RENDALL & RENDALL
[2011] FamCA 413
•2 June 2011
FAMILY COURT OF AUSTRALIA
| RENDALL & RENDALL | [2011] FamCA 413 |
| FAMILY LAW – CHILDREN – WITH WHOM THE CHILDREN SPEND TIME – Consideration of “meaningful relationship” and whether a relationship with the father would be beneficial to the children – Where the children are embroiled in the parents’ dispute – Where the father had been convicted for assaulting one of the children and two of the children were required to give evidence in the prosecution proceedings. In those proceedings, the father alleged that the children lied when giving evidence, but in the current proceedings he admitted that he had lied, not the children – Where the children are to live with the mother and the father is to have no time with the children, unless otherwise agreed by the parties – The father is to communicate with the children by letters only. FAMILY LAW – CHILDREN – PARENTAL RESPONSIBILITY – Where the mother is to have sole parental responsibility for making decisions of a long-term nature for the children. |
| Evidence Act 1995 (Cth), s 55, s 56, s 140 Family Law Act 1975 (Cth), s 60B, s 60CA, s 60CC, s 61B, s 61DA, s 65DAC, 91B |
| Briginshaw v Briginshaw (1938) 60 CLR 336 Cotton & Cotton (1983) FLC 91-330 Loddington & Derringford (No. 2) [2008] FamCA 925 Pishke & Rupp; Bannon & Rupp [2010] FamCA 632 |
| APPLICANT: | Ms Rendall |
| RESPONDENT: | Mr Rendall |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 12129 | of | 2007 |
| DATE DELIVERED: | 2 June 2011 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 9, 10, 11, 12 & 13 May 2011 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Brewer |
| SOLICITOR FOR THE APPLICANT: | Peter Lynch |
| COUNSEL FOR THE RESPONDENT: | Mr Cash |
| SOLICITOR FOR THE RESPONDENT: | Cash and Stavroulakis Lawyers |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Eidelsen |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Cathleen Corridon |
Orders
That the wife have sole parental responsibility for making decisions of a long-term nature concerning the children S Rendall born … March 1999, B Rendall born … May 2000, F Rendall born … July 2001 and A Rendall born … May 2004.
That the children live with the wife.
That the husband communicate with the children as follows:
(a)by cards and letters addressed to the children care of the wife who shall be responsible for ensuring that, having regard to the respective ages and levels of maturity of the children, no inappropriate written material from the husband is given to them; and
(b)by gifts and presents on the birthdays, Christmas time and Easter time of the children in each year, to be provided to them through the wife who shall be responsible for ensuring that the children receive such items.
That to give efficacy to paragraph 3 hereof, provided the husband advises the wife in writing of his address, the wife shall by written communication, advise the husband of having received all items in paragraph 3 (a) and (b) hereof setting out whether the item has been given to the relevant child and if not, why not.
That other than as set out in paragraph 3, the husband not spend time with the children or any of them unless the parties otherwise agree.
That notwithstanding paragraph 1 and provided the husband advises the wife of his residential address and telephone number, the wife provide to him the following information in a timely fashion:
(a)the details of any serious illness or accident which requires medical attention for any of the children; and
(b)the details of any change of residential address or school of the children.
That the wife authorize the principal of any school at which the children attend to provide to the husband at his expense, copies of all material produced by the school which would normally be made available to a parent.
That the wife be at liberty to advise the principal of any school attended by the children, the details of paragraphs 1-3 of these orders.
That these orders be explained to the children by Family Consultant Ms C and that she determine whether or not whether the independent children’s lawyer should be present.
That and on and from 1 July 2011, the Independent Children’s Lawyer be discharged from the proceedings.
That save as to costs, the application of the wife filed 28 January 2011 and the response of the husband filed 5 May 2011 are otherwise dismissed.
That any application for costs by any party be filed and served by 4 pm on 17 June 2011.
IT IS CERTIFIED:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
That pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Rendall & Rendall is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 12129 of 2007
| Ms Rendall |
Applicant
And
| Mr Rendall |
Respondent
REASONS FOR JUDGMENT
It is a well-established fact that children are adversely affected by high conflict between their parents. It is worse where they are the victims of violence by a parent because their trust in that parent is damaged, if not destroyed. It is an abrogation of parental responsibility to be violent towards a child but equally irresponsible to put those children through the emotional pressure and torment of publically denying that behavioural irresponsibility. This is one such case.
S born in March 1999, B born in May 2000, F born in July 2001 and A born in May 2004 are the children of Mr Rendall (“the husband”) and Ms Rendall (“the wife”). These children have been embroiled in their parents’ dispute for five years in this Court, the Federal Magistrates Court, the Victorian Magistrates’ Court and the County Court of Victoria as the subject of parenting orders disputes, protection orders relating to family violence and sadly, as witnesses in prosecution proceedings against the husband.
Perhaps unsurprisingly, in addition to formal court processes, these children have had involvement with the Department of Human Services, Victorian Police, lawyers, several psychologists and a family consultant. It is time to put the litigation permanently to an end and to give the children some respite so that they can be children.
The parenting proceedings before me ran over five days and each party was represented by counsel. The children’s interests were represented by an Independent Children’s Lawyer who also briefed counsel.
Background
The husband is a 47 year old man who described himself variously as a contractor and unemployed. In an affidavit filed on the third day of the proceedings, he described himself as a professional. He has no qualifications that might support that title.
The wife is a 38 year old woman who described her occupation as home duties caring for the four children. Prior to the marriage, she began an arts/law degree but did not complete it. She lives on Centrelink benefits.
The husband and wife began to live together in 1996 and married in 1998.
The first apparent litigation between them was in November 2006 when, upon separating, a family violence order was made. Since then, there have been constant battles in courts. I shall return shortly to the litigation just after separation but it is sufficient for me to say that in December 2006, the Federal Magistrates Court was looking to the Department of Human Services for assistance because of the varied allegations. Despite that, the Court ordered the husband have time with the children. One month later, that altered dramatically when the husband’s time was apparently suspended. Shortly after, final orders were made but in April 2007, they were revisited and the Court was concerned such as to appoint an Independent Children’s Lawyer.
It is not clear why all of those orders were made but on 4 April 2007, a fresh appointment for an Independent Children’s Lawyer was made. On 16 May 2007, it appeared that the husband’s time with the children was resumed pursuant to some form of order.
On 17 December 2007, the matter was before the Federal Magistrates Court again and parenting orders were made by consent. Those orders provided for equal shared parental responsibility together with contact between the husband and all four children from Friday until Monday with Thursday overnight in the alternate week. That is a dramatic alteration to the matters that occurred only a year before.
In October 2008, the wife filed an application seeking to discharge the existing orders and for the husband to spend no time with the children. She filed a Notice of Risk of Abuse. This was the time during which the assault on the child B occurred. The hearing came on before Federal Magistrate McGuire on 3 December 2008 where his Honour made an order that the husband have some time with the children but that it be supervised at a contact centre.
In the following April, the parties consented to the proceedings being transferred to this Court.
On 13 November 2009, in the Senior Registrar’s list, the parties consented to the husband’s time only with F and A being supervised by Ms O and that was the situation that continued until trial.
When the proceedings began on 9 May 2011, S, B and F were not spending any time with their father. A was spending three hours per fortnight with his father supervised by a paid supervisor Ms O. That arrangement arose out of an order of the court imposed upon the parties in November 2009. Upon reserving judgment on 11 May 2011, as a result of all of the evidence I had heard and the submissions given, I stopped the arrangement for reasons which should hopefully become clear.
The parties’ proposed orders
On 9 May 2011, the wife was the applicant. She sought orders at that time that she have sole parental responsibility, that the three older children’s time with the husband be “reserved” and an undefined time between A and the husband be “strictly supervised” by an independent person. That position altered at the conclusion of the case so that there be no time for any of the children and that the Court restrain the husband from living near her.
At the commencement of the case, the husband was the respondent. His amended application document although filed late, sought orders that the parties have equal shared parental responsibility, that F and A live with him or, alternatively, that he have them on periods of half school holidays and each alternate weekend and that “contact” between he and S and B be “as directed by” psychologist Dr L or as determined by the Court. He also sought that the wife have therapeutic counselling.
Early on the fourth day of the hearing, the husband was asked whether he was “persisting” with his application and he said that he was but he also had two alternative proposals before the Court relating to the two younger children. By that, I understood he was still seeking residence but that he had a fallback position. Later on the same day, the husband abandoned his residence application. He did not however at any time, resile from the other positions. For reasons below, all of those positions were, and are, untenable.
On 9 May 2011, the Independent Children’s Lawyer proffered a preliminary view that the husband spend time with A on a progressive basis. At the conclusion of the hearing, the Independent Children’s Lawyer urged that I make orders limited to A spending time with his father at the rate of four hours per fortnight under supervision. That position however was to be subject to the proviso that A could increase or decrease the time with his father at will without the wife being subject to possible contravention proceedings. Bearing in mind that A is seven years of age, in my view, the position adopted by the Independent Children’s Lawyer was fraught with both difficulty and danger and one which I could not accept as being in the best interest of not only A but for reasons which follow, also his siblings.
The positions of the parties were significantly summed up in cross-examination of the husband by the Independent Children’s Lawyer. The husband’s view was that the wife has manufactured a case designed (and in fact, partly succeeded) to destroy his relationship with the children. Contrary to the wife’s assertion that he was violent, he maintained it was she who was violent to him and the children. The wife’s view was that the husband was a violent “monster” who would hurt the children if given a chance without supervision. She expressed the view that her fear was that he would throw the children off a bridge. The contrast between the parties’ positions could not be more stark.
The standard of proof
This case revolves around facts that are highly controversial. Accordingly, each party put themselves forward as an honest and reliably accurate witness whose recall of incidents supported the dichotomy mentioned above.
There are serious allegations in this case. Accordingly, I have applied the provisions of s 140(2) of the Evidence Act 1995 (Cth). Counsel for the Independent Children’s Lawyer referred me to the Briginshaw standard (Briginshaw v Briginshaw (1938) 60 CLR 336). All determinations I make in these reasons have been according to the standard of the balance of probabilities but with a cautious eye to the evidence to see whether there is a credible foundation for the allegation made. It is a serious step to make a finding of violence against a parent but equally if not more so, to find that violence was perpetrated against a child. I have carefully considered the evidentiary principle here because what I am obliged to do is contemplate and assess whether there is an unacceptable risk for the children if orders are made as proposed by the parents or which are considered by me as appropriate. I am not obliged to make findings that criminal acts have occurred but rather look at the risks for the children. It might be said that that distinction is fine but it nevertheless exists. Findings can be made notwithstanding that principle if the Court is comfortable in so doing. The findings about criminal acts in this case are clear and factoring in the cautious standard of proof to which I have referred, I am left with no doubt about my findings at all.
Credibility
My reference to credibility takes on an unusual prominence here. I have no confidence in anything the husband said. He was loose with the truth, evasive and said whatever he considered would support his cause. He was self-righteous and his views about the impact of his behaviour on the children misplaced.
I have no similar concerns about the wife either as a witness or as a parent. In respect of the latter, save for one issue relating to a book she allowed some of the children to read, her parenting capacity was not seriously challenged by the husband. It was challenged by some untested evidence of psychologist Dr L. His evidence however was not only largely irrelevant but written in a vacuum where he appeared to believe the husband and not the wife. Having seen the parties over five days in this hearing, I have no hesitation in rejecting Dr L’s views.
I turn then to the reasons why I totally reject the evidence of the husband.
The credibility of the husband
The husband has acknowledged criminal convictions for dishonesty. In cross-examination, he minimised their seriousness. For a court to record a conviction must mean the events were not trivial.
The husband has acknowledged convictions for driving whilst disqualified and improperly using a motor car by changing around registration plates. Whilst many people in the community may have brushes with the law relating to the driving of a motor car, I cannot accept this behaviour was trivial. First, the husband was sentenced to imprisonment albeit the serving of the sentence was suspended. Before knowing it was so suspended in one case, I asked the husband about whether he served the time and he quickly told me that it was suspended. His reaction was dismissive of its seriousness. Secondly, in the context of the husband’s overall dishonest behaviour, this conviction shows fraudulent conduct and a total disregard for the law. That has some bearing on what confidence I have about his compliance with future orders of the Court.
The husband also has a conviction for failing to lodge documents as required although I am unclear as to exactly what the details were. Again, the husband was dismissive of the fact that the court had recorded his misconduct as it did.
The husband has a conviction in 2008 for assaulting B. He pleaded not guilty. Upon being convicted, he appealed. He lost the appeal. Of significance is that both B and S gave evidence. The husband’s view was that his counsel cross-examined the children sensitively. It is not surprising that the wife and the Independent Children’s Lawyer saw that differently. It does not matter how sensitively it was done, the husband publically proclaimed his children to be liars.
The position of the husband was certainly like that when on 2 December 2008, he filed an affidavit in parenting proceedings where he described the wife as malicious and dishonest. He swore that that he had never resorted to physical violence with the children. He said he had never made threats to kill the children. All of that was untrue. Further, when cross-examined about calling the children liars in the criminal proceedings, his ambivalent response was that it was “the nature of the case”.
To compound the problem and in a bizarre confession, the husband acknowledged in cross-examination before me that he had lied to the Magistrates’ Court and County Court. All of those matters pale into insignificance by the fact that he put his children through the criminal law process. In the course of an interview with a professional in this case, B described the husband as “fake Dad”. The husband seemed to take umbrage at that but it was clearly stemming from what he put the children through. The emotional wound for the children is still unsurprisingly raw.
The husband has a conviction for assaulting the maternal grandmother. The facts of this are important. On the occasion in 2008, he returned the children from a contact period. During an effort by the maternal grandmother to get shoes on the feet of A, the husband struck her in a chopping fashion. He asserted that one of the other children came outside to complain about the grandmother’s actions towards A and he only went to his child’s aid. That version was not put to the grandmother who attended for cross-examination. Be that as it may, the husband was charged with assault, pleaded not guilty and was convicted by the Magistrates’ Court of an indictable offence. In cross-examination before me, the husband admitted the assault had occurred and that he had lied to the court. It is of considerable significance in these proceedings that the husband’s behaviour was witnessed by the children. The older children clearly have long memories which will be apparent when I refer to the family consultant’s evidence below.
The husband was convicted of assaulting the wife. In cross-examination, he maintained his innocence. When leading evidence in chief that should have been in his trial affidavit to rebut the evidence of the wife, the husband said that he denied that he was violent but more importantly, he said it was the wife who was violent towards him and that the children had suffered at her hands. The wife asserted in her evidence in chief that after 2000, the husband’s physical violence towards her increased to the extent that it was occurring “maybe once or twice a month”. She described slaps with an open hand, pushing her into walls and lots of physical intimidation. The husband denied all of that putting the facts in issue but gratuitously added:
I don’t know why someone would go ahead with three pregnancies and give birth. (If that was the case).
The wife made assertions including about a violent incident in August 2006. Again gratuitously, the husband said that the police were called by the neighbours and there was an audio recording in which the wife could be heard using pejorative language. That audio recording was never produced. The husband conceded that the wife had sought an intervention order on that occasion and said that it was declined by a magistrate because there were “no threats”. That was entirely unclear from the document but there can be no doubt an intervention order was made some few days later upon the application of the police. To that application, the husband consented to an intervention order without admission as to liability.
[This paragraph is blank]
The husband has convictions for breaching intervention orders. It is sadly common in our community for the Magistrates’ Court to make intervention orders arising out of the ending of emotionally charged relationships. Those orders are designed to protect the persons named in them because the state is satisfied that it is required to intervene in their private lives for protective purposes. The message should be clear that an intervention order is an acknowledgment by the state that a relationship has ended. Therefore, how much more serious and important is it when a court finds the respondent guilty of breaching such an order? How much more so again when it is a second or subsequent conviction and the court imposes serious sanctions?
In cross-examination of the wife, the husband’s counsel put that one of the wife’s allegations relating to these intervention order breaches arose because the husband rang her doorbell. To the extent that the question was put to minimise the seriousness of the husband’s behaviour or that the wife was being pedantic, it did nothing of the sort. The wife conceded that the husband was not convicted although the matter went to court. Counsel went on to put to the wife that she had been found guilty herself of breaching an intervention order. Not only did the wife deny such assertions but no document was put to her to rebut her evidence nor did the husband give any such detail. Such was the husband’s focus on the wife’s conduct by giving instructions along those lines to deflect his own behaviour.
It was also asserted by the husband through his counsel’s cross-examination of the wife, that B had assaulted F. Why that was put was unclear having regard to the nature of the orders sought by the husband. The wife denied it and no further evidence was led about it. An inference open to me which I accept is that it was done deliberately to deflect attention from the husband’s own behaviour.
In the context of the husband’s view that the wife was malicious and dishonest, yet the state courts found him guilty of breaches of its orders, I cannot have any confidence that the husband respects the law. In a telling piece of cross-examination about all of these court visits, the husband was asked when he had obtained the insight into his behaviour bearing in mind his acknowledgment of lying to the Magistrates’ Court. Evasively, he responded that it was some time earlier but that he had been thinking about it during these proceedings. He had sworn affidavits only as late as one day before, lambasting the wife’s conduct. He instructed his counsel to put to the wife that every single incident of violence was untrue. Least it be thought that the husband’s conduct was isolated to his immediate family, it was also asserted by the wife and not denied by the husband, that he had had a dispute with a contact supervisor who refused thereafter to have any further involvement in the case.
Another concern, both as to the facts and as to the husband’s credibility, was what the wife asserted was a threat by the husband towards the children. In the wife’s affidavit, she attached a police statement of a complaint she made on 17 January 2007. The sequence of events which I accept to be accurate was as follows. On 15 January 2007, the husband sent a text message to S who later spoke to him. S passed the phone to her mother who heard her own voice being played. The recording was that of the proceedings in the Magistrates’ Court concerning the intervention order. The husband denied this occurred but I have no doubt it did. When the telephone call was terminated, the husband rang back and left a voice message. The wife described him as sobbing but he also sent a text message to S which read:
Goodbye my little love. Dad loves forever.
The evidence about that was not challenged.
On the following day, 16 January 2007, an acquaintance of both parties sent to the wife a message which had been received from the husband. It was in the form of a poem. It read (correcting the spelling and grammar):
Little lips that murmured mama
Silent still now are they.
Hushed forever neat (sic) the heavy clay
One by one they wandered from her.The sending of this poem was a controversial issue because at no time subsequent to 2007 apparently, had the husband put his version of what occurred until this hearing when on the third day, he filed an affidavit in which he said the wife wrote the poem. This evidence could be seen as a direct threat to the children, but it is equally open to the inference that it was sent to manipulate or frighten the wife. The husband, having denied he was the author of the poem, put the issue of who wrote it in dispute. Consequently, the Independent Children’s Lawyer called the person who was the acquaintance and who had sent the husband’s message on to the wife. This acquaintance was a barrister Mr H. Mr H provided a proof of evidence and because the husband obviously disputed the version of Mr H, required him for cross-examination. Mr H’s evidence was vague but that was not surprising having regard to the elapse of time and, more importantly, no-one had raised the issue until this hearing over three years after the event. Mr H’s recollection was that he received the email from the husband and thought that because of his previous association with both the husband and the wife, he was required to pass it on to her. Despite the vagueness of his recollection, he said he was clear that the husband was having some sort of breakdown or that he was in a disturbed state. Mr H added that he did not know what the husband was capable of and accordingly spoke to the wife and told her that she should be concerned.
The husband’s position as indicated by cross-examination by his counsel was two-fold. First, Mr H was asked why he had not contacted the police. His plausible response was that he had warned the wife and that it was a matter for her. The second position of the husband was that the message to Mr H was preceded by an email, the import of which was, “look at what she has done now”. Mr H had no recollection of that message and was not prepared deny that it was so but he said that the message came via text or email and therefore his old computer could be examined if it was needed. Oddly, counsel for the husband asked for its production. Why the husband could not produce his own email was unclear, but I was later told that Mr H went to the trouble of making his old computer available, but by the conclusion of the case the task had not been completed. When considering this issue however, if I was to accept that the husband sent the messages he asserted, why would Mr H be concerned and pass it on to the wife? Why would he not have contacted the wife and been critical of her behaving the way the husband said she was? I have no reason to doubt Mr H was concerned.
Because Mr H attended as required, counsel for the husband took the opportunity to cross-examine him about a number of other matters. Mr H was cross-examined about whether he had witnessed an assault by the wife upon the husband. Whilst resisting acknowledging that he witnessed any assault, he conceded he saw the husband with blood on his head and that the husband told him that he had been hit by a tumbler and it was then that Mr H took him to hospital.
Counsel for the husband asked Mr H whether he had ever contacted the police arising out of incidents in the Rendall household. Mr H said that on one occasion, he did. He said he received a telephone call from the husband who told him he was in the backyard of the wife’s house. He said he told the husband he was an idiot and should not be there. He said he then noticed the husband’s voice change and that he appeared to be saying something in the background which was clearly an indication that the wife was present. He said the telephone then went dead and seconds later, he received a telephone call from the wife who was hysterical claiming that the husband was in the house. He said he could not recall whether he called the police before or after the wife’s telephone call. The only inference open to me was that the husband was doing something wrong.
I found Mr H an honest witness and I have no reason to doubt what he said was accurate.
Returning to the poem however, the husband for the first time in cross-examination said that he found the poem on a piece of paper in a book in December 2006 when he returned to the house to clean up after the wife had vacated. The book, which he could not identify by name or author related to criminal activity of women in the period 1900 to 1930. He said the wife had written the poem out on a piece of paper. The poem was copied from the book. This highlighted the veracity of the husband. There can be no doubt that what he was inferring by the affidavit that he swore on the third day of the trial was that this was the work of the wife and she had authored the poem. His evidence however was different. He moved to say that the wife had copied the poem and he sent it for the information of Mr H. That explanation so long after the event without any corroboration and bearing in mind the husband’s admitted dishonesty, leaves me not only disbelieving of him but clearly concerned about what he was saying. On the one hand, it looks like a threat to kill the children but on the other, that poem could be seen as an intimidation of the wife. In the context of the events of the preceding day, it clearly shows the foundation of Mr H’s concern namely a disturbed mental state.
The sending of the poem by the husband also has to be seen in the context of the litigation at that time.
The first apparent proceedings between the parties was on 1 November 2006 at which time an intervention order was made against the husband which named both the wife and the children as the protected persons.
On 20 December 2006, the first parenting proceedings began in the Federal Magistrates Court of Australia. Prior to the ultimate trial before me, my estimate is that the parties appeared in the Federal Magistrates Court and in this Court on 20 or thereabouts separate occasions.
On 20 December 2006, the Federal Magistrates Court was sufficiently concerned about the proceedings to make an order under s 91B of the Act requesting the intervention of the Department of Human Services. The court also made the appointment for an Independent Children’s Lawyer. Despite that, the order noted the parties consented to parenting orders under which the husband spent weekends with the children. That, however, appears to have been short-lived.
On 24 January 2007, orders were made by the court, in other words not by consent of the parties, suspending the husband’s time pursuant to the orders made the month before. There are no reasons on the Court’s file to enable me to work out why that occurred.
Two weeks later, on 7 February 2007, the Federal Magistrates Court made final orders relating to the parenting issues but on that occasion, in the absence of the husband. No time was mentioned in the orders at all.
For much of the time since then, the husband’s time with the children has been monitored even though he had contact unsupervised in 2007 and 2008. That poem is completely inconsistent with the conduct of a responsible parent. It adds to my concern about his parenting responsibility but heightens also my concern about the risk for all of the children.
Finally in respect of credit, the husband filed his affidavit of evidence in chief on 5 May 2011. It was sworn on 3 May 2011. Following the jurat, there is a certification by a lawyer that the affidavit was either prepared or settled by her. I note that the husband swore the affidavit before that lawyer. After some discussion about what material the husband did rely upon, his counsel presented a list of paragraphs which, amongst others, excluded paragraph 189. That paragraph could not have been relied upon because it was obviously untrue but it became the subject of cross-examination because the affidavit had been served upon the other parties. Paragraph 189 read:
I have established a home in [an eastern suburb] that is suitable for the children. The children can easily be accommodated in the premises. I have asked [O] community services to produce a report so the Wife and court (sic) can be satisfied as to the suitability. Now produced and marked…is a true copy of lease (sic) of premises.
In the voluminous annexures was a photocopy of a residential tenancy agreement purporting to have been made between the husband and a landlord on 19 March 2011. The landlord’s name was blacked out.
As the evidence unfolded, it became clear that the husband did not have any tenancy in respect of those premises. He said that he had not taken possession of the property but had become embroiled in a dispute before the relevant Victorian Tenancy Tribunal, which not only ordered that he have his bond returned to him but also some $600 compensation. Two significant features arise out of this. First, he did not take possession of the property on 15 April 2011 as the tenancy agreement asserted and secondly, the Administrative Tribunal hearing had concluded with a return of his money on about 2 May 2011. He swore the affidavit on 3 May 2011. Thus, the paragraph, when sworn, was a lie even if he decided not to adduce that evidence.
In the tenancy agreement, he described his address as H Road. He conceded that was not where he lived but rather, it was a serviced office that he kept for business purposes. That premise was under the control of a rental agency whose name he could not remember but he added that he only used it over two months for three or four days in a row. He endeavoured to explain that this was done for the purposes of enabling him to obtain employment contracts. His explanation for the misleading statement in the affidavit was not satisfactory bearing in mind the affidavit was prepared by the lawyer.
The serviced office evidence led to cross-examination of how he managed to pay for the rental of the serviced office whilst affording $380 per week for the rental property that had fallen through when he was living on Centrelink entitlements of $280 per week. His response was that he was working for cash. In turn, that led to my warning him about his right of silence because answers to various questions may have incriminated him. Sensibly, he declined to answer questions put to him about what he had told Centrelink and Victoria Legal Aid.
All of those questions led onto where he then proposed to live in the future bearing in mind his desire to have the two younger children live him. He conceded that his premises were not appropriate because it was a one-bedroom unit in a caravan park.
He then said in cross-examination that he had overcome the accommodation problem because he had “just signed” a lease for premises at C Street, adding that he would “sign tomorrow” that lease. This was for premises about 1.5 kilometres away from the residence of the wife. The inconsistency in the statement about the signing of the lease is self-evident.
On 11 May 2011, as a result of the fact that he had not responded to any of the wife’s allegations in his trial affidavit, he filed another affidavit in which he said about the new living arrangements:
I have just been informed that have (sic) secured a three bedroom house in [C Street]…my proposal is that the children [F] and [A] should continue to attend their current school. The home in [C Street] is a few street (sic) from [X] Primary School.
I find that the statement about the C Street property was grossly misleading. Apparently after inquiries by counsel for the wife were made of the owner of the property, it transpired from cross-examination of the husband that he had agreed to take a room there with a view to taking a “flat out the back” in the future. It was clearly not a three bedroom home that he was renting and even if there was some fluency in the arrangement, I am satisfied that is not what he wanted the Court to think.
On the following day, the husband conceded that whatever it was that he was going to rent, had fallen through. He blamed the wife’s counsel for causing that. Curiously, he said he had had discussions with the owner of C Street some six to eight weeks before. That was at a time when he was endeavouring to obtain the other property referred to in the lease that fell through but that was not fully explored or explained.
When counsel for the Independent Children’s Lawyer asked the husband what was to occur relating to accommodation for the children, because of the falling through of the C Street property, the husband said that he had been speaking to a single father of two children on the previous evening but nothing had been resolved.
I find that the husband was deliberately endeavouring to mislead the Court and the other parties to the proceedings because he knew that he had to have some proposal as to how he would care for the two children.
Counsel for the wife cross-examined the husband about the fact that the proposed move to C Street was done deliberately to harass the wife. Although the suggestion was that the premises were 1.5 kilometres from the wife, the husband conceded that he did not have a motor car driver’s licence. Public transport by train would have him pass very close to the wife’s address. When he was asked how he managed to attend the owner of the C Street property on the previous weekend, he said he went by taxi. All of this evidence was very unsatisfactory. I do not accept it.
The credibility of the wife
The wife’s credibility was tested in cross-examination by both counsel for the husband and counsel for the Independent Children’s Lawyer. Most of the attack on the wife by counsel for the husband arose out of the allegations about violence. Questions were put to her about things that were said by the paid supervisor Ms O. The wife calmly responded that the statements of the supervisor were either incorrect or taken out of context. One such example was that the supervisor reported a complaint by A of having his mouth washed out with dishwashing liquid. The wife responded by saying that she told the children if they used a particular profanity, she would put handwash on their toothbrush and they would be required to brush their teeth accordingly. When the profane words were used, she insisted the children do what she had threatened. She said there were no suds. Her evidence had a ring of reality about it. Unfortunately the supervisor was not called for cross-examination such that the context of the issue could be examined. Another example was that the supervisor referred to A complaining that he had been thrown against a wall by the wife. According to the supervisor, A said that having hit the wall, he had to have an ice pack put on his head. The wife gave a plausible explanation for why that occurred and I see no reason to canvass it any further. There was no basis to find there was any violent conduct of the wife.
It was put to the wife that F had threatened to commit suicide at one point and had a knife in his hand. She agreed that occurred. It was put to her that F gave a reason that he was not permitted to see his father. The wife said that was not the case. The matter was not taken any further.
Many of the matters relating to the wife’s relationship with the children appeared to have come from statements made by Ms O as to what the children told her. Again, Ms O was not called for cross-examination.
The one incident that the wife was tested about was an assertion by the husband that she “punched” him with a glass tumbler. The evidence of Mr H would tend to support the fact that some incident occurred but whether it was an assault in the criminal law sense or even in the sense of family violence, I am unable to say. This all apparently arose out of a dispute in 2006 when the separation occurred. Counsel asked the wife what the dispute was about and she said that the husband had threatened to take A and she eventually went upstairs with the children and barricaded herself in a bedroom. She described the husband’s violent behaviour. Significantly, she said that everyone was terrified but F offered to go outside and meet his father. She described F as saying that he would kill his father. She said that F offered to save everyone. She said that eventually, based on a promise by the husband, she allowed him into the bedroom and thereafter he assaulted her. I accept the wife’s version of what occurred on that day.
Counsel for the husband also tested the wife about whether she had threatened to commit suicide and she denied it. No evidence was forthcoming as to why that allegation was put.
Counsel for the husband put to the wife that a court had made an intervention order against her and she agreed. She said she consented to the order because it enabled her to get one against the husband. Remarkably, she described the advice she was given as being that if she had no intention of doing anything wrong, she should have no concerns about agreeing.
On various occasions, counsel for the husband put to the wife that her allegations related to events that just did not occur. Again, she maintained that her version was truthful and having regard to the fact that there is no evidence to corroborate the husband’s allegations, I see no reason why the evidence of the wife should not be accepted.
An incident occurred in the offices of psychologist Dr L. Allegations were put to the wife about statements that she made that would have clearly frightened the children. The wife’s mother was present. The wife’s version was consistent with that of her mother. Insofar as the cross-examination of the wife was about the husband’s version, I accept the wife’s version.
Counsel for the Independent Children’s Lawyer tested the veracity of the wife about suggestions that she had manipulated the children or had denigrated the husband. Her answers were plausible. She was able to say good things about the husband such as that he did fun things with the children particularly those that were creative. She said he was energetic. She described her own position as being positive with A after he returned from visits with his father and she said she had done nothing to destroy that relationship.
Counsel for the Independent Children’s Lawyer asked the wife what the husband could do to dissuade her from the position she held about him being a monster. Her answer was that all he had to do was acknowledge she was telling the truth and then commence some rehabilitation such that he might understand the impact of his behaviour on the children and herself. The evidence was given in a calm and a rational way.
Finding as to credibility generally
It will be evident from what I have set out in detail above that wherever there is a conflict in the evidence, I have no hesitation in accepting the version of the wife. Notwithstanding the husband maintained that the wife had manipulated the situation to her advantage, there were too many examples where his evidence was just not believable or acceptable. I do not believe the husband’s evidence about violence.
It is clear from the evidence that the three older children have strongly turned against their father. In May 2010, F ceased seeing his father despite an order of the Court in November 2009. The wife was cross-examined about the fact that she had not been active enough to ensure that the child went with the supervisor Ms O but her response was that she persisted over those six months to a point where she could no longer get F to go other than by physically putting him into the car.
F has given mixed messages. He has been variously described as being defiant and refusing to have anything to do with his father and telling him so and alternately hugging and cuddling his father. I accept that he has now adopted a position where he does not want time with his father and despite his age, should not be forced.
As will be clear from the evidence of the family consultant, S and B have strongly resisted seeing their father and in turn, his approach has been to not force the situation.
The assault on the child B
I have already referred to the conviction of the husband for assaulting B but the circumstances need some elucidation because that incident appears to have been a catalyst for the reticence of the children seeing their father.
The wife’s evidence about 23 October 2008 was not challenged. On an overnight visit, the husband hit and choked B and threatened to kill him. B was eight. B told police his father was angry and yelling at him calling him names, “the C word and a turd”. He said his father hit him a lot of times over the face and side of the head. S heard the voice of her father and B crying. She said her father’s anger came from F telling his father that the wife “went on a date with a man”.
The wife’s evidence was that B telephoned her but the call was shortly after ended. She received another call from B in which she heard the husband say “Fuck off then and go home”. The rest is history.
The supervisor – Ms O
A has traditionally gone to see his father and all indications are that the time was well spent. A too however has begun to be resistant despite only being seven years of age. This is where the evidence of the various professionals creates some difficulty.
Ms O described herself as the service manager of O Community Services. She has an Advanced Certificate of Pastoral Care (Welfare Studies) from a University and is a qualified catechist. She said she had over 20 years experience in childcare and had undertaken various workshops through the Royal Children’s Hospital. She worked as a family day care worker with a council and a family support worker providing support to families in crisis. She is conducting a commercial business of supervising children pursuant to court orders.
The function of the supervisor particularly one appointed pursuant to a court order is to protect the children and to provide accurate evidence of what occurred. It is not the function of the witness to give an opinion unless it is appropriately based on factual evidence and given by a person appropriately qualified. Much of what Ms O set out in her long reports was factual but there was commentary as well and that was inappropriate.
In early 2010, Ms O described F and A as indicating excitement about spending time with their father including climbing on him for kisses and cuddles. She described the children and father playing together. She described the husband as sending bags of toys, crafts and books home with the children because it brought him a lot of joy. Whilst that may be so, living on unemployment benefits and paying minimal child support raises questions about how the husband was doing that.
The supervisor reported discussions with the wife which had taken place in the presence of the children and how the husband became upset about it. She described conversations with the husband about his relationship with B and S acknowledging that he had let B down but at the same time he became very angry.
By March 2010, the supervisor appeared to have no concerns about the two children spending time with their father even to the extent of them complaining that their time was finishing.
In April, F was emotional, wanting to write a letter to his father apparently in response to a letter that the husband had given to F. Ms O said that F read the note but did not describe what was in it. I was not at all sure whether she had vetted what had occurred.
In the middle of April 2010, the supervisor observed the children as happy and chatting. F said that he had thought of a lot of things that he needed to tell his father. S had apparently typed up the things so that he would not forget.
The position altered remarkably only two weeks later on 2 May 2010. Nothing untoward occurred on the day and F indicated at the end that he had had a great time but the supervisor noted that he was pensive towards the end of the visit. Two weeks later, F told the supervisor that he did not feel like going with his father and just wanted a little break. When questioned about why he did not feel like going, F said “because he’s just over the top”. He repeated that he did not want to go and wanted a little break. Despite that, he was dressed to go which must be seen as a credit to the wife.
Ms O described the husband as struggling to keep his emotions together when he was told because he said that F was the closest of all of the children to him. He told Ms O that something must have happened at home. That led to an angry response in the presence of A by the husband who had to be told by the supervisor to “keep it together”.
The husband did then write a note to F which he showed to the supervisor and it indicated that he would see F when the child was “up to it”. The supervisor told F of his father’s message at the conclusion of the visit and the child simply nodded.
By the end of May 2010, F’s position was entrenched. A had no ambivalence.
At the conclusion of the visit with A, Ms O told the wife about what had occurred and then had a discussion about counselling during which the supervisor gave advice that she was probably not qualified to give.
In June, Ms O spoke to F and told him that his father would love to see him for his birthday but the child simply shook his head. At the conclusion of that day, Ms O returned and gave a birthday gift from the husband for F. F came to her on three separate occasions when she arrived to collect him for contact and wrapped his arms around her waist prompting Ms O to suggest to the wife that she should talk to the children without her. It was not clear whether that occurred. Meanwhile, the visits with A continued uneventfully.
Between July and October 2010 F did not go with Ms O but A did and the descriptions of what occurred during those visits was uneventful. A enjoyed the time that his father spent with him and it was active and full. There was no ambivalence on the part of A and the wife certainly appeared to Ms O to be getting him ready without any problem. A was even endeavouring to have F attend but the child was firm.
Towards the end of the 2010 year, A began to say that he wanted a little break from seeing his father.
In her report, Ms O at this time described the wife as either lacking insight into what her children wanted or was unable or unwilling to separate the issue she had with the husband and their right to spend time together. She said that she did not appear to take the court order seriously. That unfortunate comment was made in the vacuum of not knowing the background of the matter in any detail and even if it was known, it was not the appropriate role of the supervisor to make that comment. It must also be said however that Ms O was not called for cross-examination.
In the middle of October, Ms O attended at the wife’s home and F was chatty but clearly not going on the visit.
By January 2011, the relationship between the wife and Ms O appeared strained. The wife seemed upset about the fact that Ms O returned A late but Ms O said she always did that. This should not have happened.
In the early part of the year, the husband provided a birthday gift for S. It was a computer but the child did not respond. The husband apparently was upset about the fact that there was no acknowledgment and wrote a letter saying that he was disappointed. He said that she was old enough to know right from wrong and make her own decision. This was a matter that Ms O had been involved in. On 6 February 2011, S returned the computer with a note along with notes from B and F. A said that he was not going to attend that day. This formed the basis of cross-examination of the wife about the children influencing A. Ms O reported a conversation with B in which he told her that A was not going to see his father because of the incident between B and his father in which B was assaulted. Ms O reported a conversation between the wife and A. It is not comprehensively reported but the inference I have drawn is that she was endeavouring to get A to go and he was resistant.
Despite the problems to which I have just referred, A spent time with his father in February and it was positive. Ms O described A as being clingy and spontaneously affectionate. Ms O then made contact with psychologist Dr L seeking advice. That too was inappropriate because the matter should have been left to the Independent Children’s Lawyer.
In April 2011, A happily went to his father and appeared to enjoy the activities of the day.
Ms O set out what she described as a final summary for the purposes of her affidavit. She described the 14 month period as progressing positively and the interaction was spontaneous and affectionate. That summary contained details of her perceptions of both the husband and wife. She said she had never heard the husband say anything negative. In relation to the wife, she was somewhat more guarded and made reference to a book that the children had been given by their mother and about which she, Ms O, was quite critical of the wife. That was not her province.
The only evidence that is of substance here relates to the fact that A enjoys the time with his father but it must be understood that it is well controlled. Ms O made clear in her report that the husband understood that she held the whip hand and he acknowledged that she could terminate the contact at any time. Just how accurate a picture she observed of the husband is hard for me to say.
It is clear that the relationship between the wife and Ms O is strained and it was common ground at the end in final addresses that it would be better for that relationship to be terminated.
Dr L
Dr L is a consultant clinical psychologist. He had been involved with the family in a therapeutic environment although it would appear that he spent significant time through 2010 working with the husband. The Independent Children’s Lawyer filed an affidavit by Dr L on 29 April 2011 but all parties agreed that there was to be no cross-examination. Ironically, counsel for the Independent Children’s Lawyer was very critical of Dr L’s evidence.
Dr L set out some background which was inaccurate. It matters little. He set out his goals and in doing so, acknowledged that both parents had made severe allegations against each other and that it was not his role as a fact finder to deal with those allegations. He said his role was to assist the children in relation to their present and future relationships with their father utilising the cooperation of their mother. He described the family as one of the high conflict families he had encountered.
He reported discussions between the husband and S as late as November and December 2010. He described S as saying that “we all worked on [F] to unblock him from not knowing the truth about you” and then that their mother was violent but not as much as he was.
Dr L assessed the father as not presenting any risks to the children. To Dr L, the husband presented as thoughtful and loving. He described him as frequently tearful at the loss of the children and, “what he viewed as the damage to them in relation to alienation from him”. Dr L said there was nothing in the husband’s presentation that would substantially limit his capacity as a parent.
Dr L described the wife as cooperative and articulate. He said she described the husband as a psychopath and dangerous. Dr L then said:
In a larger sense, I have become unable to dismiss the conclusion that [the mother] has maintained a covert campaign of denigration and alienation of the children from their father. I do not doubt that her negative views of [the father] are genuinely held and do not draw upon the historical cross-allegations made by each about the other to form my own views.
He described the children’s behaviour in his rooms and in particular the intimidation by S and F and their reports of intimidation of F and A at the hands of S and B. He described the characterisations of the children of their father as “fake” as a stark contrast to the husband’s behaviour with them. He took into account the pre- and post-separations histories of positive contact as having been denied by the children as if they had never occurred. He described the wife’s behaviour as melodramatic and her absolute refusal to participate in a conjoint session with the husband and the children. He relied on the reports of Ms O of the “undermining behaviour” of the wife none of which I accept occurred. I too had the opportunity to observe the wife. I saw no melodrama.
He described A’s maintaining contact with his father but in an “erratic manner that appears to be weakening”. He said that F was unable to display a strong attachment to his father because of the reported opposition of his older siblings and mother. Apart from some limited evidence about that, I do not accept it is the case. Even if it were so, these children have been a witness to significant assaults. That is something which the family consultant considered important.
Dr L said:
In the context of these elements, [the mother’s] refusal to continue therapy, and in the context of my opinion in this report, it is my current view that my role as a family therapist has become untenable for this family.
Dr L ultimately recommended that there was a core strength of the relationship between the children and their father and that it could be repaired but that radical intervention was required. He suggested a change of residence.
Importantly, Dr L referred to the fact that the wife had maintained an involvement with her own psychologist “whose report appears to take the position that (the husband) has been (as a matter of fact) a perpetrator of abuse”.
There can be no doubt in this case that there was as a matter of fact, violence and abuse by the husband on the most significant members of the children’s family. There is no indication in the evidence of Dr L that he understood the gravity of the matter and if he did, he seems to have brushed it aside. Having regard to my findings about the credibility of the husband as a reporter and his endeavours to manipulate a situation to his advantage, I have no confidence that the evidence of Dr L has any weight. It was suggested by counsel for the wife that there were two faces of the husband. I think Dr L saw one, but I saw the other. As such, Dr L’s evidence was not of any assistance.
The family consultant
Ms C is a family consultant attached to the Family Court of Australia. Her curriculum vitae was attached to her family report and no counsel challenged her expertise. She set out a comprehensive history of the matter and the material that she had read including that produced under subpoenae.
The family consultant described the relationship of the husband and wife as volatile and uncommunicative. I am not surprised.
She described the wife as vitriolic in her criticism of the husband and that the wife had formed the belief that he was not an appropriate parent and that he also presented as a risk to both herself and the children.
The family consultant described the husband as vigorously denying and at times minimising the seriousness of the concerns levelled against him. She described him as physically imposing and jovial in his mannerisms. That interview took place on 8 March 2011. In other words, at that time, the husband was still dismissing the seriousness of his own behaviour.
It must be also understood that the family consultant had the benefit of the husband’s criminal history. She described 13 breaches of intervention orders but that was what was alleged but not necessarily proved. The number is irrelevant.
The family consultant was aware of the physical assault on B to which the children were exposed.
The family consultant described S as polite, articulate and wary. There was an interesting contrast in that at first when asked about her mother, S appeared emotional and hesitant then adding that her mother was “awesome”. S insisted that she would not spend time with her father even if there was someone else in the room.
The interview with B was similar. This child said that he wanted his father out of “our life” and that he did not care how his father felt. Sadly, B described his father as the “fake Dad”.
F and A were not 10 years and 7 years respectively when they were interviewed. F was critical of the husband indicating that his father had done nothing to change his behaviour. F said that he was frightened of his father.
A said he liked going with his father. Importantly, the family consultant said:
[A] did not appear during the interview to be influenced by [F’s] negative and damming comments about (the husband) and was able to voice his thoughts.
She said that overall, A was positive about the time he spent with his father.
In her written report, the family consultant gathered together all of the information and said that A should continue spending time with his father and that it should be unsupervised. Other recommendations were made as well.
However, the family consultant altered her position in cross-examination. She said that the reasons she had recommended unsupervised time with A was that she felt there was not too much time left before A also joined his siblings in refusing to spend time with his father and she thought it important that he develop some relationship for future development if the child ever resumed. The family consultant however conceded that this case had gone on for a long time and that the wife and the three children were very apprehensive about the time that A spent with his father. Whilst the Court making no orders in relation to the three older children alleviated the stress on them, making an order in relation to A did nothing to alleviate the pressure for them and their mother. The family consultant said it was highly possible that A would find it difficult to continue. Not only did she think it would happen in this case but she expected it to happen. It occurred in most cases where the oldest siblings of the one continuing contact resisted attending.
The family consultant said that the position adopted by the children arose out of them forming negative views and that it was clearly an estrangement and rejection by those children of their father as a direct result of their experience. The assaults become the problem. In his evidence, the husband was at pains to say there had been no assaults since October 2008 but, unfortunately, his dismissive approach to his own behaviour indicates poor parenting and specifically, poor role modelling. Three of these children appear to have long and clear memories and they are unpleasant ones.
It was the family consultant’s view that it was critical that the wife be put in a position where there was minimal stress having regard to her other responsibilities. When asked whether or not, if A decided not to attend, his views should be accepted notwithstanding his age, the family consultant said that she thought that it was important that his views be respected because otherwise there would be ongoing proceedings. She said that finality in this case was extremely important.
In respect of the ability of all of the children to have their views respected, the family consultant said that these children were articulate and intelligent and knew exactly what was going on. She said that children between the ages of eight and 15 years developed that strength of character where they made a decision based on experience to reject a parent and A was approaching that period of time now.
The views of Dr L were put to the family consultant about the need for some “radical surgery” to remove the children from the wife and the family consultant had no hesitation in rejecting that.
What was really troubling in this case was two things. First, the family consultant was confident that there will come a time very soon when A does say no to his father. Secondly, the emotional pressure that the other children are under by virtue of the fact that they are seeing their sibling attend contact is not to be ignored. Because of that evidence, I have taken the view that it would not be appropriate to adopt the position of the Independent Children’s Lawyer of continuing the existing regime giving A the opportunity to do what the family consultant expects will occur. To take that course of action having regard to the two points I have just made will put the other children in an emotional turmoil and that is not in their best interests. It must be remembered that this is a case about the best interests of all four children and not just A.
There is no reason for me to reject the evidence of the family consultant. It was thoughtful and professional. She was able to tell me about the development of the children. She was cross-examined about the fact that reducing or eliminating the time between the husband and the children would adversely affect their development and that was not something about which she was concerned having regard to the other matters that were to be balanced. A is already saying at times that he does not want to go with his father. To put him into a situation where he is aware of his siblings’ views and into the hands of his father, who I find is manipulative and untrustworthy, leaves me with no doubt that I would be putting A in a position of unacceptable risk of being emotionally harmed. The husband’s behaviour in the presence of Ms O and Dr L was clearly constrained. He is a jovial and affable person but his sinister background, when tested under cross-examination, exposed the true nature of the man. I have no confidence that he would not endeavour to manipulate A thereby exacerbating the dysfunctional problems within this family. As I said earlier in these reasons, these children deserve to be and need to be, just children. The war has gone on too long and it is time to stop. If the family consultant is correct and I have no reason to doubt she is, there would be a time in the very foreseeable future when A would vote with his feet in any event.
Ms K
Ms Kis a psychologist. I was told at the beginning of the hearing she was unable to attend but ultimately, agreement was apparently reached between the parties that she was not required for cross-examination. Whilst there was veiled criticism of Ms K, no challenge was made to her entitlement to express the opinions she did.
Ms K was engaged to prepare a report for the Victims of Crime Assistance Tribunal. A number of reports were annexed to her material none of which was challenged.
In April 2007, Ms K wrote of the history detailed to her by the wife. She noted the involvement in 2004 of the Department of Human Services and in particular, the wife having lied to the Department to cover up the violence that was then occurring. She said that when she interviewed B, he reported threats were made to his mother, saying he heard from outside a closed room. B also reported bruising on his mother.
Ms K reported that S, then seven years of age, told her that the husband and wife were fighting and there was name-calling by her father. She even reported intervening in the dispute between her parents. Ms K opined that it was her assessment that all children were mindful of their father’s aggressive disposition. She said they remained consistent in their view that they wanted to remain living with their mother. She said that B’s behavioural indicators appeared to be indicative of the impact of previous exposure to physical, emotional and verbal abuse. She said, and this was not challenged, such an experience can be “incredibly frightening” to small children with limited life experience and can have a detrimental impact on their sense of security, self-worth and sense of agency in the world if not addressed appropriately. That is an observation often made by social scientists in highly conflictual family cases. It is borne out in this case.
Almost three years later, Ms K wrote a “progress report” but this time for these proceedings. She said the wife and children had benefited from counselling over the previous three years and that they were committed to the process. She said that the wife had consistently supported her children’s desire to have contact with their father despite her own fears and anxiety.
Of S, Ms K noted her “worrisome” preoccupation with the court proceedings and “likely consequences for herself and her siblings”. That preoccupation was that she would be heard or that her views would be misconstrued. That related to her negative experience with joint counselling with her father. Ms K thought that problem intensified her negative feelings of her father. That has influenced my determination that these children need to be looked at collectively as well as individually.
Ms K noted that B was concerned for A in going on contact visits with his father. Of his own views about his father, B was not complimentary but importantly, he reported reduced anxiety “in recent times”. It is to be remembered that B had not seen his father since 2008.
F reported pleasure at not having contact and sadly saw his father as tempting them with material things. He expressed relief at not having to do what A did. Again, this is at a point in time where F had not had face to face contact with his father for the best part of 10 months. F was adamant about not wanting contact, expressing being scared about his father coming to the house.
Ms K said that A worried about the proceedings but his understanding was vague. He expressed enjoyment at contact but also expressed uncertainty.
Ms K reported consistent views of the children about their father’s past behaviour. Her unchallenged opinion was that the court process caused increases in anxiety and stress for the children, particularly where they took an active level of interest because of the outcomes for them. She said a final solution would resolve that. Despite that, Ms K recommended that A have supervised time with his father and be given an opportunity to discuss the benefits of it.
Thus, whilst recommending a continuation of the somewhat artificial environment of the supervised time between the husband and A, Ms K saw some limited benefit albeit she did not say what.
The evidence of Ms K must be added to the views of the family consultant. In combination, that evidence casts a gloomy shadow over the benefit for A and also the probability that any such time will have to be supervised indefinitely. None of that evidence supports the position of the husband.
Father M
Father M is an Anglican priest. He had known the husband and wife over 13 years having solemnized their wedding.
After the separation, the husband went to Father M for counselling about the marriage problems. Father M offered to supervise contact but the wife rejected that. Inappropriately, he commented on what his perception was of the wife from what the husband said. He visited the husband’s home and noticed attentiveness and affection with the children.
Father M said he was incredulous at the accusations levelled by the wife about her treatment. He said “I recognise I cannot adjudicate their truthfulness or accuracy”. That was a correct statement. There is no indication he understood the public record of the husband. Father M’s evidence did nothing to assist.
The evidence of the wife
In contrast to the evidence of the husband, the wife’s evidence was underpinned by general assertions of violence and unhappiness. Child rearing was difficult.
The wife described problems after B was born because he spent six months of his life in a plaster cast where his sleep patterns were “a mess” and she returned to hospital to undergo a sleep program. She asserted that she was hospitalised in March 2001 with F because of early contractions and that the husband looked after S and B but she was not complimentary about this standard. The husband’s response was to simply deny those assertions. At various times in his evidence, the husband maintained that he had had a significant role in the lives of the children and that he had been an important parent. The wife’s evidence contradicts that and for the reasons earlier set out about credibility, I accept the evidence of the wife.
The evidence of the wife went further than general assertion to say, that after F was born, there were relationship problems but also financial ones as well. She made reference to the fact that the Sheriff was seeking to repossess the car and they were forced to sell property. The husband made no significant comment about any of those matters and as such, it is hard for me not to accept them. The wife asserted that the husband had admitted to losing money in gambling and to have had an amphetamine habit. The husband denied those allegations as if dismissing them as unimportant but I accept them for the reasons earlier outlined.
The wife said that she needed a break from the husband in 2002 and attended a five day sleep program at a hospital. Rather than acknowledge that the wife needed the respite, the husband said it was he who cared for the children. Again the assertions of the wife about his care were not complimentary.
Some evidence was given by the wife that she terminated the relationship with her parents as a result of pressure put on her by the husband. His argument was that was not the case. It matters little in this case because whatever problem there was now appears to have been resolved as will be evident from the fact that the wife’s mother was supportive not only in these proceedings but has been present on a number of occasions throughout the period subsequent to separation.
After A was born, the wife said that reports were made to the Department of Human Services concerning the husband’s behaviour. She said she did not know who made those reports. As I understand the husband’s position, he accused the wife of making them. The husband strongly denied the assertions but none of this evidence was tested by any form of cross-examination. I am unable to make any findings about the involvement of the Department and its importance but I note that a Federal Magistrates Court was sufficiently concerned about the proceedings in December 2006 to make an order under s 91B of the Act.
The wife accused the husband of not assisting her in relation to the care of the children including expecting her to home school the children. She described the financial position as dire. She said the rent was unpaid, lights and telephone were disconnected and process servers and debt collectors arrived “constantly”. There was clearly a financial crisis in the family because the husband in reply said that the wife was fully aware of the position. Just why the parties were in a financial bind is hard to follow but the wife’s earlier explanation about the gambling and drug addiction may give a plausible explanation.
In December 2005, according to the wife and not denied by the husband, the police attended the house making inquiries about an allegation that the husband had sexually abused one of the boys. This allegation went nowhere and in his evidence, the husband simply denied anything occurred. Presumably, the fact that the police did attend upon a notification occurred because no-one produced any material in cross-examination to suggest otherwise.
In relation to intervention orders to which I have earlier referred, the wife said that she obtained an order in August 2006 on an interim basis after she moved out of the home but then a reconciliation occurred. The husband’s response was simply to deny all of the allegations of the wife.
Having regard to the events before separation and the subsequent events in the litigation processes, I accept the evidence of the wife. The family life was dysfunctional.
The husband’s evidence
The husband’s evidence was conclusory, opinionated, argumentative and self-serving and having regard to ss 55 and 56 of the Evidence Act 1995 (Cth), hardly helpful in a matter where the focus of the Court was on what proposal best suited the future needs of all of the children. I stress the affidavit was endorsed as having been drawn by the husband’s lawyer who no doubt considered what the husband said before the affidavit was signed.
The affidavit contained commentary on the reports of health professionals whose evidence was not before the Court. Although the husband’s counsel said he relied on all previous affidavits of the husband, I indicated I would not allow that. I applied the same test to the wife. That argument gave rise to the further affidavit filed on the third day of the proceedings. It extended the evidence in chief and slowed down cross-examination.
In respect of matters of relevance, the husband said that he had willingly complied with every request of the Court and undertaken every recommendation of court-appointed experts including attending various courses. He pointed out that he had attended 20 individual sessions for “counselling parental education” mostly to address issues related to B and S. He attended the “Men’s Responsibility Program” and a positive lifestyle program. Having heard him cross-examined and the evidence that he gave, it is hard to see that he has learned much.
The husband’s evidence was that in 2009, that is, after separation, he sought information from the wife about a visit to “hospital” by F in which his hearing tests indicated a permanent loss in his left ear and about which the husband said he was never informed. This was the subject of cross-examination by counsel for the husband. The wife, whose explanation was plausible, said that it was not a hospital but rather the Melbourne University and there was no permanent damage at all.
Where the husband got his information from and why he did not challenge the wife’s description leaves me to infer that he had no basis to make the allegation. As I understand, the parties had issued a plethora of subpoenae so this information would have been known to them. It is not the function of the Court to trawl through subpoenae looking for supportive information.
The husband referred to a consent order made on 21 January 2010 for the parties to enter a therapeutic pathway, saying that in doing so, the wife confirmed the appointment of Dr L, giving him the authority to treat the children as well as he and the wife in whatever configuration he saw fit. Whilst it would appear the wife may have agreed, the order does not appear on its face to say she did consent. In any event, having regard to the background, it would appear that the pathway that the husband wanted to follow was never going to succeed.
The husband complained that the wife rejected Dr L, saying that she relied upon statements of the Office of Public Prosecutions about the husband not having contact with his children. The husband pointed to a letter indicating that no such instruction had been given. I am not able to make a clear finding on that having regard to the fact that the author of the letter was not called. The wife was adamant that she had been given advice not to allow the contact to occur even under the control of Dr L. Despite not being able to make a finding here, there is a ring of reality about the fact that a child who has been the victim of an assault should not be brought into a therapeutic environment with the perpetrator in circumstances where the proceedings were still pending.
To the extent that the evidence of the husband was produced in relation to an issue of credit, I would not make any adverse finding against the wife. To the extent that the husband was pressuring the wife to produce the children to get on with the parenting issue, I would have had significant reservations about that step being taken having regard to the fact that on the husband’s own version of facts, he had assaulted one of them and was about to have two of his children accused of being liars in the various prosecution proceedings.
The husband also pointed to evidence that he said proved the dishonesty of the wife in 2010. He said she “attempted” to lodge a Victim Impact Statement relating to a charge of the breach of an intervention order which was ultimately dismissed. The document he produced has a variety of comments upon it and handwriting which was not explained. The husband annexed the document to show that the wife was claiming that the children were suffering serious mental health issues. It was never seriously put to the wife that that was her intention. I do not know what to make of it. It certainly did nothing to assist the determination I have to make.
The husband focussed on the attendance of F with Dr L. He gave examples of the inconsistency in F’s behaviour. He described a situation in August 2010 which was three months after he had last seen F where the child was overcome with emotion, crawling into his lap and wrapping his limbs around him begging for affection. Only weeks later, there was the complete reversal. He then described F as completely hostile and abusive making a range of unfounded and outrageous allegations of violence. A week later, there was the opposite again. Two weeks later in September 2010, in the last session that the husband had with F, the hostility returned and this time, F referred to him as “fake Dad”. Dr L was not called to corroborate these events. No evidence was led as to what this meant.
Having regard to the evidence of the family consultant, I am not sure that I can take any comfort from the assertion of the husband that F is confused. To the extent that it might be said that the wife had manipulated the situation, the evidence does not support that. In cross-examination of the wife and also the family consultant by counsel for the husband, it was asserted that there was evidence that the siblings had pressured F but the family consultant was clear that whilst that may have been the case, the children were articulating their views. Why F would behave like that, is unclear. Perhaps he was longing for the father that he did not any longer trust. The evidence of Ms K and the family consultant give support to the fact that the children had lived the experience that they complained about and were firm in their views. Unfortunately, I do not have anything other than the selective views of the husband whose evidence I generally do not accept.
The husband also criticised the wife for allowing the children to read a book entitled “A Wolf at the Table”. When tested in cross-examination about the book, the wife said that it was a graphic tale in which there were the horrible experiences of family violence by a child. The wife thought that the children had got through it and she did not see it as a problem. Ms O saw it as a problem but I do not accept her evidence on that point. The family consultant was aware of the author and she seemed untroubled about the fact that these children whom she described as intelligent and articulate had read the book. I am left with no understanding of whether it was appropriate or not for the wife to do what she did. To the extent that the husband wanted me to draw an inference that this book was used by the wife to manipulate the children such that they would put him in a poor light, I reject that. The husband has been the master of his own parenting demise.
The husband also pointed to the observations of Ms O and his period of time subsequent to orders being made, saying that the time was good because A enjoyed it and was affectionate. That does not assist me having regard to the evidence of the family consultant.
In his evidence, the husband set out the position in relation to the assault on the maternal grandmother. In paragraph 84 of his affidavit, he said:
The maternal grandmother somehow managed to convince herself I was kidnapping [B] from the police station foyer that I was returning him to and grabbed his arm, yelling “he’s going to kidnap him” and was pulling on it hurting him. [B] reflexively grabbed my hand harder because he got a fright and out of pure instinct I reached around and knocked her hand to free [B].
That evidence sworn on 3 May 2011 is inconsistent with the evidence that he gave before me only eight days later. Apart from the fact that he asserted that after delivering the children, one of the children came outside to complain about the treatment of A, he conceded that he had assaulted the grandmother and had lied to the criminal court about it. Even if I could interpret paragraph 84 of his affidavit as truthful, it was clearly led in evidence to minimise his significant role in assaulting the grandmother in the presence of the children. Why was it necessary for him to say that when only days later in the witness box, he conceded that he had assaulted the grandmother? What was sad about his evidence however was the following statement in the same paragraph:
This was very similar to the disingenuous and melodramatic behaviour of the wife along with the maternal grandmother, upon my arrival at the first prearranged family therapy session with the children in March 2010 when she barricaded herself in the office of Dr [L]…
The two events are completely different but the husband somehow connected them as being indicative of the behaviour of the wife. In cross-examination by the Independent Children’s Lawyer of the husband, it was the husband who conceded he was in the wrong and that he had previously lied to the Court. Paragraph 84 of his affidavit is grossly misleading.
The same paragraph referring to the incident in Dr L’s office was not one that I would have described as “melodramatic”. The wife, her mother and the children were sitting in the waiting room of Dr L and the husband attended when he should not have been there. This incident occurred on 26 March 2010. I do not know what scheduled appointments had been made but it must be remembered that intervention orders existed at that time. The position was sufficiently clear for Dr L to come and tell the husband to go away. Clearly he did but his accusation of the behaviour of the wife leaves me puzzled.
In respect of the husband’s relationship with the children, he described them during the marriage as having an exceptionally close bond. He went on to say, as I have earlier indicated, that he was involved in their day to day care. I do not accept that. He said he was able to attend all of their maternal health appointments, participated in school and kindergarten but no corroborating evidence of that was produced. It was clearly denied by the wife.
In his affidavit, the husband referred to the fact that he was brought up in an orphanage after he was made a ward of the state. He described himself as “one of the better stories” from those institutions but he returned to university as a matured aged person and achieved advanced degrees. That evidence was puzzling. Leaving aside relevance, when he was cross-examined about his description of himself as a professional, he conceded that he had no such bachelor degree or trade qualifications. If he was referring only to engineering, his explanation was plausible. I understood him to say that he had no such qualifications of any nature.
The husband also made reference to the fact that his unfortunate time in the orphanage was the subject of files of the Department of Human Services which the wife recovered and read to the children asking him to share memories with the children as he did. Why that would be seen as a criticism of the wife I am not sure having regard to the fact that he was present and participated.
In respect of B, it was the husband’s evidence that the wife had been determined to obstruct any opportunity for B and he to heal their relationship as a result of not only the assault on B but also the fact that he had put the child through the court process. It was the husband’s view that the children were involved “because that was the nature of the case”. He was critical of the wife for not supporting therapy. Having regard to all of the circumstances, it is hard for me to disagree with the position of the wife.
Ultimately, despite my comments about the state of his evidence on the question of how he would care for the two children, there was no serious evidence about how his proposal would be beneficial to the children. It is hard to see anything much other than a criticism of the wife and blaming her for his own behaviour. The record speaks for itself.
The law
Both parents sought parenting orders. Both parents sought an order for equal shared parental responsibility. Equal shared parental responsibility is not defined in the Family Law Act 1975 (Cth) (“the Act”). Parental responsibility is defined. It means all of the duties, powers, responsibilities and authority which, by law, parents have in relation to children (s 61B).
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. That mandatory presumption is rebutted if a court is satisfied that there are reasonable grounds to believe that a parent has engaged in abuse or family violence.
As my earlier findings show, the convictions, the intervention orders and the evidence of the wife which I accept about her fear, must mean that the presumption is rebutted.
There is no basis therefore for me to make an order for equal shared parental responsibility.
Despite the rebuttal of the presumption, I still have an application by the husband for equal shared parental responsibility. Section 65DAC requires that if parties are to share parental responsibility under an order relating to major long-term issues about the children, the order is taken to require the decision to be made jointly by those persons. There is no prospect in this case of that occurring. I refer back to the evidence of the family consultant about the nature of the relationship as she perceived it. I refer back to the evidence about the convictions including the assault on the wife. I refer back to the convictions for the breaches of the intervention orders. The husband’s evidence that he could communicate with the wife by written means is untenable having regard to his view that the wife is not an appropriate person to be caring for the children because she manipulates them.
Section 60B of the Act sets out the objects and principles underlying Part VII. These are the aspirations of the community for children which guide any decision to be made by the courts.
The legislative objects require consideration of how the Court can meet the best interests of the children by ensuring that they have the benefit of both of their parents having a meaningful involvement in their lives to the maximum extent consistent with their best interests.
The legislative intention is also clear that the objects are to protect children from physical or psychological harm. It is also intended that children receive adequate and proper parenting.
After years of litigation and because of the findings I have made above, the only conclusion open is that the legislative objects in this case are sadly not being met from the father’s perspective. This case is not just about F and A nor is it just about A if I accept that F does not want to see his father. It is about all four children. Those children are at risk of emotional harm and possibly physical harm for the reasons earlier set out. To simply take up the proposal of the father would also mean that on the evidence he presented, they would not receive either adequate or proper parenting.
The Court can only do the best for the children based upon the evidence presented to it. There is no basis for me to reject the mother’s evidence. I do reject the husband’s evidence.
The objects also require consideration of the evidence that would enable a court to say that the orders will ensure that the parents fulfil their duties and meet their responsibilities concerning their children. Nothing I heard from the husband would convince me that he has or would fulfil his responsibilities as a parent.
Section 60B sets out the various principles underlying the legislative objects. They are that children have the right to know and be cared for by both parents as well as the right to spend time on a regular basis with and communicate with both parents. Having regard to the matters set out above, the children’s rights are not being fulfilled. The husband must take responsibility for that but it is the responsibility of the Court to try to ensure, if possible, that those rights are met. I am convinced that there is no order I could currently make that would enable face to face time to be healthy for the two younger children.
The principles include parents jointly sharing duties and responsibilities concerning children as well as agreeing about the future parenting of their children. There is no prospect of that happening here. The husband has no respect for the views of the wife and she fears him.
Section 61DA provides that when making a parenting order, the Court must apply a presumption that it is in the best interests of the child for the parents to have equal shared parental responsibility. That mandatory presumption is rebutted if a court is satisfied that there are reasonable grounds to believe that a parent has engaged in abuse or family violence. I am satisfied for the reasons above that that situation applies and the presumption is rebutted.
In this case, there are not only intervention orders which included the children but there are also convictions for an assault on one of the children.
Section 60CA requires that when a court is deciding whether to make a parenting order, it must regard the best interests of the children as the paramount consideration. To determine how to assess those best interests, the Court is obliged to turn to the provisions of s 60CC.
Consideration of Section 60CC enables a picture to emerge of what orders should be made that might best advance the interests and development of the children.
It is a primary consideration in s 60CC that the children have the benefit of having a meaningful relationship with both parents. In Pishke & Rupp; Bannon & Rupp [2010] FamCA 632 Murphy J noted with approval the comments of Nygh J in Cotton & Cotton (1983) FLC 91-330 at 78,252, where the question was asked whether there was a chance of a meaningful relationship which was beneficial to the children but also whether both parents had ‘something to offer’ the children.
In a case where the focus has been largely on the behaviour of the husband and its impact on the children, one must ask the obvious question of what benefit will the children receive from any orders that I make?
In Loddington & Derringford (No. 2) [2008] FamCA 925 I referred to the fact there was no legislative definition of meaningful relationship and said that for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child. Three out of these four children strongly resist any involvement with their father. He points to the recent nature of the opposition of F and criticises the wife for her having manipulated that situation. The evidence does not support such an assertion.
An important question is what damage will be done to the children by enforcing the ongoing relationship that the husband wants to have. One element of that answer concerns how any orders would impact on her parenting. Another concerns how the children view one of their siblings continuing a relationship which they not only reject but also fear. Their rejection and fear is well-founded.
The mother provides a stable relationship and environment which I find would be undermined if the father was given an opportunity to spend time with the children.
Could that problem be overcome by supervision? In respect of F, I find that it would not. That situation has been tested since May 2010 and despite Ms O’s efforts, F has declined further involvement with his father. His apparent mixed messages in the presence of Dr L do not help me work out a way to ensure he obtains the benefit of any relationship with his father.
Could the relationship between the husband and A be improved or secured by supervision? Having regard to the evidence of the Family Consultant, it is difficult to see how the objects and principles earlier mentioned could be fulfilled if it was supervised indefinitely. I reject the concept of allowing unsupervised time between A and his father to enable the child to have some form of memory of his father for the prospect of some future relationship. The child knows and recognises his father and has begun to show signs of reticence. More importantly, the ongoing contact by A has an adverse impact on the wife and the other children.
The father has not changed his view about the mother and his views about the violence he perpetrated on B were unconvincing.
The evidence shows these children were exposed to a dysfunctional family life for years. There are signs with the position adopted by the children that that has now changed and they are relieved. I am very concerned to simply destroy the current stability. Having no confidence in the husband’s evidence, I am unsure what he would do if given an opportunity to simply take A for unsupervised time.
Section 60CC has a number of additional considerations. The children have expressed their views. Two of these children are very young to have their views taken seriously but the evidence is that the Family Consultant thought them of value and to be given weight. Their level of maturity belies their years. I propose to respect their views.
The nature of the relationship of the children with each of the parents is set out above. The children and the wife are close. The same cannot be said of the husband and the children.
The wife provides all of the physical needs for the children. Evidence about their education and health indicates they are progressing well. I am unsure what the husband is offering because he has had such a limited time under supervision but his evidence about his lifestyle and accommodation leave me perplexed.
The husband provides limited child support. Whilst that may not be surprising where someone is a Centrelink recipient, there was much in his evidence about what he was doing and spending that strongly suggests that he sees his own priorities before the mundane daily living expenses of the children. Whilst the taxpayers are also meeting the costs of the children by supporting the wife, having regard to the number and ages of the children, it is hard to see what else she could do. She gets little assistance from the husband. Whilst he was spending supervised time with A, he had to be reminded by Ms O about attracting the children by material means. He may have felt it important to buy them things to feel good about himself, but it may have been better to have bought things that the wife may not have otherwise been able to afford and which would have been beneficial in her household.
The husband is unable to facilitate a relationship between the children and their mother. He has failed to work towards providing his children with things that the objects and principles of the Act require.
Section 60CC requires the Court to consider the likely effect of changes in the children’s circumstances. Nothing suggests that the children are being psychologically or emotionally damaged by the absence of their father. They would be if they were removed even for relatively short periods of time from their mother.
I accept the wife’s position in evidence that she wants the children to have a relationship with their father and she even offered a solution for him. I accept she has the children’s interests as her priority.
I am satisfied that the mother is meeting all of the emotional and intellectual needs of the children.
All of the findings above relating to the parental attitude to the children and the responsibilities of parenthood show the stark distinction between the parents. The husband has not put down the cudgels against the wife. He does not see her as important in the lives of the children notwithstanding he may say otherwise. He had every opportunity in the days before the commencement of this hearing to articulate a positive view for his children and how he would participate in the parenting of them. Instead, he rehashed criticisms and initially suggested that the only solution was to remove the children. He did not offer a plausible alternative. He clearly instructed his counsel to put matters challenging the wife’s history of the relationship but then selectively conceded that he had lied about important issues.
I have already dealt with questions of family violence in the family violence orders. Those matters are historically now recorded. As earlier mentioned this case is a sad one in which there has been a fundamental breach of trust by the husband. Not only did the husband physically hurt a child that he had an obligation to protect but he also accused his children of being liars, only to later recant and admit that he was the liar. I can have no confidence that he would not hurt these children if he had them or any of them unsupervised and I am concerned about the psychological pressure that I think he would apply to all or any of them to prove that he was right.
Section 60CC requires a court to consider whether it would be preferable to make an order that would be least likely to lead to the institution of further proceedings. I carefully considered whether I could make orders giving the husband an opportunity to rethink his position and do what the wife suggested he should do. He proudly and confidently pointed to the evidence of all of the courses he had undertaken and to the evidence of Father M to indicate that he knew what parenting was all about. On the evidence and particularly having regard to his concession as late as cross-examination that he was an untruthful person, I was left with the position where I could see no point in giving him a further opportunity in these proceedings to change his ways. As late as final addresses, I asked his counsel whether he was still pursuing orders relating to S and B and in turn, F despite all that I had heard. His instructions to his counsel were that I should determine the matter and make orders notwithstanding he had no specific proposals for orders to put about the two older children.
The husband also pursued the right to have equal responsibility for decision-making about major issues affecting the children. That order requires the parties to consult with one another (see s 65DAC). That could not possibly occur here on a face to face basis. The husband must have seen that as realistically untenable yet he pursued that order saying that arrangements could be made through written communication. The written communication would be unlikely to enable the parties to reach any agreement.
The husband must sort out his own life and begin to acknowledge the damage he has done to the children before they would be interested in pursuing a relationship.
Communication by the husband in the future
The main concern in this case has been the face to face contact between the husband and the children although at least on one occasion, correspondence appears to have been problematic. Section 60B(2)(b) enshrines in legislation the right of a child to be able to communicate with a parent, as distinct from spending time with that parent, except where it would be contrary to the child’s best interest.
The starting point is that the four children should have the opportunity to communicate with their father but it must be in circumstances that do not adversely affect their individual and collective interests. Telephone communication by the husband has been counter-productive as can be seen by the incident involving the husband playing the taped proceedings of the wife’s voice. My lack of trust in the husband makes clear that that medium would not be best for these children. The incident with the letter to S about the computer also leaves me perplexed as to whether the husband understood and understands the power imbalance between an adult and a child and his responsibilities as a parent not to involve his children in the adult conflict. Despite that, the children need to know of the existence of their father and, as the wife pointed out, he could be a significant part in their lives if he acted responsibly. I see no reason why the wife could not vet the correspondence of the husband for the children, at least in respect of the younger ones. If the husband abuses the parental privilege or fails to act responsibly, the wife would be within her responsible role to prevent that material being passed on.
In addition to letters, notwithstanding the difficulties that arose out of the computer delivery to S, the husband should be able to send presents at Christmas and on the birthdays of the children and perhaps even at other times. If those presents are inappropriate, the children will reject them. On the other hand, if appropriate, the children will begin to understand that they have a father who wants to have a part in their lives notwithstanding what has occurred in the past. The husband might want to get some professional advice about approaching that task.
I do not see that permitting such correspondence and presents is contrary to the children’s best interests because the evidence shows that it is the face to face time which causes consternation for them.
Telling the children about these orders
These children may be mixed in age and maturity but they are still vulnerable and young. This case is quite unusual in the sense that, because of their level of maturity and understanding of what has gone on, the children are anxious about their own futures with the older two more so than the younger two. As I have made clear, it is time to stop their involvement in the conflict of their parents. Whilst I have confidence in the wife as a responsible parent, I consider that the explanation of the orders and these reasons should be left to an independent person. That explanation needs to be carefully considered because I do not want the children to be unnecessarily empowered nor to be able to take “sides” with their mother and see this as some sort of a win for her. The children are the losers in this case because they have lost the right that the vast majority of children in this nation enjoy, that is, the right to have a close and loving relationship with their father and consequently, to spend time with him. The foundation for the orders I propose to make flows from my findings in this case and my understanding of the law but it is the psychological and emotional consequences of the orders that affect the children. Whilst it is important that the children understand what the orders say, it is equally important that they understand why their rights are being affected and the Court’s intention that those rights could be restored to them if their father established a proper foundation for him to be a significant part in their lives. Hence, the children need to understand what those rights are and how the communication issues that I have mentioned above will enable them to know about their father. As such, the family consultant in the proceedings seems to me to be the more appropriate person rather than the Independent Children’s Lawyer.
I certify that the preceding Two Hundred and Twenty Seven (227) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 2 June 2011.
Associate:
Date: 2 June 2011
Key Legal Topics
Areas of Law
-
Family Law
Legal Concepts
-
Costs
-
Remedies
0
4
2