Paddon and Tighe
[2019] FCCA 1154
•23 April 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PADDON & TIGHE | [2019] FCCA 1154 |
| Catchwords: FAMILY LAW – PARENTING – Child aged 4 – dispute about where the child should live – where the child is happy and settled in the father’s care and should remain there – dispute about the child’s time with the mother – where the mother has been convicted of assault, stalk intimidate and breaching an ADVO in respect of the father and the paternal grandmother – where the mother has two children with a former partner – where the mother has numerous convictions for stalk intimidate and breaching ADVOs in respect of that partner – where there has been violence in the mother’s home involving the mother and her children with her former partner – where one of those children was removed from the mother’s care last year by the Department of Family & Children’s Services – where there is an unacceptable risk of the child the subject of these proceedings being exposed to family violence and abuse if he spends unsupervised time with the mother – where the father proposed that the child spend supervised time with the mother on four occasions each year – where that was supported by the Independent Children’s Lawyer – order made to that effect –father to have sole parental responsibility for the child. |
| Legislation: Family Law Act 1975 (Cth) ss.60CC, 61DA |
| Applicant: | MR PADDON |
| Respondent: | MS TIGHE |
| File Number: | NCC 938 of 2017 |
| Judgment of: | Judge Terry |
| Hearing dates: | 8, 9 & 10 April 2019 |
| Date of Last Submission: | 10 April 2019 |
| Delivered at: | Newcastle |
| Delivered on: | 23 April 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Dart |
| Solicitors for the Applicant: | Everingham Solomons Solicitors |
| The Respondent: | In Person |
| Counsel for the Independent Children’s Lawyer: | Mr Bateman |
| Solicitors for the Independent Children’s Lawyer: | Emalene Gemmell Family Law |
ORDERS
All previous Orders are discharged.
The child [X] born 2014 (“[X]”) shall live with the father.
The father shall have sole parental responsibility for [X].
Within seven (7) days of making a decision in exercise of his parental responsibility the father is to notify the mother in writing of the decision made.
The mother shall spend time with [X] on four (4) occasions per year for two (2) hours on each occasion supervised by the Family Contact Service or such other professional supervisor or service nominated by the father from time to time and for this purpose:
(a)By 1 May 2019 and thereafter by 1 February each year, the father is to notify the mother in writing of the dates and times for supervised contact arranged by him for that year.
(b)As far as practicable, the father is to arrange such visits to be proximate to Easter, Mother’s Day, the child’s birthday and Christmas.
(c)The mother be permitted to have [U], [V] and/or [W] attend such visits.
(d)The mother be permitted to provide [X] with photos, gifts and cards during such visits and the father to ensure that such photos, gifts and cards are retained and accessible to [X] unless the father deems their contents to be inappropriate.
(e)The father be responsible for the cost of such supervision.
The mother’s time with [X] shall be conditional upon the mother complying with all directions of the supervisor and/or supervising agency from time to time NOTING THAT if the Family Contact Service declines to further supervise the mother’s time with [X] then there is no obligation upon the father to nominate or arrange an alternate supervision service.
Within seven (7) days of today’s date the mother is to provide the father’s solicitor with an email address at which she can be contacted, and thereafter this email address (or such further email address as may be advised by the mother in the future) shall be used for the following:
(a)to notify the mother of any decision made by the father in exercise of his sole parental responsibility as provided for in Order 4;
(b)to notify the mother of the details for contact visits as required by Order 5(b);
(c)to provide the mother with copies of the [X]’s pre-school and school reports from time to time; and
(d)to inform the mother in the event of any serious illness or injury concerning [X].
Pursuant to s.68B of the Family Law Act 1975 (Cth), the mother be and is hereby restrained by injunction from:
(a)Attending any pre-school or school where [X] may from time to time attend without the prior written consent of the father;
(b)Having or attempting to have contact with [X] other than as permitted by these Orders NOTING THAT this Order does not operate to prevent the mother from greeting [X] should she see him in a public location;
(c)Removing or attempting to remove (either directly or through a third party) [X] from the care of the father or from any other person who may be supervising [X] at the father’s request;
(d)Attending or entering the any home that [X] may from time to time reside;
(e)Abusing, belittling, stalking, harassing and/or intimidating [X], the father or any other person with whom the father is in a domestic relationship;
(f)Attending any of [X]’s sporting or other extra-curricular activities save and except where she has obtained the prior written consent of the father; and
(g)Except in the case of emergency, contacting or attempting to contact the father other than via email.
The injunctions provided for in Order 8 are made for the personal protection of [X] and the father.
Pursuant to s.11 of the Australian Passports Act 2005 (Cth), the father be permitted to obtain a passport, or renewal of same, with respect to the child [X] born 2014 without the consent of the mother having been obtained.
[X]’s passport shall remain in the custody and control of the father.
Pursuant to s.65Y of the Family Law Act 1975 (Cth) the father be permitted to travel outside the Commonwealth of Australia with [X] or permit [X] to do so at his sole discretion.
The Independent Children’s Lawyer’s application for costs is dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Paddon & Tighe is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT NEWCASTLE |
NCC 938 of 2017
| MR PADDON |
Applicant
And
| MS TIGHE |
Respondent
REASONS FOR JUDGMENT
Introduction
These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.
This matter involves a dispute about parenting arrangements for [X], aged 4.
The parents separated in about July 2016 when [X] was two and litigation began in March 2017.
When the litigation began [X] was living with his mother and spending time with his father. After the litigation commenced orders were made in the same vein but on 13 July 2018 orders were made for a change of residence. Since then [X] has lived with the father and spent time with the mother each alternate weekend from Friday to Monday during school terms and for half of the school holidays.
At trial the father sought an order for sole parental responsibility and an order that [X] continue to live with him. He said that he no longer agreed to [X] spending unsupervised time with the mother, at least at present, and he gave some reasons for this including the fact that the child had been withheld by the mother twice since the interim orders were made which had caused disruption for the child and a need to return to court.
It was the father’s case that history suggested the mother thrived on chaos and would keep creating it. He was also concerned that [X] would be at risk of exposure to family violence in the mother’s home because of the actions of the mother, her older daughter [U], and if he returned to live with her, her older son [V]. He was also concerned about the mother’s drinking and alleged lack of supervision of the children.
It was the father’s case that there was a considerable risk that if a tough stance about the mother’s involvement in [X]’s life was not taken, [X] would end up in care as had recently happened for [V] aged 12, and might also end up estranged from him, as had happened for [U] and [V] in respect of their father Mr C.
In his case outline document the father proposed that the mother spend supervised time with [X] for two hours a fortnight for twelve months and that thereafter unsupervised time on alternate weekends and half school holidays resume.
However after all the evidence was taken the father’s proposal was that [X] should spend supervised time with the mother on four occasions each year.
The father sought an order which would enable him to obtain a passport for [X] and travel internationally with him. He said that he planned to go to Country D in the middle of the year but had ambitions to travel to other places later on.
The mother sought an order that [X] return to live with her. She said that it was the father who was violent and consumed too much alcohol and that he failed to provide adequate supervision for the child and frequently left him in the care of the paternal grandmother who also drank too much. Most importantly she said that [X] was more closely bonded with her and would prefer to live with her and his new baby sister, [W].
The mother denied many of the allegations about incidents involving [U] and [V] although not all. However she said that the problem with [V] lay with him not being properly medicated for ADHD and that [U] was now 15 and had settled down and did not pose a risk of harm to anyone.
The mother proposed that [X] spend alternate weekends and half school holidays with the father.
The mother put forward two alternative proposals. One was that [X] live in a week-about shared care arrangement and the other, and one she preferred the least, was that the child continue to live with the father but also continue to spend time with her as he was doing at present.
The mother sought an order for equal shared parental responsibility.
The orders proposed by the Independent Children’s Lawyer were that [X] live with the father and that the father have sole parental responsibility for him. However she proposed that the father be required to notify the mother of any major long term decision which needed to be made and give her an opportunity to make her views about it known before he made the decision.
The Independent Children’s Lawyer proposed that [X] spend time with the father four times a year supervised by the Family Contact Service in Town E for twelve months and proposed a recommencement of unsupervised time once twelve months had passed. The Independent Children's Lawyer however recognised I think at the end of the trial that there was a real possibility that the Court might not feel able to move on to unsupervised time.
The Independent Children’s Lawyer proposed that the father be able to suspend the orders if the mother retained [X] provided that he applied to the Court within seven days of such a suspension.
The Independent Children’s Lawyer supported [X] being able to obtain a passport and travel with the father.
The evidence
The father relied on two affidavits, one of which he prepared for trial last year and one allegedly updating the earlier affidavit although there was actually considerable overlap and verbosity; why I had to be told in detail twice about [X]’s daily routine including about him collecting and counting hens’ eggs I do not know.
The father also relied on the affidavit of the paternal grandmother, Ms R Paddon.
The mother was the only witness in her case.
A family report was prepared by Ms F, a family consultant, on 18 October 2017. Ms F also prepared two earlier reports which are relevant. One was prepared in 2011 in relation to a dispute between the mother and Mr C, the father of [V] and [U]. The other was prepared in 2014 in relation to an application by the maternal grandmother Ms W Tighe to spend time with [V] and [U].
A Child-inclusive Child Dispute memorandum was prepared in 2017 after litigation resurfaced between the mother and Mr C. That was not prepared by Ms F but she referred to it in her report.
All of the witnesses were cross-examined.
I will need to make findings about issues in dispute and I want to say from the outset that I considered the father a very good witness. He was calm and responsive and was not caught out in inconsistencies during cross-examination. He made concessions where necessary.
The father was quite laid back and showed no of aggression or antagonism toward the mother. When he was asked about the issue of the mother suffering a broken nose he gave his version of events and added:
It sounds a likely story, but that’s what happened.
I also found the paternal grandmother a very good witness. She also was calm and responsive in the witness box. She did not become defensive or antagonistic when I asked her about the dementia allegation the mother had made in order to ensure that the mother’s case was put to her.
The paternal grandmother was very fair to the mother. She complimented her on her parenting when [X] was young and on the fact that she had completed a healthcare qualification. She showed no animosity toward the mother.
The mother was not a witness of credit.
I will discuss later in the judgment the varying evidence she gave about the broken nose incident and about what happened when the Department came to the house about [V] last year but some of the mother’s other evidence was simply not credible.
For instance she continued to insist that she had not relocated from Town E to Region G (320 kms from Town E) in March 2018 even though she had set up home there and had no intention of returning to Town E until the Court ordered that [X] be returned. She also said in her affidavit that she had moved to Town H (250 kms from Town E). That was not correct. She stayed in Town H for only one night and then she moved a further 50 kilometres to Town J.
There were numerous examples of the mother being a very unreliable witness. I will have to assess the evidence about issues in dispute as they arise but the mother’s conspicuous lack of credit will be relevant when I need to try and assess where the truth lies.
Background
The father is 41 and the mother 35.
The father has lived in Town E for most of his life and he has family in the area. The paternal grandmother lives in separate accommodation in Town E. She has a close relationship with her son and the father and the paternal grandmother also have a good relationship with the father’s sister in Town K (80 kms from Town E).
The mother moved to Town E in 2009 with her parents and has remained there ever since. She does not have the same kind of family support as the father. Her father is deceased. He was a [member of an] outlaw motorcycle group so I do not know how useful and beneficial an influence he was on the mother and the mother is estranged from the maternal grandmother, Ms W Tighe.
There seemed to be a general consensus between the mother, Mr C (and I am taking that from the 2014 family report) and the father in this case (and I am taking that from his answers in cross-examination) that the maternal grandmother was not a good person to have around the children. Mr C said that she possibly had mental health issues. The father said that she was a bit rough around the edges and used bad language. The mother said that she had not spoken to her mother for seven years.
The mother and the father commenced living together in March 2012 according to the father and commenced a relationship in 2011 according to the mother. The family report writer said in her 2017 report that the mother’s claim about that was likely to be correct given documents but nothing turns on it.
The parties have one child, [X], who was born 2014.
The father has no other children but the mother has [U], born 2003 and [V], born on 2006. Their father is Mr C.
The mother also has another child, [W], but she was born very recently and I will refer to her later.
[V] lived with the mother and father throughout their relationship and did not have contact with Mr C for some of that time. He formed a strong bond with the father and the paternal grandmother. On some recent occasions when [V] was in strife at home he ran to the father for assistance, and I think maybe once to the paternal grandmother.
[U] lived with the mother and father until late 2015 and for a period she also had no contact with Mr C. She then went to live with Mr C in Queensland but in July 2016 she resumed living with the mother.
The parties had issues in their relationship and the father rather diffidently went to the police in November 2015 and I will refer to that in the family violence section of the judgment.
The parties’ relationship continued into 2016 and they separated in the sense of living in separate accommodation in August 2016 when [X] was just over two.
The father owned the home in which the parties were living and the mother moved out with [X], [V] and [U]. Thereafter the father spent regular time with [X] and it was quite extensive time. The father was working shift work and he would spend days at a time with [X], fitting in with his shifts.
The mother and the father entered into a Binding Financial Agreement in respect to their property. The mother received enough money to put a deposit on a house in Town E. The father went guarantor and the mother purchased the house.
The relationship between the parties deteriorated in early 2017. How good it was before that I don’t know but in March 2017 the father decided not to return [X] to the mother because of safety concerns and the parties almost simultaneously commenced proceedings.
A Local Court Magistrate ordered the father to return [X] to the mother and made orders for him to spend substantial time with the child.
In March 2017 the mother was charged with assaulting the father and I will describe that incident in more detail later. She was convicted. She was also convicted of stalk/intimidate in relation to the paternal grandmother as a result of a separate incident and I will describe that in more detail later as well.
In July 2017 the mother was charged with breaching an Apprehended Domestic Violence Order (ADVO) over an incident at a restaurant in Town E in which she rained verbal abuse and denigration on the father. She was ultimately acquitted of the criminal charge although there is no doubt that she behaved in a very verbally abusive way toward the father in the presence of [X].
In July 2017 the Department of Family & Community Services contacted the father in the course of investigating notifications they had received about [U]. It was alleged that there had been physical fights between the mother and [U] and [U] alleged that the mother had assaulted her. There were also allegations that the mother was drinking copious quantities of red wine and that on occasion the children were inadequately supervised.
The Department put three different safety plans in place and the issues concerning [U] died away for the time being.
A family report was ordered in respect of the dispute between the mother and father about [X] and interviews were scheduled to take place on 9 October 2017 in Town L.
The mother brought [U], [V] and [X] to Town L for the family report interviews. Upon their arrival [U] contacted Mr C who was living in Queensland and he came to Town L and without any discussion with the mother removed [U] and took her back to Queensland.
From what the mother told the family report writer it would appear that there had been some discussions between the mother and Mr C prior to that about [U] going to live with Mr C but Mr C did not consult the mother before removing [U] from Town L.
Mr C made arrangements for [U] to speak to the family report writer prior to taking her to Queensland and [U]’s interview with the family report writer is referred to in the 2017 report.
In her report the family report writer canvassed the history of the matter in-depth. She had the good fortune of having been involved in earlier proceedings concerning the mother. She also considered the subpoena material then available in-depth and she recommended that [X] live with the father.
After making that recommendation she went on to say as follows:
If [X] lives with the father then the Court will need to consider whether the mother is both willing and able to support the arrangement and whether [X] is safe in her care. If the Court is of the view that it is appropriate for [X] to spend substantial and significant time with the mother then it is suggested that [X] spend five nights a fortnight with the mother (each weekend Friday to Monday and each Thursday night). Otherwise it is recommended that [X] spend quite limited time with the mother.[1]
[1] Paragraph 213 of the Family Report.
The matter did not settle after the report was released because the mother did not agree with the recommendations and it was listed for trial in June 2018.
In March 2018 the mother sold her home in Town E and received nett $18,000.00 which she used to buy a caravan. She amended her application seeking to relocate to the Region G (320 kms from Town E), which was not so perverse in that it appears that she had lived in that area prior to coming to Town E in 2009.
However she also promptly left Town E with [X], notwithstanding that the trial was only three months away. She said that she moved to Town H although the evidence before me confirmed that she stayed in Town H very briefly and then moved to Town J.
The father promptly filed a recovery application and on 11 April 2018 an order was made that the child live in Town E and that if the mother failed to re‑establish her residence in Town E he was to live with the father.
The mother returned to Town E shortly after that order was made but not immediately, and pursuant to the orders the father was entitled to collect [X] and have him in his care until the mother returned.
The handover of [X] to the father resulted in a huge fracas at Town M McDonalds (280 kms from Town L). Both parties made complaints to the police and both parties were charged with offences but ultimately the mother was convicted of the charge against her and the father was acquitted of the charge against him.
The father took [X] back to Town E after the fracas but the mother very promptly returned to Town E and commenced living in a caravan park and [X] resumed living with the mother and spending time with the father.
The mother did not file any documents for the trial in June 2018 and she applied for an adjournment. I refused to adjourn the matter and stood it down briefly pending the trial commencing. While the matter was stood down the mother, who was pregnant, became ill. She said that she had a medical issue. An ambulance was called to the Court and she was taken to hospital and the trial had to be adjourned.
The father’s counsel requested that an interim hearing take place; she said that the father was seeking a change of residence.
I was not able to accommodate an interim hearing at that time but I conducted one on 13 July 2018. I was satisfied that there should be a change of residence and I ordered that [X] live with the father and spend time with the mother on alternate weekends and during school holidays with changeover to be at the child’s pre-school and otherwise inside Town E Police Station.
Very shortly after that there were a number of incidents with [V]. In late August 2018 he ran away from home. He went to the father and then the police and made allegations about the mother’s treatment of him.
On 4 September 2018 the father was contacted by the Department and told that they had taken [V] into care and that he was living with a foster carer. They sought information from the father about [V]. Following this the father withheld [X] from the mother over the weekend of 7 to 10 September due to safety concerns.
The mother collected [X] from preschool on 10 September and then refused to return him to the father and said she was going to keep him for a week. She returned him on 17 September.
The matter came before me when I was in Town E in September 2018 and I relisted it for final hearing in March 2019.
Following the mother returning [X] to the father on 17 September 2018 there was a period of peace until 1 March 2019.
On Friday 1 March 2019 the father dropped [X] to preschool. The mother collected him that afternoon and was supposed to drop him at pre-school on Monday 4 March but she didn’t. She alleged that [X] was refusing to return to the father’s care.
The matter was relisted before me on 19 March 2019. I ordered that the mother return [X] to the father that day and she did so.
About a month later the trial commenced in Newcastle.
The mother’s family situation
The mother’s family situation is complex.
Long before she met the father the mother had a relationship with Mr C and they had the two children, [V] and [U]. [V] and [U] remained with the mother after she separated from Mr C in about 2010. They were supposed to spend time with Mr C but there were numerous difficulties with that and Mr C commenced Court proceedings.
In 2011 a family report was prepared in that matter and the family report writer raised significant concerns about both parents in her report.
She observed that there was no doubt that there had been family violence in that relationship. Mr C made complaints about the mother which are eerily similar to events which have occurred between the mother and the father in this case. He said he would try to leave to avoid fights but the mother would prevent it by getting into his car and then he could not leave because he did not want leave the children unsupervised.
On a number of occasions after the end of the relationship the mother was charged with stalk intimidate and contravening an ADVO made for Mr C’s protection.
Mr C admitted to an act of physical violence against the mother which led to him being convicted of assault.
When the 2011 report was prepared [U] and [V] were 7 & 4 and according to the mother and indeed Mr C they had become resistant to spending time with Mr C.
The proceedings between the mother and Mr C never went to trial. In 2012 they settled the matter. Mr C was living in Town N (300 kms from Town E) and the mother in Town E and the agreement they reached was that the children would spend one weekend a month and half of the school holidays with Mr C.
It would appear from the father’s affidavit that when he commenced a relationship with the mother that time was happening, but it appears that in or about 2014 time between the children and Mr C ceased, because in the family report prepared in this matter in 2017 it was noted the children had not seen their father for about three years, absent [U] going to live with the father for a period which I referred to earlier.
Part of the problem may have been that Mr C moved to the Region Q but in any event there had been a breakdown of the time.
[U] went to live with Mr C in 2015 and returned to the mother in July 2016 and she remained with the mother until October 2017.
In mid-2017 DOCS became involved as a result of issues between the mother and [U]. This was followed by Mr C and the mother discussing [U] going to live with Mr C again and as I previously mentioned when the mother and her children went to Town L for the family report interviews in October 2017 Mr C came down and collected [U] and took her back to the Region Q.
The issues between the mother and [U] in mid-2017 were quite serious. Departmental case workers visited the mother’s home on a number of occasions. There were allegations about lack of supervision and drinking. The mother alleged that [U] had struck her. [U] told other people that the mother had struck her. At one stage [U] stayed away from home for a week. There was a further allegation of physical fights on 2 August 2017 and there is a mention in the Department’s notes of [V] having to step in to break up a fight between the mother and [U].
[U] went to live with her father in October 2017 but in April 2018 she returned to live with the mother and Mr C has since refused to have anything to do with her.
Proceedings between the mother and Mr C remained on foot however because Mr C was wanting to spend time with [V].
A few months after [U] returned to live with the mother in 2018 huge problems began to surface with [V].
The mother said that in June 2018 [V] was unsettled and angry. She said that she put that down to him adjusting to a change of the medication he was taking for his ADHD but there is no independent evidence to support her assertion that this was the cause of [V]’s problem.
On 24 June 2018 the mother grounded [V]. She said that after she did so he threw things round his room, broke things and then left the home. The mother called the police but before they intervened [V] returned home.
The mother said that on 25 June 2018 [V] refused to get dressed. He put one shoe on and threw the other shoe at [U]. There was a physical altercation between [U] and [V] during which [V] threw a metal scooter at [U] and the mother said that [U] had a red mark on her leg and a swollen ankle as a result.
[V] ran away and went to the father’s house and ended up at the police station. The mother collected him from the police station and took him home but he kicked in doors, walls and windows in his bedroom.
In August 2018 [V] put holes in the bedroom wall and smashed windows. The mother said that on 24 August 2018 he threatened to stab her unborn child and harm the mother and [U]. The mother said that she locked [V] in his bedroom and telephoned the police and an ambulance.
That is an interesting piece of evidence by the mother because at the trial before me she insisted that it was impossible for her to lock [V] in his bedroom because he could get out some other way.
There were further incidents in which the mother was allegedly assaulted or in which [V] was allegedly assaulted and I will describe those in more detail in the family violence section of this judgment.
The Department was heavily involved by this stage and on 30 August 2018 after the mother did not take [V] to hospital for a medical assessment as quickly as the Department wanted they assumed [V] into care and started proceedings in the Children’s Court.
[V] has never returned to live with the mother. Until the commencement of the hearing before me he was in foster care in Town E and was visiting the mother but I was told at the hearing that he had just gone to live with Mr C in Queensland.
On the first day of the hearing the mother said that she intended to contest the Children’s Court proceedings and try to get [V] back because he did not want to live with Mr C. On the second day she said that she did not intend to do that because [V] was now saying that he was happy to be with Mr C.
At present it seems unlikely that [V] will return to live with the mother although as discussed during the hearing I have some reservations about what the future might hold in that regard.
[U] continues to live with the mother. She is 15 and is enrolled in school and has a part-time job.
The mother also has a daughter [W] born 2018.
[W]’s father is Mr O. He attended Court with the mother in Town E in September 2018 but they are no longer together. The mother said that she had not seen Mr O for three months and that he had not expressed any interest in seeing [W].
The mother is in receipt of parenting payments. She completed a healthcare diploma in 2014 and presumably she could use that to obtain work but at present she has the care of a young baby.
The mother is living in rented accommodation in Town E.
The father’s circumstances
After all that the father’s circumstances seem very boring. He lives in his own home and the only other person who lives there is [X]. The paternal grandmother lives separately.
The father has a very good employment history. He has recently been working part-time which he said was because of some issues with employment arising out of the drought. However given his work history it seems likely that he will return to full-time work if it is available.
[X] attends Day Care Centre P and is very settled there. He is due to start school next year.
The father has a conviction for assault occasioning actual bodily harm, two DUI convictions and a conviction for behaving in an offensive manner.
The assault and the charge of behaving in an offensive manner occurred when the father was still in his teens and there has been nothing similar since then. The DUIs are more recent and I will mention them when considering the father’s parenting capacity but the last one was in 2010.
Apart from incidents with the mother there has been nothing to bring the father to the attention of the police in recent times.
[X]’s best interests
Any orders I will make about [X] must be orders determined by treating his best interests as the paramount consideration and to determine his best interests I must have regard to the primary and additional considerations in s. 60CC (2) & (3) of the Family Law Act.
I am going to commence with the additional considerations.
The first one is not helpful in this case. It is the views of the child. [X] was too young to express a view in 2017 when the parties attended the family report interviews and he is still too young to express any meaningful view about future parenting arrangements.
I must consider the nature of the relationship between the child and each of his parents and any other relevant person.
The mother has previously referred to the father as being a capable parent. That is inconsistent with her complaints about him at trial and she alleged that in recent times [X] had often not wanted to leave her care and that his strongest attachment was to her.
There was no independent evidence of that and the mother was a profoundly unreliable witness so I cannot place any weight on that evidence.
I accept that there is evidence that the mother has a good relationship with [X]. He was calm and settled in her care during the observations of the family report interviews in 2017. However the family report writer also said as follows (referring to both [X] and [V]):
Overall, the children appeared to have a reasonably settled relationship with the mother, but the quality of the interaction with the father was observably different. Specifically, the children seemed to be far more engaged, and their demeanour appeared to be happier when with him.[2]
[2] Family Report paragraph 190
I am satisfied that [X] has a good relationship with the father.
Although the mother put a different position at trial about their relationship, on a couple of occasions in her affidavit, one referring to the March 2017 period and one to the March 2019 period when she withheld [X], she mentioned that he became upset because the father had not rung him.
The family report writer observed [X] and [V] to be very excited to see the father in 2017. She said as follows:
Both [X] and [V] were clearly quite excited to see the father when he entered the room. They both gave him a hug. [X] became more actively engaged in the play than he had been with the mother (more laughs/giggles/dialogue) but [V] had a noticeably different presentation. He smiled constantly, talked constantly and sought the father’s attention constantly. The father and [V] appeared to have a lot in common. Without prompting [V] said that he had missed the father and had missed coming to his house and the father echoed this.[3]
[3] Paragraph 188 of the Family Report.
The family report writer noted that at the time of the observations both [V] and [X] had not seen the father for some time and for [V] it had been a considerable period of time.
I am satisfied that [X] has a strong and good relationship with his father and I do not accept the mother’s assertions that his relationship with her is stronger and better.
The father is a good father. He has been caring for [X] well since I made the interim orders eight months ago. He has not changed into a different person in those eight months.
[X] was also observed at the report interviews in 2017 to have a very good relationship with the paternal grandmother. The report writer said as follows:
The paternal grandmother entered the room and both children again greeted her warmly. She presented as very familiar with the children’s lives and there was mutual positive engagement. The paternal grandmother spent some time with [X] in the puppet theatre and the father remained seated with [V]. The father remained directly engaged in play with [V] until the children decided to play together. At this stage the paternal grandmother withdrew from direct play with the children to allow the father to solely engage with both of the children.[4]
[4] Paragraph 190 of the Family Report.
[X] of course has siblings. The mother said that he had a good relationship with [U] and [V]. Given the extent of those children’s issues that is not a conclusion I would be prepared to draw without direct evidence to support it. I accept that [X] may dote on his baby sister [W].
I must consider the extent to which each parent has taken or failed to take the opportunity to spend time with the child, make decisions about the child or communicate with the child.
Both parents have always been keen in that regard and that consideration does not assist me.
I must consider issues of financial support.
The father has paid child support post-separation. Child support was not mentioned as an issue at trial.
I must consider the likely effect of any change in the child’s circumstances.
Both parents proposed a change. The father proposed, and I mean no criticism of him in saying this, almost a complete removal of [X]’s time with the mother, at least for 12 months. The mother proposed that [X] return to live with her or live week about. I will have to assess the likely effect of those changes on [X] after making further findings.
I must consider the practical difficulty and expense of the child spending time with a parent.
Practical difficulty and expense is not an issue in this case. The parents live in the same town, which is both a blessing and a problem as we discussed during the evidence, so there is no travel distance involved in the child spending time with one of his parents.
There will be an expense involved with supervised time four times a year. The father said that he could pay for that, or would pay for it, so that is not a problem. If the parties had to travel to Town K (80 kms from Town E) for supervised time there would be some travel difficulty but it is only an hour away and the parties seem to travel freely within the local area.
I must consider the capacity of each parent to provide for the needs of the child, including his emotional and intellectual needs.
The mother has the capacity to feed and clothe [X]. The paternal grandmother was quite complimentary of her in that regard. However she has failed to properly parent her older children in many other ways and as a result I have concerns about what might happen for [X].
One of the issues raised about the mother was alcohol consumption. There were reports of her consuming a large quantity of red wine.
[U] alleged that this was the case when speaking to the Department in 2017 and she repeated it to the family report writer when she saw her in October 2017. The father and the paternal grandmother also made that allegation, noting that the father lived with the mother. I think [V] might also have mentioned it, but I would have to double-check what he said when he was speaking to the Department in 2018.
Those allegations cause me discomfort but it is difficult to know what to do with them because the level of the mother’s drinking was not greatly explored in cross-examination.
It would not necessarily have helped if it had been because it is doubtful I would have been able to place weight on the mother’s answers but there was nothing in medical records or information about convictions or notes made by the police when they attended incidents to suggest that alcohol consumption was a massive problem for the mother.
The father was a witness of credit. I accept that on occasions during the relationship he was concerned about the amount of red wine the mother was drinking but I cannot draw a conclusion about the impact of alcohol consumption on the mother’s parenting capacity on the state of the evidence available to me.
Another concern raised about the mother was her mental health.
The mother said that she suffered from depression and anxiety. She said that she had been prescribed Seroquel and was now on Pristiq.
I cannot make a finding about whether the mother’s mental health issues are impacting on her parenting capacity. If this matter ever comes back before the Court comprehensive expert consideration of the mother’s mental health needs to take place, because her behaviour, which includes serious verbal abuse and unpleasantness to which the children are exposed and which has led to criminal charges, and her behaviour in retaining [X] within weeks of a trial and relocating within weeks of a trial last year, causes me grave concern.
The mother said that she was having counselling and there was some evidence about that. However as the family report writer said in cross-examination, given the mother’s difficulties the only counselling which would benefit her would be counselling from someone who was willing to challenge her world view and there was no evidence that the mother was engaged in that sort of counselling.
An issue in relation to the mother which impacts adversely on her parenting capacity is her complete inability to comply with Court orders.
The 13 July 2018 orders included an order about [X] being dropped off to and picked up from day care by the mother. Since those orders were made the mother has frequently picked [X] up early or not taken him to day care on Monday. In September 2018 and March 2019 she withheld him from the father during which time he did not attend preschool.
The mother’s inability to comply with Court orders is a serious concern in this matter and the mother has no insight into the impact of this behaviour on [X].
Another concern about the mother’s parenting capacity, and it plays into the last issue of her not taking [X] to preschool, is that she seems to make decisions for her own benefit without regard to the impact on her children.
The mother brought [U] to Town L for the trial last month and she twice freely admitted that this was so that [U] could help her look after [W].
[U] is 15 years old. She is enrolled in school and should have been attending school but her needs had to be subservient to the mother’s because the mother needed help with [W].
There are many other examples in the evidence of the mother using [U] for her own benefit and exposing [U] to conflict and difficulty. She sent [U] to confront the father when she was unhappy about him having somebody with him at McDonalds in 2017. She sent [U] to confront the father when she was unhappy about the paternal grandmother being at McDonalds in 2018. There is a report of [U] walking two or three kilometres to the father’s home to make a request about the mother spending time with [X] on the child’s birthday in 2018.
The mother has shown no capacity to separate her own needs from the needs of [U] and it suggests that there is a deep-seated issue with the mother being able to prioritise her children’s needs over her needs.
The mother’s behaviour to [V] in July and August 2018 was cruel; there is no other way to describe it. Over a period of more than a month the police were constantly called to the house and ambulances were called. [V] trashed his room. The mother made no attempt to assist him. It was her case that [V] was behaving like that because he had ADHD, in other words because he had a medical issue but the mother responded by hitting him with a plastic spoon; and she admitted doing that.
The mother’s behaviour to [V] was cruel and I accept that it is very likely, as the Department’s notes indicate, that when Departmental workers spoke to the mother about [V] she denigrated [V].
If the mother can behave like that to one of her children there is a considerable risk that another child might suffer the same fate.
I have numerous concerns about the mother’s parenting capacity and that is even before we come to the family violence allegations.
The father is a competent parent. He does not abuse drugs. He has no mental health issues. He lives in a comfortable home in Town E and he has always been an involved parent in regard to [X].
The mother made some complaints about him, for example about whether [X] had his own bed and bedroom. I accept the father’s evidence about that and I do not consider the father has behaved irresponsibly in relation to dogs at his home or in taking the child to a children’s sporting event on the coast.
There was no evidence that the father delegated [X]’s care to the paternal grandmother in an unreasonable way. It is common for family members to help out with pickup and drop-off if people are working. There was no evidence that the father took [X] into his care and then palmed him off on the grandmother.
The mother alleged that the father drank irresponsibly during the relationship and she raised concern about his drinking since then.
The father has two DUIs, one in 1996 and one in 2010, but the 1996 one was when he was somewhere around a teenager and the 2010 one was close on nine years ago and they were both before his relationship with the mother.
There is nothing in the police reports to suggest that intoxication has ever been an issue in relation to any call-outs in relation to the father and I cannot find that the father has a problem with alcohol which is impacting on his parenting capacity.
The father has a good work history and he is not to be criticised if he goes back to work full-time. That is the reality of life for many children and it is good role modelling for children.
The paternal grandmother helps out sometimes with [X]’s care, for example if the father has an early start, but there is nothing wrong with that. She impressed me in the witness box as a very competent person. She is employed part time in responsible positions which would not be the case if she was suffering from dementia.
The mother alleged the father and paternal grandmother had fights or loud verbal arguments. They denied that and there was no independent evidence to support the allegation.
The mother alleged that the paternal grandmother sometimes drank to excess but there was no evidence to support a finding that she had an alcohol problem which impacted on her capacity to look after [X]. She recently did a CDT test which did not show up any problems and there was no independent evidence, such as police records, which suggested that it was an issue I should be cautious about.
[X] was bitten by a dog while in the paternal grandmother’s care. Dog bites can become infected but these things happen and responsible steps were taken to obtain medical treatment for [X].
I was critical of the mother for not complying with Court orders and withholding [X] and the mother in cross-examination repeatedly said that she might have done that but so had the father, and her position seemed to be “Why are you looking at me?”
The father has withheld the child on a couple of occasions but they have been occasions when on the independent evidence there were some quite severe issues going on within the mother’s home involving [U] and [V] which had the potential to cause emotional and other harm to [X].
I do not accept that the father acted unreasonably on those occasions, and on every occasion he returned [X] after consultation with the Independent Children’s Lawyer. There was no sign of him having any sense of entitlement in relation to the child. His withholding of [X] does not create the same level of concern for me as the mother’s withholding of [X].
I must consider the child’s maturity, sex and background.
Considering that as a separate issue will not assist me save in this regard.
[X] is four years old. If he is to have a different life to [V] then he needs to be removed now from exposure to chaos and abuse. If he is not there is a very real risk that he could follow the same path as [V].
I must consider any family violence involving the child or a member of the child’s family and this is going to be a lengthy section of the judgment.
The mother alleged that the father had been violent to her and she alleged two serious incidents of family violence.
She alleged that in January 2013 after the parties had been at a hotel there was an incident where her nose was broken and she got two black eyes and she said that the father had caused that. She went to hospital and told them it was an accident but she said she did that because the father threatened to use a gun on her if she told them that he had injured her.
The second occasion happened a few years later. The mother fractured her wrist at home and she alleged that the father caused that injury. Again she sought treatment. Again she said at the time that it was an accident but said that she lied because she was frightened of the father.
The mother did not report either incident to the police at the time but in March 2017 when conflict broke out between the parties she went to the police and said that she felt it was time she reported them.
The father did not admit that he had deliberately caused the mother injury and the police took no further action.
I do not accept the mother’s evidence that the father deliberately injured her on either of those occasions.
In relation to the broken nose incident, the father admitted that the mother had broken her nose after “falling onto his shin” but he said it was an accident and I accept his evidence.
The mother gave four different versions of how the injury occurred. She told the police that the father had elbowed her in the face. In her trial affidavit she said she was on the ground and the father kicked her in the face. In an affidavit she filed earlier in the proceedings she said that the father punched her in the face.
In the witness box she kept saying the father’s shin struck her nose. When I asked her to get out of the witness box and demonstrate that to me because I couldn’t quite envisage how that could have happened if she was lying on the ground as she claimed, in the course of explaining it the mother said that she had been lying on the ground but she was getting up from the ground when the father’s shin struck her in the face. She still maintained that it was deliberate.
The mother was not a witness of credit and I do not accept in the light of those four completely different versions about how that incident occurred, that it involved any deliberate striking of the mother by the father.
The father said that the mother sprained her wrist after she fell over a wheeled toy in the kitchen at home. He said that she had been drinking a lot of red wine on that occasion. He said that he was in another room watching TV when it happened and he heard it happen.
The mother told a friend on Facebook at the time of the incident that she had fallen over the wheeled toy and the friend commiserated with her and said she was careful to go round and pick up toys so that something like that did not happen to her. I do not accept the mother’s evidence that the father injured her on that occasion. In my view what happened to the mother was an accident.
The family report writer considered the mother’s allegations and said as follows in her report and I concur with her analysis of the situation:
Factors which tend support the father’s versions of events in relation to family violence include that the father provided a clear and plausible narrative of events whereby the mother has provided inconsistent and contradictory information at times; the mother only reported the alleged physical family violence 10 months after the parental separation coinciding with the father retaining the child; the mother has sought to engage rather than avoid the father (indeed seeking reconciliation) and has stated to police that she is not fearful of him; and that the mother has a documented history of behaving in an aggressive manner (as evidenced by her criminal history and numerous breaches of AVO’s). The mother also partially corroborates the father’s version of events in him leaving the house when there was a dispute between them. The father’s version of events may be further supported by any recordings the father has depicting the mother behaving in an aggressive and abusive manner; if the Court were to find that the corroborating material provided by the paternal grandmother and [U] was credible; if the Court were to find that the mother had assaulted [U] (pattern of violence) and if the Court were to find that the mother had behaved in the manner alleged by Mr C in their relationship.[5]
[5] Paragraph 200 of the Family Report.
The father alleged that the mother was violent to him during the relationship. He told the family report writer in October 2017 he had been spat at, punched and head-butted and that once the mother took to his car with a chair.
He said the mother threw boiling water at him, was impulsive and quick to anger and swore and was generally aggressive on a regular basis. He said that it was not always when she was drinking but it was worse when she was drinking.
The father said that the mother tried to stop him leaving by taking his car keys and locking him in the house. Mr C said in 2011 that the mother had also tried to stop him leaving when he wanted to escape arguments by getting out of the house.
In November 2015 the father went to the police and the police notes say this:
The victim stated to police he was a bit embarrassed to approach them, however, he was concerned about how the mother would react to an impending separation. The victim attempted to leave the mother about two years ago and she threatened to have (blank) bash him. When he talked about it a couple of weeks ago, she threatened to take their son and move to (blank) and also make false complaints to the police so he will lose his gun licence.
The father said that on one occasion the mother became irate with him over something to do with [X] and said that if he did not come home immediately she would ring the police and tell them he had kidnapped his son and he went home to pacify her.
The police notes go on to say that:
The victim is very concerned that the mother will damage his property and make false allegations when he leaves next week.
So even before separation the father was expressing concerns about the mother’s behaviour and there is ample evidence based on the mother’s behaviour to Mr C and to the father after separation which causes me to be satisfied that the allegations the father made about the mother’s violence and threats to him should be accepted.
In March 2017 the mother was charged with assaulting the father. This arose from an occasion when the mother drove to the father’s property to collect [X]. She came onto the property despite the father asking her not to and went up to his front door. The father was filming her and despite seeing that this was happening, at the same time as taking [X] from the father the mother used her right fist to punch the father.
The father made a complaint to the police and a provisional ADVO was made for his protection and the mother was charged with assault. She pleaded not guilty, alleging that she had reflexively swung her fist when the father swung a backpack. The Magistrate did not believe her and I don’t believe her either. The mother was found guilty and placed on a good behaviour bond and a final ADVO was made for the father’s protection for 12 months.
On 25 March 2017 the mother was charged with stalk/intimidate and contravening an ADVO in relation to the paternal grandmother. That arose out of quite a serious incident which involved the mother tailgating the paternal grandmother, banging on the window of her car when the grandmother stopped, swearing at her and at the very end of it driving her car at the grandmother before driving away.
The mother was also found guilty of those offences and was placed on a good behaviour bond and a further final ADVO was made for 12 months.
The mother appealed those convictions; the sentences were varied, but the convictions were not.
I prefer the evidence of the paternal grandmother about those events and they involved some quite serious threatening and intimidating behaviour by the mother.
On 5 July 2017 there was an incident at a restaurant in Town E. The father came to changeover with a friend. He alleged that the mother told him to get rid of his “fucking deadbeat mate” or she was not going to hand [X] over and that she also called him a “fucking deadbeat dad”. There was some other abuse is recorded in the police Statement of Facts.
The mother was charged with breaching the ADVO. She pleaded not guilty and she was found not guilty of a criminal offence but I am satisfied that she did perpetrate significant verbal abuse, within the definition of “family violence”. [X] was present on that occasion.
There was an incident at a restaurant at Town M on 12 April 2018 after the mother was ordered to return [X] to Town E. The paternal grandmother accompanied the father when he went to collect [X] and when the mother saw the paternal grandmother she went into a rant, telling the father to “get rid of that fucking cunt. She’s going to get a visitor soon” and saying to the grandmother, “Get out of here, you fucking old slut”.
The mother also told the father that she was not handing [X] over because he did not have an appropriate restraint in his motor vehicle.
[X] was present during this abuse of the paternal grandmother.
[X] was eventually handed over and the mother and father both made reports to the police. The mother alleged that the father had threatened to choke her. This resulted in the father being charged and his guns being removed. He was ultimately acquitted.
However the mother was also charged as a result of the father’s complaint and she was convicted of offences arising out of that occasion.
In summary the mother has without a shadow of a doubt committed numerous acts of family violence against the father. I accept the father’s allegations about what happened during the marriage. There is clear evidence of the mother perpetrating family violence after the end of the marriage and she also perpetrated family violence against Mr C, and he against her but he is not part of these proceedings. The mother has numerous convictions for stalk/intimidate and contravene ADVO in respect of Mr C.
However an even greater concern than the mother committing acts of family violence against the father while [X] was present is the family violence which has occurred between the mother, [V] and [U].
In August 2017 there was an incident at mother’s home during which [U] threw things around her bedroom and hit the mother. The mother tried to restrain her and [U] tried to push the screen out the window. The mother called the police and asked them to speak to [U] and the Department were contacted.
Regardless of who was responsible for what and whether it was [U] or the mother who did something wrong, one of them committed acts of family violence which included property damage and assault.
The mother agreed that there was another incident on 6 October 2017. The mother tried to take [U]’s mobile as punishment for back-chatting her and [U] pushed her. The next morning the mother tried to pack [U]’s belongings up and [U] slapped her in the face. [U] left. The mother found her. She called the mother a slut. There was family violence during that incident. Even if it was family violence perpetrated by [U] it was family violence that occurred in the home.
The next day the parties went to Town L for the family report interviews and [U] called her father and he removed her from the mother’s care.
In 2018 [U] and [V] had an altercation which involved [V] throwing a shoe and a metal scooter and injuring [U]’s leg. Other incidents of family violence involving [V] included him smashing up his bedroom, threatening to stab the mother’s unborn baby and the mother, throwing a remote control, hitting walls, punching windows, allegedly punching the mother in the back of the head, allegedly punching the mother in the stomach, locking himself in his bedroom and using part of his bed to smash the window and damaging his bedroom. The mother pulled the bed apart and called the police and ambulance.
[V] has been seriously violent in the mother’s home but one has to question where this is coming from.
The father said that he had seen the mother lay into [V] with plastic spoons giving him welts on legs and had heard her calling him a “retard” and a “little shit”.
I accept that evidence for these reasons. In the 2011 family report there is reference to the mother using a wooden spoon on the children. [V] told police when he went to the police station in 2018 that the mother was hitting him with a plastic spoon and the mother admitted at the hearing before me to using a spoon on [V].
Using an implement to discipline children comes within the definition of family violence; it goes beyond lawful chastisement, so in the mother’s home the mother has been violent to [V] and [V] and [U] have been violent to each other and to the mother.
In cross‑examination the father’ counsel put a series of questions to the mother as follows:
[V] has hit you? ‘Yes.’ [U]’s hit you? ‘Yes’. [V] and [U] have broken things in your home? ‘Yes’.
The mother was then asked whether she thought that perhaps the children were modelling some of her behaviour and she said “no”. However it if you have a look at the way the mother behaved to Mr C, the way she behaved to the father during and after the relationship and the way she behaved to the paternal grandmother after the father’s relationship with the mother ended it is very clear that the children may well be behaving in this way because this kind of behaviour has been modelled to them.
The mother said that [V] had ADHD but although she kept saying that this was the reason for his behaviour it has not made her sympathetic or kind to him and it has not stopped her laying into him with a spoon, so how much of [V]’s behaviour is due to ADHD is impossible for me to say.
There is no doubt that the behaviour the mother has modelled to [U] and [V] for years is how [U] and [V] have been behaving.
[V] and [U] have both reported to others that the mother has hit them. I cannot make findings about specific instances because there wasn’t enough drilling down into it in cross‑examination but it is not beyond the bounds of possibility that they were telling the truth when they made those reports and not telling lies, which is the spin the mother puts on it.
Not only has the mother been modelling that behaviour to [V] and [U] she has also modelled it to [X]. [X] was in her arms or the father’s arms when she punched the father and he has been there when she has screamed verbal abuse at the father and the paternal grandmother. It is almost inevitable that [X] has been present when some of the incidents involving [V] and [U] have occurred.
If [X] continues to spend unsupervised time with the mother there is an extremely high risk that he may go down the same path as the older children and start to behave in this way, and the damage to him if that occurs cannot be overstated.
There is no prospect of the mother changing her behaviour. I indicated that if the matter comes back to court there might need to be an assessment of the mother’s mental health; it might be that the mother is labouring under some difficulty which makes it hard for her to amend her behaviour. However there is no prospect of her amending her behaviour because she does not admit any fault. She is in denial about the family violence she has perpetrated. She blames her children for the family violence they have perpetrated in her home. At the moment there is no possibility at all of anything changing in relation to the mother’s behaviour or what happens between the mother and her older children.
It was put to the mother in cross-examination that the children must be distressed about witnessing family violence and verbal abuse and must have been distressed hearing the paternal grandmother called a “fucking cunt” and a “fucking slut”.
However the mother simply has no emotional connection with that distress. After she assaulted the father on 9 October 2019 she was arrested at her home and she was asked in cross-examination whether the children would have been distressed at seeing her arrested. Her response was:
I don’t know. They haven’t discussed it with me.
The mother has no insight into the damage she is causing to her children and there is no likelihood of change, so the family violence issue is a centrally important issue in this case.
I must consider if a family violence order applies or has applied any relevant inferences which can be drawn from the order.
ADVO’s have been made to protect the father and the paternal grandmother, and one was made briefly in 2018 to protect the mother but that was discharged when the father was acquitted.
The fact that ADVO’s are in existence does not curb the mother’s behaviour. She has been charged with contravening the ADVOs. It did not curb her behaviour toward Mr C either; she has multiple convictions for contravening ADVOs made for his protection.
I must consider the attitude to the children and the responsibilities of parenthood demonstrated by each of the parents.
That does not help me as a separate consideration.
I must consider whether it is preferable to make the order least likely to lead to further proceedings.
An order for no time or an order for very limited supervised time are the only orders which carry some hope that there might be an end to proceedings. Any other order carries with it an extremely high risk, almost an inevitability, of there being further proceedings. Orders do not mean anything to the mother. Orders by this court don’t and nor do ADVOs.
The mother was asked whether she would comply with orders of this Court in the future and not withhold [X] if she continued to spend time with him. Her answer was that she would not do anything that was not in his best interests, and she has withheld him before on the basis that she believed that this was in his best interests.
I must consider any other relevant matter.
An interesting thing to note, and it is rather sad that this did not come to anything, is that the family report writer said as follows in the October 2017 family report:
There appears to be some burgeoning willingness of the parents to work collaboratively around [X]’s needs. It is noted that since direct changeovers were removed there have been no further allegations of either family violence/conflict between the parents. The parents have also been writing in a communication book (noting that the mother only began writing regularly in August 2017) with the majority of the content being co-operative with a friendly tone. Further to this both parents cited a recent hospital visit by [X] as a time where they were both able to be together without issue to support and care for [X]. I note, however, that as at the time of the Family Report assessment [X] had not seen the father for a ten day period (including time when the father was off work) and this suggests that the parents are still not at the point where they can communicate and co-operate flexibly around [X]’s needs.[6]
[6] Paragraph 144 of the Family Report.
That all very quickly broke down. There is no current willingness between the parents to work collaboratively around [X]’s needs. There have been continual breaches of the orders since those comments were made. The mother does not return the communication book; I accept the father’s evidence about that. The parents have no capacity to cooperate and resolve issues concerning [X] collaboratively.
I then have to return to the primary considerations and the first of those is the benefit to the child of having a meaningful relationship with each of his parents.
I am satisfied that the father would not prevent [X] having a relationship with his mother unless he considered that there were safety or stability reasons which meant that it needed to be curtailed.
The father was asked in cross-examination why he was proposing that for twelve months [X] spend only supervised time with the mother. He said this:
It’s a struggle to follow orders. On and off they’re breached constantly. It’s messing up his routine. He missed two weeks of school. Everything is going fine and smoothly and then it’s disrupted. It can’t keep going like this – it’s not fair on [X]. The only answer I can come up with is the proposal that we made, for more stability. Something needs to change. It’s not fair on [X].
I do not consider that the father would prevent [X] having a meaningful relationship with the mother or spending significant time with her were it not for concerns about [X]’s safety and stability and his concern about the constant disruptions caused by him being removed early from preschool or not returned on time.
I am not satisfied that the mother has the willingness or ability to ensure that [X] has a meaningful relationship with the father. There is an extremely high risk that [X] will lose his relationship with his father, let alone lose the opportunity to have a meaningful one, if he lives with the mother or continues to spend substantial and significant time with her.
The mother has withheld [X] twice since the interim orders were made eight months ago. There were significant problems with [U] and [V] spending time with Mr C despite Court proceedings and despite orders. There is considerable force in the family report writer’s observation that the mother places loyalty demands on her children and that has resulted in [U] and [V], although perhaps [V] now has an opportunity to re‑engage with his father, but up to the present date it has resulted in [U] and [V] effectively losing a relationship with their father.
The mother paid lip service to wanting [U] and [V] to spend time with Mr C but she repeatedly undermined them doing so by withholding them, failing to comply with orders and making allegations.
There is reference in the 2011 family report to an allegation which was floating around at that time that the step-mother had sexually abused [V]. The mother publicised that allegation on social media and was charged with and convicted of an offence arising out of that but at the time of the 2011 interviews she was still maintaining that it was an issue of concern. It seems to have died away because the mother has not mentioned it in recent years but I accept the father’s evidence that the mother repeatedly threatened that if he did not do things that she wanted she would make allegations against him.
There is an extremely high risk that if the mother does not get what she wants or if she feels thwarted, frustrated, angry or offended, that she may withhold [X] from the father and even worse, make allegations that will be false but will take time to investigate and will disrupt [X]’s time with the father.
[X] is at risk of not having a meaningful relationship with his father if he (a) lives with the mother or (b) spends significant and substantial unsupervised time with her.
If the mother has any physical control of [X] there is a risk of her not returning him to the father. The other risk that exists if [X] spends unsupervised time with the mother, lengthy or even in very short amount, is that he will be exposed to neglect, abuse and family violence.
[V] has been shamefully treated by the mother. Her treatment of him is child abuse. It is likely to have caused him significant psychological harm.
She has used a wooden or plastic spoon on him and she has done so for eight years. She has done things to his bedroom and to his living environment which has resulted in his care reaching a level of neglect. She has done those things to [V] and I cannot be satisfied that something similar will not happen to [X] depending on how issues play out with [X] in the future.
[X] is also at risk of being exposed to family violence in the mother’s care. There has been family violence between [U] and the mother in the past, whether perpetrated by [U] or the mother or both. The mother says that everything is fine with [U] at the moment but the mother’s relationship with her children seems to go through peaks and troughs and I cannot rule out the possibility of that happening again in the future.
The mother has been extremely aggressive to third parties, both verbally and physically, when [X] has been present and I cannot rule out the possibility of that happening again in the future either. Even with a changeover at Town E Police Station I cannot rule out the possibility of something happening because of some of the incidents with the father and grandmother, for example when the mother has entered the father’s property without his agreement or followed the paternal grandmother in her car. I cannot rule out the risk of the mother perpetrating further family violence with [X] present.
There is an unacceptable risk to [X] of being exposed to family violence if he spends any unsupervised time with the mother, short or long, and there is no prospect of anything changing in that regard for the reasons that I gave earlier.
The family report writer’s recommendations
The family report writer’s 2017 report was very thorough. It included a thorough consideration of the subpoena material. It was done against a background of the family report writer having had previous involvement in this family’s life.
There is ample foundation for the following opinions in the report:
[X]’s experience post parental separation has clearly been one of disruption and a lack of predictability and of emotional harm due to exposure to the parental conflict. [X] has also potentially been subject to additional challenges associated with alleged parental alcohol abuse; exposure to family violence (between the parents and between the mother and [U]); and, inadequate supervision.
…
I am confident that [X] has been exposed to family violence between the mother and [U] and there are concerns that the mother has not protected him from this. Obviously without [U] in the household, however, the risk associated with family violence between the mother and [U] diminishes significantly. I am concerned however that a similar dynamic is likely to emerge in the mother’s household as [V] enters the adolescent stage of development, particularly given his self-reported background of difficulty in managing his anger.[7]
[7] Paragraphs 194 and 196 of the Family Report.
That is exactly what happened in 2018.
The family report writer also said this, and there is ample evidence to underpin the validity of this opinion because it was given on the back of the issues that had occurred between the mother and [U], and now we also have the issues that have occurred between [V] and [U]:
I am unclear at this stage whether there is sufficient evidence to support that the mother has physically assaulted [U]. If the court were to find, however, that the mother had assaulted [U], then I would hold significant concern for [X] in the longer term care of the mother, particularly as he enters the developmental stage of adolescence when tension arises as children are seeking to assert their independence are often very concrete in their thinking and are often quite resistant to complying with directions from others.
It is quite possible that the mother has physically assaulted [U] and that it was not just [U] who assaulted the mother but regardless, there has been physical conflict between the mother and [U], there was serious physical conflict less than a year ago between the mother and [V] and the mother’s behaviour to [V] in her attempts to control him were cruel and abusive.
There is considerable force in the family report writer’s opinion that [X] could be at risk of such things happening to him in the future depending on how his development goes.
Parental Responsibility
The presumption in s. 61DA of the Family Law Act does not apply in this case because of the mother has perpetrated family violence.
These parents cannot share parental responsibility for [X] in a way that is not going to impact adversely on him. One of them must have sole parental responsibility but I will come to that at the end after I come to a conclusion about [X]’s living arrangements.
Conclusion
It is beyond question in the light of the evidence I have heard that [X] must remain with living with his father. It is the only way to ensure that he has a strong relationship with his father and that is essential for his future wellbeing.
If the father is not in [X]’s life his situation could all too easily turn out to be the same as [V]’s, or as [U]’s I might add because [U] has not had a trouble-free path through adolescence either, coming and going as she has between the mother and Mr C and having the police called to the home to deal with her behaviour.
If the father is not in [X]’s life things could all too easily turn out the same way for him and he could be exposed to disruption, instability, abusive parenting, family violence and the fall-out of the mother’s inability to handle any opposition by a child.
Shared care between these parents would simply be impossible. The level of conflict between them is off the scale because of the mother’s behaviour. I could not make an order for week about shared care or any sort of shared care.
The problem in this case is not where [X] should live but what to do about [X] spending time with his mother.
It will be very sad if [X] is not able to have a relationship with his mother. The paternal grandmother pointed out in the witness box that the mother did some things well as a parent: dressing children nicely, feeding them nicely and looking after them nicely on occasion.
The parties live in a small town and if I make an order that limits [X]’s time with the mother or even takes it away that may be difficult for [X] to understand given that he may see the mother around the town. I mentioned the queue at McDonalds and that is certainly one possibility.
Making an order that [X] not see the mother at all has some problems associated with it.
He will lose an opportunity to see the good, nice or caring side of his mother which does exist along with the more difficult aspects of his personality.
He will have to cope with seeing her unexpectedly and that may cause him a little bit of emotional distress, and he will lose the opportunity to have a relationship with his baby sister. I cannot find that the loss of a relationship with [V] and [U] will be a significant loss for [X] at the moment given their behaviour and their problems but he will also lose the chance to have a relationship with [W].
The difficulty is how to put something in place for [X] to spend time with his mother which is not going to mean that the parties are repeatedly back before the court and that [X] is exposed to further family violence and has disruptions with his pre-schooling and then later with his schooling.
The mother’s life is chaotic and her ability to deal with the father is non-existent. She just cannot do it, just as she could not deal with Mr C.
I could not possibly consider making an order that [X] spend the same time with the mother that he is spending with her at the moment. There is an unacceptably high risk, almost a certainty, that at some point he will be retained again. There is an unacceptably high risk that it might be accompanied by allegations, false allegations which will take time to investigate.
There is an unacceptably high risk that he will be exposed to family violence or incidents between the mother and one or other of the children in the mother’s home and as [X] gets older that is likely to be increasingly distressing for him and may result in him copying that behaviour to his long-term detriment.
An order for shorter unsupervised time with the mother carries with it exactly the same risks so I cannot consider at present making an order for the mother to spend unsupervised time with [X].
Supervised time does not carry those risks but short periods of supervised time once a fortnight, which was the father’s original proposal, might be difficult for [X] to cope with. There would be a lot of toing and froing, a nice time with his mother and perhaps a lack of understanding about why he was not seeing her more because she would not be acting out at the contact centre or withholding him. It could create a very emotionally difficult situation for [X] and the father and [X] need some respite from what has been happening.
Ultimately both the father and the Independent Children's Lawyer proposed that supervised time occur rather than no time at all, which is certainly a possibility, and that time occur on four occasions each year supervised at the Family Contact Service in Town E.
The mother’s behaviour is so extreme and my concerns about her so high that if the mother and child were living in a different town to the father I would be strongly of the view that there should be a no-time order, because the risks to [X] of spending any time with his mother, both emotional and physical, are such that no time is a better option for him.
The problem is the parties are living in a small country town. [X] is likely to run across the mother occasionally. He also has a little sister who in due course he may see at school. The father does not want a no-time order and on the basis of all those considerations I am satisfied that rather than making a no-time order I should go with the father’s proposal of time on four occasions each year. It is not much but it will allow [X] to continue to have some sort of a connection with his mother and his siblings.
Given the mother’s age and the length of time this chaos has been swirling around her it is difficult to foresee that there will be a change in the future but if something changes and different time becomes viable it will mean that [X] has preserved a bond with her which he can build on if it became appropriate.
I am not prepared to order that after 12 months’ the time become unsupervised because there is simply no rational basis to do that. There is no reason to suppose that in 12 months the mother is going to be different to the way she is today, or that her circumstances are going to be different and I do not know enough about what is going to happen with [U] and [V] to mean that I can confidently make an order for [X] to then resume spending alternate weekends and half school holidays with the mother.
As I have observed in other cases there are occasions when the Court can be confident that supervision may no longer be necessary after a period of time but I cannot be satisfied of that in this case.
The only order I can make is a long-term order for time on four occasions each year. It is a loss for the child, but the loss for the child of having the kind of behaviour modelled to him which has occurred to date and turning into the same kind of child as [V], or losing a relationship with his father, outweighs it considerably, and those are the orders I am going to make.
I then come back to parental responsibility and the only order I can make is for the father to have sole parental responsibility.
The Independent Children's Lawyer proposed a notice provision which would require the father to consult with the mother before making a major long term decision. That is not going to work. It would simply create an opportunity for the mother to cause chaos. It is not going to benefit [X] and I am not going to make that order.
The father proposed an order that within seven days of making a decision he notify the mother of the decision and that is a preferable order.
I am going to make an order that the mother is not permitted to attend at the father’s home or remove the child from the father or abuse, belittle or stalk the father. It also prevents her from attending at school events, preschool events and sporting or extracurricular events but in view of the chaos, verbal abuse and sometimes physical violence that occurs when the mother and father are near each other, that is necessary for the protection of both [X] and the father.
I will make orders in terms of 12, 13 and 14 about the overseas travel.
The Independent Children’s Lawyer has applied for costs. The mother does not have the means to pay costs. The father does but he has been privately represented in these proceedings. He has not done anything unreasonable in the course of the proceedings. The proceedings do not arise out of a power struggle between parents. It was essential that they occur. I cannot make an order against the mother and in all the circumstances I am going to dismiss the application for costs in respect of the father.
I certify that the preceding two hundred and ninety-nine (299) paragraphs are a true copy of the reasons for judgment of Judge Terry
Date: 14 May 2019
Key Legal Topics
Areas of Law
-
Family Law
-
Negligence & Tort
Legal Concepts
-
Injunction
-
Costs
-
Duty of Care
-
Damages
0
2