Patino and Griego
[2010] FMCAfam 1422
•2 December 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PATINO & GRIEGO | [2010] FMCAfam 1422 |
| FAMILY LAW – Competing parenting applications – allegations of serious domestic violence – risk of physical and emotional harm to children – Mother have sole parental responsibility. |
| Family Law Act 1975, ss.68B, 68C, 69ZX, 69ZT, 61DA, 65DAA, 60CC, 60CA Evidence Act 1995, s.114 Universal Declaration of Human Rights Declaration on the Elimination of Violence Against Women Convention on the Elimination of Discrimination Against Women |
| Rice & Asplund [1978] FamCA, [1979] FLC 90-725 Browne & Dunn (1893) 6 R 67 (HL) Blanche & Blanche & Crawford [1998] FamCA 1908, (1999) FLC 92-837 Merryman (1993) 116 FLR 87 Oakley & Cooper [2009] FamCAFC 133 Aguilera v Reid, 2006 CanLII 6169 (ON S.C) - 2006-03-03 MMR & GR [2010] HCA 4 DCR & TMR, 2007 BCSC 1127-2007/07/27 Mazorski & Albright (2007) 37 FamLR 518 McCall & Clark [2009] FamCAFC 92, (2009) 41 Fam LR 483 at 509-510 Goode & Goode (2006) FLC 93-286 Marvel [2010] FamCAFC 101 Lewis & Wackett [2010] FamCA 717 U & U (2002) 211 CLR 238 M & M [1988] HCA 68; (1988) 166 CLR 69 B& B (1993) FLC 92-357 Bieganski (1993) FamLR 353 Dylan & Dylan FamCA 842 S & Baloyi (CCT29/999) [1999] ZACC 19; 2000 (1) BCLR 86; 2000 (2) SA 425 (CC) (3 December 1999) |
| Applicant: | MR PATINO |
| Respondent: | MS GRIEGO |
| File Number: | AYC 4 of 2008 |
| Judgment of: | Harman FM |
| Hearing dates: | 30 November 2010 – 2 December 2010 |
| Date of Last Submission: | 2 December 2010 |
| Delivered at: | Albury |
| Delivered on: | 2 December 2010 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Garwell |
ORDERS
I discharge all previous parenting orders.
That the mother, Ms Griego, shall have sole parental responsibility for the children, [X], born [in] 2004, and [Y], born [in] 2005.
That [X] and [Y] shall live with their mother.
That [X] and [Y] shall spend supervised time with their father,
Mr Patino, at the [A] Children's Contact Service as follows:
(a)On 4 and 18 December 2010, for a period of two hours;
(b)Thereafter and commencing 2011, on four occasions per year to celebrate:
(i)[X] and [Y]’s birthdays;
(ii)Father’s Day;
(iii)The father’s birthday;
(iv)Christmas.
And it is noted that these times will be arranged to suit the centre’s availability and may not occur on the actual day of those events.
That the father and mother shall keep each other informed of their postal addresses at all times, and notify the other in writing no more than seven days prior to any proposed change of address, of their new postal address.
That the mother shall do all acts and things to ensure [X] and [Y] receive all letters sent to them by their father, and the mother shall encourage the children to read such letters and respond to them.
That the father may obtain directly from [X] and [Y]’s schools:
(a)copies of each of the children’s mid and end of year school reports;
(b)copies of any written material pertaining to each of the children’s significant academic and extracurricular activities and achievements; and
(c)copies of school photograph order forms, so that he has the opportunity to order same.
That the parties, and each of them, are restrained from denigrating the other parent, or any member of the other parent’s family, in the presence or hearing of the children, or in anything written to them, and shall ensure that no other person does so.
Pursuant to s.68B of the Family Law Act 1975, the father is restrained from approaching [X] and [Y], other than is provided by these orders, and from attending at their school.
I note that the above order pursuant to s.68B is an order made under a provision of the Act relating to the personal protection of the children, and as such, pursuant to s.68C, comes attached with an automatic power of arrest without warrant in the event of allegation of breach and reasonable grounds to believe same has occurred.
Noted that the mother will facilitate time between [X] and [Y] and members of the extended paternal family, provided that:
(a)the father is not present when such time occurs;
(b)the mother is given prior notice of that time occurring;
(c)such time occurs in the mother’s presence.
All outstanding applications and responses are dismissed, and all issues removed from the list of cases awaiting hearing.
I make the usual order for the return or destruction, if that has been requested, of all subpoenaed material upon the expiration of the appeal period.
I request that the independent children's lawyer, as soon as practicable, meet with each of [X] and [Y] for the purpose of explaining these orders to them, as best they can. And in the event that the assistance or attendance of a family consultant for that purpose is desired, then I request that the registry give such assistance as possible to expediting same.
IT IS NOTED that publication of this judgment under the pseudonym Patino & Griego is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ALBURY |
AYC 4 of 2008
| MR PATINO |
Applicant
And
| MS GRIEGO |
Respondent
REASONS FOR JUDGMENT
These proceedings involve competing parenting applications with respect to two children, [X], born [in] 2004, and accordingly, six and a half years of age, and [Y], born [in] 2005, and accordingly, five and a half years of age.
The parties to the proceedings are [X] and [Y]’s parents, respectively Ms Griego and Mr Patino.
The parties have each filed material in these proceedings and I have read each of the documents identified in case outlines filed by each parent and by the independent children's lawyer.
I have also received into evidence a number of exhibits: three in the father’s case, and eight in the independent children's lawyer’s case. The father has been represented in these proceedings, Ms Griego has not, and the independent children's lawyer has appeared in the proceedings represented by counsel.
The orders sought by each of the parties are set out in a variety of documents. Ms Griego has filed a minute of orders in the proceedings as part of her case outline, which proposes that time would, subject to a number of conditions, ultimately build to alternate weekend overnight time. The conditions, however, relate to a requirement on the part of Mr Patino to undertake an undefined and unspecified programme that would be of some therapeutic assistance to him as a precondition of that time commencing. And prior to that, the time would be supervised.
The potential difficulty that arises with that position is that one of the exhibits in the proceedings, being a letter from the [A] Children's Contact Service, where visits are presently occurring, indicates that the Centre is not in a position to maintain a service for these parties on a long term basis, or indeed, very much beyond the short term after the conclusion of this matter, although they may be able to provide some assistance with periodic visits for special occasions.
Mr Patino, for his part, proposes, ultimately, that he would have a shared care arrangement with respect to the children. I say “ultimately” as, whilst it is clear that Mr Patino seeks to move as quickly as possible to a shared care arrangement, he has accepted in his evidence, and as his case has been presented, that this would be something that would be built towards rather than commence immediately. Indeed, to move from short periods of supervised time to that would seem counter indicated on any logical view of the evidence. That position is, indeed, the same position as was advanced when proceedings were dealt with by Henderson FM, and, ultimately, a decision was delivered by her on 2 December 2008, following two days of hearing, 26 and 27 November 2008.
At that time, at paragraph 18 of the judgment, it was indicated:
The father seeks equal time with his children. This resulted in ultimately his submission to me. He would like seven days a fortnight, but he accepts that at this time.
The judgment of Henderson FM is also before me, and properly so. Reference has been made to it on a number of occasions by the independent children's lawyer, and s.69ZX permits me to access and place such weight upon and give such significance to findings made in transcripts of prior proceedings, as the court desires. It would also be relevant and germane as there would otherwise potentially be a Rice & Asplund [1978] FamCA, [1979] FLC 90-725 issue in relation to this case although none is raised by either party or the independent children's lawyer. And I am satisfied, based on the evidence that has been presented that, if raised, such a threshold would have been successfully overcome in this case.
The prior reasons for judgement are also relevant as much of the evidence in this case is about change and whether change has occurred, will occur, and to the extent that it is suggested to have occurred, whether it is meaningful change, to overcome the difficulties and impediments that were identified by Henderson FM in her earlier judgment. This issue is also addressed in a quantity of other material in these proceedings and, in particular, a family report by a family consultant of the court, and a report of a psychiatric nature undertaken by Dr K, who also attended and was briefly cross-examined this morning.
The independent children's lawyer proposes that there be what I have paraphrased previously and as adopted in counsel’s submissions “identification content”, a terminology borrowed from the care and protection jurisdiction, whereby time would occur on four occasions per year and corresponding to special events, such as the children’s birthdays, Father’s Day, the father’s birthday and Christmas, and to occur not necessarily on those days, but as close to them as can be accommodated. The bases for that are numerous, and I will deal with that in due course.
History of the Proceedings
These parties separated on a final basis in 2007 and having had a number of brief separations prior to that. The parties have been fairly continuously involved in litigation since separation, both before this court and before State courts in relation to domestic violence proceedings.
These proceedings, having been commenced in 2007, mean that for the majority of these children’s lives, their parents have been at war with each other before this court.
The matter had, as I had indicated, been heard and determined by Henderson FM on a final basis, 26 and 27 November 2008. Shortly after that, however, arrangements broke down, and ultimately orders were made which suspended the orders of 2 December 2008. Following that suspension early in 2009, no time of any fulsome or real quality occurred at all until May or June of this year, when time commenced on a supervised basis through the [A] Children's Contact Service. That time had a number of difficulties starting, which each of the parties have sought to address in their evidence to apportion blame. But, in any event, ultimately, it did commence, and material is before the court by way of tender and exhibit comprising the notes from that centre which have some relevance to the issues that need to be addressed in this sad and, in some respect, tragic case.
I make that reference, as was alluded to by the independent children's lawyers in submissions, as the stark choice in this case represents a balancing of poor outcomes for these children. It is quite clear from the material produced by the contact centre, to which I will turn very shortly, that, indeed, these children do experience some real love for their father and express affection to him and for him. That is not disputed by Ms Griego, and that is not part of her case. She being largely, by the conclusion of evidence, supportive of the independent children's lawyer’s position.
The issues that really arise relate to a balancing of the primary considerations in a real and meaningful sense, it being suggested that the benefits to these children, whose right, if indeed it is found to be consistent with their best interests, is to have a relationship with their father, rather than the other way around, is outweighed by their right to safety, stability and consistency.
The Evidence
As I have indicated, affidavit material was filed by each of the parents and by a number of other witnesses.
In Ms Griego’s case, there was only her.
Mr Patino in addition to his own evidence relied on affidavits by his mother and his partner or girlfriend, Ms M all of whom were required for cross examination.
A proof of evidence was also produced by a counsellor, Mr B, who has been working with Mr Patino at different times from 2007 to the present. Indeed, his evidence would suggest there have been something in the nature of 13 appointments in total over that period, being a period of intense counselling in 2007 and then more recently in 2010.
The first witness who was called in the case was Mr B. The evidence that he gave and as was made clear from the material ultimately tendered in the case, being Mr B’s notes, was the matter of some controversy as regards Mr Patino, who felt that portions of the proof and opinions advanced therein were untrue and unwarranted and/or were damaging to Mr Patino’s case. Those portions, no doubt, related to statements such as these:
Mr Patino has admitted responsibility for being physically abusive to his former partner, Ms Griego [Being Ms Griego]. Despite this, Mr Patino can find justification in his opinions and defend them assertively. However, if he is challenged in what he understands is aggression, he will respond in kind. The worker offered Mr Patino to work on developing his assertiveness skills and continue work on his thoughts and beliefs that influence his negative reactions to others.
It was also remarked by Mr B that he was aware of a notification made by the police to him to provide counselling on 20 September 2010, arising out of an incident that had occurred at the home of Ms M, being Mr Patino’s partner, on 18 September 2010. That was the subject of some substantial evidence, and one of the documents in evidence is the police entry from their records with respect to that incident same having been produced on subpoena.
Mr B had also advanced comments as follows:
I cannot accurately judge how much verbal restraint Mr Patino is capable of, if challenged from another adult in the presence of the children. Mr Patino finds it difficult to back away from having his views challenged, as he highly values his point of view as his right. I am concerned Mr Patino may be verbally aggressive in front of children with other adults, if he perceives himself as being disrespected or attacked.
The notes of Mr B which have come into evidence through tender highlight similar matters. A number of those notes were the subject of cross-examination of Mr B and caused some degree of concern.
Mr B was asked directly as to whether he had concerns that
Mr Patino’s motivation in attending counselling with him in 2010 had been based on seeking to obtain a favourable impression from the court, rather than a genuine desire to change behaviour. That was a proposition, or a potential concern, that Mr B acknowledged and adopted.
It was put to Mr B that Mr Patino did not want to nor see the need to change his behaviour; that was also agreed with.
It was put to Mr B whether he doubted Mr Patino’s bona fides to having a commitment to behavioural change, and his response, curiously, was “a bit” plus, “He was proactive in making another appointment to see me.”
When asked about the last appointment that had been attended and whether Mr Patino was angry, Mr B agreed he was. It was put to him that Mr Patino’s voice was raised; again, he agreed. When asked, however, if Mr Patino was aggressive, the distinction was drawn by
Mr B as saying, “No, but I thought he was comfortingly assertive,” a phrase that I am not entirely certain of, but a distinction, apparently.
When it was put to Mr B that Mr Patino still had issues with aggression, Mr B’s response, “Yes, but only verbal aggression.” It was put to Mr B that his notes suggested an entry that Mr Patino was not going to change his behaviour because he likes himself as he is, and that was agreed. It was suggested to Mr B that in June of 2007, Mr B had terminated then probation and parole directed counselling on the basis that Mr Patino was not receptive to change; that, again, was agreed.
It was then put to Mr B that Mr Patino had indicated clearly to him in the last few appointments, i.e., weeks before this court hearing, that
Mr Patino likes himself as he is and, accordingly, was unlikely to undertake any fundamental change. The response Mr B provided to that proposition was:
Mr Patino initiated more time with me, despite being displeased with my report. I made clear to him the need to work on behavioural issues. His anger comes and goes. I would recommend further counselling. He has no detailed remorse for his behaviour, but acknowledges it.
It is certainly suggested, and it does not appear to be at all in dispute in this case, that Mr Patino is not always angry or aggressive - indeed, as Mr B has indicated, that this comes and goes. That is something to which I will return in relation to the independent children's lawyers’ submissions regarding consistency.
Questions were also put to Mr B, in a number of forms, that, the past behaviour complained of, including behaviour that led to convictions for assault and breach of domestic violence orders, were not so much acknowledged as inappropriate as simply an agreement by Mr Patino with propositions put to him. Mr B agreed that when propositions were put to Mr Patino by Mr B, being propositions that his behaviour was inappropriate, Mr B agreed that Mr Patino was not owning responsibility, but simply agreeing with a proposition when put to him. Ultimately, Mr B agreed that was the form in which the alleged acknowledgement had come about.
It was put to Mr B that on 19 March 2010, Mr Patino had told him that he was there attending counselling to address behaviour change, but he didn’t believe or consider that he had any issues with respect to violence. Mr B agreed and adopted that, and added the caveat that
Mr Patino saw violence as physical and not verbal or psychological at all. That is certainly somewhat troubling in light of some of Mr B’s notes, which, as indicated, are exhibits before the court, in which Mr B, quite clearly, has reported that he has advised Mr Patino that verbal and physical violence is, indeed, a form of domestic violence. That is also reported in paragraph 15 of the proof of evidence provided by Mr B.
It was put to Mr B whether he considered that it was significant that every relationship Mr Patino had had with a woman had ended in physical violence, and he agreed that this suggested that it was a serious and chronic issue. And notwithstanding Mr Patino’s conviction with respect to Ms Griego, that he still did not perceive any problem with violence or aggression, Mr B’s answer was that there has been, in his view, violence.
The notes produced by Mr B, as I have indicated, speak to that cross-examination and those answers. It is suggested, on 15 November, the appointment that I have referred to, that Mr Patino had attended and informed Mr B that he was very unhappy with the proof of evidence:
The worker[ being Mr B] said he needed to reflect in the report the level of concern in relation to his attitude to change and moderation of his aggressiveness and the concerns expressed in the police report dated 19 September 2010.
That police report, to which I have previously referred, related to an attendance at the home of Ms M and reads as follows:
Ms M had called [omitted] Police Station stating that she was having an argument with her de facto partner and that she wanted him out of her house. Ms M stated that the respondent was refusing to leave. Police attended and reasoned with the respondent, being Mr Patino. He refused to leave if he could not remove some of his belongings. Police remained at the scene for approximately 20 minutes before he, Mr Patino, handed over his keys to the house and left. Nil assaults or threats. Nil concerns for safety of Ms M.
There are a number of troubling matters arising from that note. Firstly, Ms M and Mr Patino both gave evidence in relation to the version of events recorded by the police. Ms M adopted, by and large, that version of events as an accurate reflection of what occurred. Mr Patino did not, and pointed out what he saw as a number of inaccuracies within the evidence, particularly relating to whether he had keys for the house or simply a remote control for a garage door. And, very importantly, whether he had ever entered the house, or whether he had, at all times, remained outside.
What is also puzzling, if not troubling, is that what is suggested by both Ms M and Mr Patino to be a fairly minor argument between them, at which time it would seem – and, again, it is not seriously in dispute – Mr Patino had had a drink, that the police are called. Certainly, Ms M and Mr Patino are consistent that Mr Patino had initiated the police being called and requested that it be done. It is just puzzling as to why that is how people would choose to deal with what each had described as a very minor disagreement between them.
The notes from Mr B make clearer some of issues the subject of in cross-examination of him. On 26 October 2010, the following is recorded:
Mr Patino said the Family Law Court activity had placed his relationship with his partner under a lot of stress. Mr Patino said he was experiencing high levels of frustration and finds it unnatural not to say what is on his mind. The worker reflected to Mr Patino that he has a high value on expressing himself. Mr Patino said if he thinks someone is criticising him, threatening him or doing the wrong thing, he will tell them so. Also, he said he could give back criticism or threats to another person in order to defend himself. The worker reflected to Mr Patino he appeared quite frustrated just talking about conflict with other people.
The balance of notes also contain similar concerns which might well be interpreted – and I am satisfied, on Mr B’s evidence, should be interpreted – as suggesting a lack of progress with the counselling.
On 24 September, there is discussion about frustration with time with the children and them being in his care for five days a fortnight not occurring straight away. And Mr Patino indicates he is considering pulling out of the court proceedings and not seeing the children at all, that is, if he didn’t get his way.
On 6 September, similarly, there was discussion about frustration with the pace of court proceedings and with the time being spent with the children. On that occasion, Mr B records:
I responded by talking about the effects of violence. I explained that women can still feel fearful years after emotional, psychological and, especially, physical abuse. I suggested to
Mr Patino, Ms Griego may still hold fears for her and the children. Mr Patino agreed that his past physical abuse was wrong and he would sooner walk away than physically assault a woman.
The final entry to which I will refer from Mr B’s notes is from
26 March 2010, early in the exercise of counselling. At that point in time, it is reported:
Mr Patino said he feels a lot of extreme anger towards his ex-partner, Ms Griego, because of the lengths she has gone to to prevent him from having contact with his daughters. The worker challenged Mr Patino on his need to start addressing his own behaviour, and probably more precisely, his attitude. The worker observed Mr Patino considered both the psychiatrist and court system are working against him.
In other parts of the records, Mr Patino also indicates that he feels the independent children's lawyer is working against him.
From Mr B’s evidence, one then turns to Mr Patino’s evidence especially in relation to some of the matters that have been raised by Mr B.
Mr Patino did not accept at all that Ms Griego was still fearful of him. It was specifically put to him in the following exchange:
Do you accept that Ms Griego may still feel fearful of you?‑‑‑No.
Do you accept that she may continue to in the future?‑‑‑No.
Do you accept that she would struggle to share parenting with you?‑‑‑She would, but that’s not because of fear, no.
And it’s not because of your violence in the past?‑‑‑No.
Mr Patino shortly thereafter indicated that he and his partner and their relationship with each other were going through a hard time. What is stark from the entirety of the evidence in these proceedings is that everyone, no doubt, has been going through a hard time, and I find no one more so than these two children, whose childhood has been nearly entirely consumed by these proceedings and the issues arising from them.
Much of the cross-examination of Mr Patino related to issues of violence and aggression. In particular, questions were put regarding domestic violence or apprehended personal violence proceedings that had been commenced by two [omitted] employees, being Ms E and an Ms B. Each of those persons ultimately obtained, by consent and without admissions, apprehended violence orders imposing prohibitions upon Mr Patino. It is suggested in their statements that there were a number of events that gave rise to those complaints. They include events on 28 January, when it is suggested Mr Patino came into the building to discuss a letter and had, what might be described as an altercation with Ms B; a phone call on 30 January 2009; further events arising from a phone call, or a number of phone calls, to each of Ms B and Ms E on 24 April. During all of these occurrences, it is suggested that aggressive behaviour, or what might have been referred to in
Mr B’s evidence as being “confrontingly assertive”, caused each of these daycare workers real concern for their safety, and hence the complaints that were ultimately made.
Neither Ms E or Ms B were called to give evidence in the proceedings, but their statements, prepared in the course of their employment, and as part, no doubt, of an occupational health and safety responsibility, were produced to the court under subpoena and tendered as an exhibit ICL2 and 3 respectively in the proceedings. I have accepted those documents into evidence, noting s.69ZT allows evidence to be given in a number of forms and for rules of evidence to not be strictly applied. I accept submissions put on behalf of Mr Patino that this evidence has not been tested, but it is evidence that is before the court, subject to weight, and, in any event, those statements form part of a business record.
What is troubling in relation to those allegations is that Mr Patino denied, almost in there totality, each of the allegations made by each of these women. It was suggested in Mr Patino’s evidence that the only thing that had occurred had been a phone call on one occasion in January, and there had never been a personal attendance, nor any of the other events that are referred to. Indeed, it is suggested that the one phone call that is conceded was perfectly pleasant and cordial.
During the course of cross examination in relation to those matters though the manner by which Mr Patino answered caused me to have some difficulty accepting his version. Not the least of my concerns is that, when challenged in relation to a number of the assertions, and particularly, it being put by the independent children's lawyer, that what was being put to him was contained within a document she was holding, the response given by Mr Patino was, “Well, yes, I would have to agree with that because you’ve got the statement.” When shortly before that, he had been asked whether a version of events he had given of a particular incidence in his affidavit was true, he had responded, “I don’t know. I would need to see my affidavit.” That causes me some concern that Mr Patino is careful to ensure that the answers he gives are consistent with written documents which would otherwise disprove his assertion.
Indeed, I am satisfied that in the majority of Mr Patino’s responses, he only made admissions to matters that were critical of him when there was a document available to the court which proved that which was being put, and when there was no such document, then he was far quicker to deny allegations.
Overall, and whilst matters of credit are not the sole basis for my decision in this case, one is left with little else in some respects, particularly as the primary issue, the focus of the proceedings, is one of character and personality as regards behaviour, conduct and violence.
On one occasion, when Mr Patino was cross-examined in relation to the reason for his being dismissed from [omitted] employment.
Mr Patino insisted for a time that he had been made redundant.
Mr Patino was challenged that he had been dismissed as he had been verbally aggressive towards a female member of staff, to the point of reducing her to tears. Mr Patino smiled and held that smile whilst answering, “No,” as though some degree of enjoyment was derived from recalling the experience.
The other aspects of Mr Patino’s evidence cause me, overall, some concern that the evidence he gave was given, in large part, in a fashion that was glib, overly self assured and at times, smug. Accordingly, when in conflict with other aspects of the evidence, including those to which I have already referred, Mr Patino’s evidence is not to be preferred.
Another aspect that was particularly troubling in relation to Mr Patino’s evidence, the focus of it being, after all, upon Mr Patino’s behaviour in the past, was, when I had asked him questions in relation to the offence of breach domestic violence order, for which he had been convicted
Mr Patino indicated that it related to him having sent 263 text messages over a space of three or four months, all of which were entirely related to issues pertaining to the children, such as confirming arrangements, changing times and the like. A few moments later, when cross-examined briefly by Ms Griego, it was conceded that, rather than there having been one conviction for breach domestic violence order, there were, in fact, two, and that the other matter had related to over 400 phone calls in a period of two to three months. The willingness to not frankly disclose those circumstances and, indeed, to minimise them troubles me.
Ms M gave evidence, and I accept her as substantially a witness of truth. The one puzzling element that I have previously referred to about the police being called may well have some explanation by Ms M having indicated on several occasions that Mr Patino had come to her home late of an evening, a very different time to the one Mr Patino had suggested, and that she could smell alcohol on him and was a little concerned. She expressed that her concern was not necessarily for immediate personal safety, but that she had baggage and bad past experiences of violence, and particularly related to alcohol with other men. She indicated Mr Patino was talking loudly, and as a consequence of that and of smelling of alcohol and by reference to past experiences personal to her, and the fact he was talking loudly, she felt uncomfortable.
It was put in cross-examination that surely one would feel more uncomfortable about having the police attending at one’s home, than having someone speaking loudly, and that was the one aspect of
Ms M’s evidence that appears somewhat incongruous, suggesting that she didn’t feel uncomfortable with the police attending, and particularly as the police had been there two weeks earlier in relation to a burglary.
Otherwise, to the extent that Ms M was cross-examined about the events that occurred on 18 September 2010, her evidence did not, in any material fashion, corroborate Mr Patino’s version and, indeed, in most respects, it suggested that Mr Patino’s version was quite different. And I accept, as I have indicated, Ms M as a witness of substantial truth, and accordingly prefer her version of events, and I am left with the troubling concern that the version of events given by Mr Patino is less than frank.
Mr Patino’s mother was also briefly cross-examined, and little of her evidence advances relevant causes in the matter. One issue that was raised in submissions, however, is that a proposal was put to Ms Griego in cross-examination that perhaps Mrs P would be a suitable supervisor. That, of course, came after Mrs P’s evidence. And to the extent that one might suggest that there is a Browne & Dunn (1983) 6 R 67 (HL) issue as to her not being questioned, and accordingly, there being no suggestion as to why she is inappropriate, that is explicable. It was not on the table as a proposal at the time.
The balance of the evidence by Ms Griego, who was cross-examined at some length, suggests to me that she has done her best to answer questions as truthfully as she can. Certainly from her evidence, there could be some criticism of Ms Griego as being unnecessarily stern and rigorous, rigid and inflexible regarding her attitude towards a number of issues that have arisen, particularly in the last 12 months, and surrounding matters related to the commencement of supervised time, and some issues that arose with respect to supervised time, including visits away from the site. However, the explanations given, were plausible in relation to why the first visit was delayed; it related to a number of matters regarding the three elder children of Ms Griego who live full time with her, and one of them participating in a netball grand final that both she and her mother wished to attend. And the request that had been made, after all, was to move time by half an hour. Certainly, the contact centre notes would suggest that there have been occasions when Mr Patino has also been unable to find his way to change arrangements.
The other criticism was in relation to Ms Griego being somewhat upset when discovering at the end of a contact visit, that the visit had not occurred at the centre, but at a bowling alley, albeit with supervisors present. Certainly, the contact centre records with respect of that incident do not suggest, in the vernacular, that Ms Griego put on a large song and dance about it, but simply that she had raised the concern, and perhaps had been a little snide in indicating, “It would have been nice to have been forewarned.” It is suggested that there was some indication in the documents that each of the parents had signed what an agreement should have alerted the parents to the fact that this was a possibility. But they were, to a large extent, the only substantial criticisms.
To the credit of Mr Patino and, in particular, Ms Garwell running his case, in closing submissions it was not sought to suggest, in light of the clear convictions that had arisen in relation to family violence in the past, that the presumption of equal shared parental responsibility under s.61DA should apply, or could. Indeed, once a finding is made that there has been family violence, the presumption is rebutted and I am so satisfied. However, the submissions put by Mr Garwell, no doubt on instructions, do not assist me a great deal in relation to the suggestion arising from the preponderance of material would suggest that
Mr Patino does not perhaps have an appreciation of what comprises aggressive or violent behaviour that might impact on others.
The contact centre material is the last portion of the evidence, save the expert evidence, that I will address. There are a number of troubling entries within the case notes. They are troubling for both positive and negative reasons.
A number of the entries, such as that for 19 June 2010, as I previously indicated, suggest real joy and satisfaction for these two girls in having a relationship with their father. It suggests that, on that occasion, [X] remained seated, but [Y] ran to her father and hugged him for a long time. It suggests that they interacted as one might well accurately describe as beautifully. And at the time of conclusion of the session, there were tears all round, no doubt, as a real indication of how much these children can benefit from time with their father.
The more troubling aspects though of the Centre’s evidence arises from the more recent notes, at about the time that the matter was last listed and leading up to this court hearing.
On 28 August a session occurred, which has been the subject of much cross-examination and submission. And as it has such significance, potentially, to these proceedings, I will dwell upon it. It suggests as follows:
Mr Patino arrived looking downcast and the worker asked him if he was okay. He said, “I don’t want to be here. This will be the last time I’m coming here.” Mr Patino told the worker that his solicitor had told him that the ICL had told her that he would not be able to see the children unsupervised. He also said that he had been told that he had to get a report from Mr B and Mr M, who has not provided a report, before the next court date, and he could not afford it.
It then goes on to suggest that the cloud under which Mr Patino had arrived followed him through the contact centre. It continues:
The worker asked the girls if they wanted to come down to the waiting room to see their dad. [Y] ran down to the waiting room and greeted Mr Patino. [X] said she would wait for Mr Patino in the kitchen playroom and asked the worker to tell Mr Patino to close his eyes when he entered the room. The worker told Mr Patino of [X]’s request, but he didn’t close his eyes when he entered the room. The worker asked, “Are you too scared to shut your eyes,” to Mr Patino. He said, “I just don’t want to be here,” and walked past the worker. [X] said, “Happy birthday,” and showed Mr Patino the tray of Play-Doh muffins. [X] picked up a soft toy donkey and said, “This looks like you,” to Mr Patino and then threw it at him.
It continues on with an incident, in particular, of [X] sitting on a chair, kicking soft toys that were on the floor, [Y] putting Play-Doh on a tray, and [X] taking one of the Play-Doh muffins and sticking it on her shoe. It is then suggested that the worker said to her, “That is not okay.” [Y] pressed both her shoes onto the Play-Doh muffin. The worker said, “I think I will pack up the Play-Doh now, because we need to keep it clean, and your shoes will make it dirty.”
Those matters were raised with Mr Patino in his cross-examination, and he suggested the record was anything but accurate, and that, indeed, the worker had been quite harsh and rude to his daughter, and as a consequence, he had made a complaint. It then continues on though:
[X] went to the toy phone and said, “I’m calling the police.” She picked up the receiver and said, “There is a mean man with me. Can you come and get him?” She hung up the phone and told Mr Patino, “They are coming to get you and put you in goal.” Mr Patino said, “I might as well go.” [X] left the room. Mr Patino said, “What are you doing, [Y]? Come and sit with dad.” [Y] said, “No,” and stayed behind the chair. Mr Patino said, “Well, I’m going,” and left the room and headed towards the front door. [Y] said, “Who care if dad goes. I hate everybody.” [Y] began to cry and went outside to the backyard. The worker followed [Y]. [Y] cried loudly and said, “I want mummy.” The worker said we would need to wait until the other worker came to the backyard, then we would call mummy. [X] came to the backyard and said, “Where is dad?” the worker told [X] that Mr Patino was waiting to talk to the other worker. The worker said, “Do you want to give your sister a hug? She is pretty upset.” [X] said, “No.”
It then continues on that:
Mr Patino had walked out of the playroom. The worker followed him to the front door and asked him what had happened. He said that [X] had picked up the toy phone and said, “It’s the police. I have got a bad man here.” Mr Patino said that, “Ms Griego fills their heads with this crap,” and reiterated he did not want to be here today and he wouldn’t be coming back. He said, “There’s no point,” as he won’t get to spend much time with the children anyway. He said he won’t put up with just having the girls every second weekend. He wasn’t going to be a babysitter on weekends so Ms Griego could go out. The worker said to him, “But surely spending every second weekend with the girls was better than nothing,” and Mr Patino reiterated that he wasn’t going to be a babysitter for Ms Griego at weekends. He said the girls wouldn’t miss him, and he was sick to death of the whole thing.
It continues on in a similar vein for some little time. What is regrettable about that incident is both the joy that these girls were quite clearly holding in their hearts at the prospect of spending time with their father that day though their father was perhaps emotionally not in the same place on his arrival and how quickly it ended badly.
The balance of the evidence then relates to the family report, which was prepared prior to Henderson FMs hearing of the matter, and the report commissioned shortly thereafter by Dr K.
The germane portions of the report by Ms L, I find, are the same as those quoted by Henderson FM. These includes paragraph 17 of the report:
During the assessment, Mr Patino’s presentation was unusually challenging and perplexing. He was stridently argumentative about the assessment sometimes, although not violence or engendering fear. Otherwise, he was quite pleasant, even likeable, cooperative and articulate, and the dramatic change between these emotional states was striking. One can only imagine, if that is a change in emotional states that these children have ever observed of their father, it would not only be striking, but entirely bewildering and confusing.
It goes on to indicate:
Mr Patino appeared singularly unable to grasp the concept that he could participate in the available processes, including mediation, to advance his own interest. It was anthema to him that anyone else, whether that be Ms Griego, a mediator, assessor or a magistrate, could legitimately influence the arrangements for his children, or that arrangements could be other than what he perceived as valid, ie, equal shared care. Of concern, Mr Patino was dismissive of domestic violence orders and minimised his criminal convictions. From his account, the anger management counselling he undertook by court orders in 2006 was of useful but limited value.
The evidence that is given by Dr K is even more stark. The report writer had observed a change in emotional state in a very short space of time, and that, indeed, the more preferable presentation put Mr Patino in the light of being likeable and pleasant. That is the commencement of Dr K’s assessment; he found the same thing. And the information that was provided to him certainly was suggested by him, in one part of his evaluation, as being inconsistent with any longstanding or continuing psychiatric or psychological disturbance. That included a good work record and other things. But it then turns to this: Dr K having been provided with a number of documents filed in the proceedings, including Henderson FMs judgment:
But it is the other documentation that I have read that gives the lie to that perception of him. It seems quite clear from the other documentation that he has been very aggressive; behaved quite irresponsibly; is not really sensitive to the needs of the children; doesn’t seem to be able to control his aggression; doesn’t seem to be able to communicate with the mother, and really, has behaved in quite [sic] acceptable ways, and in interview tends to gloss over all of that and make light of it.
It continues:
I understand that he has done an anger management course, and I think there is a recommendation that he do a parenting course, but I am not convinced that those things are going to make a significant difference. It is in view of the behaviour that he has demonstrated that I would be inclined to say this man should only have supervised access until and unless he demonstrates a fairly dramatic change in this behaviour and his attitudes. Before psychiatric, of course, would not make the slightest difference in this situation. If he would accept clear and firm counselling and guidance in terms of childcare/parenting, then things might improve and the matter can subsequently be reviewed. He demonstrated on a couple of occasions that he was not really capable of looking after the children appropriately, and it is for the court to judge how seriously that is taken. But I have to say that, in general, I think that one has to accept supervised contact for the time being at least.
The good doctor also gave evidence briefly this morning. Prior to giving that evidence, he was supplied with the material that the parties have filed prior to this hearing, as well as a number of other documents which have subsequently become exhibits.
The doctor’s evidence was not changed by the material supplied to him, and, in fact, the views that he had expressed were reaffirmed as a consequence of it. He was asked whether his opinion had changed, and responded:
My opinion remains much as I set out in my report. There is a deeply entrenched personality problem. He is still unable to control his aggression. He has no insight into the effect or the consequences of that aggression. The decision must be based on the behaviour that he has demonstrated. He is not cooperating fully, and that bodes ill for the future. Until and unless he can prove that he is able to change his attitudes and behaviour, supervised time is the only real option. There is no insight into behaviours or the effect of behaviours. I don’t think that he has changed, or that he will change significantly in the future.
I accept that Dr K, as was pointed out, indeed, by Mr Patino to Mr B, had only spent a period of two to three hours with Mr Patino before completing his initial assessment. Further, I accept that he has not seen Mr Patino since, and that the opinion that is expressed is based entirely on the material, some of which, as Ms Garwell has rightly pointed out, is not tested, but which, as I have indicated to that extent, particularly in relation to the two childcare workers, I accept and prefer over
Mr Patino’s. But the opinions expressed are, indeed, his opinions and they are opinions expressed with some force by him.
Domestic Violence and its impact on Children
The jurisprudence of this court dealing with violence is longstanding. It predates the inclusion within the Act in 1995 of a specific requirement to consider family violence and family violence orders. But a number of decisions, such as Blanche & Blanche & Crawford [1998] FamCA 1908; (1999) FLC 92-837 and Merryman (1993) 116 FLR 87 reaffirmed pre 1995 the vast importance of violence.
The requirement to consider violence also interconnects with the need to consider relevant social science that is available in the public domain, and accordingly, pursuant to s.144 of the Evidence Act 1995, is material that I am entitled to have regard to without it being specifically tendered or adduced by a party.
Cases such as Merryman, perhaps highlight and resonate with the issues in this case. That was a case which addressed the importance of domestic violence in a role modelling context. And I will return to that issue itself shortly.
Domestic violence, family violence, or however one wishes to term it, are nothing more than violence. Much turns in our legislation, particularly as part of presently extant government review of the legislation, and as considered in the not less than six reports commissioned for the Federal Government in the last 12 months on how this court deals with violence.
Violence and its consideration is fundamental to everything that this court does. It is the starting point for the inquiry in considering whether the presumption applies.
The definition under the Act as present drafted, although there is a bill before Federal Parliament to change that, is an objective and limited definition. It includes conduct, whether actual or threatened, by a person towards or towards the property of a member of the person’s family that causes that, or any other member of the person’s family, reasonably to fear for, or reasonably to be apprehensive about his or her personal wellbeing or safety.
As conceded by Ms Garwell, the convictions for assault and breach of domestic violence order compel a finding that there has been violence. And I prefer the term “violence” rather than to seek to dignify it, or place it into some lesser category by putting the word “family” or “domestic” before it. Violence is violence. And, indeed, in my mind, whilst it is often suggested in uninformed media discussion that family violence is different, separate and apart and less important than violence by strangers, it is far more important. It is violence perpetrated by somebody who is supposedly in, or has previously been in, a loving relationship with the victim. It is akin, in that sense, to home invasion, as a crime that does not only inflict violence, but fundamentally psychologically undermines trust and faith.
The definitions of violence in the community are far broader than under the Act. Full Court decisions such as Oakley & Cooper [2009] FamCAFC 133 reflect upon the fact that the limited definition of violence in section 4 does not preclude the court from looking at a broader scope of violence and behaviour, particularly as both s.65DAA(5) dealing with practicality, and s.60CC, dealing with the child’s best interests, allow the court to consider any other fact or circumstance that appears relevant.
There is a wealth of judicial authority, as I have indicated, as well as social science, regarding domestic violence, how it is applied, or addressed in this court, and, most importantly, its impact upon victims.
I turn to a number of those decisions, purely to set the tone for how violence is and will be viewed in these reasons and as an explanation of the orders that ultimately will be made.
In a majority decision of the South African Constitutional Court in S & Baloyi (CCT29/999) [1999] ZACC 19; 2000 (1) BCLR 86; 2000 (2) SA 425 (CC) (3 December 1999) in 1999, Sacks J gave this opinion:
All crime has harsh effects on society. What distinguishes domestic violence is its hidden, repetitive character and its immeasurable ripple effects on our society and, in particular, on family life. It cuts across class, race, culture and geography, and is all the more pernicious because it is so often concealed and it so frequently goes unpunished.
At the time of that decision, the South African Law Commission was undertaking a review of legislation, and that they adopted and borrowed from the United States Council of Juvenile and Family Court Judges, who offer this opinion on their website:
Domestic and family violence is a pervasive and frequently lethal problem that challenges societies at every level. Violence in families is often hidden from view and devastates its victims, physically, emotionally, spiritually and financially. It threatens the stability of the family and negatively impacts on all family members, especially children, who learn from it that violence is an acceptable way to cope with stress, or problems, or to gain control over another person. It violates community safety, health, welfare and economies, drains billions of dollars annually in social costs, such as medical expenses, psychological problems, loss of productivity and intergenerational violence.
The decision of Sacks J, to which I have referred, also links what I have already suggested is an imperative for this court in every decision regarding children and, that is, to have regard to social science research. It also refers beyond national legislation to international law, such as the Universal Declaration of Human Rights, which, after all, provides in its preamble that human beings shall enjoy freedom from fear. And fear is the product of violence; that is the subject of this case.
It also repeats similar statements in the Declaration on the Elimination of Violence Against Women, the Convention on the Elimination of Discrimination Against Women, all conventions to which Australia is a signatory, as well as the International Convention on the Rights of the Child.
The aspects of violence in this case relate not to overt physical violence, at least since 2006 or 2007, but this genuine malaise of aggression, or again, what is referred to by Mr B in his evidence, in far more euphemistic terms, as being some strident non-aggression, confronting assertiveness.
The issue of definition probably matters very little to those, such as the day care workers and Ms Griego, who are the subject of the behaviour and who feel, no matter what we call it, and what nomenclature is used to describe it, a genuine fear.
The other problems in relation to violence are identified also in jurisprudence, not only in our country, but overseas. In a decision of the Ontario Superior Court in Aguilera v Reid, 2006 CanLII 6169 (ON S.C) - 2006-03-03 Rogers J has the following to say, in relation to exactly that which is proposed by Mr Patino, equal shared care:
The concept of joint custody – [their legislation’s terminology, not ours ] calls for cooperation between two parents and an ability to focus on children’s issues. The children’s agenda cannot be held up by parental discord. It is noted in the Court of Appeal in previous decisions, the parties must have demonstrated an ability to communicate on children’s issues for joint custody or joint parental responsibility to be maintained.
Indeed, that very ethos is reflected in our legislation in the amendments of 2006 and the requirement to consider reasonable practicality, as the High Court has pointed to in MMR & GR [2010] HCA 4.
Rogers J also goes on to indicate, in relation to the interconnectedness of allegations of violence and joint custody:
In this case, there has been significant violence. The respondent seems to feel that all the problems in the family are to be laid at the doorstep of the mother. He accepts no sincere responsibility, although he made statements of regret, while continuing to blame the mother in cross-examination of her and in his own evidence. There has been no communication between these parties, as the mother rightly fears the respondent. Violence means the parties cannot cooperate. The level of violence in this case is very significant and it clearly rules out any possibility of joint custody.
In another Canadian decision, Ross J of the Superior Court of British Colombia DCR & TMR, 2007 BCSC 1127 – 2007/07/27 gives a useful synopsis of jurisprudence in that country, as follows:
In Jordan & Jordan, Joyce J discussed factors to be considered by the court in relation to joint custody orders. I am satisfied that the ability of the parents to communicate and cooperate remains an important factor when considering the best interests of the child. This is apparent from a number of decisions which are quoted. It is not the only factor to be considered, however. In my view, some other factors that are relevant to this inquiry include the ability of each parent to make proper decisions for the child, the extent to which the child will reside with each parent, distance between them, the extent to which the parties’ parenting styles differ and, consequently, the extent of which their different parenting styles may provide opportunity for disagreement or confusion for these children, the harm that may be caused to the child by parental disagreement and areas of conflict which create an atmosphere of conflict and the nature of the disagreements in the past, particularly when they have related to access issues that are likely to be resolved by a court issue, or whether they concern matters of child rearing that are likely to continue to arise. These are not necessarily all factors that have a bearing on what sort of custody order is in a child’s best interests, but some of the important ones.
Indeed, nearly all of those factors are reflected in s.65DAA(5). It concludes:
It is clear that the relationship between the parents is extremely acrimonious. Whilst it would clearly be in the child’s best interests for that relationship to improve, given the time that has passed since separation without improvement, it is unrealistic to assume that there will be any improvement in the future. These parents have not shown an ability to communicate and cooperate on any level.
Those words resonate with the factual circumstances of this case. The other matters that is of some importance relates to factors to which I will return shortly as to a meaningful relationship. In Mazorski & Albright (2007) 37 FamLR 518, a Full Court decision, and in McCall & Clarke [2009] FamCAFC 92, some discussion occurred as to what is a meaningful relationship. It was described as being as follows:
A relationship to be meaningful must be significant. It must have some meaning, both to the parents but, more importantly, to the child. And it is, indeed, for me, an exercise in prospective decision-making. I must try and predict what will best achieve a meaningful relationship. Social science tells me that an arrangement that is hastened too quickly for the development and age appropriate needs of a child will not achieve a meaningful relationship, but will have the potential to disrupt a secure attachment with the other parent, and to produce an insecure or disorganised attachment with the parent spending time.
They are also germane and important elements of this case.
The Legislative Pathway
The Family Law Act, and as interpreted by the Full Court in cases such as Goode & Goode (2006) FLCA 93-286 and Marvel [2010] FamCAFC 101 provides a very clear pathway for decision-making in any parenting case under part VII.
I must firstly consider the objects and principles of the legislation, but they are not operative parts of the law, simply philosophical statements of what the court should try and achieve through the orders that are ultimately made, bearing in mind that s.60CA requires that the child’s best interests are paramount at all times.
One is required to turn to whether the presumption applies under s.61DA, and it is conceded that it cannot and should not in this case. That does not preclude the court making an order for equal shared parental responsibility, it simply means that the presumption does not apply.
If the presumption does apply, one is required to consider equal and substantial and significant time before considering any other time arrangement. Whether the presumption applies or not, one is still entitled to consider s.65DAA.
Having considered each of those, there is the dual test to which I have referred of whether an arrangement which the court proposes to order is reasonably practical and whether it will promote the children’s best interests as defined in s.60CC. This is, indeed, a case in which the primary considerations, as set out in s.60CC(2), being the benefit to the child of having a meaningful relationship with both of the child’s parents, and the need to protect the child from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, are inherently in conflict. And in my mind, and as reflected in proposed legislative provisions in a draft bill before Federal Parliament which will reinforce and support my opinion, harm must always outweigh any other issue.
Austin J, in a recent decision of Lewis & Wackett [2010] FamCA 717, made a number of clear pronouncements with respect to both the application of those provisions to any particular case and the method by which the court should approach issues of violence. He indicated as follows:
The High Court has recognised as self evidently true that apart from cases of abusive relationships, children benefit from the development of a good relationship with both their parents.
Quoting U & U (2002) 211 CLR 238 His Honour continued:
The need to promote prospective meaningful relationships between the children and the father as a deemed advantage to the child must be balanced against the disadvantages such a strategy would likely bring. The risk posed to the children by the father springs from his long history of family violence, to which it is necessary to now turn.
In that case, allegations of striking similarity to this case arise at and about the time of separation, there were charges of assault and convictions; there was a domestic violence order; there were subsequent convictions for breach of the domestic violence order. Similarly in that case, a repetition by the father involved, who ultimately did not attend or participate in the final hearing, that the shared care he sought was best, and if not ordered, that he would walk away. His Honour also makes the following comment:
Although the father concedes his past family violence, he minimises it, which only serves to compound his apparent lack of contrition. He blames his assault upon the mother on his reasonable irritation at her unreasonable behaviour and limits his admission about his conduct to simply a concession that he hit her, when it was suggested in that case far more had happened. The father also disavows blame for the circumstances that led the police to apply for a family violence order against him. He infers that the imposition of the family violence order against him was wholly unnecessary. The father also attributes his attack upon the mother to a psychological condition beyond his control and drug dependence. He asserted to the family consultant at an earlier stage of the proceedings that the violence was nowhere near as bad as the mother and others alleged, and that he presented no risk at all to his children.
Chillingly, that case also involved an allegation which post-dated the family report and the father’s protestation that nothing had or would occur in the future to an event that then occurred relating to violence in relation to both the mother and others on 19 September 2009.
In turning to the objects, I incorporate those within these reasons. They provide that:
To ensure that the best interests of children are met, the court should ensure the 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, protecting children from physical or psychological harm, from being subjected to or exposed to abuse, neglect or family violence, ensuring that children receive adequate and proper parenting, and ensuring that parents fulfil their duties.
The principles then underlie the objects and contain similar statements. What is to be observed in relation to the objects is that they are, in essence, a statement of rights. And to be clear, these children have rights. Their parents have obligations and responsibilities. The parents in this case have one right, and only one right, and that is a right of procedural fairness to be heard and to present their case before the court. All other rights reside within these children, that is so from the clear statements of the Act and from international treaties, some of which I have referred to.
Balancing the Primary Considerations
Being satisfied, as I am, and, indeed, not being a matter of controversy at the conclusion of submissions, that the presumption of equal shared parental responsibility should not apply, and noting, in any event, that an order was made by Henderson FM on 2 December 2008 for sole parental responsibility, I am not require to consider equal or substantial time. But any time arrangement that is considered must be done so, as I have indicated, by balancing both reasonable practicality under sub.s(5) of s.65DAA, as well as the relevant s.60CC factors.
In relation to reasonable practicality, that requires that I consider:
a)How far apart the parents live - They are in close proximity.
b)The parents’ current and future capacity to implement an arrangement for the child. These parents have struggled to maintain or support any arrangement between them without substantial involvement from this court; four files worth. The parents have not, since shortly after their separation, had any real respite from litigation.
c)The parent’s current and future capacity to communicate is non-existent, and I accept that it will continue to be so for the foreseeable future.
d)The impact of the arrangement on the child and any other matters the court considers relevant. I will deal with the impact on the children of any time arrangements in accordance with the parties’ respective proposals as part of s.60CC.
I am satisfied in relation to the benefit of the children having a relationship with their father, that these children do have benefits that they can receive from that relationship. The issue though is whether they outweigh the need to protect the children from the negative or potentially negative consequences of that relationship.
It must also be borne in mind that the primary consideration, and accordingly the focus of this case, is not the benefit of the children having a relationship with their father, but the benefit of the children having a relationship with both of their parents. And in this case, I am satisfied that the two have a greater than usual interconnectedness and that, indeed, there would be some potential, having regard to case law, some of which I have been referred, such as M & M [1988] HCA 68; (1998) 166 CLR 69 and B & B (1993) FLC 92-357, that, the stress and the problems that arise and surround the relationship would have the potential to have some substantial negative impact upon the children’s relationship with their mother.
The two parental relationships have a connection, and that connection has as its fulcrum these children.
Ms Griego’s evidence is clear that during the period of time between suspension of Henderson FMs orders and the commencement of supervised time, that this was the most stress free period that either she or the children have experienced since separation and, I am satisfied, probably since the children’s birth.
These children have very little of their childhood left, and what they have had thus far has been plagued with conflict.
The harm to these children is not in any way related to any suggestion that Mr Patino has, with one exception, ever placed them in physical danger. The one exception pre-dates Henderson FMs orders and relates to an incident whereby Mr Patino, when intoxicated, took the children and drove away. That was, indeed, the subject of some of the cross-examination of Mr B, who indicated that no charges followed that, and that Mr Patino had suggested to him that he could not be charged, because they were his children and he could not kidnap them. Certainly, whilst that is a correct statement at law, it is perhaps not helpful for these children. Also, as part of that incident, Mr Patino had referred to wanting to drive the children into items and harm them, or which would have had the affect of harming them, for which he has expressed regret and contrition.
There is nothing resembling an acceptance of responsibility or regret or contrition, however, as regards actions towards Ms Griego, or for that matter, the childcare workers or the co-worker at the council.
The danger, as I have indicated, does not come from a risk that this man is going to physically or sexually abuse his children. The danger is perhaps less tangible, less visible, but no less real and perhaps more insidious than that. The danger, as alluded to in case law to which I have referred, and also cases such as Bieganski (1993) 16 FamLR 353 is that these children will experience no consistency. That has been demonstrated in the contact centre records to which I have referred. Sometimes it is up, sometimes it is down.
Ms Griego’s evidence suggests that when the children are doing well and settled before they go on visits, the visit tends to go badly and the converse, when they are distressed and upset, it tends to go well. I do not know what that means, but it could well be explained as being that these children’s sense of expectation is more easily met when they are not expecting much.
The love and affection that they demonstrate and are at times observed to display at the contact centre makes it very difficult to determine what is going to be the best arrangement for these children in the future. But that is what the court is called upon to do today, and will. This matter has been extant for over three years and will be concluded by orders shortly.
The additional considerations both stand alone, as Carmody J has pointed out in Dylan& Dylan FamCA 842, but more importantly, form the basis to inform the primary considerations.
In relation to the children’s views, there is very little evidence. I certainly am not faced, as Austin J was in the case to which I have referred, by evidence that these children are rejecting a relationship with their father. Indeed, what is observed in the contact centre notes would suggest that, indeed, what they are craving is the type of relationship with their father that I am satisfied they have with their mother: stable, consistent, predictable and loving.
The father’s relationship, whilst loving, does not have any of the other elements. That relates to the nature of these children’s relationship with their father. There is not perhaps ambivalence by these children, but confusion. They do not understand. They do not know how to emotionally process things such as that which happened in August, when their father arrives, quite clearly, not wanting to be there, and quite clearly, easily upset and, as a consequence, rejecting, or at least in the minds of these children, rejecting them, something which I have no doubt whatsoever they have experienced many times before in the past, whether intentionally, or I would prefer to think, unintentionally.
The willingness and ability of each of the children’s parents to facilitate a relationship is problematic. Mr Patino suggests that Ms Griego does not in any way support or encourage his relationship, but that is contraindicated by the evidence.
Ms Griego has sent cards, helped the children send a text message, which was viewed as part of the evidence, and does more than one might expect her to do in light of the history of her relationship with Mr Patino, to acknowledge, support and encourage that relationship. She is greatly criticised in relation to the slight delay that occurred in supervised time commencing, but that is to be remembered (a) she had plausible explanation, and (b), was at a time when Mr Patino was away, and when Mr Patino, from both the records of Mr B and documents ultimately filed with this court, was ambivalent as to whether he was proceeding at all, if supervision was all that was on offer.
The likely affect of any change on the children is a matter of real significance in this case, and, as I have indicated, is also relevant under sub.s (5) of s.65DAA. Any increasing time as is urged upon me by
Ms Garwell would have the potential to give these children the opportunity of a more fulsome involvement of their father in their lives and the benefits and he has to bring them. And I accept, based on what I have read of the contact centre observations, when things are good, they are good. The difficulty is, when they are not, they are very, very bad.
The likely affect on the children of reducing their time below the subsistence level of time that there is now is that those benefits will be cut off, but they are benefits which clearly, from the evidence of the report writer and Dr K, require a commitment to, and an actual demonstration of change.
As is put in the ICLs submissions, there is in fact an overall impression of Mr Patino talking the talk but not walking the walk. And in the records tendered from Mr B’s records, something far clearer than that. One is left with the distinct impression that it is a process that has been suggested as important to produce evidence to satisfy the court of a commitment to an actual change, but it is, frankly and candidly conceded on at least two occasions, that he is there because people have told him it is good for his case and that he has no desire to change.
It is that personality, whether it is indeed, as is opined although not diagnosed by Dr K, a personality disorder, or whether it is just some unattractiveness of or repugnant character that creates the difficulties in this case.
Certainly, the independent children's lawyer submits that consistency is important for these children, whilst it has been remarked by Ralph Waldo Emerson that “it is the hobgoblin of small minds”. Children have small minds; they need stable, consistent, predictable arrangements. And for things to be up and down, in and out, as they have been, is clearly not in their best interests.
There is a real practical difficulty because if, as I am urged, supervision is to continue, and that is certainly supported by the family report writer and Dr K, the contact centre has, as is an exhibit in the proceedings, indicated clearly in writing that they cannot maintain that on the basis that it presently is, but only periodically.
The capacity of each of the parents to meet the children’s needs, including emotional and intellectual needs, was a matter of some submission. I have no doubt that both parents can meet these children’s physical needs. It’s their emotional and intellectual needs that are the crux of this case.
The maturity, sex, lifestyle and background of the children has some relevance, as they are very young. They are very impressionable, they are very vulnerable, and they are at a very important part of their emotional development. And harm to their psyche at the moment will have long lasting impact for the rest of their life. It will impact upon their self esteem, their choice of partners, and there is a volume of literature available in the social science field as to the potential disadvantages, if not real, to which these children will be exposed.
There is also potentially a significant disadvantage to them of cutting off those glimpses of healthy relationship which they have experienced in the past with their father, but one must balance those two considerations.
It is not suggested that these children identify, or either parent identifies, as Aboriginal or Torres Strait Islander.
The attitude to the children and responsibilities of parenthood is a matter of some moment. There is little, if any, child support paid. That may or may not be consistent with a child support assessment. But it is clear that the children’s primary care is and has always been with their mother, and I accept, as I am urged to do by the independent children's lawyer, that I must protect that relationship as it is the bedrock of stability and consistency for these children, without which their lives would be somewhat fraught.
As regards family violence and family violence orders, there is no family violence order at the moment. An extension of a past order was applied for, but has been heard, determined and refused. But the family violence that has existed, as I have indicated, is violence not necessarily of a physical nature, but of a broader category that creates insecurity and control, and that insecurity and control impacts directly upon these children.
As to whether it would be preferable to make an order that avoids future proceedings, that would not, in most cases, and on a simplistic interpretation of that factor, be of any real relevance when one is making final orders. But I am concerned that any order that I make, bar an appeal from that order, which provides for fulsome time, is bound to bring this matter back to court sooner rather than later, as has been the case following the orders made by Henderson FM.
The extent to which either parent has fulfilled or failed to fulfil their responsibilities under sub.s (4) does not have any great weight or application in this case, save that there is certainly the suggestion in
Ms Griego’s case that she has not been a recipient of support, financial or otherwise in the parenting of the children. There is no real suggestion, and indeed since Henderson FMs orders, no obligation to consult in relation to decision-making and thus no opportunity to have failed to participate.
All of those issues, when reflected back to the evidence in this case, give me no comfort whatsoever that the positive benefits that these children could possibly derive from a relationship with their father, as by making orders as proposed by him, will eventuate.
I am not satisfied at all that I could make orders at this point in time for equal or substantial and significant time. Such an arrangement is not reflective of the present state of relationship between these parents or their complete inability to communicate, problem solve and make joint decisions. So much is conceded by Mr Patino, who concedes, whilst doubting the bases for it, that Ms Griego is not in a position to share care, whether that is physical or decision-making power.
The choice then is between a set of orders that will provide for, at best, minimal identification contact, or something else. The real yardstick for that, I am urged by Dr K, and accordingly, the independent children's lawyer, is an absence of demonstrated change in behaviours by Mr Patino and especially since the matter was last before Henderson FM some two years ago. Indeed, I note, that Henderson FM had indicated that at that point, she would have made an order for no time, but for the fact that she was urged and encouraged by Ms Griego then to make orders for time. But how quickly those arrangements broke down after being ordered suggests to me that perhaps the change in heart that Ms Griego had in supporting that experiment was not an insightful one.
I cannot be satisfied, regrettably, on the evidence that is before me, that there has been any change in attitude, any desire to change attitude, or any reduction in the level of aggression and lack of cooperation between these parents that would allow these girls to safely have the opportunity to experience the potential positives of the relationship that they could enjoy with their father, but for those deficits. And, accordingly, I am satisfied that the only orders at this point in time that are open to the court to make are those as proposed by the independent children's lawyer.
And, accordingly, and for all of the above reasons, I make orders in accordance with the minute of orders proposed by the independent children's lawyer, exhibit ICL8, and as follows.
I certify that the preceding one hundred and forty-eight (148) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 10 March 2011
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