OPPER & LAINE
[2013] FMCAfam 27
•12 February 2013
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| OPPER & LAINE | [2013] FMCAfam 27 |
| FAMILY LAW – Contested parenting arrangements for two children aged 9 years and 7 years – children have witnessed father holding a knife to the mother – continued acts of intimidation at handovers – creates distress and panic for the children – father deeply resents mother and is unable to contain his anger – Court declined to sanction order for equal shared parental responsibility – all handovers to occur at a Contact Centre – midweek time with the children not in the children’s best interests – unlimited telephone time with the children not in their best interests. |
| Family Law Act 1975, ss.60 CC, 61DA |
| Mazorski & Albright [2007] FamCA 520 MRR v GR [2010] HCA 4 H & H [2003] FMCAfam 41 |
| Applicant: | MR OPPER |
| Respondent: | MS LAINE |
| File Number: | BRC 6331 of 2011 |
| Judgment of: | Willis FM |
| Hearing date: | 9 November 2012 |
| Date of Last Submission: | 9 November 2012 |
| Delivered at: | Cairns |
| Delivered on: | 12 February 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Self-represented |
ORDERS
That the children [X] born [in] 2003 and [Y] born [in] 2005 (“the children”) live with the mother at all times other than when they are spending time with the father pursuant to the terms of this Order, NOTING that the mother has relocated to Brisbane
Parental Responsibility
The mother is to have sole parental responsibility for the major, long term issues for the children including but not limited to:
(a)Education (both current and future) including the choice of school;
(b)Religious and cultural upbringing;
(c)Health and medical issues including sole parental responsibility for having any tests administered for any allergies or other suspected illnesses;
(d)The children’s names;
(e)Changes to the children’s living arrangements that make it significantly more difficult for the children to spend time with each parent.
The mother is to advise the father in writing 7 days prior to making a long term decision (subject to the issue not being urgent in which event the mother is to make the decision and inform the father afterwards) of the decision, and if the father wishes to offer an opinion on the relevant decision, he is to provide one response in writing within 7 days of receipt of the letter. The final decision will be that of the mother and her decision is not subject to the father’s response being received or his approval. The father is restrained from discussing any such decisions directly or indirectly with the children, or discussing the decision in the presence or hearing of the children.
Notwithstanding the provisions of order 3 herein:
(a)The mother is responsible for the day-to-day care, welfare and development of the children when the children are spending time with her.
(b)The father is to be responsible for the day-to-day care, welfare and development of the children when the children are spending time with him subject always to the restraints referred to elsewhere in these Orders and NOTING that the mother has sole parental responsibility for making major long term decisions for the children.
Father’s time with the children
School Terms
The father is to spend time with the children during the Queensland Gazetted School Terms at the following times:-
(a)From after school Friday until the commencement of school on the following Monday (or Tuesday if Monday is a non-school day) each alternate week, subject to Orders 6(a), 7(iv) and 8 herein.
(b)The father’s alternate weekend contact referred to in Order 5 (a) herein is suspended during all school holiday periods referred to in these Orders.
(c)The father’s alternate weekend time referred to in Order 5 (a) will resume on the second weekend after the resumption of each school term, notwithstanding with whom the children may be spending the second half of any school holiday period with or whether or not the father did or did not have the last weekend prior to the commencement of the school holidays.
Gazetted School Holidays
(d)The father will spend time with the children for one half of the Easter, June/July and September school holidays with the father having the first half in 2012 and each alternate year thereafter and the second half in 2013 and each alternate year thereafter. For the purpose of establishing one half of the holidays, the holiday periods referred to herein will commence after school on the last day of the school term and conclude on the last day prior to the commencement of school.
(e)The father will spend time with the children for one half of the Christmas school holidays with the father having the second half in 2013 and each alternate year thereafter and the first half in 2014 and each alternate year thereafter.
(f)For the purpose of establishing one half of the holidays, the holiday periods referred to herein will commence after school on the last day of the school term and conclude on the last day prior to the commencement of school.
Special Days
Father’s Day/ Mother’s Day
Notwithstanding the provisions of any other orders, the children shall spend time with the parents as follows:
(a)The mother and father will do all acts and things to swap weekends so the children will always spend the Mother’s Day weekend with the mother and Father’s Day weekend with the father.
Father’s Birthday
In the event that the children are not otherwise with the father on his birthday, the father will spend time with the children on his birthday on the following terms and conditions:
(i)If the father’s birthday falls during a period when the children are on holidays with the mother, no time is to be spent between the children and the father on the father’s birthday;
(ii)Subject to handovers occurring either from school or to and from the nominated child contact centre, the father will spend the following time with the children on his birthday;
(iii)On a school day, when the children are not otherwise with the father, the father is to collect the children from school and return the children to the Contact Centre at 5:00 pm or closing time of the Contact Centre, but no later than 6:00pm;
(iv)In the event the father’s birthday falls on a weekend when the children are otherwise with the mother, the parties are to do all acts and things to swap weekends, so that the children spend that weekend with the father, provided that this time does not fall within the mother’s holiday periods provided for in these Orders.
Mother’s birthday
In the event that the mother’s birthday falls on a weekend when the children would otherwise be with the father, the parties are to do all acts and things to swap the weekends, so as the children spend that weekend with the mother, provided that this time does not fall within the father’s holiday periods provided for in these Orders.
Children’s Birthdays
On each child’s birthday:
(a)if the children are not otherwise with the father, on a school day the father is to spend time with the children from after school until 5:00 pm or closing time of the Contact Centre, but no later than 6:00pm, provided that arrangements can be made with the Contact Centre.
(b)if a non-school day and the children are not otherwise living with the father, the father will spend time with the children between 12:30 pm until 5:00 pm or closing time of the Contact Centre, but no later than 6:00pm, provided that arrangements can be made by the father with the Contact Centre and provided that this time does not fall in the mother’s holiday periods as provided for in these Orders.
Communication Arrangements
The father is to spend time with the children via telephone communication 2 days each week during the school term. The mother is to nominate within 4 days of the date of this Order, which two days the father is to have telephone communication taking into account the children’s extra curricular activities and meal times. Having stipulated the 2 days each week, the mother is at liberty to alter the day or time to accommodate changing extra curricular activities, from time to time. The mother is to provide the father with 7 days notice of any change.
During the school holiday periods referred to in these Orders, the parent with whom the children are spending each week is to facilitate telephone communication with the other parent once a week at 5:30pm each Wednesday, unless another day is agreed to in writing.
The parties are to exchange information or discuss issues about the children via a communication book which will be passed between parties at handovers.
Changeover Arrangements
All handovers referred to in these Orders are to occur to and from school when they occur on school days, subject to all other special conditions provided for in these orders.
On non-school days all handovers are to occur to and from the Contact Centre at Foundations Care, Brisbane Street, Ipswich. Each of the parties are to do all acts and things to attend the intake procedures at Foundations Care forthwith and no later than 7 days from the date of this Order. In the event Foundations Care is no longer available for use, the parties are to enrol at Relationships Australia, [omitted] Contact Centre. In the event either of those two Contact Centres become unavailable the parties are to use a Contact Centre as nominated by the mother.
Attendance at school and extra curricular events
The mother and father are restrained from enrolling the children in any extra curricular activity to occur in the other parent’s time without the prior written agreement of the other parent.
Other than events which occur during the father’s time with the children as provided for in these Orders, the father is restrained from attending any school events or sporting events or extra curricular activities which occur during the time that the children live with the mother UNLESS:
(a)the father receives a written invitation (including by text or email) from the mother to attend a particular special event and PROVIDED THAT:
(b)upon receiving such invitation, the father is to respond in writing (including by text or email) within 2 business days and FURTHER:
(c)that he receives confirmation from the mother of his reply. The mother is to provide written acknowledgment of the father’s acceptance forthwith upon receiving his reply. If the father does not reply to the mother’s written invitation within 2 business days, he is restrained from attending the proposed event unless he has the prior written consent of the mother.
The mother is to use her best endeavours to ensure that the father is given the opportunity to attend special events occurring at school or special events at extra curricular activities, throughout the year, alternating from time to time with her own attendance.
School Reports
The parent’s authorise, by way of this Order, the schools attended by the children to give each parent information about the children’s educational progress and other school related activities and supply them with copies of school reports, photographs, certificates and awards, at the cost of the respective parent requesting such information, NOTING HOWEVER THAT the mother has sole responsibility for making major decisions about the children’s education.
Medical Emergency
In the event the children are spending time with the father and in the event of a true medical emergency, the father is to without delay and forthwith:
(a)Inform the mother by phone of the medical emergency, the location of the child/ren and the name of the doctor treating the child/ren, this information is to be provided to the mother in sufficient time to enable her to attend upon the child/ren forthwith.
(b)The father is to forthwith inform the doctor or health professional treating the child that the mother has sole parental responsibility for making long term medical decisions for the child/ren pursuant to these Orders.
The mother is to inform the father as soon as reasonably practicable of any significant medical condition suffered by the child. The father is to follow the medical advice received by the mother and he is to administer any treatment or medication as advised to him by the mother.
Miscellaneous
The mother and father shall keep each other informed at all times of their residential address, landline and mobile telephone number and email address and each are to provide notice of any change in writing within 48 hours of such change.
Each of the parties are restrained from;
(a)discussing with the children or in the presence or hearing of the children, the Court proceedings, and issues arising from this litigation;
(b)denigrating the other parent or that parent’s family or partner in the presence or hearing of the children (including at handovers) and each is to remove the children from the presence or hearing of any other person denigrating or insulting the other parent.
Pursuant to s.64D this order may only be varied by subsequent order of the Court.
The mother and father are to each forthwith enrol and attend as soon as practicable a Post Orders Parenting Program with Relationships Australia, and will file with the Court a certificate confirming his/her attendance and successful completion of such course.
The mother is directed to provide a copy of these reasons to the children’s school and the administrative authorities for any of the children’s extra curricular activities.
All outstanding Applications be removed from the pending cases list.
IT IS NOTED that publication of this judgment under the pseudonym Opper & Laine is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CAIRNS |
BRC 6331 of 2011
| MR OPPER |
Applicant
And
| MS LAINE |
Respondent
REASONS FOR JUDGMENT
The parties in this matter have been unable to agree on certain aspects of their parenting orders. Orders have been made on 25 May 2012 by Cassidy FM in relation to some of the aspects to do with agreement as to Father’s Day, Mother’s Day, changeovers, communication by telephone and communication between parents. Further orders were made on 25 May 2012 on an interim basis. Both parties are self-represented.
Background
The father was born [in] 1969 and is aged 43 and the mother was born [in] 1972 and is aged 40. The father and mother commenced a relationship in 1998 and were married [in] 2001. The parties met whilst the father was travelling and living overseas in London, the father having lived in New Zealand and the mother having grown up in Belgium. After the parties married they lived for a short period in New Zealand then moved to Australia and settled and commenced living on the Sunshine Coast in approximately 2005. Each of the parties have their extended families living in either New Zealand or Europe.
There are two children of the relationship, [X] born [in] 2003 and [Y] born [in] 2005. It is agreed that the parties finally separated in April 2011. The parties’ relationship occurred over a period of 13 years.
It seems agreed between the parties that there were many arguments and much unhappiness as their marriage dissolved in late 2010 and early 2011. This unhappiness and financial stress resulted in an incident in March 2011 which involved the police attending at the family home, the father being drunk and abusive and wielding a 12 inch kitchen knife in the home. The mother removed the children to the home of a friend and the father was finally removed by the police and taken to the [omitted] hospital for assessment. Regretfully, both children of the marriage awoke and are aware of this incident having either seen or heard it, or both.
A domestic violence order was taken out following this incident and there have been breaches of the order by the father, the first of which occurred approximately 3 hours after the first order was issued.
The parties separated following this event in April 2011. The father commenced proceedings in relation to both property and children’s matters on 22 July 2011. The mother’s response was filed on 30 September 2011. The mother sought that the father’s property application be dismissed and any assets be divided 60:40 in favour of the mother. At the time of the trial, property matters are yet to be heard. It seems that only debt remains.
In or around September 2011 the mother relocated with the children to Brisbane. At this time the mother’s work on the Sunshine Coast was relocated to Brisbane. It seems the first the father knew of this was through a letter handed by the mother to the father in September indicating that she would be relocating in the following week. The mother relocated to [omitted], Brisbane. It seems as though this was certainly without the father’s consent. On the mother’s version of events, she had been subjected to some frightening incidents of domestic violence and continued to be subjected to acts of intimidation by the father which, in part, informed her decision to relocate.
On 6 October 2011 Federal Magistrate Cassidy, having heard a contested interim application on 4 October 2011, ordered that the children live with the mother and spend time with the father on 2 out of 3 weekends from 5:00 pm Friday until 5:00 pm Sunday and one half of the school holiday periods. Each of the parties were also ordered to attend a PPP Parenting program. The mother was ordered to both deliver and collect the children at the commencement and conclusion of the father’s time with the children. During this trial the father has admitted that at that time, whilst he lived on the Sunshine Coast he worked in Brisbane on at least 2 or 3 days each week, however at no time did he offer to do any of the driving by way of either collecting the children from the mother or returning the children to her.
Initially this trial was intended to determine where the children would live following this relocation. However, in the father’s chronology filed on 15 May 2012 he outlines his proposal to relocate to [M], Brisbane on 28 May 2012. In September 2012, the father physically relocated himself to Brisbane. The father contended that this was so he could spend more time with his children.
On 27 May 2012 further orders were made by Federal Magistrate Cassidy which anticipated the father moving to Brisbane, both final and interim as set out in the orders. Order 11 provided the weekend living arrangements upon the father moving to Brisbane were to be that he was to spend two out of three weekends with the children from after school Friday to before school Monday. In the event that Monday was a pupil free day, the time was to be extended to that Monday.
There were also mid-week living arrangements made, that upon the father moving to Brisbane, the children were to spend time with the father for “after school sporting activities” with the father to collect the children from after school and the mother to collect the children at the conclusion of the sporting activity. Arrangements were made for the mother to collect the children in a parking area of the sporting activity, essentially at 7:00 pm.
There were also orders made that the mother be permitted to attend at any sporting activity but neither party will approach the other and will attempt to remain on opposite sides of any sporting fields. These orders, I hasten to say, were made on the papers and without any oral evidence at all. As I said, the father has, it seems, taken from May to September to relocate to Brisbane. Now he resides about five minutes from the children’s school and five minutes or so from the mother’s home.
At the commencement of the trial, in order to determine what the issues were remaining, I have adopted the case outline filed by the father and gone through each order to see whether it is agreed or disagreed. The following orders are agreed:
(1)That the children live with the mother, noting that the mother has relocated to Brisbane;
(2)That the parents have equal shared parental responsibility;
(3)That the parent in whose care the children are from time to time have sole responsibility for their day to day care, welfare and development;
(4)That the children communicate with the father by telephone at any reasonable time;
(5)That the father may telephone the children at any reasonable time to the allocated mobile phone number especially purchased for this purpose;
(6)That each party keep the other informed of their current residential address;
(7)That communication between the parties shall be as follows:
(a)To exchange information or discuss issues about the children, the parties agree to use a communication book which will be passed between parties via the children handovers;
(b)Mobile phone for children’s use is used for emergency contact with the mother or father, including a party being late for changeover; cancelling a sporting activity; a medical emergency relating to the children.
Father’s Day and Mother’s Day are agreed and as per the final orders, each party is to be restrained from making derogatory comments to the other in the presence or hearing of the children. Another order is that these orders constitute sufficient authority to the children’s doctors and other health professionals who are consulted in relation to children, to provide the parties with information which they may require in relation to the health and welfare of the children and that the parties have equal responsibility for the children and shall consult each other regarding decisions about the children’s schooling and extra curricular activities.
I have indicated to the parties at the outset that the Court may not agree that the proposed consent orders are in the best interests of the children. I have pointed out to the parties that the allegations of domestic violence, in particular, appear very troubling and that in the event a finding is made in relation to domestic violence being perpetrated by the father against the mother, that this may very well affect any order proposed for equal shared parental responsibility and other orders involving the father’s time with the children. Similarly, I have indicated that in relation to the other orders about which the parties are in disagreement, that a finding of domestic violence may very well be a matter of significant weight in determining the remaining issues, along with those agreed to.
As to the remaining issues, what is disagreed between the parties are the following:
a)The father seeks an order that the children, in addition to each alternate weekend, spend time with the father two afternoons per week and that the father will collect them from school, have their homework done and return them to the mother at 7 pm at the nearest shopping centre;
b)The father seeks orders not only for one half of all of the school holidays, which is agreed, but in addition, that Christmas Day is to be shared with the father spending time with the children for the first part of Christmas Day till 5 pm in 2013 and each alternate year thereafter, and the mother spending time from 5 pm Christmas Day until 5 pm Boxing Day each alternate year.
c)Another issue which is disagreed is in relation to extra curricular activities. The father seeks an order that both parties are able to attend to the children’s extra curricular activities and that neither party approach the other and shall attempt to remain on opposite sides of the sporting fields. The father also seeks an order that to facilitate changeover at the conclusion of the sporting activity, the father shall remain in the area of the sporting activity and shall not approach the mother and the mother shall remain in the car park area and shall not approach the father but shall send a text message advising of her expected arrival time.
d)Another issue that the parties disagree about is the father’s request for an order that in the event the father is not caring for the children at the time of his birthday and his birthday falls on a weekend or holiday, the children spend time with the father from 9am to 5 pm. The father seeks the same orders in relation to the mother’s birthday. The father also seeks an order that in the event either child’s birthday falls on a weekend or holiday, the parent not otherwise spending time with the child on that day will see them from 9am to 1pm that day. The mother is opposed to these Orders. The mother is concerned at splitting such days and having handovers which may result in conflict.
I have indicated to the parties that orders about each of the parties having authorities to obtain information from children’s doctors and health professionals and orders about each of the parties having equal responsibility for and consulting each other about children’s schooling and extra curricular activities as well may be influenced by an order for sole parental responsibility if such an order is made.
The mother seeks an order to which the father does not agree and that is that all non-school changeovers will occur to and from a contact centre.
The Law
This application is governed by the principles set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
In making parenting orders, the best interests of the child are the paramount consideration. The Act provides two primary considerations described by Justice Brown in Mazorski & Albright [2007] FamCA 520 as “twin pillars”. Her Honour stated: “The first is the importance to the children of having a meaningful relationship with both parents; the second is the need to protect children from physical and psychological harm. These are stressed in s 60B (1) which sets out the objects of the legislation relating to children and are reiterated as the primary considerations in s 60CC (1).’
Section 61DA refers to a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility for the child. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in abuse or family violence. The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
When I determine the best interests of [X] and [Y], I will consider the additional considerations set out in s.60CC(3). I will consider and evaluate each of the parties proposals for care of [X] and [Y], including the significance of the primary considerations in s.60CC (2) according to the legislative pathway. Reference will be made to parental responsibility and s.65DAA(5) and the issue of reasonable practicability s.65DAA (5) and the issues referred to in subsection (a) through to (e) in arriving at the ultimate conclusion.
I have had regard to the documents relied on behalf of each party, their oral evidence, their respective case outlines, the exhibits and the closing submissions made on behalf of each party.
In these reasons, statements of fact constitute findings unless indicated otherwise.
Witnesses
The Father
The father presented as having deeply held views that the mother had made up domestic violence allegations “which are being used as a tool to see more of the kids and stop me seeing the kids.”[1] This mantra was repeated by the father several times throughout the trial. The father also had expressed on various occasions his disapproval that the mother had not obtained full-time work to help with the financial burden of taking on an investment property. The father presented as holding deeply held grievances towards the mother in relation to him being left with the burden of having to work long hours in order to meet their financial commitments. It is clear that he regarded the mother as having fallen well short of paying what the father saw as her share of expenses in the marriage. The father has described himself as being stressed and suffering from depression. The father’s conduct in relation to the mother both at and following separation has been intimidating and controlling as can be seen in various incidents which are more particularly described under the family violence section of this judgment. The father presented as an angry man who attempted to minimise his own poor conduct and attributing it all to financial stress.
[1] Transcript page 118 at line 45.
In relation to the domestic violence order taken out against the father, the father stated that it had been done for strategic purposes by the mother and that despite his admitted conduct that, “I don’t deserve the DVO” and “she has got the DVO as a backstop which she is harassing the police with” and “I think she should have a DVO for the way she is treating me.”[2] I had a strong impression that the father was not coping well with the separation and that he had been intrusive in regard to his communications and interactions with the mother after separation as can be seen for example in his conduct at the accountants foyer (in which he asks the mother in the presence of [X], “are you pregnant yet” making reference to the mother’s relationship with her new partner and other circumstances described elsewhere in these reasons.)
[2] Transcript page 179 lines 30- 40.
The father has also been highly suspicious of the mother and appears to have a simmering anger toward her which had not abated as at the trial date in November 2012. The father, who has studied [omitted] but has chosen not to work in that field having instead returned to his initial career of an [omitted], seemed most pre-occupied with what he perceived as unfairness in the mother claiming expenses for their investment property. The father made threats to the mother in relation to making sure she receives “nothing” out of the property settlement. The father denies making such threats however, I am satisfied that this threat and other acts of domestic violence as referred to elsewhere in these reasons have been committed by the father.
The father sat largely stony-faced during his cross-examination. He strongly believes that the mother has been deliberately making his life more difficult post separation. He described the mother as “smiling at him” on the occasion at the accountants office and said that she was smiling “because she knew she was annoying me being there because I have paid all the – we were putting in our tax returns for the investment property that I had paid money for, so she knew it was annoying me.” The father also stated, “she just smiles, that’s what she does, just smile, yes, just trying to aggravate me.”[3] Conversely the father considers that when the mother has been distressed and tearful, that she was trying to annoy him.
[3] Transcript page 137 line 36.
I found the father to be an unreliable witness who has attempted to minimise his own threatening behaviour. I am satisfied that the father lacks insight into how intimidating and frightening his own conduct is and has been. The father admitted under cross-examination that he had lied to the police, though as with much of the evidence that was against the father’s own interests, the father was slow to admit that he had lied. The father stated when asked had he lied to the police, “No. It has got to be taken into context, Your Honour” the father went on to state that he suffered from depression and financial stress and that he was scared and that he did not “intentionally lie to the police.”[4] I reject this evidence.
[4] Transcript page 40 line 28.
I am also satisfied that the father has used the opportunities of handover of the children to further intimidate the mother and that he has shown little regard for the terms of orders for handovers to occur at a specific location. When orders provided for the father to collect the children at “the library” I am satisfied that he deliberately chose to head towards the mother and children in the dark car park as referred to in these reasons. I am also satisfied that the father has sought arrangements for the children which created the opportunity for handovers to occur late in the evening such as 7:00 pm twice per week in what are then dark car parks and used such opportunities to act out his anger or intimidating behaviour, as described by the mother.
The Mother
The mother, like the father, was self-represented. When the mother realised that she had to personally cross-examine the father she stated with some distress to the Court, “I would have questions, but I have to apologise, I feel physically sick having to talk to him.”[5] I am satisfied that the mother was genuinely emotionally overwhelmed at this prospect.
[5] Transcript page 38 line 16.
In relation to the domestic violence incidents and in particular the incident occurring March 2011, I accept the version of events as stated by the mother and I accept that she considered her life was in danger and that she was truly terrified.
The mother gave a very credible account of the circumstances surrounding the father’s conduct and became deeply distressed at re-living the events. The mother acted protectively in removing the children from the home as soon as she was able to do so. I accept the mother’s evidence that there had been many arguments prior to this date and that their household had become one of misery and unhappiness. After the father had been removed from the house by the police and was taken to hospital for assessment, the father admits that he blamed the circumstances resulting in him being taken away by police on the mother saying to her, “Are you proud of what you’ve done” and “you ruined my night.” I accept that the father called the mother a “bitch.”[6] I also accept the mother’s evidence of the father’s intimidating and ongoing controlling behaviour as referred to in her affidavit and as given in her oral evidence.
[6] Transcript page 63.
The mother believes that the father has taken some actions simply to penalise her for relocating and cites as an example his failure to offer to collect the children in Brisbane where he was working 2 or 3 days per week (and where the mother and children were living) and instead seeking orders that the mother deliver the children to him on the Sunshine Coast. This situation was bizarre in some respects as the evidence suggests that there were occasions when the mother drove to the Sunshine Coast to deliver the children to the father on days when he himself was working in Brisbane and was late driving back from Brisbane to the Sunshine Coast. The mother and children were sitting at the father’s house waiting for the father to also drive back from Brisbane. When the father was asked whether or not he had ever offered to do the driving I found his evidence evasive. Ultimately the father conceded that he could have collected the children from the mother on Fridays when he was working in Brisbane but he chose not to. The father stated, “I could have done a lot of things. Yes. She could of paid the bills too.”[7]
[7] Transcript page 153 lines 15-20.
The mother has been the uncontested primary carer of the children from birth. She impressed me as being very child focused. The mother, like the father has been diagnosed with depression. The mother states however that following her separation from the father she has recovered considerably and most of her symptoms of depression resolved.
I accept that the mother is in genuine fear of the father and I reject the contentions of the father that the mother’s alleged fear of him is false and exaggerated and done for strategic purposes.
Wherever the mother’s evidence contradicts the evidence of the father, in the absence of any independent evidence, I prefer the evidence of the mother.
Ms L, Family Report Writer
Ms L prepared a Family Report in this matter at a time when the father was opposed to the mother’s relocation and prior to his own relocation to Brisbane. Each of the parties was given the opportunity to cross-examine Ms L. Ms L noted that the mother “was obviously feeling intimidated by Mr Opper” in the context of the initial presentation at the office when both parents arrived for the first appointment (times having been misinterpreted).[8] The report writer also observed the father stepping into the mother’s personal space in the presence of the report writer.
[8] Family Report page 3.
The mother is noted as being committed and appropriate in relation to the care of the children and to facilitating their relationship, communication and time with the father.
The father was described as being initially nervous and intense and being intimidating towards the mother when their paths crossed on arrival. The report writer considered that the father had a tendency to minimise his contribution to the failed marriage, and in particular to issues of domestic violence and his own alcohol consumption. The report notes the father stating that he had difficulties accepting the separation and the fact that the mother had moved on and re-partnered. The report also includes reference to the father indicating having difficulties separating his own issues with the mother from issues to do with the children.
The report writer observed that the children presented as happy well-cared for children and that [X] and [Y] were obviously secure and content in the living arrangement with their mother. The children are noted as being affectionate and content with their father. Each of the children were content with the time that they were spending with the mother and no change of residence was recommended.
The report writer indicated in her oral evidence that if the level of conflict had not abated at the time of trial and noting the two breaches of domestic violence order by the father, that the report writer’s concerns about the level of conflict remain. Ms L considered that in high conflict situations with allegations of domestic violence and where parties are unable to communicate that her recommendation is to place strong boundaries in place so as no direct contact occurs with handovers occurring at school and communication occur by way of email and communication books. I note in the father’s evidence that he is, as with many matters, somewhat cynical of the mother’s use of the communication book, one of the father’s entries in the book is noted as follows: “this book is being used by yourself as some kind of ridiculous weapon to continuously change the so-called agreement to suit yourself and to feed me inappropriate comments that I have nothing to do with the boys.” [9]
[9] Transcript, page 133, lines 10-15.
Ms L was strongly of the view that if the conflict had not diminished and in fact had continued or become worse, this would result in the children, if exposed to such a dynamic, being in a chronic state of emotional anxiety. On this basis Ms L did not support the orders sought by the father for the additional mid-week contact and viewed such contact as being inappropriate and simply providing another opportunity for the children to become anxious. Ms L considered that it was important for the children to be able to lead a settled, stable and calm routine as they do with their mother and to then spend a period of time with the father each alternate weekend which is hopefully quality time and did not involve any association with the mother.
Ms L considered that the mother had been extremely traumatised by the father’s harassment and ongoing anger toward her. I have found Ms L’s evidence very helpful and generally her observations and recommendations accord with my own views of the parties and their evidence.
Section 60 CC Considerations
I will now turn to the relevant section 60CC matters.
S.60CC(2) The primary considerations are:
The benefit to the child of having a meaningful relationship with both of the child’s parents;
I accept that there is benefit to the children having a meaningful relationship with both parents. This needs to occur though so as the children do not suffer chronic distress as referred to by Ms L, the Family Report Writer.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this matter it is very clear that these two young children need to be quarantined and protected from the high conflict that continues to prevail between the parents. As can be seen from the children’s interviews with Ms L, [X] and [Y] were both present during the March 2011 knife incident. [X] gave evidence of being exposed to arguments including the incident in March 2011 in which he said, “I saw dad holding a knife at mum and I woke up [Y] and we saw it and went back to bed and we did not go back out because we were scared. [X] did not understand, “why he did that to mum.”
In addition to the children being directly exposed to the father’s violence it is clear that the mother has been the victim of the father’s terrifying and intimidating behaviour. He has followed her when driving and he has intimidated her when attempting to attend events such as the scout evening when the father insisted on sitting close to the mother and taking photographs of the mother. His behaviour ultimately led to the intervention of a third party. The father’s intrusive and intimidating behaviour in the accountant’s office as deposed to by the mother in her affidavit material and oral evidence was also carried out in the presence of [X] and required the intervention of third parties. The father’s conduct at the psychologist’s rooms also directly involved the children with the father once again creating a most distressing scene and directly and physically involving the children quite deliberately. Again, this scenario resulted in the intervention of a third party. Overall, I am satisfied that the father is incapable of setting aside his deeply held anger towards the mother even for short periods such as handovers. His conduct has led to the intervention in this family by the police, by an accountant when the parties were in the same foyer together, a scout leader when the parties were together at a scout evening and a psychologist when the mother, children and father were at the psychologists rooms. Ms L has given evidence about the effect of children being exposed to this ongoing conflict which I accept. I consider that it is imperative that the parenting arrangements between these parties provide for the children to be removed from such exposure and enable the mother to lead a life in which she is not continually subjected to the father’s intimidating and controlling behaviour on a regular basis when she is simply trying to hand the children over, attend their events or go about her business.
S.60CC(3)(a) Any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The Family Report, prepared by Ms L, has canvassed the issue of the children’s views with each of the children, who are currently aged nine and seven. The children, [X] and [Y], were interviewed by Ms L. She describes the children as being excited to have a turn to talk to the report writer. [X] spoke to the report writer in a mature and confident manner for his age. In regard to what are the good things about living with his mother, [X] said:
Everything is good, actually.
[X] told the report writer that no-one hits, hurts, harms him, hurts his feelings and so forth. [X] is happy with his school and said he is in grade 3 this year and he has friends at [M], the school he has attended in Brisbane since the relocation. [X] said he would like to stay there and that, whilst he always liked his old school on the Sunshine Coast, he is happy where he is now and he did not want to return to [omitted] School.
In terms of spending time with his father, [X] said that he and [Y] visit him (as was current at that time) at the Sunshine Coast on two weekends, and then one with mum, and then two with dad. And [X] said, “It’s good.” He said there were no problems in this regard. In regard to changing his life, presently [X] said he did not want to. He said he would like to keep doing what we’re doing in terms of moving between the parents. When asked specifically if he would like more time with his dad, [X] said:
That’s enough.
[X] was asked how his parents got on, and he said:
Okay. But actually, they would fight and one night I could not to sleep and I did not want to tell them that I saw dad holding a knife at mum and I woke up [Y] and we saw it and went back to bed. And we did not go back out because we were scared.
[X] said he did:
not know why he did that to mum.
[X] was asked if dad had done anything like that to his mum before and [X] said no. When asked if his dad had ever hurt him or [Y], he said no. When asked if either parent talked about each other or said bad things, [X] reported:
A bit; not much. Whenever we’re at dad’s, he does. But not much. He says stuff about her like, ‘She does this.’ I don’t know if we … if we tell her (mum) that he says things about her. She says he is mean and she told us about the knife thing that we already knew.
[X] was asked how he felt about his parents no longer being together and he said, “Glad.” When asked if he ever worries about his dad hurting mum, [X] said, “Yes. Maybe.” In regard to two wishes, [X] reported:
I would wish that they would not fight and they would live in the same house.
He said he had no problems with [name omitted], his mother’s new partner, and his mum living together. [X] commented on the travelling being a bit long. He said he would rather his dad lived in Brisbane. When asked if he would like more time with his dad if he lived in Brisbane, [X] said, “No. Just like now.” When asked about holidays, [X] said he likes it the way they are; half and half.
In relation to the interview with [Y], he also spoke in a confident and articulate manner for his age. He said to the report writer, as to why he was getting to talk to the report writer:
I think it’s about the fighting; mummy and daddy fighting. They fight. They started fighting, like, at the beginning of last year.
[Y] was asked whether or not he had seen the fighting and [Y] said:
Yes. And I remember seeing my dad putting a knife against my mum’s neck. It was in the middle of the night. We were in bed. I saw out it of the window. They were in the back yard.
When this was clarified, he said:
[X] told me he saw it. Dad put the knife in mum’s neck, but I don’t know where they were.
When asked specifically if [Y] had seen it, he said “no”. Then he added:
They fought for a long time and then mum moved house and then we moved to Brisbane.
He commented that life in Brisbane with his brother and mother and the mother’s new partner was better. He said no one hurts him, harms him, hurts his feelings, except that people at school or at the park, “But I don’t know their names.” [Y] indicated he enjoyed spending time with his father. He said he was in grade 2 and he was happy there. He was asked which school he liked best, and he said:
“The school at [M] and I like the school at the Sunshine Coast too. I like both.”
He said this year, though, he was going to [M] School and that is what he wants. He was asked who he likes to be with most and who he would like to look after him if he is sick or tell a problem or get him from school. He thought about this and stated, “Mum.” He said he likes to spend time with dad as he does now. He noted also that it was tiring travelling between the two households, being one on the Sunshine Coast and one in Brisbane.
I am satisfied that the children have each expressed a wish to remain living with their mother primarily and that they were content with the time that they were spending with the father at the time of the interviews. I have accorded the relevant weight to their wishes, noting their ages of nine and seven. I am satisfied that the children have been directly exposed to family violence.
S.60CC(3)(b) The nature of the relationship of the child with each of the child’s parents; and other persons (including any grandparent or other relative of the child)
I accept that the children are strongly attached to their mother with whom they have always lived and who has always been their primary carer. The mother says in her affidavit material that following the birth of her children she worked part-time and that she took the children to school, helped them with her homework, cared for them when they were ill, cooked their meals, bathed them and attended to their overall needs. I accept this evidence.
The mother stated that the father was not a very hands-on father and that whenever the children were fussy or needed something, the father preferred to hand them back to the mother. Whilst I don’t doubt that the father loves his children dearly, he has only limited experience of solely parenting the children and that seems to have primarily occurred on weekends since separation. I accept the report writer’s observation that the children are securely and lovingly attached to the mother and were affectionate and content with the father. I am also satisfied that the children understandably regard their mother as their primary carer as this has always been the case.
The children are also aware that the father has a tendency to make derogatory comments about their mother’s behaviour directly to them as can be seen in the comments made by [X].
S.60CC(3)(c) The willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent
I accept that the mother has continued to promote the children’s relationship with the father post-separation despite being subjected to the father’s confronting and intimidating behaviour. Given the obvious level of fear shown by the mother toward the father, I consider that the mother has been very committed to ensuring that the children’s relationship with the father continued despite the mother’s own difficulties and feelings.
I am not satisfied that the father has been willing to promote a relationship between the children and their mother. He harbours strong resentment towards the mother. The father has taken his anger out on the children at times. I am mindful of the evidence of [X]’s comments to the effect that the father is critical of the mother’s behaviour. The father has regularly been controlling towards the mother in the presence of the children. I also consider that the main reason for the father’s requests to spend at least two afternoons each week with the children and return them at 7:00 pm to the mother, as has been happening since he moved to Brisbane, has been so the father maintains contact with the mother. There have been too many occasions in which the father has contravened or disrupted the arrangements for the Court to accept that the father genuinely intended simply to spend time with the children. Repeatedly, the father has attempted to approach the mother or follow her or change the arrangements which inevitably results in the mother being distressed and intimidated. I reject the father’s evidence to the effect that on each of such occasions he was simply trying to spend time with the children or simply trying to collect them.
S.60CC(3)(d) The likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from either of his or her parents; or any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The parties have agreed that the children will live primarily with the mother and spend each alternate weekend with the father. The issue which the Court is to determine involves additional time being requested by the father on two afternoons each week, special occasions and handovers.
An issue which is central to this matter is protecting the children from the ongoing conflict between the parents and the consequences of the family violence that has been perpetrated by the father.
The orders proposed by the father will result in at least four additional handovers each fortnight and as has happened in the past, would result in the mother and children being out of their homes at 7:00 pm twice per week on a school night having handovers in public places such as car parks. I am satisfied that when this has occurred in the past the children have been exposed to serious and physical conflict which has required at times the intervention of other parties. When the mother has attended at the father’s home the father kicked, or “kneed” as the father put it, the mother’s vehicle causing damage. This was done purely in anger.
Regrettably, whilst the father loves his children and despite doing an anger management course in November 2011, I am not satisfied that he is yet able to control his strongly held negative and angry feelings towards the mother in the presence of the children. The mother has referred to recent and ongoing family violence events in her affidavit prepared for the trial[10] in which the father has approached the mother at handovers with “angry eyes, clenched fists and the corner of his mouth twitching”. The father has only deviated from approaching the mother (contrary to orders) when she has beeped the horn in the car park. The father continues to make “rude finger gestures toward the mother.” These incidents have resulted in the children becoming distressed and in a panic, and seeking assurance from their mother as set out in the mother’s material. The father continues to make derogatory taunts toward the mother such as “[Ms Laine], [Ms Laine], grow up you stupid bitch”. Some of these matters have been reported to the police and as a result of one of the incidents, the mother’s domestic violence order was varied to provide for extra conditions. At the time of trial, further breaches of the domestic violence were pending.
[10] Mother’s affidavit filed 26 September 2012.
The father also appears to be taking out his anger on the children and I accept the mother’s evidence of the children becoming upset and crying after the father’s telephone conversation with them on 24 September 2012.
The father has used the children’s mobile telephone which is allegedly in place so the father can ring the children at any time (and which I note is entirely paid for by the mother) to send approximately 215 text messages, 75 percent of which are marked for the mother’s attention, some of which the mother describes as “rude and explicit.” When cross-examined about these text messages the father attempted to deny that anything like that number had been sent by him and stated that he was not aware of such messages. This was up until his attention was drawn to annexure 5 of the mother’s affidavit which consisted of a scheduled list of many of the text messages received. The father’s tendency was to deny evidence against his own interest unless shown evidence which was irrefutable at which time he would then accept the evidence. The father’s denials regarding the text messages sent by him are an example of this conduct.
In addition to the matters referred to, there is a history of the father breaching the domestic violence orders, on at least two occasions. In addition the father admits that he had sent the mother emails 3 hours after the first domestic violence orders were made. As I have said, at the time of trial, there are further breaches pending in the State Magistrates Court.
It is of significant concern to the Court that the father appears to use opportunities of handovers to perpetrate fear and further intimidate the mother and also directly or indirectly the children.
S.60CC(3)(e) The practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis
The father has now moved to Brisbane and there are no significant issues which arise from the geographical distance between the parties.
The practical difficulties of the children spending time with the father and communicating with the father revolve around the issues of the father’s ongoing resentment and anger toward the mother as referred to elsewhere in these reasons. The issues which arise from the father’s ongoing hostility toward the mother and the anxiety experienced by the children directly affect the best interests of these children and their opportunities to spend time with their father. This ongoing resentment directly affects handovers and the emotional well being of the mother and children and I give significant weight to this issue.
S.60CC(3)(f) The capacity of each of the child’s parents; and any other person (including any grandparent or other relative of the child) to provide for the needs of the child, including emotional and intellectual needs
I am satisfied that the mother is a loving and attentive mother with the capacity to appropriately provide for all aspects of the children’s emotional and intellectual needs. The mother has done this for all of the children’s lives.
Whilst the father no doubt loves the children dearly, I am most troubled about the capacity of the father to understand or show any insight into the affect of his own conduct as acted out on various occasions in the presence or hearing of the children. The father’s failure to concede the extent of his terrifying conduct at the time of separation is seen in his poor memory of the incident. He attempts to minimise his own conduct and his questioning of the mother during this trial as to whether or not her version of events was accurate given his allegation (which I do not accept) that the mother was not taking her medication for depression at the time which would have therefore clouded her memory of events.
The father admits to being so angry before he arrived home that evening, that he drove around for two hours after leaving work before going home.
He admits to arriving home after driving around for two hours and taking 2 bottles of wine into the bedroom and consuming most, if not all of that wine. He admits to picking up a 12 inch kitchen knife whilst being angry (and drunk) backing the mother up against a wall. The father’s evidence is that he was threatening to harm himself and not hurt the mother. The father suggests the mother ought not to have been frightened. It is inconceivable that the mother was not terrified in the circumstances even as described by the father. [X] at least and possibly [Y] saw the actual event and the children were too frightened to come out of their rooms and remained silent. [X] has described the frightening events he saw. Following this event the father has continued to shout, follow and intimidate the mother at times when the children have also been present.
I am therefore quite satisfied that the father shows no insight into the affects of this conduct upon the children and the likely long term harm he is causing as described to the parties by Ms L. I am not satisfied that the father has the capacity to provide for the children’s emotional wellbeing. In terms of their intellectual wellbeing, at this point in the children’s lives, the father has been content to leave issues of schooling to the mother.
The father attended at the children’s Scout evening which is an educational activity however, the father managed to intimidate the mother and create a scene even in that setting. I am satisfied that the father seeks involvement in the children’s activities partly to give him an opportunity to create difficulties and intimidate the mother.
S.60CC(3)(g) The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
I have nothing to add under this section.
S.60CC(3)(h) If the child is an Aboriginal child or a Torres Strait Islander child, the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture) and the likely impact any proposed parenting Order under this Part will have on that right
Not applicable.
S.60CC(3)(i) The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
There is little I can add under this section that has not already been stated elsewhere in these reasons. I regard the father’s conduct in this matter as having a profound negative effect upon his attitude toward parenting.
It is to be hoped that once this litigation comes to an end (including the financial matters) that the father and mother can move to a position of being able to enjoy their time with the children and the responsibilities that go with parenting without the ongoing conflict which has been characteristic of their relationship for at least two years. I intend to order that each of the parties attend the post orders parenting program to assist in this regard. I note that Federal Magistrate Cassidy ordered that each of the parties attend a PPP Parenting Course on 6 October 2011. The father’s material suggests that on 12 September 2012 he attend a 90 minute seminar on children’s development and behavioural issues. I consider that in this matter that the Post Orders Parenting program offered by Relationships Australia which is typically conducted over a six or eight week program covering issues of communicating with children and former spouses post-separation is most appropriate.
S.60CC(3)(j) Any family violence involving the child or a member of the child’s family; and
S.60CC(3)(k) Any family violence order that applies to the child or a member of the child’s family, if the order is a final order; or the making of the order was contested by a person
In this matter, the mother has made some serious and ongoing complaints about the father’s aggressive and violent behaviour. It is the mother’s evidence that her and the father’s relationship broke down and their marriage came to an end because the father was moody and often in a bad temper and there were many arguments. She described their household as being a very unhappy household and them having an unhappy life.
A domestic violence order was taken out by the police on behalf of the mother on 27 April 2011. There have been two breaches since that time which included the father kicking the mother’s car out of frustration and the father sending threatening, harassing and rude text messages to the mother in June/July 2011. The father has been charged with the breaches, found guilty and fined. At the time of trial there are further breaches pending.
The father does not seem to disagree that they had arguments. However, he does not accept that the arguments were because he was moody. He states that the arguments that they had were always around finances.
Throughout the father’s evidence, all incidences of alleged domestic violence or argument were generally drawn back to an issue of finances. The father appears quite intense on this issue.
I have heard the evidence of the mother and I accept her evidence that she has been subjected to some serious and quite terrifying behaviour by the father. The father has been questioned about an incident which occurred in July 2011. I have referred to that scene at the parties home elsewhere. On his own evidence he was very stressed in his work as an [omitted]. Having collected two bottles of wine from the fridge, the father went into the bedroom to watch the Friday night football.
The mother entered the room and saw him initially drinking out of a glass and then ultimately out of a bottle. The father agrees that he did this. At about 10:00pm or 10:30pm that night, the father, who had been drinking consistently in that time and says by this time he might have had one and a half to two bottles of the wine, the parties engaged in an argument in the kitchen. The father agrees that he picked up a knife, a carving knife, which he indicates to be at least 12 inches long. He declined to say that he was angry, though I am satisfied he was.
The father held the knife threateningly toward the mother. The mother says he held the knife up and moved toward her. The father’s evidence was that he held the knife and held it to himself, saying words to the effect,
Do you want me to push it in?
The mother recalls only that the father was screaming out at her and moving toward her, so much so that he backed her up against the pantry door and she had nowhere else to go. The father accepts he was in the mother’s personal space. The mother says he held the knife very close to her throat. She has a vivid description of her heart racing and feeling absolutely terrified.
Ultimately the father moved away, picked up the car keys and left for a period. I accept the mother’s evidence of the events that occurred on that night. I am satisfied that the father has tried to minimise and sterilise the events. The father says he parked a couple of blocks away, admitting then to driving the car whilst obviously under the influence. The mother ultimately sought the assistance of a friend. However, the father came back to the house. The mother locked herself in a spare room.
Earlier in the evening, prior to the fight/argument, the father agrees that whilst the mother was in the room, trying to keep away from the father, that he picked up furniture and threw it at the window. I accept without reservation, having watched the mother give her evidence and try to cross-examine the father about these issues, that she has experienced, as I had said, an extremely terrifying event.
Later that night, the father, who was then taken away by the police and who admits to this court that he lied to the police about whether or not he was holding a knife and he also lied to a counsellor when the police took him to hospital, given the state he was in. On the way to the hospital, about 3:00 am or 4:00 am, the father contacted the mother. He sent her various texts. He abused her. Although the father perpetrated the violence in the household, he can be seen blaming the mother. He accused her to the effect of, “Look what you have done now.” I can see from the father’s material and his evidence that he has an underlying resentment of the mother for involving the police and other agencies in this matter.
The mother collected the father from the hospital. He started to abuse the mother and she threatened to pull over and stop the car and make him walk home himself. I think ultimately the evidence is that the father got out of the car at his own insistence and walked home. The mother returned to the home and locked herself in the spare room finally leaving after she heard the father return home and go to bed.
Other incidents
There are various other incidents as set out in the mother’s material which have involved the father giving the mother the finger, the father not complying with orders to wait, for instance, in the library but meeting her downstairs in the car park. There are abusive text messages. In fact, three hours after the domestic violence order was made for the father, he sent the mother text messages in breach of the orders. He has breached the orders, on his own evidence, three, possibly four times. There is another breach pending.
The father does not seem capable of complying with the terms of the order. In my view, he is somewhat overwhelmed by this separation. He has an almost pathological belief that the mother is making up domestic violence in order to, as he repeatedly said throughout the trial, use it as a tool and that she has used the domestic violence as a tool for financial gain. I do not accept this contention. I have no doubt that the father has acted in a manner sufficient to justify the making of a Domestic Violence Order.
The father, in my view, is quite intent on setting up arrangements to ensure that he has to see the mother at least twice a week, alone in a car park or alone in a shopping centre. On this basis I am very troubled by the father’s proposals for midweek contact and handovers to be happening at 7:00 pm at night. I find his proposals quite problematic.
I am also satisfied that the father has no insight at all as to the effects of domestic violence on children and that is evident from the questioning of him upon Ms L.
These findings obviously weigh very heavily on me in looking at and determining whether or not there should be midweek visits with these children as proposed by the father, and in relation to telephone contact and other parenting arrangements. FM Cassidy was not appraised of the evidence which was given during the trial and the incidents which have occurred since FM Cassidy’s orders were made, in my view represent a significant change of circumstances in regard to the father’s ongoing intimidation and the previous orders.
He believes the mother is doing things to “get at him.” When she turned up at the accountant’s office on the same day that he did, he was quite convinced that she somehow knew he would be there and scheduled an appointment to arrive at the same time. Upon further questioning of the father, I found his belief entirely misconceived. There was no way the mother could have known when the father had an appointment, which the father ultimately had to begrudgingly admit.
The father was not able to contain himself at the accountant’s office and an intervention was required by an accountant at a point in time when the father was directing comments to the mother. There was a similar occasion at the Scout night as referred to earlier in these reasons.
I find that the father has ongoing unresolved issues and resentment towards the mother. In terms of communication, I consider that the father’s ongoing anger and mistrust of the mother is going to permeate all of their communication.
I accept the mother’s evidence as to the incidents of domestic violence as referred to by her in both her oral evidence and affidavit material.
I give significant weight to the incidents of family violence when determining the children’s living arrangements and time spent with the father.
S.60CC(3)(l) Whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child
Each of the parties in this matter has been significantly affected by the breakdown of the marriage, as have the children. Each party has been diagnosed with depression. The children remain affected by and exposed to the father’s hostilities towards the mother. In the circumstances it is imperative in my view that the litigation comes to an end.
Given the ongoing intimidation and past breaches of domestic violence orders and the father’s continued displays of anger toward the mother as set out in her most recent affidavit, I consider that making orders which provide for the children to move between the parties two afternoons every week together with each alternate weekend is likely to lead to further litigation. I have no confidence that all of the handovers required would happen peacefully. I am also very troubled that the children would have more exposure to the father’s resentful and angry attitude towards the mother when spending additional time with him, particularly when those times culminate in an evening handover.
The mother’s orders sought would enable the children to maintain a secure and stress free solid period of time during each school week and divide their weekends evenly between the mother and the father. I consider that it is less likely that the mother’s orders will lead to further litigation.
The father also seeks orders that the children always spend one half of each birthday with each parent and always spend (other than school days) the father’s birthday and the mother’s birthday with the mother. The difficulty with all handovers in this matter is the possibility of exposing the children to ongoing conflict and anxiety. The Court would only be prepared to contemplate additional time such as the father’s birthday or the children’s birthdays if the children were protected from such exposure. I have no confidence that direct handovers between the parties, or in public places, will protect the children given the past events. Similarly, whilst in an ideal world, both parents would attend all the children’s schooling and sporting events, I have no confidence that the father could conduct himself appropriately and peacefully at events which he and the mother both attended. Making orders for the parties to remain at opposite sides of a room or oval as proposed by the father, would not, in my view, provide the answer as the Court can have no confidence that the father would comply with such an order, given his several breaches of the domestic violence order.
S.60CC(3)(m) Any other fact or circumstance that the Court thinks is relevant
I have nothing to add under this heading.
Equal shared parental responsibility
The parties in this matter at the beginning of the trial have agreed that an order for equal shared parental responsibility ought to be made. As stated elsewhere, I informed the parties that the Court may not necessarily agree to make such an order once the evidence has been heard.
I am satisfied that given my findings in relation to the family violence that has occurred between the parties, that the presumption of equal shared parental responsibility does not apply.
Given my findings elsewhere in these reasons and the father’s continued acts of aggression towards the mother and the significant concerns I have regarding the father’s capacity to parent and his responsibilities towards parenting as expressed elsewhere in these reasons, I am not satisfied that it is in the best interests of these children that an order for equal shared parental responsibility be made. I consider that requiring these parties to reach a joint agreement about issues to do with the long-term care, welfare and development of the children involving issues of health, education and religion (amongst others) would result in further conflict between the parties and that directly or indirectly, that conflict will effect the children. I would anticipate the father using such discussions to act out further hostilities towards the mother.
I therefore intend to make an order that the mother have sole parental responsibility in relation to the children.
Evaluation of the best interests
I have considered all of the evidence of each of the parties and the Family Report Writer in this matter. The matter which has taken on most significance in determining the parenting arrangements for [X] and [Y] is the family violence perpetrated by the father against the mother, the father’s lack of trust in the mother and ongoing hostility toward her, the children’s direct and indirect exposure in the past to family violence and their likely exposure in the future. The children have always lived with their mother and sensibly the parties have agreed that this arrangement should continue. I consider that it is in the children’s best interests that they live primarily with their mother.
In terms of spending time with the father I consider for the reasons set out in this judgment that the children should spend limited time with the father but sufficient to enable them to have a meaningful relationship with him. The proposals by the father to add a further two days each week to the agreed arrangement is not, in my view, in line with the children’s best interests. I consider it more than likely that to make such an order will simply result in further conflict on a weekly basis between the parties and will involve the children directly. I accept the recommendation of the Family Report Writer who is similarly concerned about the children having a stable, secure and calm existence with their mother free of the possibility of becoming anxious and distressed at regular changeovers during the week.
In terms of the orders sought for the children to spend time with the father on his birthday and the mother on her birthday, the mother does not seek such orders as she is not confident that such arrangements will be beneficial for the children if they continue to be exposed to the father’s hostility. The mother holds the same view in relation to the children’s birthdays and maintains that the parent who does not see the children on the children’s birthday can celebrate the children’s birthday either before or after the relevant day. In terms of the children’s own birthdays I accept the mother’s submission that the children will enjoy celebrating their birthdays on more than one occasion and that either parent can celebrate the birthday either before or after the birthday. I accept also that often children’s birthday parties are often held on days other than the actual birthday.
As is clear from these reasons I intend to order that the children live with the mother and spend each alternate weekend with the father commencing on Friday after school (or Thursday if Friday is a non school day) and concluding at the commencement of school on the following Monday morning (or Tuesday in the event Monday is a non school day). I also intend to order that the children spend one half of each school holiday period with each parent and that all handovers that do not happen at school happen at a contact centre. The mother has provided details to the Court as she was directed to do of the nearest contact centre. I will order that each of the parties enrol at the contact centre at Foundations Care, Brisbane Street, Ipswich. In the event that Foundations Care is no longer available for use, the parties are to enrol at Relationships Australia children’s contact centre at [omitted]. In the event that either of those contact centres became unavailable, the parties are to use a contact centre as nominated by the mother. I am satisfied that the use of a contact centre is warranted given the conflictual handovers which have occurred in the past.
In relation to the children spending time with the father on the father’s birthday and the children’s birthday, I intend to order that the children will only spend time with the father on the father’s birthday if that day does not fall within the mother’s school holiday period and on the condition that the father collects the children from school if the birthday falls on school day and return the children to the relevant children’s contact centre at either 5:00 pm or 6:00 pm depending on the closing hours of the centre.
If the father’s birthday falls on a weekend, the parties are to do all acts and things to swap the father’s alternate weekend to ensure that the children are with the father on the father’s birthday. This will not however occur if the date falls within the time that the children would otherwise be spending holiday time with the mother.
In relation to the children’s birthday I intend to order that the father will spend time with children only on the basis that handovers occur either from school or to and from the contact centre. If the childrens’ birthdays fall on a non-school day, the handovers will all occur to and from the children’s contact centre and the father is to spend from
12:30 pm until 5:00 pm (or 6:00 pm if the contact centre remains open until that time) with the children in the event that they are not otherwise with him and on a school day from after school until 5pm or 6pm if the contact centre remains open until that time. The father however, will not spend this time with the children if their birthdays otherwise fall within holiday time provided for the mother in the orders I intend to make.
If the mother’s birthday falls on a weekend that the children are otherwise with the father the parties are to do all acts and things to swap the weekends so as the children spend that weekend with the mother, provided this time does not interfere with the father’s holiday times which will be provided for in the orders.
Having made the findings in relation to domestic violence which had not been made when FM Cassidy made orders, similar orders will be made in relation to Mother’s Day and Father’s Day that the weekends be swapped, provided they don’t fall in the other parents holidays. This will reduce handovers and therefore the opportunity for conflict. I have no confidence that Christmas Day handovers will operate without conflict and I intend to make orders for the first half and second half of each Christmas holiday period so that the children spend Christmas with each parent alternating from year to year rather than changing over on Christmas Eve or Christmas Day.
I do not accept that an order enabling the father to ring the children any time, any where is appropriate given the level of conflict and family violence and the father’s conduct in becoming angry with the children and the mother. I consider that such an order would invite conflict at each phone call, either with the children or the mother and would leave the children vulnerable to hostility at any time. I intend to order that the father communicate by telephone with the children twice a week only, with the mother to nominate the two most convenient days and times taking into account the children’s extra curricular activities and eating times. During the holidays, each parent is to facilitate one telephone call per week between the children and the other parent, during the weeks the children are in their respective care.
The mother is to facilitate the children contacting the father by telephone at other times, should the need arise or the mother considers that the circumstances warrant further communication.
I do not consider that it is in the children’s best interests to have the mother and father attending school events and functions together. This has not worked out peacefully in the past. I consider the hostility is too great on the father’s part. Significant events such as school concerts, speech nights, sporting break ups and trophy nights and other special events are to be identified by the mother and she is to ensure that she offers the father the opportunity to attend from time to time at such events. The mother is to attempt to structure her own and the father’s opportunity to attend such special events in an even handed manner so that opportunities are afforded for the father to attend, in her absence, on approximately equal terms to herself. This opportunity does not extend to the father attending routine events at school or extra curricular activities occurring on days that the children live with the mother, unless he is specifically invited to attend, in writing by the mother and complies with all terms of the orders I intend to make in this regard.
Other than for events which occur during the father’s time spent with the children pursuant to the terms of this order, I intend to restrain the father from attending any school events or sporting events or extra curricular events which occur during the time that the children live with the mother other than those he has received a written invitation to attend from the mother, at which time the father will be required to provide a written response (text or email) to the mother confirming whether or not he will be attending within 48 hours. If the father does not reply to the mother’s invitation in writing, he is restrained from attending the relevant event. In other words, outside of his own collection times at school, he is restrained from attending school unless he has the written agreement of the mother for him to do so. The same provision will apply in relation to extra curricular activities. The father is not to attend unless he has the prior written agreement of the mother.
In relation to attending parent/teacher interviews, the father is to organise to attend parent/teacher interviews separately from the mother. To enable this to occur, the mother is to inform the father when she will be attending for her interviews and the father is to organise an alternate appointment. This provision is to enable the father to attend at school at his own collection times only, save and except when he is offered the opportunity to attend special events by the mother in writing. The mother is to use her best endeavours to ensure that the father is given the opportunity to attend special events occurring at school or extra curricular activities, throughout the year, alternating from time to time with her own attendance. I am confident that the mother will ensure that this occurs.
I am also satisfied that it is in order to make orders that these parenting orders can only be changed by a further order of the Court pursuant to section 64D of the Family Law Act. I am satisfied that the circumstances referred to in these reasons relating to the father’s aggressive and controlling conduct are sufficient to warrant this provision.
I certify that the preceding one hundred and thirty-three (133) paragraphs are a true copy of the reasons for judgment of Willis FM
Associate:
Date: 12 February 2013
0