Reynell and Cecil
[2017] FCCA 2927
•7 December 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| REYNELL & CECIL | [2017] FCCA 2927 |
| Catchwords: FAMILY LAW – Parenting dispute – mother alleging and father denying family violence – father alleging children alienated from him by mother – family violence clearly established – children terrified of father – children expressing in strongest terms desire to have no contact with father – mother to have sole parental responsibility – father’s time reserved. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60CC |
| Goode & Goode [2006] FamCA 1346 |
| Applicant: | MR REYNELL |
| Respondent: | MS CECIL |
| File Number: | DGC 956 of 2016 |
| Judgment of: | Judge Burchardt |
| Hearing date: | 26 & 27 October 2017 |
| Date of Last Submission: | 27 October 2017 |
| Delivered at: | Dandenong |
| Delivered on: | 7 December 2017 |
REPRESENTATION
| Counsel for the Applicant: | Mr Reynell, In Person |
| Counsel for the Respondent: | Mr Lovering |
| Solicitors for the Respondent: | Michael Benjamin and Associates |
| Counsel for the Independent Children’s Lawyer: | Ms Elleray |
| Solicitors for the Independent Children’s Lawyer: | Victoria Legal Aid |
ORDERS
The mother have sole parental responsibility of the children [X] born (omitted) 2003 and [Y] born (omitted) 2005 (“the children”).
The children live with the Mother.
The children’s time with the Father be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Reynell & Cecil is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT DANDENONG |
DGC 956 of 2016
| MR REYNELL |
Applicant
And
| MS CECIL |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a parenting dispute. Property issues were finalised by orders made in chambers on 29 March 2017. The applicant father seeks that there be an order for joint parental responsibility for the two children with whom we are concerned, [X], born (omitted) 2003 and [Y], born (omitted) 2005. He also seeks that the children spend time and communicate with him. The father seeks that the children live with him forthwith from the issuing of judgment and that he be the primary carer and spend only the most limited amount of time with the mother.
The mother, whose position is essentially supported by the Independent Children's Lawyer, seeks an order for sole parental responsibility and that the father's time be reserved. Despite the evident sincerity of the father's love for his children and his desire to see them, it is, I regret, to say overwhelmingly obvious that the orders sought by the Independent Children's Lawyer and the mother should be made.
Agreed or Uncontroversial Facts
The father was born on (omitted) 1960 and the mother was born on (omitted) 1971. They met in 1995 and commenced a relationship in 1999. As noted, [X] was born (omitted) 2003 and [Y] (omitted) 2005. [Y] suffers from Asperger's syndrome. It is common cause that the mother was the primary carer of the children during the relationship. The parties married (omitted) 2002 and separated in February 2015. This separation followed a violent incident, to which it will be necessary to return, on 14 February 2015 and an Intervention Order taken out in March 2015 pursuant to which the father was removed from the matrimonial home, from which the mother and children had previously left.
The father has a criminal history, including a number of relatively historical assaults, but also including an incident with a Mr O in 2014 for which the father was convicted. The father had also breached the Intervention Order and pleaded guilty to such breach in (omitted) 2015.
The Parties' Affidavit Materials
The parties have filed a number of affidavits. It is from those affidavits that the agreed and/or uncontroversial matters set out above are taken. The affidavits make wearisome and dispiriting reading. The father has also filed affidavits from two of his children and his first wife. The children gave evidence and were cross-examined by telephone. Put shortly, the father's case is that the mother has alienated the children from him.
Put equally shortly, the mother's case is that the father is a narcissist (see affidavit 24 October 2017), who has only ever focused on his own needs. She accuses him of deliberately leaving work, so as to evade his child support obligations (now some $8000 in arrears) and desires that the father play no role in the children's lives at all.
It is not necessary to say more for these purposes about the parties' affidavit material, although obviously I have had regard to all of it. It is rather, in my opinion, more appropriate to concentrate on what transpired during the hearing at Court, to which I now turn. What follows is taken from my notes and is not, of course, a transcript. It records those aspects of the evidence that I found significant.
The Father
The father, who was self-represented, opened his case by indicating that he believed his children were in danger and that he was seeking the orders in his case outline (whereby the children would forthwith go to live with him). Counsel for the Independent Children's Lawyer tendered as exhibits ICL1 and ICL2 notes taken at a meeting between the children and the Independent Children's Lawyer on 25 October 2017 and letters from [Y] and [X], which they had prepared and asked the Independent Children's Lawyer to provide to the Court.
The father noted that these documents had been produced when the Independent Children's Lawyer had seen the children the day before. He said they were a sickening example of alienation. It was impossible that these were prepared without the assistance of the mother and/or lawyers. The issues had never been raised previously. Mr P (a psychologist seeing the parties) would refute these matters. They had never been raised by the mother. These letters were evidence of psychological damage perpetrated by the mother, her family and friends.
The father was called and adopted his affidavits as true and correct. He also tendered as exhibit A1 a USB stick. This proved to be a CCTV coverage from a supermarket store which covered one of the matters in issue in the proceeding. The Court saw the recording. I will return to what is to be made of that recording later.
The Father Under Cross-Examination By Counsel For the Mother
The father confirmed last time he saw his children was at another meeting at Woolworths when the children simply turned and fled. This was about June 2016. The last time he spoke with the children was 20 June 2015. The children were with their mother. He filed his application in April 2016. His lawyers were having trouble with the mother's solicitors and this had delayed the issuing of the proceeding. The solicitors were not responding to his inquiries. He was relying upon his lawyers to do their job. They had told him they would file. The lawyers withdrew in May 2017.
The father confirmed that his original application had sought time with the children, but he now wanted the children to live with him. He had last spoken to one of the children on the telephone in August 2015. His lawyers were negligent. He was getting himself together. It was a matter for him when he filed his application. He decided to amend his case in about June or July 2017. He had been writing letters to his sons and getting nowhere. He could not explain why it had taken him so long to amend his application.
He had been ordered to attend Mr P and did so approximately six times. He did not know how often the mother had attended. He did not see the children with Mr P. He understands that the children do not wish to see him and are adamant at the ages of 14 and 12 respectively. He wanted the children to live with him and spend no time with the mother. He would prefer the children to go into foster care if they did not live with him until the mother was treated. He lives with his mother in a two bedroom property. It is near to the mother's home.
He would get a new rental property immediately if the children were with him. He is presently looking after his own mother. He is not on Newstart. He is living on his own means. He has savings of $175,000 in his account. He is not paying child support. When he sees his children, the mother will be paid all child support. He pays rent and bills for his mother. He stopped doing so in August 2017 when he went to Queensland for two months.
He is not going to go back to Queensland to live. He obtained $150,000 from the sale of the matrimonial home. He had not declared this to the Child Support Agency.
His children are [X], who is in grade 8 at School A and [Y], in grade 6 at School B. He pays half the school fees. He has not been allowed to be in the children's lives for two and a half years. He contacted the schools many times and went to [Y]'s parent-teacher night. He spoke to the deputy principal at School A, but School A refused to talk to him, because his name is not on the enrolment form. He now obtains copies of school reports. School A will not talk to him because of [X]'s psychological problems. There is no point in his contacting the school until [X] is in his care.
[X] has grown since 2016. The father is going to organise therapy for both boys immediately once they are in his care. He knows it would be difficult for the boys. This is what alienation is about. The children need to realise that their father loves them. Things have been withheld from them. The boys' notes are false.
There were incidents with the mother in the house. He smashed a picture frame. The boys did not see it. It was a single-story house, at 6 pm. The boys were in the bedroom. He went to hospital, because he cut his hand.
When it was put to him that the children say they saw the assault, he said this was not the case. They must have heard it. It would have terrified them. If they knew what had happened, had seen the violence by the mother on him, it would be different. He has apologised in letters, but these are not passed on. He would walk away if the relationship was irreparable, but it is reparable.
Separation had taken place in about February or March 2015. He spent time with the children, as the mother allowed. He was offered one hour per Sunday, but he did not accept it.
The father was cross-examined about an incident in June 2015 and counsel put to him [X]'s version in ICL2. The father remembered the children arriving at 4.30 pm and giving them chocolate Big Ms. He was talking to the children. When it was put to him that he had been saying, "I am your father," “blah, blah, blah”, "talk to me," and so on, the father said he did not remember this. It was impossible. [X] did cry on this occasion, but he was not yelling at him. This was his mother's version of what happened.
The son has no independent recollection of any of these incidents. [X] was being yelled out by his mother telling him, "If you do not come back now, you won't go to camp next week." [X] was inconsolable and ran off to his mother. [Y] kissed him goodbye. [X] is just saying what his mother wants and has been brainwashed by her. He pleases his mother at every opportunity. The documents constituting exhibit ICL2 were produced by the mother or her lawyers.
The father had undertaken a Parenting After Separation course at (omitted). He has learnt that communication is the most important thing. The mother has cut off all communications. He seeks an order for joint parental responsibility. He would expect the mother to communicate with him. He refuses to deal with the Child Support Agency.
The children would not see the mother until the mother has had help.
The father did undertake a Men's Behavioural Change course at (omitted). A lot of men are accused of violence. His behaviour was not up to scratch. Communications was a major problem. He could not bring himself to question the mother about her problems. He would walk out of the house and go to the garage and work on the car. They both looked after the children.
[X] was into dance, music and theatre. [Y] was Minecraft crazy. The children now think all he wanted to do was just to see the footy. He had breached the Intervention Order and had to do a Men's Behavioural Change course as part of the outcome of that. With the mother, his behaviour was reactionary. This was the case with the first wife also. He broke her nose.
He had wanted the mother to speak to him with some modicum of respect. The mother had left 10 years before the marriage finally ended. She was hating him. After [Y] was born, she lost all respect for him. He had never touched Ms Cecil in his life. He had consented to Intervention Orders. Family violence is physical violence or emotional and financial abuse. He was very disappointed with the way the mother chose to end the marriage. He would let the children ring the mother if they were with him.
He would discuss with them if they wished to return to the mother. He would have a psychologist involved called Ms C. Ms C had seen both him and the mother. The boys will live with him if the Court orders it. They will need time with him to recover.
The Father in Cross-examination by Counsel for the Independent Children's Lawyer
The father said he was prepared to do anything for his boys. He does not care what it costs. He wants no more delays and would pay anything for his sons. It needs an effort by all of them. The situation was not created by him.
The father was cross-examined about the incident recorded on the USB stick. He agreed that [X] went to obtain a trolley. He conceded that there is a current Intervention Order in place and that there was a breach of the Invention Order proceeding in November 2015. He had rung [Y], which was what the breach was. He had been cut off from speaking to [Y] on his 10th birthday. He rang back and left a message on the answering machine. The breach proceeding arose from a combination of texts and emails.
He knew the Intervention Order was in place. He just wanted to talk to his son on his 10th birthday. He accepted that the mother was out to find anything to keep him from the children out of vengeance.
[X] had been conditioned by the mother to think that the father would kill him next time he sees him; that is why he is frightened. The mother filed a notice of risk based on the incident on 11 May 2016 (this is the CCTV incident). He did not see the children on that occasion until he walked out the back door of the supermarket. He saw the mother and children walking towards the store and went straight back in. He conceded that his son fears him.
He said a hole in the toy room in 2011 was done by [Y] jumping around. He put a guitar through the door. He denied saying, "Fucking shut up," on 14 February 2015. He conceded he smashed a hole in the bedroom wall after an argument with the mother. All day he had been getting cold callers at regular intervals. There were six calls. He had an argument on the occasion of the last call and had abused the caller back, just as the mother came home. The caller said, "This is what I'm going to do to your wife," and the father told him where to go.
The mother screamed at him and he hung up. He went to the bedroom door. The boys were in their bedroom. He pushed the door handle through the wall twice. This was the same incident where the photograph frames were damaged. The mother was punching him and grabbed him by the hair, pushing him into the wall. He took whatever she was giving. There was damage to the photograph frames. There were abusive threats on both side. The father denied that separation took place on 16 February 2015. It took place three weeks later when the mother obtained an IVO. He had cut his hand when he damaged the photographic frames and went to hospital and had stitches on his knuckle.
The Independent Children's Lawyer tendered as ICL3 the father's police LEAP records.
The father agreed that the mother worked hard when she went back to work. She had taken time off for the baby. He disagreed he had a problem with anger and denied a history of violence. He had not assaulted his daughter. He broke his first wife's nose and that led to an Intervention Order. The assault on his previous employer was blown up out of proportion. He was convicted of recklessly causing injury to his employer in 2014. This took place a month before his daughter's wedding. He denied the extent of the violence on that occasion. He received a diversion order and 75 hours of community work and had to attend a men's behaviour group.
The father moved to (omitted) in August 2017 and lived with his daughter, Ms A, and her family. He had given up his job and is living on his savings. Both the boys and the mother are (omitted). [Y] has mild to moderate Asperger's. The children enjoy sport when they play it. The father admitted an incident on 14 June 2015 when the boys and the mother were present. He spoke to [X]. He had just found out that the mother did not want to continue the marriage. He told [X] there were financial problems and it might not be possible for him to go to School A next year. He said that he told him that he might have to sell the house.
In re-examination, the father confirmed that he had originally placed the matter in the hands of his lawyers and there were six months of negotiations between them before proceedings were issued.
The Evidence of Ms R
Ms R confirmed that [X] received a 12th birthday card and tore it up, but kept the money. In evidence-in-chief, she adopted her affidavit.
Under cross-examination by counsel for the mother, Ms R admitted she had discussed the matter with her father before she swore her affidavit. She was one when her own parents had separated. They did not speak at changeovers and were fighting in front of her. Since her sister had married, her parents were much closer. She is not married, but moved to Queensland in 2001. She then saw the father once per year until she moved back to Victoria when she was 15. Her father had never been physical to her or her sister.
Under cross-examination by counsel for the Independent Children's Lawyer, Ms R confirmed that she sees her sister, Ms A, every week. They are much closer now. Her father had come for a holiday and stayed at Ms A's house. Her father is very hopeful of getting the children. He had lived with Ms A for about a month and left a week ago. The father had shown affidavits in the proceedings to her.
The Evidence of Ms A
Ms A adopted her affidavit as true and correct. In evidence-in-chief she confirmed that she had a very strong relationship with the father and had not seen [X] and [Y] for three years. Before that, she had a fantastic relationship with them. She loved Ms Cecil (the mother), but had not seen her for two years. She had always been a mother to her and it was upsetting that she did not have a relationship with her now. [X] had got a card when he was 12 years old and kept the money, but tore up the card. She was really shocked at this.
Under cross-examination by counsel for the mother, Ms A said that the father would not cut off money to Ms Cecil and the boys. He does not pay child support, because he is not allowed to see the boys. This was a protest. She spoke to her father on Wednesday. There was no talk about her affidavit. He has stayed with her family in Queensland, but came to Victoria the previous Saturday. He would definitely not bring the boys to live in Queensland. The father was not scary, but was authorative. There was no violence in her presence or his sister's. The father had showed her affidavits in the proceeding.
Under cross-examination by counsel for the Independent Children's Lawyer, Ms A confirmed that she loved her father. She will do everything she can to help him, Ms Cecil and the boys. She typed her affidavit on her own.
An affidavit of Ms S was read without objection or cross-examination.
The Evidence of the Mother
Counsel confirmed that his client was seeking that the children spend time with the father in accordance with their wishes.
The mother was called and adopted her affidavits as true and correct.
The Mother Under Cross-Examination by Counsel for the Independent Children's Lawyer
She continues to live in the matrimonial home.
When questioned about the CCTV footage, the mother said that she had felt that the father was walking very fast at the supermarket. He came back into the store. She said that she and the children ran out of the store. The car was parked close by and she used the remote to open it. She got into the car and [Y] got in and she turned back to see the father running out of the shop shouting, "My boys."
The relationship between the parents had declined over the last 10 years. She stayed in the relationship to try and make it work. Additionally, her religious views were relevant. [Y] is diagnosed with mild Asperger's and is treated at home.
The events of 14 February 2015 were clear. This was the final straw. The father smashed a car windscreen in the backyard when the children were in kinder and primary school about seven years before separation. On 16 February 2015, she told the father the marriage was over, but they are not yet divorced.
The incident involving the toy room door was in July 2011. The father was very angry and smashed CD cases into the wardrobe door.
The father's workplaces had been fraught with problems. She had received a phone call from someone called Ms G, who had told her that the father had been asked to leave his job in (employer omitted) in about 2011. She tried to shield the children from issues to do with the father's employment. She told them he was taking holidays.
(omitted) is something [X] wanted to do on his own. The children were very sensitive after separation and took a while to get over it.
When questioned about 14 February 2015 incident, the mother said the children were at the back of the house. It was a loud altercation and both boys heard it. They had heard other large altercations also. There were only two significant incidents. The father used to shout at her during fights or discussions and the children saw this.
The children are not sporty. [X] went to (omitted) up to prep. This became an issue for the father, because [X] was embarrassing him. The father wants the children macho and they are not. [X] in particular thinks the father does not get it. He was a very hands-off parent. She has told the boys that the father loves them. They had had family discussions when they were all distressed. She felt she should listen to the children. [X] said he had heard the father calling him a “poofter”.
The two photographs that were smashed were originals. They were studio photographs. The rules for the father's girls were different than the rules for him. They were not allowed to swear. The father was overly authoritarian, even though he swore himself. [X] never stood up to his father. He took the $50 and tore up the birthday card. She had seen the card, and it was very appropriate. Anything he sends gets to the children. The children ultimately refused to telephone time, so she gave up.
She said the father had given a lot more to [Y] than [X] since the separation. He pays half of [Y]'s school fees. Their school fees are about $1200 each. She pays her half fees for School A. The other half has not been paid. It will be $6800 when the children are 16 and 17. She will be assessed for assistance. If there are reduced fees, then [X] will not be permitted certain activities.
The mother's (omitted) job is at a (employer omitted) for two hours per week. The father has longstanding anger management problems. She has filmed the children and they knew this. She said her lawyers told her to do this.
The events of separation on 14 February 2015 were traumatic. She accepted the children's views are both partly from their own experience, but partly from her own. She has since realised that this was not the right thing and has stopped. [X] knew the Intervention Order was going to expire, and this was the catalyst for his self-harming. She does a drive-by before parking at the supermarket, because the father uses it also. The children do not mention the father. She has told the children that they are welcome to contact the father. They do not even want a milkshake with the father.
The children had met the Independent Children's Lawyer the day before yesterday. They had typed the documents they gave her. She had told them that they would see Ms R. [X] said, "Finally I get to be heard in Court." The mother is not undertaking counselling at the moment. [Y] no longer wants counselling. He will engage with a counsellor at School A.
The Mother Under Cross-Examination By The Father
The mother denied ever hitting the father. She said that he pushed her. She admitted once pulling his hair on 14 February 2015 when he had smashed the door and the hallway photographs. There was glass and blood everywhere. The father broke at least four photographs and five were damaged. There is no current Intervention Order. She and the children are scared of the father. She believes the boys' allegations are true and correct. [X] self-harmed in March of last year. She had not told the father this, as he had caused it. Asperger's is part of the reason for [Y]'s anxiety at school. She said she thinks that [Y]'s Asperger's is exacerbated by the father's conduct.
Discussion about the father's relationship with his first wife was overheard by the children at Ms A's home in 2015. The children discussed this with the mother. The father and his wife had a volatile end to their relationship, but are now in a loving relationship. They are both remarried.
The mother had not pre-read the letter sent to the children. They received personal letters from the father, but did not respond. They refused to negotiate. The mother thought that a milkshake offer was a good way to start off, something that could develop from that, such as a meal.
The mother remembered [X] after the eisteddfod. He was bullied at school for acting and was anxious. The father talked to him and told him not to quit and cheered him. The mother said the father did call [X] a “poofter”, because of his Michael Jackson dancing.
Other Material Before The Court
The Court does not have a family report, but does have a section 11F report dated 13 September 2016. It is sufficient to note that the children were unequivocal in their views that they did not want to spend with the father, then or in the future. The report noted the likely effects of a corrosive relationship with their father, which might be irrevocable and which would have a detrimental and lasting effect into the future.
A Department of Health and Human Services report dated 26 May 2016 is on the Court file, but it is of no significance, given the way in which the case has developed.
The Final Submissions Made
It is worth paraphrasing the submissions of the parties, given the way the case has devolved.
The Submissions of the Independent Children's Lawyer
Counsel pointed to the fact that the Court had not heard from Mr P. There were some 17 sessions held. Some were with the mother and father separately and some with the boys individually and together with the mother.
It was submitted that the father has made much of parental alienation, but this is not borne out. The events of February 2015 were sad. It was apparent from [X]'s letter (exhibit ICL2) that the parents' relationship was unhappy and that there were disagreements with frequent verbal abuse. There was physical violence in 2011 and 2014. The phone calls that so irritated the father in February 2015 were not made by the mother. The mother pushed the father and pulled his hair, but this was after an angry, aggressive outburst by the father. [X] made a contemporaneous voice record of the event. The mother has stayed in the relationship, because of her (omitted) upbringing and endeavours to make the relationship work, but it was submitted that there was gross disharmony since at least 2011.
Counsel referred to the fact that the children had been exposed to adult information in both households. Counsel referred to the father's disputes with his employers and submitted that until the father recognises he has an anger management problem, there is no likelihood of a relationship with his children. Until he apologises to them, there is really no chance of a relationship. [X] intends to change his name. The father is combative and authoritarian and does not like being told what to do.
The children were brought up by the mother and the children saw the blood on the father's hands on 14 February 2015 with his rage and yelling. [X] has said in his letter that he was then "done with him". Counsel submitted that it was to be hoped that the father would continue to send cards to the children in the future. The mother would like the children to have a relationship with the father, but cannot make them do so. They are too old to be forced. The father rang on [Y]'s 10th birthday. This showed a lack of insight. He acts and then reflects later.
There is very little the Court can do in these circumstances when the children are in this frame of mind. The father has undertaken an anger management course, but it is hard to accept, given his behaviour during the Court hearing. The children have had enough and need time to regroup. The Independent Children's Lawyer submitted that the father should undertake counselling. His daughters love him, but have little experience of him with the children. The Independent Children’s Lawyer submitted there was no easy answer, but that the mother should have sole parental responsibility and the father's time should be reserved. The father was to address his anger management issues. Presents and cards were acceptable.
Submissions of Counsel for the Mother
Counsel adopted the Independent Children's Lawyer's submissions. He pointed to the father's anger and lack of insight. There were competing residence applications and the father's proposal was not underpinned by any means of being put into place. Counsel submitted that the father's evidence was given aggressively and with no regard to the mother's situation. The father went so far as to say that if the children were not with him, they should be in foster care. The father admits domestic violence, but says the mother is the cause of it.
He broke his former wife's nose. The boys lived in that environment. The father is angry and has a lack of insight. It was submitted the boys had blossomed since the father had left and were doing well at school. If the orders the father sought were made, there would be a huge risk that the children would regress. Even spending time would be a risk. The father had no answer when asked how he would take the children into his care. It was not likely he would change. He will not pay child support and there is $8000 owing.
Counsel opposed the sending of cards and letters. The children do not even want these. [X] is seeking to change his name. The father just blames the mother and the father does not get it. He never will. It is very sad.
The Submissions of the Father
The father said that at no point in the trial had anyone questioned the mother about her violence against him. He said a novel is being written. A voice memo is referred to, but not produced. The hateful comments of the children were clearly orchestrated. He was deeply saddened that he had no relationship with the wife and had been since 2005. He was heartbroken his sons no longer believe that they want him in their lives.
There was groundwork in the years leading up to separation. The boys were alienated while they lived together. He has lost two and a half years of his children's lives. He holds no grudge. The mother needs to see her actions of damage to the children. It can only be resolved with counselling. The letters from the sons can not be believed, because they are not the truth. He has not seen his sons for too long. He has done all the courses. He has not been holding out financially. He will pay for the children, but wants a private agreement. The Child Support Agency is a corrupt government department.
He concluded by saying, "I want to see my sons. It is not right. Two and a half years is not right."
All the father's submissions were made, understandably, at a pitch of evident emotion and his concluding remarks were almost despairing.
The Credit of the Witnesses
The father was a witness who clearly believed what he was saying. His demeanour in Court, both at the bar table and more particularly in the witness box was noticeably aggressive. When it was put to him by counsel for the Independent Children's Lawyer that he had a problem with anger, his denials were put in a visibly angry way. Nonetheless, comment must be said to the father's credit that his answers were generally responsive and direct. It was not so much the truthfulness of what he said that was of difficulty, but the content of his evidence, and most particularly the marked lack of insight to which I shall come.
The mother was a direct and responsive witness who, in my opinion, was clearly telling the truth.
Findings on the Facts
The parties entered into their relationship in 1999, but it is clear that at some point, not able in my view to be precisely denoted, the relationship went awry. The mother found the father's conduct sufficiently off putting effectively to have withdrawn largely from the marriage many years before final separation took place. She stayed in the relationship because of a desire to try and make it work and because of her religious beliefs.
There is no getting round the issue of violence in this case. There is no question that the father is a man given to violence. Despite his denials, it is clear that he assaulted a former employer and his assertions that it was that employer's fault are not ones I am prepared to accept, having seen him give his side of the story. While there was relatively limited acts of physical violence, I have no doubt that the father's aggressive and domineering personality would have been a significant feature of the family household throughout the relationship and more particularly towards its end.
I do not accept the father's account of the earlier incident when the toy room was damaged. It is clear that the mother's version is correct. Furthermore, her version of the event leading to separation is also clearly correct. The father lost his temper because of irritation with cold callers on the telephone and proceeded to scream and yell at the mother in the presence of the children. She did seek to push him and grabbed him by the hair, but as counsel for the Independent Children's Lawyer correctly submits, this followed an angry and abusive outburst by the father. He undoubtedly smashed up the photographs, some of which would undoubtedly have had sentimental value, as they were studio portraits.
The father's position is that violence against him has been fabricated or ridiculously exaggerated. I do not accept this is so.
Having said this, there is one area of the father's evidence I do accept entirely. He did not misconduct himself on the occasion illustrated by the CCTV material. I entirely accept that he did not know that the mother was in the supermarket. The mother saw him, as did [X], whose panic is self-evident, and they ran away. The father had not seen him. When he left the building, he saw them and returned and came in. I accept that the mother says that she was scared, so much is obvious from the frantic flight when they saw the father, but she is wrong to have demonised the father for this and it appears that this also has something to do with Intervention Order proceedings as well. This is most unfortunate.
The fact that I accept the father's account of this one instant however does not in any qualify the findings I make. Indeed, the evident terror of [X] and the mother and [Y] only goes to support the proposition that they are indeed very scared of him. Contrary to assertions, this is not because the mother has demonised him and brainwashed the children. He has led to this outcome through his own endeavours. I note the mother's very proper concession against interest that the children's memories may partly their own and partly hers.
The reality is, and it is indeed extremely sad, that the children have expressed the clearest possible wishes. They simply do not wish to see their father at all.
Conclusion
This is one of those rare cases where it is not necessary or appropriate to set out the statutory pathway in full (see Goode & Goode [2006] FamCA 1346 at paragraph [65]) and to go through each of the matters in section 60CC(2) and (3). This is a terribly sad, but terribly stark case. Most unfortunately the appropriate outcome can be expressed all too concisely.
The father has been violent in the past and in the presence of the children. While his adult children love him, this simply does that gainsay the fact that the children, with whom we are concerned, are terrified of him and do not wish to see him. The elder child intends to change his name as soon as he is able.
The father does not for one moment understand that his own conduct may have anything to do with the most unfortunate state of affairs that now obtains and his attendance at an anger management course and indeed other courses he has undertaken has given him, as I see it, no benefit whatsoever. It is most improbable that he will ever obtain any from any such course.
This is a case in which the children's age and their wishes are so clearly expressed that the only outcome that will be in their best interests is to make the orders sought by the Independent Children's Lawyer and supported by the mother.
The only area of difference between the Independent Children's Lawyer and the mother is as to whether or not the father should be permitted to send presents and letters. The uncontradicted evidence suggests that while the children may accept money, they will simply throw cards away.
It needs to be borne in mind that the family counsellor, Ms D, who conducted the section 11F interviews, opined that should the children continue and/or worse develop a yet more corrosive relationship with their father, this was likely to be damaging to their long term development. Against this, further contact of any sort with their father in the circumstances denoted by the children's correspondence is likely to be distressing to them.
The matter that tips the balance in favour of the orders sought by the mother is the father's complete lack of insight and the lack of likelihood that he will develop such insight into his own conduct. Until and unless he addresses his anger management problems and apologises to the children, there is not even the remotest chance of any way back. I do not think he will address his anger management courses, nor do I think he will apologise for his past conduct.
There is no doubt that the father loves his children dearly. He will be heartbroken by this decision, but in the end, it is the interests of the children that must come first. In the terribly unfortunate, one might even say tragic, circumstances of this case, his time will have to be reserved. The mother will have sole parental responsibility and the children will live with her.
I certify that the preceding ninety-seven (97) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Date: 7 December 2017
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Family Law
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