REEVE & REEVE
[2016] FCCA 2523
•29 September 2016
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REEVE & REEVE | [2016] FCCA 2523 |
| Catchwords: FAMILY LAW – Contravention proceedings – whether the wife has breached orders without reasonable excuse – what kind of penalty is appropriate in this case. |
| Legislation: Family Law Act 1975, ss.13C, 4AB, 60B, 65DAA(1), 61C, 61DA, 60CC, 65DAC, 60CA, 65DA, 70NAE, 70NEB |
| Cases cited: Godfrey & Sanders (2007) Fam CA 102 |
| Applicant: | MR REEVE |
| Respondent: | MS REEVE |
| File Number: | MLC 2968 of 2014 |
| Judgment of: | Judge Small |
| Hearing date: | 23 November 2015 |
| Date of Last Submission: | 25 November 2015 |
| Delivered at: | Dandenong |
| Delivered on: | 29 September 2016 |
REPRESENTATION
| Counsel for the Applicant: | Mr Meredith |
| Solicitors for the Applicant: | Meredith Saayman Lawyers |
| Counsel for the Respondent: | Self-represented |
| Solicitors for the Respondent: | None |
| Counsel for the Independent Children's Lawyer: | Ms Stavrakakis |
| Solicitors for the Independent Children's Lawyer: | Dandenong Family Lawyers |
ORDERS
All previous parenting orders in relation to the children V (“V”) born (omitted) 2001, W (“W”) born (omitted) 2002, X (“X”) born (omitted) 2004, Y (“Y”) born (omitted) 2004 and Z (“Z”) born (omitted) 2006 (“the children”) are hereby discharged.
The parties shall have equal shared parental responsibility for the children.
The children shall live with the mother.
The father shall spend time and communicate with V and W at times and places to be agreed between the parties and subject to V and W’s wishes.
The father shall spend time and communicate with X, Y and Z as follows:
(a)During school terms:
(i)On each alternate weekend from after school on Thursday to before school on Monday commencing on 6 October 2016; and
(ii)On the Thursday of the intervening week from after school to 7:30 p.m. commencing on 13 October 2016;
(b)For half of all school term holidays by agreement between the parties and failing agreement from after school on the last day of term to 6:00 p.m. on the second Saturday in 2017 and in each alternate year thereafter and from 6:00 p.m. on the second Saturday to the commencement of school on the first day of the next term in 2018 and in each alternate year thereafter;
(c)For half of the long summer holidays each year by agreement between the parties and failing agreement from after school on the last day of the school year until 6:00 p.m. on the day which is the middle day of the holidays in 2016-2017 and in each alternate year thereafter, and from 6:00 p.m. on the middle day until 6:00 p.m. on the day two days before the commencement of the school year in 2017-2018 and in each alternate year thereafter;
(d)From 12:00 noon on Christmas Day to 7:30 p.m. on Boxing Day 2016 and in each alternate year thereafter, and from 9:00 a.m. on Christmas Eve to 12 noon on Christmas Day in 2017 and in each alternate year thereafter;
(e)From 9:00 a.m. on Good Friday to 7:30 p.m. on Easter Saturday in 2017 and in each alternate year thereafter and from 7:30 p.m. on Easter Saturday to 7:30 p.m. on Easter Monday in 2018 and in each alternate year thereafter;
(f)For each of X, Y and Z’s birthdays each year:
(i)From after school until 7:30 p.m. on (omitted) in 2016 and in each alternate year thereafter and from after school until 7:30 p.m. on (omitted) in 2017 and in each alternate year thereafter should (omitted) fall on a school day;
(ii)From 10:00 a.m. to 2:00 p.m. on (omitted) 2016 and in each alternate year thereafter and from 2:00 p.m. to 6:00 p.m. on (omitted) 2017 and in each alternate year thereafter should it fall on a non-school day;
(iii)From after school until 7:30 p.m. on (omitted) in 2016 and in each alternate year thereafter should (omitted) fall on a school day and from after school until 7:30 p.m. on (omitted) in 2017 and in each alternate year thereafter should (omitted) fall on a school day;
(iv)From 10:00 a.m. to 2:00 p.m. on (omitted) 2016 and in each alternate year thereafter and from 2:00 p.m. to 6:00 p.m. on (omitted) 2017 and in each alternate year thereafter should it fall on a non-school day;
(g)For the father’s birthday from after school until 7:30 p.m. on (omitted) each year should it fall on a school day and from 2:00 p.m. until 7:30 p.m. should it fall on a non-school day;
(h)From 6:00 p.m. on the evening before Fathers’ Day until 6:00 p.m. on Fathers’ Day each year;
(i)At other times by specific agreement between the parties in writing from time to time.
The time spent between the father and the children pursuant to paragraph 5(a) hereof shall suspend during all school holidays and shall recommence in the next school term as though the holidays had not intervened.
The time spent between the children and the father shall suspend on the following occasions if they fall on a day when the children or any of them are spending time with the father:
(a)From 6:00 p.m. on the evening before Mothers’ Day until the commencement of school on the following Monday each year;
(b)For each of X, Y and Z’s birthdays each year:
(i)From after school until 7:30 p.m. on (omitted) in 2016 and in each alternate year thereafter and from after school until 7:30 p.m. on (omitted) in 2017 and in each alternate year thereafter should 18 November fall on a school day;
(ii)From 2:00 p.m. to 6:00 p.m. on (omitted) 2016 and in each alternate year thereafter and from 10:00 a.m. to 2:00 p.m. on (omitted) 2017 and in each alternate year thereafter should it fall on a non-school day;
(iii)From after school until 7:30 p.m. on (omitted) in 2016 and in each alternate year thereafter should (omitted) fall on a school day and from after school until 7:30 p.m. on (omitted) in 2017 and in each alternate year thereafter should (omitted) fall on a school day;
(iv)From 2:00 p.m. to 6:00 p.m. on (omitted) 2016 and in each alternate year thereafter and from 10:00 a.m. to 2:00 p.m. on (omitted) 2017 and in each alternate year thereafter should it fall on a non-school day;
(v)From 10:00 a.m. to 2:00 p.m. on (omitted) 2016 and in each alternate year thereafter and from 2:00 p.m. to 6:00 p.m. on (omitted) 2017 and in each alternate year thereafter should it fall on a non-school day;
(c)For the mother’s birthday from after school until 7:30 p.m. on (omitted) each year should it fall on a school day and from 2:00 p.m. until 7:30 p.m. should it fall on a non-school day;
(d)For V and W’s birthdays from after school or 3:30 p.m. to 7:30 p.m. on (omitted) and (omitted) each year if they fall on school days and from 2:00 p.m. to 7:30 p.m. if they fall on non-school days.
Changeovers that do not take place at the children’s school/s shall take place at the McDonalds restaurant on (omitted), (omitted).
If any of the children X, Y or Z is not well enough to spend time with the father pursuant to these orders, the mother shall immediately inform the father of such illness by text message and shall take that child to a registered medical practitioner at the first possible opportunity and obtain a medical certificate which:
(a)specifically names the affected child;
(b)states the specific nature of his/her illness; and
(c)states that he/she is unfit to spend time with the father and for how long he/she will be so unfit,
and the mother shall provide that medical certificate to the father within three days of obtaining it.
For the purposes of complying with paragraph 9 hereof, the mother shall provide a copy of these orders to the medical practitioner who is to provide the medical certificate.
The father and/or the mother shall be permitted to take the children to (country omitted) to visit family during their time with the children in the long summer holidays only (save for in the case of emergencies such as the critical illness or death of a close relative in (country omitted)) and only in years when their major period of long summer holiday time is spent in the second half of the holidays, and always provided that they shall inform the other no later than 21 days prior to departure and shall provide to the other a full itinerary of the children’s travel, including contact telephone numbers where the other can contact the children, and the other parent shall be permitted to contact the children by telephone, Facetime, Skype or other electronic means between 5:00 p.m. and 6:00 p.m. on each Wednesday that the children are away from Melbourne.
If either party wishes to take the children or any of them out of the State of Victoria for their school term holiday time with that parent he/she shall inform the other no later than 21 days prior to departure and shall provide to the other a full itinerary of the children’s travel, including contact telephone numbers where the other can contact the children and the other parent shall be permitted to contact the children by telephone, Facetime, Skype or other electronic means between 5:00 p.m. and 6:00 p.m. on the Wednesday of the week that the children are away from Melbourne.
Neither party shall make any arrangements for the children which interfere with the other party’s time with the children pursuant to these orders without the written consent of the other party first having been obtained in writing.
Should any of the children suffer a serious illness or injury then the parent in whose care they are at the time shall immediately inform the other by text message or telephone call and shall authorise any medical or allied health practitioner who is treating the child or children to consult with the other parent about such treatment.
The mother shall ensure that the father is kept informed of the contact details of all and any medical practitioners, including medical specialists and allied health professionals such as counsellors, who are treating the children or any of them at any given time, and the father is permitted by this order to consult with any medical or allied health practitioner who is treating the children or any of them.
For the purposes of the operation of paragraph 15 hereof, the father shall be at liberty to provide a copy of these orders to any medical or allied health professional who is treating the children or any of them.
The parties be and are hereby restrained by injunction from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other, or members of the other’s family; and
(b)discussing these proceedings or any of the issues contained therein (save to explain the operation of these orders)
in the presence or hearing of the children or any of them and from permitting any other person to do so; and
(c)applying corporal punishment of any kind to any of the children.
The mother shall immediately authorise any school in which the children or any of them are enrolled to provide to the father at his expense (if any) all school reports, photographs, newsletters, notices and the like that are usually provided to parents.
The father, his wife and her children shall be at liberty to attend any school functions, extra-curricular activities or events to which parents and/or family are usually invited.
The mother shall notify the father of any sporting, social or other extra-curricular activities the children are currently scheduled to attend or participate in during their time with the father and the father shall ensure that the children attend and participate in such events.
Each party shall keep the other informed of his/her residential address and contact details and shall notify the other of any change of address (including email address) and/or contact telephone number within 24 hours of such change.
Pursuant to section 13C of the Family Law Act 1975 the father shall:
(a)Attend and complete, as soon as practicable, a post-separation parenting program (“the Program”) at LifeWorks or Family Life at (omitted), or another suitably qualified and accredited organisation;
(b)Sign all such documents and do all such things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c)Pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of attendance and completion of the Program to the mother within 7 days of receipt.
The order made in the Family Court of Australia on 11 June 2014 appointing the Independent Children’s Lawyer is hereby discharged.
THE COURT DECLARES
That on 16 December 2014 the mother did contravene paragraph 1 of the Orders made by consent on 6 November 2014 without reasonable excuse.
That on 22 May 2015 the mother did contravene paragraph 3(a) of the Orders made by consent on 6 November 2014 without reasonable excuse.
AND THE COURT FURTHER ORDERS
The mother shall enter into a bond this day to be of good behaviour and to comply with these and any other subsequent orders of this court for a period of two years (“the bond”).
Pursuant to section 13C of the Family Law Act 1975 the mother shall:
(a)attend and complete, as soon as practicable, a post-separation parenting program (“the Program”) at LifeWorks or Family Life at (omitted), or another suitably qualified and accredited organisation;
(b)sign all such documents and do all such things as shall be necessary to enrol in, undertake and successfully complete the Program;
(c)pay and otherwise be responsible for all costs associated with the Program; and
(d)provide an appropriate certificate of attendance and completion of the Program to the father within 7 days of receipt.
IT IS NOTED that publication of this judgment under the pseudonym Reeve & Reeve is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 2968 of 2014
| MR REEVE |
Applicant
And
| MS REEVE |
Respondent
REASONS FOR JUDGMENT
Introduction
These are parenting and Contravention proceedings in relation to five children: V (“V”) born (omitted) 2001, W (“W”) born (omitted) 2002, X (“X”) born (omitted) 2004, Y (“Y”) born (omitted) 2004 and Z born (omitted) 2006 (“Z”) (collectively “the children”).
The children’s parents are Mr Reeve (“Mr Reeve” or “the father”) born (omitted) 1975 and Ms Reeve born (omitted) 1976 (“Ms Reeve” or “the mother”).
V has been diagnosed with a mild level of Aspergers Syndrome, although apart from some behavioural difficulties, she functions well.
W has been displaying extreme emotional and behavioural disturbance since late 2013, to the extent that it has been necessary for the parents and later the mother to call the police and paramedics to physically restrain her, and she was for a limited period under the care of the (omitted) Early Life Mental Health Service (“(omitted)”) (omitted) Neurodevelopmental Psychiatry Team.
The twins X and Y, and the youngest child Z are said to be in good health, although they too have been affected by the difficulties experienced by their older sisters.
There is also a Contravention Application to be determined.
The issues to be decided in this matter, agreed between the bar and the bench at the commencement of the trial, are as follows:
A. Whether allegations of family violence made by the mother against the father are supported by the evidence;
B. Whether the parties ought to share parental responsibility for the children or whether that responsibility should rest with the mother alone;
C. Whether the children, or any of them, should reside with the father;
D. What time should the children spend with the non-resident parent; and
E. Whether the mother is guilty of the contraventions of orders set out in the father’s Contravention Application filed 22 May 2015, and if so, what is an appropriate penalty for those breaches.
Background
Mr Reeve is of (nationality omitted) descent having been born in (country omitted) and moving to (country omitted) before his second birthday.
Ms Reeve is of (nationality omitted) descent and was born in (country omitted).
The parties were married in (country omitted) on (omitted) 2000 and moved to Australia in 2010 with all five children. They separated on a final basis on 24 November 2013 and were divorced on 4 February 2015.
As already stated, they have five children, the oldest two of whom experience some emotional and behavioural difficulties.
V and W can only be described as being estranged from their father, with W having spent no time with him essentially since separation, and V refusing to spend time with him since early 2014.
X, Y and Z have spent regular time with their father since separation, save for the period between May and August 2015 when Ms Reeve withheld them from their court-ordered time with him, resulting in a Contravention Application being filed by the father.
Ms Reeve suffers from severe chronic asthma but is otherwise said to be in good health.
Mr Reeve does not disclose any physical health problems, but declares himself highly distressed at the mother’s behaviour which he says has necessitated these proceedings.
Mr Reeve has, in the course of these proceedings, met and started a relationship with his new wife Ms D (“Ms D”). Mr Reeve and Ms D were married on (omitted) 2015, about 10 days before trial. Ms D also has five children from a previous marriage, all of whom live with her.
Mr Reeve retrained as a (occupation omitted) during the course of the proceedings and currently works in that capacity.
Ms Reeve has not re-partnered and is engaged full-time in home duties taking care of the five children.
Ms Reeve, Mr Reeve and Ms D are all practising members of the (religion omitted).
Procedural History
This proceeding was brought by Mr Reeve filing an Initiating Application in the Family Court of Australia on 9 April 2014.
In that Application, Mr Reeve sought final orders that the parties have equal shared parental responsibility for the children and that changeovers take place either after school or at 4:00 p.m. “each Friday”. He otherwise sought “such other (final) orders as this Honourable Court deems fit”.
He also sought interim orders that the children’s names be placed on the Watch List, that their passports be delivered to the Court’s Sydney Registry, that the mother be restrained from removing the children from Victoria, and for equal shared care of the children once the father had secured “suitable accommodation”.
In addition, Mr Reeve sought specific orders in relation to W’s care and information about her medical, psychological and psychiatric treatment.
That Application came before Registrar Moser on 7 May 2014 when it was adjourned to allow Ms Reeve to seek legal advice.
The matter returned before Registrar Field on 11 June 2014, where the proceedings were transferred to the Melbourne Registry of this court, an order was made for the appointment of an Independent Children’s Lawyer, and the mother was ordered to file a Response, any relevant Affidavit and a Notice of Abuse or Family Violence or Risk of Family Violence by 13 June 2014. The father was ordered to file any further affidavit material by 4 July 2014.
The mother filed her Response, an affidavit in support and a Notice of Risk of Child Abuse, Family Violence, or Risk of Family Violence on the date of that hearing, 11 June 2014.
In her Response, Ms Reeve sought final orders for sole parental responsibility for the children and that the husband spend time with the children as deemed appropriate by the court.
In addition she sought interim orders that the children live with her and that they spend time with the father on alternate weekends from Friday to Sunday and on each Thursday evening, together with specific orders in relation to changeover, an order for section 11F counselling and a family report, mutual non-denigration orders, an order for the father to attend a men’s behavioural change program and specific orders in relation to communication between the parties.
The matter first came before me on 25August 2014 in the duty list as a result of which I sent the family to section 11F counselling.
On 28 August 2014 the parties returned to Court after the section 11F counselling with a written memorandum from Family Consultant Ms K, and the matter was adjourned to 6 November 2014 for an interim hearing.
On 6 November 2014, the parties were able to enter into interim parenting orders by consent. Those orders included a restraint on the parties removing the children from the state of Victoria without the consent in writing of the other and a full itinerary and contact details being provided.
They also included provision for the father to spend time with the three younger children each alternate weekend from Thursday at 4:00 p.m. until the commencement of school on Monday and on each intervening alternate Thursday at 4:00 p.m. to 7:45 p.m.
There was also specific provision for time to be spent between the father and the three younger children (but including V and W if they so wished) from 3:00 p.m. on Christmas Day to 7:30 p.m. on Boxing Day 2014 and each alternate year thereafter, and from 9:00 p.m. on Christmas Eve to 3:00 p.m. on Christmas Day in 2015 and in each alternate year thereafter, as well as specific provision for time at Easter in each of 2015 and 2016.
Significantly, there was an additional provision in relation to the time specified for Christmas and Easter which was stated as “or as agreed between the parties in writing”.
On 28 November 2014 Mr Reeve filed an Application for Divorce.
The matter again came before me for mention on 28 January 2015 where I made specific Orders relating to the children’s involvement with the (omitted) Early Life Mental Health Service (“(omitted)”) (omitted) Neurodevelopmental Psychiatry Team, family therapy and the preparation of a Family Report. The matter was also set down for trial on a date to be fixed at this time.
A Divorce Order was made on 4 February 2015, that Order becoming effective one month later.
On 22 May 2015 Mr Reeve filed a Contravention Application and that matter came before me in the duty list on 7 July 2015.
The Contravention Application was heard on 10 July 2015 but I reserved my decision to the trial.
The matter again came before me in the Duty List on 17 August 2015 where I made specific parenting Orders including a Recovery Order if the children were not provided for time with the Father on the next scheduled weekend.
On 7 October 2015, I made procedural Orders in chambers relating to the filing of material.
On 12 November 2015 the father filed an Amended Initiating Application, wherein he sought orders in the first instance that all five children live with him, or in the alternative that all the children but for W live with him, or in the alternative that the three younger children live with him.
He proposed that the children spend time with their mother on alternate weekends from Thursday evening to Sunday evening, from Thursday evening to Friday morning in the intervening week, and for half of all school holidays.
He also sought specific orders as to the place and time of changeover.
In addition, Mr Reeve sought an injunction restraining the mother from removing the children from the Greater Melbourne Metropolitan Area.
The matter then came before me for trial on 23 November 2015 and ran for two-and-a-half days. Witnesses were the father and mother, Mr Reeve’s new wife Ms D, family reporter Ms J (“Ms J”) and Ms Reeve’s aunt, Ms G (“Ms G”), who gave her evidence by telephone. All witnesses underwent cross-examination.
On the last day of trial, 25 November 2015, I made interim parenting Orders relating to the time the children would spend with the father over the Christmas and Easter periods, as well as the upcoming summer holidays. I otherwise confirmed that previous orders were still in force and reserved my decision.
I note that the father issued an Application in a Case on 5 July 2016 in relation to enforcing current orders governing his time with the children, but other than to ascertain the nature of the application I have not read it nor its accompanying affidavit. That application was heard by another judge and has been finalised.
However, the father filed an application for a Recovery Order on 6 September 2016. As I was in the process of finalising this judgment at that time, I did not read the documents and the matter was heard by another judge. At the time of writing this judgment I am unaware of the outcome of that Application.
Issues and Evidence
A. Whether allegations of family violence made by the mother against the father are supported by the evidence
There are two salient reasons why it is important to establish whether family violence has occurred in the course of a relationship in family law proceedings.
The first relates to the question of who should bear parental responsibility for children, and the second relates to the factors to be taken into account when the court is deciding what orders might be in children’s best interests.
In these proceedings the mother has made allegations of physical, emotional, verbal, sexual and financial abuse against the father.
She has made two applications for Intervention Orders against him resulting in Interim Intervention Orders being made on an ex parte basis.
In addition, she has reported some nine breaches of those interim intervention orders resulting in the father being charged with multiple offences.
Ms Reeve also alleges that Mr Reeve has committed family violence against children.
The father, while acknowledging that the parties regularly argued with raised voices, and that he was the more disciplinarian parent, denies all allegations of family violence, and is specifically adamant that no physical or sexual abuse occurred during the marriage.
The mother’s evidence
The mother filed the following evidentiary documents in these proceedings:
· two affidavits sworn by her, the first on 10 June 2014 and the second on 29 June 2015;
· an affidavit sworn by her aunt, Ms G on 9 October 2014;
· a Notice of Child Abuse, Family Violence, or Risk of Family Violence filed in the Family Court of Australia on 11 June 2014; and
· a Notice of Risk filed on 6 July 2015.
In her first affidavit, sworn 10 and filed 11 June 2014, Ms Reeve makes allegations against Mr Reeve in the following terms:
· that he forced her to have sexual intercourse with him on more than one occasion during the marriage and would taunt her about sexual abuse she suffered as a child if she refused him;
· that throughout the marriage he was controlling about the family finances and accused her of lying about what money she had spent;
· that he would “continually tower over the children in an aggressive and intimidating manner”, and that he would physically and roughly take objects from them;
· he was uncaring and dismissive about a major asthma and chest infection episode she suffered in October 2013, and that he refused to give her prescribed medication on more than one occasion;
· that while attempting to discipline V on 23 November 2013, he chased her around the dinner table and then jumped onto the table in an attempt to reach her on the other side;
· that on 30 November 2013, about a week after separation, she discovered that he had withdrawn all but $127 from the parties joint account, and it is her evidence that he told her that he had done so in order to prevent her from taking the children to (country omitted);
· that he had not properly supported the children financially after separation and that she had been forced to ask her family for assistance, and to approach church leaders to ask them to get Mr Reeve to provide money for food and petrol; and
· that after separation he attended at the family home unannounced on multiple occasions, causing her to fear for her safety.
In her second affidavit sworn and filed on 29 June 2015, which Ms Reeve appears to have drafted herself, she sets out an incident which occurred at changeover in a cafe on 14 May 2015 where the parties argued about whether the three youngest children should be allowed to finish eating a snack their mother had bought them, the father interpreting her having bought the snack as an intrusion upon his time with the children. Ms Reeve alleges that Mr Reeve spoke to her and the children aggressively, and had “grabbed Y and Z”.
It was after that incident that Ms Reeve ceased all contact between the children and their father until the matter came back to court some three months later.
She makes further allegations that the father was “rough” with the children both during the marriage and after separation, including that he had injured Y’s arm on one occasion, that Z had complained of being grabbed, and that the father had thrown V onto her bed and left her in the garage as a punishment.
At trial, Ms Reeve simply confirmed that her affidavit evidence was true, but acknowledged that she had never sought to have Mr Reeve charged with assault, either of her or of the children.
She insisted under cross-examination that she had never said that Mr Reeve had “sexually assaulted” her, but then asserted that he had “forced himself on her” during the marriage, and that she had reported those incidents to her bishop while the parties lived in (country omitted).
It was her evidence that as a result of those reports Mr Reeve had been disciplined by the Bishop, although further cross-examination elicited a concession that he had not been excommunicated from the church and had not been bought before a disciplinary council.
The aunt’s evidence
In her affidavit sworn 9 and filed 20 October 2014, the wife’s aunt, Ms G, who had been a (occupation omitted) before having her own children, describes what she calls inappropriate discipline being visited upon the children by Mr Reeve.
She says that in October 2013 she was visiting the family so that she could look after Ms Reeve who had been discharged from hospital to recover at home after being “very ill with asthma and pneumonia”.
She describes Mr Reeve as pressing Ms Reeve to talk about their relationship while she was ill, and that he had “showed no interest in assisting her or learning how to help her in her condition”.
She sets out an incident where Mr Reeve yelled at V and locked her out of the house in the rain for some two hours while V “was sobbing at the door continuously begging to come in and that she was sorry”.
In addition, Ms G describes the family going out for dinner where Mr Reeve had removed first Z and then V from the table and each had returned to the table crying. Ms G says that she could not understand why the children had been removed from the restaurant as neither had been misbehaving.
At trial, where Ms G gave evidence by telephone from her home in (omitted), she denied that it had been impossible or inappropriate for Mr Reeve to speak to the mother at all when she had been ill, but that Ms Reeve had been having trouble breathing and was in some distress. It was her evidence that she had not taken Ms Reeve to the hospital or called an ambulance because she did not believe that she was ill enough for that kind of intervention.
Under cross-examination from the father’s counsel, Ms G said that she had not been aware of the reason for Mr Reeve disciplining V at the family home, and conceded that while she had seen Mr Reeve and V go past the door of the room she was in, she had not seen Mr Reeve take V outside.
She confirmed however that she had heard V crying and calling out that she was sorry, and that V had been outside for two hours in the dark and the rain.
She confirmed her evidence that she had seen no reason for the father to discipline V and Z at the restaurant.
She further stated that Ms Reeve had told her that Mr Reeve had not been giving her enough money to survive on and that she had been obtaining assistance from various welfare organisations.
The father’s evidence
Mr Reeve, not unsurprisingly, denies any allegations of abuse either in relation to the mother or his children.
He filed six affidavits during the proceedings, although several of those repeated evidence from previous affidavits.
It is in his second affidavit, sworn 4 and filed 7 July 2014, that Mr Reeve specifically denies the allegations made by the mother on this issue.
He denies that he had harassed Ms Reeve by sending her multiple text messages, and states also denies that any messages he had sent her had been “intimidating, abusive or threatening”.
He answers the mother’s allegations of his uncaring attitude when she was ill in October 2013 by saying that he had stayed up with her until about 4:00 a.m. when he could no longer remain awake. It was only then, he says, that Ms Reeve had called a third party to take care of her.
He concedes that he removed money from the parties’ joint account at the time of separation because he was concerned that Ms Reeve might remove the children to (country omitted). He otherwise denies all allegations of family violence “as strongly as I possibly can” and says that it was very hurtful that the mother of his children would say such things about him.
He acknowledges that he and Ms Reeve regularly discussed their relationship throughout the marriage, saying that they often stayed up late at night to do so, but that those conversations sometimes ended in arguments, he says because of both parties becoming frustrated and tired and the mother’s thought processes becoming disoriented.
He says that he was never abusive or threatening to Ms Reeve, but acknowledges that she may have felt “threatened” by the fact that he did not agree with her.
Indeed, he acknowledges that he and Ms Reeve engaged in arguments where one or both parties frequently raised their voices in front of the children, and he expresses his regret about those incidents and appears to take full responsibility for his part in them.
It is his evidence that his religious beliefs are extremely important to him and that it would be a betrayal of his personal commitment to those beliefs for him to abuse the mother in any way.
He then goes on to say, at paragraph 23:
What I can say is that communications between Ms Reeve and I have been bitter and at times I have been very dismissive of her. She is sensitive to this and reacts by accusing me of neglecting or abusing her. I do regret the way I have spoken to her on many occasions as it is not in keeping with the person I should be. However I would never ever abuse her, strike her, threaten her or anything of that nature.
In relation to the allegations of sexual abuse Mr Reeve says that he is “in utter disbelief” that Ms Reeve would make such an allegation against him. He “completely and unreservedly” denies that allegation and says that all sexual contact between the parties was consensual.
Mr Reeve acknowledges that the mother had made such allegations early in their marriage and that she had reported the allegations to church authorities. However, it is his evidence that none of those complaints had been acted upon by the Church leadership. He describes himself as being “shocked” and “deeply upset” by those events.
It is his opinion that the allegations arise from Ms Reeve’s experience of sexual abuse as a child.
In relation to allegations of financial abuse, Mr Reeve says that since the family moved to Australia, Ms Reeve “has been spending more than I earn”.
It is his evidence that whenever he tried to raise the subject of the family finances with the mother she became resentful towards him and refused to speak to him about it. He says that the arguments arising from those issues were causing him great stress and that eventually he gave up trying to influence her spending patterns.
In response to an allegation of physical abuse which Ms Reeve says happened in November 2011, Mr Reeve acknowledges that the parties had grappled with each other over a mobile phone, and that the police were called, but says that the police view was that the matter had been “blown out of proportion” and that no further action had been taken.
In relation to his discipline of the children, Mr Reeve acknowledges that he is the more disciplinarian parent, but is critical of the mother’s permissive parenting. He says that he spoke to the children sternly when they misbehaved and explained to them that their behaviour was unacceptable. He acknowledges that the children did not like it when he spoke to them in this manner, but asserts that his discipline of them has always been appropriate, save for one time when he felt he had been a little harsh on V and had apologised to her as a consequence.
At trial, the mother, who was unrepresented, did not cross-examine Mr Reeve about the issue of family violence save in relation to the events of 14 May 2015 at changeover.
Mr Reeve was adamant that his version of events, which involved Ms Reeve attempting to prevent the children from leaving with him on that day, was correct.
Under cross-examination by counsel for the Independent Children’s Lawyer, Mr Reeve denied allegations that he had pulled the mother’s hair during the marriage, saying that the only time he had physically touched her in anger was when they had “tussled” for his mobile phone.
It was his evidence that other than on that occasion, he did not accept that there had been physical conflict between him and the mother, although there had been considerable verbal conflict. He acknowledged that exposing children to such verbal altercations was not good for their emotional development and described both parties as having been “hypocritical” in relation to that issue.
He further denied leaving the children on the side of the road when they were misbehaving, saying that he may have told them to get out of the car until they calmed down on occasion, but that he had never left them behind.
He also denied that he had been an uncaring husband when Ms Reeve had been ill and said that he had never refused to help her at those times.
However, when referred to paragraph 31 of the family report, where Ms J reports Ms Reeve as alleging that he had held the children’s mouths closed forcefully to prevent them from speaking, Mr Reeve acknowledged that he had done that, but only with V and W when their behaviour had escalated and they were shouting and screaming. It was his evidence that he would usually send them to timeout on those occasions, and that that timeout was sometimes spent in the garage, but that there were times when both V and W needed to be physically restrained, and that as a last resort he had occasionally placed his whole hand over their mouths.
He further acknowledged that he had sometimes taken a child by the arm or hand to get them into timeout, but only when their behaviour was very serious, and he denied that he had hurt them in the process.
Mr Reeve conceded under questioning that he had never sought assistance from any source in relation to learning nonphysical means of discipline of the children.
Intervention Order and criminal proceedings
Ms Reeve first applied for an Intervention Order against Mr Reeve on 10 December 2013 shortly after separation. She obtained an Interim Order on that day on an ex parte basis and the proceedings were adjourned for further hearing in May 2014.
On 13 May 2014 Mr Reeve was charged with breaching that order by attending at the family home on 27 January 2014. That charge was heard on 22 May 2014 and resulted in a 12 month adjournment with an order that if there were no further offences the charge would be dismissed and no conviction recorded.
On 28 May 2014 the mother’s Intervention Order application was listed for hearing but Ms Reeve did not attend saying that she was at the hospital with W who had had a “rage”. The application was then adjourned to 6 August 2014.
On 6 August 2014 both parties attended court, with both being represented by counsel, and after Ms Reeve had given her evidence in support of her application the presiding magistrate dismissed the application as her evidence did not meet the requirements of the Family Violence Protection Act 2008 (Vic) (“the FVPA”). Not only was Mr Reeve not required to defend the application but his counsel was not required to cross-examine Ms Reeve before the matter was dismissed.
Mr Reeve obtained an audio recording of those proceedings on compact disc and transcribed the contents of the disc himself as it is his evidence that the Magistrates’ Court of Victoria does not provide transcripts of proceedings other than committal hearings. He annexed his transcription of the contents of the compact disc to his affidavit sworn 3 November and filed 5 November 2014. Neither Ms Reeve nor the Independent Children’s Lawyer took any issue with the admission of that evidence in these proceedings.
The magistrate who heard the mother’s application on that day was quite scathing about the proceedings, saying that under the FVPA Mr Reeve simply had no case to answer.
He said the following in relation to the mother:
I think that accusation evidences the stress that the applicant is suffering as well, that it has corroded her judgement about the way people should be acting and it’s caused her to take a highly subjective view and an unjust view of other people’s behaviour and caused her to strain for an order against all the odds.
And later:
The sentiment that this has “all been blown out of proportion” is perhaps the only other thing which might usefully be said about this. Yes it is indeed “blown out of proportion” but unfortunately I think that’s by the applicant. I think that I’ve averted to the fact that the views taken are very subjective and perhaps exhibit a controlling personality and I think that’s right – it has been “blown out of proportion”.
He described Ms Reeve’s views as “frankly, quite skewed” and referred to her judgment as being unable to be trusted.
On 18 October 2014 Mr Reeve was charged with a further eight breaches of that initial Interim Intervention Order by sending text messages to the mother and to a third party, by approaching the children at church and at one of Z’s (hobby omitted) games.
Ms Reeve had made the complaints which led to those charges in late September 2014, some six weeks after the magistrate had dismissed her application for a final Intervention Order.
On 11 November 2014 the mother again obtained an Interim Intervention Order against Mr Reeve on an ex parte basis.
Both the criminal charges and the application for a final Intervention Order came before the Magistrates Court of Victoria on 2 April 2015. The magistrate was the same magistrate who had dismissed the first Intervention Order application on 6 August 2014.
The criminal charges were either withdrawn or consolidated and no conviction was recorded against Mr Reeve.
The second Intervention Order application was dismissed by the magistrate without a trial, presumably on the grounds that the Application did not disclose a legal basis for an order to be made. In addition, it is Mr Reeve’s evidence, not contradicted by Ms Reeve, that the magistrate placed a note on the court file preventing Ms Reeve from making further Intervention Order applications without due cause.
At the time of trial there had been no further applications for Intervention Orders between the parties.
The Family Report
When interviewed for the family report, Mr Reeve told Ms J:
13. […] With regard to the parenting issues, we had totally different views. She was a very controlling parent. If we disagreed, there was no reasoning or compromise. It is her way or no way. With Ms Reeve, if you disagree, she thinks you are arguing with her. If I raise my voice, she says that I’m violent. We had arguments like any normal family. I never thought it was as bad as she now makes it to be in her affidavits.
His statements about the mother’s specific allegations were consistent with his affidavit material in that he categorically denied perpetrating any violence against Ms Reeve.
Ms J records the following in relation to her interview with Ms Reeve:
30. Ms Reeve alleged that Mr Reeve had anger management issues and he was not respectful of her emotional needs. She stated that on many occasions during the relationship he was aggressive with her and had insisted on having sex with her when she had clearly indicated that she was tired and not interested.
31. […] She tearfully stated that “Closing children’s mouths forcefully so that they don’t speak up or grabbing them to make them do what you want them to do and chucking the children in the garage as a disciplinary measure is not good parenting”.
When the children were interviewed, Z referred to wishing to see his father only when Mr Reeve was “less stressed and less angry”, while stating that he loved his father and missed him.
X reported that “Mr Reeve had a quick temper and sometimes yelled at the children” but that she still wished to have a relationship with him.
V told Ms J that “Mr Reeve’s way of showing love was to hit and control the children. She did not wish to ever see him again and she did not even like hearing her father’s name”.
Y is not recorded as having said anything about her father’s behaviour in relation to this issue, and W did not engage with Ms J at all when brought to see her.
Ms J’s observations of the three younger children with their father disclosed no fear on their part and she records the following:
66. […] The children stated in unison that they missed Mr Reeve and wish to spend time with him as before. They indicated to their father that they had done lots of artwork that they had already given to the writer expressing how much they missed him and that they wished to spend time with him.
67. The twins and Z separated from their father after exchanging hugs and kisses.
Decision Issue A
Mr and Ms Reeve married relatively quickly after their relationship began, and then had five children in the first six years of their marriage.
They have very different personalities, and in particular appear to have very different ways of coping with stress and conflict.
Ms Reeve presents as a sensitive and caring mother who struggles with the care of the five children in the context of W’s extreme emotional and physical outbursts.
When conflicts arise it is her preferred response to talk about the issues at length and in detail, which in some circumstances may be a very positive thing.
However, her personal presentation is of some considerable concern to the court. At trial she was at times unable to answer questions directly, and appeared to change her evidence when challenged on several occasions.
In support of his case, Mr Reeve filed an affidavit sworn by Ms Reeve’s brother Mr S on 3 July 2014. Mr S describes the parties having “largely the same recollection” about a particular incident but that they “had different opinions and slants on it. However, Ms Reeve’s version of the events did continue to change and she spoke vaguely and in a noncommittal way”.
I must say that my experience of Ms Reeve both at the bar table and in the witness box supports that view.
At times she was coherent and cogent in her argument, but at others she seemed somewhat bewildered by the situation in which she found herself and experienced difficulty in expressing herself clearly.
Mr Reeve impresses as a man who sees himself as a moral and upright person but who has his own vulnerabilities.
On his own evidence he has treated the mother of his children in a dismissive and controlling manner, and while he denies all allegations of sexual or physical abuse, it is clear from all the evidence before the court that he has engaged in financial abuse at least on one occasion, and verbal and emotional abuse, all of which fall under the definition of family violence set out in s. 4AB of the Family Law Act 1975 (Cth) (“the Act”).
In addition, he conceded that he had engaged in physical restraint of both V and W by placing his hand over their mouths. And the description by Ms G of V being locked out of the house in the dark and rain while sobbing and pleading to be let in paints a chilling scene indeed. Perhaps this is the occasion on which Mr Reeve felt the need to apologise to V for being too harsh on her.
Nevertheless, I note the comments of the presiding magistrate during the hearing of the mother’s Intervention Order application on 6 August 2014.
Therefore, I find that there have been multiple occasions of family violence between these parties as defined in the Act, and that the verbal and financial abuse perpetrated by the father, and the controlling behaviour exhibited by the mother in relation to the father’s time with the children have created great difficulties for this family.
However, on the balance of probabilities, I cannot find that the specific allegations made by the mother against the father in relation to physical or sexual abuse of her are supported by the evidence before the court.
I do find that Mr Reeve has behaved in an inappropriate and excessively disciplinarian fashion towards the children on occasion. I will therefore require him to attend a post-separation parenting course, perhaps the “Roadworthy for Dads” program at LifeWorks (omitted). I will make this order with particular regard to his evidence that he has never sought any assistance with finding non-physical ways to discipline his children.
B. Whether the parties ought to share parental responsibility for the children or whether that responsibility should rest with the mother alone
Before I address this issue directly I will set out for the benefit of the parties the provisions of s.60B of the Act, which contains the legislative principles and objects governing orders made in relation to parenting matters.
Section 60B(1): The objects of this part are to ensure that the best interests of children are met by:
(a) ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b) protecting children from physical or psychological harm from being subjected to, or exposed to, abuse and neglect or family violence; and
(c) ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d) ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
Section 60B(2): the principles underlying these objects are that (except when it is or would be contrary to a child’s best interests):
(a) children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
(c) parents jointly share duties and responsibilities concerning the care, welfare and development of their children; and
(d) parents should agree about the future parenting of their children; and
(e) children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).
Mr Reeve seeks an order for equal shared parental responsibility for all five children.
Ms Reeve seeks an order that such parental responsibility rests with her alone.
The Law
The law relating to parental responsibility for the children of separated parents is found in Division 2 of Part VII of the Act, and more particularly in ss.61C and 61DA.
Section 61C(1) and (2) state that each of the parents of a child who has not reached the age of 18 years has parental responsibility for the child, whether or not the parents are living together, are married, or have separated.
In Note 1 attached to s.61C(1), the Act makes clear that the above statement simply states the legal position that exists unless and until an order to the contrary is made by the court.
Section 61 DA states as follows:
(1) When making a parenting order in relation to a child, the court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
(2) The presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parents family (or that other person’s family); or
(b) family violence.
Subsection 4 of s.61DA states that the presumption may be rebutted by evidence that satisfies the court that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
I have already found that both parties have engaged in family violence of differing kinds and degrees both during the relationship and immediately after separation.
Therefore the presumption does not apply in this case by operation of s.61DA(2)(b).
However, that does not mean I cannot make an order for equal shared parental responsibility if I find that it is in the best interests of the children to do so.
The Best Interests of the Child
s60CA of the Act states clearly that when making any parenting order, a court must take the child’s best interests as its “paramount consideration”.
S60CC then sets out 16 separate factors that the court must consider when deciding what orders might be in a child’s best interests and I will address each of those in turn.
S60CC(2) sets out two “primary considerations”, they being:
(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.
Note: Making these considerations the primary ones is consistent with the objects of this Part set out in paragraphs 60B(1)(a) and (b).
(2A) 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).
The meaning of the term “meaningful relationship” has been discussed in many cases before this court and the Family Court of Australia since this term was included in the Act in 2006.
In an oft-quoted passage from her judgment in Mazorski v Albright (2008) 37 FLR 518 Brown J said, at paragraph 26:
a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitative one.
I infer from that passage that Her Honour is saying that the “meaningfulness” of a relationship depends not on the amount of time the child spends with each parent but on the quality of that time.
In Tait & Densmore (2007) FamCA 1383, Cronin J considered the distinction made by Kay J in Godfrey & Sanders (2007) Fam CA 102 between an optimal relationship and a meaningful relationship, and said, at paragraph 170:
Kay J distinguished between the optimal relationship and the meaningful relationship. … The distinction is clear. An optimal relationship is one which is second to none, unmatched and unequalled. That cannot be what the legislation intended. To be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child… Those adjectives mean that children need their parents to lead by example about self-discipline. Children need to learn to develop the ability to relate to others. They need to learn about the privileges and responsibility which will devolve upon them as parents. Those are fundamental parts of the meaningful relationship.
That is, in the context of this case, if the relationship between the children and their father can be said to be important, significant, valuable, healthy, worthwhile and advantageous to the children, and Mr Reeve is able to “lead by example” in that relationship, then the benefit to the children in maintaining and developing that relationship must be a primary consideration of the court in considering what is in his best interests.
I have already dealt with the issue of family violence and note that all the children, including V and W, need to be protected from it. Physical discipline ought not to be part of any relationship between parents and children.
I note further that exposing children to family violence is an act of child abuse in itself under s4 of the Act.
S60CC(3) then sets out 14 “additional considerations” as follows:
(a) any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views;
V and W have expressed clear views that they do not want to pursue a relationship with their father. I note that they are 14 and 13 years old respectively, and while both suffer from some particular psychological and behavioural problems, they are old enough for their views to carry some considerable weight.
That is a source of great distress to Mr Reeve, but, in what I see as a very child-focussed view, he has decided not to seek orders which force them to spend time with him.
X, Y and Z have all expressed a wish to continue to spend time with their father and indeed for that time to be extended. X and Y are eleven years old and Z is nine. There is no suggestion that their views have been influenced by anyone and while they do not hold the weight of those of their older sisters, they are certainly to be seriously considered.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The evidence of the family reporter is that all five children have a very close and loving relationship with their mother. Her commitment to and care of the children, even considering the difficulties she faces in relation to the behavioural problems of the older two children, is said to be exemplary.
There is nothing in any other evidence before the court which would indicate that the relationship between the children and their mother is anything but positive and caring. If anything, there is some evidence that those relationships are too close, and that Ms Reeve might need to step back a little so that the children can explore their world in a more independent manner.
I have already stated that the relationship between the father and V and W is essentially non-existent at this time. W has not spent time with her father since separation in late 2013 and V ceased spending time with him in early 2014.
The relationship between Mr Reeve and the younger three children is much more positive. They spend regular time with him, and apart from all exhibiting some concern about his tendency to anger, all three express and exhibit a close and loving relationship with him.
(c) the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii)to communicate with the child;
Ms Reeve obtained an Interim Intervention Order against Mr Reeve within a month of separation. It is his evidence that the existence of that order, and particularly the fact that he was charged with criminal offences alleging that he had breached that order, served to make him very wary of approaching Ms Reeve in relation to participating in major long-term decisions about the children.
It is his further evidence that Ms Reeve actively excluded him from obtaining information in relation to V and W’s health that might have allowed him to take the opportunity to participate in making those decisions.
Nevertheless, Mr Reeve has persisted with these proceedings, indicating a clear will to be involved in those decisions, and there is some evidence that the parties have been partially successful in being able to make those decisions together.
However, in practical terms, decisions in relation to the children’s health, and particularly in relation to interventions made by mental health professionals with V and W, have been made by the mother.
The mother spends time with the children every day. She is their primary carer and the parent to whom they have their primary attachment. Indeed, she has devoted her life to the care of her children.
If anything, it could be said on the basis of the evidence before the court that she over-communicates with them, both in terms of the content of her conversations with them and of the depth of those conversations.
The father initially spent as much time with the children as the mother allowed him after separation, and he has instituted these proceedings in order to ensure that he spends time and communicates with them as much as is possible and appropriate in all the circumstances.
Neither parent can be said to have been neglectful in terms of the amount of time they have either spent, or sought to spend with these five children.
(ca) the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The children are supported by the mother with the assistance of Commonwealth benefits and child support paid by Mr Reeve pursuant to an assessment from the Department of Human Services (Child Support).
In the course of the proceedings, Mr Reeve has changed professions and now works as a (occupation omitted). The decrease in his annual income which results from that change means that he pays less child support now than he did immediately after separation.
(d) the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or Her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
Mr Reeve’s formal application to the court is for residence of all five children, or in the alternative of V and the younger three children, or in the alternative of the younger three children.
Orders in terms of any of those options would result in major changes to the affected children’s circumstances, and would result, at least on a day-to-day basis, in separation from their mother who has been their primary carer all their lives.
In her family report, and in oral evidence at trial, Ms J was very clear that she thought it would be detrimental to any of the children to be removed from their mother to live with their father full time.
(e) the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
These parties live relatively close to each other, and Mr Reeve’s evidence, and the evidence of his wife Ms D, indicates that he intends to remain in the area where the children attend school so that there will be as little disruption to their lives as possible.
Property proceedings, which were instituted after the conclusion of this trial, may result in the mother being forced to move, although that issue was not canvassed at trial.
Indeed there was no suggestion that there would be any practical difficulty or expense of any of the children spending time and communicating with Mr Reeve into the future.
(f) the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
There is no suggestion that either parent does not have the capacity to provide for these children’s material needs. They are well sheltered, well fed and well clothed.
It is in the area of the children’s emotional and psychological needs that the court has some considerable concerns.
The evidence before the court, particularly that of Ms J, indicates that until orders were made in August 2015, Ms Reeve was not able to facilitate the children’s relationship with their father.
She saw little value in that relationship, and made decisions about the children’s welfare and day-to-day care which at times excluded Mr Reeve from their lives and affected his relationship with them, including her trip to (country omitted) in 2014 – 2015 and her ceasing their time with him altogether between May and August 2015.
W’s extreme behaviours indicate enormous distress on her part, and may be seen as her way of expressing her feeling that her emotional needs are not being met.
When Ms J was asked at trial what the implications for the children might be if their mother did not facilitate their relationship with her father, she said that at first they would be sad, then they would be angry with their mother, that there would be a negative impact on their self-esteem and self-image, possible behaviour problems, and that they could become distant from their mother, especially Z, and that all the children needed a sound father figure/role model in the context of the life choices they might make in future. She said that without a relationship with their father, all the hard work the mother had put in in caring for the children over the years under very difficult circumstances might amount to nothing.
She was also very clear that similar outcomes might be expected if the conflict between the parties continued because the children would not have permission to love both parents. It was her evidence that there was a risk to their emotional and psychological health, and that their sense of belonging and identity could be negatively impacted if they did not feel they had that permission from both parents.
What is also clear from Ms J’s evidence is that she believes that Ms Reeve has not emotionally separated fully from Mr Reeve. It was her evidence that it would be difficult for Ms Reeve to fully appreciate the emotional needs of the children, and to meet those needs, unless and until she is able to deal with that issue. She recommended that Ms Reeve attend counselling, although she was not overly optimistic about the outcomes of that process.
Mr Reeve’s behaviour too could be said to indicate some lack of capacity to fully meet the emotional needs of the children.
His quickness to anger, for instance, and his view that bitter verbal arguments are a normal part of relationships, could be said to have a negative emotional impact on the children. However, in his affidavit material and in his oral evidence, as well as in what he said to Ms J, he displays some insight into the impact of that behaviour on the children and into his need to control it to some extent. The court is encouraged by that insight.
If these parties are to be able to fully meet the emotional needs of their children they will need to attend counselling and/or family therapy.
They have attempted to do so through the mediation of Mr P, a psychologist who is also a member of the (omitted) Church.
However, the evidence before the court is that those communications have been fraught with misunderstandings and delays in providing information, and it was the view of Ms J that if the parties were to undergo counselling they should find a different counsellor.
For a short time, the parties were seeing counsellors as part of W’s treatment by (omitted) Mental Health Service. However, it is the evidence of both Mr and Ms Reeve that Ms Reeve withdrew from that situation as she preferred the parties to see Mr P. (omitted) Mental Health Service were somewhat critical of her as a result of that decision although of course they were not in any position to force her to continue.
The court has considerable concerns therefore about the parties’ and particularly the mother’s capacity to meet the children’s emotional needs.
Both parties are intelligent and educated people and there does not seem to be any difficulty in them meeting the children’s intellectual needs.
(g) 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;
The court has some concerns about the maturity of both parents in these proceedings. Neither is able to handle frustration particularly well, Mr Reeve resorting to anger and Ms Reeve to a kind of bewilderment and powerlessness, if situations arise over which they feel they have no or little control.
While V has been diagnosed with a mild form of Aspergers Syndrome and W’s emotional and behavioural problems might indicate a certain lack of maturity on her part, both are still teenagers and if their parents can reduce or remove the conflict currently existing between them, it may be that both girls can develop the maturity they will need in order to participate in the world as adults.
The three younger children are said to display normal levels of maturity for their ages.
Ms J was concerned particularly that Z’s sex is a circumstance which makes it even more important for him to have a positive male role model in the form of his father, although she was adamant that the four girls too would benefit from his presence in their lives.
In terms of cultural background and traditions, these children have a rich combination of (omitted) and (omitted) heritage. They deserve the opportunity to explore all of those cultures and traditions in order to solidify their sense of identity in the world.
There is no evidence before the court that that opportunity is denied them.
(h) if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
There is no evidence of any Aboriginal or Torres Strait Islander background in this family, and I have considered issues in relation to their (omitted) and (omitted) heritage in paragraph 205 above.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
These parents’ differing parenting styles are perhaps at the core of these proceedings. Mr Reeve is a rather strict father, although he appears to have mollified his attitude to that issue during the course of the proceedings, and Ms Reeve is warm and kind, but perhaps overly attentive to the children’s wishes.
Her sense of bewilderment about what to do in crises indicates an abdication of her responsibilities as the children’s parent, and particularly as their primary parent.
If it were not for that sense of bewilderment, displayed at every court appearance she has made before me, I would consider her attitude to her parenting responsibilities to be deliberately avoidant and unsatisfactory, but only on the issues of the children’s relationship to their father and counselling both for W and the parties.
Mr Reeve has persisted in these and subsequent proceedings to make clear his willingness to pursue his relationship with at least the younger three children, and he should be commended for that persistence.
The fact that further proceedings have been issued by the father since the trial of this matter may indicate that Ms Reeve’s attitude to her responsibilities as parent may have continued to be less than satisfactory.
Mr Reeve alleges that she has alienated V and W from him, and there is some evidence that that is so. There would appear to be little objective reason why the two older girls are not seeing their father, again indicating a less than satisfactory level of parental competence or will on the part of Ms Reeve.
(j) any family violence involving the child or a member of the child’s family;
I have already canvassed the issue of family violence earlier in these Reasons and do not propose to repeat that discussion here.
(k) 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;
Again, I have discussed and considered this issue under Issue A above.
(l) whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The order that would be least likely to lead to further proceedings is one which the mother obeys.
I note that further enforcement proceedings have been issued in this matter since trial, although those proceedings are concluded, having been heard by another judge as my decision in these proceedings was reserved at the time.
A Recovery order application has also been very recently issued by Mr Reeve.
I will therefore need to craft clear and unequivocal orders which make the parties’ obligations crystal clear.
If the mother can obtain the counselling assistance she needs and the father can ameliorate his responses to frustration, it is to be hoped that the orders I make will be relatively simple to follow and there will be no need for any further proceedings.
(m) any other fact or circumstance that the court thinks is relevant.
The mother’s vagueness and need to discuss every issue ad infinitum is another feature of this matter which will mean that I will need to craft clear orders.
The Evidence in Relation to Parental Responsibility
It is Mr Reeve’s position that if major decisions about the children’s lives are left to Ms Reeve alone, she will use that situation to further remove him from their lives.
He says that Ms Reeve has made it difficult for him to spend time with the children, that she has effectively alienated V and W from him, and that she has not kept him informed about their welfare, particularly in relation to W’s and V’s involvement with mental health professionals.
Ms Reeve says that the conflict existing between her and the children’s father makes it impossible, or at least extremely difficult for them to agree about major issues in the children’s lives.
However, I can find no real evidence that these parties have not been able to come to agreement in relation to matters such as the children’s religious practices, or their education and extracurricular activities.
It is only in the area of medical and allied health treatment that Ms Reeve appears to have somewhat excluded Mr Reeve.
I note that Ms J recommends that the parties have equal shared parental responsibility for all five children.
I also note that between May and August 2015, Ms Reeve prevented the three younger children from spending time with their father after the argument in the cafe where she had bought a snack for the children at the time their father was due to collect them.
It was only after court orders were made on 17 August 2015 which provided for a recovery order to issue if the mother did not comply with orders made for time to be spent between the three younger children and the father on the next weekend that time between the three younger children and the father recommenced.
Ms J spoke to Ms Reeve on two occasions for the purposes of the family report, one before and one after 17 August 2015. It was her evidence at trial that on the first occasion Ms Reeve had shown little interest in fostering a relationship between the three younger children and their father, but that on the second she had expressed herself to be relieved that the court had made clear orders and that she could use those orders to influence the children’s desire to attend time with their father.
Subject to issues of safety, parents having joint parental responsibility for children is an important issue, not only to the parents who must make decisions about them, but for the children to know that both their parents are involved in the major decisions about their lives. It is a message which conveys to children that although their parents might not be a couple any more, they are still committed to being those children’s parents.
Decision Issue B
I am satisfied for the reasons set out in paragraphs 152 to 232 hereof, that it is in the best interests of all five children for their parents to equally share parental responsibility for them.
I note that s.65DAC of the Act sets out the effect of an order providing for shared parental responsibility.
S. 65DAC states the following:
(1)This section applies if, under a parenting order:
(a)2 or more persons are to share parental responsibility for a child; and
(b)The exercise of that parental responsibility involves making a decision about a major long-term issue in relation to the child.
(2) The order is taken to require the decision to be made jointly by those persons.
Note: Subject to any court orders, decisions about issues that are not major long‑term issues are made by the person with whom the child is spending time without a need to consult the other person (see section 65DAE).
(3)The order is taken to require each of those persons:
(a)to consult the other person in relation to the decision to be made about that issue; and
(b)to make a genuine effort to come to a joint decision about that issue.
Therefore, when making any major long-term decision about the children, Mr and Ms Reeve must consult with each other, in mediation if necessary, before such decisions are made, and they must make a genuine effort to come to agreement about any such decision.
C.Whether the children, or any of them, should reside with the father
Mr Reeve's Amended Initiating Application, filed on 12 November 2015, about six weeks before trial, seeks three alternative day-to-day care arrangements for the children.
First, as a primary proposal, he seeks that all five children live with him.
Second, as a first alternative, he seeks that all the children bar W live with him.
And third, as a second alternative, he seeks orders that X, Y and Z live with him.
Ms Reeve seeks orders providing for all five children to live with her.
Mr Reeve has remarried, and his wife’s five children all live with him and his wife.
When asked at trial how he and his wife might cope taking care of ten, nine or eight children on a full-time basis, Mr Reeve showed little real insight into the difficulties that any of those situations might cause to all the children, to W and V, or to the three younger children. He was overwhelmingly positive about the prospect of such an arrangement, and while he did state that there would obviously be some issues for the children in settling into a blended family, he did not seem to have considered those issues in any great detail, especially in relation to V and W’s emotional needs.
Ms D was a little more realistic in her evidence, although it was not absolutely clear how she would cope with ten, nine or eight children on a day-to-day basis.
As Ms J says:
86. […] The writer observes that since birth, Ms Reeve has provided the majority of care to the children. She presents as a resourceful, responsible and capable parent providing excellent daily care for the children. She is willing to continue in that role. Moreover the children are irrevocably attached to her on an emotional basis. The children perceive and experience their mother as the primary parent. They are familiar and comfortable with the practice. It is in their best interests to continue in her primary care on a permanent basis.
87. Moreover, V and W are unwilling to see or spend time with their father. As it is, it is not healthy for them to be separated from the younger siblings when they are with their father for the four nights of the fortnight. It would be emotionally detrimental for all the children to grow up in separate homes and it is essential that this sibling group remains without further breakdowns.
88. Furthermore, even at the present time the father is not able to provide care for the children during school mornings. It is difficult to see how he is going to be more available than the mother as a person working full time in a new career path. His current partner also has five young children and would be busy with the upbringing of her children. If Mr Reeve is serious about wanting the primary care of his three younger children, it indicates that he has limited insight about the demanding daily needs of his children and that he lacks understanding about the total welfare of his family unit.
Mr Reeve does not appear to have been asked about that email at trial.
Ms Reeve’s evidence on this issue at the trial of the contravention application on 10 July 2015 can be summarised thus:
· She believed that Mr Reeve had received her email of 5 December 2014
· She believed that he had consented to her taking the children to (country omitted), albeit with conditions as to her providing the children for time with him pursuant to the orders, she assuming that he meant that he would spend that time with the children in (country omitted).
Under cross-examination from the father’s solicitor, Ms Reeve conceded that she had agreed to the 6 November 2014 orders, that she had personally signed them after reading them, and that she was aware of the meaning of paragraph 1.
When asked if she knew what the word “restrained” meant, Ms Reeve said it meant that she was not able to take the children out of the State of Victoria “unless I abide by those conditions”.
She admitted that she had flown with the children to (country omitted) on 16 December 2014 and that she and they had remained on the (omitted) of (country omitted), visiting places of significance to her family, until 14 January 2015.
She accepted under further questioning that Mr Reeve had not received her email of 5 December 2014 and that the only notice he had received of her plans before 16 December 2014 was the letter he received from the children on 4 December 2014.
It was her evidence that she had not received Mr Reeve’s email of 5 December 2014 until 17 December 2014 when it had been passed on by Mr P.
However, she then conceded that she had received a communication from Mr Reeve, possibly by text message, on 14 December 2014, that message making clear that if she intended to take the children to (country omitted) she would need to account for Mr Reeve’s term, Christmas and summer holiday time pursuant to the orders.
That would have meant that the children would need to be in Melbourne on 18 December to spend time with their father for that weekend, and she could not take the children out of Victoria between 3:00 p.m. on Christmas Day and 7:30 p.m. on Boxing Day 2014[6]; and between 19 and 23 January 2015 during the long summer holidays[7] unless there was agreement between the parties in writing[8].
[6] Paragraph 3(b) of the Orders made by consent on 6 November 2014.
[7] Paragraph 2(d) of the Orders of 25 August 2014 as confirmed by email between the parties on 5 and 16 December 2014.
[8] My emphasis
Ms Reeve’s belief that she had Mr Reeve’s agreement in writing when she left with the children on 16 December 2014 stretches credibility, even if I accept her evidence that she did not receive his email of that date until she was already in (country omitted).
Even if Mr Reeve had made no response to Ms Reeve’s proposals as set out in her emails, she simply cannot show that she believed on reasonable grounds that she had his written consent to her leaving the State of Victoria with the children.
The emails he wrote to her make absolutely clear that she did not.
On balance, I find that Ms Reeve left the State of Victoria with the children on 16 December 2014 because that is what she had planned to do, and ultimately she did not care whether she had obtained Mr Reeve’s consent in writing pursuant to the orders of 6 November 2014.
She said at trial that she thought she was following the orders but I simply do not accept that evidence. The orders could not have been clearer and Ms Reeve cannot have genuinely believed that she had Mr Reeve’s written consent when she flew out of Melbourne on 16 December 2014. And if she did so believe, that belief was not held on reasonable grounds.
I therefore find that Ms Reeve contravened Paragraph 1 of the orders made by consent on 6 November 2014 without reasonable excuse.
The second allegation
The second allegation is that, at 9:30 a.m. on 22 May 2015 the mother breached Order 3(a) of the Orders by failing to make the children available to spend time with the father without reasonable excuse (“the second allegation”).
Paragraph 3 of the Orders made by consent on 6 November 2014 reads as follows:
3. That clause 2(a)(b) (sic) of the Interim Order dated 25 August 2014 be varied as follows:
(a) Each alternate weekend from Thursday 4:00pm until Monday before school commencing 6 November 2014; and
(b) Each alternate Thursday from 4:00pm to 7:45pm commencing 13 November 2014.
“Clause 2(a)(b)” of the Orders of 25 August 2014 provided for the children (except for V and W) to spend time with their father at specific times during school terms[9].
[9] I note that the court ordered the solicitor for the father to engross the orders made by consent on 25 August 2014 but that there is no engrossed order on the court file. Any reference to those orders is to the handwritten orders handed up on that day.
I also note that paragraph 4 of the Orders made by consent on 6 November 2014 provided as follows:
4. That in the event of an emergency or illness befalling any of the children whilst in their care, the party with the children in their care shall immediately inform the other party by telephone or text message. Both parties be at liberty to liaise with the treating medical practitioner in respect to the children.
I note that Mr Reeve does not allege a breach of paragraph 4 of the Orders of 6 November 2014, which seems a little odd given his and the mother’s evidence of the events of 21 and 22 May 2015, but nevertheless I am very aware that no such application has been made.
Mr Reeve’s evidence on this issue is again found in his Affidavit sworn and filed 22 May 2015 and in his oral evidence given at the Contravention hearing on 10 July 2015.
In his Affidavit, Mr Reeve deposes that on 21 May 2015 (the day before the alleged breach) the mother left him a phone message at 3:13 PM telling him that the children had all been ill and vomiting and that she thought they might have food poisoning. She asked whether he wished to pick them up for his time with them or whether he was prepared to leave the children with her so they could recover. She said that she would not be bringing the children to change over that day unless she heard from him about whether he wanted the time to go ahead.
Mr Reeve says that he sent a responding text at 3:39 PM saying that he would pick the children up as usual and that he would come to the family home in order to do that at 4:00 PM. He received no response to that text and assumed that he would be seeing the children that weekend as usual.
He says he went to the family home at 4:00 p.m. but no one was home. He called and texted the mother several times with no response. He drove to McDonald’s, to the parties’ church, to the mother’s friend’s home and spoke to her neighbours. He sent text messages to friends and family and telephoned “the hospital, the medical centre” and went to the police station to tell them he did not know where the mother and the children were.
It is his evidence that he did not hear anything from the mother for the remainder of the evening, and, becoming very concerned about the welfare of her and the children, he visited the (omitted) police station at 9:00 PM to report those concerns. He spoke to a certain Constable M who said she would arrange for police officers to visit the family home to check on the welfare of the mother and the children, and that she and he agreed to be in contact so that if they received any information a missing person’s report would not be made.
Mr Reeve’s evidence is that he received a call from Constable M at 10:50 p.m. to let him know that the police had visited the home and that the mother and children were there and safe. He says that Constable M told him that the children were ill, and that the mother had told her that they had just returned from hospital because W had had “an episode”.
Mr Reeve says he then sent a text to Ms Reeve expressing his disappointment at her lack of contact with him during that evening and telling her that he would be at the family home at 9:00 a.m. the following day to pick up the children. He says he received no response to that text.
When he arrived at the family home the following morning at 9:00 a.m. he says there was no answer to his knock. However, seeing the mother’s car in the driveway, he attended at the neighbour’s home where he found the mother and told her that he was there to collect the children for their weekend time with him.
He says that the mother told him that he would have to speak to the police about that and that when he reiterated that it was his weekend with the children and he was there to collect them, the mother walked past him, left the house and got into her car. It is his evidence that when Ms Reeve opened the car door he saw W and Z sitting in the car and they did not look very well. He was unable to see whether the other children were in the car because of its tinted windows. He says that Ms Reeve then drove off telling him he would have to speak to “Sergeant M” (sic).
Mr Reeve deposes that he then attended the (omitted) police station where he was told that the police could not assist him and that he should apply to the court for “redress”.
He then attended upon his solicitor and issued the current Contravention Application.
Ms Reeve does not deny that there were orders providing that Mr Reeve should have the children from 4 PM on Thursday, 21 May 2015 until the commencement of school on the following Monday. She also concedes that the children did not see their father on that weekend.
I therefore find that Ms Reeve contravened order 3(a) of the orders of 6 November 2014 by failing to provide the children for time with their father at 9:00 a.m. on 22 May 2015.
The question again becomes whether Ms Reeve did so without a reasonable excuse as defined in s.70NAE of the Act.
As already stated, Ms Reeve filed an affidavit on 29 June 2015, sworn on that day, for the Contravention hearing on 6 July 2015.
In that affidavit she sets out in some detail the events of 21 May 2015.
It is her evidence that the children had begun vomiting on the evening of 20 May 2015 and that they had not attended school on 21 May. She, however, had attended a counselling session with Mr P at 1:00 PM on that day.
She says that she took all five children in her car to a medical centre for a “walk in Doctors appointment at 3:30 PM” and that she had done so “to treat suspected Gastro or Food Poisoning for all five children”. While sitting in the car at the medical centre she had sent a text to Mr Reeve advising him of the children’s illness.
It is her evidence that she went into the medical centre to check on the appointment leaving the children in the car as they were more comfortable there and she did not want to infect anyone in the medical centre.
When she arrived at the car, W told her about Mr Reeve’s responding text message and that he intended to come to the family home.
The mother then says that W had one of her “rages” or “episodes”, screaming and yelling and generally behaving in an uncontained fashion. It is her evidence that it took about 30 minutes for her to calm W down, and that she then began to drive all the children to the Emergency Department at (omitted) Hospital “where W is usually seen by the Mental Health Team”.
It is the mother’s evidence that she was forced to stop several times on the way to the hospital because of W’s behaviour and that she and the children had arrived at the car park of the hospital at about 6:00 p.m., where “W continued to yell, scream and hit the car”.[10]
[10] I note that on that evidence it would have taken some 2 ¼ hours to drive from somewhere close to Ms Reeve's (omitted) home to the (omitted) Hospital in (omitted), a distance of about 15 kilometres.
Ms Reeve says that as she was attempting to calm W, V suggested that they all go to a drive-in movie. Ms Reeve says that suggestion appeared to distract W and she became interested in the prospect of watching a movie.
Ms Reeve says that she was physically tired at that time as she had been up most of the night before “dealing with W’s physical outbursts”.
She then drove the children to an unnamed drive-in movie theatre where W remained settled for the duration of the movie. It is Ms Reeve’s evidence that:
At this stage I didn’t want to go home in case Mr Reeve turned up and triggered another rage after W calming down. I wanted a rest and I could see the children needed a rest from W’s episodes.
The mother says that after the movie had finished she drove again to the (omitted) Hospital because W had been “yelling and screaming about going home.” She says that W calmed down within 10 minutes because she did not want to go to hospital.
The mother says that she and the children arrived home at about 9:30 p.m. It is the mother’s evidence that a family friend knocked on the door to check that she and the children were safe and told her that Mr Reeve had been trying to locate her and the children since the late afternoon. Not long afterwards the police arrived.
Ms Reeve then sets out a conversation that she had with the police, named as Sergeant A and Constable W, as follows:
Ms Reeve: “Hi Officers we are home do you think we could step outside to talk?”
I stepped outside with the children whilst [my friend and her husband] stayed inside with the children.
Ms Reeve: “Sorry Officers I’m not sure why you are here”
Constable W: “We are here to check that you and the children are alright (sic)”.
Ms Reeve: “The children had been sick the past few days and we’ve been at the Doctors and hospital tonight. I have a 12 yr (sic) old daughter that usually has violent outbursts that requires (sic) police and emergency department attendance. She has been lashing out and we’ve struggled to come home. I am concerned about their dad coming to the house again unannounced which usually sets her off.”
Constable W: “Mr Reeve has made a missing persons report for you and the children. I understand this was his weekend for the children.”
Ms Reeve: “It is his weekend but I think it is best for the children to be at home to recover”
Ms Reeve then sets out a conversation between her and Constable W in relation to possible intervention orders if she had concerns about Mr Reeve arriving at the house unannounced, and their conversation continued thus:
Sergeant A: “we do strongly advise you to txt (sic) Mr Reeve about the children.”
Ms Reeve: “I have concerns with texting messages to Mr Reeve as I usually receive multiple txt (sic) messages – and friends are asked to step away from helping. I’d prefer to communicate through a mediator. Can I ask for Mr Reeve to call the (omitted) domestic violence police at the (omitted) station”
Sergeant A: call Sergeant M (sic) before 10 PM to speak with her to sort out the communication with Mr Reeve.”
Ms Reeve: “thank you for checking on the children and I tonight.”
Ms Reeve said she telephoned Sergeant M and that after she had explained the situation in relation to sending and receiving texts from Mr Reeve, Sergeant M “suggested that I direct Mr Reeve to communicate to Sergeant M (sic)”. Ms Reeve says there was then some discussion about domestic violence services and she told Sergeant M that she already had a domestic violence worker.
It is Ms Reeve’s evidence that she then called the “Crisis Women’s Line” and “spoke to a risk assessor for a Women’s Shelter so the children could recover from sickness and dealing with W’s rages. I was booked an appointment the next morning at 9:00 AM for a phone call to be assigned a Women’s shelter at (omitted) police station (sic). I was advised to have the children pack for at least three nights and to tell no one where we were going.”
She then told the children that they would be going to “a place set up like a Motel to help look after Mums and their children” and that she had been there for help before.
At 9:00 a.m. on the following morning, 22 May 2015, Ms Reeve deposes to being at her neighbour’s home to drop off a spare key before leaving with the children when Mr Reeve arrived.
Ms Reeve then states the following:
I do not recall the same conversation as Mr Reeve, I recall the following to the best of my knowledge:
Ms Reeve: “Hi Mr Reeve, how you going?”
Mr Reeve: “I have come to pick up the children”
Ms Reeve: “sorry I know this is hard for you. The children are sick and with me recovering”
Mr Reeve: “it is my weekend. I don’t know what is happening I haven’t received any communication about the children”
Ms Reeve: “Sorry Mr Reeve, I am going to need to leave I am late for an appointment Sergeant M from the (omitted) police station can be contacted or Mr P for communication.”
I then walked off and saw Mr Reeve talking to Ms S (neighbour) and Ms R (friend) as I drove off.
At trial of the contravention application on 10 July 2015, Ms Reeve confirmed that she understood that the meaning of paragraph 3 of the orders was that X, Y and Z were to spend each alternate weekend with their father from Thursday to Monday.
Under cross-examination from the father’s counsel, she said that she might have been able to obtain an earlier appointment with a different doctor at the same medical clinic on 21 May 2015 but that she wanted the children to see their regular doctor and she had been told the doctor “would try to squeeze them in” after 3:30 p.m.
It was her evidence that it had simply not occurred to her to let Mr Reeve know the children were ill and ask him to take them to the doctor during their time with him.
When she was asked why she had not returned Mr Reeve’s call when she returned to the car, Ms Reeve said that W had kicked Z and had a “rage”, and that she had had to deal with that. There was no mention of her telephone’s battery being flat at that time, although she did say that it was flat when she arrived home later that night.
She conceded that she had not actually taken the children to see a doctor on 21 May 2015, nor had she entered the (omitted) Hospital Emergency Department. She said that she could not take W into the Emergency Department because of her behaviour but that it was not bad enough to call 000.
Her evidence about how long she and the children had remained in the hospital car park was confused, with her first saying they had been there for about an hour, but then saying that she though they had arrived at about 6:30 p.m. and left about 6:45 p.m.
She confirmed that she and the children had then attended the drive-in movie theatre and had seen the movie (omitted) before leaving for home at about 10:00 p.m. That evidence too is confused, as it is clear that they were home by that time.
I find the mother’s evidence about the events of 21 May 2015 confusing, unconvincing and unsatisfactory. There is no objective evidence that she ever was at either the medical clinic or the (omitted) Hospital or indeed the drive-in movie theatre.
Her lack of thought about the role of the children’s father in circumstances where they were ill indicates a lack of insight not only into the children’s needs but also her own, as having Mr Reeve take X, Y and Z would have eased her responsibilities for looking after V and W at that time.
Ms Reeve’s evidence about contacting a women’s crisis service on the night of 21 May 2015, while credible, simply does not make sense. She says she did so to allow the children to recover from their illness and provide some respite from W’s behaviour. Clearly it would have given the three younger children much better respite from W’s behaviour to have been with their father at that time. In addition, women’s shelters are for women escaping family violence and there is no allegation that Ms Reeve was at risk of family violence from Mr Reeve on 21 or 22 May 2015 save that she did not like Mr Reeve attending at the family home.
Pursuant to s.70NAE(5) and (6), even if I accept that Ms Reeve had a reasonable excuse at 4:00 p.m. on 21 May 2015 (and I do not on the evidence available), I cannot find that she had such an excuse at 9:30 a.m. the following morning when Mr Reeve arrived to collect the children for his court-ordered time with them.
Decision Issue E
I therefore find that at 9:30 a.m. on 22 May 2015 the mother breached Order 3(a) of the Orders by failing to make the children available to spend time with the father without reasonable excuse.
The Issue of Penalty
Having found that Ms Reeve did contravene the Orders on two occasions without reasonable excuse, I must now decide what the penalty for those contraventions ought to be.
S. 70NEB of the Act sets out the powers of the court to make orders when a contravention has been proven.
The powers I consider to be relevant to consider in this matter are the following:
· 70NEB(1)(a) an order directing a person to attend a post-separation parenting course;
· 70NEB(1)(d) an order requiring the person who committed the contravention to enter into a bond, or, if the person fails to enter into a bond, then
· 709NEB(1)(da) a fine not exceeding 10 penalty units; and
· 70NEB(1)(f) a costs order against the person who committed the contravention.
Ms Reeve shows no ability to comply with court orders unless there is a consequence hanging over her head. Her comment to Ms J that she was relieved when the orders of 25 August 2014 were made because she could use them to persuade the children, was, in my view, disingenuous. The reason for her compliance with those orders was that failure to do so would have resulted in an immediate recovery order placing the children with their father.
In those circumstances, and taking into account Ms Reeve’s apparent lack of insight into the effect of her behaviour and decisions on the emotional welfare of her children, I will require her to enter into a bond to be of good behaviour and to comply with all orders of this court for a period of two years.
If she fails to enter into the bond, or she breaches it in the next two years, I will have little choice but to order that she be fined and to make a variation of the orders to provide that the younger three children live with Mr Reeve. Ms Reeve should be in no doubt that the court will make such orders if she does not make X, Y and Z available for time with their father pursuant to the orders I propose to make.
In addition, in an attempt to allow her every chance to obtain some insight into the effects of her behaviour and lack of ability to get the children to do what she asks them to, I will require her to complete a post-separation parenting course.
Conclusion
This has been a very difficult matter.
The mother’s presentation causes the court some concern, although there is no doubt that she loves her children dearly and wants only what is best for them.
It is to be hoped that she might obtain some insight and communication skills, and that Mr Reeve will develop some enhanced parenting skills through the parenting courses that I will order for both parties.
I certify that the preceding three hundred and seventy-seven (377) paragraphs are a true copy of the reasons for judgment of Judge Small
Date: 29 September 2016
Key Legal Topics
Areas of Law
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Family Law
Legal Concepts
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Breach
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Penalty
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Injunction
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