SANDRICK & BAMBERG
[2020] FCCA 1897
•17 July 2020
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SANDRICK & BAMBERG | [2020] FCCA 1897 |
| Catchwords: FAMILY LAW – Parenting dispute – father seeking equal time with 5 year old child by 2022 – mother and Independent Children’s Lawyer opposing father’s position and seeking gradual increases in father’s time – whether either parent committing family violence – both parties found to have perpetrated family violence but father far more so – presumption of equal shared parental responsibility rebutted – mother to have sole parental responsibility – spend time orders made generally as proposed by the Independent Children’s Lawyer. |
| Legislation: Family Law Act 1975 (Cth), s.60CC |
| Cases cited: Goode v Goode [2006] FamCA 1346 |
| Applicant: | MR SANDRICK |
| Respondent: | MS BAMBERG |
| File Number: | DGC 3806 of 2018 |
| Judgment of: | Judge Burchardt |
| Hearing dates: | 24-25 June 2020 |
| Date of Last Submission: | 25 June 2020 |
| Delivered at: | Dandenong |
| Delivered on: | 17 July 2020 |
REPRESENTATION
| Counsel for the Applicant: | Mr Howe |
| Solicitors for the Applicant: | Rm Commercial And Family Lawyers |
| Counsel for the Respondent: | Mr C. Allen |
| Solicitors for the Respondent: | Knight Family Lawyers |
| Counsel for the Independent Children's Lawyer: | Ms Braun |
| Solicitors for the Independent Children's Lawyer: | Aitken Partners Pty Ltd |
ORDERS
The mother have sole parental responsibility for the child X born in 2014 (“the child”).
In exercising sole parental responsibility, the mother shall keep the father informed of significant long term decisions that she makes in relation to the child.
The child live with the mother.
The child spend time and communicate with the father as follows:
(a)Commencing 18 July 2020, each alternate Saturday and Sunday from 10:00am until 5:00pm for a period of three months;
(b)Commencing 18 October 2020, each alternate weekend from 10:00am Saturday until 5:00pm Sunday for a period of three months;
(c)Commencing 23 January 2021, each alternate weekend from 4:00pm Friday until 5:00pm Sunday;
(d)Commencing 27 January 2021, each alternate Wednesday from the conclusion of school until 7:00pm, with the father to collect the child from school and deliver him to the mother’s home at the conclusion of time;
(e)On a date in each year, being the birthday of the father’s child B, from 4:30pm to 6:30pm if it falls on a school day or from 10:00am until 2:00pm if the birthday falls on a weekend day;
(f)On a date in each year, being the birthday of the father’s child C, from 4:30pm to 6:30pm if it falls on a school day or from 10:00am until 2:00pm if the birthday falls on a weekend day;
(g)On a date in each year, being the father’s birthday, from 10:00am to 5:00pm;
(h)Commencing in the term 1 school holidays in 2021, during the term 1, 2 and 3 holidays from the conclusion of school on the last day of school term until 3:00pm on the middle Saturday;
(i)During the long summer school holidays on dates and times to be agreed in writing by both parties and in the absence of agreement from 10:00am, 2 January to 10:00am on 9 January and from 10:00am on 16 January until 10:00am on 23 January;
(j)On Christmas, Easter, birthdays, Mother’s Day and Father’s Day as agreed between the parties;
(k)At such further and other times as may be agreed between the parties in writing.
Save for Order 4(d), all changeovers are to occur at Suburb D Police Station.
The parties communicate directly via OurFamilyWizard in relation to any issues concerning the care and welfare of the children.
The parties each be at liberty to:
(a)Liaise with any medical, educational or other professionals involved with the children and obtain all information and documents ordinarily make available to parents; and
(b)Attend all significant medical, educational and other appointments and events concerning the child at which parents are ordinarily in attendance with no less than 24 hours’ notice to be provided where the parent without the care of the child intends to attend.
The parties keep each other informed of:
(a)All significant medical issues concerning the child and any appointments relating to same; and
(b)Any significant injury suffered by the child whilst in their care.
Each party shall ensure the other party is kept advised of their current residential address and phone number and notify the other party in writing of any respective changes to them within 48 hours of such change taking effect.
Both parties, their servants and agents be and are hereby restrained from:
(a)abusing, insulting, belittling, rebuking or otherwise denigrating the other party, and
(b)discussing these proceedings,
to or in the presence or hearing of the child and from permitting any other person to do so.
Notwithstanding as otherwise provided in these Orders all other time-spend arrangements shall be suspended and the child shall spend time with the father as follows:
(a)For the purposes of X’s birthday each year:
(i)If the birthday falls within X’s usual time with the mother, then X shall spend time with the father from conclusion of school until to 6:00pm if a school day or from 10.00am until 2.00pm if the birthday falls on a weekend day.
(ii)If the birthday falls within X’s usual time with the father, then X shall spend time with the mother from conclusion of school until to 5:30pm if a school day or from 10.00am until 2.00pm if the birthday falls on a weekend day.
Notwithstanding as otherwise provided in these Orders all other time-spend arrangements shall be suspended on Christmas Eve, Christmas Day and Boxing Day (to the extent of any inconsistency with this Order) in each year and X shall instead spend time with the father as follows:
(a)in each even numbered year:
(i)with the father from 3.00pm on Christmas Eve until 3.00pm on Christmas Day; and
(ii)with the mother from 3.00pm on Christmas Day until 3.00pm on 26 December.
(b)in each odd numbered year:
(i)with the mother from 3.00pm Christmas Eve until 3.00pm on Christmas Day; and
(ii)with the father from 3.00pm on Christmas Day until 3.00pm on 26 December.
Notwithstanding as otherwise provided in these Orders all other time-spend arrangements shall be suspended over the Easter long weekend (to the extent of any inconsistency with this Order) and X shall instead spend time with the father as follows:
(a)in each odd numbered year, with the father from 3.00pm on Easter Sunday until 3.00pm on Easter Monday.
(b)in each even numbered year, with the father from 3.00pm on Easter Saturday until 3.00pm on Easter Sunday.
Notwithstanding as otherwise provided in these Orders and to the extent of any inconsistency other arrangements shall be suspended and the following shall apply:
(a)X shall spend time with the mother on the mother’s birthday from 10.00am until 5.00pm.
(b)X shall spend time with the father on Father’s Day from 10.00am to 6.00pm; and
(c)X shall spend time with the mother on Mother’s Day from 10.00am to 6.00pm.
(d)On a date in each year, being the birthday of the mother’s child E from 4.30 pm to 6.30 pm if it falls on a school day or from 10.00 am until 2.00 pm if the birthday falls on a weekend.
(e)On a date in each year, being the birthday of the mother’s child F from 4.30 pm to 6.30 pm if it falls on a school day or from 10.00am until 2.00 pm if the birthday falls on a weekend.
(f)On a date in each year, being the birthday of the mother’s child G from 4.30 pm to 6.30 pm if it falls on a school day or from 10.00am until 2.00 pm if the birthday falls on a weekend.
That the order appointing the Independent Children’s Lawyer dated 31 January 2019 be discharged.
IT IS NOTED that publication of this judgment under the pseudonym Sandrick & Bamberg is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
DGC 3806 of 2018
| MR SANDRICK |
Applicant
And
| MS BAMBERG |
Respondent
REASONS FOR JUDGMENT
Introductory
This is a parenting dispute about the best interests of a young boy, X, born in 2014.
It is the father’s position that his time with X (who presently lives in the sole care of his mother) should gradually increase from daytime on each alternate week to an arrangement in the ultimate where X spends equal amounts of time with each parent. The mother supports a gradual increase in time, but, in effect, says that the end point should be Friday to Sunday each alternate week. The father’s alternative position to equal time is four nights per fortnight. The Independent Children’s Lawyer’s position appears somewhat nuanced, but appears to support Friday to Sunday each alternate week, with a possible night in the off week.
For the reasons that follow, and notwithstanding that the alternate position of the father and the position of the mother are not, in truth, very far apart, the actual amounts of time the father is to get is a very important consideration in the sense that every extra night may pose difficulties.
In the ultimate, I am persuaded that time should gradually evolve to a point where X lives with his mother, who should have sole parental responsibility, and spends time with and communicates with his father from Friday until Sunday in one week and an evening in the other week.
Agreed or uncontested relevant facts
The father was born in 1975. He has generally worked as a tradesman, although he is presently a full time carer of two of his children. He has three children other than X. H was described as 16 years old in the father’s first affidavit filed on 12 December 2018. H has not seen his father since 2006. The father’s next two children, B and C, who are then described as being 11 and 10, have been living with the father since 2009 and have, according to the father, only the most transient contact with their mother. X is, of course, his fourth child.
The mother was born in 1984. Like the father, she has four children. E was born in 2007, F in 2009 and G in 2011. The mother asserts, without challenge, that she has a good relationship with the father of those children.
The mother married the father, Mr Sandrick, in 2007. There is some dispute as to when she separated from him, but she says she did so under the same roof in mid-2012, with final separation in February 2013.
Although there is some dispute between the father and the mother as to quite what the mother’s relationship status was, so to speak, when they met and commenced their intimacy, it is clear that by early 2013 they were in an intimate relationship. They never actually lived together under the same roof, but, on any view of the matter, X must have been conceived around about the end of 2013 or early 2014.
Both parties have described the relationship as volatile and each has accused the other of being controlling and violent towards them.
Although there is a dispute as to exactly how it happened, it seems to be common cause that the relationship finally ended in September 2018, the termination of the relationship being attended by an Intervention Order taken out by the police against the father shortly thereafter.
The father has a number of past criminal offences, to which it will be necessary to return in more detail, and he has been found guilty of breaching the Intervention Order to which I have referred.
It appears that both of the parents have re partnered, but their partners play no meaningful role in this case and no reference of any moment has been made to either of them. Both of the partners apparently have other children of their own.
Following separation, the father did not spend time with X for some time and indeed, this was what impelled the father’s application in the Court. The Court has had the benefit of a section 67Z report from the Department of Health and Human Services, a section 11F report, a psychological evaluation by Ms K, and a family report. I will return to these matters in due course.
The parties’ affidavits
It is neither necessary, nor, in the particular circumstances of this case, appropriate, to traverse and paraphrase the parties’ affidavits in any great detail, partly because there is a certain amount of independent evidence from the various reports to which I have referred, and partly because of the way the case actually ran in Court. It will be more profitable to concentrate upon what the parties said in their evidence.
Much of what the parties have said in their affidavits is indeed traversed in the agreed matters above. The father’s first affidavit, filed on 12 December 2018, details the parties, their children and his version of the relationship. He asserts that the mother assaulted him at a nightclub and was ejected as a result. I note that, on the father’s version of the events on 22 September 2018, when, according to him, they had both been drinking, he “held onto her tee shirt and it ripped. The Mother became upset and she locked herself in the bathroom and she rang the police” (paragraph 19).
I note further that he asserted sexualised behaviour on the part of E and F, involving poking each other and, more particularly, X sticking their fingers up each other’s anuses.
The mother’s responding affidavit, filed 21 January 2019, details, once again, the parties and the history of the relationship from her perspective.
She appears to agree that there was a separation in February or March 2018 and then reconciliation until September 2018. She deposed to the father having been incarcerated in relation to driving offences in 2014 for three months, and details the events of 22 September 2018. Her version of the events is slightly different to that of the father. She deposed to constant denigration of her by the father and an assault in 2015 when he dislocated her knee by pinning her on a bed. She further asserts an assault at a nightclub, following which she decamped to a service station.
Perhaps most importantly, the mother appends as exhibit “B-2”, a number of emails, starting in 2017 and ending on 22 July 2018, from the father to her. The tenor of these disgusting emails is perhaps best illustrated (and I think it should be spelt out) by the last sentence of the last email on 22 July 2018 which reads:
Just fuck u fuck off ur a whore and there’s much better than I ever ever had with u. off.
In his responding affidavit filed 25 February 2019, the father replies, obviously, to the mother’s remarks. I note that, at paragraph 13, he denied being physically violent to the mother and said that they had both called each other names. In respect of the email to which I have just referred, he said:
I admit sending the text messages to the mother. I sent them after I found out she was cheating on me with other men. I used colourful language in the messages, but they are not threatening in any way.
He also annexes, at “S4”, a message to him, from the mother, dated 24 February 2018. Although this is put in the context of a denial of him being violent, the general tenor of that email is indeed a reasonable and compromising one, albeit that it is clear that the mother is not suggesting that she wishes to insist on seeing the father.
The father’s next affidavit, filed 3 May 2019, details the ongoing supervision by Ms J. The mother’s affidavit, filed on 4 July 2019, takes the matter a little further, save that I note that she had enrolled in the Parenting Orders Program, having previously undertaken a Parenting after Separation course.
At “B-5”, she appends a document from L Counselling which shows that the father had removed himself from a Men’s Behaviour Change program on 13 May 2019 because he was not inclined to participate.
The father’s affidavit filed 16 July 2019 reveals that he had also enrolled in the Parenting Orders Program and proposed to enrol in the Dads Matter program. He made a complaint that F is constantly pushing him on the bum. I note that the father deposed to having made a report to the DHHS, but they had taken no action:
The person I spoke to told me at that age it is acceptable for children to behave in that way.
I note that the father appended school reports from the two children who are in his care which appear to suggest that they are progressing entirely appropriately.
The mother’s next affidavit, filed on 16 August 2019, deposes to the father breaching the Intervention Order. She also annexed, at “B-09”, two posts on social media by the father which, in effect, accuse her of being a stalker and lying about abuse to gain custody of the children.
The father’s responding affidavit on 27 August 2019, like all his affidavits, continues to be accusatory of the mother (for example paragraph 3, “… she has continually prevented me from having a meaningful relationship with X by keeping him from me and making false accusations against me and my family”). He goes on, in effect, to admit the breach of the Intervention Order, but says, at paragraph 7, “I did not read the orders properly.” Generally, he denies the mother’s assertions.
The mother’s next affidavit, on 7 February 2020, does not take the matter further.
The father’s trial affidavit, filed on 9 June 2020, remains accusatory of the mother. Largely, it repeats and traverses, although perhaps in greater detail, but I note that at paragraph 45, he asserts, relevantly:
I appreciate she makes much of me being incarcerated and ‘criminal charges’. The reality is that this related to driving offences.
At paragraph 80, he responds to an earlier assertion by the mother that he had been convicted of shoplifting and said:
I note that Ms Bamberg has alleged that I was guilty of shop-lifting at a Store in Suburb D. I regret that on this occasion, I was absent-minded. I had X with me and he was hungry and I went to the car to get a bottle for him. I later returned to the shop with the item to explain that I had completely forgotten to pay. At this point, unbeknownst to me, Police had arrived and I was questioned in relation to the incident. The Store later employed me to advertise one of their products on a commercial.
The mother’s trial affidavit, once again, tends to somewhat regurgitate her earlier material. I note that she reproduces, again, the offensive text to which I have made reference. I note that, at page 58 of 61, there is a photograph of injuries allegedly suffered following the incident in the nightclub which appear to me to show skinned knuckles on her part. At page 59, she provides a photograph of an iPhone allegedly damaged during that incident.
Perhaps somewhat disturbingly, at “B-06” at page 61, the mother appends (goodness knows how she got it), a photograph of the father together with what appear to be two other children, one of whom is lifting up a dress off a mannequin’s buttocks. Assuming that this is indeed a photograph of one of his children, one might feel it is an overly sexualised and an off‑putting form of conduct for a child of that age (or indeed for anybody of any age). Indeed, from the school report photographs annexed to his earlier affidavit, it would appear to be a photograph of C who is only in year 6.
The Department of Health and Human Services Section 67Z response
This document, which has a date stamp of 30 January 2019, notes that there had been three previous reports about X, between August 2016 and September 2018, all of which were closed at intake. Concerns had been expressed in relation to family violence perpetuated by Mr Sandrick towards the mother and for the children being subject to neglect. I note that, in 2016, no protective concerns were raised. In 2017, concerns for the alleged family violence were not verified.
The report then relevantly continues:
The most recent report was assessed at Intake in September 2018 regarding concerns for Mr Sandrick’s alleged perpetration of ongoing family violence in the home to which X was exposed. Concerns were also raised for both Ms Bamberg and Mr Sandrick’s alleged alcohol abuse. During this case, Child Protection followed up with police where these concerns were verified. Police had advised Child Protection that Mr Sandrick had been charged for this incident where a subsequent Intervention Order had been granted, excluding Mr Sandrick from the home.
Notwithstanding these matters, however, Child Protection assessed there was insufficient evidence to demonstrate a current significant risk of harm to X’s wellbeing that warranted further action, and the matter was closed.
The Section 11F report
A section 11F report was produced by family consultant, Dr M, following the interviews on 19 February 2019. I note that at that point, notwithstanding the fact that X had spent no time with him since separation in September 2018, the father was proposing a shared care week about arrangement.
The report covered the parties’ mutual allegations of family violence and denials, and their denials of past illicit substance use. The report noted that both parties had concerns about the other’s mental health. The report noted the 67Z report.
I note that the father acknowledged he was in jail for three months in 2014 to 2015, being convicted for unlicensed driving, and that he admitted two prior assault charges which occurred when he was between 19 and 25 years old.
The report noted that, when interviewed, X observed that “The police came, he’s not in jail yet. He has to go to jail first” and later “No, I’m not allowed to see him yet. Mum said.”
Despite these matters, however, X interacted well with his father and asked both the father and the mother if he could see the father again. The report went on to recommend a brief period of supervised time to commence as soon as possible and various ancillary measures designed to assist the parents.
The report of Ms K
Ms K has undertaken a psychological evaluation in respect of each of the parents.
I note that in the evaluation of the father, the father’s account of the history of his relationships, including that with Ms Bamberg, was consistent with his affidavit material.
I note that Mr Sandrick denied physical violence against his former partners and partner, and indeed, accused the mother of H, as well as Ms Bamberg, of assaulting him. I note that Mr Sandrick admitted an assault on another man when he was 24 years old, in which he had asserted he had defended a woman from assault by a man.
I note that on page 15 of 35 of the affidavit, Ms K recorded:
Mr Sandrick is progressing his matter in the Court to achieve shared care for X. He is unhappy about the need for supervision and has questioned the commitment of both Ms Bamberg and the Supervision service to progress his time with X. He has had 3 different supervisors from J Family Services. He reported that some sessions had been cancelled with no make-up time. He was critical of the service and noted that there was a disagreement between he and Ms J, who experienced him as being rude. He accused Ms J of “unravelling”, alleging that she said, “I don’t need your slant on this” and that she allegedly “threatened to cancel the support.” He reported feeling intimidated and manipulated. Subsequently he has undertaken counselling to manage his emotions about the circumstances that he sees as unjust. He now has a male supervisor and has experienced more consistency.
He has been a successive litigant in the Family Court as he has 4 children by 3 relationships, and he has progressed his claims to see or have the children in his care.
I note that under the heading, “Mental health examination. Psychosis”, Ms K recorded:
None present in interview. There was no evidence of hallucination in the interview, although some delusional affect was detected about his self‑image, where grandiosity was present. However, the duration of this view is not able to be ascertained as it was in reference to the current relationship roles and issues.
I note additionally that, on page 16 of 35, under the heading, “Psychopathology”, Ms K recorded:
A level of grandiosity was present in the interview however not determinative of any psychopathology being evident in the assessment and hence no detectable personality disorder is present. However, it is noteworthy that the MMPI protocol was invalid and raised questions of true responses.
The report went on to detail the results of the MMPI testing to which Mr Sandrick was submitted. On page 18 of 35, Ms K recorded, under the heading, “Protocol Validity”:
Although the Variable Response inconsistency presented a valid result, the True Response inconsistency was highly elevated making the protocol as invalid and hence cannot be interpreted. The Symptom Validity response was also elevated, and this also produced an invalid protocol.
There is also evidence of underreporting as well as indication of Mr Sandrick presenting in an extremely positive light denying even more faults and shortcomings that most people acknowledge.
Hence, the rest of the MMPI test could not be analysed with any confidence, and hence all the information gained from Mr Sandrick is to be treated with caution.
I have, of course, regard to all of the report, some of which was favourable to Mr Sandrick, but I note that in the session summary on page 20 of 35, Ms K recorded:
The corroborative information suggests a complex person who is prone to verbal abuse, has a disregard for authority, shows signs of anti‑social behaviour (driving under the influence, theft, reckless cause of injury, behaviours that result in incarceration) and a committed and concerned parent. His sons are managing well and showed no issues according to the school report. His commitment to X was evident in the session and his recent allegation of possible sibling abuse demonstrate his focus on his son, X.
Mr Sandrick presents as a person with psychological attributes that suggest a minimisation of any difficult or maladaptive issues, and an exaggeration of the positive aspect of his capacity, attitude and presentation. Although stress and scrutiny in such an evaluative situation are common, the high elevation of TRIN(F) response is of concern as to the level of falsehood identified in the psychological traits of the MMPI. The elevation of L‑r, K‑r and FBS‑r scales of protocol validity refer to his over‑exaggeration of positive attributes, and suggest the interpretation of Mr Sandrick’s narrative must be seen through a cautious lens, and no conclusion can be reached as to how or whether any aspect of Mr Sandrick’s personality and psychological function would impact upon his parenting.
The report on the mother notes, at page 26, that the mother observed:
Currently the relationship was described as a toxic and from her perspective fearful.
The mother asserted family violence on the part of Mr Sandrick, including verbal abuse, isolation from her family and physical violence, including bending her fingers backwards, amongst other assaults.
I note that Ms K observed some anxiety in the mother, for which the mother was taking medication and in respect of which she was seeking medical treatment (page 29 of 35). I note that under the heading, “Psychopathology”, on page 30 of 35, Ms K recorded:
In the assessment and hence no detectable personality disorder is present. However, it is noteworthy that the MMPI protocol raised questions as to the minimisation of faults and the need to present herself as better than is her true self.
At page 32 of 35, Ms K recorded the results of the MMPI interpretation as follows:
Ms Bamberg’s protocol is interpretable and there is no evidence of inconsistent reporting. There is no evidence of over reporting and no evidence of psychopathy in the responses. There is a significant elevation indicating that Ms Bamberg is presenting herself in an extremely positive light while denying some minor faults that most people acknowledge, creating concern that she is minimising any of her own transgressions. It also raises concerns about his level of genuineness in reporting issues.
In the summary section on page 34 of 35, Ms K recorded:
Ms Bamberg presents as a person with a pleasant personality who has a degree of anxiety. There is a sense of naiveté in her understanding of personal relationships. She presents as a person who has experienced violence in the relationship. Her previous knowledge of Mr Sandrick’s history with his previous relationships indicates a lack of insight into his personality characteristics.
Once again, I have regard to the entirety of the report, although the excerpts I have detailed are, in my view, significant.
The family report
Ms N’s report is dated 1 May 2020 and she interviewed the parties only a short while before that.
Ms N commenced by noting the background and current arrangements, including F’s autism. Ms N noted, at paragraph 7, Mr Sandrick’s incarceration for three months in 2014 for driving with a suspended licence and breaching the alcohol interlock conditions. Ms N noted the parties’ competing versions of the events at separation, at paragraph 8. I note that although the parties each accuse the other of assault, they both told Ms N that the mother ran into the bathroom and called the police.
The report traversed the history of the matter in Court and the proposals of the parties, which included the father’s proposal for “nothing less than fifty‑fifty” shared care and parental responsibility (paragraph 20), and the mother’s countervailing proposal for time from Friday to Monday each alternative weekend (paragraph 22).
Ms N went on to address risk factors. As with Ms K’s report, I should make it clear that I have had regard to all of the report, but I note that at paragraph 29, Ms N recorded:
Mr Sandrick was not accepting of Ms K’s psychological assessment, he stated he thought Ms K’s was biased against him, and unfairly portrayed him as an “unfit parent”. He denied exhibiting signs of anti‑social behaviour or maladaptive issues. Mr Sandrick raised concerns regarding Ms Bamberg’s propensity for “mind games” and her “negative mindset”.
The report traversed the mother’s responses to assertions of sexualised behaviour by F, which the mother completely denied (paragraph 31), and the mother’s assertion of an assault at a pub (paragraph 32). I note that on this occasion, the assault was said to have taken place at a pub, whereas the evidence given at Court appeared to suggest it was at a nightclub.
The report noted the mother’s more wide ranging assertions of family violence more generally.
At paragraph 38, Ms N recorded:
Prior to the commencement of the telephone interview, Mr Sandrick voiced that he was not comfortable in participating in the interview, “I am not a believer in today’s methods.” He cited that he did not consider it was in the best interests of X if the writer were to speak to X on the phone, “I think Ms Bamberg [Ms Bamberg] will be there coaching him”.
At paragraph 39, the report continued:
He stated he was frustrated by the process, and on several occasions voiced that the proceedings seemed bias against him, “I’m having to answer to lots of lies and allegations.”
Mr Sandrick went on to deny violence against either Ms Bamberg or the children and asserted that the mother had punched him on five separate instances, and stalked him through his mobile phone. Relevantly for these purposes, it was recorded at paragraph 40:
Mr Sandrick confirmed that he had been verbally abusive towards Ms Bamberg, which he was regretful of, “I called her bad names out of frustration via text messages. I regret those actions, but I never intentionally said anything threatening.”
I note that, at paragraph 41, Mr Sandrick repeated his assertions that Ms O (the mother of H) had manipulated the system against him and his assertion that Ms Bamberg knew this and had used those matters against him.
I note that, at paragraph 44, Mr Sandrick outlined that he did not agree with the psychological assessment prepared by Ms K because she was influenced by Ms Bamberg. I note that, although the father was open about his criminal past (paragraph 45), the Victoria Police records listed that, in addition to the matters he disclosed, there were at least two subsequent matters involving a three month ICO in 2008 for driving under the influence of alcohol and refusing to undergo a breath test, and a further three month ICO in 2010 after being found guilty of driving while disqualified.
Ms N went on, at paragraph 48, to note the clearly acrimonious relationship between the parties and the incapacity of the adults to talk to one another and asserted, at paragraph 49:
The toxic relationship between the parties is likely negatively impacting on X’s wellbeing. As X is the only person who is openly communicating with both parents, it is likely he is experiencing a large amount of pressure. This is supported by Ms Bamberg’s reflection that X is very “clingy” and suffers from behaviour changes after coming home from time with his father. Mr Sandrick’s reports of X as a “troubled” child may also be indicative of the pressure that X is feeling.
I note the conclusion, at paragraph 56, that:
The Child Inclusive Conference dated 19 February 2019, and the J Family Services supervisor’s report dated 15 July 2019, both highlighted that X shares a love for both his parents. Throughout these observations he has presented as relaxed, and happy to play with both parents. As such, it is highly likely that X feels stuck in the middle of his parents’ acrimonious relationship. This feeling is likely to be intensified given X is the only child that spends time with both parents.
It is clear, as Ms N noted at paragraph 57, that there is a positive relationship between X, B and C.
I note that, at paragraph 63-64, Ms N asserted:
63. DHHS substantiated historical allegations of family violence perpetrated by Mr Sandrick before X was born. Furthermore, DHHS has verified reports of X and his siblings being exposed to family violence perpetrated by Mr Sandrick in September 2018. Given the findings of DHHS, coupled with Ms Bamberg’s presentation at interview, it is assessed that it is likely that Mr Sandrick has perpetrated significant coercive controlling violence against Ms Bamberg and the children. Ms Bamberg stated that X was never directly targeted during incidents of family violence, however, did witness may incidents of violence.
…
If the accounts of Ms Bamberg are accurate, Mr Sandrick has chosen to expose X to significant trauma. X’s displays of shyness and clinginess may be a result of his experience of violence.
64. If accepted, then Mr Sandrick’s choice to use family violence is further compounded by his lack of accountability for his behaviour, and his limited insight into the impact the violence has had on X’s emotional well-being and safety. Throughout the interview Mr Sandrick denied using violence against Ms Bamberg and X, and voiced his frustration that he had been “hassled by the police” since an IVO had been put in place. He did not acknowledge his wrong doing in breaching the IVO, but excused himself by stating that he was ignorant to the IVO conditions. Furthermore, when questioned about his previous assault charges and convictions, Mr Sandrick minimised his behaviours, and attempted to defend his use of violence. He had stated he had assaulted people as a means of protecting his friends or a vulnerable woman. Additionally, Mr Sandrick failed to acknowledge his complete criminal record to the writer, and denied having an issue with alcohol abuse, despite being charged with several drink driving offences in the past. Mr Sandrick was unable to present as child focussed, and instead was focused on the toxic relationship he shared with Ms Bamberg, and how this was impacting him, “X is being kept away from me as a means to spite me.” Throughout the interview Mr Sandrick continued to disparage Ms Bamberg, and was unable to acknowledge any positive parenting from Ms Bamberg. It appears that Mr Sandrick has employed several tactics to discredit Ms Bamberg as a mother, and continues to assert that X is in physical and emotional danger. Mr Sandrick’s narrative against Ms Bamberg continues despite DHHS not substantiating any reports of sexualised behaviours or finding that Ms Bamberg is a significant risk to X or her other children. For the best interests of X, Mr Sandrick must move forward and away from the allegations of F’s sexualised behaviour.
At paragraph 67, having traversed various other matters which might be thought somewhat critical or less than positive from the father’s point of view, Ms N asserted:
Furthermore, given the toxic nature of the relationship, and the lack of communication between the parties, along with Mr Sandrick’s historical inability to co‑parent, it would be in X’s interests that Ms Bamberg is granted sole parental responsibility.
This suggestion was qualified by the desirability for Ms Bamberg to make a concerted effort to consult with Mr Sandrick before decisions were made.
She went on, at paragraph 68, to note that X’s primary care arrangements should not change. Various supports were suggested for the mother. The report went on to recommend time with the father if it was found he was not a significant risk to X and that X would benefit from engaging in therapeutic supports (paragraph 70).
Recommendations consistent with those observations are set out at the last page of the report.
Submissions made and evidence given at Court
What follows is taken from my notes.
The opening and evidence of the father
Counsel traversed X’s age and school arrangements. The parties had an on/off relationship and never lived together. The father says the mother has used the child to control him. She refused time when the relationship ended. Her allegations of family violence were false. The father has never been physically violent. The father seeks that time gradually increase so that, by 2022, it is week about, which would be ultimately a parallel regime. The father seeks family therapy to enable better communications between himself and the mother.
The father was called and adopted his trial affidavit as true and correct.
Under cross‑examination by counsel for the mother, the father said that he understood that there were allegations of abuse. He had never been physically abusive. He had been verbally abusive and regretted this. When it was put to him that verbal abuse is family violence, the father said he understood this was the wrong this to do. He denied that X had ever been in earshot. He has been raising his own two children since 2009 and they are doing really well. He understands, now, that the use of bad names is wrong. He had done a Men’s Behaviour Change course. He takes responsibility for his past verbal abuse. Physical abuse is untrue.
He was cross‑examined about the fact that he had not seen H for a very considerable period of time. The father said he was getting some rights and had made inquiries with solicitors and was looking to do something. It had been too many years. He had made inquiries and there were mediations. H is no longer living in Queensland. He had been to Victoria Legal Aid, Suburb P, but was rejected at first. He did not depend on his partner. He had not seen his son in a long time and was trying to change this. He does not have his son’s phone number, nor that of the child’s mother. He was meant to have time with H during holidays. His mother had made similar allegations against him and he had told Ms Bamberg. That was why Ms Bamberg was using these allegations to stop him seeing X.
I interpolate and say that the father’s answers about his endeavours to spend time with H were entirely unconvincing.
The father went on to say that he questions the system. He is only getting four hours and everyone is saying it should be supervised. He thinks the Court proceeding is biased. He has favourable reports about X, but then the reports believe what the mother has said.
When it was put to him that he was asserting that Ms K was biased, the father said things were said which were not true. He admitted he told Ms N that Ms K was biased. When he was asked if he thought DHHS were biased, the father said he was not sure why counsel asked that question. There were alleged inquiries, but he was never contacted. There was never any eyewitness report.
When he was asked if he accepted that the DHHS had made findings about violence, he said he had read that. He assumed that Ms Bamberg had alleged family violence.
The father was cross‑examined about his criminal history. He conceded he had a three month period of incarceration in 2014. He was not proud of this and regretted it. He was driving while suspended. He made a mistake. He denied failing an interlock usage. He said he was driving while suspended. He said he was very responsible and is a good role model for his children. He will not do that again. He denied that it was a leap of faith for X to spend unsupervised time with him and said his kids were doing well in his care. When it was put to him that X had suffered because of his historical abuse, the father said this was not because of his abuse. X is sad when he leaves him. The mother has alleged that bad things are done and is seeking to minimise his time with X. He was not seeking full‑time, only 50/50.
When it was put that the family consultant did not support his position, the father said that she only spoke to his mother. Mr Sandrick said that he had alleged that F abused X. He told this to the family report writer also. When it was put to him that there was no evidence to support this, he said there was. He saw what F and E had done. X told him. No one took him seriously.
The DHHS did not close their inquiries immediately, but basically believed what Ms Bamberg said. He would say, “Did anyone ask X?” He went to the Suburb Q DHHS, SOCIT and the police. The answer he got was that F was under 10 and it was not serious. This was disgusting. The child was being touched inappropriately. His application is for 50/50. He was considering 100 per cent. His intention is for the right services to assist X’s brothers. He wants what is best for the children.
When it was put to him that he had been found guilty of assault, the father said he saw a lady being attacked at Suburb P. He warned the guy and told him he would stop him. He hit him and it had got him in a lot of trouble. He was in trouble for someone else hitting him. He did not like seeing a woman being hit by a man.
He has other criminal history. He had breached the Intervention Order, but this was unintentional. He put a photograph of his son online and did not realise that this was breaching the order. The order had been read to him by Ms R.
He said he had been harassed constantly by Ms Bamberg trying to catch him out. He has no contact with the mother at the moment. He understands that joint decisions would rely upon meaningful communications between the parents. It was essential there be good communications between him and Ms Bamberg. It was important to learn to deal with each other for X. When it was put to him that this would be impossible because of the past violence, the father said he did not believe it was impossible. He said it had been a very difficult time for X and the parties needed good communications.
The father under cross‑examination by counsel for the Independent Children’s Lawyer
Counsel outlined the Independent Children’s Lawyer’s proposal for time to proceed and slowly to increase. The father agreed that there were no communications between the parents now. He was annoyed that X had been placed in primary school without any consultation with him. He would like to have viewed the school. He was only getting three hours of supervised time at that time.
The father was taken to paragraph 48 of the family report. He conceded that the parties needed to learn how to communicate and said he understands he has to have contact with the mother. This is in fact inconsistent with what he told Ms N. He told Ms N that he only wanted to share written communication with the mother because he had to keep himself safe against allegations and lies.
It was put to him that he had made disparaging remarks about the mother to the family reporter and the father said he had negative thoughts. He has been stalked. He has been harassed by the police because of Ms Bamberg. He knows he has to move forward. He still only gets four hours with X and is sure he would want more.
It was put to him that he has not acknowledged any positive parenting by Ms Bamberg to Ms N. The father said he did say some negative things. X needs his mother. She is using X as a weapon to prevent his time with X. The mother did not propose any immediate time and he still only has four hours. He believes Ms Bamberg is doing whatever she can to prevent time between X and his brothers. She has said alternate weekends in response to his application for shared time. She wants control. She needs to learn that he is his Dad. It is his view that the mother’s wishes to control him has lessened somewhat.
When it was put to him that he had not co‑parented with the mothers of his other children, the father said to some degree this was the case. The other mother lives a lifestyle which prevents time. B and C have been with him since 2009. The mother contacts him sometimes, but not enough to be around when decisions are to be made. He has not had a lot of time with H.
When cross‑examined about family violence, the father said abuse is family violence. He was not sure about coercive and controlling behaviour. He did not believe he was coercive or controlling.
When it was put to him that the parents would not be able to consult, the father said that he believed there would always be different opinions at times, but he understands that the parties need to be more compromising. He was prepared to use an app such as OurFamilyWizard. So far, he has only had four hours of daytime, which is limited.
Before separation, he was a major role model for X. X trusts him and confides in him. He had not attended X’s school this year because this was part of the IVO conditions. Ms Bamberg might have told the school that he was not be around. He had not spoken to the teachers. He is a full‑time Dad. His boys are his best mates.
At this point, cross‑examination ceased, and I noted that no one had put to Mr Sandrick the serious allegations of assault detailed, inter alia, in the family report. I put the assaults alleged in paragraph 32 of the family report to Mr Sandrick myself, as I felt it was only fair that he be given an opportunity to respond to them in terms.
So far as the assault alleged at a pub was concerned, this occurred at a nightclub. The father said that the mother assaulted him. She was frustrated because he was on the dance floor with someone else, and punched him in the forehead. She had been removed from S Nightclub, whereas he was permitted to re‑enter.
When asked to comment on the alleged injury to Ms Bamberg’s knee, he said this was not true. He had never harmed her physically, even accidentally.
The father in re‑examination
The father was re‑examined about the assault at Suburb P Station. If he was in the same situation now, he would call the police or yell out for help.
He has no relationship with B and C’s mother. She has a substance issue and is erratic. Last contact with her was in January or late December. She has failed drug screens.
When asked what he had learnt from the Men’s Behavioural Change course, which was 400 hours, the father said it was mostly responding to confrontational issues. Trying to recognise ill feeling before things happen. Violence is not the answer. Everyone is entitled to make their own decisions.
When asked what would happen if there was a disagreement about X’s school, the father said he would put his points. She will want X to go to the same school as her children. He would try discussing other schools. Not necessarily B and C’s, but he thought that was the best school. The best bet would be to ask advice, possibly a counsellor or a lawyer. He has not had the opportunity to communicate with the mother and is going to have to make that happen.
The evidence of the mother
In opening, counsel relied upon his case outline and indicated that the mother supported the Independent Children’s Lawyer’s position that there be sole parental responsibility to her.
The mother adopted her trial affidavit as true and correct.
Under cross-examination by counsel for the father, the mother said that in a perfect world there would be good communications between the parents. When it was put to her that the parties should try therapeutic counselling, the mother said this had been tried but not worked. There was couples counselling after mediation. The mother said she can communicate fairly and has proved that. The father needs to communicate better. She is not withholding X to punish the father.
The mother was cross-examined about the night of separation. She said she remembered what happened. It was put that there was an argument because he had seen another woman but the mother said that there were many of these occasions. He was in contact with many women. She had never said she would kill herself. She had attended mediation. She had only kept X from the father for the first six weeks because of the safety risk. He saw X at the hospital. He tried everything. She tried everything. She had undertaken mediation, they got together and split up. The last communication they had was at separation in September 21 2018.
When it was put to her that there were advantages in X having a significant relationship with his father, the mother said he is his dad. X loves his dad. Everyone needs both parents. The Intervention Order prevents contact with the school. She had had no communications from the school. She just handed the school the Intervention Order. She had not put the father as an emergency contact but this would be okay now. She would not have agreed at the start of proceeding. She offered time before she got the DHHS and criminal records. She agreed for every Saturday for a longer period of time and to work up to Sundays. The Independent Children’s Lawyer’s proposal was put to her and she appeared largely to agree with it. When it was put to her that there might be benefits in changeover school to school the mother pointed out that her other children attend the same school in any event. She would wish to keep her distance from the father. She would be happy with X being returned on Sunday nights.
It was put to her that the father had done well with B and C. The mother said that this comforted her a little bit but there was no co-parenting. He has nothing to do with her. She co-parents with her ex-husband all the time. The communication difficulties were entirely at the father’s fault. An app would be good as it could be monitored. She does not believe the father’s decision-making is in the best interests of X. If there was a disagreement about school she would have to seek help. She does not know how it works. He does not need to be in her life to be in X’s life. He is out of her life. She can communicate about X. The father’s decisions would be putting her down and not for X. She is not comforted by the father’s evidence about the Men’s Behavioural Change Group. His affidavit was based on hatred of her and her family.
It was put to her that her allegations of violence were not true and that she had not had her fingers bent backwards. The mother said this happened many times. She had not reported this to the police because she was scared. She went to the police some of the times.
The mother stuck by the assertion that the husband had dislocated her knee. He had thrown her on the ground after a night out. She went to the doctor and has sent her lawyer photographs of her dislocated knee. She did not go to the police because she was scared.
When it was put to her that she was imitating H’s mother, Ms Bamberg said he had not told her. She found out from the subpoenaed material. She was not controlling the father during the relationship.
The mother was cross-examined about the separation in September 2018. She had read the father’s affidavit and thought the argument was not about his family. She had not got a chance to say anything that night.
The mother was cross-examined about the incident at the S Nightclub. She denied punching the father. She left herself and he followed her out and grabbed her hair and called her a slut. She locked herself in a service station. He had always said they would get back together. She did not make reports to the police because he always said sorry. Three days later he arrived at her house. She did not assault him in the nightclub and did not know if he had been readmitted.
The mother under cross-examination by counsel for the Independent Children’s Lawyer
The mother confirmed the annexure “B-05” to her trial affidavit was taken in the service station toilet. This is the annexure to the trial affidavit showing what appeared to be bruised knuckles and a broken phone. The incident in the nightclub was in about 2013. There have been allegations of substantial abusive behaviour since then. As a result of this, she would rather not come into contact with the father. His verbal insults scare her as well given the history. She had seen assertions that she was manipulative and controlling in the father’s affidavit. The affidavit expressed hatred to her and her children and was trying to say lies that are not true.
When she was asked what was manipulative about the father, she said the stuff about F. She denies these allegations. DHHS interviewed X as well. When asked how mediation had failed, the mother said the couple’s counsellor saw them a couple of times. The counsellor refused to continue because of the father’s aggressive behaviour and continuing emails. He did not change any of that. The father will never agree with anything, she suggests. He never has. He has always done that. She would prefer to use an app because it is monitored. When asked if shared parental responsibility would work, the mother said no. There is always no agreement. He will not view her opinions. She does not use X as a pawn. She does not try to control the father. There was a six week period during which there was mediation and the husband saw X and it was not the whole six weeks. The mother agreed that the father’s time should slowly increase. When asked how she would deal with what X says after seeing his father, the mother said she would have to be gentle with X. She would go to a lawyer if it continues. She would hope things settle down after the hearing, most of all for X. She is not a big fan of family therapy after her previous experience. She would rather start via an app and see how that went and then she might consider it. She would be prepared to undertake play therapy as recommended in the family report.
When asked about her anxiety, the mother said she would like the matter finalised. She plans to re-engage with her psychologist and still takes her medicine. X’s primary attachment is to her. She had not assaulted the father.
The mother was cross-examined about notes annexed to her affidavit. That at page 12 of 61 was not last year but was before separation. She had constantly taken notes because it was an on/off relationship and involved abuse. It should be noted in passing that the mother has plainly been keeping materials for very extended periods of time, including the photographs of the alleged assault at the nightclub with a view to using them in some fashion, and I would infer presumably for use in litigation.
The mother was not comfortable with the idea of 50/50. It is not in X’s best interests. X does not even spend overnight time yet with his father and there is no communication. From the recent material, it does not look as though much has changed. Time could move to overnight if things go well. If not, she would seek advice and hoped it would not lead to Court proceedings.
In re-examination, the mother confirmed that the Intervention Order was applied for by the police in respect X’s school. She would prefer changeover to be at Suburb D police with no contact.
The evidence of Ms K
Ms K adopted her affidavit as true and correct. She had not read the family report. It is put to her that the family report had recommended overnight time. Ms K said there was a difficulty with the assessment. The father was cooperative but was inconsistent as to the outcomes he was seeking and had engaged in impression management. She was not able to interpret as she would have liked. It was not possible to see the underlying and real issues. There were other problems with past histories, for example, Intervention Orders and past partners. Ms K opined that the father might not be able to accept boundaries. She could not say there was a risk but there were antisocial qualities that were not able to be assessed. There was a sense of naïvety in the mother’s profile. It was not as significant as the father’s. It was possible to interpret the MMPI results. The mother presented as elevated but not as much as her partner. She questioned the genuineness of what the mother says about herself.
The father’s behaviour indicated an inability to accept authority. She was unable to say whether this affects his capacity to parent or not.
Under cross-examination by counsel for the mother, Ms K confirmed there was concern about the father seeking to align X with his own views. Past behaviour influences our assessment of the future. The father had withdrawn from the Men’s Behavioural Change Program. She had not seen the parents with the children. She saw the mother. The mother was anxious about meeting the father but understood the value of the father in a child’s life. She is fearful of the father and she had not seen the parents together.
Counsel for the Independent Children’s Lawyer asked Ms K if she thought co-parenting was possible. Ms K said the mother would be conceding a lot to the father. The father is quite a dominant person. She queried whether the father was really remorseful. If there was no change the mother will concede to the father. There is a power imbalance between the couple. The mother has naïvety.
The evidence of Ms N
Ms N adopted her report which was tendered as exhibit C1.
Under questioning by counsel for the father, Ms N confirmed that there were some concerns about the mother’s anxiety and how she was managing the family violence. She is not presently undertaking counselling but is keen to re-engage. A lot of her anxiety stems from allegations of family violence that have been made. When asked if family therapeutic counselling might assist the parties, Ms N said something like that could be beneficial. If the allegations of violence are true then there is a measure of control. Therapy might or might not then be beneficial.
Counsel traversed the competing proposals. The Independent Children’s Lawyer recommends 2 nights out of 12 over time and the mother agrees. Counsel put it that a pick up on Friday and on Monday from school would be of assistance. Ms N said it would be beneficial if time between the parents was reduced as much as possible. When it was put that there should be an overnight in the off-week, I understood Ms N to say that X has not yet even been away for 1 night. There should be a gradual increase. It depends on how X is coping. It has to be quite slow. She cannot say without evidence. She conceded that the opinion she expressed assumed that the mother was truthful.
When she was taken to paragraph 56 of her report which suggested that X felt stuck in the middle, Ms N said that Mr Sandrick drives a lot of it. There is an increased fixation on F’s sexualised behaviour. The DHHS had not substantiated this. He is driving the acrimony. Both would benefit if they were able to communicate without an adversarial lens. They should undertake a parenting orders program or post-separation course. (It seems to me that the parties have already done this with little effect).
Under cross-examination by counsel for the mother, Ms N confirmed that victims do not always report matters to the police. There is power and control in family violence relationships. Ms N recommends moving to Saturday and Sunday time and then to overnight after three months. When asked if the father had learnt from the program he had undertaken, Ms N said he had not found it too helpful. She confirmed that the interviews for her report took place at the end of April 2020.
Under cross-examination by counsel for the Independent Children’s Lawyer, Ms N said she had considered consultation by the mother with the father but had eventually determined on recommending sole parental responsibility because of the coercive behaviour. Even if the mother was not required to consult with the father about major decisions, he would still need to be aware of what is happening to X. When it was put to her that the father seeks 50/50 time from when X is seven and a half, Ms N was unsure why this was possible for 2022. There have been allegations of family violence covering X’s whole life. 50/50 would be a lot. They are just moving to overnight time.
Final submissions by counsel for the Independent Children’s Lawyer
Counsel for the Independent Children’s Lawyer suggested that time move to overnight after three months of Saturdays and Sundays and referred to the outline of argument filed. Since August 2019, there has only been four hours per week. The allegations between the parties have continued and there is no predictable trajectory. The mother had resiled from her position just before trial. The presumption of equal shared parental responsibility was rebutted by family violence and should not apply, in any event. First, there were difficulties in communications. The father said there is no communication and there are no joint decisions. The mother enrolled the child into a school and the mother said this was because of the family violence at the time. The parties have told the family report writer they cannot interact. The father confirmed this in evidence when he said, “It’s not going to be possible, that’s for sure.” Despite his mea culpa about the text he had sent, the father maintains an antipathy to the mother “I believe she’s doing whatever she can to keep me and X apart. She wants control.” The father then goes on to say that they need to learn to communicate. The father says, “I’ve been stalked and harassed by police because of Ms Bamberg.”
The mother’s evidence is different. She is equivocal about mediation. It has been tried before and the mediator could not mediate with the father. The mother is ultimately apprehensive. Her hesitation about mediation was honest.
The family report makes observations about the father. There was a recent phone interview in April. The report is not favourable to the father. Despite separation almost two years ago, the father remains non-child focused. Counsel referred to paragraph 64 of the report in this regard. The father is focused on the toxic relationship and his belief that X is being kept away to spite him. He is critical of the mother. There is no likely cooperation in decisions about X.
Ms K found the dynamic troublesome. The mother would concede a lot to the father because of the power imbalance. The father is still focused on blaming the mother. There is consistent denigration, as referred to in paragraph 57 of Ms N’s report. Consultation could be problematic. The father has a very low level of trust for the mother. Any contact may create conflict and lead to problems for X. The mother has been facultative to the father/child relationship. She does not want control of the father. She acknowledges the importance of the father/child relationship. The mother presents honestly but with some equivocation. She still fears physical abuse. The father will never agree to anything she suggests. Despite this, she says time should progress to of overnight. The mother is responsive to X’s needs. X has never been away from her. X should have a relationship with his father and half-brothers. The mother is particularly child focused. The issue is conflict between the parties which must be minimised. Ms N talked about significant risk and her recommendations at paragraphs 72 and 73 are dependent on significant risk. The Independent Children’s Lawyer says there is not significant risk if the potential for conflict is removed. Advance should be slow and careful. The child is still very young. Shared care is contraindicated. The father does have full-time care of two other children but there is a query as to how this occurred. The risk for X is the toxic relationship between his parents. The Independent Children’s Lawyer queried whether the father was able to co-parent in a non-abusive way. The father is driving the animosity. The Independent Children’s Lawyer agrees that after order 3(c), there should be two nights from Friday to Sunday. The Independent Children’s Lawyer did not accept Monday. There was some level of risk. The Independent Children’s Lawyer agreed with Tuning into Kids but felt the mother should resume seeing her psychologist but that it is not necessary for there to be an order to this effect. Joint counselling was contraindicated. The child should attend play therapy that is recommended by the report. The ICL agreed with the OurFamilyWizard app. Mediation was not appropriate.
Final submissions by counsel for the mother
Counsel was essentially content to adopt and support the submissions of the Independent Children’s Lawyer. The mother is not preventing time with the father and this has never been her position. She is not controlling. The mother opposed the collection of the child from school. The mother will be going there anyway. A police station is very workable and safe. Mediation is not appropriate and has not been successful in the past. The presumption is rebutted and the mother wants sole parental responsibility. A requirement to consult with the father would be tricky but she will inform the father of any major decisions. It was beyond that. There had been family violence against the mother and arguably involving X. It was counsel’s submission the Court should find there had been physical family violence. Time should start for one day per weekend and a short period in the midweek. The mother resisted mediation. She will re-engage with her psychologist about her anxiety and is taking her medication. The mother is open to education about parenting but nothing conducted jointly.
Submissions by counsel for the father
Counsel submitted that no order for psychological counselling was possible. The father seeks the orders in his outline of case. He seeks shared parental responsibility. He admits verbal and text violence but does not admit that X was involved. If there is no joint responsibility, the father seeks consultation and information. He seeks orders that will enable him to obtain information from schools and attend school functions. There are Intervention Orders in place for both parties. The father seeks shared residence in 2022. He is genuine in his statements about learning to communicate with the mother. The mother says it is all the responsibility of the father. The father will attend mediation and counselling. What the parties undertook previously was couples counselling but this was different.
If there is not an order for equal time, the family consultant was clear it should be Friday night to Monday which is best for the child. There should be four nights a fortnight and clearly liberty to apply to the mother if it was not working. He submitted, nonetheless, there should be final orders. There is no risk to X and no evidence of it except lack of communications for the parents. There was no assertion that the father did not have adequate parenting skills and there were two children in his care. If it was safe for two nights, it was safe for three. Ms K says there will be a power imbalance if there is no change but the father has changed. He is prepared to mediate, has completed a Men’s Behavioural Change course and learned from it. There should be an order for shared responsibility. Family violence should not rebut the presumption and, even if it did, equal shared parental responsibility could still be ordered. If there was not a fourth night, the Court should consider time in the evening in the off-week.
Findings as to the facts and the credit of the witnesses
The father’s evidence was given in a fashion which I would describe as generally somewhat aggressive or assertive. As earlier indicated, some of his answers were unconvincing. His evidence, in truth like his affidavit material, is uniformly accusatory of the mother. He is clearly utterly set in his view that the mother is lying about him with a view knowingly to control him and diminish his time with X. I found the father’s evidence about his regret for his prior disgraceful behaviour (that at least which he is prepared to admit) unconvincing.
By way of contrast, the mother was, on occasions, somewhat argumentative and even, indeed, labile when discussing the allegations made against F. Nonetheless, it would be fair to say that her answers were generally reasonably direct if slightly confrontational in their tone. I also felt that some of her evidence was prone to some measure of exaggeration. Her characterisation of the father’s trial affidavit as expressing hatred to her and her children overstates it, albeit that the father’s affidavit was indeed critical of her.
Having made these perhaps slightly generalised comments, the parties were in what both of them described as an on again, off again relationship. They never actually really lived together. I have no doubt that there were significant and serious verbal altercations between the parties from time to time and equally no doubt that X, and indeed the other children, must have overheard some of it. The observation that X’s clinginess may relate to such an experience strikes me as being entirely sound. But more difficult is the question of the alleged physical assaults. I have no doubt that the mother at some point had her knee damaged but whether this was deliberate or not it is impossible to say. The tenor of the mother’s evidence was that this took place at the end of a long night out and, given what happened on at least one of the long nights out, it seems highly possible to me that either of the parties may have not been in full control of their faculties. In the ultimate, I am simply not able to make a decision as to whether this was caused deliberately or negligently by the father even though I have no doubt that it occurred. The mother’s tendency to try and store up evidence for future use suggests a tendency perhaps to self-service, in any event.
The one incident I have arrived at a definite conclusion about is the incident at the S Nightclub. I think the father is correct that the mother lost her temper with him when he was on the dance floor. The photograph of her knuckles is entirely consistent with her having hit him. What then happened is likewise, in my view, not open to doubt. The father either took her out or went out after her and assaulted her. The reason I have arrived at this conclusion when there is no definitive objective proof about it is because in a curious fashion, bearing in mind that I had the opportunity of seeing them quite closely over the Microsoft Teams, is that each of them gave their evidence about what had been done to them with conviction. Their denials of their role in the allegations against them, however, were wholly unconvincing. The father makes much of his alleged opposition to violence to women. He appears to regard verbal violence or written insults as being totally different. While that is true at one level of analysis, it ignores the fact of the sort of repellent messages he was in the habit of sending to the mother are, on any view of the matter, likely to give rise reasonably to fear and concern on the part of the recipient. I found the father’s suggestions that he had really learnt his ways about verbal insult completely unconvincing. Indeed, I found his general demeanour to suggest that he is manipulative and controlling. He complained vividly of it in the mother but, in my view, it is he who primarily exhibits these characteristics. The mother has, on occasion, withheld the child from the father as a response to his behaviour but given the circumstances, it is difficult to be overly critical of her in this regard. I will deal with the other matters in dispute when I deal with the section 60CC matters.
The statutory pathway
The statutory pathway is illuminated by paragraph 65 of the decision of the Full Court in Goode v Goode [2006] FamCA 1346 (“Goode v Goode”). It is, despite legislative amendment, in my view still the guiding path:
“Summary
[65] In summary, the amendments to Pt VII have the following effect:
1. Unless the Court makes an order changing the statutory conferral of joint parental responsibility, s 61C(1) provides that until a child turns 18, each of the child’s parents has parental responsibility for the child. “Parental responsibility” means all the duties, powers, and authority which by law parents have in relation to children and parental responsibility is not displaced except by order of the Court or the provisions of a parenting plan made between the parties.
2. The making of a parenting order triggers the application of a presumption that it is in the best interests of the child for each of the child’s parents to have equal shared parental responsibility. That presumption must be applied unless there are reasonable grounds to believe that a parent or a person who lives with a parent has engaged in abuse of the child or family violence (s 61DA(1) and 61DA(2)).
3. If it is appropriate to apply the presumption, it is to be applied in relation to both final and interim orders unless, in the case of the making of an interim order, the Court considers it would not be appropriate in the circumstances to apply it (s 61DA(1) and 61DA(3)).
4. The presumption may be rebutted where the Court is satisfied that the application of a presumption of equal shared parental responsibility would conflict with the best interests of the child (s 61DA(4)).
5. When the presumption is applied, the first thing the Court must do is to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend equal time with each of the parents. If equal time is not in the interests of the child or reasonably practicable the Court must go on to consider making an order if it is consistent with the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each of the parents (s 65DAA(1) and (2)).
6. The Act provides guidance as to the meaning of “substantial and significant time” (s 65DAA(3) and (4)) and as to the meaning of “reasonable practicability”
(s 65DAA(5)).7. The concept of “substantial and significant” time is defined in s 65DAA to mean:
(a) the time the child spends with the parent includes both:
(i) days that fall on weekends and holidays; and
(ii) days that do not fall on weekends and holidays; and
(b) the time the child spends with the parent allows the parent to be involved in:
(i) the child’s daily routine; and
(ii) occasions and events that are of particular significance to the child; and
(c) the time the child spends with the parent allows the child to be involved in occasions and events that are of special significance to the parent.
8. Where neither concept of equal time nor substantial and significant time delivers an outcome that promotes the child’s best interests, then the issue is at large and to be determined in accordance with the child’s best interests.
9. The child’s best interests are ascertained by a consideration of the objects and principles in s 60B and the primary and additional considerations in s 60CC.
10. When the presumption of equal shared parental responsibility is not applied, the Court is at large to consider what arrangements will best promote the child’s best interests, including, if the Court considers it appropriate, an order that the child spend equal or substantial and significant time with each of the parents. These considerations would particularly be so if one or other of the parties was seeking an order for equal or substantial and significant time but, as the best interests of the child are the paramount consideration, the Court may consider making such orders whenever it would be in the best interests of the child to do so after affording procedural fairness to the parties.
11. The child’s best interests remain the overriding consideration.”
Parental responsibility
The father seeks equal shared parental responsibility and the mother opposes it. This issue can be disposed of, in my view, relatively simply notwithstanding its importance. There has undoubtedly been family violence and the presumption is rebutted. Albeit that the Court still retains power to make such an order notwithstanding the rebuttal of the presumption, it is immediately obvious that no such order should be made. First, both parties agree that there is no communication between them and that their relationship is toxic. Each, in my view, entirely blames the other despite the father’s disavowal. There is no prospect that future mediation or counselling will be of any therapeutic benefit to these parties. They have tried mediation which failed because the father was aggressive to the mediator.
Counselling will not succeed because they simply cannot bear to be together and the mother is undoubtedly still scared of the father. This was her demeanour during the family report and, indeed, during the trial itself. Not only will therapy and the like not be of any assistance, I think it would be actively negative in its outcome. I agree that the father’s personality is a dominant one. If I make any order for equal shared parental responsibility or counselling or the like, the father will use this to his advantage.
As Ms K rightly said, the mother will make concession after concession, albeit unwillingly. She is simply not strong enough to stand up to Mr Sandrick who, as I have said before, struck me as being a very domineering and controlling personality. It is simply not in X’s best interest that there be an order for equal shared parental responsibility. He will continue to live primarily with in the care of his mother who should have sole parental responsibility but be required to keep the father informed (but not consult) over any major changes to the major developments in X’s life.
I was particularly struck by the fact that the father was indicating even during his evidence that there is likely to be a dispute about whether X goes to secondary school. X is, at the moment, years away from secondary school and yet even at this advanced point, the father is plainly contemplating an argument about secondary schooling. This is part of his, as I find, entitled and domineering personality. The mother needs to be shielded from this and it is in X’s best interests clearly that this be so. Whatever her strengths and weaknesses, and she has certain weaknesses, the mother must make the decisions.
The primary considerations: section 60CC(2)
Everyone agrees that it is, in principle, desirable that X have a meaningful relationship with each of his parents. There is, however, in the circumstances of this case, a need to protect X from family violence as described in section 60CC(2) and this is a factor that requires to be given greater weight by virtue of section 60CC(2A). Nonetheless, this observation needs to be seen in proper context. All parties are proposing that X spend time with and communicate with his father. The fight is about the minutiae of how much and the speed at which it may develop.
The additional considerations
Section 60CC(3)(a)
X has expressed no meaningful views given his age. Everyone agrees that X loves both his parents and, indeed, it is probably not necessary in the circumstances to say more than that. He remains very young and any expression of his views would need to be approached with caution, in any event.
Section 60CC(3)(b)
X has a primary attachment to his mother. He has always lived with her and entirely so since separation. It seems he has a good relationship with the mother’s other children (she asserts he is closest to F) and, equally, with the father’s other children. Further, as already indicated, he has a good relationship with the father himself.
Section 60CC(3)(c)
There is no doubt that the mother is the primary carer, has participated appropriately in making decisions about major long term decisions in relation to X. The father, to his credit, has sought to do so in these proceedings and has maintained his position through to judgment. There is no question that he has sought to spend time and communicate with X in an entirely appropriate fashion.
Section 60CC(3)(ca)
Little was said about the matters that arise under this subsection during the trial. The mother has plainly done her level best to care for X in what are not perhaps easy circumstances, particularly bearing in mind F’s autism. I do not recall any emphasis being given on questions of child support but it seems reasonably clear that the mother is not paid any. Nonetheless, the father’s full-time care of his two children would indicate that there is no room for criticism in this regard. The father seeks equal shared time, albeit not until 2022, and it is to be inferred that he takes his responsibility towards the maintenance of X seriously.
Section 60CC(3)(d)
One thing that has been at times overlooked, most particularly in the father’s case, is the practical reality of the situation that X faces. He has not yet spent one night away from his mother in his life, as best I understand it. Indeed, at the present time, he has been spending only supervised time with his father. The notion that X would readily and immediately be able to move to substantial blocks of time, as the father seeks, is plainly untenable. Any increase in X’s time with his father and his halfsiblings must be gradual and at a pace that X will be able to accommodate.
Section 60CC(3)(e)
I do not understand anybody to suggest that whatever time regime the Court imposes is likely to give rise to difficulties on account of expense. Where there is a practical difficulty in X spending more time with his father is a question of the terrible relationship between his parents. I fully accept the mother’s evidence that she remains scared of the father. Indeed, I think she has good reason to be so despite his denials. This means, in my opinion, that changeover at school is inherently extremely undesirable.
I do not trust either of these parents to have sufficient self-control to fully behave themselves if brought into each other’s presence as they necessarily would be by a changeover at school. Although counsel for the father appeared to manage to persuade Ms N in cross-examination that changeover from school might be beneficial, I do not agree. The less these parents see each other, regrettably, the better. It would altogether better if they were able to interrelate with one another without tension and in a mature and considered way but this will simply not be possible. Changeover will continue to be from a police station both on Saturdays and in due course on Fridays as well as on Sunday evening, a matter to which I shall return.
Section 60CC(3)(f)
Both of these parents love X. There can be no question about this. The mother’s capacity to share care for X is compromised, albeit as I find at the margins, by her anxiety and the various frailties in her personality. I share Ms K’s opinion that the mother’s continuation of her relationship with the father in circumstances where she must have been aware of the history of his relationships with the other mothers with whom he had had children reflects an immaturity or lack of insight on her part.
Nonetheless, she is X’s primary carer and there is nothing to suggest that X is not developing at least as well as could be expected given some of the difficulties this case has evidenced. The father’s capacity to provide for X’s needs is more compromised. I think he will, unless otherwise restrained, and possibly even subconsciously, seek to align X with his own views of the mother’s conduct. His view that the mother is wilfully lying to limit his time with X by creating false accusations is an absolute idée fixe in his mind. Unless he can get over this, the future for his interaction with X is likely to be compromised.
Section 60CC(3)(g)
I have just referred to certain frailties in the mother’s makeup and circumstances. It is not necessary to repeat them. The father has a number of negatives in his lifestyle and background. He has not been able to accept in his own mind that he has been physically violent to the mother in the past. She, of course, has not likewise been able to accept the same about him. His protestations of having learnt from the Men’s Behavioural Change course are, in my view, unconvincing and his personality, as I think I have said perhaps all too often, has qualities that one would describe as manipulative, coercive or controlling. These are matters that require care to be taken as his time with X expands lest those qualities come to interfere with or affect X’s relationship with his mother.
Section 60CC(3)(h)
This is not relevant.
Section 60CC(3)(i)
This is an important subsection but as is often the case by this stage in the traversal of the various subsections, it has really largely been dealt with. The father deserves great credit for the upbringing of the two children who have been in his primary care for so long and whose development appears to have been entirely generally appropriate. Nonetheless, there is a strong, albeit perhaps understandable, proprietorial quality in his approach to X (“I’m his dad”) which reflects less of a focus on X’s best interests and more on the interests of the father himself. The mother’s attitude towards her responsibilities of parenthood seems, despite her frailties, to be unremarkable.
Section 60CC(3)(j)
There is no question that there has been family violence. There were the assaults at the S Nightclub. There have been quite disgraceful and disgusting emails and/or text messages sent by the father to the mother and I have no doubt that while both of them may have sworn at each other during the relationship, the father has been vastly more abusive to the mother than she to him.
Section 60CC(3)(k)
I think there is still an Intervention Order in place but it is not apparent to me that it adds anything at this stage of the proceeding.
Section 60CC(3)(l)
It is entirely desirable that these proceedings are brought to a conclusive end. The father’s domineering personality is such that if any sort of liberty to apply is left open that the parties will be back here again in a relatively short time. Indeed, the father’s obvious intention to apply for equal time over time suggests an unrelenting determination on his part to get his own way. Since the mother will give way if not protected, it is important to make final and determinative orders now.
Section 60CC(3)(m)
In a sense, this brings us to the nub of the issue. How much time should the father spend with X and over what period of time should it be introduced. There is no doubt in my mind that the time schedule proposed by the Independent Children’s Lawyer is appropriate. X’s time with the father should increase from the present 4 hours to 10:00am to 5:00pm on each alternate Saturday for three months and 10:00am until 5:00pm on each alternate Sunday for three months. Unless I have misunderstood matters, it is intended that this will be a Saturday and a Sunday in each alternate week, rather than a Saturday one week and a Sunday the following week.
This itself will be a major jump for X who has not spent more than four hours with his father of recent moment. While doubtless the father will say this is the mother’s fault, that is what the facts are and I think a more gradual increase is appropriate. After that period, time should move to overnight time for a further three months with time starting at 10:00am Saturday until 5:00pm Sunday. Following those three months, two things should increase. First of all, time should proceed to be from Friday 4:00pm till Sunday 5:00pm each alternate weekend with time in the Wednesdays from conclusion of school until 7:00pm. I have already made observations about the difficulties with changeover from school but if the father is to get any meaningful time at all, it will have to be from after school on the Wednesdays. These increases are in my opinion an appropriate ultimate outcome bearing in mind X’s age and, importantly, the dynamic between the parents to which I have refined.
Otherwise, time should be as sought in the Independent Children’s lawyer’s minute.
Conclusion
I have drawn draft orders to reflect my conclusions but will permit the parties to address any fine tuning that they may collectively feel appropriate. It is to be hoped that these reasons for judgment will cause both of these parents to pause and reconsider. The father needs to get his mind around the fact that the mother is not creating all sorts of false reports simply to exclude him from X’s life. He may think her concerns are exaggerated or misfounded but they are certainly genuine.
If I am incorrect and he has truly adopted and taken on board the matters that might have benefited him in the Men’s Behavioural Change course, he would appreciate that behaving better to the mother is his path in the future to, first of all, a better interaction on his part with X and, secondly, entirely in X’s best interests. If he endeavours to continue to align X with him against the mother, then he needs to understand how destructive this would be to X’s wellbeing and how likely to lead over time to even less time, if any, with his son rather than more.
I certify that the preceding one hundred and sixty-seven (167) paragraphs are a true copy of the reasons for judgment of Judge Burchardt
Associate:
Date: 17 July 2020
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