Pillai and Doshi (No 2)
[2011] FamCA 36
•3 FEBRUARY 2011
FAMILY COURT OF AUSTRALIA
| PILLAI & DOSHI (NO. 2) | [2011] FamCA 36 |
| FAMILY LAW – CHILDREN – Parenting proceedings – Split hearing – Litigant in person – Appearance of independent children’s lawyer – Apprehended violence orders – Issues of family violence – Sole parenting – Time to be spent with children on supervised basis – Family contact centre – Assessment of best interests of children – Husband’s refusal to accept supervision – Property and financial matters to be separately heard |
| Family Law Act 1975 (Cth) ss 60CA, 61DA, 61B, 60CC(2), (3) and (4) |
| APPLICANT: | MR PILLAI |
| RESPONDENT: | MS DOSHI |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | DGC | 664 | of | 2007 |
| DATE DELIVERED: | 3 FEBRUARY 2011 |
| PLACE DELIVERED: | MELBOURNE |
| PLACE HEARD: | MELBOURNE |
| JUDGMENT OF: | YOUNG J |
| HEARING DATE: | 20, 21, 22 and 23 DECEMBER 2010; 5 JANUARY 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | In person |
| SOLICITOR FOR THE APPLICANT: |
| COUNSEL FOR THE RESPONDENT: | Ms McCreadie |
| SOLICITOR FOR THE RESPONDENT: | PERRY WESTON |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms McNamee |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | TOWNSEND WYLDE LAWYERS |
Orders
IT IS ORDERED:
THAT all previous children and parenting orders made in this Court be discharged.
THAT the wife have sole parental responsibility for the children of the marriage S born … June 2004 and K born … January 2007 (“the children”).
THAT the children live with the wife.
THAT any period of time as provided for in Order 5 hereof that the husband would spend with the children be suspended pending his:
(a)completion of the intake documents for supervised time to be spent at the G Children’s Contact Service (“the Contact Service”) ; and
(b)undertaking at his expense a psychiatric assessment by a qualified psychiatrist, but not necessarily Dr D, as approved of by the Independent Children’s Lawyer (while they remain acting in these proceedings) or otherwise by the wife’s solicitor or the Court.
THAT the husband spend time with the children on a supervised basis at the Contact Service on such dates and times as can be accommodated but to commence with two hours each fortnight on a weekend, and both parents are to do all acts and things so as to facilitate such supervised time commencing as soon as the husband has complied with the requirements of the preceding order.
THAT if the husband does not comply with paragraphs 4(a) and (b) hereof within 120 days of the date of these Orders then his time with the children as provided for in paragraph 5 hereof be suspended.
THAT in the event that the husband elects not to accept supervised time with the children at the Contact Service and undertake his required actions in that regard then the wife hereafter forward to the husband each six months two photographs of the children.
THAT the wife authorise any kindergarten/child care centre/school attended by the children or either of them to provide to the husband, at his expense, (if any) copies of all reports, newsletters and photograph order forms and such like information generated in relation to the children, or either of them, and which they normally provide to parents, the wife to advise the husband in writing of the kindergarten/child care centre/school attended by each of the children and to advise of any changes thereto.
THAT the wife do all such acts and things in order that the husband be authorised to communicate with any medical practitioner or allied health professional engaged by her for the children, subject to any reasonable conditions imposed and the wife is to advise to the husband in writing of their contact details and keep such contact details regularly updated.
THAT the wife and the husband keep the other advised at all times of their respective residential address and telephone contact number and immediately advise of any changes thereto.
THAT the wife advise the husband immediately in the event that the children or either of them suffers any serious illness or injury, together with the name, address and telephone number of any health professional or health facility attended by the children and authorise such person or facility to provide any reasonable information requested by the husband relating to the health of the children or either of the children, subject to any conditions imposed by such person or facility.
THAT the wife, the husband, and their servants and agents be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other parent or any member of that parent’s household or family in the presence or hearing of either or both of the children or permitting any other person to do so;
(b)discussing these court proceedings with either of the children.
THAT the husband be and is restrained by injunction from consuming alcohol during and for 24 hours prior to any time he may spend with either or both of the children.
THAT the names of the children be forthwith removed from the Airport Watch List and the solicitor for the wife notify in writing the Australian Federal Police and all required authorities of this order.
THAT the children be permitted to depart the Commonwealth of Australia, in the company of their mother, for the purposes of a holiday to Fiji.
THAT the wife be authorised to apply and forthwith obtain an Australian passport for the child K born … January 2007 so as to enable him to travel in and out of the Commonwealth of Australia.
THAT the consent of the husband to the issuing of such an Australian passport for K be forthwith dispensed with AND IT IS DECLARED that such consent is not required for such passport to now issue.
THAT the wife hold in safe custody the Australian passports of the children and her solicitor be authorised to return to her the passport of the child S.
THAT the husband forthwith return to the wife the original birth certificates for the children so as to facilitate her passport application on their behalf.
THAT the wife, her servants and agents, are restrained from bringing or permitting either of the children to be brought into contact with a community priest known as ES, a person known to the parties.
THAT the husband be restrained from filing in this Court or in the Federal Magistrates Court any further application in relation to children and parenting orders until he has:
(a)complied with the requirements of Order 4 hereof;
(b)provided to the wife’s solicitors and the Court a true copy of a psychiatric assessment and report upon himself;
(c)has spent regular supervised time over four (4) months with the children pursuant to Order 5 hereof; or
(d)a Judge of the Family Court otherwise orders that he be entitled to file a further application.
THAT pursuant to s 65DA(2) and s 62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
THAT the appointment of the Independent Children’s Lawyer be discharged on a date one (1) month after the delivery of this Judgment and if any appeal is filed then at the conclusion of that process.
THAT otherwise all children’s and parenting applications (but not property and financial applications and the departure from the child support orders) be dismissed.
THAT the amended orders as sought by the husband in his final submissions and as recorded in document 127 in the Court Index, paragraphs 1-27 (inclusive) and paragraphs 30, 31 and 32 thereof be dismissed.
THAT all costs of and incidental to this hearing be reserved pending further application and submissions.
IT IS CERTIFIED
THAT pursuant to Rule 19.50 of the Family Law Rules this matter reasonably required the attendance of Counsel for each of the wife and the Independent Children’s Lawyer.
IT IS NOTED that publication of this judgment under the pseudonym Pillai & Doshi is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC 664 of 2007
| MR PILLAI |
Applicant
And
| MS DOSHI |
Respondent
And
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
ISSUES
The Court was asked in these proceedings to pronounce children and parenting orders that, on an evaluation of all of the evidence, were in the best interests of the children of the marriage S born in June 2004 and K born in January 2007 (“the children”). The parties were at odds on all significant issues and the orders sought by the applicant husband were in marked contrast to the orders proposed by the respondent wife and the Independent Children’s Lawyer. At the heart of the various allegations were issues of alleged family violence, threats and abuse, marital conflict, a total lack of communication and an alleged inappropriate influence upon both children. Parental responsibility was a primary issue as was the refusal of the husband to accept any form of supervision of any of his time spent with the children and his total rejection of any role, influence or recommendation made by counsellors or social workers, the Family Consultant or the Independent Children’s Lawyer. The husband represented himself and throughout the hearing was extremely well-prepared, diligent and hard working in pressing his case and evidence before the Court.
SPLIT HEARING
At the commencement of the case, and after hearing submissions from all parties, I determined that the hearing days available would be sufficient only to enable the evidence to be given and submissions made upon the children and parenting issues. I therefore ordered that the issues in this trial be separated and that the property and financial matters be listed for hearing on a date to be fixed. I will deliver separate reasons for judgment and orders on those issues and accordingly the reasons within this judgment are of and concerning the children and all related parenting issues thereto.
APPLICATIONS / ORDERS SOUGHT / CHILDREN AND PARENTING ISSUES
Husband
The husband was Applicant and filed his Initial Application for children and parenting orders in the Federal Magistrates Court on 21 February 2007.
Thereafter he has sought varying interim and final orders in respect of the children but he has now consolidated and updated all of his orders sought within his Outline of Case document (Document 119 in the Court Index) and he confirmed in his evidence in chief that they were then to be the final form of orders sought by him.
The first 26 orders therein related to children and parenting issues and, in summary, those orders are that:
(a)the previous consent children and parenting orders pronounced 20 April 2009 be discharged together with all interim orders made thereafter;
(b)the children live with the husband;
(c)the husband have sole parental responsibility for all long term and residential needs of the children and specifically for their cultural upbringing and that they celebrate all cultural and religious festivals with the husband each year;
(d)that the paternal grandparents act as guardians of the children during the husband’s working hours;
(e)that the husband and wife keep each other informed of their residential telephone contact numbers and advise the other of any medical or other emergency involving the children;
(f)that the wife have supervised time spent with the children for five hours in each week at an agreed contact centre;
(g)that the children spend two hours with the wife on her birthday and day time on Mother’s Day between 10.00 a.m. and 5.00 p.m. with her;
(h)the parties continue to communicate via a communication book but always to respect the privacy of the other parent;
(i)the wife not engage in any superstitious practice or black magic;
(j)that both parents strictly refrain from denigrating the other parent or from in any way influencing the children against such other parent or discussing court proceedings with them;
(k)that the wife have telephone contact for twenty minutes on each Tuesday and Thursday evening;
(l)the changeover location be midway between the respective residences of each of the parents or otherwise as ordered;
(m)the wife and her solicitors provide written undertakings or comply with court orders not to in any way harass, intimidate, be violent or abusive to or threaten the husband or the children or to remove the children from him without his consent;
(n)the husband be at liberty to enrol the children in school and at kindergarten of his choice and for the parties equally to be responsible for the educational and financial needs of the children;
(o)that the parents be each prohibited from leaving Victoria with the children without the express written consent of the other party obtained fourteen days in advance of any such departure or otherwise by court order;
(p)that if the wife were to take one or both of the children overseas she must pay a bond of $50,000 into a trust account held by the husband pending the children’s return and otherwise pay all court and legal costs of any proceedings to recover or return the children to the husband;
(q)that the names of both children be placed or maintained upon the Commonwealth Airport Watch List order and the parents be each restrained from removing or attempting to remove the children from the Commonwealth of Australia.
At the conclusion of the evidence and as part of his final submissions the husband sought leave to further amend his children and parenting orders sought. They are now incorporated within document 127 in the Court Index. Those amendments primarily incorporate further orders to the effect that:
(a)the children participate in yearly prayer ceremonies with him at his residence on important dates and commencing 15 January 2011;
(b)that social workers be banned from contacting, approaching, questioning and discussing any matters with the children;
(c)that Ms L be banned from contacting or coming within 200 metres of the children;
(d)that pursuant to s 68R of the Family Law Act (Cth) (“the Act”) the family law violence intervention order pronounced in the State Magistrates Court in December 2010 be revoked on the grounds that it was fraudulently obtained, and the children’s names be deleted from that order and that it be equally applicable to the wife.
(e)that if the wife were to agree to the discharge of the three previous orders (as identified above) then her time with the children be extended from the previously offered five hours per week on a supervised basis so that she would spend time with each of them as follows:
§each alternative week from 3.30 p.m. Friday to 4.00 p.m. Sunday;
§for the first half of all school holidays and/or the second half of the Christmas holidays for two weeks;
§on the children’s birthdays;
§provided always that she remains living within a 15 kilometre radius of the husband’s residence.
Otherwise the husband sought property and financial orders which are now to be determined at another hearing date and additionally sought a departure order from the Child Support Agency formula and a repayment of all interest and charges imposed upon him by that Agency.
Wife
The wife is the Respondent to the Initial Application by the husband and, for the conduct of this hearing, it was common ground that she be the respondent to all Applications sought.
In her Outline of Case document (Document 121 in the Court Index) the wife, in paragraph 5 at page 21 thereof identified the children and parenting orders sought by her in the proceedings. Those orders were:
(a) that all previous parenting and children’s orders be discharged;
(b)that she be granted sole parental responsibility for the children and that they live with her;
(c)that the children spend time and communicate with the husband on a supervised basis at G Children’s Contact Service at dates and times as they can be accommodated;
(d)that the husband forthwith attend upon a psychiatrist for the purposes of preparation of a psychiatric assessment, at his cost;
(e)subject to the husband completing a psychiatric assessment and professional counselling or therapy then he spend supervised time with the children as may be ordered;
(f)the husband be restrained from approaching or remaining within 100 metres of the wife’s residence or any place where the children may attend school, kindergarten or child care;
(g)that the wife be permitted to apply for a passport for the child K and that she retain such passport and, if required, a Registrar of the Family Court be authorised pursuant to s 106A of the Family Law Act 1975 (Cth) to sign all documents and do all acts and things to facilitate the issue of such passport;
(h)the passport of S be released to the wife;
(i)the husband forthwith return to the wife the original birth certificates of the children, a black folder of documents and all of the wife’s photographs;
(j)the wife be permitted to travel with the children within and outside of the Commonwealth of Australia;
(k)that the names of both children be removed from the Airport Watch List order subject to appropriate notice being given by the other party if there is any intention to travel the children overseas;
(l)that otherwise each of the parents be restrained from denigrating the other or discussing these proceedings with the children and each of them is to keep the other advised of any health or medical emergency involving the children;
(m)the husband be restrained from consuming alcohol during any period twelve hours prior to spending time with the children;
(n)the husband not be permitted to file any further application as to children and parenting matters without first obtaining the leave of the court;
(o)the parties communicate by way of a communication book but only in a civil and respectful manner.
Otherwise the wife sought various property and financial orders and additionally an order for the husband to make full and frank financial disclosure to her solicitors of all of his assets. Amongst the financial orders sought on behalf of the wife was for the husband’s superannuation entitlement to be split so as to effect an equal division of all such entitlements as between the husband and wife. At the commencement of these proceedings the wife’s solicitors had failed to give notice of such superannuation splitting order to the Trustees of his superannuation fund which arose from the husband’s long term current employment. The husband wholly opposed any such superannuation splitting order and those matters now stand adjourned to a date to be fixed.
The wife prepared and filed an amended response on 5 January 2011 (document 125 in the Court Index) though the orders therein sought by her remained as sought at the commencement of the case. Her counsel however did indicate to the Court that they endorsed the final form of orders sought by the Independent Children’s Lawyer, particularly paragraphs 5, 6, 8, 12 and 13 thereof.
Independent Children’s Lawyer
In their Outline of Case (Document 121 in the Court Index) Mr Tesoriero, as the appointed Independent Children’s Lawyer had detailed the specific children and parenting orders sought and they were, subject to attesting of evidence, as follows:
(a) that all extant children and parenting orders be discharged;
(b)that the wife have sole responsibility for the children and that they live with her;
(c)the children spend time with the husband on each alternate weekend to be supervised at G Children’s Contact Centre at dates and times that are suitable to such centre;
(d)the husband be authorised to receive all communications, reports and notices normally provided to parents by the school, child care or crèche which the children attend;
(e)the husband be authorised to communicate with any medical practitioner or allied health practitioner, at his own expense, and subject to all conditions imposed by such professionals;
(f)that each of the parents be restrained from denigrating the other parent in the presence, sight or hearing of the children or either of them or to allow any other person so to do;
(g)the husband be prohibited from bringing any further application in relation to parenting orders until:
(i)he spends six months of supervised time with the children at an approved contact centre; and
(ii)he provides to the wife’s solicitors and to the court a psychiatric assessment of himself completed by Dr D.
At the conclusion of the evidence, and for the purposes of her final address counsel briefed for the Independent Children’s Lawyer submitted their updated final parenting orders and that document has been marked as court document 124 in the Court Index. I have read and evaluated those orders with which the wife has agreed. Additionally each of those parties agree upon the orders proposed by the wife for the new passport to be issued for K and for the wife to be free to travel on a holiday to Fiji with both children. Those orders remain firmly opposed by the husband.
AFFIDAVITS
Husband
The husband relied upon the following Court documents which he had filed:
(a)his Case Outline document containing an extensive reference to facts, submissions and legal argument in the proceedings;
(b)his affidavit and evidence in chief filed 13 September 2010 and all annexures thereto;
(c)his further affidavit and evidence in chief and annexures thereto filed 1 November 2010;
(d)his Financial Statement filed 12 August 2010;
(e)various subpoenas which he had issued to Ms W and Ms DA and to two police officers;
(f)the affidavits of his parents, the paternal grandparents.
Otherwise the husband had filed voluminous earlier affidavits both on interlocutory issues and relevant to the 20 April 2009 proceedings and other earlier proceedings and he purported to rely upon all of those affidavits and annexures thereto. I declined to permit those documents to be formally in evidence as part of his case related to his final orders now sought. I however advised the husband that he could give evidence in chief on any matters of direct relevance to the primary issues before the Court or in rebuttal to any evidence filed by or on behalf of the wife and, as a litigant in person, I emphasised his rights to reasonably place all helpful and relevant evidence before the Court.
There arose a specific issue with the intended evidence of MS L. The husband had served a subpoena upon her by delivering the document to her mail box without any other proper notification, conduct money or personal service. Subsequently he re-served the intended witness by registered post and there was no affidavit of such service, rather the Court was told by him of his actions in that regard. Prior to the first day of hearing the intended witness had in any event advised a Registrar of this Court and delivered a medical certificate of her stress and ill health and her inability to attend at Court and give evidence. All of those matters remained unresolved and Ms L did not give evidence in this hearing.
The husband had otherwise requested the Independent Children’s Lawyer to issue a subpoena directed to two members of the Victoria Police Force to give evidence upon a past incident. The Court was advised that compliance was not possible with that subpoena as one of the police officers was absent on annual leave and the other police officer was on long term stress leave. They did not give evidence.
Wife
The wife’s case was prepared by her solicitors and she relied upon:
(a) her trial affidavit and annexures thereto filed 5 November 2010;
(b) her Financial Statement filed 5 November 2010;
(c) the affidavit of Ms AS filed 25 November 2010;
(d) the affidavit of Ms B filed 8 November 2010.
The wife’s solicitors had issued a subpoena for production of documents upon Ms MN, WS Counselling and Case Management Service and those documents were produced and in Court.
Additionally the Outline of Case document filed on behalf of the wife on 16 December 2010 contained a comprehensive chronology of Court events and orders and that has been of assistance to the Court.
Independent Children’s Lawyer
The documents filed and relied upon on behalf of the Independent Children’s Lawyer were:
(a)a detailed Outline of Case submission including orders sought, a short chronology and submissions upon the appropriate child and parenting legislation contained within the Act;
(b)the Family Report of Mr U dated 2 August 2010 and previously accepted into evidence on 3 August 2010;
(c)the psychiatric report of Dr D (of the wife) filed 10 June 2010.
BACKGROUND FACTS
The following matters and facts were disclosed to the Court and have been relied upon for the purposes of this Judgment:
(a)the husband was born in 1969, is 41 years of age and is in full time employment earning approximately $66,000 per annum and he has not re-partnered;
(b)the wife was born in 1974 and is 36 years of age. She migrated to Australia in or about 1998 and has never worked in this country and has not re-partnered;
(c)the parties married in Fiji in December 2002, in an arranged marriage and were traditionally married in their religious ceremony in April 2003;
(d)S was born in June 2004;
(e)K was born in January 2007;
(f)the parties first separated on 13 February 2007 at a time when the youngest child was approximately two weeks old and the wife moved to live in a woman’s refuge;
(g)there is a dispute as to the date of final separation with the wife maintaining that it was 12 December 2007 and the husband’s evidence being that it was in September of 2007;
(h)after the initial separation the husband issued proceedings in the Federal Magistrates Court and orders were pronounced on 5 March 2007;
(i)on 14 March 2007 the wife was granted her first intervention order against the husband but subsequently the parties reconciled some days thereafter;
(j)court proceedings both in the Federal Magistrates Court and in the State Magistrates Court were reactivated in the period immediately following upon final separation. Family Violence Intervention Applications have been recently heard and concluded in the State Magistrates Court on 9 December 2010 and otherwise the Family Court proceedings were transferred on 28 October 2009 to this Court and there have been various hearings prior to this final hearing which are highlighted in some detail hereunder;
(k)the former matrimonial home at W was sold pursuant to an order of this Court and the settlement of the sale occurred on the first day of this defended hearing;
(l)after the costs and expenses of sale, the discharge of the first mortgage and the payment to Legal Aid of the sum required to uplift their caveat lodged upon title to secure costs previously incurred by the wife there remained a net sum of $111,254.31. I directed that those monies be invested in the joint names of the husband and wife and that each of the parties provide their tax file number to open such an interest bearing investment account to be managed by the wife’s solicitors pending further order of the Court;
(m)there has been a long history of the husband’s non-compliance with payments of child support as assessed and recently his salary has been successfully garnisheed and a sum of $1,082 per calendar month is now deducted by the Agency directly from his salary and is to be paid out to the wife;
(n)the husband, consequent upon the settlement of the sale of the Wk property has now obtained alternate rented accommodation but had initially refused to disclose that address to the wife and the Independent Children’s Lawyer. It was disclosed to the Court in a sealed envelope. The reasons provided by the husband for such action were wholly unsatisfactory and contrived and relate to his allegations that the wife is engaged in black magic and would likely enter his property and plant incriminating documents or other evidence with the intention of harming his reputation or standing with his community. His address was then disclosed by the Court.
PREVIOUS COURT ORDERS
These proceedings have had a long and complex history within the State Magistrates Court, the Federal Magistrates Court and in this Court on an after 28 October 2009 when Federal Magistrate Connolly transferred the proceedings at a time when it was listed before him for the final defended hearing. It is necessary to consider, albeit briefly, the previous orders made and the Court history of this matter. I will separately consider in more detail the serious issue of apprehended violence orders that have been pronounced in the State Magistrates Court.
On the original Application of the husband filed 21 February 2007 interim orders were made in the Federal Magistrates Court on 5 March 2007 where the names of the children were placed upon the Airport Watch List and the parents, their servants or agents were prohibited from removing those children from the Commonwealth of Australia. It was then further ordered by consent that the children live with the wife and that the eldest child spend time on a day only basis with the husband.
After the final separation of the parties further orders were made on 1 September 2008, and when both parties were represented. On an interim basis the children were ordered to live with the wife and spend day time on each Saturday with the husband and, even at that early date, the Court directed, and not by consent, that the children’s contact centre at G be used as the handover of the children pursuant to the order. At that time the wife had moved to live in the outer suburbs and the husband remained in the matrimonial home at W. A Family Report was ordered to be prepared and various restraining and injunctive orders were made to ensure that the children remain within the Commonwealth of Australia and their names were reinstated on the Airport Watch List order.
That first Family Report was released to the parties on 17 November 2008 prior to the matter returning to Court on 1 December of that year. On that day the husband was first self represented and Counsel now acting in this defended hearing for the wife then appeared on her behalf. That Report was not sought to be relied upon by any of the parties and was not in evidence in these proceedings. I was not asked to and I have not read that Family Report.
The orders of that day were pronounced by Federal Magistrate Phipps and endorsed the parties using the G Contact Centre facilities for the changeover with the husband being granted daily and thereafter alternate weekend time to be spent with both children. The proceedings were then fixed for a final hearing on 29 April 2009.
The husband then filed interim proceedings to remove the changeover provisions at G Contact Centre and to substitute a police station therefore but those proceedings were dismissed in a further hearing before Federal Magistrate Phipps on 22 September 2008.
What was then intended as a the final defended hearing was before Federal Magistrate Baker on 20 April 2009 and both parties were then represented by Counsel. On this occasion the matter settled out of court and orders were made by consent, including the discharge of all previous orders.
The consent orders of that day provided, in summary, as follows:
(a)for the parties to have equal shared parental responsibility for the children who were to live with the wife and spend time with the husband on an alternate weekend and school holiday basis and for various religious and cultural days and events;
(b)the changeovers were to occur at the children’s school or otherwise at G Contact Centre on a weekend with other arrangements being made for midweek changeover on the Tuesday contact day as had been ordered;
(c)there were various other injunctive orders and further orders made to ensure co-operation and a disclosure of proper child related information between the parents and the use of a communication book;
(d)the parents were ordered not to denigrate each other and orders were made reinstating the names of the children upon the Airport Watch List and each parent was restrained from removing the children from the State of Victoria or the Commonwealth of Australia;
(e)significantly the parents agreed to participate in a Family Dispute Resolution Process and to conduct themselves in a civil and respectful manner towards each other.
Shortly thereafter the husband filed an Initiating Application, on 10 July 2009, for those final consent orders to be discharged and at that time he sought orders that he have sole parental responsibility for the children and that they live with him and spend supervised time only with the wife.
Those proceedings came before Federal Magistrate Riethmuller on 28 July and 30 July 2009. The Court directed that the matter be adjourned for a final hearing in the Federal Magistrates Court on 28 October of that year with an estimated hearing duration of two days.
The Court appointed an Independent Children’s Lawyer, required the parties to attend a post-separation parenting course, ordered an updated Family Report and gave particular directions for trial. Of significance the Court otherwise ordered that the husband be restrained from:
(a)discussing the wife or events in her home in the presence or hearing of the children;
(b)criticising the wife in the presence or hearing of the children;
(c)discussing any proceedings between the parents in the hearing of the children; and
(d)recording in writing, on sound, tape or film or by any electronic means any statements by the children about the parent or other members of the parent’s household or any other activity involving that parent or from permitting any other person to so do.
It was the alleged breach of that injunction in (d) above that has led to many issues and disputes between the parties. The husband did not abide by those orders and continued to record the children’s activities for use as evidence by him in future proceedings.
Otherwise Federal Magistrate Riethmuller dismissed the departure application that the husband had filed in respect of a child support issue and dismissed the husband’s interim application and directed that the costs of the wife be fixed at $1,740 and be reserved.
That final hearing in the Magistrates Court was listed before Federal Magistrate Connolly who, without providing any reasons and at a time when the parties were at Court, and the wife represented by Counsel, declined to commence the defended hearing and ordered, without reasons, the transfer of all proceedings to this Court whilst at the same time noting that the issue of the education of the daughter was a matter of urgency which needed to be addressed. That delay in transfer has substantially inconvenienced the parties, provided ongoing uncertainty for the children and brought about very considerable ongoing costs and expenditure for the wife who is not legally aided.
On 27 November 2009 the husband filed a further Application in the Federal Magistrates Court and that was on the very day that he collected the children to spend time with them and over-held them and then refused to return the children to the wife at the conclusion of his period of time with them. That action of the husband necessitated the wife filing an Application seeking a recovery order on 1 December 2009 and all of those proceedings were then consolidated in this Court and listed on 16 December 2009 before Senior Registrar FitzGibbon.
On the first day of that hearing the Senior Registrar directed the husband to bring the two children to the Child Minding Centre of the Family Court of Australia at Melbourne at 9.00 a.m. the following morning, 17 December where they were to remain pending further order of the Court. The costs of the wife on that day were reserved.
In the hearing on 17 December 2009 the Senior Registrar gave detailed reasons for judgment and pronounced orders of significance.
By his orders the children were released into the care of the wife and were to continue to live with her pursuant to the earlier consent orders made 20 April 2009.
The children’s time with their father provided for in paragraph 6 of those earlier consent orders were suspended.
The Senior Registrar requested the appointment of an Independent Children’s Lawyer and further requested a report be prepared pursuant to s 91B of the Family Law Act 1975.
It was further ordered by the Senior Registrar that the parents are not to use any physical discipline upon the children or verbally abuse them, the orders provided for by Federal Magistrate Reithmuler in paragraph 4(a), (b) and (c) of his orders made 30 July 2009 were amended to include the wife and both parents were ordered not to take the children to any other counsellor or psychologist, doctor or treating health professional save for treatment that is urgent or required or otherwise ordered by the Court. Again the wife’s costs were reserved.
I have read and considered the reasons for judgment delivered by the Senior Registrar on an extempore basis on that day. The Applications of each party are carefully considered in the context of the history of the previous orders. In particular I carefully read paragraphs 49 – 52 (inclusive) of that judgment and of the questions asked by the husband in Court and his attitude and response thereto. The husband then refused to voluntarily return the children to their mother and further refused to give any undertaking to the Court to adhere to orders previously made. I draw no conclusions adverse to the husband from that part of the judgment but certainly his answers there are consistent with all of his evidence before me and generally the approach that he has taken to court proceedings, his wife and any co-operative response to limit or reduce conflict and tension between the parties.
Likewise I have carefully read paragraphs 71 – 93 (inclusive) of the judgment and it was evident even then that the children had been the subject of repeated and ongoing litigation that has continued and increased in intensity. The over-holding of the children by the husband on that occasion was not justified and should not have occurred and I give proper weight to those findings and the carefully explained reasons. The appropriate question that is posed by the Senior Registrar is whether there is a risk to the children with their father (see paragraph 77 of the judgment). That is a question that I will determine in all of the past and more recent evidence before me and certainly having regard to the attitude and actions of the husband and the orders that he has now sought in his Outline of Case document.
The Senior Registrar could not be satisfied that the husband would then have obeyed or respected his orders, or previous orders then current and he determined, as explained in his judgment that the children should forthwith be returned to the wife and they are the orders that were made, notwithstanding the concerns expressed in paragraph 93 of the judgment that the children might then not see and spend time with their father on an ongoing basis.
The matter returned for hearing before the Senior Registrar on 13 January 2010. The husband’s time with the children remain suspended and the parents were required to make application to G Children’s Contact Service, to use the supervised facility there available and attend to appointments at that centre and complete the intake process. The husband was then to spend no less than two hours a fortnight in supervised care at that venue. The wife did make contact with that contact service and, for her part, completed the required intake process. The husband did not comply with the orders of the Court, has not and will not make intake arrangements with that venue and has not attended and therefore has had no supervised or any other time with the children since late 2009, save for a brief period with the children at the rooms of the Family Consultant when the Family Report was under preparation.
The Senior Registrar permitted the wife to enrol their daughter at B Primary School. The child S now attends that school and her first year report has been tendered in evidence.
The husband and wife were ordered to attend upon a psychiatrist nominated by the Independent Children’s Lawyer for the purposes of preparation of a psychiatric assessment of each of them, and at their own cost. The wife attended and a report has been prepared by Dr D. The husband refused to attend a consultation for the purposes of such report and has maintained that he both cannot afford to pay the fee involved and disputes the necessity for any such psychiatric assessment. That is a matter of significance within the context of the orders now sought by the Independent Children’s Lawyer.
The Senior Registrar further made an order to the benefit of the wife and the eldest child in that her start up bonus voucher was to be applied to the cost of her uniforms and initial expenses at B Primary School. Those monies however were taken and applied by the husband in enrolling S at a different primary school, Y Primary School and those monies have both been wasted and the wife put to further expense.
The wife’s costs of and incidental to the proceedings were fixed at $470 and ordered to be paid by the husband.
Again the Senior Registrar delivered extempore reasons for judgment to support his orders. I record his findings which remain relevant today that the husband is unable to accept directions and outcomes as ordered but in particular, at paragraph 43, the Senior Registrar expressed his over-riding concern that:
“The husband’s focus is unable to be placed in the right direction and upon those things that are truly important. This is a house of cards which is commencing to topple down. After three years of litigation it was probably almost inevitable. Its catalyst has been a refusal to accept the orders of the court and to obey them. Legitimately, concern has been expressed to me regarding a number of appearances and the costs being incurred and I agree. These appearances by the wife have been properly made. They have been necessary and unavoidable”.
Otherwise the Senior Registrar again expressed the view that the psychiatric assessment of both parties is a matter of importance and needed to be attended to and yet, even as at this hearing date the husband has refused or failed to obtain his psychiatric assessment as was ordered.
The Senior Registrar was then satisfied that the only available and appropriate course of action, in the interests of the children, was for the husband’s time to be supervised and to be confined to a period of two hours a fortnight. His finding was that he was satisfied that such a period of time in a supervised environment was appropriate for the children, it could be monitored and reported upon. At paragraph 53 of his reasons it was then recorded that the Senior Registrar was of the opinion that “the husband does not consider that such supervision is necessary and will likely not co-operate with it, just as he is unlikely to co-operate with the psychiatric assessment … but that does not prevent this Court from determining that it is necessary and in the best interests of the children”.
On 24 February 2010 all proceedings came before Justice Cronin with the husband self represented and legal practitioners appearing for both the wife and the Independent Children’s Lawyer. Predominantly the orders made by his Honour on that day were related to property and financial issues and transferring the former matrimonial home at W to the wife upon trust for sale. I do not otherwise consider those financial matters.
As to the previous orders of the Senior Registrar for the appointment of a psychiatrist to prepare an assessment of the husband his Honour varied paragraph 5 of those earlier orders and required the husband to provide to the Independent Children’s Lawyer names of such psychiatrists who are prepared to examine him and prepare a report on a financial basis negotiated by the husband and upon being provided with such names the Independent Children’s Lawyer was then required to provide to that psychiatrist a detailed letter as to the purpose of the proposed report.
On 24 February 2010 Justice Cronin heard the husband’s application for a review of the orders made by Senior Registrar FitzGibbon on both 17 December 2009 and 13 January 2010. His Honour reserved his reasons for judgment which were delivered on 2 March 2010. The reasons relevant to the parenting application of the husband and the orders under review are detailed in paragraphs 29 – 89 (inclusive) of those reasons.
His Honour first commented upon the voluminous affidavits and detailed annexures of the husband and observed at paragraph 35 “it is not the function of Judges to trawl through affidavit materials which are offensive and scandalous to try and look for material that may be admissible for the purposes of s 55 and 56 of the Evidence Act 1995 (Cth). It is always the responsibility of a court to try and assist a litigant in person but when material of the nature that I have read in this affidavit is considered offensive not only to the wife, her lawyers, the Department of Human Services and officers of this court, the material should and must be disregarded”. His Honour there observed that the husband “is an intelligent and apparently articulate man if his written word is any indication. Whilst he may have a persecution complex and have very strong views about the court, the appropriate channel for his frustration does not lie in setting out a stream of consciousness that is so offensive. The document was nothing short of humbug. I told the husband that I did not propose to take it into account in determining the matter before me” – all of these comments of his Honour were in respect of the husband’s affidavit filed 22 February 2010.
I have otherwise read as part of these proceedings the findings of his Honour made in respect of the husband’s arguments concerning the alleged failure to protect the children from harm and the alleged abusive actions and conduct of the wife and others on behalf of the wife. His Honour found no support for the arguments advanced by the husband in support of his orders sought. I have separately evaluated all of the evidence and made independent findings and I have, in no way whatsoever, been influenced by the conclusions of his Honour or his orders pronounced in dismissing the review sought by the husband. It is however appropriate that I record paragraph 71 of his Honour’s reasons for judgment where his Honour said:
“Is there any risk to the children in the husband’s care? The answer must be yes based upon what I have found above. To alleviate that risk, whilst at the same time to endeavour to protect the budding relationship between the husband and children, he needs to have his time supervised to stop him doing to his children what he has defiantly said he will not; that is, to coach or record the conversations of these vulnerable children”.
At paragraph 74 his Honour recorded the same facts and answers which the husband has given in these proceedings, that is that he would not attend at any contact centre, that he was not willing to pay to see his children and that the G contact centre was isolated, deserted and inappropriate.
I further record his Honour’s finding in paragraph 79 of his reasons for judgment that no other option was presented to him at that time by the husband in lieu of a contact centre venue to spend time with the children. That is and remains the evidence of the husband and his proposals before me and, likewise to the finding of his Honour’s, that is of no surprise given the adamant opinion of the husband that the children should live with him on a permanent basis, have minimal and supervised time only with the wife and otherwise be cared for by his parents as guardian whist he is engaged in his full-time employment.
The conclusion of his Honour is that there was no basis for him to alter the reasons and orders of the Senior Registrar, save as to both emphasise and make easier for the husband to obtain a psychiatric assessment.
The matter was listed before me and the first day of hearing of this trial was held on 8 June 2010. I ordered an updated Family Report to be prepared by Mr U, Family Consultant and itemised the various issues that should be addressed in that Report, which has now been filed with the Court and accepted into evidence. I was then also advised of certain alleged behaviour of the husband which necessitated the involvement of police and for bail conditions to be imposed upon the husband by the Magistrates Court, or the police, and that document dated 21 April 2010 was tendered to the Court and is retained upon the Court file.
On 8 June 2010, and by consent and to avoid any uncertainty of past orders I directed that each of the children be placed upon the Airport Watch List and the Australian Federal Police be so notified. Otherwise I made further substantial orders as to property and financial matters and I have read my reasons for judgment in that regard.
The conditions of bail, dated 21 April 2010 required the husband to attend at the State Magistrates Court on the following day and, in the interim the conditions imposed upon him was that he would not:
§assault, harass, molest, threaten or intimidate the wife;
§approach, telephone or contact the wife save in the company of a police officer or pursuant to a court order to spend time with the children;
§not be at or within 200 metres of the wife’s then residence or place of employment;
§damage property owned by the wife;
§cause another person to engage in any conduct in breach of the conditions;
§possess, carry or use any firearm.
On 12 August 2010 I fixed the defended parenting and children’s application for a four day defended hearing commencing Monday 20 December 2010 and otherwise made detailed case management orders in relation to property and financial issues and I have read and considered my extempore reasons for judgment delivered in those proceedings.
On 1 October 2010 the matter was again relisted before me upon an application of the wife to vary the reserve auction price of the matrimonial home and other related issues and likewise my extempore reasons for judgment are upon the court file.
APPREHENDED VIOLENCE ORDERS
On 14 March 2007 the wife obtained an intervention order from the State Magistrates Court. Her application for an extension of the terms of that order was filed on 12 March 2008 and was refused.
On 20 April 2010 the Victoria Police, on behalf of the wife and children filed an Application and Warrant for an Intervention Order against the husband. Those proceedings were issued out of the State Magistrates Court and the husband was bailed to appear at the final hearing of that Application.
On that same day the husband filed an Application and Summons for an Intervention Order against the wife seeking protection for himself as the affected family member. There remains some confusion as to whether that Application is extant and awaiting hearing in the State Magistrates Court. No orders were made against the wife.
The Application filed by the police for the protection of the wife and children was finally heard as a defended matter in the State Magistrates Court in December 2010. The husband had counsel briefed on his behalf but a conflict of interest arose when it was ascertained that counsel had earlier appeared for the wife and they then withdrew from the proceedings and the husband represented himself. Evidence was given and parties were cross examined.
The Court pronounced an order, not for any defined period but until further order. The protected persons are the wife and both of the children.
The Court ordered that the respondent husband must not:
1. commit family violence against the wife or either of the children;
2.intentionally damage any property of the wife or threaten so to do;
3.follow the protected persons or keep them under surveillance;
4.publish on the internet, by email or other electronic communication any material about any of them;
5.contact or communicate with a protected person by any means;
6.approach or remain within 200 metres of a protected person;
7.go to or remain within 400 metres of any place where a protected person lives, works or attends school;
8.get any other person to do anything which the husband must not do under this order.
The notations to that Family Violence Protection Order provided that the husband did not agree to the order being made or to its terms. I raised with the husband in his final submissions the fact that he had not appealed that Order. He advised the Court that he had overlooked that issue and would forthwith attend to the filing of a Notice of Appeal and undertaking to prosecute. On the following day the husband attended at the State Magistrates Court and filed a Notice of Appeal which is now listed in the County Court at Melbourne in March 2011. There were no grounds of appeal filed and this Court is aware of the actions by receipt of a copy Notice of Appeal and e-mail notification from the husband to the Registrar. The husband has lodged his appeal within time and I therefore make no comment upon the likely outcome thereof but observe that it was not a matter to which the husband had given attention or had referred to the Court save until I raised the lack of an appeal with him in his final address.
It is a matter of very real significance that this Family Violence Intervention Order was recently made at a contested hearing and is to continue indefinitely. I have given very substantial weight to the impact of this Order made in contested proceedings but always subject now to the appeal process. Proven findings of violence rebut the presumption of equal shared parenting responsibility and are a primary consideration in determining what is in the best interests of children pursuant to s 60CC of the Act. I have hereafter given very careful consideration and importance to all issues of such violence and both the physical and psychological harm caused to affected persons.
SECTION 91B REPORT
On 8 January 2010 a Report was provided to the Registrar of this Court by Ms DA, Senior Child Protection Practitioner, pursuant to the order of the Senior Registrar. Omitting formal parts that letter read as follows:
“The decision has been made that Child Protection is not intending to intervene further at this stage as Child Protection has made some enquiries at the intake phase and has no significant concern for risk of harm for [S] and [K] in the care of their mother Ms [Doshi]. [The mother] continues to engage with family support services.
Child Protection record reveals that since 1996, Child Protection has been contacted on 15 separate occasions in relation to safety and wellbeing of [the children]. Reports have primarily related to children’s exposure to parental conflict, and allegations and counter allegations between the parents. Of these 15 reports, reports made in April 2007 and July 2008 were investigated. The concerns investigated in April 2007 was substantiated on the ground of emotional harm. Since that time, the reports were all either closed at Intake phase or involved consultation with Community Based Child Protection (Section 38 of Children, Youth and Family Act 2005).
There is historical information in Department of Human Services files (both Child Protection and Client Relations) that is likely of relevance to the court and is available to be subpoenaed.
In relation to children’s contact with their father Mr [Pillai], Child Protection recommends that in the event that the contact between the children and the father is reinstated, that all contact to be supervised. This should be pending further assessment of regarding the need of supervision given the level of acrimony between [the mother] and [the father] and the likelihood (case history suggest this) of children’s exposure to issues of conflict with their father.
In the circumstances, Child Protection does not intend to intervene, but has information in which the Federal Magistrates court may be interested”.
I had before me in two sealed envelopes placed with the Court file information of and related to the persons who made those notifications. Predominantly that was the husband and he has acknowledged same in his submissions to me from the Bar table. Ms DA was not required to give evidence but it is proper and in the best interests of both children that I have regard to the report and, subject to all of the evidence in these proceedings, the recommendation for supervision of the father’s time to be spent with the children. I record that I have not been asked to open and have not opened the sealed envelopes as all complaints have been lodged by family members and no complaints have been made or investigated after the December 2009 orders of the Senior Registrar.
LITIGANT IN PERSON
As the husband was self represented I endeavoured at all times to ensure procedural fairness and that he had a proper understanding of the procedures of trial and of his rights in conducting his own case. I am satisfied that the husband had a very substantial factual knowledge of all matters in issue. He was firm and positive in the way he presented his submissions to the Court and asked questions of the wife and her witnesses. He conducted himself very appropriately in Court and at all times appeared to be fully informed of the factual issues that were in argument before the Court.
The decision of the Full Court in Re F: Litigants in Person Guidelines (2001) FLC ¶93-072, modified the guidelines used in proceedings where a litigant appeared without representation from what was previously said by the Full Court in Johnson v Johnson (1997) FLC ¶92-764.
Those Guidelines are explained by the Full Court to be as follows:
(a)a judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;
(b)a judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;
(c)a judge should explain to the litigant in person any procedures relevant to the litigation;
(d)a judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;
(e)if a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considered that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;
(f)a judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;
(g)if a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;
(h)a judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated. (Neil v Nott (1994) 121 ALR 148 at 150);
(i)where the interests of justice and the circumstances of the case require it, a judge may:
§draw attention to the law applied by the court in determining issues before it;
§question witnesses;
§identify applications or submissions which ought to be put to the Court;
§suggest procedural steps that may be taken by a party;
§clarify the particulars of the orders sought by a litigant in person or the bases for such orders.
The above list is not intended to be exhaustive and there may well be other interventions that a judge may properly make without giving rise to an apprehension of bias.
The Full Court in Re F: Litigants in Person Guidelines, after stating that the skill set of each individual litigant in person could vary greatly, further held at paragraph 229 that:
“With these matters in mind, we think that the giving of such assistance should lie in the discretion of the trial judge and should not be required by mandatory guidelines nor should the nature of the interventions from the bench be rigidly proscribed or prescribed. The exercise of such discretion serves the goal of achieving a fair trial so that the interests of justice can be served. Therefore, the application of the guidelines must depend on the circumstances of the particular case”
The Full Court had earlier said at paragraph 225
"…we think it is necessary to appreciate that the imperative to do substantive justice as between the parties requires the conduct of the presiding judge to be assessed by a standard which is properly informed. The informed nature of that standard must, in our view, take account of the responsibility of the Court seized of the family law matter to properly understand the litigant in person's position within the litigation."
This decision in Re F: Litigants in Person Guidelines has been affirmed and followed in subsequent decision of the Full Court and in particular the Full Court in Dobbs & Brayson (No 2) (2007) FLC ¶93-354 at 82,076 upheld its applicability to Less Adversarial Trials under Division 12A:
“These guidelines were formulated in respect of trials prior to the introduction of Division 12A by the amending Act. However, we think the statements set out in the guidelines generally remain relevant and apposite to child related proceedings conducted under Division 12A. “
As I said earlier the trial was conducted in a manner designed to ensure that the husband was understanding of the process and his rights. I am wholly satisfied that he was given procedural fairness.
OBSERVATION OF WITNESSES
I have had what I consider to be in this case the very real benefit of observing the husband and wife and their witnesses in giving their evidence on oath and in observing them in the courtroom, their demeanour, behaviour and character and also when they were cross‑examined. That observation of them has been of real assistance in formulating appropriate orders. Those observations are acutely available to a trial judge and the legal authority for such a position is that part of the Judgment of Kirby J in Minagall v Ayres (1966) SASR 151 at 154 per Hogarth J; see also Government Insurance Office of New South Wales v Bailey (1992) 27 NSWLR 304 at P313:
“By conventional theory, the observations made by a trial judge of the appearance and demeanour of a witness giving evidence are not only available to be used in the determination of a dispute but amount to important ingredients of the decision-making process. They normally provide the primary decision-maker a distinct advance which controls, and even limits, the exercise by the appellate court of its statutory functions in an appeal by way of re-hearing: see Owners of Steamship Honestroom v Owners of Steamship Sagaporack [1927] AC 37 at 47; Jones v Hyde (1989) 63 ALJR 349 at 351; 85 ALR 23 at 27; Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178ff.”.
I have had the significant benefit of hearing all of the evidence in its entirety, of reading carefully all of the affidavits, the exhibits to the affidavits and the other exhibits in the proceedings. I have reflected upon and have weighed all parts of the individual testimony against the balance of all evidence prior to delivering these reasons for judgment. I stress that, in this case, my court observations of the parties were of real benefit and importance.
The unique role and observations of a trial Judge have been highlighted by the House of Lords, Appellate Committee, in the case of In re J (a child) (FC), judgment delivered 16 June 2005 and I refer to this opinion to support my observations in this case.
In paragraph 4 and paragraphs 10-12 (inclusive) of the Judgment of Baroness Hale of Richmond the role of the trial Judge in the evaluation of oral evidence was considered and it was there stated that:
“10. The Court of Appeal appears to have intervened on the basis, first, that the judge’s conclusion on the risk was not justified by the evidence and second, that he had given it too much weight in his overall conclusion. Yet the assessment of the risk depended entirely on the judge’s evaluation of the father’s present intentions and likely future behaviour and its impact upon the child. There was objective evidence of the risk in the fact that the father had made the allegations in writing and then withdrawn them when he saw that they were damaging rather than helping his case. Whether he might do so again depended crucially on the judge’s evaluation of his oral evidence. The judge was the only person who could do this. He concluded that, while the father was sincere in his current intention not to raise such allegations again, there was a serious risk that if disputes arose in future, as they might easily do, he would resurrect them. These were findings of credibility and primary fact with which, for all the reasons explained by Lord Hoffmann in Piglowska v Piglowski [1999] 1 WLR 1360, at pp 1372-3, an appeal court is not entitled to interfere”.
STANDARD OF PROOF
The appropriate standard of proof that I have applied is the civil standard, namely the balance of probabilities. The more serious that the matter was, or its importance in this case, then I have more strictly examined the level of proof required.
Section 140(1) of the Evidence Act 1995 (Cth) provides that a Court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. Sub-paragraph (2) further provides that, without limiting the matters that the Court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence; and
(b) the nature of the subject – matter of the proceeding; and
(c) the gravity of the matters alleged.
In Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2, Dixon, J. said:
“Except upon criminal issues to be proved by the Prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the Tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal.”
While Dixon J.’s classic discussion in Briginshaw’s case of the operation of the civil standard of proof does express the considerations which s.140(2) of the Evidence Act 1995 (Cth) requires a court to take into account, the correct approach, as recently observed by Branson J. (with whom French and Jacobson JJ. agreed) in Qantas Airways Ltd v. Gama (2008) 247 ALR 273, at para. 139 is that :
. . . references to, for example, “the Briginshaw standard” or “the onerous Briginshaw test” . . . have a tendency to lead a trier of facts into error. The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s.140 of the Evidence Act provides.
Similarly, in Johnson & Page (2007) FLC 93-344, at 81,891, the Full Court of this Court expressly agreed with the “view that reference to the Evidence Act, rather than Briginshaw, is appropriate”.
FAMILY LAW ACT 1975 (Cth) – RELEVANT SECTIONS
Section 60CA of the Act requires the court, in deciding whether to make a particular parenting order in relation to children, to have regard to their best interests as the paramount consideration. This has been my primary focus throughout my evaluation of all of the evidence.
The objects of and principals underlying Part VII of the Act and its amendments are intended to ensure that the best interests of children are paramount and are fully and wholly considered by the court in determining appropriate parental responsibility orders.
It is important for the parents to wholly understand their obligations and for such purpose I therefore have incorporated within this Judgment, the provisions of s60B of the Act. The objects are there stated to be:
(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, 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.
Sub-paragraph (2) thereof highlights the principles underlying those objects which are:
(a)children to have the right to know and be cared for by both 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.
I have had careful regard both to the objects and principles as expressed above. There likely are emotional, behavioural, conduct and personality issues which may, on the facts of this case, partly nullify those objects and principles. The parents and extended family have a largely un-co-operative and very strained relationship with personal and communication issues which I have more fully explored. Ideally, as parents, they should be more understanding and respectful of each other and it would be very helpful if they each reflected upon and acted more positively to perform their primary obligations to the children.
Section 61DA of the Family Law Act1975 provides that there is a presumption of equal shared parenting responsibility when making parenting orders. That presumption relates solely to the allocation of parental responsibility as defined in s 61B. The specific sub-section provides as follows:
(1)When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2)The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a)abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or
(b)family violence.
The basis upon which that presumption may be rebutted by evidence is identified in sub-section (4) where it provides as follows:
(4)The presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
Both parties and the Independent Children’s Lawyer requested a sole parenting order. The main difference of course is that the wife and the children’s lawyer sought for her to be the sole parent and the husband submitted that such an order should be made in his favour.
I commence with the presumption that an equal shared parental responsibility order is appropriate for children but that presumption is clearly and firmly rebutted on the facts of this case. There is clear evidence of family violence enforced the past history of this matter and by the current order of the State Magistrates Court pronounced in December of last year (subject to the now filed appeal). Both the wife and children are persons protected by that order against any action or conduct of the husband and on the basis of the provision of sub-paragraph 2(b) of this section there exists very clear and reasonable grounds for the presumption to be properly and firmly rebutted.
In any event there are other significant factors which identified that it is not in the best interests of these children for their parents to share equal responsibility for them. There is no level of communication between the parents and there is continuing conflict, abuse and a total lack of trust and I have examined these issues hereafter in this judgment. The husband has had no meaningful time spent with the children for over one year and both that fact and the reasons why it has come about support a rejection of the sole parent order sought by him and enforce the substantial benefit to the children of their mother being the parent solely responsible for the care, welfare and upbringing.
SECTION 60CC CONSIDERATIONS
How the court determines what is in the best interests of children is prescribed by s60CC of the Act and there are both primary and additional considerations that I have fully considered and evaluated. I have identified each of those relevant considerations and evaluated throughout my reasons for Judgment, the evidence of the father, mother and their witnesses upon each of these matters and then further reflected upon them in my determination of orders that are in the best interests of the children.
The primary considerations are:
(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.
Overwhelmingly the primary consideration is for children to maintain and enjoy a meaningful relationship with both their mother and father. This is a difficult task in parenting cases where there is a continuing level of conflict, violence and abuse and a lack of respect or understanding of the other parent. The husband has elected not to enjoy the benefit of past court orders where he could spend time with the children at a supervised contact centre. He failed to understand that may be the commencement of a relationship with the children which, when re-established, may have continued without supervision and away from that particular contact centre. Currently, and I have hereafter carefully assessed all of the evidence, there is no meaningful relationship between the husband and his children and this case presents issues of not the maintenance and enjoyment of such a relationship but the re-establishment thereof.
The most recent time that the husband previously spent with the children was occupied by his recording their words and actions and influencing them against their mother. The husband did not use those periods to enjoy his relationship with the children and further bond with them, rather they were times employed to further develop issues and evidence. That is likely to continue until the husband can put behind him the conflict, aggression and compulsion that he has displayed towards these proceedings and the wife. Only then can the possibility of developing a meaningful relationship arise and now is not the time and the facts of this case are wholly supportive of the need to pronounce a sole parenting responsibility order.
Sub-section(2)(b) thereof is crucial to a determination of the best interests given the alleged physical and, most certainly, psychological harm being alleged to the children from exposure to the actions or abuse of the husband. These are matters where there is strong evidence from the family consultant and other witnesses called on behalf of the wife. It has been a matter of very significant concern to the Independent Children’s Lawyer and their recommendations as to appropriate orders are clear and concise. I have hereafter given very careful consideration and detail to the issue of protection of the children from such harm or exposure to such violence and they are matters fundamental to my findings and the orders which I have pronounced.
On all of the evidence before the Court there is a real and ongoing need to protect both children from likely psychological harm and being exposed to abuse and family violence. That is one of the reasons why the Senior Registrar had previously provided for supervised time to be spent at an established venue where trained and experienced persons could oversee the husband’s conduct and interaction with both children. I have found that ongoing supervision remains appropriate notwithstanding the husband’s blunt refusal to acknowledge or comply with any such order.
The relevant additional considerations of s 60CC(3) must be considered within the framework of deciding the best interests of the children and with whom they are to live and the spend time with. Within that framework and having regard to the specific issues in dispute before the court the additional relevant considerations that I have considered and assessed in determining the best interests of S and K are:
(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);
(c)the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
(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;
…
(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;
(i)the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
(j)any family violence involving the child or a member of the child’s family;
(k)any family violence order that applied to the child or a member of the child’s family, if:
(i)the order is a final order; or
(ii)the making of the order was contested by a person;
(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;
(m)any other fact or circumstance that the court thinks is relevant.
I have not had regard to the wishes of the children given that they are not of an appropriate age. Insofar as the husband sought to rely on the many and varied comments which his daughter was purported to have made against her mother I do not accept the evidence either of the making of the statements or of their relevance.
As I have substantially evaluated hereafter the wife has a very close loving and secure relationship with both children. By his refusal to see the children in supervised circumstances the husband has substantially interrupted what otherwise may have been a good relationship with the children. The grandparents would likely have had a limited but good relationship with the children who would no doubt respect them as the husband’s parents.
I formed a very firm view that both his parents are hard working, solid family and well established within Fiji. Both are now retired and have no independent income source, or at least did not disclose same to the Court. Their home and future is in Fiji and their grandparent responsibilities are to be shared with their extended family and I am confident that is their true wish and priority.
I have carefully read their affidavits and I have determined to place no weight or significance upon their complaints and observations. They are blind to the reality that both children have lived with the wife for all of their life and that their son has chosen not to take steps to see his children in a controlled environment and building up towards more substantial time with each of them.
On numerous occasions each of the parents identified that their son pays child support and would be required to pay a fee to the contact centre at G to spend time with his children at that venue. Each of them identified their son has no available money and that it would be unfair for him to be required to pay for the privilege of seeing his children. That evidence is identical to that which the husband has told the Court and it largely ignored the reality of the husband’s past failure to pay child support over a long period and otherwise his current income and the ongoing interests and welfare of the children.
I conclude that the evidence of the husband’s parents was prepared by him and it wholly echoes his concerns, complaints and attitude to all persons and organisations with whom he has been in contact over these children and financial issues now before the Court.
I am not in any way persuaded by the evidence of the husband’s parents though I carefully emphasise that they are very solid, hard working and loving parents wholly devoted to their family and their son and the outcome that he required in these proceedings.
DR D
Dr D is a consultant forensic psychiatrist who was nominated by the Independent Children’s Lawyer following upon the order of Senior Registrar FitzGibbon to prepare a psychiatric assessment report of the husband and wife. The wife was interviewed on 16 February 2010 and a report of that same date was prepared and is now in evidence.
For the purposes of that report Dr D had available to him all of the court documents identified at the commencement of his report. These were made available by the Independent Children’s Lawyer, were delivered to Dr D and were read by him prior to his consultation with the wife. His evidence was that they were then immediately returned by him to those solicitors.
Dr D interviewed the wife for approximately 1½ hours, given that she was 30 minutes late for the scheduled two hour appointment. He obtained a detailed history and relevant personal details and he said that his practice was to incorporate all of those details in his report.
I have read that report and as to his professional opinion of the mental state of health of the wife Dr D recorded that:
“She presented as a quiet mannered and courteous woman. She engaged openly and readily. She presented as candid and sincere. She did not present with features on mental state suggestive of a psychiatric illness or personality disturbance. She spoke with a free narrative that appeared genuine”.
In his opinion and recommendations Dr D further recorded his professional opinion that:
“[The mother] identified [the father] as being an intolerant, domineering, controlling and entitled and perhaps paranoid man who resisted her efforts to be independent and assertive. With increasingly frequent conflict eventually leading to verbal abuse and threats of domestic violence she was forced to leave the family home on a few occasions with the children. The relationship ultimately ended with [the father] being unrelenting and insightless. [The mother] expressed a range of concerns regarding [the father’s] personality style and limited capacity to work through issues and conflict. She continues to be concerned that [the father] communicated inappropriately with the children by criticising her and undermining her capacity as a mother”.
Dr D’s observations of the mother were that she:
“Presented as a gently mannered and quietly spoken woman with features of a placid temperament. She may lack innate assertiveness but she has been required to muster these skills in light of demands forced upon her by [the father] … she was a convincing historian who appeared to provide an authentic account of her experience of the relationship with [the father] … there are clearly significant communication issues between these parties that persist as an ongoing source of difficulty if any shared care arrangement is being considered”.
Under cross examination from the husband Dr D confirmed his view that the history provided by the wife in interview and her demeanour and attitude was authentic and that she was true and genuine in her account of the facts, though he acknowledged that he merely obtained the history and did not otherwise investigate the truthfulness of those facts.
The husband took issue with some of the facts and history provided by the wife but none of those questions in any way impacted upon or caused Dr D to depart from his conclusions reached in his psychiatric assessment of the wife.
I wholly accept the professional opinion of Dr D that the wife presented with no features of any psychiatric illness or personality disturbance.
I give very significant weight to the opinion and recommendation of Dr D that a shared care arrangement would present very difficult issues arising out of the personality of the parties and their conflictual history and inability to communicate.
The husband had been ordered to provide a psychiatric assessment to the Court and it had been proposed by the Independent Children’s Lawyer that he attend upon Dr D. He declined, for financial or other reasons and that failure to comply with Court orders and having no such psychiatric assessment of him before the Court are matters fundamental to the orders sought by the Independent Children’s Lawyer and matters which I have very carefully evaluated in my orders pronounced.
MS AS
Ms AS is a former work colleague of the husband and worked alongside him for approximately one year and until April of 2010. Her affidavit was filed 25 November 2010 and she was required as a witness for cross examination by the husband.
As a witness she was strongly spoken, forthright and confident. Her evidence was vigorously challenged in cross examination but she strongly supported the contents of her affidavit and an earlier statement that she had given to police on 5 July 2010. I concluded that she was a precise, truthful and very assertive witness. I wholly accept her evidence and it is of very real significance and importance in this case.
During the period where they worked together at the husband’s current work place Ms AS stated that the husband often discussed these Court proceedings with her and provided her a number of affidavits and other Court documents to read.
I accept that there were discussions in December of 2009, in particular about upcoming property and financial proceedings. The husband’s reply as recorded in paragraph 3 of her affidavit was, I find, accurately relayed by her in her evidence.
The matters detailed in paragraphs 4, 5 and 6 of her affidavit are of particular significance. I accept the evidence of this witness.
I accept that the husband made initial and somewhat veiled threats of the wife when he said “if she gets one cent from my house that will be the last day she ever walks on this earth”. I accept that it was the husband who made reference to a case which had attracted considerable publicity in the media and where a Chinese man had travelled to Australia and left a small girl at Spencer Street Railway Station and subsequently the body of that child’s mother was found in New Zealand. The mention of that case by the husband to Ms AS was, I find, for a specific purpose and must be read in the context of the purported harm that the husband had identified could occur to the wife. I find there was both purpose and motive in the husband identifying that particular well publicised case and the significance of paragraph 4 of Ms AS’s affidavit is not exaggerated. The cross examination of the husband did not, in any way whatsoever, reduce the impact of those words which I find he did say to this witness.
I accept the significance of paragraph 5 in that the husband identified, from bank statements that he knew then of the residential address of the wife. I accept the evidence of Ms AS that, at work, the husband was spending more time researching family law issues and that was apparent and known to this witness.
Ms AS was carefully cross examined by the husband as to the contents of paragraph 6 of her affidavit. I accept her evidence and it was not diminished by her cross examination. I accept that there was one day at work in that month when the husband arrived late, smelt strongly of alcohol and was agitated and upset. I accept his admission to this witness was his disclosure that “last night was going to be the night, I had the knife in my hand. If it were not for my father I was going to kill her last night. I’m going home. I can’t be here”.
Each of the incidents identified by this witness in her affidavit occurred in December of 2009 and January of 2010. When questioned Ms AS said that she did not then report the matters to her work place, to her work agency or to police because she was able to talk to and deal with the husband on a daily basis. Specifically she said that they “could ride the waves”. I take her evidence to mean that whilst she was in the same work place and had the confidence of the husband then she could monitor, give advice and likely manage his level of upset or mood swings.
The husband vigorously cross examined this witness on the basis that she had and was continuing to tell lies, that she had made up all of these statements and that she was vindictive and false. All such allegations were denied by the witness and I accept her evidence.
In cross examination of matters additional to her affidavit the witness identified the husband’s active contact with and receipt of advice from various fathers’ rights groups. She said she knew this because of the husband’s discussions with her and his phone calls which were made out the back of or outside of the work place. There is no reason why I should disbelieve this evidence of Ms AS. This witness left her employment as her job was casual and she was offered a better job with an afternoon shift elsewhere. She worked with the father for a total of eleven months. On her final day she said to the husband “I never want to turn on my TV and see your face on there because you have done something stupid”. Ms AS said that the husband did not answer her but had a smirk on his face.
Her evidence was that it was because of that non-responsive answer and his facial expressions that she became particularly concerned and then made a telephone call to a social welfare group, C Organisation. She said that she knew there was a welfare worker by the name of “Ms B” and she asked for her. That person rang her back the following day. Her evidence was that she sought out that person because she knew that she was the case worker for the wife. Her evidence was that she had never previously met the wife or had any discussion with her and I accept that evidence. She was primarily motivated by the fact that the husband knew of the wife’s address and she explained her actions on the basis that she was endeavouring to alert social welfare people so that the wife could relocate herself.
Subsequent discussions with Ms B led to a request for Ms AS to give a police statement. There was a substantial delay and it was not until 5 July 2010 at G Police Station that the statement was provided. Exhibit “W8” is that statement which was adopted by Ms AS. I have read that statement and it is generally consistent with the affidavit. To the extent that there are any variations in evidence they were not matters cross examined upon by the husband.
As a result of giving that statement Ms AS attended at the State Magistrates Court at the hearing of Family Court Violence Protection Applications brought by the police against the husband. She did not give evidence on 20 August when interim protection orders were made. She later attended that Court in December 2010 and was questioned by the Magistrate and her evidence was of importance in leading to the pronouncement by the Court of an ongoing Family Violence Protection Order as against the husband and to the benefit of the wife and children.
In her affidavit Ms AS expresses her concern about the potential for the husband to follow through on his threats to harm the wife. Clearly those threats were given considerable weight and attention by the State Magistrate and the protection of the wife and children was and remains a matter of utmost importance.
In his vigorous cross examination of this witness the husband asserted that she had a vendetta against him, or against his employer and that her evidence was tainted, wrong and should not be accepted. I do not accept those assertions made by the husband and I am comfortable in accepting and relying upon the evidence of Ms AS.
MS B
Ms B is an intake and assessment worker employed by C Organisation, a social welfare organisation. She was primarily the social worker assisting the wife and children from mid July 2008 until June of 2010.
By way of professional qualifications she holds a Bachelor of Social Work and has fifteen years experience working with families and children and she deposed to extensive and continuing training on matters of family violence and best interests of children. The husband challenged her qualifications but I have no issue with both her work, background and experience and she and her employer have significantly been involved with and assisted the family over the past two years.
Ms B’s affidavit was filed 8 November 2010 and I have carefully read that document and assessed her evidence. She was vigorously cross examined by the husband on her role with the family and the assistance and advice she has offered the wife and actions which she has instigated. I have found no reason to be either concerned with or critical of the attitude, work or involvement of this witness.
The wife presently has support from C Organisation only whilst attending Court and throughout these proceedings another member of their staff has sat alongside the wife in Court.
Ms B was first assigned to the case when friends of the wife contacted C Organisation and alerted them to the physical circumstances of the family and that the wife was then physically unwell and needed hospitalisation for viral meningitis.
Ms B played a significant role in obtaining for the family accommodation and ultimately the rental property which the wife has rented from the Office of Housing from November of 2009.
Ms B expressed the opinion and detailed her observations that the wife provides very good care and support for the children and she has had no concerns as to that level of care and upbringing.
Her observations of both children are detailed in paragraphs 12 – 17 (inclusive) of her affidavit and I accept that evidence which highlights the security and development of the children within their mother’s home and their very strong attachment to her.
Appropriate attention was given to the speech development issues of K and otherwise I am wholly satisfied that the dark skin pigmentation on his back were not bruises and were properly described by the wife in paragraph 51(f) of her trial affidavit.
On all of the evidence that I have heard from the wife and her witnesses, and the professional evidence I have no concerns as to her care of both children and there is no evidence to found any allegation of any mistreatment by her of the children.
Likewise I accept the opinion of this witness, based on her knowledge and observations and as described in paragraph 22 of her affidavit. There is no evidence before me to support any allegation by the husband of any abuse and neglect by her of the children.
The wife’s affidavit has provided particulars of the many text messages she received from the husband and which she said were by way of ongoing abuse and harassment of her. In that context I accept the observations of Ms B that the wife suffered considerable stress upon receipt of those many messages.
The husband’s cross examination concentrated upon the level of interference and involvement of this witness and the difficulties which he alleged that she had created for him and in his relationship with the children. On balance I do not accept that proposition of the husband though clearly Ms B is very significantly aligned with and supportive of the wife. The husband has made three formal complaints to the Department of Human Services about Ms B but I have no information as to any investigation or finding and I know of no outcome adverse to Ms B or her employer.
In giving her evidence Ms B had before her the files and notes that she had made over her two year involvement with the family. They were extensive and voluminous and that highlighted both the level of support the wife and children required and perhaps more particularly the conflict, complaint, aggression and past behaviour of the husband. I balance all of those matters in determining orders that are in the best interests of both children.
Finally there was passing reference to potential sexual abuse and I put on record that there was absolutely no allegation of substance and no evidence whatsoever to support any such suggestion and that issue has played no part in these proceedings or in my findings.
Generally I was assisted by Ms B and her evidence and it more particularly highlighted the very difficult circumstances and distress of the wife and family in mid 2008 and the positive support, care and assistance that they have received and which has significantly assisted the wife with her lifestyle and the children. On all of the evidence of the wife, the professional witnesses and Ms B I am confident that the wife has now re-established a secure and balanced lifestyle for her family, the children are at no risk and are now settling into an established routine of home life, school and kindergarten and their only real uncertainty remains as to any time they may spend with their father and his attitude and demeanour towards them and towards supervision of time and then re-establishing his relationship with his children.
THE FAMILY REPORT
The Family Consultant appointed by order of the Court was Mr U and he interviewed the parties and the children on 5 July 2010 and his report is dated 2 August and was released to all parties pursuant to Rule 15.04 of the Family Law Rules 2004. That document is in evidence and the Family Consultant has been cross examined by all parties.
Annexed to the Report Mr U attached his Curriculum Vitae and his qualifications are primarily a Bachelor of Social Work and thereafter a Master of Social Work from Melbourne University. He has extensive experience with this Court and generally with children and has been a Family Consultant in the employ of this Court for the past five years.
I particularly make reference to the qualifications and work experience of the Family Consultant as they were matters raised by the husband who challenged this witness’ lack of psychiatric or psychological qualifications and experience. Mr U emphasised his years of experience with children and that he regards himself as “a child specialist”. I accept the qualifications and work experience of this witness and I do not share any of the concerns of the husband.
The recommendations of Mr U are contained in paragraphs 75 – 78 (inclusive) of his Report and can be summarised as follows:
§the children should continue to live with their mother;
§the wife should have sole parental responsibility;
§the husband’s time with the children should be for two hours each fortnight on a supervised basis at a children’s contact centre;
§before the commencement of any such supervised time with the children the husband must participate in and have prepared a psychiatric evaluation; and
§there should be an outcome of any criminal charges or other Magistrates Court proceedings outstanding as against the husband.
Mr U otherwise recommended the husband attend upon and complete an appropriate post separation parenting education programme so as to enhance his parenting skills and further his understanding of the importance of children to maintain an ongoing relationship with each of their parents.
The husband had told the Family Consultant (paragraph 18 of the Report) that he had never been charged by police for any offence. On the evidence that is correct and thus there are no criminal charges pending and I have no regard to any matter arising from that aspect of Mr U’s Report. The Magistrates Court proceedings referred to were the December 2010 proceedings and I have fully explored that outcome. They are now concluded, subject to any possible appeal, and the orders pronounced are matters of significant relevance.
I accept that the husband has completed the post separation parenting course and notified the wife’s solicitors of that situation. I conclude that there is no further benefit to the children of requiring the husband to reluctantly undertake any ongoing post separation learning and education courses.
For the purposes of his consultation and Report the Family Consultant had available to him all of the documents on the court file as listed within Nos. 68 – 90 (inclusive) and the other reports, judgments and documents as identified at the commencement of his Report.
Mr U structured his Report so as to identify the various issues in dispute which he identified and thereafter considered and made recommendations upon. He presented an assessment to the Court of each of the parents, the children and his various observations and then a comprehensive evaluation at paragraphs 65 – 74 (inclusive).
The content and structure of his Report should be read together with my order pronounced 8 June 2010 where I directed the updated Family Report to be prepared and identified the various issues to be considered by him.
Mr U provided an assessment of each of the husband and wife and was cross examined in much detail by the husband. Those paragraphs (15 – 40 (inclusive)) show insight into the conflict and lack of communication between the parties. They highlight tactics and the involvement of the children in the dispute, in particular with what the children have been told by their parents or entwined within the family struggle.
An assessment of both children and their views are provided to the Court in paragraphs 51 - 60 (inclusive). That is disturbing in that it highlights, particularly for S, her limited knowledge and understanding of the conflict and threats.
S has memories which she discussed with the Family Consultant of violence and threats to kill her mother. Tragically she holds the understanding that her mother “is going to be dead”. I have contrasted that Report upon S’s comments with her settled school life, school report and loving upbringing with her mother post separation.
The Report upon K highlights his language difficulties but also his references to a gun, to shooting and ultimately to what he understood as the likely outcome that his mother will be killed. That scenario was of course repeated by K recently at his crèche.
The views of both children, upon which I have given no weight and do not rely in pronouncing final orders is that they do not want to spend any time with their father because of their sadness, anxiety and belief of his likely tragic actions.
I contrast those reported comments of the children with the observed interactions between them and their father as described in paragraphs 51 – 58 of the Report. The father interacted positively and warmly with the children and it was observed that they thoroughly enjoyed the time spent with him, notwithstanding his focus upon his son to the substantial exclusion of his daughter. In the limited circumstances of the consulting rooms, with time pressures and a strange environment I have drawn no conclusions adverse to the husband and I am accepting that he does love both children and has not and would not discriminate between each of them.
The observations of both children with the mother and her positive relationship and attachment were identified and I have no issue with a finding that the children are very closely attached to their mother. Again I draw no adverse conclusions from the children’s behaviour or comments having seen or spent time with their father in that constrained situation.
The evaluation and recommendations of Mr U very strongly highlight his opinion that ongoing structured supervised time should only be available to the husband on a limited basis pending his acceptance of past and current court orders and his taking proper action to better understand and adjust to the children’s needs and the securing and safety of the family.
The recommendation of Mr U is that the wife have sole parental authority and that they continue to live with her. He strongly maintained that recommendation throughout questioning and his concluding oral evidence was firm and blunt in his rejection of the orders sought by the husband.
It is very clear from all of the evidence in this case, including the Report from the Family Consultant that the husband views himself as a victim of a wide spread conspiracy. He is unrelenting in his ongoing criticism of others but does not have the ability or foresight to examine his own actions and comments. He will not accept any outside professional assistance. The background with their religious and cultural circumstances, including the arranged marriage and the dominant role of the husband are also significant issues that I have evaluated in this hearing.
The safety of the children must be paramount and the Family Consultant echoed his substantial concerns for them and about the conduct, threats and behaviour of the husband, though I repeat there is no criminal charge outstanding as against the husband and I read paragraph 71 of the Report with that caveat.
An unknown issue for the Family Consultant was the underlying mental health pathology of the husband and in that context the request for a psychiatric assessment was re-emphasised by the Family Consultant and was and remains a matter of importance. The husband has been told and must understand the necessity for him to undergo an independent and qualified mental health examination prior to spending more meaningful time with his children.
I emphasise the detail and length of the cross examination of the Family Consultant by the husband. It was well prepared, though somewhat repetitive. It was focused upon rejecting claims of the husband’s inappropriate threats, conduct or actions with his children. It was intended to highlight the concerns and safety issues if the children were to remain with their mother. I listened carefully and attentively to such questions and the responses. There was no matter arising therefrom which caused me to reject the recommendations of this witness. He was, from my experience of observing Family Consultants in cross examination, steadfast and resolute in the outcomes that he considered were necessary to secure the best interests of the children.
I have given very appropriate and significant weight to the recommendations of Mr U and his concerns and issues recorded in both his Report and his oral evidence to the Court.
BEST INTERESTS
Throughout these reasons for judgment I have focused upon the requirement of s 60CA and have at all times had regard to the best interests of both children as the paramount consideration. I conclude that the orders that I have now pronounced and which accompany these reasons for judgment do best to secure the best interests of the children in a case that is difficult by reason of the personality, culture, behaviour and demands of the parents. I record my encouragement to the husband to reflect on the reasons for judgment and respect and comply with the orders and the process which will facilitate him then being able to spend time with his children. That is also in their best interests and is a matter that I have carefully reflected upon throughout this hearing and in preparation of this Judgment.
ORDERS
The final children and parenting orders accompany this Judgment. All questions of costs are reserved pending any application and submission received.
I certify that the preceding Two Hundred and Ninety Four
(294) paragraphs are a true copy of the reasons
for judgment of the Honourable Justice Young
delivered on 3 February 2011
Associate: ……………………………………………………………
Date: …………………………………………………………………
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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Costs
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Consent
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Appeal
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Jurisdiction
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Procedural Fairness
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