Nixon and Nixon (No 2)
[2016] FamCA 963
•15 November 2016
FAMILY COURT OF AUSTRALIA
| NIXON & NIXON (NO. 2) | [2016] FamCA 963 | |
| FAMILY LAW — CHILDREN — Final parenting orders — sole parental responsibility to mother — no benefit to the children to have a meaningful relationship with the father — children subjected to family violence and emotional abuse at hands of father — children to reside with mother and no provision for time with father — restraint against father contacting mother and children — father ran proceedings in a vexatious manner. | ||
| APPLICANT: | Ms Nixon |
| RESPONDENT: | Mr Nixon |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Smith |
| FILE NUMBER: | MLC | 2061 | of | 2009 |
| DATE DELIVERED: | 15 November 2016 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Bennett J |
| HEARING DATE: | 20–24 January 2014, 3–5 June 2014, 8–10 October 2014, 25, 27, 28 January 2016 |
DATE OF LAST SUBMISSION: | 26 April 2016 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | In Person |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Harris |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
All previous parenting orders in relation to the children, N born … 2000, S born … 2001 and I born … 2005 (collectively ‘the children”), or any of them, be and are hereby discharged.
The mother have sole parental responsibility for the long term care, welfare and development of each of the children.
The children live with the mother.
For the avoidance of doubt, the mother is solely responsible, as between herself and the father, for decisions regarding:
(a) where the children live;
(b)when and how the children travel, including being able to apply for passports without the consent of the father;
(c) the health and education of the children.
The father be, and is hereby, restrained by injunction from knowingly attending at or within the vicinity of
(a)the residence of the mother and/or any of the children;
(b)the mother’s work place;
(c) the school at which any of the children are attending from time to time;
(iii) the tertiary education institutions attended by any child from time to time; and
(iv) any place at which a child works or is employed or attends for recreational purposes.
The father, his servants and agents be and are hereby restrained from attending at or with 100 metres of the residence of the maternal grandmother in Town LX, Victoria.
If the children, or any of them, express a wish to communicate with or spend time with the father, the mother contact the father in writing to organise the communication or time to be spent.
The father spend time with the children (or any of them) in accordance with any agreement reached between himself and the mother and confirmed in writing.
The mother be, and is hereby at liberty to provide a copy of these reasons to the children’s paternal grandmother and I DIRECT that the mother be provided with an extra copy of these reasons for that purpose.
Any passports of the children held by the Registry for safekeeping be released to the mother.
The appointment of the Independent Children’s Lawyer be discharged as and from the expiration of the period in which a Notice of Appeal can be filed without leave.
All extant applications be and are hereby dismissed and this matter be removed from the docket of the Honourable Justice Bennett.
IT IS FURTHER ORDERED:
That pursuant to sections 65DA(2) and 62B of the Family Law Act 1975 (Cth) the particulars and the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and those particulars are included in these orders.
IT IS DIRECTED:
That all material produced under subpoena be returned to the party or entity producing same at the expiration of the appeal period and if no appeal has been lodged with the Court.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Nixon & Nixon has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 2061 of 2009
| Ms Nixon |
Applicant
And
| Mr Nixon |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Orders
Ms Nixon
REASONS FOR JUDGMENT
Introduction
The Parties
History
Family Report of Mr VP dated 21 May 2009
Psychiatric assessments by Dr SS dated 2 June 2009
Consent orders made 10 June 2009
Family Report of Mr VP dated 24 May 2010
Orders of Senior Registrar FitzGibbon made 25 May 2010
Final orders made 13 January 2012 (by consent)
Enforcement of financial orders
Orders of 24 July 2013 permitting mother to relocate with children
The Procedural History
The Parties’ Applications and Materials Relied Upon
The applicant mother
The respondent father
The independent children’s lawyer
The Issues
The Evidence
Ms KE, family consultant
The mother as assessed by the family consultant
The father as assessed by the family consultant
Ms PS, the father’s new partner, as assessed by the family consultant
The children as assessed by the family consultant
Conclusions of the family consultant
Additional witnesses
Legal Principles
Conduct of the proceedings
Proof and findings of fact
Credit & impression of witnesses
The mother
The father
Ms KE
Relevant Law – Parenting Issues
Determining the child’s best interests
Family violence
The Town PP incident
The SW holiday house incident
Slapping the oldest child in the presence of the nanny
Other incidents of family violence
Treatment of the additional considerations
The children’s views
The nature of the children’s relationships with each of the parents and with others
The extent to which each of the children’s parents has taken or failed to take the opportunity to participate in making decisions about major long term issues in relation to the children, to spend time with the children and to communicate with the children and the attitude to the children and to the responsibilities of parenthood demonstrated by each of the children’s parents
The extent to which each of the parents have fulfilled or failed to fulfil his/her obligations to maintain the children
The likely effect of any changes in the children’s circumstances
Practical difficulty and expense associated with face-to-face time and/or communication with the other parent
Capacity of the parents to meet the children’s needs
Any family violence involving the children or any member of the children’s family and family violence orders
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children and any other relevant factors
Parental Responsibility
Consideration of equal time or substantial and significant time with both parents
Conclusion
Introduction
These proceedings concern N Nixon (“the oldest child”) born in 2000 (16 years old), S Nixon (“the middle child”) born in 2001 (15 years old) and I Nixon (“the youngest child”) born in 2005 (11 years old) (collectively “the children”).
The father has not seen the children since May or June 2013. They have lived with the mother in Canberra since July 2013. The father remains living in Melbourne and seeks orders for their return to Melbourne and the reinstatement of previous final parenting orders.
The mother and the independent children’s lawyer oppose the father’s application and propose that the mother have sole parental responsibility and there be no provision for time or communication between the children and the father.
Having heard this case on an interrupted but, I am satisfied, thorough basis, I find that there is no benefit to the children in an ongoing or meaningful relationship with the father. I am satisfied that face-to-face or other contact by the father with any of the children will have no positives and, indeed, will be deleterious to them individually and collectively. I have acceded to the mother’s application[1] for there to be no time and no communication and have ordered that she have sole parental responsibility and authority to make major long-term decisions in relation to the three girls.
[1] Mother’s written submission, filed 23 March 2016, [62].
The independent children’s lawyer aptly submitted, and I agree,:[2]
It is rare that the evidence in a case is so overwhelmingly that a parent is so lacking in capacity to parent that the Court is invited to conclude that there is no benefit to the children subject to the proceedings in having a meaningful relationship with that parent. This unfortunately is such a case.
[2] Independent Children’s Lawyer, Final Written Submission, filed 15 March 2016, [11].
The Parties
The parties were married in 1997. They separated in September 2008 but remained living under the one roof until 17 February 2009. The parties were divorced on 4 August 2011.
At the conclusion of the hearing the mother was 47 years of age and employed as a public servant at a government agency in Canberra on a full-time basis. She has a Bachelor and Master Degrees.
The mother has not re-partnered.
In previous hearings of this matter the mother has been legally represented. As of 17 December 2013 the mother has represented herself in these proceedings.
At the conclusion of the hearing the father was 43 years of age. He is unemployed. He has tertiary qualifications in mathematics and law.
As of 8 March 2012 the father has represented himself in these proceedings.
At the time the husband concluded his evidence, he had re-partnered with Ms PS. There is one child of that relationship, AS, born in 2013. In 2014 Ms PS gave evidence for the father in the proceedings. In circumstances I will describe below, the independent children’s lawyer secured the production of the husband’s medical records from HA Hospital from which it appears that, as at January 2016, the father’s partner was one Ms EJ and that Ms PS is referred to by the husband as his “former partner” and that Ms PS, her sister and mother were named as restricted visitors for the husband during his admission.
The father was previously the managing director of a firm, known as “the [L] Group”. Justice Dessau (as she then was) noted in her reasons for judgment on an enforcement application brought by the mother that there was evidence from the L Group’s compliance manager that the father’s “total remuneration for 2011 would be $651,000 and that he would draw $410,000 from his loan account”.[3] The L Group had receivers and managers appointed in March 2013. The father is currently unemployed and deposes to having nil income.
[3] [2011] FamCA 919 [29].
The father deposes that he is in ill health and was unfit to attend court for the last tranche of these proceedings in late January 2016. The father sought an adjournment which I refused. My reasons for refusing the father’s adjournment application are published as case neutral citation [2016] FamCA 23. I incorporate those reasons into these reasons. The mother and the independent children’s lawyer contended, and I accepted, that there was insufficient evidence upon which I could be satisfied that the father was medically unfit to attend court on 25 January 2016. The mother and the independent children’s lawyer concede (and I find) that the father has had a number of recent admissions to hospital due to a respiratory complaint and injuries and that, relevantly, the hospital records indicate that the father abuses alcohol, uses cocaine, sustained injuries when he fell whilst intoxicated and is not receptive to treatment or assistance for alcohol abuse. In short, the father has been in a sorry state but not for the reasons he says and not such that he is unable to attend court. Furthermore, given that the hospital records the father as saying that he can and will manage his alcohol consumption but the father’s evidence in support of the adjournment application is silent on the point, there seems little prospect that the father’s condition will change in the short term.
The father has not spent any time with the middle child since 12 May 2013 and last saw the oldest and youngest children on 28 June 2013. The father last spent time with the children during a holiday period in January 2012 and the children last stayed overnight with the father in late 2012.
History
The parties have been involved in extensive proceedings relating to both parenting and property matters. I will set out some history of the previous proceedings to demonstrate how, despite expert commentary and advice from practitioners like Mr VP, the father’s relationship with the children has deteriorated to the point that time or communication between the children and the father would be adverse to their best interests.
The father commenced proceedings in this Court on 12 March 2009. The father sought orders that the children live with him from after school or 3.30 pm each Wednesday until the conclusion of school or 3.30 pm on Friday, on alternate weekends from after school or 3.30 pm on Friday until the commencement of school or 9.00 am on Monday and for half of the summer school holidays.
The mother filed her response on 25 March 2009 in which she sought orders for the children to spend time with the father from 4.00 pm until 6.30 pm each Wednesday and from 10.00 am until 6.30 pm each Saturday. The mother also sought an order that the father’s time with the oldest child be subject to that child’s wishes.
On 27 March 2009 the parties consented to orders providing for the children to live with the mother and spend time with the father each Wednesday afternoon from 4.00 pm to 6.30 pm, each Saturday from 10.00 am to 6.30 pm and at other times as agreed between the parties. The consent orders also provided for the father to communicate with the children by telephone each evening on days when the children had not seen the father, the father was restrained from consuming alcohol for 12 hours prior to and during time with the children and the parties agreed to attend upon Mr VP in order to facilitate the preparation of a family report. No Order was made in relation to parental responsibility and therefore pursuant to s 61C of the Family Law Act 1975 (Cth) (“the Act”) each parent had parental responsibility for the children.
Family Report of Mr VP dated 21 May 2009
Mr VP interviewed the family on 13 May 2009 and subsequently prepared a family report dated 21 May 2009 which was annexed to an affidavit sworn 3 June 2009. This was the first of two reports by Mr VP which are valuable because they provide a longitudinal perspective of family dynamics and expert opinion to which each parent had access and could heed if he/she chose to do so. It is apparent from the father’s failure to modify his behaviour that the father did not heed what Mr VP had to say.
At the date of Mr VP’s first interviews with the family the oldest child was nine years of age, the middle child was eight years of age and the youngest child was almost four years of age. Mr VP did not interview the youngest child individually. Mr VP reported that each of the parents raised concerns about the other; with the mother stating her concern about the father’s alcohol consumption and alleging a history of family violence and the father stating his concerns about the mother’s volatility and her involvement of the children in the conflict between the parents.
The oldest child told Mr VP that she had not felt comfortable around her father for a long time and had not felt safe since the ‘[Town PP] incident’.[4] She also said, “I don’t feel loved by him. I don’t think he likes me at all”. The middle child described her father as unpredictable and told Mr VP that she was frightened that he might, “take her away and make her sleep where he sleeps now”. Mr VP observed that, “there was nothing whatsoever about the children or their behaviour in relation to their mother or their portrayal of her that suggested that they were remotely anxious, fearful or intimidated by her”. Mr VP reported that the older children’s concerns were “about their father, his anger and his alcohol use, the change in his behaviour when intoxicated and the consequent fear emanating from this”.
[4] The Town PP incident is discussed more fully later in these reasons at [178]-[183].
The Town PP incident to which Mr VP refers was the subject of evidence by affidavit as well as being canvassed extensively before me. It is discussed below at paragraph [178]-[183] of these reasons.
The middle child was reported to be more positive towards her father than the oldest child and Mr VP noted that the mother had stated that the oldest child and her father clash, whereas the father alleged that the mother had manipulated the oldest child. Mr VP stated at [52]:
Whilst I think there was some indication to suggest that [the oldest child] might be overly exposed to discussions about her father and the boundaries around the parental relationship may need to be less diffuse, I was left in no doubt that predominately, [the oldest child’s] feelings of her father were in direct response to her observations of her father and his behaviour, and not to do with anything that was said to her by her mother.
It was Mr VP’s opinion that “the most important factor to ascertain” was the seriousness of the father’s alcohol use. Mr VP also reported that the children did not feel safe with their father, although he had observed an indication that there was the foundation for a secure relationship.
Mr VP recommended that the children continue to reside with the mother and spend regular time with the father during the day only.
Psychiatric assessments by Dr SS dated 2 June 2009
Dr SS, forensic psychiatrist, conducted a psychiatric assessment of both parties and prepared a report dated 2 June 2009.
Dr SS’s opinion of the mother was that she was suffering from “an adjustment disorder with depressed and anxious mood, mild in severity”. Dr SS was not concerned that the mother’s symptoms interfered with her ability to parent the children. Dr SS concluded that there was “no indication of any other mental disorder, personality disorder or substance abuse issue”.
In his assessment of the father, Dr SS observed that “[a]llegations of alcohol abuse appear to be relevant”. Dr SS stated that “Mr [Nixon] should address his alcohol use to satisfaction of the Court”. He recommended that the father engage in alcohol counselling, which should involve “a combination of counselling interventions, possible pharmacological intervention … and possibly biochemical monitoring”.
Dr SS stated that there was no indication of a sustained mood disturbance or of mania or hypomania. He did not believe that the father required mental health treatment or medication due to mood or anxiety disorder. Dr SS stated that the father
does not appear to have an overt personality disorder. Narcissistic traits are evident but these appear adaptive, at least in his business persona. It is however possible that these personality traits may have negative consequences in the formation of some interpersonal relationships.
Dr SS concluded that “it is likely that the issues in this matter are predominately related to the conflict developed between the parties in the final stages of their relationship”.
Consent orders made 10 June 2009
The parties consented to orders on 10 June 2009 providing for the children to spend time with the father each Wednesday afternoon and from 10.00 am until 6.30 pm on each alternate Saturday and Sunday for a period of three months. The father’s time with the children on alternate weekends was then to increase to from 10.00 am on Saturday until 6.30 pm on Sunday, with the first three overnights supervised by the paternal grandmother. The Order also required the father to attend and complete alcohol counselling as recommended by Dr SS, such counselling to be on a reportable basis. The Order did not repeat paragraph 3 of the Order made 27 March 2009 which restrained the father from consuming alcohol while the children were in his care, however it was also not discharged. The Order made 10 June 2009 specifically discharged paragraphs 2, 7(a) and 7(b) of the Order made 27 March 2009 but did not discharge paragraph 3.
Family Report of Mr VP dated 24 May 2010
Mr VP prepared a second family report dated 24 May 2010. Mr VP interviewed the family first on 24 March 2010 and then interviewed the children again on 6 May 2010 after the ‘SW incident’ (discussed further at [184]–[189] below).
The mother again reported concerns about the father’s alcohol use and denigration of her to the children, particularly after the incident at the holiday home, SW. The father expressed concern about the quality of care the children were receiving from the mother.
Mr VP reported that the father alleged that he had undertaken the majority of the parenting of the children during the marriage. Mr VP stated at [20]:
The general criticism of [the mother] to emerge both during interview, and more so through the affidavit material and his written communications to me were about her personal functioning, her domestic capacity, her parenting, her psychological functioning, her inter personal difficulties that included members of her own family and in particular in relation to men, and her spurious claims to do with him and his functioning.
The mother expressed to Mr VP her unhappiness with the current arrangement. Mr VP reported at [25]:
Whilst in principle she believes that the children should be seeing both parents and that both parents should have an equal influence in their lives, her observation is that their experience of their father and his behaviour towards her, is all very negative. She added that she feels very guilty because she forces the children into an environment to which they don’t want to go, that she is constantly having to encourage the children to attend, amidst a hope that he will recognise that what he is doing is damaging.
Mr VP reported that the mother was worried that the father’s intention was to “take away all my dignity, to project me as a deficient mother and take everything away that he can”. Mr VP observed that the mother’s interactions with the children were “unequivocally positive”, as was the case in his previous report.
Mr VP reported that the children “love their father, but they don’t feel safe and secure in his care when they believe he has been consuming alcohol”. He also noted that “each of the children conveyed a sense that their father’s behaviour is different when other adults are around”.
Mr VP recommended that the children live with the mother and spend time with the father on alternate weekends and one overnight in the other week, subject to the testing of the evidence of the father’s alcohol use. Mr VP also suggested that as the children felt most uncomfortable when staying overnight with the father, he could have someone in his company to reduce their concerns, at least in the short term.
Orders of Senior Registrar FitzGibbon made 25 May 2010
The matter was heard by Senior Registrar FitzGibbon on 25 May 2010. The mother sought orders for the children to spend time with the father during the day only and that time be supervised by either the maternal grandmother or the father’s then partner and that the consent order of June 2009 be varied accordingly. The father sought orders for the children to spend time with him on alternate weekends from Friday evening until Sunday evening and an overnight in the other week.
The Senior Registrar stated in his Reasons for Judgment that the conflict between the parties had escalated as a result of an incident which occurred on 8 April 2010 at SW where the children were staying with the father.[5] The Senior Registrar stated at [39]:
The April incident has been traversed at length in the affidavits. But sad to say, it does not read well on its face. It centres on whether the husband was very drunk and angry at [the holiday home] many hours drive from home and so scared the children that “000” was called. Police attended. He refused to open the door. There was a stand off until a friend was called by [the father]. It was brokered that the children go and stay with him. It greatly concerned the children’s mother and still does so. But most importantly she observed the impact upon their daughters, who are now very anxious about resuming spending time with their father. Whatever orders may be made by the court and despite whatever assurances [the father] might give them, they are concerned that he might again consume alcohol.
[5] [2013] FamCA 839.
The Senior Registrar made interim orders providing for the children, then aged 10, nine and nearly five, to spend time with the father on alternate weekends, commencing at 10.00 am on Saturday and concluding at 5.00 pm on Sunday and then increasing to the conclusion of school or kinder on Friday until 6.30 pm on Sunday with an additional overnight on alternate Wednesdays. The father was restrained from consuming alcohol prior to and while the children were in his care and from yelling or swearing at the children.
Final orders made 13 January 2012 (by consent)
The final hearing of the proceedings, as they then stood, was set down to commence before Dessau J on 26 March 2012. However the parties adjusted all matters prior to trial and the hearing did not proceed.
Final parenting orders were made by consent by Registrar Field on 13 January 2012. They provided for the discharge of all previous parenting orders, for the parties to have equal shared parental responsibility for the children and for the children to live with the mother and spend time with the father on alternate weekends from after school on Thursday until the commencement of school on the following Monday and for half of school holidays. The father’s time with the children was conditional upon him not consuming alcohol, amphetamines or illegal drugs for twelve hours prior to his time with the children until the conclusion of time and upon him not yelling or swearing at the children or in their presence. Both parties were also restrained from physically disciplining the children.
The parties also entered into final property orders on 13 January 2012. The Order provided for the father to pay the mother outstanding spousal maintenance and the sum of $1.5 million within 45 days and for the father to retain the L Group to the exclusion of the mother. Pending the payment, the father was to pay the mother the sum of $1,700 per week. Additionally, the parties entered a Binding Child Support Agreement requiring the father to pay the children’s private school fees, periodic child support of $400 per child per week, private health insurance for the children at the top level of cover and all gap payments.
Enforcement of financial orders
On 9 March 2012 the mother filed an Application in a Case seeking that the father pay all outstanding spousal maintenance pursuant to orders made 10 June 2011 and the Final Order made 13 January 2012. The mother also sought various orders for the sale of the SW property and the L Group and for the net proceeds of sale to be distributed to the mother to satisfy the payment of $1.5 million plus interest. The mother sought that the father pay the children’s school fees in accordance with the Final Order and in her affidavit sworn 7 March 2012 deposed that the father’s failure to comply had nearly resulted in the children not being permitted to commence Term 1 at the school in 2012. The mother also deposed that the father had failed to pay periodic child support in accordance with the Binding Child Support Agreement and that the Child Support Agency was pursuing the father for arrears of child support. The father’s non-compliance with financial arrangements to which he agreed formed the backdrop against which the mother ultimately found that she and the children should move to Canberra. The father’s behaviour before Dessau J, during earlier proceedings to enforce financial orders, demonstrates that his disregard for his family’s economic wellbeing is of long-standing.
The proceedings of March 2012 did not mark the first occasion of the father’s non-compliance with orders. On 14 November 2011 Dessau J made orders for enforcement of spousal maintenance, the father owing the mother the sum of $17,900. At [11]–[21] of her Reasons,[6] her Honour detailed the history of the father’s previous breaches of orders including breaches of orders which were made by consent. In short, the father had failed to comply with the following orders:
·Paragraphs 8 and 9 of Order of 27 March 2009 which provided for the wife to continue to receive her wage from L Group, for the husband to pay for the costs of housekeeping, all outgoings for the former matrimonial home, the SW property and the wife’s motor vehicle and the minimum repayments on her credit cards;
·Paragraphs 10(b) and 21 of Order of 10 June 2009 which provided for the husband to pay for maintenance and cosmetic improvements to make the former matrimonial home fit for sale and defined the term “outgoings” for the purpose of paragraph 8 of the Order of 27 March 2009;
·Paragraph 8 of Order of 24 August 2009 which provided for the husband to meet his outstanding obligations pursuant to paragraphs 8 and 9 of the Order of 27 March 2009 and paragraph 21 of the Order of 10 June 2009;
·Paragraph 3 of Order of 10 June 2011 which provided for spousal maintenance of $1,700 per week; and
·Paragraph 8 of Order of 8 September 2011 which provided for arrears of spousal maintenance.
[6] [2011] FamCA 919.
On 3 April 2012 orders were made by consent, largely in the terms as sought by the mother, providing for the father to pay the school fees and for the sale of the SW property and the L Group in the event of the father’s continued failure to pay the mother the sum of $1.5 million as provided for in the Final Order.
On 10 August 2012 the mother filed a Further Application in a Case seeking that the father pay the mother the sum of $900,000, being $1.5 million less the amount of $600,000, which was paid to the mother on 2 May 2012, arrears of spousal maintenance and reimbursement for school fees and extracurricular fees which the mother had paid after the father had failed to do so. On 17 August 2012 the father was cross examined before Dessau J. The mother’s application was adjourned to 30 August 2012. Her Honour ordered that the father file a financial statement and granted the mother leave to file and serve subpoenas.
On 30 August 2012 the father and the paternal grandmother, Ms C, were cross examined by counsel for the mother. The father was cross examined further on 31 August 2012. The matter was adjourned to 20 September 2012 before her Honour.
On 4 September 2012 the mother filed an Amended Application in a Case seeking the sum of $1.5 million and various other sums owed to her pursuant to the Final Order made 13 January 2012. The mother sought that the B Road property be sold and the net proceeds of sale be distributed to her. On 18 September 2012 the mother’s former solicitors sought to intervene in the proceedings. Dessau J dismissed their application on 1 October 2012. The father was cross examined further on 1 October and 2 October 2012. Dessau J reserved judgment on 2 October 2012. On 19 October 2012 her Honour ordered that the father pay the mother the sum of $1.5 million plus interest, arrears of spousal maintenance and reimbursement of school fees. Her Honour restrained the father from altering his interest in the B Road property and issued an Enforcement Warrant for the sale of the B Road property. Her Honour also made an order for the father to pay the mother’s costs on a party-party basis for her original application filed 10 August 2012 and the supporting material and first day of hearing on 30 August 2012, and thereafter on an indemnity basis.
In Dessau J’s reasons for decision published on 19 October 2012,[7] her Honour stated at [19]–[21]:
[7] [2012] FamCA 956.
The case proceeded on the affidavit material, and an oral examination of [the father] as permitted under the Rules. It spread over a number of different appearances at Court, primarily because of his prevarication or failure to produce documents as reasonably requested. He disagreed with that, saying he had been helpful and co-operative in producing a massive amount of material, and that he felt hard-done by for the time he had spent in the witness box. I am satisfied that the time could have been shorter had his answers been more direct and co-operative, and had he produced the appropriate material as and when requested.
When he did ultimately produce material to the Court, it was largely by way of annexure to his affidavit filed 18 September 2012. It arrived in a box, and consisted of hundreds of pages. There appeared to be duplication of some documents.
I was left with the impression that, having failed to produce some of the relevant material earlier, [the father] chose to file this large pile of unfiltered material, as a form of obfuscation. Throughout the examination, up to and including in final submissions, he was still volunteering to produce material. Despite ample opportunity, and his expressed keenness to assist with full disclosure, he failed to produce many relevant documents in a timely manner, or in some instances, at all.
Dessau J made a number of findings about the father at [84]–[89] being:
His evidence was unimpressive. He was manipulative, evasive and untruthful.
There were occasions when he was at pains to say that he did not want to upset the Court in any way. What the transcript cannot disclose is that on many of those occasions, he was smiling or laughing as he said it. That in itself would not be a cause for adverse comment. People can smile for all sorts of reasons, including nervousness. That is indeed what he claimed when ultimately I referred to that behaviour. I make the observation only in the context of the broader picture of his conduct described above, and all of his evidence. In combination, I was left with the impression that he was “playing” with the Court, as opposed to genuinely trying to be helpful or honest.
[The father’s] prevarication and evasiveness was most apparent when, on numerous occasions, he was asked simple straightforward questions, to which he gave complicated answers that did not address the question, did not contain useful or responsive information, or appeared to be an attempt to “snow” the Court with irrelevant material. In the course of the examination, I referred to it as “mumbo jumbo”. He said that he simply was a “fluid” thinker, and did not think in the “simple” way that Dr Ingleby, the cross-examiner, thought. That struck me as a disingenuous answer. So did his claims from time to time that he did not understand some of the legalities of the situation, or that he was overwhelmed by the process.
I accept that although [the father] studied law, he has not practised as a lawyer. He has however developed and run a large and extremely successful [financial] business. During the examination, he certainly displayed his extensive knowledge of complex regulatory schemers, banking practice and commercial negotiation. This is not a man inexperienced in the commercial world, or naïve to complex commercial concepts. Yet he tried to portray himself as quite out of his depth in these proceedings. I did not believe him.
For example, when he tried to disclose some confidential negotiations that had occurred with Dr Ingleby in the course of the hearing, he professed ignorance about “without prejudice” negotiations. That did not sit with someone who had been such a major player in the business world, but more particularly it was in stark contrast to another part of his evidence, on a different topic, when he readily sought to claim that particular correspondence was “commercial in confidence”.
Similarly, despite his claim of little understanding of legal matters, at one point, various legal terms about the priorities between equities rolled off his tongue. In reference to his mother’s purported claim over the [B] property he volunteered that “apart from the equity in time concept … all mortgages are equal”, and explained that his mother’s mortgage would be “subordinated to the first mortgage provider [[K]].”
Her Honour then gave a number of examples of aspects of the father’s evidence which she did not accept or which she found to be untrue or misleading. Her Honour said that the father claimed he had not been able to pay the mother, stating, “he has various excuses, including blaming her for the ANZ’s indicative offer of $4 million only coming in at $1.5 million, and for the sale of the [SW] property falling through in April 2012.” Her Honour observed at [113]:
[H]e appeared to be complaining that she had retained various documents at the former matrimonial home and failed to disclose them, such that it adversely impacted the loan. I note though that he was the one with the close relationship and dealings with the bankers, and the one running the business, including the staff who, under him, managed its financial affairs. He did not point to any cogent evidence to support his complaints against the wife about this loan.
And further at [151]–[154]:
It is [the father’s] case that by late April 2012 he had negotiated a sale of the property to Mr [P], at a price of $1.1 million. He says that the wife interfered with the transaction and she lost the buyer.
[The mother’s] version is that [the father] failed to comply with the April orders, failing to return the … furniture to [SW], and failing to pay outstanding owners’ corporation fees or the Westpac bill facility. He also removed all living room window furnishings and curtains.
Secondly, although she agreed that [the father] had been dealing with Mr [P], who had shown interest in purchasing the property for $1.1 million and had deposited that sum into his solicitor’s trust account, it was in no way her fault that the sale fell through. It was after an inspection of the property that Mr [P] had changed his mind about the purchase, alleging that the flat was “not as represented”.
Her version is supported by a letter dated 14 May 2012 from lawyers for Mr [P] (Exhibit W 25) …
At the commencement of the final hearing before me, I reminded the father of Justice Dessau’s adverse impressions of him. I made clear that I would form my own impression independently of her Honour’s comments but, notwithstanding, he may wish to reflect on her Honour’s assessment of him to ensure that he comported himself before me in a manner which would not give rise to similar criticisms. I must conclude that my remarks fell on deaf ears because, my observations of the father accord entirely with Dessau J’s observations.
The father lodged a Notice of Appeal in relation to her Honour’s Order on 31 October 2012. On 2 November 2012 the father lodged an application in a case seeking a stay of the Order made 19 October 2012 pending the outcome of the appeal. In his Affidavit sworn 30 October 2012 the father deposed that the effect of the Order was to make himself and his then partner, Ms PS, homeless. The father also deposed that his partner was 20 weeks pregnant and that they had postponed their marriage due to the enforcement application. The father deposed that if the Order was not stayed, “it is likely that [L] and I will be insolvent prior to the hearing and outcome of an appeal”. The matter was listed before Cronin J on 5 November 2012 and proceeded by way of submissions and evidence. His Honour also had regard to the Reasons for Decision of Dessau J on 19 October 2012. His Honour adjourned the father’s application to 7 November 2012 for judgment. His Honour dismissed the father’s application and ordered that he pay the mother’s costs on an indemnity basis.[8]
[8] [2012] FamCA 964.
The father failed to file a Draft Appeal Index by 29 November 2012 and thus his appeal was deemed abandoned.
On 19 December 2012 the mother filed an Application in a Case seeking the sale of various artefacts and chattels. The mother deposed that she had not received any of the payments due to her in accordance with the Order made on 19 October 2012. She deposed that her rent was in arrears and she was required to vacate her apartment with the three children by 19 December 2012. The mother deposed that due to the rental arrears she was no longer regarded as a good tenant and had been unable to find accommodation. The mother proposed that her employer, BB Auctioneers, act on the sale. On 29 January 2013 Dessau J ordered that the artefacts and chattels be sold as the mother proposed and that the father be restrained from attending the viewings and auctions.[9]
[9] [2013] FamCA 147.
On 14 May 2013 the mother filed an Application in a Case seeking arrears of periodic child support, non-periodic child support and spousal maintenance plus interest. Macmillan J adjourned the matter to 17 July 2013 before Senior Registrar FitzGibbon. Before the matter was heard by the Senior Registrar, the mother filed an application seeking to relocate to Canberra with the children. In fact, the mother and children commenced to reside in Canberra in July 2013.
Orders of 24 July 2013 permitting mother to relocate with children
On 28 June 2013 the mother filed an Application in a Case seeking that paragraphs 2–10 of the final parenting Order made on 13 January 2012, which provided for the parents to have equal shared parental responsibility, for the children to spend time with the father and for the children to continue attending F School, be discharged. The mother sought orders providing her with sole parental responsibility for the children, that she be permitted to relocate to Canberra with the children and that the children spend time with the father on such terms and at such times as the Court determined was in their best interests.
In her Affidavit sworn 28 June 2013 the mother deposed that she had accepted full-time employment in Canberra and that the children were looking forward to relocating. She deposed that the children had been anxious about their forced departure from their private school but that the relocation “has given them a dignified exit from the school that they have all attended since kindergarten”. The mother deposed that she had made an open offer to the father in relation to changes to the final parenting Order.
The father filed a Response on 15 July 2013 seeking various orders including orders providing for the appointment of an independent children’s lawyer, that the mother’s application be dismissed, a recovery order, that the children’s names be placed on the Airport Watch List, that the mother pay the children’s private school fees and that the mother facilitate 120 days of make-up time.
The father’s evidence in his Affidavit sworn 15 July 2013 was that he desired that the children continue their private school education and that the mother fund such education. The father deposed that he was concerned about the mother and children’s lack of social connections in Canberra, stating, “I am deeply concerned about my daughters living in social isolation with a desperate and stressed mother” and “all of the girls’ friends, social connections, family and support are here in Melbourne”. He also described the disruption to the children’s schooling as “unsettling” for the oldest child and “disruptive and isolating” for the middle child. The father’s evidence was that he was homeless and unable to provide for the children financially until permitted to obtain an Australian Financial Services Licence.
The mother’s application was heard by Senior Registrar FitzGibbon on 17 July 2013. Senior Registrar FitzGibbon reserved judgment and made orders requesting that an independent children’s lawyer be appointed.
Pursuant to the Order made on 17 July 2013, Ms Caroline Smith, solicitor, was appointed as the independent children’s lawyer for the children within the meaning of Division 10 of Part VII of the Act. Her role is to form an independent view, based on available evidence, of what is in the best interests of the children and then act in these proceedings in what she believes those best interests to be.[10] Ms Smith is not a legal representative retained by the children and she is not bound by any instructions from them.[11] The role of the independent children’s lawyer is to deal impartially with the parties, ensure that any views expressed by the children are fully put before the court, to analyse documentary, expert evidence and reports and to distil from that evidence significant matters for the purpose of properly drawing them to the court’s attention. The independent children’s lawyer is also under a specific duty to take steps to minimise for each of the children the trauma associated with proceedings[12] and to facilitate an agreed resolution of matters at issue in the proceedings to the extent that it is in the best interests of the children to do so.[13]
[10] Family Law Act 1975 (Cth) s 68LA(2).
[11] Family Law Act 1975 (Cth) s 68LA(4).
[12] Family Law Act 1975 (Cth) s 68LA(5)(d).
[13] Family Law Act 1975 (Cth) s 68LA(5)(e).
On 24 July 2013 Senior Registrar FitzGibbon delivered his Reasons for Decision[14] and ordered that until further order paragraphs 4–10 of the final parenting Order made 13 January 2012 be suspended and that the mother be permitted to relocate to Canberra with the children pending final determination of the matter. The Senior Registrar ordered that the children spend time with the father as agreed between the parties, with proposals to be in writing and copies provided to the independent children’s lawyer.
[14] [2013] FamCA 839.
In his reasons for judgment the Senior Registrar was critical of the mother for having already relocated from Melbourne to Canberra without the sanction of the Court and without the father’s consent. However, the Senior Registrar also observed that the father’s submission that the mother ought to be made to obey the previous orders and return the girls to Melbourne was an “ironic submission in the context of the litany of orders which he has failed to abide by insofar as at least money matters are concerned”.[15]
[15] Ibid [74].
After taking into account the relevant legislative considerations, the Senior Registrar concluded that it was in the children’s best interests for them to continue living in Canberra with the mother pending a final hearing.
The Senior Registrar preferred the mother’s evidence as to the father not attending or attending late to spend time with the children and all other matters associated with the father’s attitude to the children and parenthood, but did not make any findings. The Senior Registrar considered that it was relevant that “there is no prospect in the immediate future of the wife receiving the monies, to which she was entitled as final property orders, spousal maintenance and child support arrears, and the like”.[16] The Senior Registrar rejected the father’s claim that his financial situation was created by orders of this Court or by the mother, stating “[The father] is the [master] of his own destiny”.[17]
[16] Ibid [136].
[17] Ibid.
Senior Registrar FitzGibbon stated at [142]–[143]:
I consider the position in which [the mother] found herself compelling and of sufficient gravity insofar as the limited and generally unpalatable choices open to her, that she had little choice and thus the decision she made is in the best interests of the children. The alternate position is that she wants to alienate the husband and this move aids her. An unlikely conclusion I suspect.
More likely is that this offer [of employment in Canberra] was grabbed like a life raft.
The Senior Registrar concluded at [149]:
There would be little or no point in requiring the children to return to Melbourne in circumstances in which they no longer have a home to go to, albeit another might be rent, the school at which they had been enrolled no longer welcoming them, no prospect of financial support from their father and no prospect of it in the near future. So whilst they are removed from him and extended families and a familiar environment, at least on an interim basis and pending close scrutiny by the Court at final hearing of the wife’s position it also affords the opportunity to [the father] to reconsider his position and perhaps seek to remedy his defaults and make offers to the wife, or to the Court in a substantive sense, to do things and quickly so that debts are paid and the practicalities of the children’s return to Melbourne insofar as the costs of their housing, are and education are secured.
The children have not spent any time with the father pursuant to the Senior Registrar’s Order that time be spent as agreed.
The Procedural History
This matter was then mentioned before me on 6 September 2013 when I ordered that the matter be placed in my docket and that a family report be prepared. The report was to be prepared by a family consultant of this Registry travelling to Canberra to conduct interviews. Counsel for the mother stated that the mother was no longer pursuing enforcement of orders for property settlement as she believed she was unlikely to succeed in recovering any further sums of money from the father. No further orders have been made in relation to property matters since the Order made by Dessau J on 29 January 2013 for the purposes of enforcement. The matter was allocated a final hearing date of 20 January 2014, estimated to take three to five days.
This hearing has been interrupted at several junctures however the final result of the delay has produced a comprehensive body of evidence.
The matter was originally estimated to take not more than five days. When it did not finish on 24 January 2014, it was adjourned part-heard to 3 June 2014. The matter was still not concluded after three days and was allocated a further three days commencing on 8 October 2014. Evidence was concluded 10 October 2014 with Ms KE being the last witness to be cross examined by the independent children’s lawyer and the father. The mother did not cross examine Ms KE. The parties were required to file and serve their final address by written submissions.
On 10 November 2014 the independent children’s lawyer filed an Application in a Case seeking to re-open the case for the purpose of adducing fresh and further evidence which I allowed on 27 November 2014. The father filed a Notice of Appeal against my decision. He did not proceed with the appeal and it was discontinued on 13 March 2015.
On 15 August 2015 the mother filed an Application for passports to issue for the two older girls. The father responded on 30 September 2015 and opposed the mother’s application.
In the course of the mother requesting that the father sign the passport applications for the children, the father directed text messages to the mother including the following:
You have broken so many laws, told so many lies, stolen my daughters and failed to pay tax. You have wrecked their lives – redeem yourself by getting my girls to a good school so they can have the benefit of my family.
I can’t believe you have them living in such a dirty.shithole in a rental house. Squalor is truly evil. You will probably die from your own lack of hygiene. Disgusting.
Yuk. (Sent 11 March 2015, 9.48pm)
[Ms Nixon] — Do you want [the children] @ [XG Private School] next year? Their sister [AS] is enrolled. Their cousins … and … are as well. …, …, [AS’s] grand parents attended. Why make your daughters live in that shit hole when they can live with their family and attend a good school? We all want them back. We can tolerate and forgive you. [Mr Nixon]”. (Sent 5 April 2015, 3.11pm)
Ultimately the father had no objection and orders were made on 1 October 2015 providing the mother with the relief sought.[18] As part of the Order I further adjourned the part-heard parenting proceedings to 18, 25 and 27 January 2016.
[18] See [2015] FamCA 887.
The hearing on 18 January 2016 did not proceed. The father provided a medical certificate from a medical officer at the Trauma Unit, HA Hospital on 8 January 2016 stating the father was attending the HA Hospital as an in-patient until 22 January 2016 and was unable to attend court. The 18 January 2016 date was therefore vacated and the parties notified by the case coordinator that 28 January 2016 would be substituted in lieu.
On 25 January 2016 I granted leave for the father to file his Application in a Case in which he sought the hearing on 25 January 2016 to be vacated and rescheduled to no later than 1 April 2016. The independent children’s lawyer and the mother both opposed his application seeking instead to proceed with the hearing as listed on the basis the father was attempting to delay the finalisation of the case and that the father was not too ill to attend Court. An urgent email[19] was sent to the father (as there was no response to his mobile telephone) outlining that the adjournment matter would be heard that day and the matter was stood down till the afternoon to allow him sufficient time to attend Court. The father did not appear when he was called at the door of the Court that afternoon. I subsequently refused the father’s application for an adjournment and ordered that the proceedings would otherwise continue as listed for final determination.[20] I also ordered pursuant to s 62G of the Act that Ms KE, family consultant, be available to interview the children on 28 January 2016 and to deliver an oral report to the Court as to the current views of the children and any other further recommendations she has.
[19] Exhibit “H2”.
[20] See [2016] FamCA 23.
The father lodged a Notice of Appeal on 28 January 2016 in relation to the Order made by me on 25 January 2016. The Appeal was abandoned on 8 March 2016.
When dealing with the father’s adjournment application on 25 January 2016, I referred to my recollection that a further listing had been provided after the discontinuance of the father’s appeal but that it appeared that correspondence to that effect was missing from the court file. In fact, on 30 April 2015 my associate wrote to the parties advising that the hearing could resume and the matter be listed on 6 and 7 May 2015. The mother and independent children’s lawyer were agreeable. On 4 May 2015 the father wrote to my associate saying that he was too ill to attend court and enclosed a note from CO Clinic indicating that the father was unfit for his usual employment between 4 and 10 May 2015. On 5 May 2015 the father wrote again to my associate voicing his expectation that the hearing would be vacated. The hearing did not proceed and, the evidence now before the court verifies that, the father was hospitalised between 25 and 29 May 2015 for a long-standing respiratory complaint.
On or about 13 July 2015 the father sent an inappropriate email to my associate in the following terms,[21] omitting formal and irrelevant parts:
[21] Exhibit “C1”
Dear Poor [Associate],
You do not enjoy any Judicial Immunity.
Her Honour does not enjoy any either — this filthy, dirty, witch is a child kidnapping woman who pretends to be a Judge in a Commonwealth Court. For the avoidance of doubt, you and [the judge] are going to confront the consequences of your utterances (both on transcript and off). You are evil, child stealing, witches.
Parliament, my daughters, the Federal Circuit Court and the Australian Community cometh with the Constitution (and the rest of the Australian community) in hand.
You are the most extreme brutal example of brutalism.
Evil people in Australia go to prison.
My appeal is going into the Full Court of the Family Court of Australia sometime next week.
Her Honour must be aware of the oversight of the Government of the United States of America.
Thx
[Mr Nixon]
As I mentioned earlier in these reasons, in June 2009, Dr SS assessed the father as not appearing to have an overt personality disorder. He opined that “[n]arcissistic traits are evident but these appear adaptive, at least in his business persona”. It is abundantly clear that, notwithstanding the father’s obvious intelligence and legal qualification, the father’s narcissistic personality traits are not adaptive in these proceedings, at least beyond a certain point. The father is well able to address the court and clearly enjoys focussing attention on himself. However, the accountable and transparent quality of court proceedings, being required to be responsive and having to contend with outcomes which do not accord with his view of the world bring to the fore maladaptive, tantrum-like behaviour by the father of which the above email is but one example. The content of the above message does not cause me to have a lesser opinion of the father but does resonate with Dr SS’s opinion of the father which was evidence in the first round of parenting proceedings.
The tone of the above email transmission was not isolated. The communications were referred to court administration which, thereafter, received all emails from the father and passed on to my Chambers only those which appeared relevant. As a consequence not all correspondence appears on the court file after 13 July 2015.
On 27 January 2016 there was again no appearance by the father when called at the door of the Court. I made orders amending the time by which parties were to file and serve the Final Written Submission provided in the Order made 10 October 2014. They were as follows: the independent children’s lawyer by 1 March 2016, the mother by 15 March 2016 and the husband by 1 April 2016.
On 28 January 2016 there was again no appearance by the father when called at the door of the Court. Ms KE delivered her oral report that afternoon (which is discussed at [122] of these reasons). I reserved my judgment pending receipt of the Final Submissions.
The docketed registrar who was responsible for managing correspondence from the parties approved requests for extensions for the filing of the final submissions in writing and subsequently they were received as follows:
a)From the independent children’s lawyer filed on 15 March 2016;
b)From the mother filed on 23 March 2016; and
c)From the father filed on 26 April 2016.
The parties have received seven days’ notice of my delivery of this decision. There has been no application to re-open the case to permit further evidence to be called.
The Parties’ Applications and Materials Relied Upon
Ultimately, each party sought orders which were at variance with their initial outline of case.
The applicant mother
By her case outline filed 16 January 2014 the mother seeks orders providing for the discharge of paragraphs 4–10 of the Order made 13 January 2012, for sole parental responsibility for the children and for the children to live with her in Canberra and spend time with the father as recommended by Ms KE in her family report (see [127] of these reasons) save that such time be supervised.
By her final written submissions filed 23 March 2016 at [62] the mother states:
The children have spoken loudly and clearly in the past two family reports that they wish to stay in Canberra with their mother and complete their education here or whatever they may choose. They have also articulated in unequivocal terms that they do not wish to have a relationship with their father unless it is on their terms. For these reasons and in light of the evidence submitted here the orders sought are as follows:
1. All prior parenting orders in relation to the children [N], [S], and [I] be and are hereby discharged.
2. The mother have sole parental responsibility.
3. The children live with the mother.
4. The mother have the right to select the educational opportunities for the children without the need to defer to the father.
5. The mother is permitted to obtain passports for each child without the need to obtain consent and will keep such passports.
6. That the mother is permitted to determine the place of residence for each of the children.
7. That the father have no access to the children unless it is through the express wish of a child and that the father is not to communicate with the children at any time unless communication is requested by the child.
8. The father be restricted from communicating with the children’s schools for any purpose nor is he to attend any of the children’s schools.
9. The father is restricted from attending or communicating with the mother’s place of employment or her employers.
10. The father is restrained form attending the home of the mother and children and their maternal grandmother’s home for any purpose.
The mother relies upon the following material:
a) her Final Written Submission, filed 23 March 2016;
b) her Affidavit sworn 4 May 2015;
c) her Outline of Case (Exhibit “W1”);
d) her Affidavit sworn 8 October 2014;
e) her Financial Statement filed 23 December 2013;
f) her Affidavit sworn 18 December 2013;
g) the Family Report of Ms KE dated 22 November 2013;
h) her Affidavit sworn 7 August 2013;
i) her Affidavit sworn 28 June 2013;
j)the Reasons for Judgment of Senior Registrar FitzGibbon delivered 24 July 2013;
k)the Reasons for Judgment of Justice Dessau delivered 19 October 2012;
l)the Reasons for Judgment of Senior Registrar FitzGibbon delivered 1 October 2010;
m) the Family Report of Mr VP, dated 24 May 2010;
n) the Report of Dr C, dated 12 September 2009;
o)the Psychiatric Assessment of both parties by Dr SS, dated 2 June 2009;
p) the Family Report of Mr VP dated 21 May 2009; and
q) the Report of Dr CT dated 30 June 2006.
The respondent father
By his response filed 3 September 2013 the father seeks that the mother’s application be dismissed, that the mother pay his costs and that the final orders made on 13 January 2012 (see paragraph 34 of these reasons) be reinstated so that the children live with the mother in Melbourne and spend regular time with him. Significantly, the father does not seek an order that the children live with him. The father’s submission was that the mother could commute to Canberra from Melbourne.
In his Final Written Submission filed 26 April 2016 the father seeks that the interim parenting Order made by Senior Registrar FitzGibbon be discharged and the Final Parenting Order [made by consent on 29 January 2012] be reinstated, and that the children be returned to Melbourne and enrolled in XG Private School.
The father relies upon the following material:
a) his Final Written Submission, filed 26 April 2016;
b) his Outline of Case filed 16 January 2014 (Exhibit “H1”);
c) his Affidavit sworn 16 January 2014;
d) his Affidavit sworn 3 September 2013;
e) his Financial Statement sworn 26 June 2013;
f) the Family Report of Mr VP dated 24 May 2010;
g)the Psychiatric Assessment of both parties by Dr SS dated 2 June 2009;
h) the Report of Dr CM dated 12 September 2009; and
i) the Family Report of Mr VP dated 21 May 2009.
The father also tendered proofs of evidence of Ms PR and Ms PS. Both Ms PR and Ms PS were cross examined by the mother and by counsel for the independent children’s lawyer.
The independent children’s lawyer
The independent children’s lawyer met with the children on 6 December 2011 and again on 27 December 2013.
In her Final Written Submission filed 15 March 2016 the independent children’s lawyer proposed that the children continue to live with the mother in Canberra and that the children be able to communicate or have contact with the father upon a reasonable request by the children (or any of them) to do so.
The independent children’s lawyer relies upon:
a)the Final Written Submission filed 15 March 2016;
b)her Outline of Case (Exhibit “ICL 1”);
c)the Family Report of Ms KE dated 22 November 2013.
The independent children’s lawyer also tendered proofs of evidence from Ms LS, former employee of the father, and Ms EG, former nanny employed by the father, and Ms EY, primary school teacher at FP School, Canberra. Ms LS and Ms EG were cross-examined by each of the parties.
In addition there were several exhibits.
The Issues
The primary issue in this case is the benefit to the children of a meaningful relationship with their father. These proceedings have been characterised by numerous allegations of abuse perpetrated by the father upon the mother and the children and the father’s insistent and repeated denials despite overwhelming evidence of ongoing family violence. The abuse is one of the reasons which leads me to conclude that a positive relationship between any of the children and the father is simply not feasible.
The topics on which there has been extensive evidence are as follows:
·the entrenched conflict between the parties;
·the father’s failure to comply with previous parenting orders by collecting the children late or not at all, returning the children to the mother’s care early and failing to confirm arrangements for spending time with the children or for changeover;
·the father demonstrating a poor level of responsibility as a parent of the children;
·the father’s denigration of the mother to the children;
·the father’s parenting capacity in the context of alcohol abuse and consuming illicit drugs such a cocaine;
·the impact upon the children of being exposed to family violence and the father’s denial that the events they and the mother have complained of occurred and his refusal to accept any responsibility; and
·the children’s wishes not to see the father as expressed to Ms KE.
The Evidence
I will not repeat all of the evidence I heard and which I have taken into account. However, I will deal in some detail with the social science evidence provided by the family consultant in these current proceedings.
Ms KE, family consultant
Ms KE was cross examined on the afternoon of 10 October 2014 and gave an oral report on 28 January 2016.
Ms KE, a family consultant with this Registry, interviewed the mother and the children on 18 November 2013 at the Canberra Registry. Ms KE did not have the benefit of observing the children interacting with the father as the father declined a request to travel to the Canberra Registry. Ms KE interviewed the father and Ms PS on 19 November 2013 at this Registry. Ms KE subsequently completed a family report dated 22 November 2013.
On 28 January 2016, Ms KE interviewed all three of the children. This was pursuant to an Order by me which was made over the father’s specific objection that the children be seen again by Ms KE. By email to the Case Co-ordinator on 25 January 2016, the father had said:
[The youngest child] was traumatised by [Ms KE] – she is not to go near my daughters either. A complaint is being lodged with the Australian Healthcare Practitioner Regulation Agency in relation to Ms [KE] traumatising my daughters.
The purpose of the supplementary meeting between Ms KE and the girls was for Ms KE to ascertain whether the view of the girls, or any of them, had altered since she travelled to Canberra and saw them in November 2013 and to give evidence accordingly. In making the direction, I considered the father’s stated objection but preferred to secure the most reliable result for the children with as little disruption as possible which, I concluded, would be achieved by requiring the children to see the same family consultant. I did not consider it appropriate that the children may feel that they have to re-tell the events of the last three years. I was not satisfied that there was any truth to the father’s assertion that the youngest child was traumatised by Ms KE (or that the independent children’s lawyer had traumatised the oldest child). In her oral evidence on Ms KE stated[22]:
… The children tell me that none — neither of them have seen or spoken to or been – had any communication with their father since before I interviewed them in 2013, which makes curious [the father’s] comments about my conduct towards [the youngest child] in interview. So — and each child in turn was asked if there are any issues that they needed to discuss, and neither reported any concerns with the interview process, as previously before. They all want the court — the litigation to stop. They talk about it as destabilising, it creates stress within the family. They also recognise their mother becomes particularly stressed at that time. They want boundaries. Each child talked about wanting to remain in Canberra. For them it has been an emotional relief to be away from Melbourne.
I am satisfied that the father identifies that the upshot of Ms KE’s evidence and cross examination was harmful to his case. In the result, Ms KE is an expert witness whose evidence I accept and upon whose evidence I place considerable weight.
[22] Transcript of Proceedings, Ms KE’s evidence, 28 January 2016, 3.
The mother as assessed by the family consultant
In the Family Report, dated 22 November 2013, the family consultant reported that the mother raised several concerns about the children spending time with their father in relation to:
·the father’s consumption of alcohol in the presence of the children contrary to court orders;
·the risk to the children of verbal and physical abuse, particularly when the father has consumed alcohol;
·stress placed on the children by unpredictable parenting arrangements;
·the father’s allegation that he has been harassed and stalked by debtors and that his home has been burgled;
·the father’s alleged drug use; and
·the father’s neglect of the children by not supplying food for the children and leaving them on their own for extended periods of time.
The family consultant reported that the mother described “a lengthy history of family violence in which she was the focus for [the father’s] alleged rage”[23] and told the family consultant that the children were frequently exposed to family violence.
[23] Family Report, by Ms KE, dated 22 November 2013, [40].
In the Family Report, the family consultant stated at paragraph 48:
There is a coolness about [the mother’s] presentation that although somewhat disarming appears to reflect her current weariness and her experiences adjusting to life as a single working mother and her need to accept the entire responsibility for her children’s health and well-being. Traumatised by the violence in her marriage she has consciously placed her own emotional life on hold although when seeping through the marital detritus she allows her fragility briefly to surface. [The mother] has, in this period, made a determined effort to focus tenaciously on providing the best she can for her children setting aside her own needs and nourishing her children such that they may achieve their potential.
The counsellor’s assessment of the mother accords with my observations of the mother.
The father as assessed by the family consultant
The family consultant described the father’s presentation as “co-operative, and engaging to the point of being charming”, but stated that he “responds to challenges to his logic by advising only he understands the complicated web of intricate and interrelated concerns with which he is juggling”. The family consultant stated at paragraph 50:
… He attempts to sustain his florid and at times grandiose narrative on the basis of his superior intellectual ability and “…values and standards” yet it is evidence that at times this is simply a shield to duplicity as much of what [the father] says defies reality and appears designed to obfuscate rather than inform accurately. [The father] maintains several delusions to be noted one, that he has a “… great relationship” with his children and another that he is “… a successful business man” and significantly that he is in no way accountable for the failure of his business: this lies in the hands of the Judiciary and [the mother]; with the general claim that they are unable to consider the ramifications of their judgements and actions.
The family consultant reported that the father frequently denigrated the mother during interview and admitted that he freely expresses his opinions about the mother to the children. Later in her report the family consultant stated that the father had said that his new partner also has a negative opinion of the mother, that she had communicated this to the children in addition to her disapproval of the children’s manners and dress and that he had remained silent when his new partner had expressed her negative views to the children about their mother and their behaviour.
The family consultant’s assessment of the father is wholly compatible with my observations of the father during the trial.
The family consultant reported that the father first asserted that he had complied with court orders requiring him to abstain from consuming alcohol, but “in a steady stream of prompted admissions his avowals of abstinence diminish[ed] from “… 96% compliant” to “… not strict adherence to times” and from “… substantially complied” to “… sporadic”[24] and reported that the father conceded he regularly consumed alcohol when the children were in his care. Having previously noted that the father “appears to have no discomfort creating an impression not consonant with reality”,[25] the family consultant observed that the father misrepresented the contents of reports about his alcohol consumption to her.
[24] Family Report, by Ms KE, dated 22 November 2013, [55].
[25] Family Report, by Ms KE, dated 22 November 2013, [53].
In her report the family consultant stated that the father denied that he had ever been physically violent to the oldest child and that the children had been exposed to family violence. He admitted that he continues to participate in expensive sporting events while requesting that the children use public transport in his care and be provided with Myki cards and lunches by the mother.
Ms PS, the father’s new partner, as assessed by the family consultant
The family consultant reported that during interview with Ms PS she had acknowledged that she had shared her views openly with the children, telling the family consultant that she was surprised that “three young ladies from a good school didn’t dress appropriately… and didn’t help around the house… and they were careless with their possessions and seemingly ungrateful, ill-mannered children”. [26]
[26] Family Report, by Ms KE, dated 22 November 2013, [71].
The children as assessed by the family consultant
The family consultant observed that the oldest child presented as a “vulnerable, sensitive and engaging, thoughtful but hurt young woman” who wept freely when describing the difficult relationship between herself and her father because she believed that her father did not enjoy her company. The family consultant reported that the child is fearful that she is like her father and sees herself as acting protectively of her younger sisters. The family consultant reported at paragraph 79:
… [The oldest child] described a sense of “… hovering fear” in relation to her father’s conduct describing his behaviour as “… sitting on a powder keg” constantly faced with uncertainty about what she and her sisters might experience … [The child] appeared to have accepted, almost without complaint, that she would be scapegoat to her father’s unpredictable moods describing herself as “feeling targeted” but she accepted this role as it enabled her to act as protective agent to her sisters.
The oldest child told the family consultant that she had not seen her father since May 2013 and that this was “a relief”, that she did not miss her father and that she was distressed that she did not have any positive memories of her father. The family consultant reported that the child would consider spending time with her father over a meal with her siblings, provided that her father refrained from consuming alcohol and discussing family issues.[27]
[27] Family Report, by Ms KE, dated 22 November 2013, [85].
All three children denied missing their father. Only the middle child was able to recall some positive memories of her father. The middle and youngest children reported that they had both witnessed their father single out the oldest child for abuse, with the middle child stating “I watched him being mean to [the oldest child]; it happened every time we visited him and it really affected me”.[28] She was also concerned that she hadn’t supported the oldest child, stating “I couldn’t say anything because he would be mean to me”.[29]
[28] Family Report, by Ms KE, dated 22 November 2013, [89].
[29] Family Report, by Ms KE, dated 22 November 2013, [89].
My impression of the children overall[30] is that they are each of reasonable maturity and they are empathetic. They are each recovering from harsh and unreasonable treatment by the father of them and their mother.
[30] Family Law Act 1975 (Cth) s 60CC(3)(g).
Conclusions of the family consultant
The family consultant stated at paragraphs 110–113:
… There is no doubt that [the children] enjoyed a life of privilege that become subject to discord and disruption on separation but [the father] did not appear to demonstrate a capacity to respond empathically to the changes his children were experiencing. The children were subject to multiple changes of residence, changes of school and exposure to a range of new parental partners; they were exposed to the parents’ financial machinations and endless disputes and changes in contact arrangements. It appeared that the children were simply swept up in events and their needs for stability and consistency, were not well accommodated. But it also appears that the children were actively punished by their father. [The father] had use of a motor vehicle but insisted the children travel by tram. [The father] actively engaged the children in the parental dispute and punitively so requiring they bring Myki cards and cut lunches to events ensuring the full impact of the financial restrictions were felt by the children. The children’s observation was that they alone were to be punished and to experience restrictions in their activities as they were aware of their father’s self-indulgence in a range of activities and unlike them, their father “… lunched”. The children also observed that during this period of trenchant cost cutting [the father] had commenced his new sport of ....
When issues with accommodation arose [the father] did not appeal to his extended family, about whom he speaks of as being so engaged with the children to facilitate his time, instead [the children] were subject to whim and direction about how and where and what time they should spend with their father, acutely aware that their father appeared to be highly selective about his time with them. Time with their father also meant the children were subject to the freely expressed disapproval of both he and Ms [PS] and unending, shameless denigration about their mother and in interview neither [the father] nor Ms [PS] could reflect on the impact of their conduct on the children.
Fundamentally [the father], who concurs that he has a limited understanding of the constituents of family violence, and who revels in his “… use of the vernacular” does not accept that he has exposed his children to trauma or that each child in their own way has been profoundly damaged by his conduct. [The oldest child], because she was singled out by her father for specific abusive acts, has internalised her father’s notion that she is a loser and she is terrified that assessments of her as “feisty” mean that she replicates his undesirable, unpredictable and abusive behaviour and consequently to some extent she holds herself responsible for her father’s conduct towards her. [The middle child] is traumatised by her father’s conduct to [the oldest child] and by her experience of being an impotent witness to her sister’s experiences; her inability to protect her sister has exposed her to multiple layers of trauma. In contrast to [the oldest child], [the middle child’s] trauma arises from events she can identify as external events and she is able to nominate the source of her emotional difficulties as her father. By contrast [the youngest child], sweet and lovely has suffered an egregious breach of trust in her relationship with her father. The man whom she is to rely upon for protection has for her been an unpredictable presence in her life and one that displays random acts of violence towards people she loves and towards those whom he is was supposed to care about.
It is important to note that [the mother] has also exposed the children to issues of parental conflict and the children are aware of her thoughts and feelings about their father and her financial difficulties. Each child though expresses their mother’s expectation that they, in the past, should spend time with their father and they are able to separate her requirements to co-operate with Court Orders from their own thoughts and feelings about not wishing to spend time with their father.
In her oral evidence given on 28 January 2016 the family consultant confirmed these impressions and stated:[31]
…. my summary position of the girls’ views is that they all share in common ongoing grief and incapacity to resolve the issues of the separation. It’s still very live for them. They’re still easily incredibly distressed about it. While they’ve moved on in their life in a practical way and each is full of praise for the way their mother has managed their circumstances, each is aware of financial strictures in their lives and the difficulties they have managing their life at times. Each speaks very positively about their mother. They do not speak with rancour about their father; they speak with deep disappointment and despair. They described two situations. So ambivalence is the core issue in what the children say to me. The two situations are that — and the first — on one hand each child grieves for loss of the family. They grieve for a loss of a father. They have an idealised image of their father. And they love that father. On the other hand they grapple with the realities of life with their father as they knew it, the abuse, the violence, the disappointments, the aggression and the hostility. And they don’t want anything to do with him. But because they are the characters they are, which is why I tried to explain to the court they are deep-thinking children, they want to be able to make the choice about when or if they see him at all. And by that I mean they would like the court to provide them with an opportunity to spend — to communicate with their father according to their wishes, if they wish to, and if they then wish to communicate with him, that they could set the parameters for that communication. So in other words, they want to take back some sense of decency, if they want to communicate with their father at a later stage, and they also want to have a sense of control, that they could set the boundaries so they feel self-protected.
[31] Transcript of Proceedings, Ms KE’s evidence, 28 January 2016, 3.
In addition, the father’s self-declared impecuniosity is refuted by evidence obtained by the independent children’s lawyer of records of the father’s accommodation at Hotel 1 in June 2014 and the HA Hospital recording his address at the HY Hotel in May 2015.[80] The father asserted that he “did not at any time, pay for Hotel 1 from my own funds, it was paid for by a wealthy bookmaker for whom I was doing some advanced mathematical and statistical counselling work as a ‘reasonable business expense’”.[81]
[80] Independent Children’s Lawyer, Final Written Submission, [117]; Exhibit “ICL24” and Exhibit “ICL26”.
[81] Father’s Final Written Submission, filed 26 April 2016, [139].
On the father’s own earlier evidence he claimed to be homeless however, his most recent submission stated that he is “not homeless — I live an extremely comfortable life. I have recently had some fun holidays at nice places like Crown Casino and [the Mornington Peninsula]. I would like to share this with my daughters”.[82] And further “… I can accommodate all of my daughters in a substantial home of 5 bedrooms or more in Toorak /Armadale as I enjoy the support of some third parties of substantial means”.[83]
[82] Father’s Final Written Submission, filed 26 April 2016, [208].
[83] Father’s Final Written Submission, filed 26 April 2016, [223].
I conclude that the father has failed comprehensively in his obligations to maintain the children.
The likely effect of any changes in the children’s circumstances[84]
[84] Family Law Act 1975 (Cth) s 60CC(3)(d).
In determining what is in the best interests of the children I am required to consider the likely effect of any change in the children’s circumstances particularly in relation to separation from their parents, other children, wider family including grandparents and other persons with whom the children have a relationship.
The mother conceded during cross examination that if the children remain living with her in Canberra it will be difficult for the children to have a regular relationship with their half-sister, AS. However, the mother identified that the distance from Melbourne is only one hurdle and other hurdles are the father’s “lackadaisical casual approach” to complying with orders, the inability of the parties to communicate and the reluctance of the children to spend any time with AS’s mother, Ms PS. Further the independent children’s lawyer submitted that given the father is no longer in a relationship with Ms PS it is unclear whether the father has any ongoing relationship with AS.[85] Considering the children’s relationship with AS is putting the cart before the horse. A relationship with the father is not of benefit to the girls and Ms PS was unimpressive in what good she could bring to a relation to a relationship with the girls (or any of them).
[85] Independent Children’s Lawyer, Final Written Submission, filed 15 March 2016, [135].
The father proposes that the children return to Melbourne and be enrolled in XG Private School. He submitted:[86]
[AS] is currently enrolled at [XG Private School] in [Suburb R]. Her cousins … attend. … I expect [the children] to be enrolled at [XG Private School] should the Final Parenting Orders be reinstated. My daughters will be deprived of this significant educational opportunity should the Orders of the ex-wife or ICL be granted.
[86] Father’s Final Written Submission, filed 26 April 2016, [2018].
Of course, the father is not offering to contribute to the cost of the children’s schooling at an expensive fee-paying school.
I am satisfied that the children have become settled in Canberra. Any alteration to their life there, particularly at the behest of the father, would be disruptive when the family consultant opined that they needed peace and quiet.
Practical difficulty and expense associated with face-to-face time and/or communication with the other parent[87]
[87] Family Law Act 1975 (Cth) s 60CC(3)(e).
I consider the practical difficulty and expense of the children spending time with and communicating with the parent with whom the children will not be living and whether this will affect the children’s right to maintain personal relations and direct contact with both parents on a regular basis.
If the mother is to continue living in Canberra, any time that the children are to spend with the father will necessitate either the children flying to Melbourne in their mother’s care or the father flying to Canberra to see them. The mother said that airfares between Melbourne and Canberra are expensive, particularly when parliament is in session, and would be difficult for her to fund. The father says he cannot afford to fly to Canberra to see the children. He did not travel to the Canberra registry to attend an interview for the family report as requested by Ms KE.
The mother says that with stops along the way it is an eight hour drive from Canberra to Melbourne and that it is difficult because she has no one to share the driving. The mother’s evidence was that she usually stops overnight. She says it is too difficult to drive the distance in one day and that she then has to drive from Melbourne to her mother’s home in Town LX which is a further two hour drive.
The father has not attempted to communicate with the children in any form since their relocation to Canberra and so they have had no face-to-face time or communication with him since June 2013.
The father’s evidence was that he could not afford to take a bus to Canberra to participate in the family report interviews. His evidence during cross examination about his financial position was as follows:
MS HARRIS: You’ve already indicated to her Honour that there are all these women about you that are happy to have you as being kept by them, providing you with transportation, providing you with accommodation and, no doubt, providing you with meals. Someone washes your clothes. Someone has access to a laundry and you tell us that you don’t have a residence. Is it your honest evidence to this court that you were completely unable to get from Melbourne to Canberra for the purpose of participating in a family report? Think very carefully before you answer.
MR [NIXON]: I am thinking and I say very directly to you it was not an option at that point in time. Quite demonstrably.
HER HONOUR: So this morning you sit there and say somebody will provide you with accommodation so the children can live with you but you couldn’t get the fare to, or any other means of getting to Canberra?
MR [NIXON]: No. That’s correct, your Honour. As far fetched as it sounds that is exactly correct.
MS HARRIS: What has changed in your financial circumstances since the end of last year when the family report was prepared and now? Specifically, not in vague generalities. What specifically has changed in your financial circumstances between the time the family report was prepared and now?
MR [NIXON]: Not much at all.
MS HARRIS: So why should this Court give any credence to your suggestion that someone who says I cannot afford to get to Canberra to attend a family report meeting and be interviewed by the family report writer with my children, can sit there saying nothing has changed in my financial circumstances but I’ll be able to accommodate the children if this Court permits me to have an order for them to spend time with me?
MR [NIXON]: There is a fairly obvious answer to that. It’s the change in [Ms PS’s] circumstances that you should be enquiring about.
Practical difficulties associated with face-to-face time are the least of the family’s problems. The independent children’s lawyer submitted that the “children travel through Melbourne during school holidays to spend time with their maternal grandmother and time with the father if sought by the children could be facilitated at this time”.[88] I agree. If I thought that time or communication between the girls and their father would benefit them (which I do not) a way to bring some could be found.
Capacity of the parents to meet the children’s needs[89]
[88] Independent Children’s Lawyer, Final Written Submission, filed 15 March 2016, [146].
[89] Family Law Act 1975 (Cth) s 60CC(3)(f).
In determining what is in the best interests of the children, I need to consider the capacity of the parent or of any other person to provide for the needs of the children, including emotional and intellectual needs. I have already traversed much of the evidence relevant to this in the context of other considerations.
The mother’s evidence in her affidavit sworn 7 August 2013 is that the relocation to Canberra has been successful. The mother deposed that her employer provides flexible working conditions and that her hours are conducive to family life. The mother deposed that the children’s schools and her workplace are close to their home and that the children have settled in well at their new schools. The mother said in her oral evidence that she is the main support for the girls in Canberra, but that the children have made a lot of friends at school and have been attending sleepovers. The mother also gave evidence that the children have maintained their friendships with children in Melbourne by means of telephone and social media and said that the children had caught up with some of those friends while holidaying in Town LX recently.
The mother has provided for the emotional and psychological needs of the children both personally and by organising counselling or treatment for the children as required. The mother’s evidence is that after moving to Canberra, the oldest child requested to see a counsellor which the mother arranged. The mother also gave evidence that after the youngest child became upset at school making Father’s Day cards she took the child to a counsellor. She said she was able to access six free sessions during which the counsellor was “disturbed” by what the youngest child told him so he referred her to her GP for a mental health plan. The mother said that she has been referred to a psychologist and that she had made an appointment for the child to attend the psychologist.
The mother’s evidence was that if the Court were to order her to return to Melbourne she expected she would be able to find a job but did not think she would easily find employment in her chosen career, describing similar positions as “like hen’s teeth”. The mother gave evidence of her unsuccessful attempts to locate a higher paying job in Melbourne prior to being offered employment in Canberra. The mother said that there are more similar roles in Canberra because there are more relevant institutions than in Melbourne.
The father alleged that the mother had been considered unstable and her parenting capacity had been impugned by Dr VM. He complained in his affidavit sworn 16 January 2014 that “any Family Report should have the benefit of the subpoenaed records of Dr [CT] and Dr [VM]” and that “only my medical records have been subpoenaed from Dr [CT]”. In Dr SS’s psychiatric assessment of the father he stated at paragraph 15 that the father had indicated that he felt that it was unfair that the mother’s legal team had subpoenaed the notes of the psychiatrist he had been attending, Dr CT, “and that on principle he had not sought to obtain Dr [VM’s] notes” (Dr VM being the mother’s general practitioner). I am satisfied that the father had ample opportunity to issue a subpoena to Dr CT and Dr VM for the mother’s medical records and chose not to do so.
There is no expert evidence to the effect that the mother’s capacities as a parent are inadequate, quite the reverse. My sole criticism of the mother relates to her forbearance of the father’s neglectful and abusive conduct of her and the girls both before and after the Final Orders made on 13 January 2012. A consequence of the mother’s forbearance was that the children had to endure the father’s abusive behaviour. The mother’s evidence during cross examination was that she consented to the Order on 13 January 2012 in the context of feeling that she needed to make concessions throughout both the final parenting and final property orders to achieve a settlement and in the context of the father seeking equal time. The mother said she was hopeful that the conflict between the parties over parenting matters would settle down once final property orders had been made and because the father was also in what she thought was a stable and beneficial relationship with a person who the children liked, Ms BB, however this relationship later ended and the father commenced a relationship with Ms PS (which has subsequently broken down). I accept that the mother may have acted with an unjustified degree of optimism and in good faith. It is also easy for me to conclude, with the benefit of hindsight, that the father’s behaviour went from bad to worse. Making an application to the Court to discharge or vary the final parenting Order would have been a daunting prospect with no guarantee of success. I conclude that the mother has put the children’s interests ahead of her own and has parented the girls to a very high standard. Nonetheless, continued exposure of the girls to the father has left them scathed and has not been in their best interests.
At paragraph 79 of his affidavit sworn 16 January 2014 the father deposed that:
Ms [KE] is being dramatic by stating that there has been ‘extensive conflict between the parents post separation.’ Ms [KE] fails to note that there was extensive conflict prior to separation and the girls’ (sic) were absolutely fine.
At paragraph 108 of her family report, Ms KE noted that the father, “was for these children a parent who was unreliable and inconsistent in his attentions to his children, frequently abusive to the children and denigrating of their mother and who at no stage demonstrated any capacity to consider the needs of the children as either a priority or separate from his own”. Ms [KE] also reported at paragraph 110 (quoted above at [121] of these reasons) that the father did not “demonstrate a capacity to respond empathically to the changes his children were experiencing” and in fact punished the children by ensuring they felt the full effect of financial restrictions while observing their father play sport.
Ms KE observed at paragraph 117:
Since separation [the father] does not appear to have made significant attempts to address or provide for his children’s day to day needs, or to address their psychological and emotional needs but he has expressed a wish list of requirements for the children’s attendance that have the tone of performance demands as they appear to be unsupported by any single expression of parental responsibility on his part. It is noted that [the father] communicated to the children’s school about his inability to fund their education, just as he efficiently cancelled their private health insurance but he neither discussed the impact of these decisions with the mother nor sought to make other arrangements for the children. [The father’s] focus appears to be that of divesting himself of responsibilities and does not appear to involve a mature consideration of his dependant children’s needs.
I agree with Ms KE’s opinion.
The father conceded that he has not sought any employment which would not require him to hold an Australian Financial Services Licence. When asked during cross examination why he had not attempted to obtain employment selling shoes he answered, “it doesn’t interest me ... that would be a waste of my talent”. When it was put to him by counsel for the independent children’s lawyer that his children need to be fed, his answer was, “well, you should have thought about that before you made these crazy court orders”. He agreed that he did not intend to recommence employment until he can recommence securities trading.
The father’s evidence in June 2014 was that he is financially supported by his mother and by Ms PS. He said, “I’m pretty well supported. I’m not under any compulsion to earn. Now and possibly ever.”
The father deposed at paragraph 147 of his affidavit sworn 16 January 2014 that “the lack of home help suggests that [the mother] and the girls are living in squalor”. ‘Squalor’ was a word used frequently by the father in the proceedings to describe the mother and the home that she maintains (see [76] and [263] above). The father conceded during the trial that he has not seen the mother’s home in Canberra but stated that he based his allegation on his past experience of living with the mother.
The father’s evidence was that “typically, when I’ve been due to have the children I’ve always had someone to assist me” such as a nanny (for example, Ms EG) or an employee (for example, Ms LS). His evidence was that Ms PS could provide support to him when spending time with the children in future. This does not sit well with the reference in hospital notes to Ms PS as a former partner who is not permitted to visit the father in hospital.
In relation to providing for the intellectual needs of the children, the father, in his Final Written Submission filed 26 April 2016, noted at paragraph 106:
All of my daughters, at various points in their lives, have expressed a desire to work with me at some point managing money. People in financial services do not even take the ex-wife’s phone calls. Should my daughters by (sic) subject to the orders of the ICL and the ex-wife they will be almost certainly deprived of any advantage in relation to a … financial services career.
And at paragraphs 197 and 198:
[The mother] is mathematically illiterate. I have a first class degree in Mathematics from … University. [The middle child], in particular is mathematically gifted. This considerable talent is going to waste with the current parenting arrangements.
I believe in gentleness, kindness, goodness. I have a loose set. My primary language to engage the world is that of mathematics, rather than the English language. Increasingly, given the vast amount of computer code that I have written. This, far superior approach, to comprehending the world, which is directly applicable to family situations. [The middle child] and [the youngest child] in particular, are incredibly mathematically talented. Maths is a language. [The mother] is mathematically illiterate. I have complained to the Attorney General about Her Honour’s mathematical illiteracy. It is not good enough for a sitting Judge to be unable to write computer code. Her Honour cannot make a credible financial decision — mathematics is the language of risk. Modern trading and investment banks could not exist without it. My daughters have already been deprived of considerable learning opportunities.
The evidence clearly indicates that the father’s behaviour is significantly influenced by his consumption of alcohol and consequently presents a significant risk to his children’s psychological and physical wellbeing.
In her Final Written Submission, filed 15 March 2016, the independent children’s lawyer submitted that the father’s significant alcohol and substance abuse issues (flagged in the 2009 proceedings) have escalated to the extent that the father is a danger to the children as well as himself when he is affected by substances; and that this behaviour as discussed earlier in these reasons has brought him to the notice of the police as well as him having to be hospitalised on more than one occasion due to alcohol related issues.
The independent children’s lawyer submitted at paragraph 155 of her Final Written Submission, filed 15 March 2016:
A chronological view of the evidence demonstrates a consistent pattern of alcohol use and escalating poor behaviour which now puts the father himself at risk. The various attempts of the father engaging in rehabilitation or therapy have been entirely unsuccessful over the last 15 years. The father’s demeanour and behaviour in court were clear examples of the inability of the father to take any responsibility for his behaviour in circumstances where he is now homeless and without employment or apparent financial support. There is a history of relationship breakdowns with the father having had four partners since separation. The father is now estranged from his mother and brother who did not support the father at trial (from which the court would be entitled and is urged to draw an inference that those witnesses could not have assisted the father’s case). The father was supported by Ms [PS] and her mother however in the 12 months since they gave evidence to the court there is evidence that they are no longer part of the father’s support network.
In response to his alcohol abuse the father noted in his Final Written Submission, filed 26 April 2016 at paragraphs 108–114
I drink less than my mother. [The mother] has not had any issue with her or [the paternal aunt] seeing my daughters.
[The mother] is a huge drinker. Ms Harris failed to elucidate any evidence about [the mother’s] repeated drink driving. [The mother] has been sighted guzzling champagne. [The mother] collapsed in the Melbourne Cup due to unspecified pills and alcohol in front of my friends. This Honourable Court has completely failed to get the evidence in relation to [the mother’s] many substance abuse problems. The Court cannot make an informed decision in relation to [the mother’s] drinking.
My drinking patterns and history have not really changed since arriving at [University] in 1990. If anything, they have declined over time.
Now that I do not have to live with the ex-wife, my life is much calmer and as a consequence I drink less.
Following my extensive hospitalisation at the [HA] Hospital (in May 2015, December 2015 and January 2016) I have a limited appetite for alcohol (and indeed just about all food). Eating and drinking can be painful at times due to a severe case of Irritable Bowel Syndrome.
Not of Dr [CT’s] forecasts from 2006, in his report that is over 10 years old, including hepatic failure have come to fruition. The effluxion of time has Dr [CT’s] report to be false. There have not been any “hepatic or other physical consequences”.
The submissions of the ICL and the ex-wife are grossly exaggerated. Ms Deborah Harris, appears to have committed a number of deception offences in relation to her submissions in relation to my drinking. [AS] spends a lot of time with me. She is perfectly safe.
And in response to his substance abuse the father submitted at paragraphs 119–124:
If the ex-wife’s and ICL’s submissions to this Honourable Court in relation to Cocaine use are accepted, then it is unlikely that the majority of meaningful participants in the hedge fund and financial services industry would see their children. Similarly for a many that play [sport].
I have not had anything to do with cocaine since being hospitalised in May 2015.
Given the recent respiratory disease, I cannot insufflate powder. My lungs are incredibly sensitive now. at times, I find it difficult to walk outside in the evening when the sun has gone down and the air is heavier.
I submit that both the ICL and ex-wife have indulged in a histrionic beat-up in relation to cocaine use. I did carefully consider Her Honour’s comments revealed in transcript about the expense and waste of money. I must say I agree that I agree with Her Honour. The price of a gram of Cocaine in Australia is very high and results in a misallocation of resources.
I have sustained a large amount of damage to my lungs which is (sic) slowly repairing. In order to protect my lungs, I must take breathing tubes, huffing tubes and Positive Expiratory Pressure (“PEP”) respiratory equipment with me or have it readily available. It is impossible, now, for me to have a substance abuse problem in relation to cocaine.
I cannot even smoke a cigarette or a cigar — I used to be able to.
The father’s egocentric personality appears to prevent him from seeing the world from his children’s perspective and from identifying and meeting their needs, including their emotional and psychological needs. As can be seen from the father’s submission, he makes no reference to the impact that his alcohol or substance abuse has had on the children’s lives. He further demonstrates his inability to take responsibility for his behaviour and his lack of insight and judgment into his ability to parent. His reasons for no longer taking Cocaine (or other drugs) is premised on his ill-health. He makes no mention of changing his behaviour for the benefit of his children and those around him. He lacks insight into his behaviour and the detrimental impact his mood changes have upon his children as well as himself.
I am satisfied that the mother is well able to parent the children. I am also satisfied that the father is wholly ill-equipped and poorly motivated to care for the children.
It is six months since the last submission and the parties will be given not less than seven days’ notice of my delivery of this decision. I am satisfied on all evidence which is before me that the girls are progressing well in the mother’s sole care and will continue to do so. If no party seeks to adduce evidence of any change in the children’s circumstances, I will presume that they are still progressing satisfactorily.
Any family violence involving the children or any member of the children’s family and family violence orders[90]
[90] Family Law Act 1975 (Cth) ss 60CC(3)(j) and (k).
I am satisfied that the children have been exposed to family violence and have been subjected to family violence at the hands of the father.
There are currently no intervention or family violence order in place in relation to the mother or the children.
The mother seeks orders that (see paragraphs 7, 8, 9 and 10 of [91] above). I am satisfied that it is in the interests of the girls to afford them and the mother the protections which the mother seeks.
Whether it would be preferable to make an order that will be least likely to lead to the institution of further proceedings in relation to the children[91] and any other relevant factors[92]
[91] Family Law Act1975 (Cth) s 60CC(3)(l).
[92] Family Law Act (Cth) s 60CC(3)(m).
Parenting proceedings are never final in the sense that children and their parents’ circumstances change and arrangements may need to alter as a consequence of those changes. However, litigation is costly in emotional and financial terms and may have the effect of standing in the way of parties parenting children effectively. Parents and children are readily distracted by litigation. Ideally, courts should make parenting orders that minimise the prospects of future litigation.
The independent children’s lawyer submitted in her Final Written Submission filed 26 April 2016, at paragraphs 110 and 111 that
Ms [KE] was clear that in her view each girl wants the litigation to stop and they each want to remain living in Canberra which is a positive respite for them …
The report of Ms [KE] makes it abundantly clear that each girl sees her mother as their rock and their safe harbour. The children have been “destabilised” by the litigation and still fear the possible interjection by their father.
This is in stark contrast to the father’s Final Written Submission which is peppered with threats of appealing any decision he does not see fit and pursuing further litigation.[93] He asserted at paragraph 154: “Her Honour should be under no illusion that if the extant Final Parenting Orders are not reinstated, there is a vast amount of litigation to come”. And at paragraph 155: “I love my daughters so much I will not give up until they are returned”. And further at paragraph 156: “There is already one Appeal lodge. I estimate that I have at least 100 appeal points to the Full Family Court of Australia. Her Honour has made many, many errors”.
[93] See for example paragraphs 46, 48, 157–163 of the Father’s Final Written Submission, filed 26 April 2016.
The father’s conduct of this application has done him no credit. It has been vexatious within the meaning of s 102QB of the Act both as to content and presentation. Indeed, some of the father’s submissions are so ludicrous that I conclude they were made to wound the mother and/or the children rather than assist his case. Examples are his submission about having five more children and the submission wherein he objects to the mother continuing to use his family name.
In his Final Written Submission, filed 26 April 2016 the father expresses dissatisfaction in the quality of representation by the independent children’s lawyer and the family consultant. For example in reference to the independent children’s lawyer he said the following at paragraphs 25–30:
ICL has just a mouthpiece (sic) for the mother and has failed to advocate for my daughters.
The ICL has failed to advocate for my daughters. This does not relieve the Court of its duty to act in the “best interests” of my daughters.
Specifically there is a lot of evidence that is not before the Court that is material and should be. This includes [the mother’s] history of substance abuse and drink driving, her psychiatric records, evidence about her troubled childhood, the suicide of her father, her troubled relationship with her father and the true state of her financial affairs.
[The mother] does not need to work. Her lifestyle is entirely inconsistent with the evidence that she has deposed to the Court. There is no financial need to be in Canberra. There is no psychological need. [The mother’s] opportunities are better in Melbourne.
[The mother] has recently accepted a [professional] role in Victoria …. This evidence is not before the Court. I have not had an opportunity to put it to the Court as I have been too sick.
This failure should be regarded as a failure of the ICL in particular as the Court cannot make an informed decision. Ms Harris has made Her Honour look stupid already. Her Honour, and indeed any judge, should be extraordinarily circumspect in accepting a submission from Deborah Harris again.
And in regard to Ms KE the father submitted at paragraphs 95–99
The majority of [Ms KE’s] evidence given to the Court is misleading and inadmissible. It cannot be relied upon. It is embarrassing to the Court.
The voice of my daughters is not present. The only voices present are those of Ms [KE] and that of [the mother]. Ms [KE] strikes me as more of a fraud than anything else.
Ms [KE] did not deal with any of the substantive issues including post-traumatic stress disorder suffered by [the youngest child], the ambivalent relation of my daughters to their mother, their personality types, the social isolation faced in Canberra, the lack of family support, the lack of male role models and the development of their value sets. Ms [KE] failed to deal with the poor role model that their mother represents including her history of conflict, substance abuse, her failed interpersonal relationships both in an employment sense (eg at [UU Company]), with her friends and with men. Rather Ms [KE] sought to engage in an offensive dialogue that no Court can take seriously. Ms [KE] is at best an advocate for the mother, she has failed my daughters.
Ms [KE] is not sufficiently qualified or experienced to deal with matters such as this one.
I regard Ms [KE] as a serial perjurer. Ms [KE] has been referred to the Australian Practitioner Regulation Agency and the Australian Federal Police.
The father’s submissions regarding these two highly regarded professionals are without foundation. Typically he lays blame for his actions elsewhere rather than taking responsibility for his own behaviour.
I am satisfied that, unless stopped, the father will continue to make unfounded allegations against professionals involved in this case and is very likely to institute other proceedings vexatiously and for the ulterior purpose of punishing and inconveniencing the mother and disrupting the life of the mother and, through her, the children.
Parental Responsibility
Section 61DA provides that when making a parenting order,[94] I must apply a presumption that it is in the best interests of the children for the parents to have equal shared parental responsibility for the children.
[94] Family Law Act 1975 (Cth) s 64B(2)–(4A) defines “a parenting order” and what a parenting order may provide.
Parental responsibility in relation to children means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children.[95] Equal shared parental responsibility relates to decision making about ‘major long term issues’, which is defined in s 4 of the Act as follows:
… issues about the care, welfare and development of the child of a long-term nature and includes (but is not limited to) issues of that nature about:
(a) the child’s education (both current and future); and
(b) the child’s religious and cultural upbringing; and
(c) the child’s health; and
(d) the child’s name; and
(e)changes to the child’s living arrangements that make it significantly more difficult for the children to spend time with a parent.
This presumption does not provide a starting point about the amount of time or communication that a child is to have with parents.
[95] Family Law Act 1975 (Cth) s 61B.
Where two or more persons share parental responsibility, equally or in relation to any major long term issue under a parenting order, they are required to make the decision jointly.[96] The concept of shared parental responsibility carries with it the requirements to “consult the other parent in relation to the decision to be made about that issue”[97] and to “make a genuine effort to come to a joint decision about that issue”.[98] These provisions mean that consultation and some discussion between the parties is required regarding major long term decisions, for which parental responsibility shared.
[96] Family Law Act 1975 (Cth) s 65DAC(2).
[97] Family Law Act 1975 (Cth) s 65DAC(3)(a).
[98] Family Law Act 1975 (Cth) s 65DAC(3)(b).
The presumption that it is in the best interests of the children that the parents have equal shared parental responsibility does not apply or is rebutted in the following circumstances:
(a)If the court reasonably believes that a parent of a child, or a person who lives with a parent of a child, has engaged in family violence[99] or abuse of the child or another child who is a member of the parent’s family;[100]
(b)If, at an interim hearing the court considers it is inappropriate for the presumption to apply[101] or;
(c)Where evidence is adduced, upon which the court is satisfied that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[102]
[99] Family Law Act 1975 (Cth) s 61DA(2)(b).
[100] Family Law Act 1975 (Cth) s 61DA(2)(a).
[101] Family Law Act 1975 (Cth) s 61DA(3).
[102] Family Law Act 1975 (Cth) s 61DA(4).
Having previously found that the father has engaged in family violence, the presumption that it is in the best interests of the children for their parents to have equal shared parental responsibility is rebutted.
In any event, these parents are unable to communicate effectively about their children. The mother has effectively been exercising sole parental responsibility since the making of the final orders on 13 January 2012 although the father did have control of the decision to withdraw the children from their private school in Melbourne and cancel their private health insurance without consulting or informing the mother. I note that the mother conceded during cross examination that in the event of an emergency if she needed to contact the father, she doesn’t have a telephone number for him and would need to contact his mother or send the father an email.
The father has accused the mother of fraud in relation to the collapse of the L Group, of being involved in transactions involving fraudulent artworks and of misleading this Court and the Magistrates’ Court. His evidence is that he has reported her to the Australian Federal Police, the Australian Tax Office, the Australian Securities and Investments Commission and the United States Securities and Exchange Commission. It does not seem to me that he has respect for the mother or can deal civilly with the mother on any basis. The mother’s evidence is that every time she communicates with the father it provides him with an opportunity to denigrate her and her parenting skills.
In addition to the aforementioned examples of the father denigrating the mother, in an email sent to the mother by the father on 25 March 2013 the father said the following about the mother’s use of the family name; which is the same name as the children:
…you are incredibly determined to the point of belligerently wanting to be ingratiated into my life by retaining my surname which provides you with social and professional advantages that your maiden name, …, does not provide. You have been asked to revert (sic) from using [Nixon] as a surname but you persistently use it. I am asking you, pointedly to not be referred to under my surname. It is of constant distress to the members of the [Nixon] family that someone undertaking such gutter sniping litigious activity is associated with the family name.[103]
[103] Exhibit ‘ICL6’.
The father seemingly disregards the benefit which the children may feel by being known by the same family name as the mother as well as the fact that the mother has acquired a professional reputation under the name of Nixon. The girls’ family name is unremarkable. Otherwise there was no evidence of any social prestige flowing from an association with the father. My firm impression is that he is an embarrassment to them.
I am satisfied that it is in the best interests of the children for the mother to have sole parental responsibility for the children so that she does not have to consult or refer to the father in relation to the current and future education of the children, their religious and cultural upbringing , their health and changes to their living arrangements.
Consideration of equal time or substantial and significant time with both parents
By virtue of having previously determined that it is not in the children’s best interests for the parties to have equal shared parental responsibility, it is not necessary for me to consider whether it is in the best interests of the children or reasonably practicable for the children to spend equal or substantial and significant time with each of the parents.
Conclusion
The mother is doing a very good job as a sole parent of the parties’ three daughters. On the other hand, the father has nothing positive to offer the girls, or any of them. The Orders set out at the commencement of these reasons should provide the mother and daughters with some peace from the father’s negative influence. I am comfortably satisfied that these arrangements are consistent with the best interests of each of the children.
I certify that the preceding three hundred and thirty (330) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett
Legal Associate:
Date: 15 November 2016
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