O and O
[2005] FCWA 20
•25 FEBRUARY 2005
JURISDICTION:
FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY LAW ACT 1975
LOCATION: PERTH
CITATION: O and O [2005] FCWA 20
CORAM: THACKRAY J
HEARD:11, 12, 15 & 16 NOVEMBER 2004 [ORDERS MADE]
DELIVERED: 25 FEBRUARY 2005
FILE NO/S: PT 2334 of 2004
BETWEEN: O
Applicant/Mother
AND
O
Respondent/Father
Catchwords:
RESIDENCE - orders made against children's strongly expressed wishes
- supervised contact ordered to break cycle of destructive behaviour
Legislation:
Family Law Act 1975, s 68F(2)
Category: Not Reportable
Representation:
Counsel:
Applicant: The Hon Mr P Dowding SC Respondent: Mr J Hedges
Child Representative: Ms J Taylor
Solicitors:
Applicant: Shann Family Lawyers
Respondent:
Kott Gunning
Child Representative: Legal Aid WA
Case(s) referred to in judgment(s):
Nil
1Mr and Mrs O have been involved in an acrimonious dispute concerning their daughters, C (11), E (10) and R (6). Both want the girls to live with them.
2Following a four-day trial in November 2004, I felt it essential to make my decision known immediately. I made orders for the girls to live with the mother. The father’s contact was limited to short, supervised periods. However, orders were also made to pave the way towards the father having much more extensive, unsupervised contact.
3At the conclusion of the trial I gave the following reasons for my decision: -
“I intend to make orders very much along the lines proposed by the Child Representative. I will publish my full reasons in due course, probably in January or February 2005, but will now give brief reasons for the decision I have reached.
• Both Mr and Mrs O are good and loving parents.
•Prior to the separation, the children had a very good relationship with both their parents.
•Both parents were significantly involved in the children's care before the separation.
•Their strengths as parents complemented each other, and those strengths also compensated for some of the weaknesses in the parenting style of the other parent.
•Mr O has had far greater difficulty in coping with the breakdown of the relationship than Mrs O, in part because of his personality functioning, perhaps in part because of his chronic pain, but also in part because Mrs O has been through a process of counselling that had prepared her for the transition to separation, whereas the separation came as a terrible shock for Mr O.
•Because of his anger and grief following the separation, Mr O has handled many issues relating to the children extremely poorly and has made it necessary for the girls to take sides in what he regards as “a custody battle”.
•In some respects, as outlined by Mr Hedges and Miss Taylor in their submissions today, things were not helped by the wife's actions, particularly immediately after separation.
•Mr O’s behaviour, unintentionally, has been the main factor leading to the girls behaving very badly, and out of normal character, in order to demonstrate to their father the enormous affection they undoubtedly have for him.
•If the children live with Mr O there is no prospect of them, especially the older two girls, having any relationship at all with their mother. This will be seriously damaging to their development.
•If the girls live with their mother there is a very strong prospect they will have regular contact with their father and maintain their strong relationship with him and his family.
•In the medium to long term it would be desirable for the girls to have extensive and unsupervised contact with Mr O.
•In the short to medium term, such contact is not possible because the cycle of behaviour that has developed since the separation is highly destructive. It needs to be broken to allow the girls to be able to have a healthy relationship with both their parents.
•This destructive cycle of behaviour cannot be broken unless Mr O continues with the process of therapy on which he has embarked with Carmela Yom-Tov, who is a therapist in whom the Court has enormous faith because of her experience and great sensitivity. It is very encouraging that Mr O has already demonstrated his commitment to his children by starting off on a therapeutic process with Carmela Yom-Tov and has been prepared to exercise supervised contact even though he considers it to be unnecessary.
•There are some initial encouraging signs that things may be improving with the O children, but the key to contact moving on from limited, supervised visits to extensive, unsupervised contact is held very firmly in Mr O's hands.
In giving these brief reasons it will be apparent that in my detailed reasons for judgment I will be indicating I accept the thrust of the submissions made by the child representative and the recommendations of the Single Expert.”
4I now publish my detailed reasons. In doing so, I have ignored evidence that emerged during the hearing of applications that came before me after the trial.
The parties, the marriage and the children
5The father is 41 years of age and the mother is 37. He is an unemployed builder and she is a masseuse/receptionist.
6 They were married in September 1990 and separated on 28
April 2004, when the mother left their home.
7 There are three children, CO, born October 1993, EO, born
September 1994 and RO, born December 1998.
Orders sought
8The mother and the Child Representative sought much the same orders (see Exhibit “E”). They ran over four pages, and I do not intend to replicate them. They proposed that the children reside with the mother and that, until further order of the Court, the father
have four hours supervised contact, on three out of every four weekends.
9These contact arrangements were put forward only as a short- term measure. The mother and the Child Representative ultimately want the children to enjoy unsupervised contact with the father: -
(a) each alternate weekend, from after school on Thursday to the commencement of school on Monday;
(b) for one half of the mid -year school holidays;
(c) for two weeks during the Christmas school holidays.
10 The mother and the Child Representative also proposed that, for the time being, the mother should have sole responsibility for making long-term decisions concerning the children’s welfare.
11 The orders proposed by the father ran to over three pages (see Exhibit “B”). His primary application was for the children to reside with him. He suggested they have contact with Mother each alternate weekend from after school on Friday until Sunday evening, and for half of school holidays. Alternatively, he proposed a “week about”, shared care arrangement. If all els e failed, the father wanted unsupervised contact each alternate weekend and for one half of school holidays.
Findings of fact
12 The father and mother met in 1989 and commenced living together in early 1990. The mother had been travelling in Europe. Whilst overseas, the mother kept in close contact with her parents. She was living with them when she commenced her association with the father.
13 The father was in business with his brother, K. The mother was working in her own beauty therapy and massage business. She later did a bookkeeping course.
14 Soon after the marriage in September 1990, the father had a major falling out with K. He began working on his own account as a roof carpenter. He suffered injuries at work in December 1992 and January 1993. He was unable to go back to work, and spent most of his time at home awaiting knee surgery, which was performed in September 1993.
(Page 6 )
15 C was born shortly after the father’s knee operation. The mother gave up working to look after the baby. I find that the mother undertook the vast majority of household duties and work associated with the care of C. However, The father was proud of his daughter and was involved in some aspects of her care.
16 In January 1994, the young family went to live with the mother’s parents, where they stayed for about six weeks. Whilst living with them, the father had a serious falling out with mother’s brother. The mother’s parents became involved, and there was also a falling out with them. As a result, the father decided he and the mother would leave the home.
17 The father insisted the mother take his side in the dispute with her family. He demanded she stop all contact with them. On the father’s instructions, the mother told her mother to stop telephonin g her. The father threatened that if the mother went to visit her parents, which at one stage she planned to do, he would change the locks on their home and the marriage would be over. He also insisted the mother return a birthday gift she received from her parents in 1994.
18 The mother had secret contact with her mother until C and E reached an age where she feared they would report their clandestine meetings to the father. The mother was also able to remain in contact with her sister, who lived in the country.
19 At around the time the parties moved to live with the mother’s parents, the father arranged for the family motor vehicle to be stolen, in order to get the insurance money. The family had been under financial pressure as a result of a dispute over the father’s disability payments. The father was subsequently charged regarding the alleged theft.
20 The father commenced studying for his Builder’s Registration Certificate during his convalescence. This involved regular attendance at TAFE, and studying after hours. Soon after he commenced his course, the father was diagnosed with cyclomegavirus. He also had further knee surgery. The father complained of being tired, lethargic and irritable. He continued not to provide any significant support to the mother in the care of the home.
21 In July 1994, C was hospitalised for over two weeks. The mother stayed with C for much of the time she was in hospital. The father came to visit, but upset the nursing staff. The father also
(Page 7 )
told the mother he had had an argument with his mother, arising out of her alleged failure to visit C.
22 E was born in September 1994. She proved to be a somewhat demanding and clingy baby. However, the father was still not working, and the mother returned to part-time employment when E was about eight months old. She worked only a few hours a week, and juggled her work to fit in with the father’s studies. The girls attended day care, or were looked after by the father’s mother, when the mother was working.
23 The mother had given birth to two children in the space of less than 12 months. C’s stay in hospital occurred when the mother was heavily pregnant with E. There were also other stresses in the mother’s life. In 1995 she was prescribed anti-depressant medication. The father called them her “nutter pills”. He was abusive to the mother, telling her she was fat, unattractive and stank. The father’s mother provided more assistance to the mother when she was depressed, including taking the children to her home to look after them during the day.
24 The father graduated with his Builder’s Registration Certificate in 1996. In 1997 the parties started their own building company. The father usually worked five days a week when they had a project underway. The mother undertook bookwork and administrative duties for the building business. The children were mainly in the mother’s care, but the father’s mother helped out on occasions. The girls went to day-care, two half days each week, until they began primary school.
25 The building business did not always have a construction underway. When there was a lull in the business, the father would spend much of his spare time drawing plans for future projects. This was done at home, so the father had the opportunity to be around the children more than when he was working. A couple of the building sites were close to the family home. This also allowed the father to be in closer contact with his family.
26 The marriage was very unhappy. The mother and the children moved out of the home in December 1997, and went to stay with the father’s mother. They only stayed away for a couple of nights. Upon her return, the couple started marriage counselling. The father still did not provide any assistance of signific ance in household work and the physical care of the children, but made an attempt to behave in a more acceptable fashion towards the mother. However, the relationship again deteriorated.
(Page 8 )
27 When R was born in December 1998, the mother again took time off work. She remained at home until R was about five months old. R had a “hole in the heart” and underwent corrective surgery.
28 In February 2000, the father had further surgery on his leg.
He was confined to a wheelchair for some months. The mother
continued to care for the children and the house and nursed the father (as she had done in previous periods of convalescence).
29 The mother had returned to work in about the middle of 1999, for a few hours on one day each week. She increased her hours in
2002. She worked three hours on Tuesday mornings and three or more hours on Thursday and Friday afternoons. In 2003 she changed her arrangements to work four part days a fortnight, although she sometimes also worked on another day each week.
30 Although the mother was working, and the father spent a lot of time at home, I find he provided very limited support to the mother in the work associated with running a home. He was often in extreme pain and found it difficult even to go to the supermarket with her. However, I am prepared to accept he may have done some work in maintaining the property – albeit at least two of his neighbours have no recollection of seeing him doing anything around the house or garden.
31 The mother was away from home overnight (without the father) in the absence of the children on only a handful of occasions throughout the marriage. She recalls it having been for six nights. The father told the Court appointed expert she was away from him between 9 and 12 nights. He was very critical of her for this. On the occasions she was away overnight, the father’s mother generally came to assist with the children.
32 Although he did very little to assist in the work associated with the care of children, I find that the father had significant involvement in their lives, particularly the older two. He was present at each of their births, and went to the clinic sister with Mother after they were born. He played with the children frequently. He also attended parent/teacher interviews; gave great encouragement to the older girls in their sporting activities and modelling; accompanied the mother to some of the children’s doctor’s appointments; picked up the older girls from school, particularly when the mother was working in the afternoon; took the older girls to tutoring and C to guitar lessons; taught them to swim; took them on walks; helped with their homework; and talked
to them about their problems. The older girls are very “sporty”, and admired their father for his skills and interest in sport. They were frustrated by their mother’s lack of ability and probably her lesser interest.
33 The mother commenced personal counselling in 2001 or 2002.
One of the objectives developed in counselling was to assist the
mother to resume her relationship with her family (but with the father’s knowledge and agreement). As part of this process, the mother asked her father to write a letter of apology to the father, with a view to opening up lines of communication. The letter of apology was Exhibit 3 to the mother’s affidavit. It constituted a dignified, but unreserved apology from the mother’s parents for having taken sides in the dispute with the mother’s brother, which had been the catalyst for the rupture within the family.
34 The father’s response to the letter of apology is Exhibit 4 to the mother’s affidavit. He hit the nail on the head when he said he proposed replying in his “typical acerbic manner”. The letter constituted an extraordinarily ungracious rejection of the apology. It contained a litany of complaints and recriminations. It is noteworthy the father said in the letter, “The mother looks on the good side of people, this definitely is one of her qualities nevertheless, people don’t stop to consider her feeling before theirs, including myself”.
35 Notwithstanding the uncompromising tone of his letter, the father relented, to the extent that he agreed the mother could meet with her mother and introduce the children to her, but she could still not meet with her father.
36 As Mother’s counselling progressed, she began to appreciate she was not as worthless as the father portrayed. She began to attempt to find a valued position for herself in the relationship. The father felt aggrieved that she was no longer the same person she had previously been. The mother’s attempts to stand up to the father resulted in a major confrontation in June 2003, which led to the parties attending urgent marriage counselling.
37 Although the father generally enjoyed what seemed to be an excellent relationship with the girls, his dealings with them were inconsistent. An example is what occurred on Father’s Day 2003. The mother and the children had given the father his presents in the morning. Later in the day, the father and the mother went to bed for a rest. The children were noisy, and the father became enraged. He told the girls they obviously didn’t love him, otherwise they
would not have been so inconsiderate. He then gave back his
Father’s Day presents.
38 It was only some days later, and with prompting from the mother, that the father began to have some appreciation of how devastating his behaviour on Father’s Day had been for his young daughters. He then apologised to the two older girls. The father nevertheless used this incident to criticise the mother. He told her that he had only had to apologise to the children on one occasion, whereas she had apologised to them “hundreds of times”.
39 In November 2003, the father’s parents came to live with them. This was a recipe for disaster, as the father and his father have not enjoyed a good relationship. The father still regards his father as being a poor parent. The father has disclosed to the mother events in his childhood that have understandably troubled him. One of these involved an incident when his mother allegedly slit her wrists because of her husband’s conduct. The father’s father walked off, leaving the then seven-year-old to call the ambulance. Later in his adolescence, he claimed his father hit him on the head with an iron, when he was trying to protect his mother.
40 The relationship between the father and his father has been somewhat “stop start” over the years. The father’s parents accompanied the couple on their honeymoon. After just one day, there was a fight - as a result of which the newly married couple left. At the father’s insistence, they did not speak to the father’s father for two years. Relations improved later, and the father’s parents often accompanied the family on their holidays.
41 Whilst the father’s parents were living with the family in
2003/04, R told her mother she had a dream that a strange man had come into her bedroom and was stroking her. The mother told the father about this. He was sufficiently concerned to speak about it to other members of his family and a family friend. He had suspicions his father may have molested R during the night. The father’s mother insisted it was not possible.
42 Two weeks after R’s dream, the father and his father had a serious argument, which ended in violence. During the course of the argument, the father complained about his father’s treatment of him and his mother. He said his father treated his mother “like dirt”. The mother was concerned where the argument might end up, and intervened. She apologised to the father’s father, but told him that she would have to ask him to leave the home. He did so, but the father’s mother remained behind. The father’s father
expressed recriminations to his wife about her failure to take his side.
43 The father and mother were continuing with their own marriage counselling. There were some indications both were trying harder to see the other’s point of view, and make their marriage work. However, as a result of a comment made by the father, the mother decided there was no point in trying to persevere. At around this time, the father went to hospital for further surgery. He pretended to the mother he was not in hospital, but his mother ultimately secretly disclosed his whereabouts. The mother telephoned the father in hospital. He abused her in foul terms, and said he wanted her out of the house when he came home. He also instructed the mother to tell his sister not to visit him. The mother decided to leave home.
44 The mother told the father’s mother of her intentions. She gave mother a signed, blank cheque to allow her to obtain rental accommodation. The father’s sister said the mother and the children could stay with her. The father’s brother came to help her pack up, but expressed concern that the father might find out he had provided assistance.
45 The mother was about to leave the house with the children, when the father returned from hospital earlier than expected. He apologised profusely for his conduct and begged the mother to stay. E wanted to leave, but C did not want her parents to separate. C said she wanted to live with her father if there was to be a separation. The mother agreed to remain with the father on certain conditions. One of these was that she be permitted to leave with the children if the father was again angry and abusive.
46 Although the marriage counselling resumed, it soon ended when the father and mother agreed they were not making any progress. The father commenced his own counselling early in
2004. The mother became alarmed when the father told her that his
counsellor was concerned he might commit suicide. On the same day, the mother telephoned the father’s counsellor in the hope of discussing her concerns, she overheard the father having a long conversation with the girls about suicide. Amongst other things, the father told the girls that people commit suicide “when they are in a lot of pain”. When the mother expressed concern about the father discussing this matter with the girls, the father informed her he had told the girls a few days previously about an old girlfriend of his, who had tried to commit suicide when he left her.
47 In the months leading up to the final separation, the father became even more attentive to the children than he had been in the past. The mother became concerned about what she perceived as the father’s failure to maintain boundaries with them, particularly C. She observed him to be increasingly “tactile” with them; touching their bottoms; calling them “sexy” and telling them they looked “hot”. She also observed the children keeping secrets between themselves and their father.
48 In the few weeks prior to the separation, C also started sleeping in the father’s bed. I accept this occurred more often than the father admits – although on perhaps one occasion there was a reasonable explanation for C being scared to be in her own bed.
49 Just before the final separation, the father invited the mother to leave home - but told her the house was his, as were the children. In this period he began doing more housework. For example, he began to cook meals, and was even more involved in getting the girls to and from school.
50 On 28 April 2004 an opportunity arose for the mother to leave the home with the children. She packed up what would fit into her car, and fled to her brother’s home. The brother and his family were scarcely known to the children. However, they took the mother and the children in for about three weeks.
51 The mother ensured that the children attempted to contact the father by telephone and left messages for him as soon as the separation occurred. She then ensured the children had telephone contact with the father almost every night. However, there was no face-to-face contact.
52 As soon as contact commenced, problems began to develop in the relationship between the older girls and the mother. C, in particular, became highly critical of her mother. They had previously been very pleasant and compliant children, but the older girls began to refuse to do what they were told. They were rude to their mother and her family.
53 After one period of telephone contact, all three girls said to their mother and maternal grandmother words to the effect, “Dad has to sell our dog because he has no money for food, because Mum’s taken everything”. They told their mother they hated her – although this did not prevent E from regularly asking for a foot massage.
54 The mother kept the children home from school after the separation because she as sumed the father would attempt to regain care of them. After a couple of weeks, the mother enrolled them at a new school. Around the same time, the mother and the girls moved to live with her mother.
55 On the day following separation, the mother swore an affidavit in support of an application for interim residence, and for the father to have supervised contact. The matter was listed for hearing on 11 May 2004. It was suggested during the trial this initial application proceeded on an ex parte basis. Perusal of the Court file has indicated this is not the case – Mr O was in attendance at the first hearing, albeit he must have had fairly short notice. Orders were made for the children to reside with the mother until the next hearing and for the father to have supervised contact. The contact was meant to be supervised by Mother Hen, but the agency was unable to arrange supervision. The mother was advised to allow the first contact period to be supervised by the father’s parents, and this occurred.
56 On 19 May 2004 the matter returned to Court. Orders were made for the father to have unsupervised contact each alternate weekend, and overnight on Sunday each intervening week. In addition, he was to have telephone contact twice a week.
57 In paragraph 354 of her affidavit, the mother sets out a number of things she heard the father saying to the children during telephone contact in the month after the first hearing. He admits four of these, but I am satisfied he said each of the things alleged. Amongst other things, he told the girls:
“I’ve been crying today, missing you girls. I don’t know what
I am going to do without you girls.”
“All you girls belong to me.”
“I am sleeping three hours a night and have lost lots of weight. I am not well.”
“Bring back the clothes I bought you. They belong to me not you.”
“You can read pretty good now C. Remember when I
photocopied mum’s diary.”
“I’ve started to realise I have to be sneaky.”
“I called the primary school and read out what mum wrote and the Headmaster was so shocked he almost fell off his chair.”
(Page 14)
“Mum’s not meant to be listening to any conversations and she will be thrown into gaol for that.”
58 After a telephone conversation with the father on 18 May
2004, E was very upset. She told C, “Nanna is going to die…Dad
said if we don’t go with him, Nanna will die”. She was hysterical and the mother’s mother took her aside to see what was the matter. E said words to the effect, “Dad said that if he didn’t get custody of us that nanny would die”. The father confirmed to the Court appointed expert that he had told E his mother would die of a broken heart if the children did not come to live with him.
59 When the mother went to the home on 26 May 2004 to collect her personal possessions pursuant to an order of a Magistrate, she found many sentimental items missing. The mother has written personally to the father in relation to the return of her personal items, but he said he had not even bothered to read the letter, as he was so angry with her.
60 By 22 May 2004, the mother’s relationship with the older girls had deteriorated to the extent that C was hitting her and damaging household possessions. On one occasion, when C did not get what she wanted, she put a knife to her throat and threatened to hurt herself. E also put a knife to her throat on 28 May 2004, when C was on the telephone to her father.
61 On 31 May 2004, after both of the older girls had told their mother she was “a crazy woman” and “sick”, the mother overheard them discussing plans to run away from school the following day. By this time the girls had returned to their old school. The mother spoke with the girls and tried to convince them not to run away, but they would not listen. She alerted the Headmaster to the possibility of the children running off.
62 On the next day, C ran away from school as soon as she arrived. She went to the former matrimonial home, which is fairly close nearby. E probably would have run away as well, but the mother had arranged for her mother to accompany them to school. She and the school staff ensured E settled into her class. Mother went off after C. The mother’s mother, who had remained behind at the school, told E that C was at the father’s house. E responded with words to the effect:-
“Oh good! Dad said on Sunday that if we have any sores he will be able to get custody of us. C got to Dad’s house – 5 adults and you couldn’t catch C! It worked.”
63 The father did not return C to school or to her mother, notwithstanding the order for residence in the mother’s favour. Instead, he took her to the local office of the Department for Community Development. He said he did so because he did not want the children to remain in the mother’s care. Whilst at the Department’s office, the father took the children to a nearby delicatessen for a snack. By this time the mother was also at the DCD office. Upon their return, E said words to her mother to the effect, “You have to give Dad the money for the chips and drinks. You have custody of us and you owe dad”.
64 As a result of the intervention of the Departmental officers, both girls returned home with their mother. The father admits he spoke to the girls by telephone that evening and said:-
“One thing’s for sure, and that’s 100% sure, I’m going to get you girls back. Mum made me mad today. I’m so proud of you girls the way you showed me how much you loved me today. The counsellors today didn’t know what is right from wrong”.
65 He also informed the girls:
“I told Nanna today that you called Mum ‘the crazy lady’ and
Nanna and I had a good laugh. It was really good”.
66 On 3 June 2004 during telephone contact, E told her father how she was misbehaving for her mother. The father laughed, then said to E, “Tell me on the weekend what you and Mum were fighting about”.
67 On 3 June 2004 the school psychologist referred the children to a suburban Child and Adolescent Clinic. The psychologist considered the children required “acute attention” and requested an early appointment for the family. The mother had already made arrangements for C and E to see a private psychologist to deal with the issues they were confronting, and to have some anger management therapy. After the first visit, E told the mother she loved her and asked what she could do to show she loved her.
68 There were also difficulties at handover. On some occasions, the mother would ask the children to have the father come out to speak with her, but quite often he refused. However, on other occasions, the father would not hand over the children’s bags, and would take the opportunity to abuse the mother. On a number of occasions he called the mother a “liar” and a “fucking bitch”.
69 The father had school holiday contact with the children for a week in June 2004. The mother attempted to have telephone contact with the children. She was able to speak with R on two occasions. However, she was unable to speak with the older girls at all.
70 I find that upon their return from school holiday contact, the children behaved in the obnoxious fashion described in paragraphs
438 et seq of the mother’s affidavit. Their anger and disobedience
were directed not only at their mother, but also at other members of her family. After a few days of settling in, the children’s behaviour improved.
71 On 5 August 2004 the father sent an email to the girls saying:
“I LOVE YOU GIRLS VERY MUCH
Hi C E and R
Mum has stopped me from contacting you so I can’t speak
I am at a loss for words but I do love you and wish I could ring because I miss you heaps
If you get this can you ring me please. C I sent you some homework did you get it?
E I need to speak to you so can you to ring me???
It is my night to talk on the phone, mum has you all week and I can’t even ring on contact night to just talk and that is very upsetting.
I LOVE YOU GIRLS VERY MUCH All my love”
72 The next day the father sent another email saying inter alia “Well girls it, so been a long time since (sic) …E I do need to talk to you still about something that’s on my mind … C sorry about last night but I am okay”.
73 Less than 30 minutes later, the father sent another email, the subject line of which was “My girls”. In this email he said inter alia, “Your letter was short, can you write “love” larger next time????” . The word “love” in the father’s letter was in bold print, three times the size of the other print.
74 The following morning, the father sent another email.
Amongst other things he said:-
“I think about you girls all the time and wish I could talk and hug you each day but that’s impossible so I hope it’s okay by your mother that I write a letter by email and communicate that way but I don’t understand why I don’t get emails back. Are you aloud (sic) to email me or is that against the rules?
Every time I see you C, you are changing and growing up very quickly. Before long, you will be fully grown. [C was
10 years of age at the time]. One thing I have always hoped
for is that you enjoy being a kid and do not grow up too quickly but things change”.
75 The email went on, in larger font, to say “look ford to seeing you on Sunday at 2.00 pm at our home”. The word “home” was approximately twice the size as the other script in the email, and was underlined.
76 Later that day the father sent anther email to the girls, drawing attention to the fact he had sent them 18 emails. He enquired:-
“Did you get all 18. If you didn’t I have sent all of them with this email. Remember that I love you lots and I am missing you. Thank you for being my daughters.”
77 Two hours later he sent them another email saying, “Come-on girls write back, I wish to see what you can do on the computer”.
78 C ran away from school again on 12 August 2004. The father again took C to the Department for Community Development. After speaking with Departmental officers, he left C in the care of the Department, to be collected by her mother. On the same evening, the mother overheard C say to the father during telephone contact, “but how can I blackmail her?”
79 Four days later, C ran away from school again. After attempts to have her returned, the mother agreed to C remaining overnight, on the basis she would be able to collect her from school the following day. The father did not arrange for C to attend school on either of the next two days. As a result she missed her sports carnival.
80 On 18 August 2004, the mother obtained a recovery order.
The father delivered up C, however, at the time of the handover, The father said words to the effect “You’re a bitch. I can’t believe you use a kid”.
81 During telephone contact on 19 August 2004, the first thing C
said to her father was words to the effect:-
“I’m sorry dad, I couldn’t run away today. The teachers said they would suspend me if I ran away. I feel as though I have let you down”.
82 During the conversation the call was terminated and C became hysterical. Later in the evening, when the girls were being settled into bed, two police officers came, at the father’s request, to see the children. The father says E had told him C had been smacked in the back, hence his concern. The next day, the father rang the police again, asking them to go back to the house to tell the mother to allow C to ring the Children’s Helpline.
83 On 23 August 2004 (after the children had been returned to school by the father after weekend contact) C ran away again. The mother called the police and went to the home with them. C was at home alone. The mother was able to collect C from school later that day, after promising C she could have five visits with her lawyer.
84 On 31 August 2004, C ran away immediately after her mother dropped her at school. This was the day the parties were meant to be attending a settlement conference at the Family Court. Once again the mother had to call on the police for assistance. The mother and the police managed to get C out of the home and back to school, but only after an agreement was reached that C could remain overnight with her father that evening.
85 The mother then proposed a temporary residence arrangement, so C could remain with her father until the next hearing on 14
September 2004. Part of her proposal was for C to have regular contact with her. The younger girls were to remain with her and have regular contact with the father.
86 In early September 2004, the mother and the children moved to a rental home. The mother says this was to ensure the children were closer to their school and closer to their father for contact.
87 On 6 September 2004, E ran away to her father’s home (where C was staying at the time, pursuant to the arrangement mentioned above). The mother was eventually able to obtain entry to the home, but was unable to speak to the girls. The father made a telephone call in the mother’s presence, saying words to the effect “The incubator’s here, you know the one who’s accusing me of sexually abusing the girls”. He spoke so loudly that the girls would have been able to hear him.
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88 The mother eventually left the house, allowing E to remain overnight. E was returned to school the following day, and the mother collected her. Whilst at school, the mother saw C in the playground. C put her fingers in her ears and walked in the opposite direction. When the mother tried to speak with C by telephone that evening, she hung up on her.
89 Throughout the entire period, C was with her father (just over two weeks), she had no contact at all with her mother. The father made one perfunctory effort to permit contact. On one occasion during this period, the father and mother saw each other in the school playground. In the hearing of both E and R, the mother’s greeting to the father was met with, “Hi bitch. You’re a liar”.
90 On 14 September 2004, Ms Andrews SM, ordered the father to return C the following day. Her Worship made orders discharging all previous contact orders. She restricted the father’s contact to five hours on one day each weekend, supervised by Mother Hen. The father was restrained from contacting the children, other than in accordance with the terms of the Court order. Her Worship’s order went on to provide that in the event any of the children initiated contact with The father, he was to terminate the telephone conversation. If the children ran away again, the father was to return the children to school or to the mother’s home. This decisive action by the learned Magistrate was entirely warranted.
91 The father dropped C at school on the morning after the hearing. C almost immediately locked herself in the toilets and refused to come out. Eventually she emerged, but then ran away to the father’s home. The mother followed.
92 C was able to gain access to the home (as she usually did when she ran off) because it had been left unlocked. I have little doubt the father left the house open deliberately – contrary to his practice when the parties’ lived together. C then telephoned the father, who allegedly told her to go back to school. She refused. In due course, the father’s mother arrived at the home. The mother asked her to talk to C, to which Mrs O responded “why should I help you”. Mrs O then proceeded to abuse the mother before leaving the premises, without even attempting to speak to C.
93 Some time later, the father arrived at the home, driving erratically. He yelled at the mother “piss off bitch”. In the meantime the police had been called, and had obtained access to
the house. Later in the day, the mother arranged for a further recovery order to be executed.
94 The two police officers who executed the recovery order gave evidence. I accept their testimony as a largely accurate account of what occurred. They are to be commended for the very detailed record they kept. It is apparent both officers took a dim view of the father’s abject failure to endeavour to minimise the trauma to his daughter. One of them said they saw no evidence of “authority or parenting” from the father, and felt he spoke to C as if she was an adult – “like one adult to another – they seemed to be on an equal footing”.
95 During the course of the afternoon, the senior police officer in attendance, Acting Sergeant Sandilands, asked the father if she could speak with him in private. He replied that anything the police had to say to him could be said in front of C, as he kept no secrets from her. He also told C he was not allowed to see her. Sgt Sandilands corrected him, and said he was allowed to see her during his supervised visits. The father responded that he wouldn’t be “treated like a criminal” and would rather not see her at all.
96 C was suspended for two days for running away. The school issued an “incident report” relating to the relevant events. The father took issue with one part of the report. He had two different telephone conversations with the Headmaster to endeavour to have the record “corrected”. The father said he was concerned C would be traumatised by what had been said to her by one of the staff during the incident.
97 The Headmaster gave evidence. I commend him and his staff for the sensitive way in which they have dealt with an extremely difficult set of circumstances.
98 On 16 September 2004 there was a further unpleasant series of events. On this day, the mother and her mother had to cope with the problem of having C remain at home under suspension, whilst the younger girls went off to school. I accept the detailed description given in the affidavits of the mother and her mother about how they dealt with the appalling scenario that unfolded. They did so admirably. After what must have been an emotionally and physically exhausting day, the mother was able to return the home to a degree of normality. This was in stark contrast with the events earlier in the day when, for example, C told her grandmother, “I had money in my pencil case on the table and the money is missing. You fucking bitch, you’ve stolen my money” –
after which she called her a “fucking bitch” again, and began to attack her.
99 The mother then arranged for C to be assessed at Princess Margaret Hospital and enrolled in a Kinway course for children experiencing separation. Understandably, she did not bother consulting with the father about taking these sensible actions. C was happy for both of the days following the day of drama, and had a friend over to play.
100 On 19 September 2004, the father’s mother telephoned the children. She saw fit to tell the children, “If you don’t hear from me it doesn’t mean I am not trying. It is up to your mother to let me speak to you. Just remember I will keep trying.” She also told the children, “This shouldn’t be happening to you”. Following the conversation, C was crying and angry.
101 C was taken back to school after her period of suspension.
Once again she tried to run away, but was prevented from doing so. That afternoon, the mother allowed the children to telephone the
father’s mother. I am satisfied the conversation between the children and their grandmother took place as described in paragraphs 627 and 628 of Mother’s affidavit. The theme running through the conversation was an attempt by the grandmother to encourage the children to say they were being treated badly. She also told C, “There is not a day that goes by without me thinking about you, and I am going to fight. Don’t forget that”. Following the conversation, the two older girls were hostile towards the mother in a way they had not been prior to the telephone call.
102 On 21 September 2004, the father made an urgent application for interim residence of C. Ms Andrews SM not only refused to make such an order, but also suspended the telephone contact between the children and their grandparents. C and E became more settled after the telephone conversations ceased; began to take more interest in their school life and their friends; and were less interested in matters associated with the separation of their parents.
103 On 2 October 2004 the supervised contact with Mother Hen began. The visits occurred without major incident, although on occasions the children and the father were upset. Upon their return home the older girls generally ignored their mother’s warm welcome, but R hugged her.
104 On 20 October 2004 E ran away from school to the father’s home. She was meant to be having a chicken pox vaccination that afternoon. The mother rang the father at home and on his mobile.
Although he was in the home, he refused to answer, nor did he answer the door. The father then telephoned Mother to inform her there was nothing he could do to get E to leave the home – notwithstanding Ms Andrews’ order. He told the mother she had “manipulated the system” and was a “fucking liar”. The mother spoke with E, but was unsuccessful in persuading her to come to the Doctor’s appointment. The father then left the home taking E with him. She was not returned to the mother that evening. Nor was she sent to school on the following two days.
105 On the day E ran away, the father went to the Police and made a complaint about an incident said to have occurred in about January 2004. He alleged the mother had inserted her finger into R’s vagina. This alleged incident occurred in the father’s presence. The father signed a statement declaring he was “happy for Police to charge the mother with a criminal offence if there is enough evidence against her”. The father admitted part of the reason for him making the statement was that it would advantage him in his claim for residence.
106 The father commenced further proceedings, which came before me on 25 October 2004. I dismissed the father’s application for interim residence. I issued a recovery order, but also made arrangements for E’s handover at a local business in the hope the recovery order would not need to be executed. The father complied with the order. However, at the time of handover, he punched the air with a closed fist in the direction of the mother. The father also said words to E to the effect, “Don’t worry she [i.e. the mother] won’t beat you up too much”. The mother said to E, “Come on sweetheart”, to which E responded with words to the effect “Don’t call me that, bitch”.
107 E continued to act out, and the mother continued to show the same common sense and restraint she had on previous difficult occasions. She sensibly took E to her mother’s home for the night in order for the mother to have an opportunity to spend time alone with E.
108 It emerged that whilst E was in his care, the father had taken her to the Doctor and discussed the chicken pox vaccination. He was aware C had already come down with chicken pox. The Doctor told the father the vaccination would not necessarily prevent E from contracting chicken pox. The father then left the decision about having the vaccination to E. Unsurprisingly, she elected not to have the needle.
109 The mother took E back to school on 26 October 2004, and she made another effort to run away. The mother then took E to see her teacher. During the course of their discussion, E accused the teacher and the mother of being “liars”. She said her father and C had told her that the teacher was a liar. She then began to dispute with the teacher the version of events in the “incident report”, about which the father had previously complained.
110 The next day C ran away whilst she and the mother were at the dentist, however, the mother managed to catch her. C told her father that the mother had tried to run over her.
111 A few weeks later the matter finally came to trial.
Credibility
112 It will be apparent from the findings above that I have largely accepted the version of events set out in the mother’s most comprehensive affidavit, and rejected the father’s evidence where their versions conflicted.
113 I will now make some brief observations concerning the credibility of some of the witnesses. I make no reference to the professionals who gave evidence (for example the teachers and the Single Expert, Mr Stephen Cohen), all of whom are highly experienced and whose testimony I had no hesitation in accepting.
Mother
114 I found the mother to be a credible witness. She was unable to be challenged successfully on most aspects of her evidence. In some instances, her recollection was supported by contemporaneous diary entries. She was prepared to make concessions when warranted. She demonstrated considerable insight into the problems that have characterised the marriage and that have caused so much trauma since the separation.
115 However, I have little doubt the problems in the marriage were not as one sided as might be thought from reading the mother’s affidavit. It is likely she was much moodier and more difficult to live with than she admits. I accept also she probably yelled at the children more often than she admits. She did not sufficiently acknowledge the support she had received from the father’s mother. Nevertheless, considered overall, I concluded her testimony provided a generally accurate reflection of the history of the relationship.
116 The mother was not challenged on substantial parts of her affidavit evidence. This was a sound forensic decision by the father’s counsel. Not only would it have taken many days to adequately deal with each and every allegation the mother had made in her 726 paragraph affidavit, but it was also apparent from early in her cross-examination that the mother was unlikely to be shaken on the central elements of her testimony.
The father
117 The father was not a reliable witness. I find he is a highly strung individual, even when he is not exposed to the stress and pressure of Court proceedings. Both in and out of the witness box, he exuded bitterness and hatred of the mother and her legal advisors. He had almost no insight and could rarely appreciate matters from any point of view other than his own.
118 The few concessions the father made under cross-examination were given grudgingly. For example, although he answered in the affirmative when asked if it was good for the children to have a relationship with their maternal grandmother, he all but spat out his answer.
119 The same applied to the father’s affidavit evidence. For example, he went to great lengths to outline all the things he did with the children, and downplayed the mother’s involvement. However, in paragraph 90 he said simply, “the mother liked doing kindergarten and pre-school rosters”. I take it from that she did all of the rosters; he did none - but she only did it because she enjoyed it.
120 In particular I did not accept the father’s evidence that he attended to the majority of the tasks required to care for the children prior to the separation, although I accept he did much more in the period immediately before separation than he had done in the past.
121 The father’s account of what occurred on 15 September 2004, when the recovery order was executed, is a good illustration of why his evidence cannot be relied upon. On this occasion there were independent witnesses present - the two police officers. The father’s affidavit suggests he co-operated with the police in ensuring C went back to her mother. The testimony of the police officers demonstrates this was a highly doctored version of what actually transpired.
122 The father also mentioned in his version of events on 15
September 2004 that two of the mother’s lawyers were present. He
failed to mention what he said to C about these young women – “They are the bitches working for your mother. They are the ones that are trying to keep us apart”.
123 Two other instances of the unreliability of the father’s evidence appeared in paragraph 200(b) of his affidavit. In that paragraph he referred to “unsubstantiated allegations” relating to concerns the mother had entertained prior to separation. The mother’s evidence and that of the family friend, LP, satisfies me the father had entertained the same concerns himself.
Mrs O
124 The father’s mother was an important witness, as she has spent a lot of time with the children during their lives. I did not find her evidence reliable. The mother seems to have a much more favourable view of her than I was able to gain from the time I was able to observe her in the witness box and in the back of the Court.
125 Mrs O’s very strong desire to assist the father in his “custody battle” clearly coloured her evidence. Although she had sided with the mother in marital disputes right up until the time of the separation, her reasons for doing so were irrational and self centred. She took the mother’s side, not because of the father’s poor behaviour, but because of a pledge she had made to herself arising out of a perception her own mother-in-law had always been against her in disagreements with the father’s father.
126 Although the mother did not give sufficient credit in her affidavit for the assistance she received from the father’s mother, I consider Mrs O overstated her role in the care of the children. She greatly overstated the extent of the assistance the father provided to the mother. Not even the father suggested he did as much around the house as his mother remembers him doing.
127 By way of illustration of the unreliability of Mrs O’s evidence, I refer to her claim that when E was about one year old, Mother returned to work “full time 5 days per week returning at about 6.30 pm”. There was no suggestion, even in the father’s evidence, that Mother worked this much.
128 A further illustration of Mrs O giving misleading evidence related to the time she and her husband lived with the parties. She said “[My husband] and I moved out about 3 weeks prior to the father and mother separating”. She did not disclose that her
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husband had moved out very much earlier, following the nasty altercation between him and the father. On the contrary, in paragraph 42 of her affidavit, Mrs O gave the impression it was the mother’s fault she and her husband moved out of the house (together).
The Mother’s mother
129 The mother’s mother was cross examined. I found her to be a pleasant, sensible, mature woman and I had no hesitation in accepting her evidence.
Mrs I
130 Mrs I was the next door neighbour to the O family. She is a community child health nurse, and I found her to be a reliable witness. She spent more than enough time around the family to have a good understanding of the division of responsibilities in the home.
Mrs W
131 Mrs S was a neighbour of the Os when they lived in another suburb. She was not challenged in cross examination and I accept her evidence.
The P family
132 Mrs P and her husband both swore affidavits in support of the mother’s case. The P’s knew the Os from their days as neighbours in another suburb, and as friends who visited each other’s homes up until the time of separation. Mrs P was cross examined strongly, but her husband was not required for cross-examination. Mr P kept in touch with the father after the separation, but ceased contact after the father insulted his wife for having sworn an affidavit for the mother. The father then called him a “wanker”, a “bastard” and “L’s lapdog”.
133 Mrs P is a nurse. She impressed me as a sensible, even handed woman, who gave truthful evidence. Her evidence was particularly valuable, because it was apparent she was regarded by both the mother and the father as a good friend. The father had seen fit to confide in her. He also paid her a visit to discuss his marriage shortly before the separation.
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K O
134 The father’s brother, K, swore an affidavit for the father. It was agreed he would not be cross examined. His affidavit gave the appearance of being balanced. He recalled the father and mother as parents who loved their children and were physically affectionate to them. He saw a more demonstrative relationship between C and E and their father, than between R and her father. He saw the older girls spending more time with their father than their mother - and the opposite in the case of R. He observed the father to be a father with a total love and commitment to all of his children. He observed the mother to be a caring and loving mother. Much of his evidence accorded with my own findings.
The law
135 I am required by the Family Law Act 1975 to make the orders most likely to promote the girls’ best interests. In doing so, I must keep in mind that the law says children have a right to know and be cared for by both their parents, unless it would be contrary to their best interests. With the same proviso, children have a right of regular contact with both their parents and with other people who are signific ant in their lives.
136 Section 68F(2) of the Act details the matters I am required to consider in determining what orders would best promote the children’s best interests. I will deal with each of those matters in turn.
Wishes expressed by the children
C
137 When C was seen by Mr Cohen in July 2004, she expressed a desire to live with her father. However, she wanted to see her mother every weekend and half the school holidays, and have lunch with her.
138 C mentioned to Mr Cohen how her father tells her he misses her when she is not with him, but her mother does not make similar comments. She also indicated to Mr Cohen she felt the need to balance R’s desire to live with Mother. Although C told Mr Cohen she would be really upset if she had to live with her mother, she thought eventually she would probably get used to it.
139 When C returned to see Mr Cohen early in November 2004 “she appeared much more relaxed…although still wishing to go and live with her father but without the hardened, desperate aspect
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that was so evident previously”. It is noteworthy that by this stage the contact was being supervised. C told Mr Cohen, “We see dad for 4 or 5 hours and he is spending more time focussing on us than on Mum.” Nevertheless, C expressed reservations about “being followed around” by the Mother Hen supervisors.
140 Although C’s presentation towards her mother in November
2004 had changed significantly from the previous interview, her expressed wish to live with her father was now accompanied by a wish not to have any contact with her mother. As Mr Cohen said, this stated wish “was out of concert with her presentation throughout the rest of this latest interview”. However, C told Mr Cohen that she knew if she had no contact with her mother, this would “make her dad very happy”.
E
141 E told Mr Cohen in the earlier interview that she hated moving back and forward between the two homes, and preferred to live with her father because she doesn’t like her mother. She said if she was living with her father, she wouldn’t bother seeing her mother at all. E said if she lived with her mother, her father would not be able to sleep, because all he could think about was his children. If E were made to live with her mother, she did not think she would get used to it and would be sad. Notwithstanding her negative remarks about her mother, E spent time brushing her mother’s hair during the interview.
142 When E was seen by Mr Cohen again in early November
2004, she had not mellowed towards her mother in the way C had done. On the contrary, in Mr Cohen’s words, “E appears to have jumped in and taken over from C’s previous fervour against her mother”. Mr Cohen had earlier predicted this is what would occur.
143 E still had a strongly expressed desire in November to live with her father and not see her mother. However, this time she came up with a completely different set of complaints about her mother, all of which Mr Cohen called “frivolous”. During this round of interviews, the father made clear to Mr Cohen that he accepted “much of E’s claims about her mother are baseless”.
R
144 R was clearly in two minds when she first saw Mr Cohen.
According to him:
“R struggled to delineate between her parents in regard to residence and contact. She wished to be with her two sisters
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but was concerned about either parent knowing what she is saying about each of them. She indicated that she preferred being with her mother because she feels closer to her however she wishes to see her father.”
145 During the final assessment in November 2004, Mr Cohen reported that the father believed:
“he had lost R and feels she doesn't want to come and see him anymore. He explained at a recent visit it was clear that she didn't want to be there and he told her it was OK if she wanted to do something else. He described her as being most foreign almost as though she was being forced to come…he is very concerned R is drifting away from him.”
146 However, for her part, R talked on this occasion of having a good time with her father, especially on school holidays. Mr Cohen thought R’s view of her father had mellowed since the previous interview, “with her attempting to place him in a much more favourable light than she had at previous interviews”.
147 R experienced a desire to live with the father during the final assessment. However, she said this was because she knew her sisters wanted to live with him and she wants to live with them. I accept Mr Cohen’s opinion that R has been influenced by the behaviour of her sisters. I have little doubt that in reality R has a much stronger attachment to her mother than her father. It is significant that when R announced her desire to live with her father, she did not make eye contact, and turned her back on Mr Cohen.
Weight to be given to the girls’ wishes
148 S 68F(2)(a) specifically requires me to consider factors I regard as relevant in assessing the weight to be given to children’s wishes. The first thing to be considered is that these children are still relatively young. Nevertheless, C and E are old enough for their wishes to be a matter the Court would ordinarily take into account, particularly when those wishes are expressed strongly.
149 However, the older girls’ wishes must be understood in light of the way they have been brought up. They have lived their entire lives in a home where their mother has been abused and belittled by their father. This occurred not only in private, but also in the presence of neighbours and friends. Their father lavished affection and attention on the girls for much of the time – but withdrew it when he saw fit. The older girls craved his attention and affection,
and behaved in a way designed to attract it. E in particular felt the need to compete for her father’s love because of the somewhat greater attention he paid to C.
150 I find that following the breakdown of the relationship, the girls were presented with an “all or nothing” scenario. They have been drawn into the centre of what their father regards as a “custody battle”. They feel they cannot express their love for their mother, because to do so might suggest to their father they do not love him.
151 I suspect the girls have an understanding of the way in which their father responds to those who disagree with him. They love their father desperately, and know they cannot be perceived to be in the camp of his combatant. To do so would be to risk being excluded from their father’s life altogether. Furthermore, if they do not live with their father, their much-loved grandmother will die of a broken heart.
152 I find that the father and his parents have acted in a way designed to ensure the children have a poor attitude toward their mother. They have persistently discussed the Court proceedings with the children. They have made the children feel that the father is the innocent victim; unable to afford “two lawyers”; and left to battle for his hard earned money against his grasping wife, whilst he struggles with crippling physical pain.
153 In these circumstances, it is little wonder the children express a strong desire to live with their father. He not only loves them dearly, he needs them. His entire personal happiness is dependant upon them coming to live with him. As C told Mother’s mother in about July 2004, “Dad needs me…He can’t live without me”. And as E told Mr Cohen, her father is “very sad” while she is at her mother’s, and he doesn’t sleep because “all he can do is think about us”.
154 As Mr Cohen has indicated in his report, the reasons for the children’s preference to live with their father have little foundation in reality. When pressed by Mr Cohen, C “struggled to find any reasonable criticisms of her mother other than those echoed by her father.” Furthermore, their preferences are not borne out in their conduct towards their mother, when she has had an opportunity to be alone with them, without the poisonous influence of their father and his family.
155 In these circumstances, the only weight I place on the children’s wishes is in giving consideration to whether or not it is,
in fact, feasible for the children to continue to live with their mother. The issues associated with the children running away from school, are, of course, extremely concerning. It is dangerous and very traumatic for the children to be regularly involved in these escapades.
156 In deciding that the children’s best interests are undoubtedly better served by living with their mother, I have given careful consideration to the issues that could arise if the children continue to run away. However, in view of their relatively tender age, and the skill their mother has shown in minimising the trauma associated with them running away, I am satisfied it is more probable than not that the children will stop running away if the current cycle of behaviour can be ended. I am particularly heartened by the improvement in C’s attitude to her mother after the introduction of supervised contact.
157 In this regard I accept not only Mr Cohen’s evidence, but also that of the mother and her mother about the improvement in the behaviour of the older girls since the making of the orders in the middle of September 2004. I also accept the evidence of E’s teacher, who observes that E’s attitude towards her mother improves after she has had time to settle down at school.
The nature of the children’s relationship with each of their parents and with other persons
158 The girls all have a good relationship with each other, although there is some sibling rivalry, especially as the older girls feel their mother favours R.
159 I find that prior to the separation, the children had a good relationship with both of their parents. I am satisfied, however, that the mother was their primary caregiver. Not only did I accept the mother’s evidence on this point, but also that of all the neighbours who gave evidence on her behalf.
160 Mrs I said, “the mother seemed to be constantly anticipating and attending to the father’s and the children’s needs”. Mrs S, also primarily saw the mother attending to the domestic duties and the needs of the children when the family was living in their suburb. Mrs P observed that “the mother was almost solely responsible for the care of the children and the running of their household”. In fact, it was a matter of amusement in the Ps’ home that the mother appeared to have four children, not three.
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161 Mr P confirmed his wife’s evidence. He said the mother “almost solely attended to the children”. He did not recall the father ever doing anything around the house except making coffee or assisting with the barbeque. Mrs P observed all of the girls to be polite and loving towards their mother before separation, “giving cuddles or being physically affectionate” towards her. She did not recall ever seeing R go to the father for anything.
162 The father’s brother described the mother in his affidavit as being a caring and loving mother. He went on to say immediately “I am very concerned about why the children have expressed such anger and hatred towards their mother”. Clearly, in his mind, the outward manifestation of the girls’ relationship with their mother after separation has been markedly different from the position before separation.
163 I have already referred above to the considerable involvement the father had in playing with, and spending time with the girls. I find he did invest more time and interest in C, and felt closer to her than the other girls. However, as a result of his interest in their lives and the time he spent with them, he developed an excellent relationship with all of his children. Nevertheless, I consider the girls’ relationship with their mother was built on more secure foundation than their relationship with him. I am satisfied the children never had any doubt about their mother’s affection for them, and did not need to compete for it. On the other hand, their relationship with their father was, in part, founded upon their concern that his love for them might be withdrawn if they did not conduct themselves as he wished.
164 There were some further concerning aspects of the father’s relationship with the girls, but particularly C, which emerged following separation. Mr Cohen concluded in September 2004, and I accept his assessment that:
“Mr O has an inappropriate relationship with C O. He has talked about almost everything with her. She sees him as an idyllic figure who can do no wrong. He has confided in her at great lengths, this has almost no boundaries, and has undermined the mother’s authority and her relationship with C. C’s outbursts towards the mother and her running away have been supported by Mr O’s relationship with his daughter. Mr O has been emotionally manipulative with C. As this matter has progressed from her initial interview 09/08/04 C has become more and more hardened against her mother using
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a lot of her father’s language in denigrating Ms O. This level of emotional enmeshments is a confirmation of Mr O’s inappropriate conscious and unconscious behaviour. On the one hand it is explainable as a form of conscious revenge as a result of the “tactile” allegation yet Mr O appears to act unconsciously at times as he is thoroughly insightless, arrogant and righteous about his behaviour with C.
… C was told by her father that when she is at her mother’s he gets very upset. He cries on the telephone when she talks to him. He does not get enough sleep when she is away because “he misses us”. She explained her father gets very stressed when the children are away from him. Her father wishes he had them with him all the time. C considers one of her father’s strengths is that she can talk with him about anything, including the Family Court matters. She believes that he understands her the best and her only concern about him is that he now and then “repeats stuff”.
Mr O’s behaviour has led C to believe that the worse she is for her mother the more she will please her father and show him that she loves him. C stated, “if we give mum a hard time dad would be proud of it.”
165 Mr Cohen was more than justified in concluding that the father’s relationship with C is “emotionally inappropriate and manipulative”. He has been “subtly coercing C into running away via his past emotional manipulation and current direct attitude, instructions and behaviours”.
166 I also accept Mr Cohen’s assessment that E is “highly competitive” for her father’s attention. I agree with his opinion (in September 2004) that the father’s:-
“emotional manipulation of E has been to a lesser direct extent but E has been drawn to the implanted beliefs of her sister through her desire to compete for her father’s attention. E is competitive with her sister in denigrating her mother to compete with C for her father’s attention”.
167 The focus of these proceedings has been on the relationship between E and C and their father. However, it is important to remember that the proceedings involve three children, not two.
168 I am satisfied R and her mother enjoy an extremely good relationship, notwithstanding R’s belated expression of desire to live with her father. The father’s evidence (see paragraphs 100,
101 and 102 of his affidavit) suggests there were some problems in his own relationship with R, although he blamed the mother for this. He also acknowledged when the children were having contact with him, R wanted to speak with her mother on the telephone. I doubt she received any encouragement to make her wishes known in this regard.
169 Further evidence of the longstanding closeness of the mother’s relationship with R is to be found inter alia in the affidavit of KO (see para 6); in the remarks C made to Mr Cohen (see page 5 of his September 2004 report); and in The father’s oral evidence when he said “R was very loving with her mother”.
170 I sensed that R is now spoken of less warmly by her father and paternal grandmother because she has always clearly been closer to her mother and because, unlike her sisters, she initially failed to tell Mr Cohen she was desperate to live with her father. For example, the father’s mother in her affidavit described C as “a very loving child” and E as a “thinking, kind and considerate child”. However, in the same paragraph R’s only attribute mentioned was that she “tries to get attention from Mother by tattling on C and E”. The father made similar remarks to Mr Cohen, telling him that R is allowed “free reign to upset the other two and not get into trouble”.
171 The father told the Mother Hen supervisor on 23 October
2004 that he was glad R came to visit, (C had stayed home with the
mother with chicken pox, and E was already with the father) because “she does not get much attention” from him. My reading of the evidence, including the Mother Hen reports, suggests there is some foundation in this observation. Nevertheless, I am satisfied the father and his family love R, and she is attached to them. R told Mr Cohen that she is concerned about her father and Nanna, who both cry whenever she goes home to her mother’s house.
172 I am satisfied all the children have affection for their extended family on both sides. They have only recently been able to commence building a relationship with their mother’s family. They have had much greater opportunity to form close bonds with their father’s family, and have done so.
173 I am in particular satisfied the children have a loving relationship with the father’s mother, who has been significantly involved in assisting in their care throughout their lives. It was more difficult to assess the nature of the girls’ relationship with
their paternal grandfather. Although he came to Court on occasions to support the father, a decision was apparently made that it would be inappropriate for him to be called as a witness, although he had sworn an affidavit in interim proceedings. The report from the Mother Hen supervisor suggests he does not have a great deal to do with the girls when they are visiting.
174 Unfortunately, the evidence strongly suggests the father’s side of the family is most dysfunctional. Although the issues were not explored in sufficient detail for me to make any firm findings, there was sufficient evidence to suggest that the father’s father was a poor husband and an inconsistent father. Mrs O yelled “No”, when asked whether she could see something in the father that she saw in her husband. The father certainly has a very dim view of his father. In the confrontation between the father and his father in January
2004, the father said to his father words to the effect, “All we ever wanted and want is a father and you can’t even do that. You have never been there for us”.
175 If some of the incidents described in the evidence were correct, the father is more than justified in holding those negative opinions about his father. The evidence also suggests, however, that there have been tensions from time to time in the relationship between the father and his mother, and there certainly have been ructions between the father and his siblings.
176 A number of remarks the father has made to the mother over the years, and his presentation in Court, suggest to me that the father feels very sorry for himself. Again, he may well have good grounds. His despondency seems to be related in part to his dissatisfaction with his own upbringing; in part to the physical pain he has endured as a result of his accid ents; and now the breakdown of his marriage and “loss” of his children.
177 It is my assessment that the father’s outlook on life makes it very difficult for him to form relationships in which he is the supportive party. He has a very self-centred view of the world, and looks to relationships for what they can provide to nourish him. Whilst he has a very strong desire to be an excellent parent, his personality makes it very hard for him to separate his needs from those of his children. In my estimatio n this may become an even greater problem as the girls mature and begin to form stronger, independent personalities of their own. The father does not handle conflict well, and there is a risk in the longer term of estrangement
from his daughters, as there has been in his relationships with other people close to him.
The likely effect of any changes in the children’s circumstances, including the effect of separation from either of their parents
178 Events since separation tend to show that when the girls are with the father, they will not have contact with the mother. When they return to their mother, the older girls are extremely hostile. I am satisfied that if the girls went to live with their father, they would end up having no meaningful contact with their mother. This would be likely to occur first with E and C. However, I would anticipate the same would happen with R, as she matures and finds herself forced to take sides in the battle that will not end with the finalisation of these proceedings.
215 In some disputes, an airing of all of the issues at trial can be a therapeutic process. It can lead to one or both of the litigants having greater insight into the impact of their own behaviour on the people they love. This happens particularly in cases where there is an independent expert and Child Representative, who have no interest in unnecessarily taking sides and who can help parents focus on the issues from the children’s point of view.
216 In many other cases this does not occur, through no fault of the professionals involved. Regrettably, the trial was not a therapeutic experience for the father. It did not appear to assist him to develop any insight at all into his own behaviour. In fact, all it did was to make him feel angrier and sorrier for himself than he felt at the beginning.
217 In these circumstances, there was no guarantee the father would assist in the processes necessary to heal the wounds in the family. Mr Cohen anticipated things might become worse before they become better. I therefore recognised it was possible the children would run away again. It was likely further proceedings would be necessary to make clear that the dispute was over - and that the children would be returned to their mother on every occasion they ran away.
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218 I also recognised the possibility that - further into the future - The father would seek to institute fresh residence proceedings, in the hope the Court would place greater emphasis on the wishes of older children. Such proceedings can never be ruled out, however, The father would need to make very dramatic personal changes before he would ever be considered more suitable than Mother to bring up their children.
219 Even if I acceded to the wishes of the children, and granted residence to the father, there might still have been further proceedings. Notwithstanding The father’s assurances, I had no confidence he would ensure the children went on contact with Mother. I am satisfied he would have allowed them to make the choice whether they wished to have contact. Notwithstanding the great influence he has over the older girls, he has not been able even to persuade them to stop running away from school. I do not accept The father’s assertion that the children would be prepared to go on contact if they were “secure in the knowledge” they would be living with him. The mother may therefore have needed to resort to repeated applications to the Court to enforce contact orders.
Conclusion
220 The Court appointed expert, Mr Cohen, concluded:
“Given the current situation it is not appropriate for Mr O to have the girls with him. He has shown scant disregard for parenting skills in regard to dealing with the girl’s behaviours as a parent. He has served to undermine the mother’s relationship with the daughters and has done little to establish appropriate relationships with him as a parent preferring to act as a friend.”
221 I agree with Mr Cohen’s assessment. I also agree with his conclusion that a shared residence arrangement would be doomed to failure because of the father’s attitude to the mother.
222 Some attempt was made at trial to justify the father’s (and the older children’s) post separation behaviour by referring to what were said to be unreasonable actions by the mother at the time of separation. It was suggested that the father responded as he did because of the mother’s provocative conduct in leaving the home, denying him contact and making unfounded allegations suggesting he was likely to sexually molest the children.
223 I have no doubt the final separation came as a great shock to the father, especially when he realised it appeared likely to be
permanent. The mother had been having personal counselling for a long time, and was emotionally extricating herself from the relationship for years before she physically left it. The father was in poor physical shape and had inadequate inner resources to help him come to grips with the devastating loss of his wife and children. Matters were made worse for him because he was unable to see his children for what must have seemed at the time an eternity.
224 However, what were the alternatives available to the mother?
She knew the father better than anyone else. She knew how he
would be likely to react to a separation. She had heard about the meeting between the father and Mrs P. Mrs P, who had known them both a long time, had concluded that the mother was unsafe staying with the father. The father had told Mrs P he intended to make things as “nasty and unpleasant as possible” for the mother in the event of a separation. He had told the mother that his counsellor was concerned he might kill himself.
225 The father had already told the mother to leave the home.
Although he had also told her the house and children were “his”, he
had previously promised her she could le ave with the children if he became angry and abusive again. The mother had properly concluded the children’s interests would be best served by living with her. It was not, in my view, a realistic option for her to leave the children behind (especially R), nor was it feasible for there to be a separation under the one roof, whilst the Court decided where the girls would live. Life in the home would have been intolerable.
226 The mother took what I considered to be the best course. She left the home wit hout the father’s knowledge. She secured safe and suitable accommodation for the girls. She arranged for the girls to get in touch with their father and have telephone contact. She did not arrange physical contact immediately, because she knew the girls would not be returned. Instead she immediately commenced proceedings to allow the Court to rule on the issue of residence and contact. She did not proceed ex parte, as was wrongly thought at the time of trial.
227 I am satisfied the older girls’ hostile reaction to their mother after separation stemmed from three main (and related) sources. The first was the family dynamic before separation, which required all members of the family to be hypersensitive to the father’s needs. Secondly, the father and his mother’s response to the separation ensured the girls saw their father as the innocent victim.
Thirdly, the girls know their mother’s love is unconditional, whereas their father’s must be won – and in this instance was best won by turning on their mother.
228 Any criticism levelled at the mother could only reasonably relate to the way in which she presented her concerns to the Court about the father’s alleged “tactile” behaviour, touching the girls’ bottoms, etc. She could have made it clearer she did not suspect the father was touching the girls in a sexual way. However, the concerns she had were legitimate, as they suggested a breaking down of appropriate boundaries between father and daughters.
229 In making orders to promote the children’s best interests, I am not required to determine conclusively who was most at fault in causing the breakdown of the marriage; who behaved badly at the time of separation; or who was most at fault in causing the problems that have emerged since. These things are relevant only to the extent they impact on my assessment of who is better able to care for the children. Having considered all of the evidence, and notwithstanding their strongly expressed wishes, I had no hesitation in concluding that the children should reside with Mother.
230 I nevertheless consider the girls would all benefit from spending extended periods of time with their father. The father is a devoted Dad. He knows how to make his children laugh and be happy. He has skills and talents that will help make them better people. He wants to be an important influence in their lives. To do all of these things he needs to spend a lot of time with his children. However, if his contact with them continued in the way it did until September 2004, there would be no end to the trauma the girls (and their extended families) have endured since separation.
231 I ordered short periods of supervised contact in the short-to- medium term for the reasons outlined by Mr Cohen, when he said:-
“Given Mr O’s emotional behaviours in regard to this matter it is recommended that he have supervised contact whilst he undertakes counselling. The supervision is to allow him to see his girls, who love him dearly, on a regular basis but hopefully will prevent him from continuing the alienation of the children from their mother. Mr O needs to
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develop some insight into his behaviour and the effect thereof on the girls. Once this has occurred then the contact can move to unsupervised.”
232 In my mind it is significant there appeared to be some fairly positive outcomes even within a few weeks of supervised contact commencing. Whilst it is always very difficult to assess cause and effect, I found it very significant that C was more relaxed when seeing Mr Cohen after supervised contact commenced. She was less hardened and desperate to live with her father, and more reasonable and reflective about her mother. Mr Cohen observed, “There was nowhere near the angst and the body language in regard to her mother that there had been previously”. C also felt her father was more settled over the last few weeks (whilst contact was being supervised). Most significant of all, C felt that during the short periods of supervised contact, her father had become more focussed on the children than on her mother.
233 Implementation of supervised contact was the only practicable way to attempt to break the cycle of the children and the father repeatedly discussing issues relating to the separation; the father venting his sorrow about the separation; and all of them expressing negative sentiments about the mother as a means of easing the father’s pain and demonstrating the children’s love for him. The girls need to get into a routine where they see their father without discussing these things and just enjoying each other’s company. As Mr Cohen said, supervision of contact will hopefully not only stop the father raising inappropriate topics of conversation with the girls, but may also result in them not bringing up these familiar topics when they see him.
234 Whilst it is far from a desirable form of contact, the reports from the Mother Hen supervisors show the children can still have a good time with their father and his family, even when there is a stranger present.
Orders
235 I have already made the substantive orders I consider to be appropriate. I reserved the right at the time of trial to give consideration to amending the detailed aspects of the contact arrangements. However, after giving the matter further consideration, I am satisfied the orders made are appropriate.
236 Although not replicated above, at the conclusion of the trial I
gave additional brief reasons for some of those detailed orders. It is
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unnecessary for me to repeat all those matters here. However, there are two aspects about which I should give further reasons.
237 The first relates to my decision to alternate the supervision arrangements between Daisy House and Mother Hen. In coming to that decision, I accepted the submissions made by the Child Representative. In opposing the use of Daisy House, The father’s counsel properly referred to the fact that there was no relevant evidence before the Court to support some of the submissions made by the Child Representative. However, in my view, courts of spec ialist jurisdiction inevitably must take judicial knowledge of circumstances – in this case, the workings of the local “family law system”. To do otherwise would require repetitious and expensive evidence to be led on issues about which the Court and local practitioners have a sound working knowledge.
238 “Mother Hen” is a private business which provides supervised contact for a set fee. There is no process of accreditation. There is no requirement for the supervisors to have any relevant training. There is no formal “supervision” of the staff employed. In the Court’s experience, many of the supervisors are mature, sensible and well meaning women, who do an excellent job. However, from time to time, the Court comes across instances of supervision not proceeding in the most satisfactory fashion.
239 The Mother Hen supervisors are in regular and close contact with the parent being supervised. They repeatedly allow themselves to be given a highly one-sided version of the “facts” relating to the family, and the reasons for supervision. They not infrequently become highly sympathetic to the cause of the parent being supervised. I accept the Child Representative’s submission that they often form “alliances” with the parent being supervised, rather than remaining strictly neutral and independent.
240 Nevertheless, Mother Hen fills a much need gap in the supervision services available in Western Australia. There are not enough places in the professional, accredited agencies. Not all families require the level of supervision provided by those agencies. Furthermore, Mother Hen has the distinct advantage of a pick-up and collection service and will accompany parents with their children to wherever the parent wishes to go. Mother Hen will also generally allow supervision over much longer periods than is available in the accredited agencies, and on every day of the week.
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241 The supervision services provided by Relationships Australia and Anglicare are of a completely different character. These agencies are subsidised by the Federal Government and are required to meet various standards. In the Court’s experience, their staff is carefully selected and supervised by well qualified co- ordinators, who are able to provide a debriefing service to the supervisor and to the children. Both of these agencies are also able to provide other services that are often desperately needed by the families who are referred for supervised contact. These include counselling and mediation.
242 I accept the submission of the Child Representative that in this case there is a place for both Mother Hen and one of the two local accredited agencies. Mother Hen will be able to provide the flexible service enjoyed to date. Daisy House (the long running supervision service provided by Anglicare in Girrawheen) will be able to provide professional supervision. Its workers are likely to be better equipped to direct the interactions between father and daughters away from the areas that have caused difficulties in the past. In paragraph 38 et seq of his affidavit, The father gave evidence of comments made to him by the children during the course of contact supervised by Mother Hen. I am prepared to accept the children said the things he describes. A properly trained, professional supervisor would have ensured the conversations were reframed and redirected, rather than simply being allowed to continue, which The father’s evidence suggests they were.
243 The staff at Daisy House will be able to provide better feedback to the father and any debriefing required for the children after contact visits. Importantly, in my view, it is likely they will also provide a more objective reporting service to the Child Representative, other professionals involved - and the Court if necessary.
244 Although the father’s counsel may have been justified in saying that the issue of the use of Daisy House had not been properly ventilated during the course of the trial, the matter had come up in earlier proceedings before the Court. The father’s counsel was able to outline the father’s main concerns in relation to Daisy House, in particular his belief that it was unacceptable because it was an “institution”.
245 Nevertheless, the orders I ultimately made in relation to the alternating supervision arrangements were made “until further order of the Court”. My order is therefore not a final order, and I
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am prepared to entertain further submissions (and hear any additional evidence) that the father might wish to place before the Court on this particular topic .
246 I should also give further reasons in relation to the limitation of the father’s contact to only four hours on three out of four weekends. I recognise this is a limited period of time, and less than the eight hours proposed by the father’s counsel as his “fallback” position. There were many reasons I considered the number of hours proposed by the Child Representative to be appropriate.
247 Places at Daisy House are very limited and need to be kept for the many families who require the service. Furthermore, experience indicates that contact for very extended periods in supervision centres is not ideal, given there are a limited number of activities and no opportunity to move away from the premises.
248 I acknowledge it would be feasible (although expensive) for the father to have longer than four hours when he is being supervised by Mother Hen. However, the arrangements I put in place were designed to encourage the father to participate in the therapeutic process required in order to change his behaviour and thinking. In my view, it will be in the long term interests of the children for contact to move towards longer periods of contact, without supervision. The father requires every encouragement to ensure this occurs.
249 Four hours contact, most weeks, is sufficient for the father to remain in contact with his children and for them to have an enjoyable time with him and his family. Even with the benefit of supervision, the father’s current mindset is not conducive to him behaving appropriately for long periods of time when in the company of his children. The more time he is able to spend with the children, the greater his ability to influence them subtlety. I consider four hours contact in any one stretch is adequate until the father has made some progress in changing his outlook and behaviour.
The future
250 It has been necessary in these reasons for me to express strong negative findings about the father. However, it is important, I acknowledge again that the father is an extremely loving father, who has an enormous personal commitment to his children. He wants the best for his family and he would never knowingly do anything he thought would cause them any harm.
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251 It is a tragedy that a father so committed to his children, and so good with them in so many ways, is reduced to having short periods of supervised contact. However, it was his behaviour that led to this state of affairs - and a change in his behaviour can reverse the situation. The father’s life with his children can be got “back on track” if he is willing to make the commitment and changes necessary.
252 The father has many unresolved personal issues which impact upon his parenting and upon his behaviour generally. These issues, in part, relate to the way in which he himself was raised. They are compounded by his chronic pain. I suspect that the father feels he has never been at such a low point in his entire life. He now has only two choices left, since it is obvious there will never be a reconciliation with Mother.
253 He can continue to look backward and feel sorry for himself.
If he does so, he is likely to spend the rest of his life angry and depressed, blaming Mother and the Family Court for destroying his
family. Alternatively, he can try to put the past behind him, and plan for the future. He is still a comparatively young man. He has three beautiful children, who he will be able to see regularly and unsupervised, if he makes a commitment to changing the way in which he thinks and behaves toward their mother. There were already some encouraging signs in his final interview with Mr Cohen that suggested the father has the capacity to change.
254 To do so will require him to develop introspection and an acceptance of the fact he is partly to blame for the position in which he now finds himself. Such introspection and understanding are unlikely to be achieved without intensive intervention from a qualified therapist, such as Carmela Yom-Tov. Ms Yom-Tov is well known as an highly experienced, sympathetic and wise therapist. She is well equipped to help the father find his way through the difficult times ahead. With her help, the father can resume a healthy relationship with his children, free from the drama and trauma of the last year.
I certify that the preceding [254] paragraphs are a true copy of the reasons for
judgment delivered by this Honourable Court
Associate
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