated that the father was “an honest and generous person”. She indicated that he had a good relationship with her daughter and that her daughter sees the father as a father figure in her life. She indicated that they had been engaged for a period of two years and intend to marry, but do not intend to do so until the court proceedings are over. Ms N indicated that she had spent time with the girls when they had been spending time with the father and that her observations were that they had a great relationship with their father and that they were lovely girls who adored their father.
When asked about any indication she could give as to the relationship the girls had with their mother, Ms N indicated that she had not ever met the mother, but knew of her. She indicated there was an occasion in the past where they were at a wedding at the same time, but she had not been introduced to the mother and, as she put it, “What I know of Ms Muir is from Mr Colley.” Interestingly, however, though she has not spent time with the mother, does not know the mother and could not, to any real extent, know of the relationship between the children and the mother, she was able to comment, when asked about the relationship the girls might have spoken of between them and the mother, that they have “not spoken of the mother and I find it amazing”.
Quite simply, Ms N’s evidence was based almost entirely on hearsay statements made by the father, which, in my assessment, could only have been jaundiced and in no way a reflection of the mother, her attitudes and, in particular, her relationship with the children.
The real impression I gained in respect of this matter was that on the few occasions that Ms N might have seen or spent time with the children, it was in circumstances where the children were already displaying a reluctance to speak of their mother, because it might lead to any questioning about the household and, of course, therefore any interaction with Mr M. The fact that Ms N found their not mentioning the mother amazing is, indeed, troubling, but not as a result of any lack of quality in relationship between the mother and the children, but rather as a lack of appreciation on the part of Ms N, of the control that is now evidenced by the father’s relationship with the children and how they react to him.
Ms N was cross-examined by counsel for the Independent Children’s Lawyer as well as by counsel for the mother. The impression I gained of Ms N is that she is very supportive, understandably, of her fiancé, but that unfortunately her recollection of any interaction between the father and the mother, for example, observations from a distance or overhearing telephone calls, are almost in their entirety, a reflection of the father’s statements made to her about such interactions and, with respect, provide little assistance in relation to the proceedings.
What is troubling, however, is that Ms N was not willing to concede that there may be any difficulties with regard to the father and his interaction, for example, with the girls. When questioned about the family reports, that she indicated she had read, it was noteworthy that there were certain parts of the reports that Ms N could not remember. For example, she did not recall any mention in the family reports of the father’s sons indicating he had a bad temper, and when asked whether if, as appears in the evidence of the family report, that the sons reflected upon their father having been violent in past dealings, she answered not that she didn’t know anything of it, but that she wasn’t there and therefore didn’t know.
The fact is that Ms N was supportive of the father but I have no doubt that it would be her intent to be such a supportive step-parent of the children, if there was to be time spent by the father with the children.
THE FAMILY REPORT:
Having referred then to the evidence of the parties and their respective partners, I turn now to the affidavit evidence of Ms S. Ms S is a consultant family therapist in Brisbane. She is in private practice and has been involved in significant counselling for a period of some 16 to 18 years. Ms S holds qualifications in relation to counselling, as well as in nursing and has, for some 17 years or more, worked as a consultant family therapist attending the preparation of family reports, social assessments and the like.
Ms S has prepared two reports in relation to these proceedings, the first being her report dated 22 September 2011, annexed to her affidavit filed in this matter on 28 September 2011, and the second being her report of 18 February 2013, filed 21 February 2013. Ms S was, I thought, an enormously impressive witness. Her report prepared in relation to the matter was comprehensive, and whilst there was certainly criticisms of the report and the methodology, as suggested by the father in relation to the matter, it was more arising, I thought, from a lack of appreciation of the role of the report writer, as well as perhaps, most significantly, a failure to accept the recommendations that were made, in relation to the proceedings.
In cross-examination Ms S was asked about the first family report and, in particular, at paragraph 2.18 the following statement:
Ms Muir has mostly learned how to behave toward Mr Colley so as to not upset him. She will allow him to kiss her hello, for example, and does not reprimand or challenge him if she notices he is looking at her in a sexual manner. My observations throughout the assessment process confirmed Ms Muir’s ability to “manage” Mr Colley.
When asked what she particularly was referring to there, Ms S noted that the mother, in trying to manage the father and his responses or behaviours, and was attempting to keep him calm and settled. She was seeking to mollify him. Ms S noted that that was the case, and when asked whether there was any concern in the fact, that over one and a half days, the father’s cross-examination, both of the mother and Mr M, had been nothing short of aggressive, whether this was reflective of the father’s nature as observed by her in 2011, she responded with one word, “Absolutely.”
It was a recurring theme in relation to this particular matter. Ms S had assessed the father as manipulative and controlling. Ms S had assessed the father as having a somewhat volatile nature, which needed to be mollified by the behaviours of those interacting with him, including particularly, the mother. Ms S was asked whether, in commenting at paragraph 3.2, about statements by the father that the mother has been “eight years of fraud, I have reported it and she will probably go to jail”, whether the father was being controlling and threatening of the mother, Ms S noted that she had attempted to discuss such matters and the impact on the children if that were to occur with the father, but that he would deflect her questions and change the subject.
It was interesting that Ms S’s impression, as was mine, was that the father knew and understood English far better than he admitted and that any difficulties that he experienced were not so much as a result of language concerns, but stemmed far more from a lack of insight or appreciation of his own behaviours.
Ms S was asked specifically by counsel for the mother whether there was any alternative, as suggested by her in the second report, to supervised time being spent. She was asked to consider whether, for example, accepting that the children love the father and, no doubt, that he loves them, whether the difficulty was really a reflection of how to keep the father in the girls’ lives. Ms S responded simply, “In my view, time spent by the father should be supervised until there is no doubt he can remain child focused.”
When asked whether there was any age or stage that that could be accepted at, so that the children would not suffer emotional trauma, Ms S responded with words to the effect, “It is never appropriate to expose children to denigrating comments about the other parent. Once an adolescent can assess the situation they can make decisions, but until then, they are at the mercy of the father. They just have to tolerate unacceptable comments.”
When asked whether that could be done at a particular age, say 13 or 14 years, Ms S indicated that that would probably be the case.
Specifically, Ms S was asked about the change in recommendations made by her between her first and second reports. In the first report, she recommended that the girls spend “two nights per fortnight with their father (and brothers, if possible) – in Queensland,” and then went on to suggest that if overnight contact progressed well throughout the remainder of 2011, then she would suggest an increase to three nights per fortnight in 2012 and, when the younger of the two children, Y, was perhaps six years of age, the girls would be perhaps able to fly to Melbourne to spend increased time, eg, holidays with the father.
Obviously the issue of parental responsibility is one of great significance. Here it is a matter which looms large because of the very divergent position of the parties. I note that Lansa & Clovelly was a case where Murphy J was dealing with what he referred to as “pervasive and apparently intractable conflict.”
Exactly that situation arises here. The difference between Lansa & Clovelly and this case, however, is that there was some indication that the report writer in that case was hopeful that a decision about parenting would see an abatement of the conflict between the parties. There was also evidence in Lansa & Clovelly of the fact that the parties had been able, at least in part, to make decisions and to work together with regard to the decision-making process with regard to the long-term interests of the child.
There is no such indication in relation to this matter. The father would suggest that there is a workable arrangement between he and the mother but all evidence is to the contrary. As indicated by Ms S, the mother seeks to placate the father so as to avoid confrontation and the father chooses to take this as a workable relationship in which the parents are at an equal footing.
Section 61DA provides that there is a presumption of equal shared parental responsibility, but pursuant to subsections (2) and (4), it is a rebuttable presumption in circumstances of family violence, or in circumstances generally where the court considers that it is in the best interests of the children for the presumption to be rebutted.
Section 61DA is in these terms:
(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 parent’s family (or that other person’s family); or
(b)family violence.
(3)When the court is making an interim order, the presumption applies unless the court considers that it would not be appropriate in the circumstances for the presumption to be applied when making that order.
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interest of the child for the child’s parents to have equal shared parental responsibility for the child.
Here the mother seeks to have the presumption rebutted. She says that sole parental responsibility vested in her is the only basis upon which there could be a structured, consistent and settled decision-making process. The Independent Children’s Lawyer similarly suggests that there should be sole parental responsibility vesting in the mother again because of the inability of the parents to communicate appropriately, arising as a direct result of the different attitudes and perspectives of the parents.
As is clear from the orders sought by the father, he suggests that there is a proper basis for there to be equal shared parental responsibility suggesting that there is no issues of domestic or family violence that could relied upon to rebut the presumption and that there is appropriate communication and exchange between he and the mother.
The stance taken by the father could not be further from a true reflection of the relationship between he and the mother. Whilst domestic violence in its crudest form, physical assaults and physical harm, did not loom large in this matter, other aspects of family and domestic violence were apparent throughout the evidence and the trial. Section 4AB defines Family Violence as “violent threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.” The definition is understandably wide and whilst section 4AB(2) seeks to provide some examples of what may constitute family violence, it is not exhaustive nor could it be when behaviours can vary so widely from person to person and family to family.
Interestingly however, section 4AB(4) goes on to again seek to provide some examples of what may constitute a child being exposed to family violence and notes that whilst not being exhaustive, a child comforting or providing support or assistance to a family member following what could be considered an act of family violence, is an example of a child being exposed to family violence.
The mother is intimidated by the father. She seeks to placate the father and to ensure that he is not angered or upset by her behaviours or words. The mother, however, struggles now and it would seem has struggled for years to deal with the behaviours and expectations of the father. The father has been critical of the mother, her family and her partner, and certainly in respect of the mother’s family and partner, has attempted by various means to preclude the mother from keeping connections with them. His allegations raised in relation to the mother’s family and her partner fail to consider at all that the mother would not place the children at risk, and would in all respects act protectively.
The father has no respect for the mother and, whilst he suggested otherwise, there were no indications of his genuine belief that the mother was a capable, caring and protective parent to these children. The father’s behaviours were intimidatory and bullying of the mother, but more particularly were behaviours which hurt the children and he had no appreciation, whatsoever, of that hurt. These reasons are littered with examples of the father’s lack of insight and general refusal to hear the mother or the children or to even consider that his view might in some way be incorrect.
Issues therefore of abuse and family violence would be available to rebut the presumption of equal shared parental responsibility but, in addition, there are clearly other considerations which would satisfy me that it would not be in the best interests of these children for the parents to have equal shared parental responsibility. Quite simply, courtesy, trust and respectful exchanges between the parents does not exist. There is certainly a lack of trust on the part of both the mother and the father but of perhaps greatest significance here is the father’s lack of respect for the mother as a parent to these two girls and, more generally as an individual.
In every respect I am satisfied that equal shared parental responsibility is unworkable on any level and that sole parental responsibility vesting in one parent is the only order which can ensure that a structured, settled and consistent decision-making process can be established.
In light of that finding, it is not specifically necessary for me to consider those matters which arise pursuant to the provisions of section 65DAA. There is the requirement to consider a child or children spending equal time or substantial and significant time with a parent if equal shared parental responsibility is ordered, but even if that were to be the case here, the considerations of geography, and the capacity of the parents to implement such arrangements, would not exist.
What must be considered then are those matters arising from section 60B(1) and (2), the objects and principles of the Family Law Act relating to children and section 60CC(2), (2A) and (3), which are the considerations that must be looked at by a court as reflecting the objects and principles. Section 60CC(2), (2A) and (3) are in these terms:
Primary considerations
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.
60CC(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).
Additional considerations
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;
(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);
(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;
(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;
(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;
(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;
(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;
(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;
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child's parents;
(j)any family violence involving the child or a member of the child's family;
(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;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
Much has already been said in these reasons that relates to the considerations that must be looked at by the court in determining what is in the children’s best interests. The primary considerations, as detailed in section 60CC(2), relate to a child’s rights, balanced against a need to act protectively of a child. These children have a right to a meaningful relationship with both of their parents and, in fact, despite all that has occurred over the last few years, the children still maintain a meaningful relationship with both their mother and their father. For that to exist, reflects very positively upon both parents, but most significantly upon the mother.
Notwithstanding all that has occurred and the disparaging comments made by the father about the mother, her parenting, her family and her partner, the children are still encouraged in their relationship with their father. The mother is to be commended for her recognition and acceptance of the fact that the children’s needs for a relationship with their father outweigh any desire for revenge or to perhaps simply step away from conflict with the father. The mother has done all that could have been expected in relation to fostering the children’s meaningful relationship with their father.
The stance by the mother could not however be more starkly contrasted against the actions of the father. He has criticised the mother, her family and her partner to their faces, but far more seriously, to the children. Tragically, as identified by Ms S, on the occasions when the children have spoken up, particularly in favour of the mother or Mr M, the father has refused to hear, causing the children even greater distress. Notwithstanding these behaviours, and they appear unrelenting, the children still have their primary attachment to their mother, and the benefit of that cannot be under-estimated.
Acknowledging that there is a meaningful relationship with both parents, however, does not mean that the second of the primary considerations, the need to protect a child, does not need to be considered. The fact that the children, at the present time, have no or only a little appreciation of their father’s attitude to the mother, does not mean that the balance between a meaningful relationship and a need to protect a child from psychological harm, should be ignored. These children are presently young and their age means they are not yet aware of the father’s attitudes and beliefs. As time progresses, however, they will mature and be more attuned to what the father is saying about their mother and others close to them, and they will no doubt be hurt as a result of such statements. More significant, however, will be any possible detriment to the primary attachment which currently exists between the children and the mother.
It is a very significant factor in this matter. It has directly influenced the views and recommendations of the Independent Children’s Lawyer, and was a matter which recurred time and again in the report and concerns expressed by Ms S. It is also a factor which I must consider at the present time, but also as a consideration into the future, because the orders that are put in place now will be operative for years to come. Ms S noted, for example, that the children would need to be into their adolescence before they would be able to “filter” the father’s attitudes and that therefore if there was to be time spent between the father and the children, in her assessment it should indefinitely be of a supervised nature.
The Parliament itself has recognised, by the inclusion of section 60CC(2A), that where these two considerations are at logger-heads, “greater weight” is to be given to the need to protect a child from physical or psychological harm.
In this matter, as is obvious from all that has been said in these reasons, I have a very real concern as to the benefits to the children of continuing any form of contact or relationship with their father, when I have little confidence that the father will be able to change his attitudes or beliefs, particularly in light of the fact that there appears to be no insight as to there even being a problem. The father cannot or will not hear the concerns that are expressed and, as I noted earlier, Ms S considered it a situation where the girls found the father’s “negative attitude problematic”. As they get older, such behaviours can only cause greater difficulty and hurt for the children.
If these two primary considerations, and the balance to be found between them, was all that needed to be considered in relation to this matter, then I would, without hesitation, be making orders which would preclude all further time or communication between the father and the children. However, there are additional considerations which are influential in the determination of this matter. They are no doubt also considered as important by the mother, the Independent Children’s Lawyer and the report writer.
Significant here, for example, are the children’s expressed views, and whilst there are concerns about the father’s harmful effects upon the children if he cannot temper his attitudes and beliefs, the children’s clear wish, if it can be arranged in a positive way, is to continue their relationship with their father. The children, no doubt, love their father and he loves them, but there is a concern that whilst the children want a relationship with their father, they do not appreciate the harmful nature of his current behaviours. Ms S expressed concerns about the father’s ability to change or to temper his views, and noted that if they could not be changed, then there were ongoing and increasing concerns for the children’s emotional well-being.
Balanced against those concerns, however, are the just as real worries that arise if the children are not able to have any relationship with their father, provided it is a positive relationship. The recommendation of both the Independent Children’s Lawyer and the report writer for long-term supervised time is a compromise between the hurt that might arise from no contact with the father and the hurt that definitely would arise at present from unsupervised time with the father.
This issue is of particular influence, therefore, in that to cease any opportunity for time with the father may have as an unintended consequence, psychological harm to the children. It weighs in favour of the proposed opportunities for supervised time to be maintained, but as suggested by Ms S to be monitored, such that if the father is unable to alter his behaviours toward the children, then that the matter could be further considered with regard to ceasing all time with the father.
I have already commented on the children’s relationship with each of their parents and upon issues with regard to each parent being involved in decision-making and spending time with the children. The father has continued his endeavours in that regard, though unfortunately without recognition of the distress that he causes the mother and the children as a result of his words and attitudes.
The orders that are proposed by the mother and the Independent Children’s Lawyer, reflective of Ms S’s professional opinion, are not to any real extent going to change the current circumstances that the children find themselves in. They would still maintain a relationship with their father, albeit of a somewhat sanitised nature, but at least the relationship would be continued. Any other arrangement would be subject to significant changes for the children and, as I have already found, subject to real risks for the children.
There are obviously practical and financial difficulties that would be incurred particularly by the father, if orders as proposed were made, but by the same token, the father has the obvious opportunity to correct the errors in his behaviours to date and if he is able to do so, then his relationship with these two little girls can be further enhanced. The father already travels to spend time with the children and incurs expenses as a result of that. I am of the view that he would continue to do so, particularly in light of his expressed devotion to the children.
Section 60CC(3)(f) and (i) relating to the capacity of each parent to provide for the needs of the children and their attitudes to the responsibilities of parenthood have been the subject of much comment already in these reasons. It is not necessary in my view to repeat the concerns that have been expressed in relation to the father and to his capacities in respect of meeting the children’s emotional needs, or to understand the responsibilities of parenthood. Suffice it to say that the differences between the capacity of the mother and the inability of the father to address all of those issues is wide and falls clearly in favour of the mother.
Other issues relating to cultural considerations or family violence do not loom large in this matter, but there is a need to consider the types of orders made and the likelihood of them leading to further proceedings. I have given serious consideration to making orders which would preclude any time or communication between the children and the father, at least until such time as the children reached their adolescence and hopefully had the capacity to filter the information given to them by their father. To do so, however, would no doubt have led to the father appealing the unreasonableness of such an order, as well as there being a very real need to ensure that if there can be a positive relationship, then that these girls have the opportunity for that with their father.
Additionally, an opportunity for the father to address the concerns that arise in relation to this matter and to improve his relationship with the children, has positives not only for the father but also for the girls and orders which provide for limited time at the moment but with opportunities for increasing time in the future, including of an unsupervised nature, are more appropriate than those which seek to preclude any chance of improved relationships in the future, so as to protect the girls absolutely in the present.
I am satisfied, therefore, that the orders generally proposed by the mother and Independent Children’s Lawyer and supported by the family report writer, provide the best hope for there to be a relationship between the father and the children into the future. The orders of the court will therefore be as detailed at the commencement of these reasons.
I certify that the preceding one hundred and ninety-eight (198) paragraphs are a true copy of the reasons for judgment of Judge Coker
Associate:
Date: 31 October 2014
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