Preston & Baker and Anor
[2012] FMCAfam 308
•4 April 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| PRESTON & BAKER and ANOR | [2012] FMCAfam 308 |
| FAMILY LAW – Children – Father seeking change of live with arrangements for two young children aged nearly 2 and 3 ½ – where 3 ½ year old is not the biological child of the father – where the father is the only father figure the child has known – where father alleges that the mother is harming the children psychologically because of her behaviour towards the father – where father is alleging that the mother has exposed children to family violence – where mother has unaddressed mental health issues – where mother wishes to relocate the children to Perth – where mother unlikely to support or promote a relationship between the father and the children – interim orders made for children to live with the father and spend supervised time with the mother – where presumption of equal shared parental responsibility did not apply because of family violence – where order made for father to have sole parental responsibility. |
| Family Law Act 1975, Pt VII, ss.4, 60B, 60CC, 60CG, 61DA, 65C, 65DAA |
| Johnson & Johnson (2000) 201 CLR 488 Goode & Goode [2006] FamCA 1346 Morgan & Miles (2007) FamCA 1230 MRR & GR (2010) HCA 4 |
| Applicant: | MR PRESTON |
| First Respondent: | MS BAKER |
| Second Respondent: | MR QUIGLEY |
| File Number: | DNC 169 of 2011 |
| Judgment of: | L.Turner FM |
| Hearing dates: | 19 & 20 March 2012 |
| Date of Last Submission: | 20 March 2012 |
| Delivered at: | Darwin |
| Delivered on: | 4 April 2012 |
REPRESENTATION
| Counsel for the Father: | Ms Farmer |
| Solicitors for the Father: | Withnalls |
| The First Respondent: | In Person |
| The Second Respondent: | No Appearance |
ORDERS UNTIL FURTHER ORDER
That all previous children’s orders are hereby discharged.
That a copy of these orders be provided by the Darwin Registry Manager of the Family Court of Australia to the child care centre immediately.
That the mother is restrained from removing the children from the child care centre.
That the father attend today at the child care centre to collect the children.
That the children X born (omitted) 2008 and Y born (omitted) 2010 live with the father.
That the father have sole parental responsibility for the children.
That the mother have supervised time with the children for a two hour period each weekend, at a time suitable to the mother and the contact centre, such supervision to occur at CatholicCare NT.
That the parties communicate by way of communication book with:-
(a)The communication book to be purchased and provided by the father at the first supervised visit and to be provided by the father at every supervised visit thereafter;
(b)The mother to ensure the return of the communication book at the conclusion of each supervised visit;
(c)The communication book to contain a short summary written by the father of the children’s activities during the week, and notification of any issues regarding the children including health, diet, milestones etc;
(d)That any communication by either party in the book is restricted to issues regarding the children’s care welfare and development only.
That the mother is restrained and an injunction is hereby ordered restraining the mother from:-
(a)Telephoning the children;
(b)Communicating with the father either by letter, email, text, telephone calls or telephone messages;
(c)Attending at any place where the children may be present such as their home, their child care centre, and at any place where they may be regularly involved in activities such as gymnastics.
That leave is given for a copy of these orders to be provided by the father to CatholicCare NT and to any centres where the children regularly attend.
That the Darwin Registry of the Family Court of Australia release the passports for the children to the father.
That the matter is listed for mention on 17 July 2012 at 10.00am.
That pursuant to section 65DA(2) of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Preston & Baker and Anor is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT DARWIN |
DNC 169 of 2011
| MR PRESTON |
Father
And
| MS BAKER |
First Respondent
| MR QUIGLEY |
Second Respondent
REASONS FOR JUDGMENT
Introduction
When the parties commenced cohabitation in October 2009, the father had two daughters, A (now aged 22) and B (now aged 17) and the mother had a daughter X (now aged 3 ½ ).
The parties are the parents of a little girl Y who turns two in June.
Since separation (the date of which is in dispute) X and Y have lived with the mother and spent time with the father on an irregular basis including overnights.
The father wants the children to live with him in Darwin and initially spend supervised time with the mother as the father is concerned that the children are at risk of psychological harm and exposure to family violence if they remain living with the mother.
The mother wants the children to remain living with her and is seeking permission to relocate the children to Perth, with the children to spend time with the father during holidays.
Parental responsibility is also in dispute.
Issues
The issues then that I am required to determine in respect to the children’s issues are:-
a)When did separation occur?
b)Should any orders include X?
c)Are the children at risk of psychological harm if they remain in the primary care of the mother?
d)Are the children at risk of being exposed to family violence if they remain in the primary care of the mother?
e)Who should have parental responsibility for the children?
f)Where should the children live?
g)If the children are to live with the mother, should the mother be permitted to relocate the children to Perth?
h)If relocation is permitted what time should the children spend with the father?
i)If relocation is not permitted what time should the children spend with the father?
j)If the children are to live with the father, what time should the children spend with the mother and should that time be supervised?
k)If supervised time is ordered, then how will the mother’s time with the children progress?
l)Additional issues.
As the mother is not legally represented, the process of the hearing was explained in accordance with Johnson & Johnson (2000) 201 CLR 488.
At the conclusion of the hearing, as the mother was quite distressed, an opportunity was provided to the mother to provide written submissions at a later date, which she did.
In addressing each of the issues I have considered:-
a) and read all the material as marked in the court file including the two family reports prepared by the report writer Mr V in July 2011 and March 2012;
b) and read the exhibits;
c) the oral evidence of the party and practitioner and the report writer;
d) the relevant sections of Part VII Family Law Act 1975 and in particular section 60B, section 60CC, section 61DA and section 65DAA;
e) the principles and pathway as discussed in Goode & Goode [2006] FamCA 1346; and
f) the principles relating to relocation and in particular the pathways and principals as discussed in Morgan & Miles (2007) FamCA 1230 and by the High Court in MRR & GR (2010) HCA 4.
Findings of fact are made on the balance of probabilities, having regard to the evidence and in what follows statements of fact constitute findings of fact.
When did separation occur?
The father maintains that separation occurred in September 2010 although the parties remained living under the one roof until April 2011.
The mother states that separation occurred when the father left the house in or around April 2011.
Conclusion
I find that separation occurred in September 2010 based on the following:-
a) Throughout the evidence the mother repeatedly commented about being “deserted with a ten week old baby”. Y was ten weeks old in September 2010. This is consistent with the father’s position as to when separation occurred;
b) The mother ceased contributing to the mortgage of $400 per fortnight in or around September 2010 and contributed nothing further to the house until the mother left the house in November 2011 as a result of an exclusive occupancy order in the father’s favour;
c) The father’s child B moved out of the home in or around September 2010;
d) The father, by way of child support, initially paid all fees for Y when she commenced day care in November 2010.
I therefore find on the balance of probabilities that separation occurred in September 2010 and not April/May 2011 as stated by the mother.
Should any orders include X?
X is not the biological child of the father.
The mother has expressed a view that X could never be sent to live with the father as captured at [22] of the March 2012 report “She was convinced that Mr Preston would have no possibility of X being placed in his care primarily, since he was not her biological father. As the children should not be split, in her view, then Y could not ever be placed in his care primarily.”
The father however is the only father figure X has known as supported by the following undisputed facts:-
a) Her biological father Mr Quigley (the second respondent) has never participated in X’s life and has never provided financially for the child;
b) Mr Quigley has chosen not to be part of the court process;
c) Mr Quigley is not on the child’s birth certificate;
d) It is not the intention of Mr Quigley to be involved with X in the future;
e) The father has been actively involved in the child’s life since X was 5/6 months old with the mother moving in with the father when X was 12 months old;
f) The father during the relationship financially supported X;
g) The father loves and looks after X as if she was his own biological child;
h) X considers the father to be her father referring to him as her Dad.
Conclusion
I find that the father is a person who has and continues to be “concerned with the care, welfare or development” of X in accordance with section 65C(c) Family Law Act 1975 and as such the father is entitled to bring proceedings for parenting orders for X.
I therefore find that the inclusion of X in the father’s application is proper and that it is appropriate for any children’s orders to include X.
Are the children at risk of psychological harm if they remain in the primary care of the mother?
The father alleges that the children are at risk of emotional harm if they remain in the care of the mother.
The mother disputes this claim maintaining the conflict between her and the father has nothing to do with the children.
The objects when determining what is in the best interests of children are set out succinctly in section 60B.
Section 60B(b) requires children to be protected from psychological harm.
Conclusion
Having considered all of the evidence I find that the children are at risk of psychological harm if they remain in the primary care of the mother for the following reasons:-
a) The mother is relentless in her verbal abuse of the father;
b) This verbal abuse occurs in front of the children as evidenced by the taped recordings of the father during recent changeovers;
c) Not only are the children subjected to hearing the mother yelling hysterically at the father and calling him such things as “fuck head”, “paedophile”, “sick mentally ill bastard”, “psycho father”, “you are a sick piece of shit” “you are a wanker” and “you selfish bastard”; the children are directly embroiled in the ferocious verbal attacks by the mother on the father;
d) The impact on the children is heart-breaking and during one recording X is heard to say to her father “Mummy’s a bit angry” after witnessing a tirade of abuse by the mother to the father at changeover;
e) The mother threatens to physically assault and carries out physical assaults against the father in the presence of the children. In one audio recording the mother is heard to say to the father “I’ll smash you in the head”. The physical assaults can be heard with the mother hitting and kicking the father and slamming the door on the father as he is buckling one of the children into the car;
f) The mother states that the denigration of the father only occurs during changeover and that she does not speak ill of the father at any other time in front of the children;
g) I do not accept this evidence. The mother is clearly fixated by her despise of the father which is displayed throughout the evidence. This level of hatred is not disputed by the mother who justifies her position as the father has “hurt” her by leaving her with two young children. Numerous text messages and telephone messages are made by the mother to the father on a regular basis with the consistent underlying theme being the mother’s detest and disgust of the father;
h) In addition the mother emails the father incessantly, which is not only improper but inappropriate as this occurs during work time using work computers where both parties are high end (occupation omitted) employees in the same (employer omitted);
i) With this level of pre-occupation of the mother with the father, I cannot accept that it does not spill over into the mother’s day to day care and interaction with the children;
j) The mother has no insight that her behaviour towards the father and her persistent denigration of the father in front of the children is harmful for the children;
k) I accept the observations by the report writer at [52] of the March 2012 report where after commenting on the emotional abuse by the mother of the father it is observed “In the process, she has callously and directly engaged the children as involuntary witnesses to her behaviour. In short, she has emotionally abused them, in doing so, without any apparent self-reflective realisation that she has committed this abuse.”;
l) Both parties admitted to the report writer at [11] of the March 2012 report that “X and Y could not handle the conflict and abuse they witnessed. Both described X as ‘screaming’ on occasion…”;
m) As observed by the report writer in cross-examination, these two very young children are like “blotting paper” absorbing all the “negative emotions” displayed by the mother towards the father. This has the potential to “damage X developmentally”. As to Y, the report writer comments, that she would be affected as well, although not to the same extent, as Y is shielded because X appears to be the centre of attention during the altercations;
n) The mother explains that her behaviour will cease in the future and therefore there is no need for further concern for the children. The basis for such a statement is that relocation to Perth and the completion of court proceedings will put the mother in a better place. However the mother has done nothing to address her anger and frustration at the father, opting not to seek any specific counselling or provide the court with a psychologist report as previously ordered.
I find that the children have been exposed to psychological harm by the mother and that there is a risk of that harm continuing in the future should the children remain in the mother’s primary care.
Are the children at risk of being exposed to family violence if they remain in the primary care of the mother?
The father alleges that the children are at risk of exposure to family violence if they remain in the care of the mother.
The mother does not dispute that she has been violent towards the father, but states that the father has also been violent towards both her and the children.
Section 60B(b) requires the children to be protected from exposure to family violence.
The term “Family Violence” is defined in section 4 as:
“conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.”
Conclusion as to the mother’s exposure of the children to family violence
Having considered the evidence I am satisfied that the children have been exposed to and will continue to be exposed to family violence by the mother if the children remain in her primary care based on the following:-
a) The father has a current domestic violence against the mother granted from 11 January 2012 until 19 January 2013. The order provides that the mother is restrained from “harassing, threatening or verbally abusing” or “assaulting or threatening to assault” the father and the children;
b) The mother consented to the making of the domestic violence order;
c) The domestic violence order has not acted as a deterrent to the mother who continues to verbally abuse the father in front of the children;
d) Further the audio recordings of recent changeovers demonstrate that physical violence by the mother towards the father is commonplace and continuing;
e) The father has chosen not to breach the mother with the father describing himself as “just too tired” and does not want to be involved in protracted court proceedings with the mother.
I find that the domestic violence perpetrated by the mother against the father falls within the definition of family violence.
I further find that the mother has exposed the children to the family violence in the past and that there is an extreme risk of the children being exposed to family violence in the future.
Conclusion as to the father’s exposure of the children to family violence
It is not disputed by the father that at times he has retaliated against the mother’s unrelenting physical and verbal abuse, at one time spitting at the mother when she accused B of performing a sexual act on the father and at other times physically restraining her when being attacked by the mother.
However in view of the mother’s behaviour towards the father, whilst these actions are inappropriate, I find that these actions do not amount to family violence.
As to the mother’s claim of being physically assaulted by the father over a long period of time, that is not supported by the evidence.
I find the mother not to be a credible witness in respect to this issue for the following reasons:-
a) Apart from some vague accounts by the mother as to the details of the violent acts, such details varying during the evidence, and “eleven counts” of violence which have not been particularised anywhere in the evidence, there is not one skerrick of evidence to support her claim;
b) There is no detail as to the alleged violence by the father towards the children;
c) The mother’s evidence indicates the contrary, with an admission in cross-examination that the father is a good father and is loved by the children and at [47] of her June 2011 affidavit where the mother states “I have never accused Mr Preston of interfering with the babies. This is simply untrue….”;
d) Witnesses and/or affidavits by witnesses were not produced even though the mother deposes at [60] of her June 2011 affidavit that physical evidence from the assaults “has been noted by my boss and a Dr P …Dr P was very worried for me asking if I was ok and saying I could contact him for anything.”;
e) Time was given on the first day of the hearing for the mother to arrange the witnesses, with her boss located literally two minutes from the court building and Dr P being some three hours away in (omitted);
f) Although the court was assured that an email was on its way from Dr P setting out her injuries, nothing was produced to court, with the excuse from the mother that she had not had time to check her emails;
g) The witnesses also did not materialise;
h) The one possible witness (not on affidavit) that was allegedly available could only comment on the father backing the car away from the mother and in the process may have given her a “nudge”, an incident not denied by the father as the mother was obstructing the car, which on the father’s evidence is not an uncommon occurrence when he is driving away with the children from changeover;
i) Medical records and police records were not produced;
j) A diary which allegedly documented the events, although called for, was not produced by the mother;
k) The mother has never lodged an application for a domestic violence order;
l) Although the father recently commenced proceedings in the Local Court for his own domestic violence order against the mother, the mother did not use the opportunity to file a cross-application, consenting to the orders being made;
m) Numerous threats by the mother to have the father charged by the police have never been followed through;
n) The report writer dramatically shifted from his position in July 2011 in [42] of the report where he commented that the mother’s “presentation is very typical of a woman who has suffered long term abuse” and the father’s “presentation does not remove the possibility of him being an abusive person” to a position where at [52] of the March 2012 report he sees the mother as the abuser observing “Rather than being the abused, it would appear Ms Baker has campaigned with consistent and calculated emotional abuse against Mr Preston.”;
o) When asked in cross-examination as to why the mother did not take any steps against the father in respect to the domestic violence the reply was that she had hoped they could work things out, a strange and unrealistic response considering the high level of antagonism shown by the mother against the father.
I find the children are not at risk of exposure to family violence in the father’s care.
Who should have parental responsibility for the children?
Each party is seeking an order in their favour for sole parental responsibility for the children.
Conclusion
Because of the finding of the existence of family violence the presumption of equal shared parental responsibility does not apply in accordance with section 61DA(2)(b).
I find with the level of conflict in this matter that an order for equal shared parental responsibility is not in the best interests of the children.
I find that it is in the children’s best interest that the party with whom the children are ordered to live is the appropriate party to have sole parental responsibility.
Where should the children live?
Each party is seeking an order in their favour for the children to live with them.
Conclusion
I find having considered all the evidence that it is in the children’s best interest for there to be a change in living arrangements and for the children to live with the father based on the following reasons:-
a) A finding has been made that the children are at risk of continued psychological harm if the children remain in the primary care of the mother;
b) A finding has been made that the children are at risk of continued exposure to family violence by the mother if the children remain in the primary care of the mother;
c) The mother has not illustrated a willingness and ability to facilitate and encourage a close and continuing relationship between the children and the father as evidenced by the following:-
i)The mother has openly denigrated the father in front of the children, at times engaging the children in such denigration;
ii)The mother has a poor view of the father as a father fuelled by her bitterness in being “deserted” and left to care for two young children. The mother is not shy in voicing this concern in front of the children. An example is in the audio recording where the mother is heard saying in the presence of the children in a sarcastic tone “Yeah poor little things their daddy walked out on them.”;
iii)Whilst on the one hand the mother states emphatically that she will support the relationship between the father and the children, on the other hand the mother is dismissive of the importance of the father in his role as father to these young children. Examples are as follows:-
·In her affidavit of June 2011 at [4] the mother deposes “X is young enough that should I meet another partner in the near future I would like her to be able to bond with that partner and consider him to be her father.”;
·I accept the father’s evidence that on 3 May 2011 the mother said to X “Don’t worry X. Mummy’s going to find another dad. You’ll never see your daddy again.” and later that month “Daddy doesn’t want to be with you X. He’s a monster. Say bye to the monster.” The criticism of the father’s role as father was further voiced to X on 15 September 2010 when the mother said “I am so sorry you have to go with daddy, he’s a selfish bastard who will not give you a family.”;
·Although court ordered the mother has refused to engage in changeovers at CatholicCare NT insisting instead that changeover occur at her residence which I accept on the father’s evidence, is rarely incident free. The mother appears to thrive on the conflict she creates with the father. A compromise suggestion that changeover occur at gymnastics was refused, the mother’s reason being that she enjoys the social gathering after the event with other mothers;
·The father has not been able to have court ordered telephone time with the children and in particular X as the mother is often abusive on the telephone and at times has refused to put the children on the phone;
·Any attempt by the father with the mother to vary the time with the children or to have additional time is met with either complete refusal, or such convoluted rhetoric under the guise of negotiation that in the end the father backs away;
·In breach of court orders the mother has refused to inform the father as to medical treatment received by the children;
·The mother has at times withheld the father’s time with the children on the basis that the father had not met his child support commitments or under threat that if he did not reconcile with her, then he would never see the children again;
·Even when time does occur, the mother makes threats not to allow time although court ordered. An example is in the audio recording where you can hear the mother saying “You’re not picking up the kids Mr Preston until we go back to court.”;
·When the mother has made the children available, the mother has been frequently late, unilaterally changing the start time and justifying her position for doing so at the hearing on the basis that it was better for the children, again ignoring the court orders.
iv)The mother admits on her own evidence that she is prepared to lie and deceive in order to cause harm or discomfort to the father. The two blatant examples are:-
·The continuous and unsubstantiated allegations that the father is having a sexual relationship with his daughter B, even though in cross-examination the mother admitted that she didn’t believe this and her source of anger was because she thought the father favoured his older children. This however has not stopped the mother from repeatedly calling the father a paedophile, in private, in public, to the children and to the report writer. The mother refuses to acknowledge how damaging these allegations have been not only to the father but to B. The mother under cross-examination denied that at the time of the second family report interviews she was still suggesting that an inappropriate relationship existed between father and daughter. I accept that the report writer was informed by the mother as to the inappropriate relationship and I find that the mother was untruthful;
·The mother admitted in cross-examination that she lied to the father about the children being in Melbourne during one spend time with period and laughed at the situation when it was raised in cross-examination.
v)The mother is on such a course of vendetta against the father, that she does not appreciate, understand or care how her actions may ultimately impact on the father’s ability to parent. Two examples of this are:-
·The mother using the work internet wrote what could only be described as a disturbing and threatening email to the father’s boss (Exhibit “E”) stating that the father was “domestically violent”, alleging that he had abused her and the two children, and in effect holding the Department of Health to ransom if they did not act on this information. This email resulted in an unsubstantiated investigation from the child welfare authorities against the father. Fortunately for the father the email has not had any ramifications on his retaining his employment, although the embarrassment and angst it must have caused the father is unimaginable. Even as late as the hearing the mother was oblivious to the sensitivity of such a document, organising for a work colleague to print it out as she did not want to go into work even though it is directly located opposite the court house;
·The mother’s behaviour is wearing the father down, which may impact on his ability to parent the children if the level of abuse continues unaddressed.
d) The mother is not prepared to take responsibility for her actions, deflecting the blame onto the father as illustrated by the following:-
vi)In her March 2012 affidavit at [27] the mother deposes “Although I continue to be an excellent parent and remain strong for my children as they will always be my priority, Mr Preston’s controlling and angry behaviour and physical abuse has destroyed my sense of self.”;
vii)Even after being told quite openly and somewhat brutally by the report writer during her cross-examination of him that her relationship with the father “raised concerns about her parenting” with the “potential there for the children to be continually exposed to her highly negative and dysfunctional relationship with the father” and how that could lead to “cognitive” damage to the children, the mother deflected, responding that the father equally contributed to the abuse. This proposition is simply not supported by the evidence and I agree with the report writer’s response that the abuse lies more with mother than the father.
e) I find that the capacity of the mother to provide for the needs of the children including their emotional needs is and will continue to be impacted by the mother’s mental health issues which have not been acknowledged and have not been addressed by the mother. This finding is based on the following:-
viii)Although the mother is a highly intelligent well educated woman employed in a responsible position with the (employer omitted), her mood and demeanour has been disconcerting throughout the entirety of the proceedings;
ix)The mother refused on occasions to be engaged in the court process, failing to attend or insisting on attendance by telephone although in walking distance of the court, and consistently failed to comply with directions and court orders;
x)During her evidence the mother fluctuated from being confident and well spoken to being highly emotional whilst at other times sarcastic and self righteous. Within the space of a few minutes, there was a woman crying, a woman laughing and a woman yelling before the court;
xi)Despite her intelligence, the mother was ill prepared for court. Her affidavits either did not adequately address the issues or were silent on some issues and documents which she claimed were readily available were not produced. In contrast her written submissions in places are quite articulate quoting research and articles. But this hot and cold presentation coupled by the mother failing to comprehend the full effect of her actions and words cause alarm bells to ring;
xii)The report writer in cross-examination notes that the mother’s demeanour has changed significantly in the eight months between family report interviews, describing the mother as now being more hostile and resentful towards the father, noting at [37] of the March 2012 report that the “heavy desperation” of the mother that existed in the July report was missing having been replaced by “an almost cocky self assurance about the indisputable correctness of her views.”;
xiii)The report writer has changed his stance on the necessity of a psychiatric or psychological assessment of the mother. At [51] of the July 2011 report he was “not convinced” that an assessment was required as the report writer was under the impression that the mother would avail herself of therapy and counselling as needed. However in the March 2012 report at [50] the report writer, after realising that the mother had abandoned counselling “before it would have had a chance to gain clinical traction” recommends at [51] that a “clinical psychological assessment and report would be invaluable” to the court as “It is clear Ms Baker has..….an intensity of disrupted emotional and cognitive attitudinal actions against Mr Preston.”;
xiv)The mother has ignored a court order for a psychologist report falsely representing to the report writer at [12] of the March 2012 report, despite the existence of court orders stating otherwise, that all that was required by the court was a letter from her counsellor. According to the mother she only attended counselling twice but no letter has been produced to the court or to the report writer as to when or why counselling occurred;
xv)The mother makes a one line reference at [45] of her June 2011 affidavit of attending upon a psychologist about her “emotional stress”. There is no report or affidavit from her treating psychologist;
xvi)The mother is obsessed with blaming and punishing the father, which is evidenced by a vitriolic written and verbal assault on the father including numerous emails, texts, face to face exchanges and messages left on the answering machine;
xvii)The mother has a complete lack of insight as to how her actions have impacted on those persons around her.
xviii)The mother still holds out the hope that the parties will reconcile, even as recent as February 2012;
xix)The father is concerned that the mother has a problem with alcohol, an allegation which is vehemently denied by the mother. I share the father’s concern as to the mother’s alcohol use as there are several indicators:-
· The father at [38] of his March 2012 affidavit deposes to finding a number of wine and vodka bottles in the boot and glove box of her car during the course of the relationship;
· There are numerous entries on the mother’s credit card statements for alcohol purchases;
· On the taped telephone message played in court the mother appears by her tone and slowness in speaking to be intoxicated;
· The mother displays erratic behaviour in contacting the father at all hours of the day with an overwhelming number of calls and text messages. Although the mother maintains that this behaviour has abated since August 2011 this is not borne out in the evidence. 40 phone calls and text messages on 29 November and 53 phone calls and 16 text messages in a 24 hour period from 13 December 2011, which is just a small snapshot of the extent of contact instigated by the mother;
· The content of the mother’s verbal and written abuse is often inappropriate and at times bizarre. The mother seems oblivious to this, at one stage laughing at the father when in cross-examination the father spoke of how she had accused “B of sucking my cock.” The evidence is littered with examples of these strange unfuelled comments such as “you’re a good person compared to a paedophile that is. Compared to a normal man you may as well be a paedophile”, “You are a mentally ill selfish self absorbed bastard that chooses to mentally harm babies.” and “you are a pathetic stupid nasty little man.”;
· The mother’s behaviour is also inappropriate verging on the bizarre. Apart from listening to her hysterical almost manic rantings on the audio, I accept the father’s evidence that the mother does unacceptable things when drinking. At [37] of the father’s March 2012 affidavit the father particularises an incident where the mother placed sexual lubricant and a pornographic massage book on B’s bed one night after an argument suggesting that the father may want to “masturbate on his daughters bed.”
f) I give significant weight to the report writer’s recommendations that it is in the best interest of the children to be removed from the mother and placed in the care of the father. In particular I give weight to the following comments and observations made by the report writer:-
xx)Potentially both children are at risk of developmental damage if they remain with the mother, with X being more vulnerable than Y;
xxi)With the history of this matter it is unlikely that the mother will abide with court orders in the future;
xxii)If the children remain with the mother, and the level of her abuse towards the father continues, the father will be more and more “worn down” and if the situation continues unabated it will “diminish both parents capacity” to parent;
xxiii)As to the impact of any change in the children’s living arrangements, a factor contained in section 60CC(3)(d), I accept that a change of live with arrangements will result in significant upheaval for the children. But I take comfort in the opinion of the report writer that there is “enough attachment” for Y and X to be able to maintain a relationship with their mother and that because Y is so close to X then there will be those protective factors in place for when the change of live with arrangement occurs;
xxiv)The report writer expressed no concerns as to the father’s ability to handle the transition with care and consideration ensuring that the children’s needs are met;
xxv)The report writer expressed no concerns as to the father’s ability to promote the mother’s relationship with the children;
xxvi)At [57] of the March 2012 report the report writer concludes “If the court were to determine that Ms Baker’s behaviour had indeed placed the children consistently and continually under extreme emotional pressure through her choices about the conduct of parenting arrangements and was more than likely to continue doing so unabated, then it might be better developmentally for them to be placed in his primary care to reduce and limit such highly prejudicial emotional abuse of them by her.”
I find having considering all of the above that it is in the best interests of the children for there to be a change of live with arrangements and for the children to live with the father.
If the children are to live with the mother, should the mother be permitted to relocate the children to Perth?
As the children are to live with the father I need not give consideration to the issue of relocation.
If relocation is permitted what time should the children spend with the father?
As the children are to live with the father I need not give consideration to this issue.
If relocation is not permitted what time should the children spend with the father?
As the children are to live with the father I need not give consideration to this issue.
If the children are to live with the father, what time should the children spend with the mother and should that time be supervised?
The father has fluctuated as to the time proposed to be spent by the mother with the children in the event that the children live with the father.
At the conclusion of the hearing however the father’s proposal is that time be initially supervised, with consideration to be given to progression of time once the mother has addressed her mental health issues.
The mother did not propose a time with arrangement in the event that the live with arrangements for the children changed.
Conclusion
I find that on an interim basis the time between the mother and the children should be two hours each weekend, such time to be supervised, with supervision to occur at CatholicCare NT.
The basis for this finding is as follows:-
a) The father is concerned as captured at [24] of the March 2012 report that a decision for the children to live with him would make his life “hell” as “the mother’s reaction would be intensely confrontational.”;
b) The report writer agrees describing such a court order as being a “highly critical event” for the mother which is likely to result in her becoming more angry and upset;
c) I find that an order for unsupervised time, given the mother’s potential and likely intensified emotional state, her inability and unwillingness to comply with court orders, and her open disregard for the father would result at its very best in the children being exposed to the mother’s continual tirade of abuse of and towards the father, and at its very worse the mother being a flight risk in removing the children from the Darwin area;
d) The mother needs to address her mental health issues. It is hopeful that a structured time with regime by the mother with the children in a safe and supervised place, where there is no requirement to communicate face to face with the father, will provide the mother with an opportunity to reflect on the events of the past eighteen months, and take steps to address her issues.
If supervised time is ordered, then how will the mother’s time with the children progress?
Supervision will be imposed until the mother can prove that unsupervised time will not impact negatively on the children.
Given the history of this matter, a report from a qualified health professional such a psychologist or psychiatrist is one vital and necessary part of that evidence.
However a court order requiring that the mother undertake therapy will be ineffectual as the mother will simply not comply.
It is therefore up to the mother as to how and when she obtains help, and supervision will continue in the interim.
Orders have also been made for all communication regarding the children to be conducted in a Communication Book, and restraining the mother from otherwise contacting the father or the children. This is to avoid the children being exposed not only to any further psychological harm but to family violence in accordance with section 60CG.
Further orders have been made restraining the mother from contacting or seeing the children, other than during the supervised visits, until further order.
Additional issues
In most matters additional issues are raised which either have very little bearing on the outcome or are not substantiated by the evidence, and this matter is no exception.
The first issue raised by the mother is her persistent theme throughout the evidence that the father favours his eldest daughters and in particular B over his younger daughters. It is this perception of favouritism which has fuelled, and in the mothers eyes, justified, the numerous false allegations that the mother has voiced as to the father being in a sexually inappropriate relationship with B.
The report writer in cross-examination described the relationship between B and her father as a “normal adolescent parent daughter relationship.”
The mother bases her allegations of favouritism on the financial issues between the parties and the attention the father gives to B. The report writer made the observation during cross-examination that he did not detect any preferencing of the father towards the older children and if anything he was more concerned about X than any other child. I give significant weight to this observation.
I find that favouritism has not been established and that this is an issue that does not impact on the decision made to change the live with arrangements for the children.
The second issue raised by the mother is that the father is not financially supporting the children. This issue is twofold, firstly the father not accepting responsibility for payment of child support for X and secondly his failure to pay the assessed amount for Y.
I find that the issue of child support does not impact on the issues as to where the children are to live and time to the other parent for the following reasons:-
a) There is no legal obligation on the father to provide child support for X. The mother admits that she never has and never will pursue child support from Mr Quigley;
b) Up until the assessment of child support in December 2011, the father provided far in excess of his child support obligation by paying Y’s day care fees;
c) When the mother insisted that a formal assessment occur, which resulted in an assessment of $612.25 per month the father ceased paying the day care fees and deposited the sum of $5000 into the mother’s account in December 2011 to cover the next 8 months, with the intention of then paying more money to meet his commitment once this amount was utilised. The mother, who was then responsible for the day care fees, is behind in payment, resulting in an outstanding bill of around $2,700 which is in the father’s name;
d) The issue of the father paying child support is now moot as the children are to live with the father, and what child support, if any, is to be paid by the mother is an issue between the parties.
The third issue is that the mother maintains that the father has not accepted responsibility in raising the children. It is abundantly clear from the evidence that the father’s attempts to spend the time ordered as well as negotiate further time have been thwarted by the mother. I therefore give no weight to this issue.
The fourth issue is the mother’s concern that if the younger children were to live with the father, then the younger children are likely to develop mental illnesses like those suffered by the older children. There is not one iota of evidence before the court to support this rather extraordinary claim, either as to the older children’s mental illness or as to why and how the younger children would develop such a mental illness. Accordingly I give no weight to this issue.
The fifth issue is the father’s attendance at day care to spend time with Y. The mother wants this to cease and raises concern that it might be seen as favouritism of Y by X. The father maintains that it has been the only way to establish a bond with Y given her young age. The ceasing of the day care visits is supported by the report writer. The father states that it was his intention to stop the visits once Y turns two, as she would be in a different room at day care. As the children will now be living with the father and as Y turns two in June, I support that the father cease such visits, although an order in those terms is not necessary.
The sixth issue is the mother alleges that when the children are returned to day care after time with their father, they smell of urine and are dressed in the same clothing from the day before, a claim denied by the father.
This concern was not raised with the report writer and the mother did not produce any day care records, which the mother maintains supports her allegation. In the absence of any evidence, I cannot give weight to this issue.
I certify that the preceding seventy-one (71) paragraphs are a true copy of the reasons for judgment of L.Turner FM
Date: 4 April 2012
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