Painter and Gale
[2016] FCCA 61
•18 January 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| PAINTER & GALE | [2016] FCCA 61 |
| Catchwords: FAMILY LAW – Parenting – whether the father’s behaviour poses an unacceptable risk to children such that his time with them should be supervised indefinitely – spend time arrangements. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60B(1), 60B(2), 61DAA, 63DA(3), 65DAA(3), 60CA, 60CC, 60CC(2), 60CC(2A), 60CC(3), 4AB, pt.VII |
| Mazorski v Albright (2008) 37 FLR 518 Tait & Dinsmore [2007] FamCA 1383 |
| Applicant: | MR PAINTER |
| Respondent: | MS GALE |
| File Number: | DGC 112 of 2008 |
| Judgment of: | Judge Small |
| Hearing date: | 28 July 2015 |
| Date of Last Submission: | 30 July 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 18 January 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Moss |
| Solicitors for the Applicant: | Moss Legal |
| Counsel for the Respondent: | Mr Meier |
| Solicitors for the Respondent: | Meier Denison Guymer Pty Ltd |
| Counsel for the Independent Children's Lawyer: | Mr Brewer |
| Solicitors for the Independent Children's Lawyer: | Robert Halliday & Associates |
ORDERS
All previous parenting orders in relation to the children X born (omitted) 2003 and Y born (omitted) 2005 (“the children”) are hereby discharged.
Subject to the provisions of paragraph 3 hereof, the mother shall have sole parental responsibility for the children.
The mother shall inform the father in writing (which includes by text message or email as well as by ordinary post) at least 21 days before making decisions about the following matters:
a)Any change in the children’s school;
b)Any religious instruction the children receive, whether at school or otherwise;
c)Any non-emergency surgery or serious medical treatment the children or either of them is to undergo;
d)Any proposed change in the children’s name;
e)Any proposed relocation of more than 25 kilometres from her present residence;
f)Any decision which is likely to affect the children’s ability to maintain their relationship with the father pursuant to these orders
and the father shall provide his views, if any, in relation to all such information within seven days of receipt.
The parties shall make a genuine effort to come to a joint decision about the above issues, but if no agreement is reached, then within 14 days the mother shall make the final decision and she shall advise the father of that decision in writing.
The children shall live with the mother.
The father shall spend time and communicate with the children as follows:
A. From 4.00 p.m. on Friday 22 to 8.00 p.m. on Sunday 24 January 2016;
B. During school terms
(a)each alternate weekend from the conclusion of school on Friday until 8.00 p.m. on Sunday, or 8.00 p.m. on Monday in the event of Monday being a non-school day, commencing on the second weekend of the first school term in 2016;
(b)each alternate Thursday from the conclusion of school until 8.00 p.m. commencing the first week of the first school term in 2016;
C. During school holidays
(c)from 10.00 a.m. on Monday to 8.00 p.m. on Thursday in the first week of the first and third term holidays in 2016;
(d)from 10.00 a.m. on Monday to 8.00 p.m. on Thursday in the second week of the second term holidays in 2016;
(e)for one week of each of the school term holidays commencing in the first term holidays of 2017 by agreement between the parties and failing agreement from 10.00 a.m. on the first Saturday to 10.00 a.m. on the second Saturday in the first and third term holidays, and from 10.00 a.m. on the second Saturday to 10.00 a.m. on the third Saturday in the second term holidays;
(f)on a week about basis commencing at 10.00 a.m. on the first Saturday during the long summer holidays in 2016 – 2017;
(g)for half of the long summer holidays commencing in 2017 – 2018 by agreement between the parties, and failing agreement, the first half, commencing at the conclusion of school on the last day of term when the holidays begin in odd numbered years, and the second half, concluding at 6.00 p.m. on the Saturday prior to the commencement of the new school year, when the holidays begin in even numbered years;
D. For special occasions
(h)from 4.30 p.m. on Christmas Day until 6.00 p.m. on Boxing Day each year,
(i)from 6.30 p.m. on the day before Father’s Day until the commencement of school on the day after Father’s Day each year;
(j)by telephone between 5.30 p.m. and 6.30 p.m. on any day at the children’s discretion and the mother shall ensure that the children have access to a working and charged telephone for that purpose;
(k)by telephone or text message conversation at the father’s instigation on no more than two occasions per week, save in the event of emergencies, and the mother shall ensure that the children have access to a working and charged telephone between 7.00 a.m. and 8.30 a.m. and between the conclusion of school, or 4.00 p.m., and 6.30 p.m. for that purpose;
(l)for the father’s and the children’s birthdays each year by agreement between the parties and failing agreement:
(i)from the conclusion of school to 8.00 p.m. on the father’s birthday should it fall on a school day;
(ii)from 4.00 p.m. to 8.00 p.m. in even-numbered years and from 12 noon to 4.00 p.m. in odd-numbered years on the father’s birthday should it fall on a non-school day;
(iii)
from the conclusion of school to 8.00 p.m. on each of the children’s birthdays in even-numbered years, and from the conclusion of school, or 4.00 p.m., to
8.00 p.m. on the evening before the children’s birthdays in odd-numbered years, should they fall on a school day;
(iv)from 12 noon to 4.00 p.m. in even-numbered years and from 4.00 p.m. to 8.00 p.m. in odd-numbered years on each of the children’s birthday should they fall on a non-school day;
(m)at such other times as the parties might agree from time to time.
The father’s time with the children pursuant to these orders shall suspend, and the mother shall spend time with the children, at the following times:
(a)from 6.30 p.m. on the day before Mother’s Day each year;
(b)from the conclusion of school to 8.00 p.m. on the mother’s birthday each year should it fall on a school day;
(c)from 4.00 p.m. to 8.00 p.m. in even-numbered years and from 12 noon to 4.00 p.m. in odd-numbered years on the mother’s birthday should it fall on a non-school day;
(d)from the conclusion of school to 8.00 p.m. on each of the children’s birthdays in odd-numbered years and from the conclusion of school to 8.00 p.m. on the evening before the children’s birthdays in even-numbered years should they fall on a school day;
(e)from 4.00 p.m. to 8.00 p.m. in odd numbered years and from 12.00 p.m. to 4.00 p.m. in even numbered years should any of the birthdays fall on a non-school day;
(f)from 2.30 p.m. on Christmas Eve to 4.30 p.m. on Christmas Day each year;
(g)from 5.30 p.m. to 6.30 p.m. on each day that the children are in the father’s care should the children wish to telephone their mother, and the father shall ensure that the children have access to a working and charged telephone for that purpose;
(h)by telephone or text message conversation when the children are in the father’s care at the mother’s instigation on no more than two occasions per week, save in the event of emergencies, and the father shall ensure that the children have access to a working and charged telephone between 7.00 a.m. and 8.30 a.m., and between 4.00 p.m. and 6.30 p.m. for that purpose;
(i)at other times by agreement between the parties from time to time.
The father’s time with the children pursuant to paragraph 6B(a) and (b) of these orders shall suspend during school holidays and shall recommence in the next school term as though the holidays had not intervened.
Changeover that does not take place at the children’s schools shall take place at the front of the mother’s residence, with the children travelling independently between the residence and the father’s car unless they or either of them is physically injured or ill such that they or either of them requires assistance.
Each parent shall ensure that the children attend all extracurricular activities, sporting events and social activities for which they are enrolled or to which they are invited while the children are in their respective care.
The mother shall authorise the proper officer of any school or schools at which the children might attend from time to time to:
(a)register the father as an emergency contact for the children;
(b)provide to the father, at the father’s expense if any, copies of relevant school reports, newsletters, school photographs, notices, and any other document or paper usually provided to parents;
(c)communicate with the father by telephone, in writing, or personal attendance with respect to issues relating to the welfare and progress of the children or either of them; and
(d)permit and encourage the attendance of the father at school functions, including but not limited to cultural, musical and theatrical events, working bees, sporting events, excursions, school camps and the like, such attendance to be strictly in accordance with the directions and protocols of the school.
For the general health treatment of the children, other than in the event of emergencies or specialist consultation, the parties shall engage the services of Dr P or other medical practitioner at the medical practice known as (omitted) Medical Clinic situated in (omitted), unless otherwise agreed between the parties in writing prior to the children being taken to any other general practitioner.
In the event that the children or either of them suffer a significant illness, injury or accident while in the care of either parent, that parent shall, as soon as practicable, advise the other parent of the circumstances, identify any health professionals treating the children, and authorise the treating health professionals to confer directly with the other parent on all questions relating to the health and welfare of the children or either of them, although final decisions in relation to the treatment of the children or either of them shall rest with the mother pursuant to paragraph 2 hereof.
The parties be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other, or members of the other’s family, including via social media or by any electronic means; and
(b)discussing these proceedings or any of the issues contained therein, including via social media or by any electronic means
in the presence or hearing of the children or either of them, and from permitting any other person to do so.
The father is hereby restrained by injunction from:
(a)consuming alcohol for 12 hours prior to the children coming into his care, and during all such times as the children are in his care;
(b)using any illicit substance or any prescribed medication, save strictly in accordance with its prescription, for 24 hours prior to and during all times the children are in his care;
(c)allowing the children to remain in the presence of any person who is adversely affected by alcohol or by any prescription drug.
The order of 29 April 2014 appointing the Independent Children’s Lawyer is hereby discharged.
IT IS NOTED that publication of this judgment under the pseudonym Painter & Gale is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 112 of 2008
| MR PAINTER |
Applicant
And
| MS GALE |
Respondent
REASONS FOR JUDGMENT
Introduction
This is a parenting matter involving the care arrangements for X born (omitted) 2003 (“X”) and Y born (omitted) 2005 (“Y”) (collectively “the children”).
The children’s parents, Mr Painter (“Mr Painter” or “the father”) and Ms Gale (“Ms Gale” or “the mother”), were in a short relationship of between three and four years. They separated about six months after Y was born and the children have lived with Ms Gale since that time.
The parties are agreed that the children will continue to live with their mother and that they will continue to spend time with their father. They also agree that Ms Gale should have sole parental responsibility for the children, save that she should consult with Mr Painter with respect to decisions to be made in specific areas. They also agree on most other ancillary issues which will be reflected in the final orders made although no signed Minute of Consent Orders was ever presented to the Court.
The issues to be decided in this matter can be set out as follows:
A.Does Mr Painter pose an unacceptable risk to X and Y such that his time with them should continue to be supervised?
B.Should Mr Painter’s regular alternate weekend time with the children end on Sunday evening or on Monday morning?
Background
Ms Gale and Mr Painter began their relationship in 2002, and separated on a final basis in April 2006.
X and Y are the only children of their relationship.
Both parents live in rented accommodation in Melbourne’s (omitted) suburbs, although until now, the overnight time the children have spent with their father has been spent at the home of the paternal grandparents.
Both parties are (occupations omitted) by profession, with the mother being employed in the (omitted) of a (employer omitted) and the father giving evidence at trial that he had taken a month off to concentrate on the proceedings, but that he would be seeking (omitted) work after the trial and that he would be working part-time.
Procedural History
These are the second set of proceedings between these parties in relation to their children, the first having been finalised by way of orders made by Judge Phipps on 16 December 2008 (“the 2008 Orders”).
Mr Painter filed an Initiating Application on 18 March 2014 seeking equal shared parental responsibility for the children, with more time and communication sought than was provided for in the 2008 Orders.
On 28 April 2014, Ms Gale filed a Response, seeking a family report, the issue of subpoenas in relation to particular material, and the appointment of an Independent Children’s Lawyer. Ms Gale also sought orders that the time to be spent between Mr Painter and the children be supervised by his parents.
On 29 April, 2014 the matter appeared before me for the first time in the Duty List, and orders were made by consent. The parties were ordered to section 11F counselling, and an order for the appointment of an Independent Children’s Lawyer was made.
The matter returned to court on 26 August 2014 before me after the preparation of a section 11F memorandum, and Mr Painter’s time with the children was ordered to be supervised by his parents. The parties were able to come to agreement on other substantive issues and again interim orders were made by consent. The matter was then adjourned to a further mention and given a trial date of 27 July 2015.
The parties came before me again on 6 November 2014 when a full family report was Ordered. The matter remained set down for trial in July 2015.
The trial began on 27 July 2015 and concluded on 30 July 2015.
Witnesses were Mr Painter, Mr C (“the paternal grandfather”), Ms Gale, family consultant Ms D (“Ms D”) who had prepared the Family Report, and Dr C (“Dr C”) who had prepared a psychiatric assessment of Mr Painter. Dr C, who is blind, gave evidence by telephone assisted by Ms R. All witnesses were subject to cross-examination at trial.
After final submissions on 30 July 2015 I reserved my decision.
Issues and evidence
A. Does Mr Painter pose an unacceptable risk to X and Y such that his time with them should continue to be supervised?
The mother alleges that Mr Painter poses an unacceptable risk to X and Y as a result of his alcohol consumption, his drug use, inappropriate statements he has made to the children or had her make to them on his behalf, and his combative and erratic personality.
It was as a result of the allegations about his alcohol abuse that interim orders were made for his parents to supervise the time he spent with the children, that supervision later being amended to an order that the paternal grandparents be in substantial attendance during such time.
The mother alleges two major incidents where the father was affected by alcohol to the extent that the children were placed at risk.
The first of these occurred on New Year’s Eve 2012-2013, when Mr Painter was spending time with the children camping at (omitted) pursuant to the 2008 Orders.
Ms Gale and her partner had been hosting a cocktail party in Melbourne for New Year’s Eve on that night. Ms Gale’s evidence is that at about 8.45 p.m. she received a telephone call from X who was in tears, and who told her that she was afraid because her father was drunk. She had called using the telephone of another camper and asked her mother to pick her and Y up and take them home.
Ms Gale says that she spoke to the camper whose phone X had used and that person confirmed that Mr Painter had been drinking heavily and that “they had removed a funny smelling cigarette from him”. She says the camper told her that Mr Painter “had passed out in his tent and they could keep the children safe with their family until I could get there in the morning”.
It is her evidence that at about 11.00 p.m. she received a telephone call from the (omitted) police, who had been called to the campground by other campers to deal with Mr Painter, who had apparently woken up and become “hostile and argumentative”.
Ms Gale says that the police told her that Mr Painter had been arrested and taken to the (omitted) Police Station where he would be kept overnight. She says that the police assured her that the children were safe and asleep in the tent of the camper with whom she had previously spoken.
Ms Gale’s evidence is that she received a telephone call at approximately 1.00 a.m. on New Year’s Day from child protection authorities who had been called by the police because there was no adult known to the children available to take care of them.
Ms Gale says that she could not drive as she had been drinking, and that she attempted to find someone who could drive her to (omitted) but was unable to do so immediately. She received a further telephone call from the child protection authorities at about 2.00 a.m. informing her that the children had been taken to (omitted) Police Station and that if she did not attend to collect them, they would be placed in care.
Ms Gale was eventually able to arrange for her partner’s mother to drive her and her partner to (omitted), where the child protection authorities returned the children to her after some questioning at about 8.45 a.m. It is her evidence that she had left home at approximately 4.30 a.m. and that she and the children returned at about midday on New Year’s Day.
It is Ms Gale’s evidence that Mr Painter arrived at her home at about 12.30 p.m. on New Year’s Day asking to see the children. Despite his apologies and promises that such an incident would never happen again, Ms Gale did not allow him to see the children at that time, although she says that his time with the children recommenced on the advice of the child protection workers, who had seen the incident as a “one off”.
Ms Gale says that Mr Painter was charged with drunk and disorderly behaviour on 1 January 2013.
It is her further evidence that Mr Painter did not spend time with the children on 13 January 2013 because he was at a hotel and would need to be picked up.
Ms Gale says that after the incident on New Year’s Eve 2012-2013 the children were distressed and afraid and that X in particular expressed fears for her safety if her father were to be drinking alcohol while caring for her.
The father’s affidavit evidence in relation to this incident is as follows[1]:
12. On 31st of December 2012 I was arrested for being drunk in a public place. This was New Year’s Eve, and I admit that I had drank (sic) quite a bit of alcohol without realising the effects it had on my this day (sic). I admit that I did not make sensible decisions this night. My main concerns were my two children and that they were with strangers. Given all my rational thinking was out the door due to alcohol I would not do as I was told. I should not have drank (sic) and I believe that given I had drank (sic) so much on an empty stomach and I am not a frequently big drinker I made mistakes this night.
13. The mother was not able to attend straight away as she also had been at a party and had also been drinking. The mother attended the next morning and collected the children from DHS in (omitted).
14. The matter was heard in Myrtleford Magistrates Court, I was not aware that I had to attend for this matter, I was found guilty.
15. I was very sorry for the situation that occurred on 31st of December 2012 and made promise to my children not to place them at this risk or to behave like this again. The children continued to see me as they had done previously.
[1] Affidavit of the father sworn and filed 18 March 2014 paragraphs 12 to 15
In his affidavit sworn and filed 11 August 2014 Mr Painter says the following at paragraph 8, responding to Ms Gale’s affidavit evidence in relation to 31 December 2012:
I own and take full responsibility for my actions while caring for my two children. I acknowledge the report of DHS workers and agree that this was an isolated incident. I felt remorse and guilt for my actions and asked Ms Gale for her forgiveness.
However, at about 6.00 p.m. on New Year’s Day 2013, Mr Painter had sent the following text message to Ms Gale:
Trying to get X and Y to get into there (sic) own bed for safety last night I got into an argument with a fuck wit who stole my keys and smokes. All I wanted was my keys smokes and my two kids. So I got arrested cause the redneck wouldnt (sic) let me go to sleep. Kids didn’t see a thing they were asleep in some strangers bed and had to be bought (sic) to DHS. And that’s what happen (sic) and I’ll tell that to DHS tomorrow. And what, that happens daily every day does it (sic).
It would appear that on the day following the incident, when presumably he had regained his sobriety, Mr Painter did not acknowledge his level of intoxication, and did not feel a personal sense of responsibility for the situation in which he placed as children.
Mr Painter sent a text to Ms Gale on 8 January 2013 in the following terms:
I am deeply sorry and you have every right to be angry at me. Please let the children know that I’m not in any way angry at them and that they a (sic) loved more than anything in this world. I do expect you to follow the recommendation put forward by DHS that the court orders be followed. Let’s not make this a tug-of-war between our children as we both love them dearly. I’m open to your suggestions and was hoping for day contact tomorrow so that they can see that their father is well and full of love for them and their mother. Please make contact.
The insight shown in the first two sentences of that text message was unfortunately not apparent in Mr Painter’s interview with Dr C or at trial.
When being interviewed by Dr C for his psychiatric assessment, Mr Painter said that on New Year’s Eve 2012 - 2013 he had been “drinking, smoking marijuana and took two Valiums”. He said further that he felt that “the level of intoxication was misjudged and that people overreacted and it was a one-off situation that would not be repeated”.
Under cross-examination at trial Mr Painter denied that he had been smoking marijuana that night, saying that he thought that he might have told Dr C that he had “had a smoke”, and that the “funny smelling cigarette” taken from him by his fellow campers was a legal herbal substance bought from a tobacco shop.
Under cross-examination at trial Dr C said there was no doubt that Mr Painter had told him that he had been smoking marijuana on that night.
Mr Painter admitted at trial to having taken two Valium tablets on that night. However he said that he had never combined alcohol and Valium before and that he had not realised what effect that combination would have.
Mr Painter is a (occupation omitted). It is simply beyond belief that he would have been unaware of the effect of the combination of alcohol and Valium and I do not accept his evidence in that regard.
I also find, on balance, that it is likely that he had smoked marijuana on that night.
Under further cross-examination at trial Mr Painter said he had not been aware that the children had sought help from other campers on New Year’s Eve 2012, and said that the children were afraid because he had become involved in a scuffle with another camper. He asserted that he was arrested because of that altercation and not because of any concerns about the children’s safety.
He said again that it had been a one-off incident and that it had never been repeated.
It is noteworthy in my view that in providing his expanded version of the events of that night in his Affidavit sworn and filed 11 August 2014, Mr Painter does not mention the involvement of the police at all and mentions the involvement of the Department of Human Services only in passing.
Overall, at trial he appeared to minimise the impact of that incident on his children. He told Mr Meier, counsel for Ms Gale, that he (Mr Meier) could not make a judgement about his behaviour on that night as he had not been there. While acknowledging that he had been drunk on that night, he said that he had known that the children were safe, and that he had just wanted to retrieve his keys and cigarettes.
There is almost no way to overstate the distress that X and Y, who were just nine and seven at the time, must have felt on that night. They approached strangers at the campsite because their father was drunk and they were afraid. After X called their mother, they then slept for some time in the tent of those strangers before being woken in the middle of the night and removed by child protection authorities who drove them to the (omitted) Police Station, a distance, I note, of approximately 50 kilometres on the (omitted) Road. They were then taken by those authorities to meet their mother at the (omitted) Police Station, another 40 kilometres or so, where, after their mother had been questioned, they were released into her custody and driven back to their home in Melbourne.
What is clear from the evidence of both parents, and that of Ms D, is that that incident has had a profound effect on them, and that their father certainly placed them at risk, both physically and emotionally, on that occasion, despite his assertions that they had been safe at all times.
The second major incident where Mr Painter is alleged to have been affected by alcohol occurred on 7 December 2013.
It is Ms Gale’s evidence that on that day at about 5.30 p.m. she received a telephone call from X who was using the mobile phone provided to her after the incident at (omitted) so that she could call her mother if she ever needed to.
Ms Gale says that X was outside her father’s home crying, and that X told her that Mr Painter was “drinking and slurring his words and acting all weird like he did at (omitted)”.
Believing that the Intervention Order she had taken out against Mr Painter prevented her from attending at his home, Ms Gale asked her partner Mr B (“Mr B”) to go to Mr Painter’s home to ensure that the children were safe.
In his affidavit sworn 28 and filed 29 April 2014, Mr B says that upon receiving a telephone call from Ms Gale, he and two friends with whom he had been playing cricket attended at Mr Painter’s home.
It is Mr B’s evidence that both children were distressed and crying on his arrival, and that both told him that they wished to come home with him. He says further:
12. Mr Painter was affected by alcohol. He wasn’t unsteady on his feet but he was talking as one does when one has had too much to drink.
13. He said he had only had a bottle wine (sic). X then said what about the beer and he accepted that was accurate.
I note that when asked about the above passage at trial while under cross-examination from the mother’s counsel, Mr Painter said “I was so angry I’m lucky I had self-control and things didn’t go a different way”.
Mr S, one of the friends who had accompanied Mr B to Mr Painter’s home, also filed an affidavit saying that the children were very distressed upon his arrival and that while Mr Painter was not “drunk” he was “on the way” and that he was “affected by alcohol”.
The police, who had been called by both Mr B and Mr Painter, arrived and spoke to both men and the children. After speaking to the child protection authorities by telephone and being shown a letter from them which said that the children might be withheld from Mr Painter if he had been drinking, the police allowed the children to leave with Mr B and his two friends.
Mr Painter’s version of that event is, unsurprisingly, quite different. In his affidavit sworn and filed 11 August 2014, Mr Painter says that the demeanour of Mr B and his two friends was “largely threatening and abusive” and that Y had been quite afraid.
He said that before Mr B and his friends arrived, the children and he had “played at the beach, washed windows as we had a water fight and put up the Christmas tree. I had no indication that my oldest daughter (X) was feeling “scared” on this day”.
It is his evidence that while he and the children were having dinner at about 5.30 p.m., X had left the table and made a telephone call to her mother. He says that he had run outside “to follow X and keep her safe” and that he had been walking back into the house with her when Mr B and his friends arrived. He comments that Mr B and his friends had arrived in a very short time, “as if it was set up or pre-planned. It was as if they had been waiting around the corner for the go-ahead”.
It is Ms Gale’s evidence that when the children arrived home at about 8.45 p.m that evening they were “tired, frightened and upset and they both felt guilty that their dad had got into trouble”.
As a result of their distress she immediately made an appointment for the children to see a psychologist the following week, and she annexes to her affidavit sworn 28 and filed 29 April 2014 a photograph of a picture which X is said to have drawn on a whiteboard at the psychologist’s rooms detailing her experience of the events on 7 December 2013. While the psychologist was not called to give evidence, the court has no reason to doubt the authenticity of the drawing.
That picture depicts several people, including a man saying “I’m doing nothing wrong” and “shut up and go !!”, and a girl saying “dad your (sic) being like your drunk and I don’t want to be hear (sic) right now” and “if you would stop drinking this wouldn’t happen!!”. Another scene depicts a person saying “come with us” and another person replying “not happening”.
The incident was clearly very distressing, at least for X. If Mr B’s evidence about the aggression exhibited by Mr Painter is accepted, the children could not help but have been frightened, and in any event the altercation between Mr B and Mr Painter, and the subsequent arrival of the police, would not have been a pleasant experience for them.
Under cross-examination at trial, Mr Painter conceded that he had consumed three glasses of wine while preparing dinner on that day, although he had told family consultant Ms A, who prepared the section 11F memorandum, that he had drunk only one.
When informed that both children had told child protection authorities that he had been intoxicated and that they had been fearful on that day, Mr Painter simply said that he could not comment on the children’s opinions, and that they were not fearful of him now.
Under further cross-examination by the mother’s counsel, Mr Painter was forced to admit that he had had a conviction for drink-driving in 2011 when his blood alcohol level was said to have been .106, more than twice the legal limit.
The evidence of the paternal grandfather was that Mr Painter had told him that he had consumed two glasses of wine and had poured another on that day.
I accept that on 7 December 2013 Mr Painter had consumed three glasses of wine when X left the table to telephone her mother. On Mr Painter’s evidence, that was at about 5.30 p.m. on that day.
It was after these incidents that orders were made preventing Mr Painter from drinking alcohol while the children are in his care and for 12 hours before that time.
Ms Gale told Ms D that since those orders were made “assisted by the IVO, his behaviour has been quiet, there has been no drinking in front of the girls, and the animosity towards me seems less”.
She said further that she wanted the children “to be safe in their dad’s care, I accept that they want to spend time with him but if boundaries and supervision is in place, this focuses on the safety of the girls”.
At trial, the mother stated that Mr Painter’s behaviour was “OK” until he was stressed or challenged, when he “self-medicates”, drinks alcohol and “goes off the rails”.
Mr Painter told Ms D that his alcohol use had changed over the years and that while he had indulged in “binge drinking” when he was younger, he now only drinks “a couple of beers at football”.
In oral evidence given at trial, the paternal grandfather said that Mr Painter drinks wine with him at dinner while the children are present, but that he and Mr Painter had never argued about his drinking. He said further that he had never seen his son have too much to drink while at his home.
On the evidence of the father and paternal grandfather it is difficult to determine how much alcohol Mr Painter currently consumes or whether he currently does so while the children are in his care.
However, in circumstances where there have been two serious incidents which involved Mr Painter drinking alcohol while the children were in his care, both of which caused the children considerable distress, I find it prudent to continue the order preventing him from drinking at those times.
There are other incidents alleged by the mother which, if true, would cause the court to have concerns about the children’s emotional safety in Mr Painter’s care.
In early 2006, Ms Gale had taken Mr Painter to the Emergency Department with severe vomiting and diarrhoea. Both children were with them at the time, X was two and Y only few months old. Mr Painter became frustrated at the length of time he was required to wait to be seen and jumped over the triage desk which prompted staff to call Security who then restrained him.
Ms Gale says that X was very distressed at the scene and was “calling out about her Daddy”. I note that in his affidavit sworn and filed 11 August 2014 Mr Painter specifically chose not to respond to these allegations saying they needed no response.
Under cross-examination at trial he recalled the incident and conceded that Ms Gale’s depiction of it was correct. He said that he had been waiting a long time and that he had become impatient. He said further that his actions had had the desired effect and that he had been seen and placed on a drip shortly afterwards.
This incident shows a lack of self-control and a sense of self-centred entitlement which is disturbing, particularly given Mr Painter’s profession and the context in which it occurred.
Other incidents reported by the mother and acknowledged by the father are even more disturbing.
The first involved Mr Painter sending Ms Gale a text message on 12 July 2009 saying that his mother had died and asking her to tell the children.
Ms Gale reports the children as being devastated at the death of their Nonna and that she had spent some time in comforting them. The next day she had informed X’s teacher of her grandmother’s death so that she would understand if X became distressed.
On 15 July 2009 Mr Painter was to have spent time with the children pursuant to the 2008 orders. However he sent a text to Ms Gale saying that he was grieving the loss of his mother, that he did not feel able to look after the children, and that he “needed some time”.
On that day Ms Gale telephoned the paternal grandfather to pass on her condolences, only to be told that the children’s grandmother was alive and that the paternal grandfather had been trying to contact her to let her know that Mr Painter had “misinformed me”.
Ms Gale then had to explain to the children, who had been grieving for several days, that their grandmother was still alive. It is her evidence that the children were very confused and that they blamed her for telling them the lie.
When cross-examined about this matter at trial, Mr Painter said that he had sent the text message during surgery his mother was having on her heart. He said that there had been lots of uncertainty about her health and that there had been previous episodes when she had needed to be resuscitated. He described himself as being “beside myself” on that day. He did not deny sending Ms Gale the text three days later saying that he could not see the children because of his grief at his mother’s death, but gave no reason for it.
In relation to that incident, Dr C said under cross-examination that he thought that it “seems to go with his flamboyant ….personality. He has a certain personality style that’s rather flamboyant and dramatic, I feel”.
In my view, it is incomprehensible why a loving father would allow his children to believe for three days that their beloved Nonna was dead when that was not the case. That behaviour was cruel, insensitive, and utterly unnecessary, and there can be no excuse for it, especially in circumstances where Dr C is of the opinion that Mr Painter does not suffer from a psychiatric illness or a personality disorder which might have explained the behaviour.
In mid-2013, Ms Gale travelled to (country omitted) for a holiday and the children were looked after for part of that time by their father.
Whilst in (country omitted), Ms Gale suffered serious injuries in the form of fractures to both arms which required surgery. Those injuries were incurred when she fell off an elephant during an elephant trek. It was her evidence at trial that she had not only suffered physical injuries as a result, but that the incident had been very traumatic and that she had suffered for some time afterwards because of that trauma.
It was her evidence that Mr Painter told her during a drunken phone call that he had told his parents and the children that “my accident in (country omitted) was because I was drunk and stoned and crashed a motorbike into a wall”. That evidence was not contested at trial.
Further, it is not contested that Mr Painter sent Ms Gale a series of text messages making fun of Ms Gale’s accident in what was described trial as a “facetious and sarcastic” tone.
Mr Painter conceded at trial that while he found the text messages funny, it was unlikely that Ms Gale would have, but he commented that “I don’t have a vexatious or vindictive bone in my body” when talking about them.
Mr Painter’s behaviour surrounding what was a serious and debilitating injury to the mother of his children in a foreign country can only be called cruel and juvenile.
It is possible that Ms Gale might have been able to joke about the incident when she had well and truly recovered from her injuries and the trauma of having suffered them, but to make light of that situation in the manner and at the time chosen by Mr Painter contradicts his assertion about his lack of vexatious or vindictive bones.
In paragraph 12bb of the mother’s affidavit sworn and filed on 28 April 2014 Ms Gale describes an incident in July 2012 when “a homeless man invaded our home” while the children were with their father and caused “a mess of our whole house”. She says that she spoke with the father and specifically asked him not to tell the children about the incident so that she could clean the house up before they returned to her care so that they would be unaware of the incident.
However, she says, Mr Painter told the children about the incident and they arrived home “scared and not wanting to sleep in their own house in case the man came back”.
When asked about that incident at trial Mr Painter conceded that he had told the children that their mother “had some work to do cleaning up the house after a man had made a mess after breaking in”.
He said that the children had asked him why they couldn’t go home at the usual time and that he had told the truth, being “an honest father”.
Again, it is difficult to know why a parent would provide such information to children, particularly when he had been specifically asked not to. It would appear that Mr Painter’s need to be “honest” took precedence over his need to protect his children’s emotional health.
In relation to that incident, when asked what he made of it and other incidents, Dr C said at trial:
Well, I think it’s not a psychiatric issue. I think it’s more to do with his particular morality. It’s to do with his sense of responsibility, and probably – pure speculation – not wanting to be told what to do by his wife. “Don’t tell the children about what has happened,” so he told them just to be contrary.
Until June 2015 Mr Painter was sharing his rented accommodation with a housemate. At that time his housemate unfortunately died.
In paragraphs 11 to 13 of the mother’s affidavit sworn and filed on 13 July 2015 Ms Gale says the following:
On 7 June 2015 the girls returned home and said “you know Mr S? He died on the toilet”. I said “pardon??” X explained that her father had said that Mr S, (the father’s housemate), had died on the toilet that “dad found him dead on the toilet and had to go to his funeral”.
The children looked shocked when they retold the story about Mr S and I asked how they felt about it, knowing they spend time at the house and use the same toilet. Their response was that they felt a bit weird.
I was upset that Mr Painter would explain Mr S’s death in this way. It was not funny. It was likely to cause the children concern about using the toilet at Mr Painter’s house.
Mr Painter was asked about that incident at trial and the following exchange took place:
Counsel for the Independent Children’s Lawyer: Well it’s an awful position to have been put in to find him, yes?
Mr Painter: It is an awful position to be in.
Counsel: I do understand that…
Mr Painter: so when I found….
Counsel: I’m more interested in how the children came to know about it and what you actually told them.
Mr Painter: So, being honest I let them know that Mr S had died and that he had passed away on the toilet. And Y was scared for a while to go into the toilet because they believe in spirits. Yeah.
Her Honour: why did you think it was relevant to tell them where he had passed away?
Mr Painter: I’m not too sure your Honour. I’m not too sure why I told them where he passed away. Should I have said the back yard or the house?
Dr C described that incident at trial as part of “what most people regard as bad taste humour, I guess.”
On another occasion while the children were spending the weekend time with him in May 2015, Mr Painter’s dog “(omitted)” ran away on the Saturday. When the children arrived home on the following day Ms Gale says they were very upset at what they thought was the loss and possible death of the family dog.
In her affidavit sworn and filed 13 July 2015 Ms Gale says that she posted a message on Facebook with a picture of (omitted) hoping that would lead to his return.
She says that she sent Mr Painter a text message on the day after the children arrived home asking him to let her know if the dog were to be found. She says she received no response to that text message, a copy of which is annexed to that affidavit.
Ms Gale deposes that the children were upset for several days about the loss of the dog they had had for about seven years, until they came home from their fortnightly time with their father on the Thursday evening very excited because the dog had in fact been found at the dog pound on the Monday, the day Ms Gale sent the text requesting information from Mr Painter.
Again, the failure of Mr Painter to advise his children that (omitted) had been found indicates thoughtlessness and a lack of sensitivity at best, and at worst deliberate cruelty on his part.
In her Family Report, Ms D makes the following statement in relation to Mr Painter:
Whilst acknowledging paternal love for Y and X, it was observed that Mr Painter displayed a tendency to minimise maternal concerns, past history and the impact of his actions.
Ms D confirmed that opinion in oral evidence at trial.
Dr C’s evaluation of Mr Painter at the time he interviewed him included the following:
He displayed no psychiatric disability and had no history of psychiatric disability.
He showed a good understanding of the needs of his daughters including respect for their privacy.
It is in my opinion (sic) that his parental capacity in not impaired by any psychiatric condition and that there in (sic) no need for supervision of his access visits due to psychiatric problems.
However, Dr C stated under cross-examination by the father’s counsel that Mr Painter “doesn’t present a risk if he refrains from drinking” and “there’s a history of him being a risk when he drinks, as evidence by what happened on New Year’s Eve 2012”.
Mr Painter described his sense of humour to Dr C as “weird arse”, and said that he uses this style of humour to cope with difficult situations at work and in life in general.
Dr C said at trial that he thought Mr Painter has “this very odd sense of humour” and that “he’s someone who likes to create a stir”.
On several occasions during the trial I had to admonish Mr Painter for making sarcastic comments to the mother’s counsel who was cross-examining him, and his demeanour in the witness box overall was one of considerable contempt for the mother of his children, evasion when asked difficult questions, and a general sense of self-centredness, superiority and entitlement. He presents as a rather boorish man with what I would describe as a cruel and sarcastic sense of humour, and who takes pleasure in baiting people who he sees as his adversaries.
Under cross-examination at trial, he conceded that he had sought the assistance of a psychiatrist, Dr M (“Dr M”), in 2011 after being referred by his general practitioner. He said that he had done so after suffering some depression and anxiety following the breakdown of his relationship with Ms Gale (although I note that the parties had been separated for about five years at that point).
Mr Painter said that he had not agreed with Dr M’s diagnosis (which he said he could not recall), nor the medication he had prescribed, and that he had never seen him again. He said that he had thought that it was Dr M rather than him who had had problems.
When he was asked about that evidence under cross-examination by the mother’s counsel, Dr C stated that he had not known about Mr Painter’s view of Dr M, and had thought he had attended upon Dr M for a report.
Mr Painter again sought psychiatric assistance, from Dr P (“Dr P”) in 2013, and said in evidence at trial that the catalyst for that treatment had been his parents’ illness and the ongoing stress of his relationship with Ms Gale. He specifically denied that he had seen Dr P as a result of the events of New Year’s Eve 2012-2013.
Dr C was also unaware of Mr Painter’s attendance upon Dr P, or upon a psychologist named T, who Mr Painter had seen between 2004 and 2010.
It was the father’s further evidence that he had been seeing a psychologist, Mr G (“Mr G”), since February 2014 on a Mental Health Plan prescribed by his general practitioner.
Dr C was aware that Mr Painter had been seeing Mr G. He said that it was his practice to ask people who they had seen previously when he was interviewing them for psychiatric assessment, and that he expected them to tell him who they had seen. I gained the impression that he was slightly annoyed that Mr Painter had not done so.
As far as his ingestion of the sedative Diazepam (also known as Valium) was concerned, Mr Painter said under cross-examination that he was currently taking it on a PRN (that is, “as needed”) basis, and that he was taking approximately 2.5 or 5 mg every second day, or, rarely, 10 mg. He said that in general, he used a box of 50 tablets every three or four months.
However, when his Medicare records, which had been subpoenaed by the mother, were produced and tendered to the court, it became clear that Mr Painter’s use of Diazepam was significantly more regular than that.
The Medicare records show that he was issued with prescriptions for 50 Diazepam tablets on seven occasions between December 2012 and April 2014, a period of about 16 months. If Mr Painter had taken all those tablets, he would have taken an average of about 22 tablets each month during that time.
When asked about those records at trial, Dr C said that the amounts prescribed were not unusual or excessive for someone suffering from anxiety. He said that Diazepam was also prescribed for alcohol withdrawal or to help patients sleep, but he was unaware of it being prescribed to assist with marijuana withdrawal.
Overall, Dr C said that had he known that Mr Painter had omitted to tell him the whole truth about his previous psychiatric and psychological treatment, and about the level of Diazepam prescribed for him, it would not have changed his conclusion in relation to Mr Painter’s ability to care for X and Y.
Dr C specifically rejected the suggestion that Mr Painter’s behaviour indicated that he suffered from a personality disorder, saying that he thought that Mr Painter has “a very eccentric style”. Upon questioning from the bench Dr C confirmed that view, saying that Mr Painter was “quirky” and “rather than impulsive, he’s more better described (sic) as being spontaneous”.
Mr Painter’s behaviour as set out above, and his attitude to it as revealed in his presentation at court, indicate, in my view, that he is likely to pose some emotional risk to his children, despite his protestations of love for them and Dr C’s inability to diagnose him with a formal psychiatric illness.
However, the fact that Dr C was unable to find a formal psychiatric diagnosis, the fact that the children clearly love their father and want to spend time with him, Ms Gale’s evidence that Mr Painter’s behaviour towards her was better since he had been subject to an injunction on his drinking while the children were in his care, Ms D’s view that supervision of his time with the children is no longer necessary, and the evidence of the paternal grandfather at trial that the requirement for supervision or even continued substantial attendance would be onerous for the paternal grandparents, all combine to lead to a conclusion that it is not necessary to continue the requirement for supervision of the children’s time with their father.
Further, it is simply not practicable to have a parent’s time with his or her children supervised indefinitely. Even if I were made to make an order that the paternal grandparents be in substantial attendance at all times, the evidence in relation to their health would raise concerns about their availability into the distant future.
Mr Painter should not see this decision as a vindication of the appropriateness of his behaviour, not as a finding that the children are not at risk in his care. I find only that the risk he poses to the children is not unacceptable as it can be ameliorated by placing restraints on his behaviour in the orders I propose to make.
Were Mr Painter to disregard those restraints, he would put his relationship with his children in jeopardy in the future, because if there were to be another incident like those of New Year 2012-2013 or 7 December 2013, it is likely that the supervision requirement would be reinstated or that his time with the children would be conditional upon him providing evidence of his sobriety on a regular basis.
B. Should Mr Painter’s regular alternate weekend time with the children end on Sunday evening or on Monday morning?
It is agreed between the parties that Mr Painter’s regular alternate weekend time with the children should continue.
He is currently seeing the children pursuant to orders made by consent on 26 August 2014. Those orders, which do not appear to have been engrossed in compliance with the court’s directions made on that day, provide for Mr Painter to spend time with the children on each alternate weekend from the conclusion of school on Friday to 8.00 p.m. on Sunday, and from the conclusion of school to 8.00 p.m. on the intervening alternate Thursday.
It is Ms Gale’s case that that situation ought to continue, while Mr Painter seeks an extension of the weekend time to the commencement of school on Monday morning, and an extension of the alternate Thursday time to overnight such that he would deliver the children to school on Friday morning.
Under cross-examination by counsel for the Independent Children’s Lawyer, the mother gave her reason for wanting the children to return on Sunday evening as the children’s need to complete their homework before returning to school the next morning. She said the children receive their homework on Tuesday or Wednesday and she ensures that it is completed on Sunday evening.
In addition, Ms Gale said that it was her experience before the events of December 2013 that Mr Painter did not cope well with the children when they had been in his care for long periods. It was her view that the extra nights sought by Mr Painter would place extra stress on him.
In paragraph 31 of her Family Report, Ms D articulated to the dispute between these parents very succinctly as follows:
There is a long-standing history in this matter of parental conflict, mistrust and legal involvement. It is noted that Final Orders were made in this matter in December 2008 specifying that the girls live with their mother and spend regular and planned time with their father each week. Both parties described continuing challenges in the area of parental communication and decision-making. Mr Painter described Ms Gale as critical of his parenting responses and attempting to restrict his parental relationship with X and Y. Ms Gale described Mr Painter as engaging in unpredictable and aggressive behaviours and drinking alcohol to excess when the children were in his care. Both parties remained distrustful and critical of the other parent with extremely limited communication occurring between the parties.
That situation does not augur well for the emotional and psychological health of the children as they enter their teens.
It was Ms D’s recommendation in her Family Report that the time remain as Friday to Sunday each fortnight, with the Thursday time not to extend to overnight.
At trial, she confirmed that the children had said they wanted more time with their father, but stated that they had said that the current regime ought to continue during term times, and that the extra time they sought was during school holidays.
The Law
The law in relation to parenting matters is set out in Part VII of the Family Law Act 1975 (Cth) (“the Act”).
Section 60B sets out the Objects and Principles underlying Part VII in the following terms:
Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Section 61DAA states that if the court makes an order for equal shared parental responsibility of a child or children, then it must consider whether it is in the children’s best interests for the parents to have equal shared care.
However, as it is agreed between the parties that the mother shall have sole parental responsibility for the children, albeit that responsibility being conditional on her conferring with the husband about certain decisions, I am not obliged to consider the question of equal shared care.
In any event neither of the parties seeks an order for equal shared care.
It then falls to the court to decide whether to make an order for “substantial and significant time” between parents and children.
Section 63DA(3) and s.65DAA(3) of the Act state that:
a child will be taken to spend substantial and significant time with a parent only if:
(a)the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends or holidays; and
(b)the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c)the time the child spends with the parent allows the child to be involved in occasions and events that are of special certificates to the parent.
I note that the time sought by both parents in this matter is “substantial and significant time” pursuant to the definition in the Act.
Section 60CA of the Act states that when deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC then sets out the considerations a court must take into account when deciding what orders might in children’s best interests, and I will address each of these in turn.
There are two primary considerations set out in s.60CC(2), they being:
(a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b)the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Sub-section (2A) of s.60CC then states that in applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
That is, the court must consider the need to protect children from physical or psychological harm as being more important than the benefit to them of a meaningful relationship with both parents.
The meaning of the term “meaningful relationship” has been discussed in many cases before this court and the Family Court of Australia since this term was included in the Act in 2006.
In an oft-quoted passage from her judgment in Mazorski v Albright (2008) 37 FLR 518 Brown J said, at paragraph 26:
a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
I infer from that passage that Her Honour is saying that the “meaningfulness” of a relationship depends not on the amount of time the child spends with each parent but on the quality of that time.
In Tait & Dinsmore [2007] FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders [2007] Fam CA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
That is, in the context of this case, if the relationship between the children and their father can be said to be important, significant, valuable, healthy, worthwhile and advantageous to the children, and Mr Painter is able to “lead by example” in that relationship, then the benefit to the children in maintaining and developing that relationship must be a primary consideration of the court in considering what is in his best interests.
Pursuant to s.60CC(2A), the second primary consideration set out above takes precedence as it were over the first.
That is, the need to protect a child from physical or psychological harm is of greater importance than any benefit a child might derive from a meaningful relationship with a parent.
For the reasons set out above, X and Y need protection from their father’s drinking and drug use, and indeed from his damaging, facetious and sarcastic sense of humour, and I will make orders intended to provide that protection.
S.60CC(3) then sets out 14 “additional considerations” to which I must have regard in deciding what orders to make in the children’s best interests, and again, I will consider each one in turn. Those considerations are:
(a)any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
X and Y both told Ms D that they would like to spend a little more time with their father and a little less time with their paternal grandparents. This was not a reflection of any animosity they had towards the grandparents, but simply that they felt the need for more one-on-one time with their father. Ms D clarified at trial that the children had meant more holiday time, not more time during school terms.
X is now 12 years old and Y is 10. Both were able to articulate their views in a mature manner, and I will give those views considerable weight, although not of course as much weight as I would give to the views of children in their mid-teens.
(b) the nature of the relationship of the child with:
(i)each of the child’s parents; and
(ii)other persons (including any grandparent or other relative of the child)
What is clear in this case is that both parents dearly love both children, and that both children love both their parents.
However, the children have expressed discomfort with and even fear of their father when he has been drinking, and that fear, combined with the incidents described in the context of Issue A above, lead the court to find that the loving relationship between the children and their father has been damaged by the father’s behaviour.
There is no evidence that the relationship between the mother and the children is anything but warm, loving and appropriate.
Nor is there any evidence of the children having other than a loving and appropriate relationship with their paternal grandparents and indeed the children have stated that they feel safe in their grandparents’ care.
I have no doubt that Mr Painter loves his daughters. It is his behaviour towards them and in their presence which concerns the court.
(c)the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i)to participate in making decisions about major long‑term issues in relation to the child; and
(ii)to spend time with the child; and
(iii)to communicate with the child
The evidence before the court shows that since separation, most of the decisions about major long-term issues in relation to the children have been made by the mother.
Indeed, the father does not seek an order that he equally share responsibility for making those decisions, and is content to leave that responsibility to the children’s mother provided that he is consulted about them.
Mr Painter instituted these proceedings for the very purpose of ensuring that he could spend time and communicate with his children on a regular basis.
However the evidence before the court shows that there have been times since separation when Mr Painter has not taken full opportunity to spend time and communicate with them.
Ms Gale has had the full-time care of the children since separation and there is no evidence before the court that she has not taken every opportunity to spend time and communicate with them.
(ca)the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child
Ms Gale has supported the children from her earnings with the assistance of some Centrelink benefits since separation.
She has also paid child support to Mr Painter in circumstances where Mr Painter asked the Department to collect child support from her after her accident in (country omitted) in mid-2013 when he was looking after the children.
At that time, Mr Painter said at trial, he had lost income because of his need to look after the children, and if Ms Gale’s income had been garnisheed while she was not working as a result of the accident, then that had been a decision of the child support authorities. He said that he had complied with the law and that Ms Gale’s accident had not been his fault. He said it had been fair for him to seek child support from Ms Gale at that time because he had had to support the children while she was in (country omitted).
In my view, Mr Painter’s behaviour in insisting on receiving child support from Ms Gale for those few weeks showed a distinct lack of empathy for her plight at that time.
The question of the extent to which Mr Painter himself has fulfilled his child support responsibilities and obligations since separation was addressed at trial.
Mr Painter said that he paid child support according to the Assessment provided by the Department of Human Service (Child Support), saying “I don’t make the rules, I just abide by them”. He conceded, however, that his tax refund had been withheld by the Australian Taxation Office to pay arrears of child support.
What became clear in Mr Painter’s evidence was that he controls the number of shifts he works, and therefore he controls his level of income, which in turn affects the level of child support he is assessed to pay. He stated at trial that he would rather surf than go to work, and while that may be true for many of us, Mr Painter has taken steps to make it so.
At different times during the proceedings, Mr Painter told different professionals different information about his employment status, but at trial, he said that his earning capacity was as high as $220,000 if he were to work extra shifts and night shifts.
In fact, his taxable income as reported to the Department was $18,343 in 20112, $35,000 in 2012 and he had given a provisional income of $18,343 for 2013.
When it was put to him that he works only when it suits him and that his child support contribution is affected by that decision, Mr Painter said that that was how the child support system worked and that he believed this case was all about child support.
That is an extraordinary statement to have made when the proceedings were instituted by him, and Ms Gale had agreed to extend his time with the children during the proceedings, with her real concern being whether his time with the children ought to continue to be supervised.
At the time of trial, Mr Painter was unemployed, although it was his evidence that once the trial was over he would seek part-time employment in his chosen profession of (omitted).
Based on his child support history, the court has little confidence that Ms Gale can expect Mr Painter to support his children to the maximum extent of his earning ability.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i)either of his or her parents; or
(ii)any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living
The proposal of the mother provides no significant change in the children’s circumstances. She says that the current arrangements are working well, and that there is no need to change them.
The father’s proposal would see the children spending an extra two overnights per fortnight with him.
It is the evidence of the mother and of Ms D that the current regime is working well, and that there is no need for change.
(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 parties live within easy driving distance of each other, and there has been no suggestion that there is any issue with respect to any practical difficulty or expense in the children maintaining their relationship with their father.
Indeed, under cross-examination by counsel for the Independent Children’s Lawyer, Mr Painter stated clearly that there would be no problem for him in collecting the children from their respective schools and returning them to their mother’s home.
(f) the capacity of:
(i)each of the child’s parents; and
(ii)any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs
There is no evidence to suggest that either party lacks capacity to provide for the material or intellectual needs of the children.
However, on the basis of the evidence set out under the heading Issue A above, the court has some serious concerns about the father’s ability to meet the children’s emotional needs.
The children’s grandparents, who are proposed by the mother as supervisors of their time with their father, are elderly and in less than optimal health.
Nevertheless, evidence shows that they have been able to step in if they have felt the children’s interests have been compromised, and that the children feel safe in their care, or at least when they are supervising the father’s time with the children.
(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
As already stated the children are now 12 and 10 years old. Their maturity appears to be commensurate with their ages and, as puberty approaches, they will need special care and attention because of their sex.
While the court has concerns about the father’s ability to provide for the children’s emotional needs in a general sense, the view of Dr C that he has some understanding of the children’s need for privacy as they grow older gives me some confidence that he may be able to provide appropriate care and attention in that regard.
Mr Painter was adamant at trial that he is aware of the needs of his daughters and that he has the capacity to meet them.
The children’s father is of (nationality omitted) background, and there is evidence that the paternal grandparents have been able to pass on some of their cultural traditions to the children. There is no suggestion that that will not continue into the future, and indeed there is evidence from the both the father and the paternal grandfather that the children’s access and exposure to their grandparents will continue for the rest of their grandparents’ lives.
The mother is now 40 years old and impresses as a mature and loving parent.
However, while Ms D describes her as “a focused, responsible and nurturing mother to Y and X”, she also says that Ms Gale’s view of Mr Painter “appears set and unchanging, unconvinced or reassured by paternal statements or the assessment of Dr C, consulting psychiatrist”.
In view of the evidence set out under the heading Issue A above, and in light of the fact that once broken, trust between ex-partners is extremely difficult to re-establish, it would seem that Mr Painter has a long way to travel in order to convince Ms Gale that the children are safe in his care.
For his own part, the father, who is now almost 43, displays behaviours which can only be described as extremely immature, irresponsible and at times cruel.
He sees himself as the victim in these proceedings, and takes little or no real responsibility for the impact of his behaviour on his children or their mother. It is, in the vernacular, “all about him”, and he surrounds himself with people who appear to foster that view.
(h)if the child is an Aboriginal child or a Torres Strait Islander child:
(i)the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii)the likely impact any proposed parenting order under this Part will have on that right
This factor is not relevant in this case.
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
I have already said that it is not in doubt in these proceedings that both these parents love the children dearly and want only what is best for them.
Their mother has supported them, not only financially but emotionally throughout their lives, and she impresses as a responsible and caring parent, albeit one with a seemingly intractable distrust of their father.
Despite their love for him, it would appear, however, that the children have been traumatised and distressed by multiple incidents involving the father’s less than responsible behaviour.
The fear and distress he has caused them by his actions as set out under Issue A above, and his attitude to the child support he pays for them, reflect a serious disregard for his responsibilities as his children’s parent if those responsibilities conflict with his own desires.
(j)any family violence involving the child or a member of the child’s family
In addition to what might be termed the antisocial behaviour of the father as previously described in these reasons, the mother makes allegations that the father’s behaviour towards her at various times has amounted to family violence as defined in the Act.
These allegations include but are not confined to the following incidents the mother says have occurred since the making of final orders in December 2008:
(a)on 7 February 2009, when asked why he had not picked the children up from ballet, Mr Painter sent Ms Gale a sexually explicit and rather vulgar text message about his relationship with a new partner. He does not deny that allegation.
(b)in June 2009 Ms Gale informed Mr Painter that the girls would be late for the commencement of their time with him as they had head lice and she needed to treat it. When she arrived with the girls an hour late, Mr Painter was extremely angry and gestured as though to punch her while standing outside his house. He put the girls in his car, and as the mother was returning to her car, reversed out of his driveway and drove directly at the mother’s car, swerving only at the last moment to avoid a collision. The mother says she reported this incident to the police.
(c)on 20 March 2010 Ms Gale received a text message from Mr Painter in the following terms:
Fuck ur court orders. They are never final. I’ve got the next 18 yrs of this shit with u. I wish I could have just left and lost ur number years ago as others have done. But im stuck her for the sanctity pf (sic) my kids.
(d)Mr Painter’s behaviour became more erratic over time, that behaviour being witnessed by the children at changeover as well as being directed at her through phone calls and texts. He did not seem to remember previous conversations/ arrangements/texts which she says resulted in increasing frustration for both parties.
(e)After Ms Gale obtained an Interim Intervention Order against him on 24 March 2010, Mr Painter told her, while X was in the car, that “you can wipe your arse with your Intervention Order”.
(f)On 26 March 2010, while Ms Gale was taking Y to a dental appointment, Mr Painter followed her in his car, swerving between lanes, swearing out the window of his car and making rude gestures with his hands.
At trial, under cross-examination by the father’s counsel, Ms Gale conceded that it was a coincidence that she and Mr Painter had been in the same place at the same time, but said that he had taken the opportunity to abuse and the harass her on that day.
(g)On 30 April 2010 Mr Painter attended at Y’s kindergarten in breach of the Interim Intervention Order, saying that he just wanted to say hello to Y. It had been agreed between the parties that Mr Painter’s time with the children would resume on the following day.
(h)A final five-year Intervention Order was made on 26 August 2010.
(i)On 24 January 2012, at a time when the children were to be spending holiday time with Mr Painter, he dropped the children off on the street in front of the milk bar above which Ms Gale was living, and left. Ms Gale had been on night shift and was asleep, and there was no indication that she was at home at the time the children were dropped off. The children were nine and seven years old at the time.
At trial, Mr Painter denied the allegation, saying that he had knocked on the door, Ms Gale had opened it and the children had entered without any fuss.
(j)Mr Painter frequently made incomprehensible and meaningless statements in text messages and even in a document provided to the Department of Human Services (Child Support) in which, apropos of nothing, he said that he had not had a sexual relationship with (omitted).
In response to a text asking if he could let the girls know that they had after-school care the following day, Mr Painter sent back the following message:
Sorry man but passing the adult shop erotic night’s 50m from (omitted)’s (sic) electoral office I had to negotiate 9 pedestrian crossings, which reminds me have you or Mr B got 4lts of black paint and a aluminum extension ladder (sic), I finally got the results from the CSIRO on white ball powder indicating 0.13mcg of methyldianphetamine in .98 grams of masking agents Epsom salt, fruisimide and saccurine (sic). I figured is (omitted) child involved, na can’t be, she’s to busy (sic) bullying staff for bed space because she doesn’t get fucked properly and I thought why don’t they sell model glue alongside with shoe polish, it’s effectively penthrane, so I’ll try and remind them between breakfast and trading hour.
A screenshot of that text message is annexed to the mother’s affidavit sworn and filed 28 April 2014.
(k)Mr Painter became verbally abusive in front of the children on 25 January 2013 because X did not want to spend time with him, fearing that there would be alcohol at his home. Mr Painter aggressively accused the mother of manipulating the children. I note that 25 January 2013 was only few weeks after the incident when the children had been removed from the (omitted) campsite by child protection workers and taken to the (omitted) Police Station in the middle of the night.
(l)On 30 July 2013 when Ms Gale was speaking to Mr Painter on the telephone after she had been injured in (omitted), Mr Painter became angry and in the presence of the children screamed at her that he had lost $4000 worth of work because he had to “look after these fucking kids”.
(m)On 14 September 2013 X rang Ms Gale while in her father’s care saying that she and Y were afraid and wanted to come home, as Mr Painter was yelling at them and generally behaving in a manner similar to his behaviour on the previous New Year’s Eve. Mr Painter verbally abused the children for calling their mother, and then took the telephone from X and verbally abused the mother for interfering in his relationship with his daughters, including calling her a “dumb bitch”.
(n)Mr Painter was abusive to her parents both in person and on the telephone and frequently contacted them in an attempt to get Ms Gale to agree with him about arrangements for the children.
(o)Mr Painter has frequently left abusive telephone messages on Ms Gale’s voicemail.
Certainly some of those allegations amount to allegations of family violence as defined in Section 4AB of the Act.
In paragraph 28 of her affidavit sworn and filed 13 July 2015 Ms Gale deposes as follows:
His behaviour has not changed. He is still angry, impulsive, vengeful, confusing and difficult to co-parent with..
And later, in paragraph 30:
I just want my children to be able to spend time with their father in a fun, safe, loving and emotionally and financially stable environment, as any child is entitled to.
Under cross-examination by the father’s counsel at trial, Ms Gale rejected the suggestion that all the conflict between the parties was in relation to communication, and said:
He has driven his car at my car with the children either in his or in mine so, no, it has not just been verbal. He has punched walls next to me, or a cupboard door next to me, when I lived with him. He has forcibly tried to re-enter my house when he was supposed to be on a supervised contact visit with the children. He didn’t have any supervision. When I said no, he tried to force his way back in and I called the police.
Mr Painter denies that he is violent, and he particularly denies that the incidents involving his car ever happened. At trial he described Ms Gale’s description of those incidents as “confabulated”. He admitted pulling his car up beside Ms Gale’s in March 2010 but denied that there had been any exchange between them or that he had followed or harassed her, which he said was “not in my nature”.
When questioned about certain aspects of Ms Gale’s affidavit material under cross-examination by counsel for the mother, Mr Painter said of the first affidavit that he had read it and put it in the bin. He said that he had found the second affidavit “offensive and incorrect” and that he had personally drafted and filed a Responding affidavit.
When asked about the statement he had made in the document presented to the Department of Human Services (Child Support), Mr Painter said that it was simply a sarcastic and gratuitous statement, and it was irrelevant to the question of how he treats his children.
When he was asked about the telephone call while Ms Gale was in (omitted), Mr Painter said that he was angry because he cared for Ms Gale and realised that she could have died. He said the loss of the $4,000 to $5,000 in earnings while he was looking after the children at that time was simply a fact. That is, he did not deny the allegation made by Ms Gale.
The answers Mr Painter gave to the other questions in relation to his abusive behaviour were frequently evasive and defensive, with him stating that he did not recall several occasions and incidents where he is alleged to have abused Ms Gale, and often denying facts until documentary evidence of their existence was placed before him.
For instance, when he was cross-examined about an incident when he was convicted for driving without a licence, Mr Painter was adamant that the police had got it wrong and that his car had been licensed at the time. He persisted with that view through several questions. When documents subpoenaed from VicRoads were tendered to the court, he reluctantly conceded that he had been wrong and that the conviction was appropriate.
Overall, his answers indicated contempt not only for the mother of his children, but for women in general, for opposing counsel and for the Family Law system as a whole.
When Dr C was asked about the rambling text, sent by Mr Painter and set out in paragraph 223(j) above, he said the following:
I don’t know what to make of it. It sounds to me like somebody who’s wanting to make trouble, and not wanting to appear compliant.
Dr C further said that he thought that the comments made by Mr Painter about Ms Gale’s accident in 2013 was most likely “one of his pranks”.
(k.) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i)the nature of the order;
(ii)the circumstances in which the order was made;
(iii)any evidence admitted in proceedings for the order;
(iv)any findings made by the court in, or in proceedings for, the order;
(v)any other relevant matter
An Intervention Order, naming the mother as the Affected Family Member, was made against the father in 2008, but the court has no information in relation to that order other than its existence.
In 2010, the father breached that order by sending a text message to the mother and was ordered to complete a Community-Based Order with 25 hours of unpaid community work. He did not complete the full number of hours of community work and was again dealt with by the Magistrates’ Court, receiving a sentence of a total of 50 hours of community work, which he completed.
As already stated, on 24 March 2010, as a result of receiving multiple abusive text messages and verbal abuse at changeover, Ms Gale made application for a further Intervention Order, and an Interim Order, naming her and the children as protected persons, was made on that day on an ex parte basis. The magistrate also made an order under s.68R of the Act suspending the parenting orders of 16 December 2008.
That Intervention Order, to last for five years and naming only the mother as an Affected Family Member, was made final on 26 August 2010.
On 11 December 2013, the 2010 Intervention Order was varied to include the children.
In 2015 Ms Gale was granted an extension of that Order, and it will now expire on 20 April 2016.
On 18 December 2013 an Interim Intervention Order was made in favour of the father, naming Ms Gale as Respondent, but the court understands that no final order was made as a result of that application.
On 17 September 2014 the father was convicted of breaching the varied Intervention Order and was sentenced to 3 months in prison, the sentence to be suspended for 12 months. The father appealed to the County Court against the sentence but that appeal was struck out on 27 November 2014.
At trial, the father referred to his breach of the Intervention Order as “almost – I won’t say the word laughable, but….”., which indicates both a lack of sensitivity towards his former partner, and a lack of understanding about the seriousness of the criminal offence of breaching an Intervention Order.
However, elsewhere in the proceedings, Mr Painter gave evidence that his conviction would have an impact on his ability to be appointed to positions which need a police check, so he clearly does understand the impact of the criminal conviction resulting from the breach.
The current situation is that there is an Intervention Order against Mr Painter which will expire on 20 April 2016, that Intervention Order having been made for the protection of Ms Gale and the children.
On the basis of the above evidence, I am satisfied, on the balance of probabilities, that Mr Painter has engaged in family violence under the definition found in s.4AB of the Act.
The children have either been the object of his abuse or have witnessed the abuse directed at their mother on many occasions, and I note that the ultimate consideration of the court when deciding what is in the best interests of the children is the need to protect the children from physical or psychological harm from neglect, abuse or being exposed to family violence.
(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
The orders I propose to make in these proceedings are not those sought by the father as they continue the current term-time regime into the future. They will however extend gradually to holiday time being shared equally between the parents.
In addition, the orders will provide enough flexibility for the parties to come to agreement on extra time for the children to spend with their father should that be appropriate in the future.
In those circumstances there is no reason why further proceedings in relation to X and Y should be instituted.
(m)any other fact or circumstance that the court thinks is relevant.
I am aware that I have not discussed the father’s evidence about the mother to any great extent in the course of these Reasons. That is because her behaviour is not an issue in these proceedings and it is agreed between the parties that the children will continue to live with her into the future.
For the sake of completeness though, it is pertinent to record that Mr Painter said under cross-examination by counsel for the Independent Children’s Lawyer that Ms Gale was “an excellent mother” who was involved in the children’s sporting and educational activities and who prepared good meals for them. He knows that the children love their mother dearly and said he would do anything necessary for the relationship between the mother and the children to thrive.
However, Mr Painter claims that any abuse he has directed toward the mother of his children, or indeed to the children themselves, has been the result of the mother’s provocation and manipulation.
Based on all the evidence before the court, I consider that position to be an attempt by Mr Painter to diminish his responsibility for the abuse and harassment suffered by Ms Gale and the children over the years.
When I take all the matters set out in section 60CC into consideration, I find that it is in the children’s best interests to continue to spend time with their father during school term times on each alternate weekend from the conclusion of school on Friday to 8.00 p.m. on Sunday, and from the conclusion of school to 8.00 p.m. on the intervening Thursday.
There is one more matter which I feel compelled to comment on, and that is the behaviour of counsel for the Independent Children’s Lawyer at trial.
The role of counsel for the Independent Children’s Lawyer is to remain impartial in his/her treatment of the parties, even if he/she holds instructions to support one or other party’s proposals.
In this case, it is my view that any reasonable person sitting in the courtroom during this trial might have thought that counsel for the Independent Children’s Lawyer was in fact advocating on behalf of the father.
His questioning of the father was what might be called “soft”, and Mr Painter was hardly challenged at all about the behaviour he had exhibited towards Ms Gale and the children.
In contrast, counsel’s cross-examination of the mother was vigorous and at times even hostile, to the extent that at one stage Mr Painter, who was sitting in the body of the court, came forward to the bar table and gave counsel for the Independent Children’s Lawyer a note of instruction about his cross-examination of the mother which was then then under way.
I mention this only to make clear that counsel’s quite inappropriate manner has not affected any of the decisions I have made in this case.
Nor has the Family Report of Dr J, which was prepared for the previous proceedings in 2008. The mother sought to make much of Dr J’s findings in these proceedings, but Dr J was not called to give evidence, and I did not consider her findings when making decisions about issues in dispute at this trial.
Conclusion
There is a view in some sectors of the community that one can be abusive to one’s former partner, usually the children’s mother, and still be an appropriate, loving and “good” parent to one’s children.
That is, in my view, a fanciful position.
In this case, what might be called Mr Painter’s psychological and personality vulnerabilities, and his self-focussed and belligerent attitude to the world at large, have caused considerable psychological and emotional harm not only to Ms Gale but to the children he professes to love.
He shows little or no insight into the impact of his behaviour on those children.
He will no doubt disagree with that assessment.
He would do well to reflect on his behaviour and its impact, preferably with the assistance of a qualified psychotherapist.
If he does not address his personality issues, there is a risk that the damage done to his children will be aggravated and will flow over into their own relationships as they grow older.
That would truly be a tragedy in the classical sense of that word.
I certify that the preceding two hundred and seventy-one (271) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 18 January 2016
Key Legal Topics
Areas of Law
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Family Law
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Civil Procedure
Legal Concepts
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Injunction
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Procedural Fairness
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Costs
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Appeal
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