SANDEX & BONDIR
[2015] FCCA 396
•5 March 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDEX & BONDIR | [2015] FCCA 396 |
| Catchwords: FAMILY LAW – Children – parental responsibility – allegations of family violence – no presumption of equal shared parental responsibility – change in long-standing living arrangement of the children – parenting capacity – views of children – time which the children should spend with the non-residential parent. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA |
| A & A [1998] FLC 92-800 Lloyd & Lloyd [1980] FLC 90-816 |
| Applicant: | MS SANDEX |
| Respondent: | MR BONDIR |
| File Number: | MLC 1139 of 2008 |
| Judgment of: | Judge Baker |
| Hearing dates: | 1, 2, 3, 4 and 5 December 2014, 28 January and 17 February 2015 |
| Date of Last Submission: | 17 February 2015 |
| Delivered at: | Hobart |
| Reasons Delivered on: | 4 March 2015 |
| Orders Delivered on: | 5 March 2015 |
REPRESENTATION
| Counsel for the Applicant: | Ms Devine |
| Solicitors for the Applicant: | Carew Counsel Solicitors |
| Counsel for the Respondent: | Ms Manderlert |
| Solicitors for the Respondent: | Comito & Associates |
| Counsel for the Independent Children's Lawyer: | Ms Agresta |
| Solicitors for the Independent Children's Lawyer: | Victoria Legal Aid |
ORDERS
All previous parenting orders be discharged.
Mr Bondir have sole parental responsibility for X born (omitted) 2002 (“X”) and Y born (omitted) 2004 (“Y”) (collectively “the children”) save that the father shall prior to making the sole ultimate decision about any long term issue use his best endeavours to advise the mother in writing (via letter, email or communication book) of any decision intended to be made about that long-term issue in order to:
(a)Seek the mother’s written response in relation thereto; and
(b)Consider by reference to the child’s best interests any such response prior to making any decision; and
(c)Advise the mother in writing as soon as reasonably practicable of his ultimate decision.
The children live with the father commencing 6 March 2015.
The children spend time and communicate with the mother:
(a)Commencing 8 March 2015, for a period of two months each Sunday from 10.00am until 6.00pm;
(b)Commencing 8 May 2015 from 3.30pm Friday until 6.00pm Sunday each alternate weekend, save for 15 March 2015 when the children shall spend time with the mother from 9.00am until 9.00pm, and each alternate Tuesday after school (or such other day during the week as agreed in writing) until 7.00pm;
(c)By telephone each Monday and Thursday with the mother to initiate the call to the children between 7.00pm and 8.00pm and the father ensure that the mother has a telephone contact number to facilitate tis order;
(d)By telephone at all other times as may be reasonably requested by the children with the children to initiate the telephone call to the mother and the father to facilitate the children doing so;
(e)In even numbered years (“even years”) from 5.00pm Christmas Day until 5.00pm Boxing Day;
(f)In odd numbered years (“odd years”) from 5.00pm Christmas Eve until 5.00pm Christmas Day;
(g)For one half of the Victorian School holidays and in default of agreement, the first half, commencing from the conclusion of the school term to 5pm of the middle Saturday of the holidays;
(h)For one half of the long summer holiday period as agreed and in default of agreement on a week-about basis, from the conclusion of Y’s school year for a period of 7 days, the mother to have the first week in 2015 and each alternate year thereafter, and the father to have the first week in 2016 and each alternate year thereafter. X’s time, between the date of her finishing that school year and the date of Y finishing his school year, be divided equally between the parties, the mother to have the first half of that time in 2015 and each alternate year thereafter, and the father to have the first half of that time in 2016 and each alternate year thereafter;
(i)From 5.00pm on the Saturday preceding Mother’s Day until 7.00pm on Mother’s Day;
(j)For the children’s birthdays when the children are not in the mother’s care on that day:
(i)From 3.30pm to 6.00pm on school days, with the children to be collected from Y’s school;
(ii)From 2.00pm to 6.00pm on non-school days.
(k)For the mother’s birthday when the children are not in her care on that day from 3.30pm on 31 December until 3.30pm 1 January of each year.
The mother’s usual time be suspended as follows:
(a)From 5.00pm on the Saturday preceding Father’s Day until 7.00pm on Father’s Day;
(b)For the children’s birthdays when the children are not in the father’s care on that day:
(i)From 3.30pm to 6.00pm on school days, with the children to be collected from Y’s school;
(ii)From 2.00pm to 6.00pm on non-school days.
(c)For the father’s birthday when the children are not in his care on that day from 3.30pm on 10 January until 3.30pm 11 January of each year.
Changeover is to take place at the children’s schools unless otherwise mutually agreed and all other changeover take place at the McDonalds fast food outlet situated at the corner of (omitted).
Each party:
(a)Be entitled to obtain copies of all school photographs, school reports, newsletters, notices, information pertaining to the children’s education, progress, school activities, parent-teacher interviews, extracurricular events and any other circulars as may be available from the school; and
(b)Be permitted to attend any school concerts, sporting events, parent-teacher interviews and other functions ordinarily attended by parents.
Each parent keep the other informed of the children’s health and any health issues affecting the children whilst the children are in their care and inform the other parent of any procedures or operations to be undertaken and obtain their consent prior to those procedures or operations being undertaken (except in cases of emergency with the parent in whose care the children is in to inform the other parent as soon as possible) and both the mother and father be at liberty to attend the hospital at different times whilst there are any intervention orders in place.
The mother and father use a communication book to communicate with each other on matters relevant to the children’s welfare and education and each parent will use their best endeavours to ensure that the communication book travels with the children at changeover.
Forthwith the father arrange counselling for the children from a suitably qualified and experienced counsellor to assist them in the adjustment of their living arrangements.
The parents are restrained from removing the children from their current schools without the prior written consent of the other parent.
Unless otherwise agreed in writing between the parties Y shall be enrolled at (omitted) Secondary College for his secondary education in 2016 or any other school at which the child X attends.
Each party is restrained from attending the children’s extra-curricular sporting or other activities including training and games, but not including finals or concerts, whilst the children are in the care of the other party, unless the party having the care of the children otherwise agrees in writing that the other can attend.
Subject to any direction to the contrary from the children’s schools, each party is at liberty to attend all school events to which parents are invited in the usual course of the school year, including but not limited to concerts, family days, sports days and fetes and parent teacher interviews.
Each party is restrained from being present at the end of the school day on those days when the other party is to collect the children for changeover pursuant to this order.
Each party is restrained from denigrating the other party in the presence or within the hearing of the children or allowing any other person to do so.
In the event that the children are to be removed from the state of Victoria for the purpose of holidays the travelling party give the other party at least 7 days written notice of the intention to travel and ensure that the other party has contact details for the children whilst they are away.
Each party is restrained from discussing the evidence adduced in these proceedings or the judgment with the children or in the presence or hearing of the children or allowing any other person to do so.
Each party keep the other informed at all times of a current residential address and telephone number on which the children can be contacted and each party is otherwise restrained from attending at or upon the other party’s residential address without the prior written consent of the other party.
Within 7 days the ICL meet with the children and inform them of these orders, following which the appointment of the ICL shall be discharged.
THE COURT NOTES THAT:
A.Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Sandex & Bondir is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT HOBART |
MLC 1139 of 2008
| MS SANDEX |
Applicant
And
| MR BONDIR |
Respondent
REASONS FOR JUDGMENT
Introduction
In these proceedings the mother sought parenting orders in respect of the parties’ children, X born (omitted) 2002 (12 years old) and Y born (omitted) 2004 (10 years old).
Background
The parties commenced cohabitation in 1996 and married on (omitted) 1999. They separated on 31 August 2007.
On 27 June 2008, the parties entered by consent into final parenting and property orders. The parenting orders provided that the parties have equal shared parental responsibility for the children; they live with the mother; they spend regular time with the father on alternate weekends, and alternate midweek, amounting to five nights per fortnight, and spend time with him during school holidays and on special occasions.
The mother is 43 years old. She lives with the children in a three bedroom house and works full-time in two jobs, including night shifts on Saturday and Sunday.
The father is 45 years old and worked full-time until around November 2014. He is in receipt of a Newstart benefit and works on a casual basis. He lives in a rental property in (omitted).
Unfortunately for the children, the relationship between their parents is acrimonious. The children have been caught in the middle of their conflict since 2007. The children have both expressed their views to several professionals that they want to change their current living arrangements to live with the father.
Proposals
At the commencement of the hearing, the mother sought orders that she have sole parental responsibility for the children, and they live with her and spend time with the father by agreement. After the evidence was heard, she proposed that if the Court finds the children are not at risk of harm from the father, they spend time with him each alternate weekend during term time from after school Friday until 5.00 pm Sunday, and that all time be conditional upon the children’s wishes.[1] This is a reduction in the children’s time with the father.
[1] Exhibit M5.
At the commencement of the hearing the father sought orders that the children live with him and spend time with the mother in accordance with the children’s wishes. After the evidence was heard he proposed, amongst other orders, that he have sole parental responsibility for the children; they live with him; and the mother attend upon a clinical psychologist for therapeutic counselling. He proposed that her time with the children be reserved until a favourable report is obtained as to her “mental” condition; and the matter be listed for mention about the commencement of a reintroduction of the children’s time with her.[2]
[2] Exhibit F2.
Counsel for the Independent Children’s Lawyer (“ICL”) indicated that the ICL’s preliminary view was that the parties have equal shared parental responsibility for the children, they live with the father, and spend significant time with the mother. Her views were based on the children’s views and the father’s concern that the mother is incapable of promoting a relationship between the children and him.
After the evidence was heard, the ICL proposed final orders, amongst other orders, that the father have sole parental responsibility for the children and that they live with him. She proposed interim orders that the mother attend counselling with an appropriately qualified psychologist or psychiatrist for the purpose of assisting her to support the children’s care arrangements and to support the children’s relationship with the father; the mother authorize the psychologist or psychiatrist engaged by her to liaise with the ICL about the progress of treatment from time to time; upon the mother commencing treatment with her psychologist or psychiatrist, she spend time with the children each Saturday or Sunday from 10.00 am until 4.00 pm; and communicate by telephone each Monday and Thursday and at all other times as reasonably requested by the children and as otherwise agreed between the parents.[3]
[3] Exhibit ICL6.
The father and the ICL therefore proposed interim orders in respect of the children’s time with the mother.
Issues
The main issue in the proceedings was where the children should live and whether a long-standing living arrangement should be varied. The time which the children should spend with the non-residential parent and the issue of parental responsibility were also in dispute.
Central to these issues was the extent of the occurrence of family violence and the impact it has had on the mother and the children, the children’s views, and the mother’s capacity to promote the relationship between the children and the father.
Application by Mother to re-open
Judgment was reserved after the hearing on 5 December 2014. On 9 January 2015 the mother filed an application in a case seeking leave to reopen the proceedings and adduce further evidence. This was heard on 28 January 2015. Leave was granted to the mother to adduce evidence relating to the father’s employment only. It was also ordered that the parties make oral submissions regarding the time the children should spend with the father should the Court make orders on a final basis that the children live with the mother; and the time the children should spend with the mother should the Court make orders on a final basis that the children live with the father, and there be no interim order requiring the mother to undertake psychological counselling. The further hearing occurred on 17 February 2015.
Counsel for the mother submitted that, should the Court order that the children live with her, they should spend time with the father each alternate weekend from Friday until Sunday, for half of the school holidays, and on special occasions. If the Court orders that the children live with the father, it was submitted that they should spend equal time with both parents on a week about basis.
The father submitted that should the children live with the mother, their time with him should be in accordance with the current orders. If the children are to live with him, he submitted that the children should have time with the mother, subject to their wishes, each alternate Sunday from 9.00am until 5.00pm.
Counsel for the ICL submitted that, if the children are to live with the mother, they should spend time with the father in accordance with the current orders. If the children are to live with the father, she submitted that the children should spend time with the mother each alternate weekend from Friday until Monday, and during half of the school holidays.
New evidence
The father was cross-examined. He conceded that it was possible that, when he gave evidence at the hearing in December, he knew that he would no longer be employed on a full-time basis. He said that at the time, he did not know what his working hours would be due to the uncertainty of the litigation. He did not give evidence in December that he had had discussions in October 2014 with his employer that his full-time employment would end on around 1 December 2014, and that he would be employed on a casual basis thereafter.
The father said he had believed that he would continue to work similar hours. He conceded that the impression he gave the Court was that he would continue to have full-time employment. He could not explain why he did not give evidence about his discussions with his employer or the possible changes in his work hours. Since the hearing, he has had only a few hours work with (omitted) Counselling Services and has earned $162. He has no ongoing contract for casual employment with this employer.
The documents subpoenaed and tendered by the mother indicated that the last payment made to the father for full-time employment was on 27 November 2014.[4] A Termination Pay advice indicated that his termination pay was calculated to 27 November 2014.[5]
[4] Exhibit M1.
[5] Exhibit M3.
The father currently has a contract with (employer omitted), dated 14 January 2015, to work on a basis of four hours per day for a minimum of three days per week.[6] It is a (occupation omitted) job. He has worked two shifts and earned $500.
[6] Exhibit M4.
The father is also in receipt of a Newstart benefit of $601 per fortnight. He is not currently looking for full-time employment. He cannot commit to this until he knows the decision of this Court.
The father conceded that there was “some uncertainty” as to how he would provide for the children should the Court order that they live with him. He said that his sister and family are available to help him financially if required.
The credit of the parties
The father’s evidence about his employment was unsatisfactory and misleading. At the hearing in December 2014, he gave the impression that he would continue to work full-time in the future with (omitted) Counselling Services. He did not reveal that he had had discussions with his employer about the change in his employment status as early as October 2014.
It was submitted by Counsel for the mother that all of the father’s evidence should be rejected because he lied about his employment. It was submitted that this evidence supported the mother’s assertion that he lied and manipulated the children so they would say what he wanted.
I do not accept this submission. Although I have made an unfavourable finding about this aspect of the father’s evidence, this does not mean that the balance of his evidence should be rejected. I consider that, apart from this evidence, the father’s evidence overall was credible.
In respect of the mother, I found her to be an unimpressive witness. She was not prepared to make concessions. In the face of and against all the expert evidence, she continued to assert that the father was a danger to the children, that they were scared of him and that their views were not their own views. I consider that she exaggerated her evidence about family violence and, in particular, the sexual abuse allegation was not credible. I discuss this in further detail in these Reasons.
Relevant Law
Section 60CA of the Family Law Act 1975 as amended (“the Act”) provides that, when a Court is determining whether to make a particular parenting order in respect of a child, the child’s “best interests” is the paramount consideration.
In determining “best interests”, the Court should apply “the widest meaning”.[7] This requires consideration of the economic, moral and physical welfare of the child, including the child’s “happiness”.[8] This is necessarily a subjective determination, given the “best interests” are, in themselves, “values”, and respective judges may respond to the circumstances of any given case in different ways.[9]
[7] Howe v Howe (1961) 2 FLR 2, at para 4.
[8] In the Marriage of K and Z [1997] FLC 92-783, at 84,656.
[9] CDJ v VAJ (1998) 197 CLR 172, at 214, 219, 231.
“Best interests” are, where possible, outcomes achieved over the longer term, even in situations which may result in short-term disadvantage to the child.[10]
[10] Lloyd & Lloyd [1980] FLC 90-816, at 75,152.
In determining the child’s best interests, the Court is required to consider the matters in s.60CC informed by the matters in s.60B, which set out the objects of Part VII of the Act, being that the best interests of children are met by:
(a)the benefit to the children of parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child; and
(b)Protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
(c)Ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
(d)Ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.
The principles underlying these objects (except when it is or would be contrary to a child’s best interests) are outlined in s.60B(2), and include:
(a) children have the right to know and be cared for by both their parents;
(b) children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other significant people;
(c) the joint sharing duties and responsibilities in relation to their children;
(d) parents are required to agree about the future parenting of their children; and
(e) children have a right to enjoy their culture including with others who share that culture.
The mother has made a sexual abuse allegation about the father. In accordance with the principles which have emerged from the High Court decision of M & M,[11] the Court should evaluate the nature and degree of risk and, with or without safeguards, whether is it is unacceptable:
[11] [1988] 166 CLR 69.
In resolving the wider issue the court must determine whether on the evidence there is a risk of sexual abuse occurring if custody or access be granted and assessing the magnitude of that risk. After all, in deciding what is in the best interests of a child, the Family Court is frequently called upon to assess and evaluate the likelihood or possibility of events or occurrences which, if they come about, will have a detrimental impact on the child’s welfare. The existence and magnitude of the risk of sexual abuse, as with other risks of harm to the welfare of a child, is a fundamental matter to be taken into account in deciding issues of custody and access…
…
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.[12]
[12] Ibid, 77–78.
These principles are not confined to allegations of risk by reason of sexual abuse. In A & A,[13] the Full Court of the Family Court of Australia held that risk covers not only physical but also emotional harm.
[13] [1998] FLC 92-800.
Determination of the children’s best interests
I shall now consider the relevant matters pursuant to s.60CC.
Section 60CC(2)(a)
Section 60CC(2)(a) provides that when considering the best interests of a child, the Court is required to consider, “the benefit to the child of having a meaningful relationship with both of the child’s parents”. This consideration is informed s.60B(1)(a) of the Act, which provides that the best interests of a child are to be met by:
ensuring that children have the benefit of both of their parents having a meaningful involvement in their lives, to the maximum extent consistent with the best interests of the child;
The term “meaningful” has been the subject of a number of judgments. In McCall & Clark,[14] the Full Court of the Family Court stated that any “meaningful involvement” must, as provided in s.60B(1)(a), be in the context of “the maximum extent consistent with the best interests of the child”.
[14] (2009) FLC 93-405.
Justice Cronin in Loddington & Derringford (No. 2),[15] succinctly described that: “… for there to be a meaningful relationship, it must be healthy, worthwhile and advantageous to the child”.[16]
[15] [2008] FamCA 925.
[16] Ibid, at para 169.
The mother has been the primary carer of the children since their births, and the children have a close and loving relationship with her.
The children love the father and have expressed their wishes to live with him.
I consider that it will be of benefit to the children to have a meaningful relationship with both parents.
Section 60CC(2)(b)
Section 60CC(2)(b) provides that when determining the best interests of a child, the Court is required to consider, “the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence”.
Pursuant to s.60CC(2A), when applying the considerations set out at ss.60CC(2)(a) and (b) the Court is to “to give greater weight to the consideration set out in paragraph (2)(b)”. Section 60CC(2A) must be read alongside ss.60CC(2)(a) and (b).
The need to protect a child from the risk of harm must be balanced against the consideration that it is in the child’s best interests to have a meaningful relationship with both parents and in light of the relevant s.60CC(3) considerations.
“Abuse”, in relation to a child, is defined as:
(a) an assault, including a sexual assault, of the child; or
(b) a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
(c) causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
(d) serious neglect of the child.[17]
[17] Family Law Act, s.4(1).
“Family violence” is defined as “violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family … or causes the family member to be fearful”.[18]
[18] Family Law Act, s.4AB(1).
The mother made many allegations about the father to each of the family consultants who prepared reports for this matter.
Ms J prepared a Family Report on 17 June 2008, which was tendered by consent. The Report indicated that at that time the mother had concerns about the father’s parenting capacity; his ability to properly supervise; his ability to dress the children; the safety of travel for the children in his car; and his previous use of pornography. She told Ms J that she encouraged the children’s relationship with him, however she had doubts about shared care.
The mother did not make any allegations of a history of family violence to Ms J. She did not complain about the children being at significant risk of harm from the father. However, Ms J noted that she attempted to link the father’s alleged history of looking at pornography to an allegation that he sometimes sleeps with the children. The mother said “I don’t believe that he would ever touch the children but I cannot guarantee this”.
Ms J reported the high level of conflict and poor communication between the parents. Her view was that so long as the conflict continues, “the emotional well-being of the children remains in jeopardy”.
Subsequent to the release of the Report, the parties entered by consent into parenting orders in June 2008.
Dr L interviewed both parties and the children for a Child Inclusive Conference on 19 December 2013, after the mother filed an urgent application for recovery of the children from the father.
Dr L noted the mother’s allegations about the risk of harm to the children by the father. The mother alleged that he was emotionally abusive and manipulative of the children, and that he had threatened to harm them if they did not comply with his demands. She alleged a history of family violence, including intimidation and control of her since separation. She alleged possible sexual abuse of X. Dr L reported “there were no apparent grounds for these concerns except for one apparent incident several years prior” which was ultimately assessed by a GP as “likely a hygiene issue”.
The mother’s evidence about this was that when X was younger, she often caught the father rubbing her up and down on her legs in an inappropriate manner. She said that he also used to view underage pornography frequently. She described that approximately two years before, X complained about pain in her vaginal region and this occurred frequently after spending time with the father. She took X to a doctor and upon examination the doctor suggested that the pain may be caused by lack of hygiene when she was in the father’s care. She said that the doctor could not confirm if X had been violated or inappropriately touched. She said that she feared that because X has “hit puberty … this could be cause to tempt the Respondent to violate her sexually”.
In the Family Report dated 31 July 2014, the Family Consultant, Mr T, reported that the mother maintained that “the marriage was a violent one and that the father has a volatile temper”. The mother had said that the children have been witness to violence during their whole lives and she continues to be fearful. She told Mr T that she was scared of him and that she could “understand the two kids being scared of him”.
She told Mr T that she took the children to see the police in June 2014, as they wanted to report their fear of the father. She was concerned about possible sexual abuse of X by him. She gave evidence during cross-examination that she was still concerned about risk of harm to X from sexual abuse.
In her affidavit filed in December 2014, the mother said that the father was physically, mentally, emotionally and verbally abusive towards her. She said that he:
was very controlling and threatening during the relationship. He would question my movements and tried to restrict my contact with friends and family. He was controlling and I felt like I was walking on eggshells. For example if I cooked dinner that he didn’t like he could snap or explode and throw it across the room. I lived with this on a daily basis for 10 years which is why I know how volatile he can be.
She referred to incidents which occurred since separation including an incident outside (omitted) swimming pool, when she alleged the father violently and physically pushed her away from the door of his car and then hit her. She referred to verbal abuse at changeover and a threat to kill her in the presence of the children.
On 7 August 2014 the mother gave a statement to Constable R in relation to alleged breaches of an Intervention Order. She claimed that the problems arose due to the stress put on the children by the father, and his threats and intimidation to harm her. She also claimed negligence in his duty of care of the children, when they would be unsupervised for a period of hours at home, and left dirty or unclean.
In her oral evidence the mother reiterated the allegations made in her affidavits. She said she has “suffered many years of violence and abuse; emotional, physical, psychological”. She agreed that there were never any black eyes, but he left bruises on her. She was unable to say how many times, but that it was fairly frequent.
The maternal grandmother, Ms C, gave evidence in support of her daughter’s allegations. She said that the children witnessed the father harming her daughter before separation in 2007. She said that she had seen him exhibit “inappropriate behaviour”, including pushing her and throwing a cooked meal across the kitchen. She said the meal-throwing incident occurred just before separation in 2007.
She said that her daughter told her that she was “ashamed” and “embarrassed” about the violence, and that she “had no idea how bad the situation was until he threatened to kill [the mother]” prior to separation. She said that she:
didn’t know how bad the physical abuse was. I have heard him mentally and verbally abusing her since, of course, but I haven’t seen any physical evidence since. But I didn’t see physical evidence at that point, apart from seeing him shoving her around. That was all.
The maternal grandmother confirmed that she never saw any signs of bruises or injuries on the mother.
After separation, she said that she saw the father “pushing and shoving people away from motor cars and things”.
She acknowledged that she had never seen the father physically harm the children. Although she had heard Y say that he must do as the father tells him or he will be harmed by him, she could not say when this had occurred.
She said the father verbally abused her in front of the children in May 2013 and in around early July 2014, “why don’t you just go away and die”, and before the Court hearing in September 2014, “you will never see the children again”. She said that the father had made this threat “10 or 20” times in the last six years.
She confirmed that it remains her view that the father is a violent and abusive man who represents a risk to the children.
The father conceded that on 15 November 2013 he sent the mother a text message saying:
I am sick of your threats and bullshit. I have told you X comes to me today or I will make other plans with Y and he will miss basketball. I am not going to reply to anything else. You bullshit.
He also agreed that on 26 July 2013 he sent the mother a text message, which read: “You are so stupid and can send me anything you like but it is up to me what happens”. He conceded that he ‘may have called her a “fat cow” and “stupid”.
He denied that he has been verbally abusive towards the mother at changeover, “because we don’t even speak – we don’t even see each other”.
He denied that in 2012, he told Y that he would hurt the mother if the children did not do what he wanted them to do, or say what he wanted them to say. However, he conceded that he has said to the mother that “if she continues to act the way she is, the children would not want to see her ever again”.
He conceded that he’d “done a number of things wrong … And I admit that fact … But … never ever physical or anything like that”. He said “I will stand here and say, yes, I was wrong and it should not have occurred”.
The father denied that he questioned the mother’s movements and restricted her contact with friends and family. He said:
She was in control of everything … I didn’t even know how much money we had in our bank account. If I was so controlling … I didn’t find out what the actual situation of our bank accounts was or anything like that until we got divorced.
He conceded it was possible that he threw a dinner plate across a room when the mother and the maternal grandmother were present. He did not believe the children would have been present.
He did not recall ever threatening to kill the mother in 2007. He said that he consented to the Intervention Order with a denial of the allegations.
He denied ever having shoved or pushed the mother in an argument or a fight. He said that they had arguments, but he would walk away. He denied ever causing her bruising.
In respect of an incident at (omitted) swimming pool, he denied that he came out of the car and violently pushed the mother away from the door of his car and then hit her. He said that the children were crying and screaming, “Mummy, go away. Leave us alone”. He was sitting in the car, hoping that she would leave, but she was holding the car door open so they could not drive away. He said that he got out of the car and pushed the mother out of the way so he could close the door, and then she hit him.
He said that, while the parties had an acrimonious separation, the family violence was not to the extent that the mother has claimed. He agreed that he has name‑called, sent text messages, argued on the telephone, and told the grandmother to hurry up and die. He said “that’s not things you want to do. That’s not things you should do”. He agreed that it was “appalling behaviour,” particularly because it was in front of the children.
He denied the sexual abuse allegation about X.
The father made concessions about inappropriate statements he has made to the maternal grandmother. He conceded that on 29 June 2014 at Y’s football game, he said to her: “September is not far away, and then you’ll never see them again”. He said that the maternal grandmother was “manhandling” Y, trying to change his boots. He denied that he was waving his arms around or trying to hit or push her, and said that she hit him in the back with a stick while he was walking away from her. He agreed that he then said to her, “Why don’t you just go away and die?”, and conceded that the statement was not appropriate or justified.
He also agreed that in October 2013, he said to the maternal grandmother, “Why don’t you just hurry up and die?” but not in the presence of the children. This occurred “after she has distressed them”.
Findings about family violence
The complaint for the intervention order made around separation in 2007 did not refer to any history of family violence, although there was a reference to the father throwing food and pushing the mother in the kitchen, and verbal abuse and threats to kill at around that time.
Counsel for the mother briefly cross-examined the father about the physical family violence allegations made by the mother, which he had denied in his affidavits. He was not cross-examined about any specific incident of family violence during the relationship. He was not cross-examined about the sexual abuse allegation.
Notwithstanding the mother’s concerns about family violence and sexual abuse, in her application for parenting orders made in 2008 and in 2013, she did not seek orders that the children’s time with the father be supervised.
During cross-examination, she explained this inconsistency by saying that she has always wanted the children to have a relationship with the father and it is important for them.
I consider that the mother’s evidence about family violence was vague. She was unable to give details about any incidents of physical abuse and was unable to describe any incident about how she received bruises from the father.
She attempted to parallel the family’s circumstances to that of the Luke Batty case to Mr T. I agree with his assessment that “the current situation does not match the mothers expressed fears”. I consider that she has exaggerated the extent of family violence that occurred during the relationship and since separation.
The maternal grandmother was unable to corroborate from her own observations what her daughter alleged had occurred during the relationship, apart from the plate throwing incident in the kitchen.
I consider that family violence has occurred. I accept the mother’s evidence that around the time of separation, the father made a threat to kill her. He has pushed her. He has been verbally abusive to her and the maternal grandmother and he has on one occasion thrown a plate of food. I do not accept the mother’s evidence that the father has physically harmed her.
I reject the mother’s evidence that the father has traumatised and terrified the children. There was no evidence to satisfy me that the children are intimidated by the father or that what they have told the family consultants is as a result of duress, threat or coercion by the father. The family consultants described the children as having a happy, warm and relaxed relationship with their father. They are doing very well at school and with their sport. There was no evidence that X is at risk of sexual abuse by the father.
Section 60CC(3)(a)
any views expressed by the child and any factors (such as the child’s maturity or level of understanding) that the court thinks are relevant to the weight it should give to the child’s views
The children expressed clear views to Mr T in June 2014. In the Family Report he noted that Y said he wanted to spend more time with, and possibly live with, his father. He said that Y reported that the mother regularly gets angry at him and X when they want to see the father, and that she encourages them to not go to his house. He said that he feels happiest at the father’s house, and that there is more to do there than at the mother’s house. He said that his father understood how he felt, and that he could talk to his father. He said if his mother heard this, he “would probably get into trouble”.
In relation to the mother taking the children on 29 August 2014 to see Constable R, Y said that he “[wasn’t] sure what she wanted me to say ... if we told them something she didn’t agree (with) we in trouble”.
Constable R gave evidence that that Y said that he was there to “tell the police what my dad has been doing”. Constable R said “the main thing that [Y] wanted to tell police was the constant threats of which his father informed him that he is going to hurt his mum and he didn’t like it”.
X said her mother “wanted us to tell them that we are scared of dad but we’re not”. She said that she did not know why her mother took them to the police.
Mr T noted that X “was very clear that she wished to live with her father if she was able or, at the least spend more time with him”. He said that she felt much more relaxed at the father’s house, and that X said that “mum’s over-hard, she’s trying to help me but she pushes me too much ... she always says (I) should do more”. He noted that X was “very concerned about what her mother’s reactions may be” and that X “did not feel she was able to communicate her wishes clearly with her mother”.
Mr T wrote:
While the mother is clearly focussed on the children doing well, and feels extremely protective of them, there appears to be much pressure on the children to see the world in terms of the mother’s world, particularly as it relates to the father.
Mr T noted that despite their relatively young age, there is “a maturity and clarity in both children’s views that … need to be given a good deal of consideration and weight by the Court”.
In December 2013, the children expressed clear views to Family Consultant, Dr L.
Dr L reported that the mother was concerned that the children’s views were influenced by their fear of the father, and that they were “minimising their true concerns and fears about their father”.
Dr L noted the children were confident in the interview and not concerned about telling the truth. They “held no fears of either parent”. X said that “her mother did not let her father collect her from her activities during the week” and that “this made her feel sad”. She said that she believed her father would take her to the activities if he was given notice, and she wanted to spend more time with him.
Y agreed with his sister’s views, and desired more time with his father than he was currently having.
In respect of the effect on the children of their views being heard, Dr L said this would send them a strong message about the value the Court places on their views and feelings. If their views are not heard, this will compromise their self-esteem, sense of self-worth, and faith in the justice system. It will leave them with anger and will not bode well for their relationship with the mother.
Dr L said that the children are at risk of negative outcomes. In the long-term, there is a significant risk for depression and a cluster of illnesses, and there is a greater risk of self-harm if their views are not heard.
Dr L was of the view that X has a level of maturity and she will make herself heard. She is more likely to force the issue to have her views heard. She said that Y is more vulnerable to accept “the authority body.”
The mother gave evidence that X had told her that Dr L would not listen to her and that she threw a pen at Dr L. Counsel for the mother questioned Dr L, who said that she did not write a note about X throwing a pen. She said that for that to have occurred, and for her not to have made notes about it, is highly unlikely. She said that X did not require any prompting from her and she used her time with her to talk to her with free recall and with comprehensive answers.
Dr L was asked whether the father could have influenced the children’s views. She answered that this was possible, but there was no signs of coaching or indicators that this had occurred. She said that the depth of their statements and free flow of narrative contradicted this. She said X could draw on numerous examples to support her concerns of not spending time with the father. She said she found the children open and genuine in giving accounts of their father.
When Dr L was challenged by Counsel for the mother, she answered questions in a forthright and confident manner, and did not change her opinions. She acknowledged that her report was 12 months old and that she has not seen the children since then. She acknowledged that she saw the children for a short period of time of around half an hour, but she also made comprehensive notes about the children and the parents. She said she was heavily reliant on her notes. I consider that Dr L was an impressive witness and I place weight on her evidence.
The views of children are important and proper and realistic weight should be attached to any expressed wishes of children.[19] The evidence indicates that I should place weight on the views of X and Y. I accept the assessments of Dr L and Mr T about the children’s views. I accept that the children’s views are independent and have not been influenced by the father. On the contrary, I consider that the mother has attempted to influence the children against the father. An example of that was when she took them to the police to make statements about the father.
Section 60CC(3)(b)
[19] R v R Children’s Wishes [2002] FLC 93-000.
the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
The children have a close and loving relationship with the mother. The father acknowledged to Mr T the children’s love for her.
The children have a loving relationship with their maternal grandmother. They see her regularly.
The children have a warm and positive relationship with the father.
Section 60CC(3)(c)
the extent to which each of the child’s parents has taken, or failed to take, the opportunity:
(i) to participate in making decisions about major long‑term issues in relation to the child; and
(ii) to spend time with the child; and
(iii) to communicate with the child;
The mother has made decisions about the children’s schooling, health and extra-curricular activities with little or no input from the father. The father indicated that he has not been involved in any of the major decisions for the children as the mother has obstructed his involvement.
The mother admitted to Dr L in December 2013 that she does not tell the father about activities because he will not take the children. Dr L noted that this was inconsistent with the reports of the children. X gave her many examples of parental gatekeeping by her mother, consistent with the report of the father.
The father did not spend time with the children in the June-July holidays in 2013 or on Father’s Day in 2012.
Section 60CC(3)(ca)
the extent to which each of the child’s parents has fulfilled, or failed to fulfil, the parent’s obligations to maintain the child;
The mother has fulfilled her obligations to maintain the children.
The father pays child support for the children. He has arrears of child support which he has been paying.
Section 60CC(3)(d)
the likely effect of any changes in the child’s circumstances, including the likely effect on the child of any separation from:
(i) either of his or her parents; or
(ii) any other child, or other person (including any grandparent or other relative of the child), with whom he or she has been living;
I consider that a change for the children in their living arrangements will be a positive change for them because they want to live primarily with the father. The father accepts the mother’s role in the children’s lives, her love of the children and their love for her. He has the capacity to support their relationship with the mother. Mr T highlighted his availability as a primary care-giver, and the minimal impact that a shift to these arrangements would have on the children’s social lives and schooling.
The likely beneficial effects for the children of living with the father are that they will feel that their views have been heard and they will have the benefit of a closer relationship with the father. He will support the children with their relationship with the mother.
The likely adverse effect of a change of residence is that children will need to adjust to no longer having the mother as their primary carer. They will also have to adjust to seeing the maternal grandmother less frequently. If the children live with the father, there is likely to be an adverse effect on them if they spend no time with the mother in the interim, as proposed by the father. Mr T said that the children need to have a relationship with her. The children would be very concerned about their mother’s reaction. X had talked to him about having “limited time” with her mother. Mr T’s intuition was for the Court to order “limited time with review, and counselling for mother and perhaps [the] children.” He suggested an interim order dependent upon the mother undertaking psychological counselling.
He was of the view that there are risks associated with a change of residency, and that the children should have counselling during the transition period. The mother is likely not to accept a move to the father as appropriate, which will create problems for the children. Mr T said that the mother’s attitude made the issue of the children living between the households “fairly problematic”.
However, he said that despite the evidence indicating the children had thrived academically and socially with the mother as their primary carer, any risks associated with changing the residence are outweighed by the benefits to the children.
The adverse effect of the children living with the mother is that her fixed view that they need to be protected from the father creates a difficulty for them in maintaining relationships with both parents.
Mr T said that, should the Court not change the children’s residence, there would probably be more of the same sort of pressure that they are experiencing, and X would vote with her feet at some point.
Mr T was concerned about the psychological and emotional pressure the children are under being in the middle of the conflict. The children have managed their mother’s open hostility and discounting of their father to shut down from any discussion with her. He said that the mother’s hostility and inability to recognise any positives in the father’s relationship with the children can be damaging to them and can further the gap between the children’s reality and the mother’s reality.
Dr L wrote in her Memorandum that the children appear to be shielded somewhat from the mother’s negative narrative of the father. However, she was concerned about the children adopting the “path of least resistance”, and that they may “align with their mother and to become reluctant to spend time with their father. This would not be in their best interests”.
During her oral evidence, Counsel for the ICL informed Dr L that the children told Mr T that they want to live with the father. Dr L explained that the children have spent enough time with him to form views about him and to have not been swayed by a negative narrative about him.
Counsel for the ICL asked her what effect there would be on the children by the mother taking them to the police on two or three occasions, and signing statements about their father, if their statements were not consistent with their experience of him. Dr L answered that the mother’s consistent expression of her opinion of him to the children and getting them to endorse such opinion, causes a concern of the impact on them, such as frustration and disappointment with the mother. She said that, given the ages of the children, and particularly X, this may affect their relationship with the mother. She said that X may reject her if she continues to be exposed to this behaviour. X is showing signs that she is feeling tired of the conflict and missing her father. She said it takes a level of maturity or bravery to express a preference to live with the father and is a strong statement of the children’s relationship with him.
Dr L said it would be confusing for Y and would lead to him questioning the validity of his own experience of the father. She said it is very exhausting for him to review and re-assess his view.
Section 60CC(3)(e)
the practical difficulty and expense of a child spending time with and communicating with a parent and whether that difficulty or expense will substantially affect the child’s right to maintain personal relations and direct contact with both parents on a regular basis;
This sub-paragraph is not relevant.
Section 60CC(3)(f)
the capacity of:
(i) each of the child’s parents; and
(ii) any other person (including any grandparent or other relative of the child);
to provide for the needs of the child, including emotional and intellectual needs;
The mother wants the best for the children in respect of their schooling and sport. She has the capacity to provide for their physical and intellectual needs.
However, she is incapable of supporting the children’s relationship with their father. This was a common theme in the reports of Mr T and Dr L, and was consistent with the mother’s evidence.
X gave Dr L examples about the mother’s parental gatekeeping consistent with the father’s report. The mother denied this. She responded that there have been constant occasions when the father prevented X from attending school events.
The mother also disputed Dr L’s report that Y said that “he didn’t spend as much time with his father as he would like because his mother sometimes keeps him home so he can go to activities” and that his father could take him “but mum doesn’t think he can”. The mother said: “I don’t know what Y said. I wasn’t there”.
She said that Y’s report that the father had not taken him to activities only when the father was unwell, was incorrect. In her affidavit, the mother submitted a list of events over the last couple of years to which Y was not taken.
A psychiatric assessment of the mother was undertaken by Dr T, who prepared a report dated 17 November 2014. He reviewed the previous reports and interviewed the mother. He did not interview the father.
Dr T found the mother’s presentation and account unconvincing. He found that her memory and recall were selective. He was of the opinion that she does not suffer from a serious psychiatric condition. As she is of average to above average intelligence, he was of the view that her poor recall in respect to the assessments with Ms J, Dr L and Mr T, “occurs as a result of her conscious wish to not recognise and/or accept those factors operating within herself”. He further wrote that the mother demonstrated little in the way of insight or capacity to consider such contributions to the children’s current difficulties.
In essence, Dr T was unequivocal in his view that the mother “represents as a considerable risk to the children’s welfare in respect to her lack of support of their relationship with their father”. He confirmed the view of Dr L, that the mother’s “account is suggestive of gatekeeping and alienation” and that “[g]iven the lengthy period which has evolved since the marriage ended, the prognosis for any change in regard to Ms C is poor”.
During cross-examination by Counsel for the mother, Dr T agreed that it was not unusual that victims of family violence are unable to remember specific incidents. However, he said that often victims have clear memories of incidents and that some, who are traumatised, describe symptoms. He said that, generally speaking, in the context of psychological assessments, when people are required to give details of family violence, they can do so.
Dr T denied that he did not have an open mind when he assessed the mother. He said that she was vague and had no idea why she was there. She indicated she had read some of the material but could not recall it.
Dr T denied that he was trying to manipulate the mother and upset her. He denied that he weighed the mother at the start of his assessment of her. He weighed her at the end of the assessment, which he said is a usual part of his assessments. He denied that he had a preconceived idea about her because he had read the Family Reports. He denied that he cut her off when she was talking. He said that he asked a number of questions about important matters and in respect of some questions, she made no response or could not answer. There were certain inconsistencies from her which he tried to unravel, but was unable to do so.
Dr T did not resile from his opinions about the mother. He did not interview the father. Nevertheless, his evidence about the mother’s mental health and her prognosis for change of attitude towards the father was helpful.
The mother rejected Dr T’s opinion. She said that she “[facilitated the] children spending time with their father, when they wish to and when it is appropriate for them to continue doing their activities that they want to do, and he is prepared to take them”.
However, she was also of the firm view that he is a violent and dangerous man. She was unable or unwilling to accept that the children’s reality of the father is different to her own.
Mr T raised concerns about the mother’s pursuit of her own agenda and her adamant denial of the children’s reality. Mr T described the mother as a “committed and highly protective parent with high aspirations for her children” but that she has an:
inability to harbour any room for the children’s relationship with the other major carer in their life, their father, as well as the growing incongruence of her sense of the children’s world and their actual world.
Mr T reported that both children’s interactions with each parent at interview appeared appropriate, although that they appeared more relaxed with their father.
Mr T expressed a lack of surprise that the children show a preference for living with the father. He noted the mother’s lower capacity for “insightfulness and empathic attunement with the children”, and the negative effect of her hostility towards the father. He said that the father’s better capacity “is more in keeping with the creation of a parenting environment that is developmentally helpful and appropriate for growing children”.
The issue of the children’s extra-curricular activities has been a cause of conflict between the parents. This has made participation in them unpleasant for the children. The mother complained about the father not taking the children to their extra-curricular activities. The father complained about the mother forcing the children to participate in activities they did not want to, and said that Y wanted to play soccer, but she would not allow him to do so.
The father said that he would not attend some events when the children were in the mother’s care as he knew that she would be present. He gave the example of Y’s basketball final which he did not attend as he knew she would be there. He did not want to “cause a scene”. Another example was a school presentation made by X. Neither he nor Y attended due to the mother’s presence.
He said that the mother created difficulties for him in facilitating the children’s activities. He gave the example of her refusing to let him pick up Y’s bicycle on a Sunday evening for his Bike Ed class the following day unless Y stayed the night with her. X was unable to attend a church disco as the mother said she could only have tickets if X stayed the weekend with her.
He said that he tries to make arrangements for the children to attend their sporting and other activities when he is unavailable due to work. He said that he often would find out about activities at short notice. He had communicated with the mother that he was happy for her to take the children so long as he could pick them up afterwards and to see them that day, but she would refuse.
He has also made arrangements to get the children to and from their after school activities. Y’s football coach would take him from school, and he would collect him after training. He said that he leaves work early on every second Thursday to take Y to basketball training.
The mother’s action of taking the children to the police in July and in August 2014, when they gave statements about their fear of the father, demonstrated a lack of capacity to provide for their emotional needs. The mother said that she took them to the police on these two occasions, at their request.
The children made a statement to Constable R. The mother was present in the interview room. She said that the children told her that they fear their father. She denied that she told the children what to say. She said that the aim of the interview was to make the children more comfortable, and to calm them and make them feel that somebody was listening to them. She said the statements given by the children to Constable R were not intended to relate to any charges or potential charges against the father. Her understanding was that it would be an informal chat, and that the police would just take notes of the conversation. She said that she did not realise that there would be an official statement.
During cross-examination, the mother did not directly answer questions regarding whether she thought taking the children to the police struck a “good balance” for the children in terms of their relationship with their father. Rather, she maintained that the children:
were distressed that people weren’t listening to them and that’s why they were becoming more distressed that people weren’t listening to them which is why, when the police offered, I took them to the police … because it made them feel more comfortable.
The evidence about X’s diary demonstrated the mother’s intent about pursuing her case, without regard for the emotional welfare of the children. The diary first became evident during the cross-examination of Constable R. The mother did not refer to the diary in her affidavit or oral evidence.
In August 2014, the mother had forwarded to Constable R photocopies of parts of the diary. One page reads as follows:
My life keeps getting worse every day. Nothing ever goes right my life is too complicated to deal with. Sometimes I just feel like giving up. Sometimes I feel like the world doesn’t want me to be able to handle life. I feel as if I’m being punished with all of the shit in my life, for nothing. I feel like there isn’t a reason for me to be living still.
Another page reads:
I feel like I don’t deserve to be living, I don’t have a reason to live. I feel as if no one cares about me, how I feel and if I’m hurting. I feel like I’m just another object my parents can control and hurt. I feel like when I get hurt no one cares. Unwanted, Unworthy, Useless, Pathetic, A waste, A Failure.
The mother said that she initially found the diary about six months earlier while cleaning X’s room, but she no longer had it. She photocopied the pages to ensure that she had a copy to discuss with X in case she threw the diary away. She said that she first talked about the diary with X “a couple of days after she came home” from the father’s house. X gave her the impression that it was not “a big deal”, and she seemed to be managing.
She gave the copy of the diary to Constable R to “show an indication of the fact that maybe [the children] weren’t coping as well as they make out with an outward appearance”. She said that she also showed copies of pages from the diary to Mr T. His evidence was that he could only recall her telling him about the diary and not showing it to him. He said that she mentioned the diary to him in the context of the children’s fear of the father and his influence of them. She did not mention it out of concern for X’s health. She did not seek professional help for X.
I prefer Mr T’s evidence to that of the mother. It is likely that if he had read such concerning entries, he would be able to recall them.
Dr L was told about these entries in X’s diary and said that she would have expected the mother to take X to a person in the health system.
I consider that the mother’s behaviour in respect of the diary demonstrated her failure to provide for X’s emotional needs.
In respect of the father, I consider that he is better able to provide for the children’s emotional needs than the mother. He is more attuned to them and supportive of them than her. They are more relaxed in his household. I accept Mr T’s opinion that he is better able to provide an environment that is “developmentally helpful and appropriate for growing children”.
The father currently lives in a rental property in (omitted) paying rent of $1,369 per month. He is earning a minimal amount income from casual employment and is in receipt of a Newstart benefit. He said that he has received financial support from his family and will continue to do so if needed.
Whilst the father’s financial position is currently uncertain and is inferior to that of the mother’s financial position, I consider that he has the capacity to provide for the children’s physical needs. He has been employed during his working life with short periods of unemployment. I accept his evidence that he has financial support from his family when needed.
Section 60CC(3)(g)
the maturity, sex, lifestyle and background (including lifestyle, culture and traditions) of the child and of either of the child’s parents, and any other characteristics of the child that the court thinks are relevant
X is an intelligent and articulate twelve year old with firm views. Y is a friendly and easy-going ten year old.
Section 60CC(3)(h)
if the child is an Aboriginal child or a Torres Strait Islander child:
(i) the child’s right to enjoy his or her Aboriginal or Torres Strait Islander culture (including the right to enjoy that culture with other people who share that culture); and
(ii) the likely impact any proposed parenting order under this Part will have on that right;
This sub-paragraph is not relevant.
Section 60CC(3)(i)
the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents
The mother demonstrated an irresponsible attitude to parenting by taking the children to the police to make statements about their father.
I consider she did not act responsibly after she discovered X’s diary. I agree with Mr T’s view that the diary should have rung alarm bells for her and she should have sought help from appropriate professionals.
The mother has not demonstrated a responsible attitude to parenting by pursuing her own agenda and adamantly denying all of the children’s reality. She made no attempt to consider that the children may tell her what she wants to hear and may have told the professionals their genuine views.
I consider that she unreasonably refused to accept or even consider what the children have told the professionals. Her evidence that the children are intimidated by the father and scared not to say what he tells them to say was contrary to the evidence of Dr L and Mr T. Mr T’s observation that the children were both highly affectionate and excited to see the father was explained by the mother as him putting on an act to appear as a loving father by encouraging them to be affectionate to him. She also raised with Mr T her concern that he may have been coached at his work place about how to react to the children.
I accept Dr T’s opinion that the mother’s poor recall in respect of the assessments of Ms J, Dr L and Mr T “occurs as a result of her conscious wish to not recognise and/or accept those factors operating within herself”.
In respect of the father, he was irresponsible when he left Y alone all day in his unit while he went to work. He said that he discussed the arrangement with Y, and he would call him at work every hour. Y’s lunch had been organised and it was agreed that he would play his X-box and not open the door to anybody. Nevertheless, I consider that he is too young to be left all day alone.
I consider that the father was irresponsible when he did not return the children to the mother in December 2013. He conceded that the recovery of the children by the police was stressful and upsetting to the children. He accepted that the events of the night of 3 December “caused everybody some distress”.
The father gave a reasonable explanation about what happened on 19 November 2014, when Y had to wait at school to be picked up because the school did not provide child care due to an outstanding bill. He had tried calling the school but had been unable to get through, and he collected Y at about 3.50pm.
He also explained what happened on the following week. He made arrangements for Y to catch the bus to basketball with X. He said that a delay to the first bus meant that Y and X caught the bus at 4.20pm, which was about 50 minutes from when school had finished.
The father was irresponsible by taking the children with him when he visited the police to respond to the statements made by the children. He conceded that he could have sought to make the statement on another occasion, and that, as a parent, he should have requested that the children not be present in the interview room.
Whilst the father has at times demonstrated an irresponsible attitude to parenting, I consider that he has the capacity to parent the children. I agree with Mr T that he is ready and able to parent full-time.
The father proposed that the children’s education path remain. If the children live with the father, the mother said she would continue to financially assist with their education costs.
Sections 60CC (3)(j) and (k)
(j) any family violence involving the child or a member of the child’s family;
(k) if a family violence order applies, or has applied, to the child or a member of the child’s family—any relevant inferences that can be drawn from the order, taking into account the following:
(i) the nature of the order;
(ii) the circumstances in which the order was made;
(iii) any evidence admitted in proceedings for the order;
(iv) any findings made by the court in, or in proceedings for, the order;
(v) any other relevant matter;
On 4 September 2007, the mother obtained a final intervention order for 5 months against the father respect of her and the children. On 1 February 2008, the father gave an undertaking to not commit family violence.
On 29 June 2011 the mother obtained an interim intervention order against the father. He cross-applied for an intervention order. Both parties entered undertakings.
On 9 December 2013 the mother obtained an interim intervention order against the father.
On 13 January 2014 an intervention order was made against the father on behalf of the mother and the children. The order provided that the father had no contact with the mother or children for one year except as per court orders.
On 18 May 2014 the mother alleged that the father breached the intervention order in the presence of the children. He was charged with two counts of breaching the order.
The alleged breaches related to an incident on 18 May 2014 when the mother telephoned him to speak with Y. The mother said that when the father answered the telephone, she asked to speak to the children. He was driving and said that X was not there. She said she could hear Y in the background and told him it was not acceptable. He then said “get stuffed you stupid cow”. She again asked to speak with Y, who was put on and the telephone cut out. The mother telephoned straight back and told him to wear his proper football boots. She said the father then screamed, “you have no say. Fuck you, you are going to lose the kids, I’m taking you to court. If I ever see you at their sport again I will call the police and have you arrested”. The mother said he then hung up and she provided a statement to the police in relation to the incident.
The father was charged with breaches of the intervention order. The first return date was 24 October 2014 when the matter was adjourned to 27 November 2014 for a community order assessment and determination.
The father pleaded guilty to the charges on 27 November 2014. He said that one of the breaches was for verbal abuse of the mother in the presence of Y on 18 May 2014. He said that the mother had rung “six, seven, eight times”. She spoke to Y, and after she abused him and he hung up. She kept on ringing and he called her a fat cow in a raised voice.
He conceded that it was inappropriate to talk this way in front of a ten year old, but she had provoked him and had upset the child. He said: “She would not stop calling me. I did it because I was upset over the fact that she has actually upset and distressed him to a degree that he hung the phone up on her”. However he said that, given she had been abusing Y on the telephone, “it might have actually made [Y] feel more at ease. Now, I’m not saying it’s correct and it’s right”.
He pleaded guilty as he was advised that the breaches were minor. He conceded that, in pleading guilty, he effectively accepted the police summary in relation to the charges.
In relation to the intervention order of December 2013, he agreed that there are two outstanding charges relating to breaches of the order. He intends to plead not guilty to the charges.
Section 60CC(3)(l)
whether it would be preferable to make the order that would be least likely to lead to the institution of further proceedings in relation to the child;
The children have been caught in the middle of the parents’ conflict for many years. It would be preferable for this matter to be finalised.
Section 60CC(3)(m)
any other fact or circumstance that the court thinks is relevant.
There is no other fact or circumstance which I consider relevant.
Parental responsibility
The presumption of equal shared parental responsibility contained in s.61DA(1) of the Act does not apply if there are reasonable grounds to believe that a parent of the child, or a person who lives with a parent of the child, has engaged in:
(a) abuse of the child or another child who, at the time, was a member of the parent’s family (or that other person’s family); or,
(b) family violence.
As outlined above, there is evidence to persuade me that there are reasonable grounds to believe that family violence has occurred. Consequently, the statutory presumption in s.61DA does not apply.
An order for equal shared parental responsibility requires consultation by the parents in relation to any relevant major long-term issue and requires that the parties “make a genuine effort to come to a joint decision”.[20]
[20] Family Law Act, s.65DAC(3)(b).
“Major long‑term issues” means “issues about the care, welfare and development of the child”,[21] and includes but is not limited to the child’s education, religious and cultural upbringing, health, name and living arrangements where it affects the child’s ability to spend time with a parent.
[21] Family Law Act, s.4(1).
Situations where courts have ordered “sole” parental responsibility have generally involved intractable conflict between the parents, where ongoing communication and “genuine” consultation on long‑term issues affecting a child is unlikely. This may be the result of previous violence or abuse, or the ongoing fear of such abuse and/or violence.
In Wheedon & Gomer,[22] the Full Court of the Family Court, in dismissing an appeal by the father against an order of sole parental responsibility to the mother, supported the trial judge’s findings,
… of the inability of the parents even to communicate about, let alone resolve, issues concerning the long-term care, welfare and development of the children. Those issues included the school or schools the children should attend; and whether the child D has developmental or learning delays and how they might be properly addressed.[23]
[22] [2014] FamCAFC 141.
[23] Ibid, at para 33.
The Full Court supported the trial judge’s view that:
No evidence was offered by the father of what he would do to resolve the issues. No evidence could be offered, because he cannot resolve the issues with the mother. The mother cannot resolve the issues with the father.[24]
[24] Ibid, at para 35.
Counsel for the mother submitted that the children should remain living with her, and that she should be granted sole parental responsibility.
I do not accept the mother’s evidence that the parties have sufficient maturity and respect for each other to be able to make decisions jointly. I consider that the mother has no respect for the father and has a negative view of him. Their relationship is dysfunctional and acrimonious.
Counsel for the father submitted that the reality is that equal shared responsibility for the children will not work, because unless the mother changes dramatically, she will constantly undermine the father.
The father said that he is happy to consult with the mother, and she should be involved in decision-making. Yet, he was unable to say how the parties would communicate in the future, and conceded that this has not happened in the past. He was sceptical about what he could say to her and what repercussions there would be.
I consider that the parents are incapable of communicating about long‑term issues and incapable of making genuine efforts to come to a joint decision. I agree with the submission of Counsel for the ICL that the mother’s perception of the father as a dangerous person and uninterested in the children’s welfare, has resulted in her inability to communicate with him. I consider that an order for equal shared parental responsibility is not in the children’s best interests and it is their best interests for the father to have parental responsibility for them. I will order that the father inform the mother of any decisions before he makes them, in accordance with the proposal of the ICL. I will also order that the parties use a communication book.
Live with and spend time
I consider that both parties are both loving and committed parents. The mother has been the primary carer of the children all their lives. She made good decisions about the children’s schooling and they are doing well at school and sport.
However, the father is the person who is more capable of providing for the children’s emotional needs. He has a greater capacity to facilitate the relationship between the children and the mother. I place weight on the children’s views. I place weight on the expert evidence of the risks to the children, in particular to X, if there is no change of residence. There is a risk that X may reject her mother. I am of the view that it is in the best interests of the children that they live with the father.
It is not in the best interests for the children to spend equal time with each parent. The children need stability with the father in his household. An equal time arrangement is not reasonably practicable due to the lack of parental alliance and the inability of the parents to implement such an arrangement.
The ICL sought interim orders in relation to the children’s time with the mother, on the basis of her commencing treatment with a psychologist or psychiatrist. The proposed time was each Saturday or Sunday from 10am until 4pm, and regular telephone communication.
Counsel for the ICL submitted that the children should have an opportunity to have a relationship with their mother, and she should be given the opportunity to reflect on the evidence she has heard from the professionals, with the proposed time conditional upon her receiving treatment. This would give the children a chance to settle into the father’s care. She submitted that it was unnecessary to wait for the treatment to end before allowing the children back into her care, and limited time with her gives them some protection.
It was submitted that the benefits of the time proposed for the children with the mother outweighed any risk to them. She submitted that it is likely that the children will be burdened by their mother’s sadness at the change of residency, and that that burden will be increased if they do not have any time with her.
It was also submitted that if the mother is not amenable to any change in her attitude to the father, the children’s time with her may need to be reduced, or supervised or not occur.
Counsel for the father submitted that the children’s time with the mother should be reserved while the mother undertakes counselling with a psychologist and until she obtains a favourable report about her “mental condition”.
The father’s evidence was that he would like the children to see their mother regularly, however he had concerns about facilitating this. He does not want the children to have to go through any more “drama”. He knows that the children love their mother and she loves them. He has no wish to cut the children completely out of her life, but he needs some time to settle them.
Counsel for the mother indicated that the mother will attend counselling if ordered. She was not willing to attend voluntarily. She did not agree for the father to know the identity of the counsellor, because at that time she believed that he was employed by (omitted) Counselling. She was concerned that he would influence or affect her relationship with the counsellor. Counsel submitted that there should be time for the children with the mother in the interim, based on Mr T’s evidence.
I am not persuaded that interim orders should be made or that the mother’s time with the children should be conditional upon her having treatment or counselling. I do not agree with Mr T that that there should be a review of the children’s time with the mother on the basis of a change in her attitude to the father. I am not persuaded that the mother has the willingness to commit to intense counselling work, which Mr T suggested would be needed. A review will mean further litigation, which I consider is not in the children’s best interests.
The evidence of Dr T was that the mother does not suffer from a psychiatric condition. I am of the view that the evidence supports his opinion that the prognosis for change of her attitude to the father is poor. I am not persuaded that the mother has the capacity or willingness to change. Her evidence and the way her case was conducted indicated a total unwillingness to soften her opinion about the father or listen to the expert evidence. Her Counsel made submissions in her final address and again on 28 January 2015 that the children are scared of the father and that he has manipulated them to express their views to want to live with him.
If I am wrong about the mother’s incapacity to change her attitude, and in the future she takes steps to change and provides expert evidence to demonstrate a change, she should not be prevented from making an application to increase the children’s time with her. If she is able to establish a significant change in circumstances, she may be permitted to bring an application for increased time and to have the application heard on the merits.[25]
[25] Rice & Asplund (1979) FLC 90-725.
I consider that substantial and significant time for the children with the mother is not currently in their best interests. I consider the children need some time to settle into the new living arrangement. They should spend time with the mother on a limited basis whilst they settle into the father’s care. I consider that weekend time on Sunday each weekend and telephone communication is in their best interests. This time can continue for two months. I agree with the submission of Counsel for the ICL that it is not in the children’s best interests to spend no time with the mother during this period, as they will worry about her and be burdened by her sadness. Mr T was of the opinion that there is likely to be an adverse effect on the children if they spend no time with the mother and they need to have a relationship with her.
At the end of two months I consider that their time with the mother should increase. I consider that it is in their best interests to spend substantial and significant time with her. This time should include alternate weekend time and time after school in the alternate week during the school term. I do not consider that the children will be at unacceptable risk of psychological harm by spending increased time with her after they have settled with the father. Notwithstanding her attitude about the father, the children have been shielded to some extent from her negativity, as indicated by Dr L.
It is in the children’s best interests to spend holiday time and special occasions with both parents. I will make orders in the terms proposed by the ICL for these periods.
I am not persuaded that the maternal grandmother should be prevented from attending school and extra-curricular events, so I will not make a restraint order against the mother ensuring that she does not attend.
I consider the order proposed by the ICL about extra-curricular enrolments should not be made, as I consider this may cause further conflict between the parties. The children will no doubt inform the father of the activities they want to participate in. I consider that he will facilitate their attendance.
I will order that the father arrange for the children to attend counselling to assist them with the changes.
I consider that these arrangements for the children will promote a meaningful relationship between the children and both parents to maximise the benefit to the children consistent with their best interests.
I certify that the preceding two hundred and twenty four (224) paragraphs are a true copy of the reasons for judgment of Judge Baker
Associate:
Date Reasons provided to parties: 4 March 2015
Date Orders provided to parties: 5 March 2015
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