Ponting and Ponting

[2010] FamCA 314

FAMILY COURT OF AUSTRALIA

PONTING & PONTING [2010] FamCA 314

FAMILY LAW – CHILDREN – With whom children spend time

APPLICANT: Ms Ponting

RESPONDENT: Mr Ponting

INDEPENDENT CHILDREN’S LAWYER: Ms Doris Chan

FILE NUMBER: BRC 4122 of 2008

DATE DELIVERED: 12 March 2010

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Bell J

HEARING DATE: 9 & 10 March 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Frizelle

SOLICITOR FOR THE APPLICANT: G Couper Solicitor

COUNSEL FOR THE RESPONDENT:

SOLICITOR FOR THE RESPONDENT: In person

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Berck

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid Queensland

Orders

1. The Respondent’s application is dismissed.

2. The mother have sole parental responsibility for the children K born … October 2000 and L born … April 2004.

3. 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.

IT IS NOTED that publication of this judgment under the pseudonym Ponting & Ponting is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER:  BRC 4122 of 2008

MS PONTING

Applicant

And

MR PONTING

Respondent

REASONS FOR JUDGMENT

1. This is an application on the part of Ms Ponting for a parenting order in relation to two children, being the children of herself and the respondent, Mr Ponting. 

2. The parties commenced cohabitation February 1998, married in 1999, and separated on 3 June 2007.  From such union, as I have said, two children were born, they being K in October 2000, and L in April 2004.

3. The marriage, according to the mother, was one of dominance or attempted dominance by the father.  There was disputes between herself, the father and the children, but in particular in relation to J, who was a child of a previous relationship to the mother, and he was born in September 1994.  He thus is some 15 years of age at this stage.  It subsequently appears that the respondent and J did not get on at all well, and a deal of angst was caused by the fact that they did not get on.  The mother readily concedes that J was not an easy boy.  It appears as though he may have settled down as he has got older.

4. The issues are set out in the applications and responses.  The mother is now seeking an order that she have the sole parental responsibility for the children, that they live with her, and that the father now has no contact whatsoever. 

5. The father, on the other hand, is seeking an order which perhaps would implement that which took place between the parties from about June 2007 until approximately mid 2008, and that was a form of shared time, which appears, on the face of it, to not have worked particularly well.  Though there was a great deal of disestablishment, if I may put it that way, with the boys;  that it upset them;  that they were not terribly confident on it;  and they started to show signs during this period from about June 2007 until about the middle of 2008 of concern in relation to the father's conduct towards them, and in particular his own mental health.  The children referred particularly to the fact that the father frequently was crying, that he on occasions had made what they saw as threats to their life and to his own life, and these matters caused the children concern.  However, it was persevered with until July when, as a result of a final complaint to the mother by K, that the department became involved.

6. As a result of that, the mother identifies the issues as follows:  the threats by the father to the children;  the physical abuse by the father of her eldest son, J;  the reluctance on the part of the children to spend time - when I use the word “children” I am referring to K and L, not J - the reluctance of the children to spend time with the father, and it is said by the mother that K is frightened of his father.  There is the question of K’s attempting to self-harm.  It is alleged that the father continually denigrates and blames the mother in front of the children.  She also has concerns about the father's mental health.

7. The father is concerned about the following:  that the mother's fears that he will harm himself or the children are unjustified;  the mother assaulted him at the date of separation;  the eldest child, J, hurts K.  He believes the mother is punitive towards the children.

8. The family consultant, Mr N, has given two reports in this matter.  I may say in passing that the experts have been a great assistance to me in what is a very difficult case, the experts being Mr N, Mr S and Dr C.  The family consultant, as I said, identified the following matters which were of concern to him:  alleged threats of harm to the children and threats of self-harm by the father,  the father's inability to date to come to terms with the finality of separation;  K’s fear of the father;  and the father's history since separation of involving the children in the relationship breakdown by blaming the mother and her eldest son.

9. I will say in passing that the father has blamed J and the mother for the breakdown of the matrimonial relationship.  He also himself was previously married to Ms E for a period of about six years.  She also had a child from a previous relationship, and he also indicated that it was not only that child's fault that the first marriage broke down but that the applicant in this case became involved in that breakdown and also caused the alienation of his two children to Ms E.  I think they're aged about 24 and 20.  H was the boy.  And as a result thereof, the children have nothing to do with him.

10. As I have said, the mother has claimed that there has been domestic violence perpetrated against herself and, as well, the children.  This does not particularly refer to physical violence, but it is more verbal violence and an endeavour to over-control the mother.  However, he was violent, according to the mother, towards J, on frequent occasions shaking him, holding him by the neck.  The father has conceded that he was also quite violent to the boy of the first marriage, strapping him on occasions.

11. The father alleges that there had been violence on the part of the mother on, I think, two occasions.  One was back in about 2005 and the final one took place on 3 June 2007, which was the breakdown of the matrimonial relationship totally.  There appears to have been some altercation which developed and developed and developed, and there are allegations of cheese being thrown at the father.  The father, endeavouring to protect himself, accidentally knocked the mother to the ground.  There's evidence from him that she assaulted him.  However, it was a most unsavoury, and I would have thought quite tasteless, display in which not only the parties got involved but the children, to a lesser extent, and also the extended family of the mother.  As I said, it was most unsatisfactory, and this took place in front of the children.

12. In May 2008 the mother filed an application in the Federal Magistrates Court seeking interim orders for the children to live with her and, amongst other things, for the children to spend time and communicate with the father at all reasonable times as agreed between the parties.  The father was quite critical of the mother in filing this application, indicating that she ruined everything.  He also was quite incensed that she filed this and, as he said, she endeavoured to change the arrangement which he believed had been working quite comfortably since mid-June 2007.  However, before he went any further, I did inform him that I understood that the order was not continued with and that an order for shared parenting was made on 16 June.  That did not seem to placate him to any great extent at all. 

13. One of the matters which concerned me particularly is the lack of insight which is quite clear in the father’s attitude in this matter.  That's been referred to by all of the experts, and has also been referred to by the mother.  If I might just use one example in this insight;  it was 8 July 2008, after the consent order, the father rang the mother requesting the mother attend at the Hospital because that's where they were, or words to that effect.  The mother became quite concerned as to the welfare of the children.  She contacted the hospital only to be informed that no one of that name had been brought in.  She immediately endeavoured to go to the hospital but was informed subsequently, just after she got to the hospital, by the father that he just wanted to bring some pressure to bear upon her which she had brought to bear upon him.  I think that's quite staggering that he did not see that there was anything wrong with his doing that.

14. However, by about this same date, the Department of Child Safety became involved.  They may have been briefly in touch with him before, but by July they became involved, and a great deal of concern obviously was engendered by the father's attitude, not only towards the children, as reported by K, in particular, and a notifier or notifiers - we are unable to ascertain who they are, for obvious reasons - as to K’s fear of his father and the general conduct of the father, wherein it is said by K, supported by L, that the father cries all the time, that he indicates to them that life is not worthwhile living, that he might as well kill himself. 

15. That itself is very distressing for children, but the worst one is that K was of the belief, whether this was said or not, but I'm more of the belief that K did only repeat what took place - the father has indicated to him words to the effect, "We'll sort this all or get rid of this all.  We'll drive off a bridge."   He allegedly used words to the effect that he'd take them with him or that he will kill them on more than one occasions.  This caused K a great deal of angst and, in fact, the words were, K reported to the Department of Children's Safety to the effect that, "The next bridge, we will go off and die." 

16. K has, on occasions, indicated that his father wants to kill him and L and that L is too young to die.  These are absolutely appalling statements to come from a child.  The father denies that he has made any of these statements whatsoever.  He does accept that he has been terribly distressed at the breakup of the marriage and has frequently cried in front of the children.  I do not believe that even he, in rambling cross-examination, in any way suggests that the boy did not say these words.   Where did K get it from?  It was not suggested by the father he got it from the mother.  He did tend to suggest that the mother had tried to alienate the child from him, not even realising that it was his own conduct which has caused this alienation, but I am quite satisfied that not only did K say these things, but I'm quite satisfied that the father said those matters to K. K was, at that time, seven or eight, and I doubt very much whether, in fact, he would be able to work out or tell lies to the extent.  Professor Nader many, many years ago said that children don't tell lies.  It may be right.  It may be wrong.  But in this case I am satisfied that L is telling the people - and that's a lot of people - that, in fact, that is what happened and as a result thereof he is afrightened of his father. 

17. The Department's involvement.  It started on 28 July, where the department was notified by a notifier that the children would not get out of the car, they were clinging and holding onto the car, that K was reported to have said he was scared and did not want to go.  K also is reported to say, as I've already mentioned, "Dad wants us to die," and at this stage the notifier indicated to the Department that the father was crying and stated in front of the children, "I may as well be dead." 

18. The Child Safety officers attended T School, at which K was a student.  They contacted K and had a discussion with him and also had discussions with JB.  I know that the Director of Family Services is sometimes under a great deal of criticism by the press, and at least I have some sympathy and rapport with them, because I have the same type of criticism. 

19. I must say that Ms Y, I think it was, who was called at the insistence of the father to give evidence as to the investigation by the department has impressed me as a person of great dedication, of tremendous intelligence, and of a great sensitivity towards children. She worked enormously hard and she downplayed, as I see it, the attitude of the father towards her, who carried on, I'm quite sure, in a most rude and abusive fashion on this evening.

20. One of the officers, Ms Y also indicated that when he was interviewed with K and L, indicated that the children were not to come into a room with him.  She closed the door and he opened the door and called for K to come near in order to ask him whether he was frightened of him and things of that nature.  Ms Y’s evidence, I thought, was most compelling in that she said that K appeared to her to be quite frightened of his father.  Showing in my opinion lack of insight and sensitivity on the part of the father.

21. The father confirmed, according to Ms Y, that the children were distressed at handovers and he had also, of course, denied making any of the statements which have concerned me tremendously.

22. A temporary assessment order was made - by the way, he makes much of the fact that the department allowed him to retain possession of the children overnight and complains bitterly that, in fact, the police came to just check on them early on the morning of the 29^th, I think it was. 

23. This just goes on and on.  On 30 July, the father informed Ms Y he believed the problems in the marriage were due to the child J, and that J is a risk of harm to his children, K and L.  He says that he has seen J assault K and that he has put wedgies upon both of them.  The subsequent interviews by K, particularly the last one of Mr N’s indicates that there may have been some difficulty between he and J, but that seems to all have been resolved, particularly since separation and since the shared parenting regime has ceased. 

24. The Department held concerns for the safety of the children in the father's care and there is also a statement to the effect that the risk to the children whilst in the possession of the mother was moderate, and that was clearly explained by Ms Y, and I am not at all afeared about that finding.  The gradings are low, moderate, high, and very high. 

25. In September, the father obtained a protection order against the mother, and I believe that there is another one against the father.  These are all mutual and, in effect, by consent. 

26. On 12 November, and this is quite important, Purdon-Sully FM, who had been seized of the matter, made various orders, but inter alia she ordered the parties to attend a Triple P parenting course and provide a certificate of completion to the Independent Children's Lawyer.  The father has refused to do so.  I asked him whether, in fact, he had done this Triple P course and he said, no, he didn't need to.  My notes are that he said, "I know what is best for the children.  I know how to look after my children."  He says that he had attended a similar course some time during his first marriage.  Once again, if, in fact, he is of the belief that he knows what is best for his children and he knows how to look after his children, I am surprised that he doesn't know why the children won't speak to him, and it is not, in my opinion, the mother's refusal to allow them to speak, but it is their definite desire not to, particularly K.

27. I note in passing that the school records have indicated that K’s attitude at school since, to their knowledge any contact with the father has ceased, that his conduct has settled down tremendously and he is giving more attention to his studies and is more accepted in the playground.

28. There was a pathetic, and I use the pathetic, attempt on the part of the father to say that he did not know anything about this parenting course order because he said he only just recently got the papers from his solicitors, I think mid-February.  I pointed out to him that, in fact, he was there present at the time.  He was representing himself.  And then he indicated to me he didn't quite remember what the order was. 

29. His memory is not good.  This has been commented upon by all of the experts, the three to whom I have already referred.  In particular Dr C, a well-known psychiatrist, was concerned about the father's mental condition and endeavoured to ascertain a history from him, particularly insofar as his retirement from his employment, wherein he did so some years ago and received a lump sum payment of something like $180,000 to $200,000.  He was unable to ascertain any clear reason for his leaving the employment.  That concerned him, and in other matters he was quite concerned about the mental health of the father. 

30. He does not find that he is suffering any depressive illness, but he is concerned that, and I refer to page 9 of his report exhibited to his affidavit filed in this court on 19 February 2009, the man shows an extraordinary lack of insight into the difficulties that have surrounded him. 

    He has been involved in two marriages where he alleges that the stepson has been the cause of both demises, and he appears to have little ability to examine his own behaviour in relation to all this.  He does not have a profound oppressive illness.  He does, I think, have some dysthymic symptoms, though I am of the view that he tends to minimise this, and his functioning and history would suggest some narcissistic strands to his personality. 

    This is supported by Mr N in his final report.  Mr N is a psychologist.

31. And he says at page 8 under the subheading Summary and Assessment:

    This 54 year old man has clearly struggled to come to terms with the breakup of his marriage.  I thought that his history in relation to his previous psychiatric difficulties was at least incomplete.  This man certainly had no difficulty in accessing memories from other parts of his life but claimed to be unable to remember whom he had seen, the details of the treatment and, indeed, any of the problems at around that time.

32. Mr S was concerned with the father's attitude towards not accepting any responsibility for the breakdown of the marriage, and at page 14 he says:

    His apparent lack of willingness to scrutinise himself and address the issues separately identified by DOCS, [Mr N] and/or [Dr C] limit the possible future options in this matter. 

33. I also refer to and incorporate into this, my reasons for judgment, paragraph 30 and - in fact, I incorporate in my reasons for judgment each of the reports of the specialists and experts. They being one of Dr C, one of Mr S, and two of Mr N. 

34. The father says that S and C (reports) are old.  They're not that old, and I would believe that, taking into consideration Mr N’s concern, that he has not changed at all and does not recognise that, in effect, he is the author of his own misfortune.

35. The children clearly don't wish to see him;  K in particular, and K was showing a great deal of emotional stress. 

36. The father made much of the knife incident, where he suggests and submits, as I understand it - I must say I found him very difficult to understand in cross-examination and in his submissions - that this was brought about because the mother would refuse to come home.  It appears that the mother had been talking to K and that when he put the phone down, he took a knife and waved it over his head and down towards his leg saying, "It's not worthwhile living" or words to that effect.  That is gravely concerning, but I don't believe that it was just because the mother would not come home.  I think it was a cry for help from this boy to enable him to get out of what was a very emotional and stressful situation. 

1. I am directed to look and consider first of all the shared parenting.  I need go no further than to say it would be an absolutely ridiculous situation here that any person could force upon these children shared parenting and equal time.  The question of domestic violence and the general welfare of the children would preclude me from considering the so-called presumption of shared parenting, and naturally, of course, shared time is not a presumption, but it's something which I have looked at and reject wholeheartedly and very speedily.

2. Section 60CC(2)(c):  this, the Full Court have emphasised, is a very important subsection and that deals with a meaningful relationship with both of the child's parents.  Any order I may make in relation to these children having any form of contact according to the experts and as I find on the evidence would be detrimental to any relationship existing between the father and the children, if there is any, and would make any future resuscitation of any relationship very doubtful, and I would not be persuaded that, at this stage, anything can be done, and I refer once again to Mr N and to Mr S, in particular Mr N. 

3. Do I have to protect the children from physical or psychological harm?  I need say no more than what I have already said, that the children are being psychologically affected, particularly K.  I don't believe that they have been physically affected, but psychologically they have been, and I consider that psychological abuse, emotional abuse is more dangerous than physical abuse.  The father’s emotional pressure and abuse is such that any form of spending time with the father would not encourage any meaningful relationship, as I have said. The child K has expressed clearly a view as to what he wants to do with his being forced to see his father.  He doesn't wish to. 

4. The nature of the relationship with the children I have touched upon.  Insofar as the children's relationship with the father, it is nonexistent.

5. I have no hesitation in saying I do not believe it would be in the interests of the children in any way in having any contact with their father.  I dismiss the response.  

I certify that the preceding forty-one (41) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bell

Associate: 

Date: