RANKIN & RANKIN
[2019] FamCA 555
•20 August 2019
FAMILY COURT OF AUSTRALIA
| RANKIN & RANKIN | [2019] FamCA 555 |
| FAMILY LAW – CHILDREN – Longstanding entrenched conflict between the parties – allegations the wife has alienated the children from the husband – allegations the father poses an unacceptable risk to the children – father initially applied for a change of residence and subsequently amended his application to spend time – ‘hybrid’ alienation. |
| Family Law Act 1975 (Cth) ss. 60B, 60CA, 60CC, 61DA, 65DA(2) |
| McCall & Clark [2009] FamCAFC 92 Bell & Nahos [2016] FamCAFC 244 Jabour & Jabour [2019] FamCAFC 78 In the Marriage of Rice and Asplund (1978) 6 Fam LR 570 |
| APPLICANT: | Mr Rankin |
| RESPONDENT: | Ms Rankin |
| INDEPENDENT CHILDREN’S LAWYER: | Danielle Webb Lawyer |
| FILE NUMBER: | DGC | 2859 | of | 2013 |
| DATE DELIVERED: | 20 August 2019 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Williams J |
| HEARING DATE: | 11-14 June 2019; 18-21 June 2019 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Morfuni of Queens Counsel with Ms Matson of Counsel |
| SOLICITOR FOR THE APPLICANT: | L Y Tonge & Co Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Dellidis of Counsel |
| SOLICITOR FOR THE RESPONDENT: | Tisher Liner FC Law |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Tesoriero of Counsel |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Danielle Webb Lawyer |
Orders
All previous orders regarding the children D born … 2003, E born … 2004 and F born … 2009 be and are hereby discharged.
The wife have sole parental responsibility for the children, save for any change to their names in respect of which the husband and wife have equal shared responsibility.
The children live with the wife.
The children E and F spend time and communicate with the husband:-
(a) on the first and third Sunday of each month (or if it is a Jewish religious holiday, the following Sunday of the month instead) for a period of 4 hours from 3pm to 7pm or such other block of four hours as may be agreed;
(b) by telephone each Tuesday and on the children’s birthdays with the husband to initiate the call to the wife’s mobile between 7pm and 8pm;
(c) as may otherwise be agreed in writing.
Prior to the time referred to in order 4 commencing, the husband and the children attend one session with Dr Y in accordance with order 11 hereof.
From 16 June 2020, E’s time with the husband be in accordance with his wishes.
Changeover take place at TT Business, RRR Street Suburb TTT, unless otherwise agreed between the wife and husband in writing.
The husband be at liberty to send gifts, cards and letters to the children and for this purpose the wife shall keep the husband advised of her postal address.
The wife do all acts and things necessary to authorise the husband to receive from the children’s school all information relating to their education including but not limited to reports and other information ordinarily provided to parents.
The wife shall as soon as practicable advise the husband of any serious medical issue relating to the children.
The husband and wife facilitate the husband and the children E and F participating in non-reportable counselling with Dr Y or another psychologist from Dr Y’s practice (“the Psychologist”), once per month (or such other frequency as recommended by the Psychologist) for a period of 12 months for F, and for E, until 16 June 2020, and such counselling be at the husband’s expense.
The husband and wife, their servants and agents, be restrained by injunction from:-
(a) denigrating the other parent in the hearing of the children, or allowing any other person to do so;
(b) discussing these court proceedings or the allegations in these proceedings in the hearing of the children, save that the parents may inform the children of the effect of orders 3 to 7 herein;
(c) allowing the children to read any court documents filed in these proceedings or relating to any child support dispute;
(d) recording or encouraging or allowing the children to record the other parent during times they are spending or communicating with them.
Within 7 days of any written request by the wife, the husband do all things and sign all documents necessary to facilitate the children being issued an Australian passport, or having the children’s passport renewed and in the event the husband does not comply with the wife’s request within 7 days, the wife be permitted to obtain or renew passports for the children without the husband’s consent and:-
(a) an Australian passport issue pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005;
(b) the children be permitted to travel internationally pursuant to section 11(1)(b) of the Australian Passports Act 2005; and
(c) the passports be held by the wife.
The wife provide to the husband in writing, details of any proposed international travel with the children, or any of them, 28 days prior to such travel.
All extant applications for final parenting orders be otherwise dismissed.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Rankin & Rankin has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: DGC 2859 of 2013
| Mr Rankin |
Applicant
And
| Ms Rankin |
Respondent
REASONS FOR JUDGMENT
Introduction
The husband, Mr Rankin, is the father and the wife, Ms Rankin, is the mother of the children D born in 2003, E born in 2004 and F born in 2009. Both of the parties also have adult children from previous relationships. Ms R is the daughter of the husband, and Mr Q is the wife’s son. Mr Q resides with the wife and the other three children, and has been intensely involved in the dispute between the parties.
The relationship between the husband and all three children has broken down. D has not spent time with her father for over three years and has not had telephone contact with him since June 2017. The husband has not spent time with E and F (“the children”) since December 2018.
The husband seeks parenting orders in relation to D, E and F, that they should all live with their mother and that she should have sole parental responsibility for the children save for any issues relating to a change of name of the children, which is to be shared equally between the parents.
The husband also seeks to spend time with E and F. At the commencement of the trial he sought orders that E and F live with him, however at the conclusion of the proceedings he had modified his position seeking orders that both boys spend time with him.
The husband asserts that:
a)The children have been alienated from him;
b)During the relationship he was constantly verbally and physically abused by the wife and generally maltreated by her and Mr Q.
He denies that he was a perpetrator of family violence during the relationship.
The wife asserts that:
a)The husband perpetrated family violence against her and Mr Q on many occasions during the relationship;
b)Consequently the children perceive their father is a danger and a risk;
c)The children are currently refusing to see their father and their preference is not to have to see him.
The husband asserts that parties physically separated on 7 July 2013, following an incident of violence in the former family home. The wife asserts that the parties separated in 2010 and any time they spent living under the one roof subsequent to 2010, was on the basis that the marriage had broken down and that they were separated.
In the intervening six years since separation the parties have been engaged in constant acrimonious litigation with each other in the Magistrates’ Court, County Court, Federal Circuit Court and the Family Court, including appeals.
Issues in dispute
The following issues were in dispute in the proceedings:
a)Should the children E and F spend time with the husband; and
b)If so:
i)The length of time between the husband and the children; and
ii)Should time be limited to time during the day or progress to overnight time.
Synopsis
I have determined that it is in the children’s best interests that:
a)E and F spend time with the husband for 4 hours, on the first and third Sunday of each month;
b)E and F communicate with the husband by telephone each Tuesday and on their birthdays with the husband to initiate the call to the wife’s mobile;
c)As from 16 June 2020, E’s time be subject to his wishes;
d)Both E and F attend non-reportable therapeutic counselling with the husband, once a month, with Dr Y for a period of 12 months for F and until 16 June 2020 for E, at the husband’s expense.
The reasons for my determination follow.
Background
The husband was born in Country O in 1968 and is aged 51. He migrated to Australia in 1991 and is employed as a health professional. His daughter Ms R, from his first marriage was born in 1992. In 1994 the husband separated from his first wife.
The wife was born in Country O in 1969 and is aged 49.
In 1988, the wife commenced studying at VV University in Country O, where she met the husband. She graduated in 1994 and received a Diploma. In February 1994, the wife separated from her first husband prior to the birth of her son Mr Q in 1994.
In 1996 the wife, Mr Q and her parents migrated to Country P and in 1997 the parties commenced a long distance relationship. On 1 June 1999, the wife obtained a health professional licence enabling her to work as a health professional in Country O and Country P.
In 1999, the husband completed requirements to work as a health professional in Australia and commenced work in Perth. In July 1999, the wife visited the husband in Perth when the husband proposed marriage. She asserts that the marriage proposal was on the basis that she convert to the Jewish religion.
At the end of 1999, the wife and Mr Q immigrated to Australia to live with the husband in Perth. In 2000, the wife and Mr Q converted to Judaism. The wife and husband married in a civil ceremony in 2000 and married in a Jewish ceremony in 2001.
The wife alleges that the husband hit her with a walking stick while she was pregnant with D in August 2002. D, the parties’ first child, was born in 2003, and is now aged 16.
In 2004, the parties’ second child, E was born. He is now aged 15.
The wife alleges that the husband punched her in a face in March 2005, which resulted in her sustaining a black eye.
In mid-2007, the wife asserts that the husband commenced hitting and abusing Mr Q, including calling him “anal seeker”, “pansy” and “little thief”. On 27 August 2017, the wife was contacted by Mr Q’s school psychologist after he disclosed alleged abuse by the husband and she contacted the Western Australia Police.
On 28 August 2007, the wife obtained an Intervention Order against the husband in the Perth Magistrates’ Court, and around that time the husband cancelled the wife’s credit card. On 1 September 2007, the husband vacated the marital home in Perth.
On 27 October 2007, the husband provided the wife with a Statutory Declaration stating that he would “commit to further counselling and anger management and not to humiliate any members of the family”.
In January 2008, the parties agreed to relocate to Melbourne, although the wife asserts they were separated under the one roof. In November 2008 they reconciled.
On 13 April 2009, there was a dispute the between the husband and Mr Q which involved the police and culminated in an Intervention Order against the husband in favour of the wife. The wife asserts that she did not proceed with the Intervention Order as she discovered she was then pregnant with F.
The wife asserts that the husband threatened her with a knife in 2009 while she was pregnant with F, prior to the husband commencing anger management counselling in May 2009.
F, the parties’ third child, was born in 2009. He is currently nine years old.
On 11 July 2010, the parties separated after a physical altercation. The wife asserts that the husband cancelled her credit card and disconnected mobile and internet services. On 13 July 2010, the wife obtained an Intervention Order against the husband. The wife left the former marital home and commenced living in a refuge with the children until December 2010.
On 26 July 2010, the wife obtained an interim Intervention Order and the husband agreed to reinstate the wife’s access to credit card, internet, phone and the family’s private health insurance.
On 18 October 2010, the husband successfully applied to vary the interim Intervention Order which permitted him to return to the marital home.
In December 2010, the wife returned to the marital home after she had received a letter from the husband stating that he would not live in the marital home.
In March 2011, the wife permitted the husband to return to the former matrimonial home on the basis that he slept in a different room, prior to her vacating the property in March 2012 and moving into rental accommodation.
In April 2013, the wife returned to the former matrimonial home, as the husband advised her that he was travelling overseas for an extended cruise. The husband did not travel overseas and on 7 July 2013 there was a physical altercation between the parties when both sustained injuries.
On 8 July 2013, the wife obtained an interim Intervention Order against the husband and he was charged with intentionally causing injury, recklessly causing injury, breach of an Intervention Order and possession of weapons.
Around that time the husband again cancelled the wife’s credit card, disconnected mobile and internet services and cancelled family private health insurance.
On 18 July 2013, the wife was contacted by DHHS as a result of a notification by the husband that she had physically abused the children.
Since July 2013, the parties have been locked in a continuous battle of litigation with each other, which is particularised under the heading ‘History of litigation between the parties’.
History of litigation between the parties
Final parenting orders were made by consent between the parties by Johns J on 18 May 2015. Subsequent to those orders, the parties were involved in:
i)County Court proceedings in relation to the assault on the wife on 7 July 2013;
ii)Contested proceedings in the Magistrates’ Court arising from the synagogue incident in July 2014;
iii)A stay application in relation to the property and child support orders of Johns J made 29 February 2016;
iv)An application for costs arising from the stay application;
v)An appeal by the husband to the Full Court of the Family Court;
vi)A further application of the husband in August 2016 seeking parenting orders, which was finalised in October 2016;
vii)Various procedural hearings before Thornton J, prior to a new property trial regarding financial matters;
viii)Application by the husband in June 2017 to attend E’s Bar Mitzvah;
ix)Husband’s IVO application against Mr Q arising from Bar Mitzvah;
x)A further trial before Thornton J in October 2017 regarding spousal maintenance and child support;
xi)Magistrates’ Court proceedings against the wife in March 2018 regarding the use of a listening device;
xii)Husband’s application for an Intervention Order against the wife in April 2018;
xiii)Husband’s appeal against the orders of Thornton J made 27 April 2018;
xiv)A third parenting application filed by the husband in July 2018 seeking that the children live with him;
xv)An Application Contravention in July 2018, regarding the wife’s failure to facilitate time from 17 February 2018 until 8 July 2018;
xvi)An application by the husband in September 2018 seeking to reinstate his appeal against the orders of Thornton J;
xvii)In November 2018, an appeal directions before Strickland J for the husband’s application to reinstate his appeal;
xviii)A further Notice of Appeal filed by the husband in February 2019;
xix)A hearing of the husband’s appeal against orders of Thornton J in March 2019;
xx)In May 2019, orders or made by the Full Court of the Family Court dismissing the husband’s application for leave to appeal.
The proposals of the parties
The husband’s proposal
At the commencement of the trial the husband’s proposal was, as set out in his Case Summary filed 6 June 2019, as follows:
a)He have sole parental responsibility for E and F;
b)E and F live with him;
c)The children’s time with their mother be reserved.
During his opening submissions Queen’s Counsel for the father submitted that in addition to seeking orders for sole parental responsibility for E and F and for them to live with him, the husband sought orders for a moratorium of 6 months on the wife’s time with both boys. The proposals as to how and when her time with the children should recommence were non-specific and vague.
At the conclusion of the evidence, prior to final written submissions, each counsel provided a written minute of final orders sought by each party.
The father’s proposal, essentially mirrored the orders initially proposed by the Independent Children’s Lawyer with some amendments. The orders he sought were as follows:
1. The children D born in 2003, E born in 2004 and F born in 2009 live with the mother.
2. The mother have sole parental responsibility for the children save for any issues relating to a change of name of the children which is equally shared between the parents.
3. The father spend time with the children as follows:
a) With E and F with F's time not being dependent on E attending as follows:
i. Each Sunday from 10 am until 3 pm for six occasions; and thereafter;
ii. Each alternate weekend from 10 am Sunday until commencement of school on Monday for six occasions; and thereafter;
iii. Each alternate weekend from after school Friday until the commencement of school Monday;
iv. Upon the commencement of sub-paragraph 3(iii) for the first half of all school holidays;
v. On special occasions - Father's Day; birthdays of E and F; and major Jewish Holidays (Rosh Hashanah, Yorn Kippur, Passover, Sukkot, Shavot) on each alternative year after the first twelve weeks); and
vi. As otherwise agreed in writing.
4. That the father is at liberty to telephone the children between 6 and 7pm each Tuesday unless that day is a Jewish holiday, in which case the first non-holiday day thereafter.
5. The father be permitted to send gifts, cards and letters to the children.
6. Changeover take place at the TT Business at RRR Street Suburb TTT.
7. The mother ensure that the children attend upon a counsellor referred by the Supporting Children After Separation Program.
8. The father be permitted and be authorised to receive the following information in relation to the children:
a) All information relating to their education including but not limited to reports and other information ordinarily provided to parents by the children's school; and
b) Information in relation to all serious medical issues relating to the children and the mother inform the father in the event that the children are subject to a medical emergency.
9. The father and mother each be restrained from:
a) Denigrating the other parent or allowing others to do so;
b) Discussing these court proceedings to or in the presence of the children;
c) Allowing the children to read any Court documents filed in these proceedings or in any Child Support Dispute;
d) Recording or encouraging or allowing the children to record the other parent or the children's time with the other parent.
10. That there be liberty to apply in the event of non-compliance.
The wife’s proposal
At the commencement of the trial the wife’s proposal was, as set out in her Case Summary filed 7 June 2019 as follows:
a)All previous parenting orders be dismissed;
b)The wife have sole parental responsibility for D, E and F;
c)All three children live with her;
d)She inform the husband of any serious medical issue concerning the children;
e)The husband have access to the parent portal for online access to the children school records, including copies of their school reports;
f)There being no time between the children the husband;
g)The husband be at liberty to communicate with the children:
i)by telephone, FaceTime or Skype each alternate Tuesday between 7 pm and 8 pm and on the children’s birthdays and the eve of Jewish holidays; and
ii)in writing by email not more than once per month and on the children’s birthdays and the Jewish holidays;
h)The husband sign documents required to obtain Australian passports for the children at the mother’s expense.
At the conclusion of evidence, the orders sought by the wife were as follows:
1. All previous orders regarding the children D born in 2003, E born in 2004 and F born in 2009 be and are hereby discharged.
2. The wife have sole parental responsibility for the children, save for any change to their names in respect of which the husband and wife have equal shared responsibility.
3. The children live with the wife.
4. The child F spend time and communicate with the husband:-
a. on the first Sunday of each month (or if it is a Jewish religious holiday, the second Sunday of the month instead) for a period of 4 hours from 3pm to 7pm;
b. by telephone each Tuesday with the husband to initiate a call to the wife’s mobile telephone between 7pm and 8 pm; and
c. at such other times as may be agreed between the wife and husband in writing.
5. The child E spend time and communicate with the husband pursuant to paragraph 4 herein if he so wishes.
6. Changeover take place at TT Business, RRR Street Suburb TTT, unless otherwise agreed between the wife and husband in writing.
7. The husband be at liberty to send gifts, cards and letters to the children and for this purpose the wife shall keep the husband advised of her postal address.
8. The wife do all acts and things necessary to authorise the husband to receive from the children’s school all information relating to their education including but not limited to reports and other information ordinarily provided to parents.
9. The wife shall as soon as practicable advise the husband of any serious medical issue relating to the children.
10. The husband and wife facilitate the husband and the children E and F participating in non-reportable counselling with Dr Y or another psychologist from Dr Y’s practice (“the Psychologist”), once per month (or such other frequency as recommended by the Psychologist) for a period of 12 months, at the husband’s expense.
11. The husband undertake such individual counselling as may be recommended by the Psychologist, at the husband’s expense.
12. The husband and wife, their servants and agents, be restrained by injunction from:-
a. denigrating the other parent in the hearing of the children, or allowing any other person to do so;
b. discussing these court proceedings or the allegations in these proceedings in the hearing of the children, save that the parents may inform the children of the effect of orders 3 to 6 herein;
c. allowing the children to read any court documents filed in these proceedings or relating to any child support dispute
d. recording or encouraging or allowing the children to record the other parent during times they are spending or communicating with them.
13. Within 7 days of any written request by the wife, the husband do all things and sign all documents necessary to facilitate the children being issued an Australian passport, or having the children’s passport renewed and in the event the husband does not comply with the wife’s request within 7 days pursuant to order 14 herein, the wife be permitted to obtain or renew passports for the children without the husband’s consent and:-
a. an Australian passport issue pursuant to section 11(1)(b)(i) of the Australian Passports Act 2005;
b. the children be permitted to travel internationally pursuant to section 11(1)(b) of the Australian Passports Act 2005; and
c. the passports be held by wife.
14. The wife provide to the husband in writing, details of any proposed international travel with the children, or any of them, 28 days prior to such travel.
15. All extant applications for final parenting orders be otherwise dismissed.
The proposal of the Independent Children’s Lawyer
At the commencement of the trial the proposal of the Independent Children’s Lawyer was set out in her Case Summary filed 7 June 2019. Subject to a finding that the children are not at unacceptable risk of harm in the father’s care, she sought the following orders:
a)D, E and F live with the wife;
b)The wife have sole parental responsibility for the children subject to any issues relating to a change of name of the children which is to be equally shared between the parents;
c)The husband spend time with E and F, with F’s time not being dependent on E attending:
i)each Saturday from 10 am until 3 pm for six occasions;
ii)each alternate weekend from 10 am Saturday until 10 am Sunday for six occasions; and thereafter;
iii)each alternate weekend from after school Friday until commencement of school Monday;
iv)upon commencement of alternate weekend time, for the first half of all school holidays;
v)on special occasions; and
vi)as otherwise agreed in writing.
At the conclusion of evidence the orders sought by the Independent Children’s Lawyer were as follows:
1) The children D born in 2003, E born in 2004 and F born in 2009 live with the mother.
2) The mother have sole parental responsibility for the children save for any issues relating to a change of name of the children which is equally shared between the parents.
3) The father spend time with the children as follows:
a) With E and F:
i) the first Sunday of each month from 1 pm until 5 pm; and
ii) as otherwise agreed in writing.
4) The father be permitted to send gifts, cards and letters to the children.
5) Changeover take place at TT Business or such other café or restaurant as agreed in writing.
6) The mother ensure that the children attend upon a counsellor at QQ Centre as recommended by Dr Y for confidential non-reportable counselling and the father and mother attend if requested to do so at the expense of the father.
7) The father attend upon a counsellor for behavioural support as recommended by Dr Y.
8) The father be permitted and be authorised to receive the following information in relation to the children:
a) All information relating to their education including but not limited to reports and other information ordinarily provided to parents by the children’s school; and
b) Information in relation to all serious medical issues relating to the children and the mother inform the father in the event that the children are subject to a medical emergency.
9) The father and mother each be restrained from:
a) Denigrating the other parent or allowing others to do so;
b) Discussing these court proceedings to or in the presence of the children;
c) Allowing the children to read any Court documents filed in these proceedings or in any Child Support Dispute;
d) Recording or encouraging or allowing the children to record the other parent or the children’s time with the other parent.
Evidence
The standard of proof in this case is the balance of probabilities (s.140 Evidence Act 1995 (Cth)).
Section 140 of the Evidence Act1995 (Cth) provides:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) 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.
The husband and wife relied upon their respective affidavits. The affidavits exhaustively recounted the history of the parties’ relationship. I have examined that evidence and do not propose to repeat it in these reasons.
In Bell & Nahos [2016] FamCAFC 244, Strickland J addressed the obligations of a trial judge in that regard as follows at [28]-[29]:
[28] Plainly that is the case, but it is not necessary in reaching a decision for a trial judge to refer to every piece of evidence or argument that is presented during a trial. That principle is well established in a number of authorities; I will mention two:
a) In Whisprun Pty Ltd v Dixon (2003) 200 ALR 447 at [62], Gleeson CJ, McHugh and Gummow JJ said this:
…A judge’s reasons are not required to mention every fact or argument relied on by the losing party as relevant to an issue. Judgments of trial judges would soon become longer than they already are if a judge’s failure to mention such facts and arguments would be evidence that he or she had not properly considered the losing party’s case.
b) In Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd and Penrith Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 385 – 386, Mahoney JA said this:
It is not the duty of the judge to decide every matter which is raised in argument.
…
Nor is it necessary for a judge who is exercising a discretionary judgment to detail each factor which he has found to be relevant or irrelevant, or to itemize, for example, in the assessment of damages for tort, each of the factual matters to which he has had regard … Nor is a judge required to make an explicit finding on each disputed piece of evidence. It will be sufficient, if the inference as to what is found is appropriately clear…
[29] I can see no error here in her Honour’s failure to refer to all of the evidence of the mother in relation to this issue. Her Honour plainly considered the evidence that she needed to in order to reach her decision.
Documents relied upon by the husband
The husband relied upon the following documents:
a)Amended Initiating Application filed 17 July 2018;
b)Affidavits of husband of 14 April 2019 and 24 May 2019;
c)Affidavit of Mr YY of 14 April 2019;
d)Affidavit of Ms AAA of 14 April 2019;
e)Affidavit of Mr BB of 14 April 2014.
The husband and Mr BB were cross-examined by counsel for the wife and counsel for the Independent Children’s Lawyer.
The husband was vigorously cross-examined by counsel for the wife and counsel for the Independent Children’s Lawyer for nearly three days. During that time I had the immeasurable benefit of observing him in the witness box.
My general impression of him as a witness was that he was combative and evasive. He was not prepared to make concessions contrary to his interests and only when he eventually realised he had no alternative, would he concede propositions adverse to his interests. An example of this was his evidence denying calling Mr Q highly derogatory and offensive names.[1] When confronted with the transcript of his conversation with D in June 2017, which is Exhibit R-15 and the audio recording, he begrudgingly conceded he had done so, although he sought to emphasise that the recording was not the whole of the conversation between himself and D. He was continually critical of the wife’s conduct and took every possible opportunity to attribute blame to her.
[1] Paragraph 41 of the husband's affidavit of 24 May 2019.
He often requested questions be repeated when the questions were adverse to his interests, despite admitting he had no hearing problems. He repeatedly referred to the fact that English was not his first language and on one occasion, when he attempted to explain the meaning of the word ‘tempered’ he attempted to justify his use of the word in the context of his lack of comprehension of English. The husband has been living in Australia since 1991, requalified as a medical practitioner and has practised continually for many years. His English was sophisticated and nuanced, except when it suited him to claim otherwise.
During cross-examination about his fiancée, he refused to answer a question until directed by me to do so. I agree with the submissions of counsel for the wife, in her final written submissions, that his evidence about his fiancée was unconvincing and evasive. He was annoyed and resistant to elaboration.
He took every possible opportunity to blame and denigrate the wife, even to the extent of still believing she had a condition, when there has been no such definitive diagnosis.
His evidence maintaining that he was the victim of family violence and assaults by the wife, including the assault of 7 July 2013, was unconvincing.
Counsel for the wife in her final written submissions also referred to the husband’s unconvincing attempts to distance himself from prior admissions against his interest.
At paragraph 50 of her final written submissions, counsel for the wife sets out the written expressions of remorse written by the husband between 2007 and 2011, which are Exhibit R-13, Exhibit R-8, Exhibit R-11, Exhibit R-10 and Exhibit R-12. During cross-examination, the husband denied the sentiments in those documents and his evidence was that he had been prevailed upon by the elders of the Jewish community and Mr BB to write the letters under their dictation. His denials did not seem genuine and I agree with the comments of the wife’s counsel that such evidence is disingenuous and self-serving.
Where the evidence of the husband and wife differs, I generally prefer the evidence of the wife.
Mr BB was cross-examined by telephone as he was unable to personally attend. A generic medical certificate was produced, which was issued by the practice where the husband works as a general practitioner, stating that Mr BB was unable to attend court personally. As he is in his mid-80s, with the consent of both counsel for the wife and the Independent Children’s Lawyer, he was cross-examined on the telephone.
Exhibit R-21 is a copy of Mr BB’s police statement about the events which occurred on 7 July 2013. In that statement he makes candid statements about the husband’s personality including the following:
I believe that Mr Rankin has some deep underlying issues. I believe Mr Rankin is stable in his profession but extremely unstable with his personal life. He can become unreasonable and obstinate in dealing with people. He can be quite generous at times. He is quite mysterious, he has different days one day he’s up and one day he’s down. Mr Rankin has a volatile nature about him and that’s why back in 2010 he was pursuing anger management course. I think he unfortunately needs medical help with his mental state.
Through my experience with Mr Rankin, his story sometimes vary. When he talks about his past or tells me about what he’s done what has happened to him his story doesn’t mesh because it changes in varying degrees.
During cross-examination Mr BB did not resile from that statement nor attempt to modify or justify his sentiments.
My impression was that he was a witness who endeavoured to tell the truth and directly answered questions to the best of his ability. He was respectful and considered, and I accept his evidence.
Documents relied upon by the wife
The wife relied upon the following documents:
a)Amended Response to Initiating Application filed 14 May 2019;
b)Affidavit of wife filed 14 May 2019;
c)Affidavit of Ms CCC filed 14 May 2019.
The wife was cross-examined by Queen’s Counsel for the husband and counsel for the Independent Children’s Lawyer. She was cross-examined by Queen’s Counsel for the husband over three days and I had ample opportunity to observe her demeanour and presentation.
The wife’s evidence during cross-examination impressed me as essentially truthful. Her demeanour was respectful, appropriate, calm and courteous during very trying cross-examination. She answered questions directly and did not attempt to embellish her answers to assist her case and was prepared to concede inconsistencies and inaccuracies, against her interest, she had sworn to in her affidavits.
Queen’s Counsel for the wife, in his written submissions sought to characterise the wife as a liar, who was prepared to say and do anything to achieve her goal of alienating the children.
At paragraphs 17 and 18 of the written submissions, Queen’s Counsel for the husband sets out what he asserts are instances during cross-examination where the wife admitted she had lied or was less than truthful on a number of occasions.
The wife’s responses, which were contrary to her interest, were direct and she did not try to justify or explain away her conduct or evidence, or pretend she had hearing or language difficulties.
I do not accept the submissions referred to in paragraph 69 hereof. I do however, accept that there were some incorrect statements in her affidavit which she was readily prepared to concede.
As stated by the Full Court in Jabour & Jabour [2019] FamCAFC 78 at [110]:
… It is well-established that a trial judge can accept some parts of a witness’s evidence and reject others (Dublin, Wicklow & Wexford Railway Co v Slattery (1878) 3 App Cas 1155 at 1201; Christmas v Nicol Bros Pty Ltd (1941) 41 SR (NSW) 317 at 322).
Where the wife’s evidence conflicts with the husband’s evidence, I generally prefer her evidence.
Documents relied upon by the Independent Children’s Lawyer
The Independent Children’s Lawyer relied upon the following documents:
a)Affidavit of Dr Y (family report writer) of 23 April 2019 which annexed his third report dated 10 December 2018;
b)Affidavit of Ms JJ (supervisor) of 10 May 2019;[2]
c)Affidavit of Ms FFF (supervisor) of 4 June 2019.[3]
[2] The annexures to the affidavit were tendered by Independent Children’s Lawyer (Exhibit ICL 2).
[3] The annexures to the affidavit were tendered by Independent Children’s Lawyer (Exhibit ICL 3).
I do not propose to repeat the contents of Dr Y’s reports. He was cross-examined by Queen’s Counsel for the husband, counsel for the wife and counsel for the Independent Children’s Lawyer.
Dr Y’s evidence under cross-examination was extremely helpful and insightful. Dr Y is a highly credentialed, respected and experienced family report writer. The parties had previously attended upon him for the preparation of two previous family reports, dated 6 February 2014 and 19 February 2015, which were obtained for earlier family law proceedings. All parties agreed that I should read the two previous family reports. The reports are annexures A and B to the affidavit of Dr Y, dated 21 April 2015.
I do not accept the submission of the husband, in his final written submissions, that:
a)Dr Y’s evidence should be approached with care. In circumstances where I was invited to read the two prior family reports and Dr Y has had the benefit of assessing the family progressively from February 2014 to date, I found his evidence to be particularly helpful;
b)His failure to specify the relative contributions of the parties, in a hybrid case, does not assist the court in formulating orders. In my view, apportioning specific blame between the parties, in this case, is not particularly helpful, nor necessary.
Prior to cross-examination, with the consent of all parties, counsel for the Independent Children’s Lawyer updated Dr Y about evidence during the course of the trial. That update included providing him with copy exhibits which had been tendered by the parties and playing the audio recording of the telephone conversation between the husband and D of June 2017. His evidence under cross-examination may be summarised as follows:
a)It was obvious to him that the family was living in a world of parallel universes in which there are two very distinct versions of the truth, and anybody (the children) who lives in the middle of that truth experiences enormous confusion;
b)It was akin to trench warfare syndrome;
c)There are two possibilities why the children don’t see their father:
i)because of the way the wife alleges he has behaved, including being aggressive, abusive and violent, the rejection of him is justified and reasonable and to force them to see him would traumatise them (Scenario 1);
ii)the children have been significantly and substantially alienated by their mother, who has embarked on an unrelenting campaign of denigration and manipulation, and has distorted their worldview to the extent that they are severely emotionally disturbed, their reality is consumed by the mother’s view of reality, they are splitting and projecting and are in crisis ( Scenario 2);
d)If:
i)Scenario 1 is true, and the children don’t see their father, then they are going to be fine and probably relieved;
ii)Scenario 2 is true, and the children don’t see their father, they are likely to have very severe enduring problems including anxiety, depression, drug and alcohol abuse, and trouble sustaining intimate relationships themselves;
e)This family presents as a hybrid case where all of the parties have contributed fairly significantly and have behaved very unreasonably;
f)Hybrid does not mean equal;
g)Hybrid cases are the most difficult to treat, because parts of what has been contributed have some kind of factual base;
h)He would not recommend a change of residence, if the court found both parties had contributed to the conflict;
i)He does not think this family presents as a real and genuine alienation;
j)The children are not behaving in an almost psychotic manner where their behaviour is so off centre that it is obvious they are being influenced by one parent, who is themselves significantly psychiatrically unwell;
k)It would be very problematic to remove the children from their home and then go to the same school as D;
l)The children’s mental health has not been so severely compromised by alienation;
m)In response to questions about whether E should be ordered to spend time with his father if the court ordered F to, his response was, in the real-world people aged 15 follow directions and instructions all the time and do things required and expected of them, notwithstanding their wishes to the contrary;
n)It would be helpful for this family for the heat to settle as the dispute has been going on forever;
o)Utilising a supervisor for changeover would be unnecessary and unhelpful;
p)It would be preferable for transitions between the parents to take place in a place of calm and containment;
q)If there are no orders for the children to have some form of relationship with their father, then the reality is they will never see him again;
r)If the children sever their relationship with their father, the social science research indicates that the outcomes for the children will be catastrophically poor;
s)What is required in this situation is for the parents to reflect upon their behaviour and change it, which does not necessarily involve changing what they think;
t)If the husband continues to speak negatively to the children and question them, then it will be increasingly more difficult for him to have a relationship with them;
u)Not having a parent in your life is associated with massive problems later that endure over the course of generations;
v)One of the difficulties with this family is because both parents completely abrogate their responsibility and their contribution to the family dynamic;
w)A better outcome for the children would be some form of calm, to have some kind of relationship with their father, rather than severing a relationship with him;
x)If E and F had believed that their father was trying to have them removed from their mother’s care, their anxiety and behaviour might make more sense;
y)He does not advocate a change in the living arrangements for the children as this family does not present as a clear case of alienation;
z)To embroil children in criminal proceedings is abhorrent;
aa)Both parents are completely reliant on interpreting what their children say and do to formulate the most negative view about the other parent;
bb)The fact that E recorded when interviewed by the police in 2014 that he enjoyed time with his father, did not necessarily mean that is still the case today;
cc)The question is, in the intervening years, what has the husband done to diminish the child’s experience and enthusiasm and what has the mother done to fuel the lack of enthusiasm;
dd)He did not agree with the proposition that it was a reasonable reaction to question a child when someone had discovered they’re being spied upon;
ee)The internal thinking of the parents has become so skewed and damaged so that their perspective is, ‘you’re either with them or against them’, and that’s the pattern which has been imposed upon the children;
ff)It would be preferable to make orders for the children to spend some limited time with their father rather than except that their relationship has broken irretrievably;
gg)The appropriate time would be a couple of hours a month, as the children have lost trust in their father;
hh)Such time should be in tandem with therapeutic intervention between the boys and their father which would assist in giving them emotional permission to have a relationship with their father.
Neither Ms DDD or Ms FFF were required for cross-examination.
The following documents were tendered by the parties and received into evidence:
| No. | DESCRIPTION |
| A-1 | Email from GGG Business dated 12/12/2018 RE: completion of ‘Post Separation Parenting Course’ |
| A-2 | Annexures to the trial affidavit of the husband, affirmed / filed on 14/04/2019 |
| A-3 | Annexures to the affidavit of the husband, affirmed / filed on 24/05/2019 |
| A-4 | Statement of the husband (dated 24/08/2017 and unsigned) produced pursuant to subpoena to Victoria Police |
| A-5 | Photograph of D taken by the husband on 12/03/2005 on bunk bed |
| A-6 | Photographs of husband’s injuries arising from incident on 07/07/2013 |
| A-7 | Photographs of husband’s equipment damaged by the wife on 30/06/2013 dated 07/07/2013 |
| A-8 | Wife’s curriculum vitae (prepared after January 2006) |
| A-9 | Paragraph 142 of the affidavit of the wife, affirmed / filed on 16/03/2015 |
| A-10 | Paragraphs [38]-[39] of the affidavit of the wife, affirmed / filed on 31/10/2013 |
| A-11 | Extract of Victoria Police LEAP Record from 13/04/2009 produced pursuant to subpoena (page 21 of record) |
| A-12 | Existing and proposed plans for renovation/extension at former matrimonial home |
| A-13 | Building contract for renovation/extension at former matrimonial home |
| A-14 | Email from husband to builder dated 25/09/2012 (in ZZ Language) |
| A-15 | Two photographs of the front facade at former matrimonial home, before and after construction works and the existing and proposed floorplan of upper-story |
| A-16 | Enlarged photograph of the husband and Ms GGG (part of Exhibit R20) |
| A-17 | Extract from transcript of proceedings in the Magistrates’ Court of Victoria on 12/12/2014. Evidence of Senior Constable HHH |
| A-18 | Video of the wife and Mr Q on 07/07/2013 tendered during proceedings in the Magistrates’ Court of Victoria (on USB) |
| R-1 | Photograph of the husband and Ms GGG. |
| R-2 | Statutory declaration and statement of Ms R (dated 15/08/2013) Annexure MsR-9 to the affidavit of Ms Rankin, affirmed/filed 16/03/2015 |
| R-3 | Facebook profile printout of ‘Ms GGG’ (identified by the wife in Examination in Chief) |
| R-4 | Bundle of 15 photographs including of the Perth house and the wife’s face |
| R-5 | Bundle of 7 photographs referred to in the wife’s affidavit Annexure MsR-10 to the trial affidavit of Ms Rankin, affirmed/filed 14/05/2019 |
| R-6 | Statement of Senior Constable HHH produced pursuant to subpoena to Victoria Police |
| R-7 | Copy of photographs produced pursuant to subpoena to Victoria Police |
| R-8 | Statutory declaration of husband (purportedly signed by him) dated 27/10/2007 |
| R-9 | Summary of facts from the County Court proceedings |
| R-10 | Undertaking of the husband for IVO proceedings (dated 26/07/2010) Annexure MsR-5 to the trial affidavit of Ms Rankin, affirmed/filed 14/05/2019 |
| R-11 | Letter from Mr JJJ of SS Group (dated 22/07/2010) Annexure MsR-6 to the trial affidavit of Ms Rankin, affirmed/filed 14/05/2019 |
| R-12 | Letter from the husband to the wife (around December 2011) Annexure MsR-2 to the trial affidavit of Ms Rankin, affirmed/filed 14/05/2019 |
| R-13 | Letter from the husband to the wife (around 2007), original in ZZ Language, and certified translation (prepared in 2013) in English Annexure MsR-20 to the trial affidavit of Ms Rankin, affirmed/filed 14/05/2019 |
| R-14 | Transcript of recording from listening device produced pursuant to subpoena to Victoria Police |
| R-15 | Transcript of conversation between the husband and D on 27/06/2017 |
| R-16 | Extract of Victoria Police LEAP Records from 17/09/2017 produced pursuant to subpoena (pages 22-24 and 26-27 of record) |
| R-17 | Husbands costs letter pursuant to r 19.04 of the Family Law Rules 2004 |
| R-18 | Profit and Loss Statement of Rankin Pty Ltd (01/10/2018 – 31/12/2018) |
| R-19 | Three pages from the husbands Facebook profile (07/02/2018) |
| R-20 | Two photographs of the husband on Instagram account of Ms GGG (posted May 2017 - photographs taken around January/February 2017) |
| R-21 | Statement of Mr BB relating to events of 07/07/2013 produced pursuant to subpoena to Victoria Police |
| R-22 | Annexures to the trial affidavit of the wife, affirmed / filed on 14/05/2019 |
| R-23 | Photograph of attempted enlargement photograph of the husband and Ms GGG which forms part of Exhibit R20. |
| R-24 | Statutory declaration of Ms KKK (dated 12/09/2007) Annexure MrQ-2 to the affidavit of Mr Q, affirmed/filed 12/01/2015 |
| ICL- 1 | Copy of petition on Change.org commenced by the wife regarding ‘Legalising recordings when assault or abuse is suspected’ |
| ICL- 2 | Annexures to the affidavit of Ms JJ (contact supervisor), sworn on 02/05/2019 and filed on 10/05/2019 |
| ICL- 3 | Annexures to the affidavit of Ms FFF (contact supervisor), sworn / affirmed and filed on 04/06/2019 |
The Applicable Law
Part VII of the Family Law Act 1975 (Cth.) sets out the provisions relating to children. Section 60B sets out the objects of the Act and the principles to be applied. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration when making parenting orders. Section 60CC of the Act sets out how court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in subsection (2) are primary considerations and the matters set out in subsection (3) are additional considerations.
Section 60 CC(2) of the Act provides that:
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.
Subsection 60CC(2A) provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
Primary Considerations
The benefit to the child of having a meaningful relationship with both of the child’s parents
In McCall & Clark [2009] FamCAFC 92 (“McCall & Clark”) at [109], the Full Court said:
The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”.
At [117] of McCall & Clark, the Full Court said:
Bennett J discussed the terminology in G & C [2006] FamCA 994 and said the enquiry was a “prospective” one which requires a court to evaluate the extent to which a meaningful or significant relationship with both parents is going to be of advantage a child [sic].
The Full Court said there were differing possible approaches to s.60CC(2)(a) of the Act. The Court preferred the “prospective approach”, although the “present relationship approach” may also be relevant.
At [118] of McCall & Clark, the Full Court defined both the “present relationship approach” and “prospective approach” as follows:
…
(a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
…
(c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”). In this dispute I prefer the prospective approach.
I am of the opinion that “the prospective approach” is the preferred approach in this dispute.
In Mazorski v Albright [2007] FamCA 520, Brown J at paragraph [26], described a meaningful relationship as one “which is important, significant and valuable to the child” and the word meaningful is “a qualitative adjective, not strictly a quantitative one”.
The husband seeks to have a relationship with E and F. He accepts that a relationship with D at present, is not possible. At present there is no meaningful, or indeed, any relationship with E and F. He asserts that the two children are aligned with, and have been significantly influenced by the wife.
At the commencement of the trial, the husband sought to remove E and F from their mother’s care and live with him. He asserted that a change of living arrangements was warranted because:
a)The incident involving the wife directing the children to wear a spy watch to record the children’s time with their father;
b)The children’s increase in alignment with their mother;
c)The apparent pressure being exerted on the children as to their relationship with their father;
d)The deterioration of the husband’s relationship with E and F, culminating in them refusing to spend any time with him since 9 December 2018.
At the conclusion of evidence, the husband was prepared to concede that the children should remain living with their mother, however, they should spend significant and substantial time with him. He submitted such an arrangement would enable the children to develop a future meaningful relationship with their father.
The wife and all three children have a good relationship, subject to the degree of the children’s enmeshment and alignment with their mother. She has been their primary carer since birth and in particular, since separation in July 2013.
At the commencement of the trial the wife sought orders precluding any relationship between E, F and their father. She asserted that:
a)She and the children had been subjected to the husband’s conduct throughout the relationship and post separation;
b)His conduct was traumatic and relentless;
c)The children have witnessed the abuse of their mother and Mr Q, and had themselves been victims of their father’s aggression and violence;
d)They have been subjected to the husband’s insightless parenting, including being cross-examined by the husband’s counsel in criminal proceedings and have become resistant and defiant to spending time with him.
The wife’s case is that the children have aligned with her for justifiable reasons.
At the conclusion of evidence, and in particular Dr Y’s evidence, the wife was prepared to concede that the children should spend limited time with the husband, in accordance with his recommendations. From her perspective the time proposed by Dr Y would be sufficient to enable a meaningful relationship in the future between E, F and their father.
Dr Y’s evidence about the long-term detrimental effects on children of not having a relationship with a parent, was compelling and persuasive, particularly in the context of the highly acrimonious and conflictual relationship between the parents.
The manner in which each party initially sought to conduct their respective cases warranted an examination of whether either of them posed an unacceptable risk to the children. The concept of unacceptable risk is a balancing exercise the court must undertake with regard to the risk and the benefit of the children having a relationship with a parent, who may pose a risk.
In view of the changed position of each party at the conclusion of evidence, I do not propose to undertake a detailed examination of unacceptable risk. Rather, I intend to make findings about the conduct of each parent alleged by the other and then consider the extent of the time the children should spend with the husband, having regard to my findings as to the violence alleged by the wife and alienation as alleged by the husband.
Husband’s submissions about and relevant timeframe of conduct and the ‘rule’ in Rice and Asplund.
At paragraph 10 of the final written submissions on behalf of the husband, it was submitted that I should not have regard to the events prior to 2015, as consent orders were entered into on 18 May 2015. The justification for such a submission was:
a)It cannot be said that whatever may have been husband’s conduct during the marriage prior to the 2015 hearing, precluded him having “contact” with the children, or a destruction of the relationship between husband and the children;
b)The ‘rule’ in In the Marriage of Rice and Asplund (1978) 6 Fam LR 570 precludes a re-examination of the evidence before the court when consent orders were made in 2015.
Order 3 of the orders made by consent by Johns J on 18 May 2015 provides as follows:
3. That the father spend time with the children supervised at GG Street contact centre or such other location and/or service as may be agreed between the parties on days and times as nominated by the centre or agreed supervisor subject to the wishes of the child D so far as it relates to her time with her father.
Paragraph 1 of the orders made by consent by Hannam J on 26 October 2016 provides as follows:
1. That in substitution for paragraph 3 of the orders made 18 May 2015 the children E and F spend time with the husband as follows:-
(a) on alternative Saturdays commencing Saturday, 29 October 2016 for the purpose of attending the Shabbat morning service at N Place, HH Street Suburb II, the wife is to deliver the children at 9:55 AM and collect them at 1:15 PM from the front gates, during which time the husband is to ensure that the children do not leave the synagogue premises;
(b) on alternative Sundays commencing 13 November 2016 for a period of up to 4 hours under the supervision of Ms JJ or an agreed suitably qualified ultimate supervisor nominated by Ms JJ and at the husband’s expense with changeover at the location in a) above or as otherwise agreed with Ms DDD.
Paragraphs 4, 5 and 6.2 of the orders made by consent by Forrest J on 9 October 2018 provide as follows;
4. Until further order, paragraph 1 of the orders made on 26 October 2016 be suspended.
5. Until further order, the children, E born in 2004 and F born in 2009, shall spend time with the father from 10 AM until 5 PM on each alternative Sunday commencing on 14 October 2018.
6.2. the children’s time shall be supervised by Ms LLL of the UU Service and/or her nominee (“the contact supervisor”).
It is clear from all of the orders pertaining to the husband’s time with the children, that such time has been in the presence of a professional supervisor with the exception of order 1(a) of the orders made on 26 October 2016, which required the husband’s time with the children to take place at the public synagogue to attend a Shabbat morning service.
In the context of such orders it is difficult to contemplate how it can be said that the wife ever consented to orders which were contrary to her concerns of abuse relied upon in her material filed in the previous proceedings. All of the three sets of orders are consistent with the wife’s concern about the husband’s conduct and behaviour with the children.
During the eight days of the trial the husband’s Queen’s Counsel:
a)Did not object to the relevance of the wife’s affidavit material, which referred to historical events prior to 2015 where she alleged family violence;
b)Did not make any submissions about the relevance of evidence prior to 18 May 2015 orders;
c)Cross-examined the wife extensively about events dating from mid 1994 (Mr Q’s birth) and including allegations of historical family violence;
d)Relied on the husband’s Response affidavit which referred to events prior to 2015;
e)Agreed that I should read Dr Y’s first report dated 6 February 2014;
f)Re-examined the husband about events prior to 2015;
g)Tendered exhibits relevant to events prior to 2015, specifically exhibits:
i)A-5 ( photograph of D on a bunk bed allegedly taken in March 2005);
ii)A-6 (photographs of husband’s injuries arising from incident on 7 July 2013);
iii)A-8 (wife’s curriculum vitae prepared January 2006);
iv)A-10 (paragraphs 38 to 39 the affidavit the wife affirmed/filed on 31 October 2013;
v)A-11 (extract of Victoria police leap record from 13 April 2009);
vi)A-12 (existing and proposed plans for renovation/extension at former matrimonial home in 2012/2013);
vii)A-13 (building contractor renovation/extension at former matrimonial home);
viii)A-14 ( email from husband to builder dated 25 September 2012);
ix)A-17 (extract from transcript of proceedings in the Magistrates’ Court of Victoria on … 2014);
x)A-18 (video of the wife and Mr Q on 7 July 2013 tendered during proceedings in the Magistrates’ Court of Victoria).
The submissions about the application of Rice and Asplund are misguided and misconstrued. The applicable principles are well settled and there have been many Full Court decisions regarding the ‘rule’, subsequent to the authorities referred to in the husband’s written submissions. Ironically, and most unusually, it is the husband who has raised the ‘rule’ when he is the party who seeks a variation of the previous orders. Neither the wife nor the Independent Children’s Lawyer sought to raise this ‘rule’, when it was open to them to do so.
The current application was initiated by the husband and seeks a variation of the previous orders, so that his time with the children is extended and no longer supervised. Indeed, at the commencement of the trial the husband sought orders for the children E and F to live with him. In circumstances where the husband seeks orders dispensing with the requirement for supervision, which has been a long-standing requirement, and the conduct of his case during the trial, I am not persuaded that his conduct prior to the relevant orders is irrelevant.
On the contrary, I am of the view that events prior to 2015 are extremely relevant to the current application for the husband to spend unsupervised time with the children, as the husband denies the allegations of the wife. The allegations have never been the subject of findings by this court, in the context of parenting proceedings.
Queen’s Counsel for the husband did not raise or refer to the ‘rule’ during his opening, in a Case Summary filed prior to the commencement of the trial, or during the eight days of the trial. It is most surprising that:
a)The husband seeks to do so in his final written submissions, where he is the applicant; and
b)Seeks to justify exclusion of evidence prior to 2015, on the basis of the rule.
I reject the submissions in that regard and intend to examine the evidence of both parties pertaining to events prior to 2015, raised by them during the course of the trial.
The need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence
The allegations of a long history of family violence levelled by each party against the other were central to the cross-examination of both parties by each other’s counsel. There was detailed and significant examination of conflictual events, many of which were historical in nature.
The husband makes allegations in his trial affidavit about the wife’s conduct and attempts to alienate him from the children which is psychologically damaging to the children. They include the following:
a)A lack of compliance with orders of May 2015, including no time between the husband and the children for 18 months prior to 16 August 2016;
b)The spy watch incident;
c)The wife’s conduct prior to and at E’s Bar Mitzvah in June 2017;
d)The wife’s failure to encourage the children to spend time with him from 9 October 2018 and subsequently.
I will address each of the more substantial complaints.
Husband’s complaints against wife
Lack of compliance with orders of May 2015
At paragraphs 40 to 68 of his trial affidavit the husband deposes to the difficulties he encountered in spending time with the children subsequent to the orders of May 2015, in circumstances where he did not spend time with E and F until 26 November 2016.
He asserts the wife deliberately put up many obstacles preventing him from seeing the children, including:
a)Instructing her solicitor to not respond to numerous requests from his solicitor to arrange his time with the children;
b)Unreasonably withholding her consent to proposed private supervisors, one of whom had previously been proposed by her;
c)Refusing to negotiate about the identity of supervisors when attending court for delivery of judgement of property matters in December 2015.
The wife in her trial affidavit at paragraphs 221 to 231 responds to the husband’s criticisms of her. I accept there may have been difficulties with arranging a supervisor and a venue satisfactory to both parties, however, I find it was completely unsatisfactory that time between the children and their father did not commence until some 18 months after the orders providing for such time. The mirror imaging of the complaints about each other and attribution of blame is typical of the parental dynamic. I find both parents are responsible for the delay in commencement of time.
The spy watch incident
In December 2016, the husband noticed during a supervised visit with him that E was wearing a device on his wrist that look like a “smartwatch”. E told his father that the smartwatch had been given to him by a friend.
From December 2016 until March 2017, the husband deposes, at paragraph 75 of his trial affidavit, that he observed E wearing the watch during time with him.
At paragraph 79 of his trial affidavit, the husband deposes that on 1 April 2017 at the Synagogue he noticed F wearing the watch, instead of E. He became suspicious and asked F to hand it to him, whereupon it was confirmed that it was a listening device and his mother had told him to wear it.
Later that evening, the husband deposes to receiving a telephone call from the police at Suburb II police station seeking return of the watch, as the wife had reported to the police that the husband had stolen the device from the children. She had also apparently acknowledged that it was a listening device and that was conveyed to the husband.
The husband obtained software to download the information from the spy watch and prepared a transcript of the recording. Exhibit R-14 is a copy of the transcript of the recording.
The transcript establishes that upon the husband discovering the nature of the device, he questioned the children about how the watch would come to be in their possession, when according to Dr Y, and I concur, it must have been blatantly obvious who had given the watch to the children.
As a result, the husband agitated with the police to have the wife charged with offences and obtained an Intervention Order against the wife on 11 August 2017. The wife consented to a final order, without admission, which expired on 4 December 2018 with the aggrieved family members as the husband, E and F.
The wife was charged with the offence of using a listening device, and on 22 March 2018 she entered into a diversion plan with no conditions. Annexure MsR-18 is a copy of the division plan dated 22 March 2018.
The wife was extensively cross-examined about the spy watch incidents and the issue of recording the children’s time with their father. When cross-examined, she expressed remorse and acknowledged that it was wrong, however, she did not say why. I gained the impression that she expressed remorse because she had been caught out.
The husband has interpreted the spy watch and recordings as an attempt by the wife to further alienate the children and place them in an impossible situation of conflicted loyalty.
The wife attempted to justify the necessity for recording the children in her trial affidavit because of her fear of the husband’s conduct whilst the children were spending time with him, even in the presence of a supervisor.
She refers to the recording of the husband’s time with the children on 4 February 2017, at paragraph 181 of her trial affidavit, as the husband’s inability to engage appropriately with the children and to act in a child focused manner.
The husband’s conduct in that recording is clearly unacceptable and derogatory. The references to E being a “poofter”, “just like … [his] brother” are insulting and insensitive.
However, recording the children’s time with their father is outrageous and cannot be justified. The children were placed in an invidious position of divided loyalties.
I find that the wife’s use of the spy watch and recording of the boys whilst with their father was not reasonable or justified.
E’s Bar Mitzvah
Saturday 24 June 2017, was the date of E’s Bar Mitzvah. Both parents are critical of the other for the events prior to and on the day of the celebration.
At paragraph 113 to 121, the husband deposes to the events prior to the Bar Mitzvah. The husband deposes that:
a)He raised with E his desire to become involved in the Bar Mitzvah from late 2016;
b)E did not want to discuss his Bar Mitzvah with his father;
c)He acknowledges that he referred to E having a “monkey Bar Mitzvah”;
d)His solicitor wrote to the wife’s solicitor on 2 June 2017, seeking her confirmation he could attend the ceremony;
e)On 10 June 2017, at the Synagogue, E told his father he did not want him to attend;
f)On 16 June 2017, his solicitor again wrote to the wife’s solicitor seeking to attend and to invite some guests, and of his desire to spend time with E and the Rabbi prior to the Bar Mitzvah;
g)On 18 June 2017, Rabbi MMM advised him the wife would not agree to him being involved in the Bar Mitzvah;
h)On 18 June 2017, his solicitor again wrote to the wife’s solicitor about the Bar Mitzvah;
i)On 20 June 2017, he filed an application seeking orders to permit him to attend E’s Bar Mitzvah;
j)On 21 June 2017, orders were made by consent permitting him to attend with a supervisor and two guests; subject to him attaining consent to attend from KK Group and paying for the catering costs associated with his attendance.
The husband attended the Bar Mitzvah with more than two guests, and at paragraph 122 he deposes to the events on the day, namely:
a)Mr Q made a speech referring to the husband calling Mr Q a faggot;
b)Mr Q throwing lollies at him in an aggressive manner;
c)Mr Q holding up his middle finger to the husband.
According to the husband both E and F were upset at Mr Q’s conduct and the wife should accept responsibility for the disastrous events of the day, including the insulting derogatory comments in Mr Q’s speech. The husband views the wife’s conduct surrounding the Bar Mitzvah is a further attempt by her to alienate him from the children.
As referred to elsewhere in these reasons, the telephone conversation between D and the husband on 27 June 2017 took place three days after the Bar Mitzvah.
Following the Bar Mitzvah on 26 June 2017, the husband applied for an Intervention Order against Mr Q, as Mr Q was living with the children. The police subsequently withdrew from the proceedings and the husband was the applicant. He eventually withdrew the application for an Intervention Order against Mr Q.
The wife’s version of the events prior to and during the Bar Mitzvah unsurprisingly do not correspond with the husband’s evidence.
The wife agrees that the husband referred to E’s Bar Mitzvah as a “monkey Bar Mitzvah” and that E was embarrassed by such remarks made by the husband.
From her perspective, the husband did not provide any financial support for the Bar Mitzvah and she was required to obtain assistance from KK Group to host the event.
The wife’s evidence under cross-examination was that she did not see the asserted aggressive lolly throwing by Mr Q, as she was in the women’s part of the Synagogue. She asserts that the Rabbi, who conducted the Bar Mitzvah told her that the husband’s friend had approached Mr Q after the lolly throwing, and had called him a faggot, in the presence of E and his friends.
At paragraph 191 of her trial affidavit, the wife deposes to be unaware of the contents of Mr Q’s speech, however, she refers to it as a personal and honest account of his childhood, including the fact that he was often called a faggot, although he did not say by whom. Annexure MsR-19 is a copy of Mr Q’s speech.
Both parties were cross-examined about the Bar Mitzvah and their evidence was consistent with their respective trial affidavits.
The wife conceded that she possibly could have looked at Mr Q’s speech prior to him giving it. She was also aggrieved that the husband had not contributed financially to the celebration and her evidence was that he should have contacted her sometime in advance if he had wanted to participate, rather than leaving it so close to the event.
The husband was unable to concede, during cross-examination by counsel for the Independent Children’s Lawyer, that given the high conflict between E’s parents, his attendance at the Bar Mitzvah was likely to result in conflict at the event.
The husband seemed particularly focused on his right and religious obligation to attend the Bar Mitzvah, rather than demonstrating any insight as to the impact of his presence and that of his guests would have on E.
I do not consider that the events of and leading up to the Bar Mitzvah support the husband’s contention that the wife had embarked upon a process of alienating him from the children’s lives. They are, however, demonstrative and typical of the manner in which the parents conduct themselves towards each other, with little regard for the effect upon the children of the continuing warfare.
I find that both parents contributed to the problems and conflict pertaining to E’s Bar Mitzvah.
The wife’s failure to encourage the children to spend time with him from 9 October 2018 and subsequently
At paragraph 92 of his trial affidavit, the husband deposes that subsequent to the discovery of the spy watch, much of the progress which he perceives had been made between E, F and himself, was undermined. At paragraphs 93 to 98 the husband refers to numerous occasions, commencing February 2018, when there had been problems with the children spending time with him and speaking to him on the telephone.
The breach of the orders culminated in the husband filing an Application for Contravention on 17 July 2018, which was determined by Forrest J on 9 October 2018. The orders which were made following the contravention varied the parenting orders of October 2016 and provided for the children to spend supervised time with the father from 10 AM until 5 PM each alternative Sunday.
The wife in her trial affidavit provides a comprehensive response to the allegations of the husband. She deposes that:
a)She is not comforted by the presence of a supervisor with the children as the father’s inappropriate conduct and questioning of the children continues notwithstanding the presence of a supervisor;
b)She continues to experience high levels of anxiety at the prospect of the children spending time with their father;
c)There have been numerous difficulties with time between the boys and their father, particularly in recent times;
d)The children are highly aware of the ongoing parental conflict and dispute.
In his third report, under the heading ‘Conclusion’, Dr Y refers to the dynamic of the children’s refusal to spend time with their father. His opinion is as follows:
a)The wife’s shares with the children the understanding that they are not safe with the husband and ongoing supervision consolidates that belief;
b)The husband may have behaved badly in the past.
I agree with those observations of Dr Y.
I have no doubt that:
a)The wife has extreme difficulty in promoting the relationship between the children and their father;
b)The children are highly aware of and enmeshed in the conflict between their parents;
c)At times the husband has not assisted his own relationship with the children. He has made inappropriate and judgemental comments and has no concept or insight how he may have contributed to the problem;
d)The children experience difficulties transitioning between their parents;
e)At various times the children have had a good relationship with their father, however, they have not been given emotional permission by their mother to continue with that relationship.
The wife asserts that:
a)The husband’s past conduct has rendered her so anxiety ridden, that she is fearful for the children during their time with him;
b)Such anxiety has made it difficult for her to facilitate time between the boys and their father.
In relation to the extent of her anxiety the wife relies upon the evidence of Dr NNN, who in 2014, diagnosed her with an adjustment disorder with anxious symptoms. Since that time the wife has attended upon psychologists and counsellors for support, the most recent of whom was Ms CCC. Ms CCC was not cross-examined and her diagnosis of the wife suffering from a major depressive disorder, generalised anxiety disorder and panic attacks was not challenged by the husband.
After having considered the matters referred to in the previous paragraphs, I find that the wife has failed to encourage the children to spend time with their father, however, regard to the wife’s anxiety and my findings in relation to family violence in the subsequent paragraphs, her conduct was not unreasonable.
Wife’s complaint against the husband
The wife makes allegations in her trial affidavit about a number of incidents and the husband’s behaviour during and subsequent to the marriage, which she alleges demonstrate his abusive and controlling behaviour, which justifies the children’s current opposition to spending time with their father. They include the following:
a)The husband’s abuse and denigration of her son Mr Q, including calling him “faggot” and “poofter”;
b)The husband’s perpetual litigation since separation;
c)The long history of physical, sexual, emotional, psychological and financial violence perpetrated by the husband;
d)Isolation;
e)Denigration of the wife to members of the Jewish community;
f)Sexual abuse;
g)Hitting her with a walking stick when the wife was pregnant with D in 2001;
h)Abuse during her pregnancy with E in 2004;
i)Incident of family violence in 2005;
j)Two incidents of family violence in 2007;
k)Incident of family violence in April 2009;
l)Incident of family violence in November 2009;
m)Incident of family violence in 2010;
n)The circumstances of the separation in 2010;
o)Incident of family violence in July 2013;
p)Incident at the synagogue in 2014;
q)Telephone conversation between the husband and D on 27 June 2017.
In his Response affidavit of 24 May 2019, the husband essentially denies the wife’s allegations of family violence.
Both parties were cross-examined about the incidents of family violence.
I will address the most significant incidents as follows.
Husband’s relationship with Mr Q
It is the wife’s case that the husband and Mr Q have had a conflictual relationship for many years, which has intensified in its animosity since Mr Q was about 12 years of age.
When the wife and husband commenced cohabitation Mr Q was approximately five years old. The wife alleges that the husband has always preferred his biological children over Mr Q, and has been physically, emotionally and verbally abusive to Mr Q for very many years. The verbal abuse has including referring to Mr Q as “faggot”, “poofter”, and on one occasion in 2007 as “anal seeker”, “pansy”, “little thief” and a “piece of gay shit”.[4] She also asserts that the husband has punched and hit Mr Q over the years.
[4] Paragraph [97] of the wife's trial affidavit sworn 14 May 2019.
The husband was cross-examined about paragraph 97 of the wife’s affidavit and claimed to be unable to recall that particular incident on 26 August 2007. He claimed he was never left alone in the house with the children without the wife being present and that he never laid a hand on Mr Q.
The husband’s denial is in the context of the wife’s evidence that the school psychologist contacted her and she noticed a red mark and swelling on Mr Q’s left jaw, which Mr Q reported was a result of being hit in the face by the husband. Furthermore, on 28 August 2007 a restraining order was granted against the husband requiring him to vacate the home in Perth on 1 September 2007. The husband does not address the wife’s allegations in his affidavit in response.
In response to the allegations in paragraph 98 of the wife’s affidavit that he had slapped Mr Q across the face, pushed him towards the door and told him to get out of the house, his response at paragraph 41 of his response affidavit was that he put two fingers to his lips to stop the rude way Mr Q was speaking to him, and denied punching him, threatening him or calling him names as alleged by the wife.[5]
[5] Affidavit of the husband sworn 24 May 2019.
In response to the wife’s allegations of a family violence incident in April 2009 involving Mr Q and the husband, the husband at paragraph 44 of his response affidavit, denied punching Mr Q in the back and states that he threatened to confiscate Mr Q’s phone prior to wrestling with the wife as she tried to take his telephone.
The wife’s evidence is that the police attended the family home and issued a family violence safety notice against the husband. The wife did not proceed with a final Intervention Order as she became aware she was pregnant with F. The husband asserts that he consented to an undertaking without admission to avoid the cost and stress of defending the application.
Whilst the husband was being cross-examined about these incidents, it appeared to me that the husband was evasive and attempting to minimise his conduct. There was a complete lack of sincerity in the manner in which the husband answered questions when being cross-examined. I have no difficulty finding that the husband has behaved in an appalling fashion towards Mr Q, has repeatedly called him “faggot”, and that his conduct has occurred in the presence of the other children, who would undoubtedly be adversely affected by the conflict.
The husband’s protestations that the use of the word ‘faggot’ and an equivalent ZZ Language word, which is equally pejorative, were in the context of Mr Q’s conduct as a man, rather than in the context of his sexuality, is unbelievable. He attempted to justify the use of the ZZ Language word on the basis that gay Country ZZ men regularly used that word. His evidence was that he did not appreciate that Mr Q was gay until he was about 18 and he had used the word faggot, prior to being aware that Mr Q was gay.
The husband also denied that he had used the words ‘faggot’ and ‘poofter’ during a telephone conversation with D a couple of days after E’s Bar Mitzvah. It was only when a transcript of the conversation was produced and tended as Exhibit R15 and an audio recording was played, that he reluctantly admitted he had used such words. He also referred to a friend of the mother as a “whore from the street”.
The audio recording of the conversation between the husband and D demonstrates the hysterical, vindictive and appalling pejorative use of the word ‘faggot’, directed towards Mr Q.
He professed outrage at Mr Q’s comments of him having being called ‘faggot’ and ‘poofter’ in the speech he gave at E’s Bar Mitzvah.
In their respective final written submissions, both parents have extensively referred to the reports of the supervisors to justify their respective assertions against each other in terms of parenting capacity and the experiences of the children whilst in the care of the husband.
Although the husband was relentlessly critical of the wife’s parenting, he obviously has conceded that she is able to care for the children appropriately other than in respect to their relationship with their father, as his final position was that they should remain living with her.
The husband’s final written submissions:
a)At paragraphs 75 and 76, refers to the occasions where the supervisors have observed the husband positively interacting with the children, which are indicative and supportive of his parental capacity; and
b)Are permeated with negative comments and criticisms about the wife’s lack of parental capacity.
The wife’s final written submissions at paragraph 105, refers to the occasions where the supervisors have observed the husband negatively interacting with the children, which she asserts is indicative of the husband’s lack of parental capacity.
At times they have both demonstrated good parental capacity and at other times have demonstrated an alarming lack of parental capacity. Examples of the husband’s lack of parental capacity, according to the wife are as follows:[11]
[11] Paragraph [105] of the wife's final written submissions.
a)On 5 February 2017, when the husband questioned E about who was going to pay for tooth fillings;
b)On 19 February 2017, when F declined to give the husband a hug, he became argumentative and declared he was not prepared to drive unless F gave him a hug;
c)On 1 April 2017, the husband’s response when he became aware that F was wearing a recording device, he questioned F about who gave him the watch and made repeated references to police becoming involved, despite F’s increasing distress;
d)On 2 April 2017, the husband’s disparaging remarks about members of his family being unable to distinguish gender appropriate items;
e)On 30 April 2017, that when the husband wanted to drive the boys to the police station because he suspected E was using his mobile to record, describing it as a human rights violation;
f)On 8 July 2017, telling E his brother was a “faggot” and “go listen to your faggot brother”;
g)On 23 July 2017, when the husband was driving a car when he became irritated at the lack of dialogue and impatiently questioned the children;
h)On 17 September 2018, the husband blamed E for gluing wires whilst building a model plane which caused E to be visibly upset and withdrawn;
i)On 9 December 2018, E was withdrawn, mute, and teary, refusing to talk to the father. The father characterised his behaviour as a “show”. The supervisor disagreed and commented that E’s distress was genuine.
Examples of the wife’s lack of parental capacity, according to the husband are as follows:
a)Requiring the children to wear a spy watch and the aftermath of her actions;
b)Denying the children time with the husband, in accordance with orders of the Court;
c)The wife’s conduct pertaining to the Bar Mitzvah is indicative of her lack of empathy and refusal to acknowledge her contribution to spoiling the event for E;[12]
d)The wife’s acceptance of the children’s version of the motor vehicle accident on 19 February 2017, rather than the supervisor’s version of events.[13]
[12] Paragraphs [32] to [40] of the husband's final written submissions.
[13] Paragraphs [26] to [31] of the husband's final written submissions.
Examples of the husband’s positive parental capacity, as extracted from supervisor’s reports are set out at paragraphs 70 to 78 of the husband’s final written submissions.
In terms of parental capacity, I agree with the conclusion reached by Dr Y at paragraph 51 of his final report that both parents have behaved in ways that have contributed actively to the children’s rejection of their father.
He states that the husband:
… clearly has made significant mistakes embroiling the children in the dispute, sharing with them his views, and trying to provide to them corrective emotional experiences. [14]
[14] Paragraph [51] of the Family Report dated 10 December 2018.
With regard to the wife, he observes:
In the more recent history, Ms Rankin has behaved in a manner that has been unhelpful in the extreme; she has shown really questionable judgement, and in my opinion has been profoundly undermining of the children’s relationship with their father and has communicated to them clearly her genuine sense and intent, that is, Mr Rankin is dangerous, that they are not safe, that he cannot be trusted and that the children should not be with him. [15]
[15] Paragraph [52] of the Family Report dated 10 December 2018.
There was no issue of any other person providing for the needs of the children, including emotional and intellectual.
The maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
All relevant factors have been referred to in these reasons.
The attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
This has been addressed between paragraphs 294 to 308 hereof.
Any family violence involving the child or a member of the child’s family
I have comprehensively referred to the allegations of family violence at paragraphs 114 to 252 hereof.
If a family violence order applies, or has applied, to the child or a member of the child’s family – any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter
There have been numerous family violence orders obtained by the parties against each other. The circumstances giving rise to the orders are referred to in greater detail in my discussion of family violence.
I summarise the various orders obtained by the parties.
Date of Order / Undertaking
Affected family member
Place
28 August 2007
(Annexure MsR-4)
Wife
Perth Magistrates’ Court
13 July 2010
(Annexure MsR 5)
Wife and the four children
Magistrates’ Court of Victoria (Interim order)
26 July 2010
Wife
Magistrates’ Court of Victoria. Husband provided an Undertaking (Exhibit R-10)
18 October 2010
Wife
Variation of IVO by consent permitting husband to return to the family home
8 July 2013
(Annexure MsR-11)
Wife
Magistrates’ Court of Victoria (Interim IVO)
20 April 2018
Husband and children
Magistrates’ Court of Victoria (Final order)
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
In this dispute it would be preferable to make orders which would least likely lead to further proceedings. Since 2015, when final parenting orders were made, there has been a plethora of legal proceedings in the County Court, Magistrates’ Court and appeals to the Full Court of this Court.
In his oral evidence, Dr Y was hopeful that matters should settle down, and once E and F are reassured that the living arrangements will not change, it may be possible for an improvement in the relationship between the boys and their father.
At paragraph 47 of his Family Report dated 19 February 2015, Dr Y expressed some optimism that once matters settle and orders are made, that it might be possible for Mr Rankin to build an independent relationship at least with his sons. Regrettably that did not occur.
The second last paragraph of paragraph 85 of the husband’s final written submissions, titled, ‘Unreasonable Behaviour Should Not Be Rewarded’ threatens further litigation, including ‘Consequences in terms of residence’, if the wife continues to influence the children. Such a statement is highly regrettable and demonstrative of a lack of insight by the husband into the dynamics of the problems faced by his family.
Unfortunately, I do not have any bright optimism that the husband will cease his quest and litigation against the wife.
The orders I propose to make will provide for E and F to spend time with their father for four hours on two Sundays each month, subject to:
a)Contemporaneous non-reportable counselling/therapy with Dr Y, once a month;
b)A session of counselling/therapy prior to commencement of the husband’s time;
c)The husband meeting the costs of the counselling/therapy;
d)As from E’s 16th birthday on 16 June 2020, his time with his father will be in accordance with his wishes.
In my view such orders provide the best regime to avoid further litigation. It enables the counselling/therapy to continue whilst the husband spends time with both children.
Dr Y, in the first session, will be charged with the task of explaining the orders to E and F, which will no doubt reassure them that they will remain living in their mother’s household, and that they have emotional permission to have a relationship with their father.
I am cautiously confident that after the first session of counselling/therapy, both children will attend for the time provided in the orders. It will be up to the husband to recalibrate and rebuild his relationship with both boys and regain their trust and confidence. As referred to elsewhere in these reasons, the husband’s parenting skills leave a lot to be desired, and it is most surprising that a medical practitioner would need to receive advice from a contact supervisor, about how to engage and react with his own children.
I have considered at length the recommendation of Dr Y that the children spend time with their father, and that he could not countenance a complete severing of the relationship between the boys and their father at this stage, particularly for F. I agree with his recommendations with regards to providing the children with one more opportunity to recalibrate and re-establish their relationship with the husband, within the knowledge that their living circumstances and relationship with their mother and siblings will not change to any significant degree.
Whether the husband is able to engage appropriately with the children and rebuild a relationship and rapport with them, is up to him. I consider that time once a month is too limited and there is a better prospect of a relationship between the boys and their father if they spend time together on two occasions each month.
If the mother seeks to avoid and minimise the prospect of future proceedings, then she will comply with the orders I intend to make, and encourage and ensure that the boys attend all counselling/therapy sessions with Dr Y and to spend time with their father in accordance with the orders.
Any other fact or circumstance that the court thinks is relevant
I have addressed all relevant facts and circumstances in these reasons.
Parental Responsibility
Section 61DA provides, 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. The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with the parent of the child) has engaged in family violence or abuse of the child, or it is otherwise not in the best interests of the child for the child’s parents to have equal shared parental responsibility.
Both parents and the Independent Children’s Lawyer seek an order that the wife have sole parental responsibility for D, E and F. I agree with all parties that an order for sole parental responsibility should be made in favour of the wife.
I am satisfied on the evidence I have referred to in these reasons, that the presumption has been rebutted by evidence of family violence and that there is no prospect that the husband and the wife would be able to reach a joint decision about the children.
All parties sought an exception to sole parental responsibility for the children, in relation to issues pertaining to a change of name of the children, which should be shared equally.
During the course of the trial there was no cross-examination as to why a proposed name change was contemplated, or why an order for sole parental responsibility should exclude the change of the children’s name. However, as I am satisfied that it is appropriate to make an order vesting sole parental responsibility for all three children in the wife, I am content to make an order in terms of the exceptions sought by all three parties. I also note that the final parenting orders of 18 May 2015, included the exception relating to a change of name of the children.
Conclusion
Having regard to my findings about family violence, the abuse perpetrated by the husband, and the mother’s conduct enmeshing the children in the dispute, my task is to assess the risk of harm to the children posed by the father, and balance that risk with the mother’s unacceptable conduct and the future benefit of the children having a relationship with their father.
The wife’s case at the commencement of the trial required an evaluation of whether or not the father poses an unacceptable risk to the children, because of his past violent and abusive conduct.
The husband’s case at the commencement of the trial required an evaluation of whether or not the mother posed an unacceptable risk to the children, because of her attempts to align the children and to undermine the relationship with the father.
At the conclusion of the evidence, and prior to final written submissions, the husband and the wife made significant concessions in terms of the orders sought by them.
The husband’s concession that he no longer sought that the children live with him and the wife’s concession that the children should spend some time with the husband, mitigates against the proposition that either party presents such an unacceptable risk to the children, that they should not spend time with the children, or that the children should be removed from the wife’s household.
This litigation between the parties has been ongoing since 2013, which is an extraordinary length of time. The parental conflict has increased with the escalation of litigation and the parents have become more entrenched and polarised in the dispute with each other. The children have undoubtedly become deeply entrenched in the dispute, as predicted by Dr Y in his earlier reports.
D has not spent time with her father for over three years, and the only contact between them has been telephone conversations, the last of which occurred in June 2017.
E and F have not seen their father since December 2018, and are reluctant to do so now.
At paragraph 4 of his Family Report dated 10 December 2018, Dr Y summarises the conflict between the parties as follows:
They literally disagree about everything, the conflict has expanded to include the broader community, the children have been significantly and profoundly embroiled, and so the middle ground of psychological functioning between the parents in which most children function, has become a no man’s land between warring parties in which the children clearly understand and explicitly that a neutral stance is not possible….. The conflicting views of reality, unspoken and spoken messages of negativity, and their enlistment in this dispute has meant that their capacity to sustain a positive image of both parents in this psychological world has been obliterated, with the result being that they split off one parent as being all bad, that being their father, and portray their mother as all good.
It was abundantly clear from Dr Y’s evidence during cross-examination that he was pessimistic that the parental conflict would ever abate or diminish and that both parents were responsible for the sad and sorry position of the children.
I agree with his observations that neither parent is able to accept responsibility for the children’s current predicament. The husband believes that the children have been actively and deliberately alienated from him by their mother and her recent actions and conduct in relation to the Bar Mitzvah and the spy watch are indicative of her relentless attempts to alienate the children and demonstrate her lack of insight as to the effect on the children.
During cross-examination, the husband conceded that nowhere, in the 20 or so affidavits he had sworn and filed in the family law proceedings, had he made one single positive comment about the wife. Apart from the fact that she was their biological mother, he was unable to identify why it would be in a children’s best interest to have a relationship with her.
The wife maintains that she has been a victim of family violence perpetrated by the husband during the relationship and post-separation. She is also of the view that the husband must take responsibility for his own actions in terms of his relationship with the children and he has no insight or capacity to reflect upon his conduct.
I am also of the view, in the context of my findings about the husband’s conduct during and after the breakdown of the relationship, that this is not a case where there is no justification for the extent of children’s rejection of their father. I agree with Dr Y’s opinion expressed during cross-examination, that this family presents as a hybrid case of alienation whereby both parents have contributed in ways to escalate the disturbance and conflict. Both parents lack sufficient insight to acknowledge their own responsibility and culpability in the dispute.
My findings as to family violence allegations and the mother’s conduct towards the children, support the hypothesis of Dr Y that this family’s dynamic is one of hybrid alienation.
Notwithstanding the views of the children, in particular E, I am of the view that a relationship between the children and the husband is necessary for their future emotional and psychological welfare.
The evidence of Dr Y in that regard is compelling. Annexed to Dr Y’s third Report is a document titled ‘Some comments around parental alienation’.
That document identifies common strategies utilised by parents in the process of alienation and in particular refers to the long-term detrimental effects of children who have been alienated as follows:
It is worth noting that within this group, the significant problems of depression, anxiety, alcohol and substance abuse in an attempt to deal with the pain of what occurred during their childhoods was common as was interpersonal instability and problems in relating to their own children.
Dr Y’s straightforward evidence under cross-examination, was that he was unable to support the proposition that a nine year old child, namely F, who had been embroiled in this dispute should be denied an opportunity of a relationship with his father. I agree entirely with that proposition. When cross-examined about whether it was likely that E would comply with orders providing for time with his father, when he was so opposed to doing so, he responded that 15-year-olds frequently were required to comply with directions from parents and expectations of behaviour, which they did not like.
It may well be that if orders are made providing for F to spend limited time with his father, E would attend as well and benefit from the relationship with his father.
In terms of the appropriate time for the children to spend with the husband, Dr Y’s evidence was that a few hours on one Sunday a month would be appropriate, and that it would assist if orders were also made for the children and their father to attend for non-reportable therapy, which would enable the children to freely discuss their experience with their father and hopefully assist with the repair of their relationship with him.
If the husband is able to accept he is also responsible for the current situation of the children and demonstrate insight as to the children’s perspective, rather than seeking to blame the wife, there is a good chance that he will be able to rebuild and recalibrate his relationship at least with E and F so that they may benefit from having their father involved in their lives in a meaningful way.
Counsel for the wife and counsel for the Independent Children’s Lawyer proposed minutes of orders in accordance with the evidence of Dr Y.
The husband’s final proposed minutes of orders were in accordance with the proposal of the Independent Children’s Lawyer, which was made at the commencement of the trial. The proposal of the Independent Children’s Lawyer was submitted on the basis and subject to a finding that that the children are not at unacceptable risk of harm in the father’s care and was broadly in accordance with recommendations of Dr Y in his third Report.
The manner in which the trial developed and the findings I have referred to in these reasons, make it clear that such proposals are unlikely to be appropriate. That the father would make such proposals after hearing the evidence of an expert whose opinion he was prepared to seek on three occasions, is highly demonstrative of his current lack of insight.
It is to the wife’s credit that after hearing the evidence of Dr Y during cross-examination, that she was prepared to modify her position from no time with the husband, to accord with the recommendations of Dr Y.
Whilst it may have been possible to consider making orders for substantially longer time than recommended by Dr Y, I must consider any such proposal in the context of whether the orders would actually work, so that the children will spend time with their father.
The husband’s proposals for accommodation for the children were that he would convert the current premises which he rents in Suburb PP for his after-hours practice, into his home, in the event the children were to live with him.
There was no evidence or submissions about the husband’s proposals to accommodate the children for weekend and holiday time as proposed by him. The husband’s evidence is that he currently lives in a two-bedroom unit with Mr BB, who is in his 80s. In my view, it is highly unlikely that either E or F would enthusiastically or positively embrace spending each alternative weekend and half the school holidays in such accommodation.
Furthermore, the lack of relationship between the husband and E and F, will take some time to improve and recalibrate. As Dr Y said during cross-examination, the family requires time to settle down and recover from the relentless litigation.
To place the children in the husband’s care each alternative weekend and for half the school holidays without allowing sufficient time for all parties to settle down, would in my view, be counter-productive. If the children are prepared to attend therapy with an experienced professional, such as Dr Y, together with their father, then I am cautiously optimistic that their relationship may improve.
The husband‘s minute of proposed final orders submitted that the father, F and E attend counselling at an organisation referred by the Supporting Children After Separation Program. There is no evidence as to the identity of the counsellor at the organisation, nor the professional qualifications of the proposed counsellor. During his evidence the husband, proposed a counsellor from an organisation who had left a business card at his medical practice. He could not recall the name of that organisation.
I do not propose to make orders providing for counselling at an organisation, the credentials of which, have not been put before the court. I intend to make an order for counselling with Dr Y, with such counselling to be non-reportable, except to the extent of attendance and any outcome achieved.
I also propose to make orders that the husband meet the costs of the counselling and that a session of counselling take place prior to the husband’s time commencing with E and F.
In regard to the husband meeting the costs of the counselling, the husband’s financial position is far superior to that of the wife. Exhibit R-18 is a statement of the husband’s Profit and Loss for the three month period 1 October 2018 to 31 December 2018 which was tendered during the course of the trial. His gross income for that period was $97,801.17. Many of the expenses claimed, such as $30,630 for payment of legal fees, and an unexplained expense of $29,340 facility fee, significantly increases the husband’s alleged expenses. I do not accept that the husband’s liability to pay legal fees should take priority over his responsibility for payment of counselling to endeavour to repair his relationship with E and F.
Furthermore, in the context of the husband’s arrears of child support of $53,000, it is simply inequitable to expect the wife, who is mainly reliant on social security benefits, to contribute to the costs of any such therapy.
I intend to make orders for E to attend the counselling with Dr Y and for time with his father until he attains the age of 16.
I intend to make orders substantially in accordance with the proposal of the wife and the Independent Children’s Lawyer, except that I consider the boys time with their father should occur on two Sundays each month. I am of the view that time on one Sunday each month as proposed by Dr Y is too restrictive and that an additional Sunday each month would assist with the children’s future perception that they have emotional permission to have a relationship with their father.
All parties consented to orders pertaining to the children’s passports and overseas travel. I will make orders accordingly.
I certify that the preceding three-hundred and seventy (370) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Williams delivered on 20 August 2019.
Date: 20 August 2019
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Injunction
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Remedies
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