Santoro and Santoro
[2011] FMCAfam 803
•9 August 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SANTORO & SANTORO | [2011] FMCAfam 803 |
| FAMILY LAW – Parenting – high conflict between parents – one child aligned with each parent and spending no time with the other. |
| Family Law Act 1975, ss.60CA, 60CC(2)-(3), 61DA, 65DAA, 65DAC |
| Applicant: | MS SANTORO |
| Respondent: | MR SANTORO |
| File Number: | MLC 8893 of 2010 |
| Judgment of: | Hughes FM |
| Hearing dates: | 26-29 July 2011 & 1-2 August 2011 |
| Date of Last Submission: | 2 August 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 9 August 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr MacFarlane |
| Solicitors for the Applicant: | Harwood Andrews Lawyers |
| Counsel for the Respondent: | Mr Mort |
| Solicitors for the Respondent: | Michelle Moloney Family Lawyers |
ORDERS
All previous parenting orders in relation to the children [X] born [in] 1997 and [Y] born [in] 1999 are discharged.
The parents shall have equal shared parental responsibility for the children.
[X] shall live with the wife.
[Y] shall live with the husband.
The parties shall each forthwith take all steps necessary to arrange for therapeutic individual and family counselling to occur with Ms B or such other counsellor or therapist as agreed between them with a view to:
(a)re-establishing the relationship between each child and their non- residential parent and each other;
(b)improving the communication between the parents and their co-parenting relationship; and
(c)addressing any other matter considered necessary by the counsellor.
The counselling shall continue until such time as the counsellor or therapist recommends it cease.
The parents shall equally bear the costs of any counselling involving the children (or either of them) and shall each bear the costs of their own individual counselling.
The parties shall ensure the counsellor or therapist engaged has a copy of each of the family reports of Dr N and a copy of these Orders and reasons for decision.
The parties shall each take all reasonable steps to implement any recommendations of the counsellor or therapist in a timely manner.
That, unless otherwise recommended by the counsellor or therapist, each party shall ensure the child living with them spends time with the other parent as follows:
(a)for a period of 3 months following these orders, on at least one occasion each week for a period of several hours (e.g. for dinner);
(b)thereafter for a period of 3 months, for one full day in each weekend;
(c)thereafter:
(i)every second weekend from the end of school on Friday to the commencement of school Monday, alternating between the homes of the parents so that the children spend each weekend together;
(ii)for half of all school holidays;
(d)for at least 3 hours on Christmas Day, Easter Sunday and on each of the children’s and parents’ birthdays; and
(e)such additional or alternative times as agreed.
The time [X] spends with the husband in accordance with these orders is subject to her wishes but the wife shall actively promote and encourage her to spend the time with him.
Unless otherwise agreed the husband is restrained from communicating or attempting to communicate with [Y] during any time she spends with the wife.
In the event [Y] leaves the wife’s care prior to the end of the relevant period without the wife’s agreement, the husband shall immediately return her to the wife and require her to remain with the wife for the duration of the period.
Each party is restrained from:
(a)denigrating the other to or in the presence of the children or allowing anyone else to do so; and
(b)using corporal punishment as a form of discipline for the children.
Pursuant to section 65DA(2) and section 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 the orders are set out in Attachment A and these particulars are included in these orders.
Otherwise, all extant applications are dismissed.
IT IS NOTED that publication of this judgment under the pseudonym Santoro & Santoro is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 8893 of 2010
| MS SANTORO |
Applicant
And
| MR SANTORO |
Respondent
REASONS FOR JUDGMENT
These are parenting proceedings in relation to the two children of the parties, 14 year old [X] and 12 year old [Y], also known as [Y].
The parents have very poor communication and the children have been exposed to serious conflict between them. Each child has become aligned with one parent against the other.
When the parties separated in February 2010 both children remained living with the wife in the former matrimonial home in [suburb omitted], Geelong. In July 2010 [Y] began living with the husband and his new partner in [suburb omitted]. [X] remains living with the wife. Relationships in the family have broken down to such an extent that [X] spends almost no time with her father and [Y] spends almost no time with her mother.
Both parents were entrenched in their own perspective of the dynamics in the family. Each put full responsibility for the breakdown in the relationship between [Y] and her mother and between [X] and her father on the shoulders of the other parent. Each saw themselves as suffering the fall out of the other parent’s poor behaviour.
The wife alleges that the husband has quietly carried out a deliberate campaign to undermine her relationship with [Y] which has resulted in an alienation of the child from her.
The husband alleges the relationship between [Y] and her mother is troubled because of the wife’s own behaviour and inadequate parenting skills.
[X] has taken it upon herself not to have any relationship with her father until [Y] re-establishes a relationship with her mother.
The proceedings initially also involved property issues but they were resolved by consent orders on 10 March 2011.
Background
The husband is aged 56. He is a [occupation omitted]. He has re-partnered with Ms K with whom he had an affair for some time prior to separation.
The wife is a 48 year old [occupation omitted]. She has not re-partnered.
The parties commenced co-habitation in 1994. They were married [in] 1996. [X] was born [in] 1997 and [Y] [in] 1999. The parties separated on 23 February 2010.
The wife attributes the separation to the husband’s illicit relationship with Ms K. The husband said he left after being physically assaulted by the wife. It is common ground that the wife confronted the husband that day about having an affair. The husband said the wife then attacked him and tried to hit him about the head with a metal ornament. He said she tore his T-shirt, scratched his neck and back and threw a cordless phone at him, hitting him hard in the middle of his back. As a result of the incident the husband said he suffered scratches and bruising. He said the incident started in the house but the wife pursued him outside. He said both children witnessed the incident and he can recall [Y] watching from an upstairs window, crying. The husband left the home that day and stayed a hotel nearby for 2 or 3 weeks. He then moved into the home of his partner, Ms K, about a 10 minutes walk from the former matrimonial home.
The parties agree that, not withstanding the circumstances of separation, their relationship was reasonably civil in the first couple of months after separation. The wife complained the husband sometimes entered the home without her permission as he retained a remote control to the garage from which entry to the house was made. The husband said he was often requested by the wife to attend at the home to fix things and her complaint came only after he attempted to take some of his personal belongings from the home. The wife alleged he took a range of items including tools, furniture and artwork. That issue was not addressed in the current proceedings and I am unable to make findings about it.
It is common ground that immediately following separation both girls regularly spent time with their father, usually on weekends but also and at various other times by agreement. The husband said [Y] generally spent every weekend with him whereas [X] tended to come every second weekend and spent the other weekend with her mother.
The wife said that, over time, the husband began making arrangements directly with [Y] for her to spend time with him and she didn’t always know where [Y] was. The husband denied that. He said that both girls often dropped into his home after school as it was within easy walking distance. He said he always let the wife know where they were.
The husband alleged that the wife became unhappy with how much time [Y] was spending with him and attempted to persuade her to spend more time at home. As a result, her relationship with [Y] became strained. The husband said that, in about April or May 2010, [Y] told him excitedly that her mother had discussed the possibility of her living in a week about arrangement with both parents. He said [Y] was very happy about the prospect but later said her mother had changed her mind and refused to discuss the matter further.
The husband said [Y] increasingly complained about the way she was being treated by her mother. She told him that her mother had warned her that, once the husband obtains a property settlement, he will lose interest in the children. He said she also warned [Y] that if she lives with her father she will no longer be able to attend [G] School and will be cut out of her mother’s will.
The husband said [Y] also complained of poor treatment by the wife, including the wife refusing to collect her from extra curricular activities and requiring her to walk home in the dark.
In mid July 2010, [Y] went to her father’s home and, according to him, simply refused return to her mother. The husband alleged that [Y] rang him that morning and he heard the wife in the background saying to [Y] “leave, leave, leave, leave. I don’t want you here anymore. Go and live with your father and let him pay for your school. Get out.” He said it was not the first time he had heard the wife speaking to [Y] in that way.
The wife totally denied the allegations. She said [Y]’s move to the husband’s home was the culmination of his deliberate campaign for that to occur and not the result of anything she did.
The husband said the wife reacted to [Y]’s move by refusing to let her take some of her personal items from the former matrimonial home. One such item was [Y]’s iPod which was used by [X] and subsequently damaged by her. According to the husband, [Y] raised the matter with her mother who simply said that, given she no longer lived there, all her possessions were now [X]’s. During the proceedings the wife agreed [X] had been using [Y]’s iPod but said the dispute about it was a matter between the girls and she chose not to get involved. Clearly the issue was important to [Y] and the lack of support from her mother would not have improved their relationship.
Since moving to her father’s home, [Y] has spent very little time with her mother. [X]’s relationship with her father also rapidly deteriorated rapidly from that time. She made it clear to her father, particularly in an e-mail on 13 August 2010, that she intended not to see him until [Y] was spending time with her mother.
Intervention order proceedings May to July 2010
Prior to [Y] changing residence, there were a number of incidents which had increased the tension between the parties. On 18 May 2010 the wife made an application for an intervention order. In her application she stated the reasons justifying the order were as follows:
Threatening behaviour. Threaten to visit family to‘tell them what I am really like’. Enters my home when I’m not there. Threats by SMS 12.05.2010 ‘If you don’t ring me back and stay on the ph till I am finished then I will be speaking to your father tonight to see if he can make u see reason’. On 14.05.10 visited father to talk about me. Previously left car at train station – this was moved upon my return. On 15.05.10 I was sitting in my car, he came over, I locked the door, he opened the door with spare key (which he still has) stood in front of me blocking my view. In the past constant fighting, controlling behaviour, pulling on my arms.
The husband alleged the wife deliberately twisted the facts in relation to the two incidents involving her car to falsely claim that he was stalking and harassing her. He said that on a date in early May 2010, the wife rang him and asked him to take [X] to sport that day as she was attending the opera in Melbourne. The husband said he would do so but needed to borrow a vehicle as the wife retained the family car. While the wife was still on the phone he asked Ms K if he could borrow her car but she said she needed it that day. When the husband told the wife, she said the family car was parked at the Geelong railway station and suggested he use it, given he still had the spare key. The husband said Ms K dropped him at the train station; he collected the car, took [X] to sport and returned the car later that day to the same car park.
Ms K gave evidence in the proceedings. She said she was present and heard the husband’s side of the conversation with the wife that morning. She said she heard the husband tell the wife he was not able to borrow Ms K’s car. He was then silent for a short time listening to the wife and then said “OK”. Ms K said that when she drove the husband to the train station he was able to tell her precisely where the car was parked. She dropped him off at the car and picked him up later in the day when he returned the car to the car park.
The evidence of the husband and Ms K was compelling. I accept that there was a clear arrangement for the husband to use the family vehicle that day. The wife’s presentation of the evidence for the purpose of obtaining an intervention order and in these proceedings was manipulative and misleading.
The other incident involving the car relied upon by the wife occurred on 15 May 2010. The wife said she was sitting in her car watching [X]’s soccer game when the husband turned up and came directly to her car. She said she locked the car door but the husband unlocked it with the key he still had. She said she felt threatened and went to stand with the other parents. She said the husband stood obstructing her view of the game and, towards the end of the game, “insisted on talking to [X]’s soccer coach” and asked for [X] to be excused for the rest of the match. He then drove off with [X]. Those facts on their own paint a picture of harassing and intimidating behaviour by the husband.
The husband said he had an arrangement to take [X] to Melbourne to see the Tutankhamen exhibition that day. The arrangement was that he would collect her from the soccer ground and they would leave from there. [X] was to take a bag of clothes to soccer so she could get changed after the game and because she was going to be staying overnight with the husband. The husband said he arrived at the soccer match 10 or 15 minutes prior to the end of the game. Ms K, Ms K’s daughter and [Y] were waiting in the car. [X] was on the sideline and her coach told him she had been subbed off for the rest of the game and could leave early. He asked the wife for [X]’s bag so she could get changed. He said the wife refused to speak to him. She sat in her car and locked the doors. He said he asked her again for [X]’s bag. He said the wife continued her silence but gesticulated by pointing her thumb over her shoulder, towards the back seat. He saw [X]’s bag on the back seat. He said he assumed from the wife’s actions that she was indicating he could get the bag himself. He had the spare key and remote control to the car so opened the back door of the car and took [X]’s bag. He then left with [X].
Again, the husband’s description of the incident was persuasive. It was also consistent with the wife’s oral evidence during which she conceded that sometimes she simply refused to speak to the husband for no particular reason other than she doesn’t want to. I am not persuaded that the wife was at all intimidated by the husband’s actions that day.
The wife’s application for an intervention order came before the Victorian Magistrates Court on 25 May 2010. The husband was unrepresented. He opposed the making of the order. The wife withdrew her application upon the husband giving an undertaking not to commit family violence and not to go to the former matrimonial home except for the purpose of facilitating the children’s arrangements or to collect personal property by prior agreement.
Two further incidents occurred in June 2010. On 6 June 2010 the husband and wife had a telephone conversation in which they agreed the husband could have the dog kennel and portable dog box which were at the former matrimonial home. The husband said that he and the girls were going to pick up some baby chickens that day and wanted to use the portable dog box to transport them. The wife said she would leave the items out the front of the house for the husband to collect. The wife was out at the time of the conversation. By the time she got home, the husband had already been to the home and had collected them. The wife knew that that meant he had been into the house, breaching the undertaking he had given less than two weeks earlier. The husband agreed the wife said she was going out that day. He assumed she had forgotten to put the kennel and dog box out the front. He said the girls were waiting in the car and he simply walked through the house to the backyard, picked up the kennel and box and left the house. He did not consider it to be a breach of the undertaking as there had been an agreement for him to attend the house to collect them. There was, however, no agreement for him to enter the house and he should not have done so.
When the wife realised the kennel and dog box was gone, she felt angry and immediately went around to the home of the husband and Ms K. Ms K answered the door. The wife asked where the husband was and was told he was in the backyard. Ms K said the wife then pushed past her, marched out to the backyard and screamed abuse at the husband. The wife says that she was ushered through the house by Ms K and that she only spoke to the husband and did not abuse him. I found the evidence of the husband and Ms K more persuasive than that of the wife in relation to that incident.
On 12 June 2010 another incident occurred. The husband and wife had a conversation in which the husband requested permission to attend the former matrimonial home to remove a hard drive from a computer he had been working on previously. The wife was content for him to attend to do that. She told the husband she was going away that weekend, meaning he would have to make an arrangement to come at another time when she was there. The husband said when the wife said she would be away that weekend he thought she was simply explaining that she would not be there. In any event, the husband attended at the property. The wife was out but not away at the time. The husband said he was anxious about attending on his own as he feared the wife might try to accuse him of something he hadn’t done. He said he wanted to take a witness with him to the home but had no one he could call on to attend with him. He asked Ms K to come with him. He said she was reluctant but eventually agreed.
When the wife came home that day she found the found the husband in the upstairs living room extracting the hard drive from the computer. She told the family report writer, Dr N, that when she came home
Ms K was in her bedroom, going through her things. In her oral evidence the wife said she did not actually see Ms K in her room. She said Ms K had just come out of her bedroom but she had heard her in the bedroom before she went upstairs. Ms K and the husband both vehemently denied that. Ms K said for the whole time she was in the house she sat on a chair in the living room watching the husband pull apart the computer. She said that was where she was when the wife arrived home. Understandably, the wife was appalled that Ms K was in her house at all. I accept the wife’s evidence that she never intended the husband to attend the house in her absence. I also accept that the husband genuinely believed that the wife had agreed for him to attend in her absence. Given the incident which occurred less than a week earlier, however, it was foolish for him to do so. Taking Ms K with him was highly provocative and showed very poor judgement on the part of both the husband and Ms K.
It is common ground that the wife went back down stairs and called the Police. The husband said he had almost finished removing the hard drive when the wife came home. He finished extracting it and then he and Ms K left the house. Ms K said her three month old puppy was in her car. [Y] ran outside to see the dog and let it out of the car. The husband and Ms K both said that the wife picked up the dog from the drive way and threatened to throw it over the fence. They said she then threw the dog to the husband, a distance of about one metre. The wife said she calmly passed the dog to the husband to ensure it left with him. Again, I found the evidence of the husband and Ms K more persuasive.
The husband and Ms K both said the wife loudly abused them. They waited in the car out the front of the house for the Police to arrive but, when they had not come after some time, they left.
The following day, 13 June 2010, an incident occurred between the wife and [Y] to which I will return shortly.
On 16 June 2010 the wife made a further application for an intervention order relying on the previous complaint she had made on 18 May 2010.
On 19 July 2010 the husband and Ms K also applied for intervention orders against the wife. The husband alleged as part of his application a threat by the wife to stab him on 29 November 2009, her assault of him at separation on 23 February 2010, the uninvited attendance of the wife at his home on 6 June 2010 and the threat to throw the dog over the fence on 12 June 2010. He also alleged that he had been receiving ongoing harassing and threatening phone calls and text messages and that the wife was subjecting the children to physical and emotional abuse.
The respective applications for intervention orders were returnable on 27 July 2010. On that day the husband and wife agreed to mutual orders, without admissions. Ms K did not attend Court and her application was struck out.
Incident on 13 June 2010
The husband said he received a phone call from [Y] on 13 June 2010 during which [Y] was crying hysterically. He said she asked him for help. [Y] was still living with her mother at that time. The husband said he didn’t feel able to attend the former matrimonial home as the incident in which he had removed the computer hard drive had occurred the day before and had ended badly. He said he called the police who said they would do a welfare check on [Y].
The wife’s evidence is that, on that day, she and [Y] had eaten breakfast and were playing board games. She said [Y] received a phone call from her father and announced she was going to see him. The wife said she told [Y] that, in light of the events of the previous day, she did not think it was a good idea. She said [Y] began screaming at her. She asked [Y] to sit down and talk about it but [Y] refused. The wife then “sat her in a chair” and insisted they talk. [Y] began to poke and push her mother. The wife described what occurred next:
I then sat over her body to control her behaviour and told her she was not going anywhere until we talked together. I told [Y] she was seeing her father every weekend and I would really like to spend some time with her this weekend. [1]
[1] Wife’s affidavit, 28 February 2011, paragraph 45.13.3
A police officer subsequently telephoned the wife and told her the husband had rung them. The officer spoke to [Y] privately and advised the wife that, given what [Y] had said, she (the officer) was required to make a notification to the Department of Human Services. Later in the day two police officers attended the home. One spoke to [Y] and the other to the wife. The officer who spoke to [Y] said the child confirmed what the wife had said about the incident.
The wife said she was advised by the police officers that she was within her rights to “contain” [Y] and to remove her mobile phone, which she did.
The wife said that [Y] vomited from stress when the police left and said she did not realise her father would call the police. She said [Y] was very clingy for the rest of the evening.
The parenting plan 27 July 2010
As part of the settlement of the intervention order proceedings on
27 July 2010 the parties entered into a parenting plan, a hand written copy of which is annexed to the husband’s affidavit filed 29 October 2010. The parenting plan provided for the parents to have equal shared parental responsibility for the children, for [X] to live with the wife and for [Y] to live with the husband. The plan provided for the children to spend every second weekend with each parent alternating in such a way that the children would spend each weekend together in the home of either the husband of the wife.
The first weekend following the orders was the weekend commencing Friday 30 July 2010. [X] was due to spend with the husband that weekend but did not do so. No real explanation was given by either party as to why it didn’t occur. In an e-mail exchange between the parties on 12 and 13 August 2010 the husband complained that he tried to organise it but got no response from the wife. The wife did not respond to that part of the e-mail.
[Y] was to spend time with the wife for the first time on the weekend commencing on Friday 6 August 2010. That did not occur. The husband said that he had long planned to attend a conference in Sydney that weekend and [Y] made it clear to him that she would refuse to spend time with her mother. He said he felt compelled to take [Y] to Sydney with him and he booked late flights for her to do so. I was not persuaded by this evidence. He did not say what he had previously planned to do with [Y] that weekend, given the travel had been booked for some time. He had also sent an email to the wife on 4 August 2010 which read as follows:
I am happy to communicate by phone - you should have called me. [Y] won’t be coming this weekend as I made arrangements to go away this weekend some time ago that I can’t change. In my opinion we should alternate weekends with both children in one household which will leave every second weekend free - what do yo (sic) think
The e-mail says nothing about [Y] refusing to see her mother. It is also somewhat odd because it appears to propose the same arrangement that had been entered into by the parties a week earlier on 27 July 2010 yet made no reference to it. The fact that the husband was going to be away that weekend was the perfect opportunity to ensure [Y] spent time with her mother. The failure of the husband to facilitate it reflects poorly on his judgement at that time and his capacity to promote [Y]’s relationship with her mother.
In his e-mail to the wife on 13 August 2010 the husband told her that his efforts to get [Y] to communicate with her received a setback when [Y] rang her on Sunday night 8 August 2010 and the wife told her she had informed the Child support agency and the courts about [Y]’s change of residence. He asked the wife to desist from talking about any legal matters. In the same series of e-mails on 13 August, the husband tried to make arrangements for [X] to spend time with him the following weekend. He suggested to [X] that she could perhaps begin spending time with him on Sundays. He suggested that if [Y] saw her behaving in a grown-up manner it might encourage her to spend time with her mother. That e-mail was met with a barrage of abuse from [X] by return e-mail.
[Y] spent no time with her mother between the making of the parenting plan on 27 July 2010 and the interim orders of 8 November 2010. The wife said she saw [Y] at the bus stop on 26 August 2010 and offered to drive her home. She said [Y] was very aggressive towards her and walked away.
[X] spent a short time with her father on Saturday 21 August 2010 and either 23 or 24 August 2010. The wife said [X] returned home upset on both occasions and told her the husband had made her feel uncomfortable by talking about family law matters. The husband denied that. He said [X] was the one wanting to talk about family law matters and he refused to discuss them with her.
The parties attended mediation in August 2010 but were unable to resolve the parenting issues.
The wife filed the current proceedings on 22 September 2010.
Interim orders of 8 November 2011
On 8 November 2010 the current proceedings came before the Court in Geelong for the first time. On that day the parties agreed to interim parenting orders which provided for [Y] to live with the husband and spend time with the wife every second weekend from 5.30pm on Friday until 8.30 on Monday, commencing 19 November 2010. It also provided for the wife and [Y] to engage in therapeutic counselling at Centacare or another provider nominated by the wife, commencing as soon as possible following the orders. The husband was to deliver [Y] to the wife’s residence half an hour prior to the appointments and the wife was to return her the husband at the end of the session.
The orders also provided for [X] to live with the wife and spend time with the husband every second weekend commencing 26 November 2010. The orders provided for both children to spend time with the wife from 5.30pm Christmas Eve until 10am Christmas Day and with the husband from 10am Christmas Day.
Provision was made for the parties and the children to attend upon
Dr N for the preparation of a family report.
The weekend of 19 November 2010
The first weekend [Y] was due to spend time with her mother was the weekend beginning Friday 19 November 2010. On that day the husband delivered [Y] to her mother at 5.30pm. He then went to Melbourne for the weekend with Ms K. The wife said she and the girls had a lovely evening on the Friday during which they went to McDonalds for dinner and then went shopping. She said [Y] requested to sleep in her mother’s bed that night.
On Saturday morning, the children had a relaxed morning with their mother and arranged to go horse riding in the afternoon. The wife said everything changed when the husband telephoned [Y] shortly after 11am. She said [Y] told her she had a “play date” with a friend and packed her bags and attempted to leave the house. The wife stood in front of the gate and asked [Y] not to leave. [Y] began calling her mother a monster and began to hit and kick her. The wife said that, while this was happening, the husband kept telephoning [Y]. [Y] then ran screaming into the garage, picked up a spear-like object and began poking her mother. The wife took the spear from her. [Y] then attacked her mother, hitting, kicking and punching her. The wife picked [Y] up and carried her inside. As [Y] was continuing to attack her, she sat astride [Y]’s hips and held her arms down. She said [Y] continued to try to attack her every time she loosened her grip. Eventually [Y] calmed down sufficiently for her mother let go of her. The wife said [Y] then apologised for her behaviour.
During the incident [X] had become distressed and gone to the home of another family member. The wife said [Y] asked to have a bath with her, and they spent a long time talking. In the afternoon the wife and [Y] went shopping, had dinner and went to a movie. [Y] again slept in her mother’s bed that night.
On the Sunday morning the wife and both girls went swimming and later she and [Y] went roller-blading. [Y] was returned to the husband at 8pm that night. The wife said the weekend was very successful other than [Y]’s behaviour following contact from her father.
The husband said in relation to the incident that he received a distressed phone call from [Y] on Saturday morning saying that her mother was hurting her. He said it was difficult to hear [Y] because the connection was poor and there were a few calls back and forth as he was trying to establish what was going on. He said he attempted to ring the wife but she did not answer his calls. He said he did not initiate any calls to [Y] and did not hear from her again until she was returned on the Sunday evening. He denied arranging any play date for [Y] or attempting to interfere with the weekend in any way. He said it would have been inconvenient for him for the weekend to be disrupted as it would require him to return to Geelong. In the end he stayed away until Sunday afternoon as planned.
After that weekend [Y] spent virtually no time with her mother until after the release of the first family report in February 2011.
The November orders provided for the children to spend time with the wife from 5:30 p.m. on Christmas Eve until 10 a.m. Christmas day and with the husband from 10 a.m. on Christmas Day. The wife alleged the husband unilaterally changed the arrangements and only made [Y] available from 3:30 p.m. until 8 p.m. on Christmas Day rather than delivering her on Christmas Eve. The husband said [Y] refused to attend her mother's home on Christmas Eve. He said [X] and her mother came to his home for a short time on Christmas morning so the children could exchange gifts. He said the wife invited [Y] to come to the home of the maternal grandfather later that day where the family was having a Christmas celebration. The husband said that, with his encouragement, [Y] did attend the home of the maternal grandfather between 3pm and 8pm. He said the wife sent him a text message thanking him for that.
[Y] spent time with her mother and [X] on [dates omitted] 2011 which was [X]’s birthday weekend. The husband said he invited [X] to participate in a birthday celebration for [Y]’s birthday on [date omitted] 2011 but [X] declined.
Family report 22 February 2011
Dr N prepared two family reports in the proceedings. The first was dated 22 February 2011. In preparation for that report, Dr N interviewed both parties and the children and observed the children with each parent. She outlined the history given by each party, especially as it related to the breakdown of the relationship between [Y] and her mother.
In her report Dr N described the wife as friendly, warm and fair-minded. She said the husband exuded cold hostility, was impatient with the assessment and found it difficult to conceal his animosity towards the wife’s family.
Dr N was particularly impressed with [X], describing her as “a clear thinking, extremely well-mannered, thoughtful and mature girl” who had “a quick sense of humour and excellent social skills”.[2] She said [X] was very sad about the breakdown of the relationship between [Y] and her mother and clearly held her father more responsible than her mother for the situation. [X] told Dr N that she did not want any court orders involving her as she preferred to make your own arrangements to see her father. She said she had contemplated not seeing her father because it seemed unfair when [Y] wasn’t seeing her mother.
[2] Report of Dr N, 22 February 2011, page 9
Dr N said the overriding impression she had of [Y] was that she was feeling profound sadness. She said [Y] said she wished she could see her mother more and that [X] could see her father more but she did not trust her mother. Dr N formed the view that [Y] was enmeshed in the parental dispute from the father’s perspective and was overly influenced by her father in not seeing her mother.
Dr N reported on her observations of each parent with the children. She said [Y] was anxious immediately prior to meeting with her mother and for the first few minutes of the session with her. [Y] cried when she saw her mother but her mother hugged her and was gentle with her and [Y] quickly relaxed and began to interact happily with both her mother and her sister. [Y] and [X] played games, laughed and shared jokes with their mother. The following are some excerpts from page 12 of the report:
[Y] seemed to delight in the time to see her mother. After the first minute where [Y] seemed overcome with emotion and despair, the remainder of the observation was filled with [Y]’s warmth and enjoyment of seeing her. She took every opportunity to sit near or touch her mother. There was certainly no information to suggest that [Y] was frightened of her mother or does not wish to see her
[Y] found the parting from her mother difficult. She hugged her mother for long minutes. Ms Santoro said lightly, “are you going to come and see me - that would be great”. [Y] said “yes” in easy tones and she left smiling.
The observation of the girls with their father followed immediately upon the observation session with the mother. Dr N described [Y] as being comfortable and relaxed throughout the session with her father, including at one time sitting on his lap and putting dress-up clothes on him. She said the atmosphere was less animated than it had been with the mother, and that both girls seemed a bit drained. She said that was not really surprising, given the high emotion of the session with the wife.
In relation to the husband’s interaction with [X], Dr N said the following:
There was no overt coldness in [X]’s behaviour with her father, but Mr Santoro seemed to make little effort, and when [X] sat outside their circle of play and fiddled with her telephone,
Mr Santoro left her to it. [3]
[3] Report of Dr N 22 February 2011, page 13
The husband took issue with this. He said that [X] went and sat with her back against a desk and played with her mobile phone but periodically watched a game he was playing with [Y]. He said he kept making eye-contact with [X], and when [Y] did surprisingly well at the game, he challenged [X] to play, which she did. Dr N said that, although she did not recall that, it was possible it had occurred.
Dr N said [Y]’s presentation was not that of an abused child or one who feels a lack of trust in her mother but, rather, was consistent with a child who had chosen sides in a difficult parental dispute. She said [Y] did not express fear of her mother or say that she did not want to see her. She assessed the risk of [Y] being physically harmed in the care of her other as low. She said the wife was very hurt by the breakdown of her relationship with [Y], and was desperate to repair it.
Dr N assessed the father as passive-aggressive in his personality style, and “determined to use [Y] to punish her mother”.[4] She suspected that he would undermine any attempts to repair the relationship.
[4] Ibid, page 14
Dr N recommended that [Y] begin spending time with her mother for a few hours each week, increasing over several months. She said the following about her prognosis:
It may be important for the Court to discover if this assessment has caused any change in circumstances in the family. After the observations of [Y] with her mother it was very clear that she wanted to see and spend time with her mother. If Mr Santoro has supported this, although it seems doubtful on his account to me, then this would seem to signify a degree of insight and judgement in him that was not so evident at my assessment. New information about this might change my opinion or recommendations to the Court. [5]
[5] Report of Dr N 22 February 2011, page 15
Weekend of 25 February 2011
The husband said that he was reassured by Dr N’s report that [Y] was not at risk of serious harm in the care of her mother and immediately arranged for her to spend the following weekend, commencing
25 February 2011, with her. He rang the wife to make arrangements and delivered [Y] to her on the Friday evening.
When he delivered [Y], the husband told the wife that [Y] had joined a dance school two weeks earlier and was planning to participate in a parade at the [omitted] Festival on Saturday. The wife picked up [Y]’s dance uniform that evening. The wife and [Y] then went out to dinner while [X] was at her year 9 social.
The mother said she and [Y] were having a nice conversation over dinner until [Y] began exchanging text messages with her father.
She said [Y] withdrew from the conversation and became increasingly cold towards her. The wife eventually sent her own text message to the husband to ask him to desist. When they got home, [Y] when to her room and would not engage with her mother.
The husband said he received a text message from [Y] at 8.05pm saying she wanted to come home and that she and her mother had nothing in common any more. He did not reply. He received a second text from [Y] at 8:30 p.m. which said “Please talk to me”. He responded “Hang in there [Y] and make an effort. I love you.” [Y] sent another text but he told her he was going to bed and would talk to her tomorrow.
The husband said he received two text messages from [Y] early the next morning to which he did not reply and had two missed calls from her. He said the wife called him at 7.48am to say [Y] had left the house. He told the wife he would return her if she showed up at his home. [Y] did arrive at his home shortly after 8am. He said she was in a distressed state. He returned her to the wife almost immediately. The parents had a heated exchange at the door. The wife said the husband told her she should stop abusing [Y] and that, as the conversation deteriorated, she raised the issue of payment of [Y]’s school fees with the husband. The comments of both parents were inappropriate and unhelpful.
[X] eventually persuaded [Y] to come into the house. [Y] went to her room.
At 10am [X] told her mother that it was time to drive [Y] to the festival. She did not do so. During her oral evidence the wife could not explain why. She said she spoke to [Y] whose body language was very negative. She said she had to drive [X] somewhere else, but on her own evidence [X] was keen for her to facilitate [Y]’s attendance at the festival. The fact that she did not do so was not helpful to her relationship with [Y].
The husband said [Y] rang him and said her mother was refusing to let her attend the festival. He told her that was her mother’s decision but he would try to speak to her about it. He said he tried to ring the wife, who would not take his call. He then sent her a text message saying:
It’s your decision to not let [Y] participate in dancing which she has really been looking forward to, but it will hardly help repair your relationship.
[Y] then rang her father to say she was going to walk to the festival. He said he told her not to. Again he tried unsuccessfully to speak to the wife and then sent the wife a text message letting her know what [Y] had told him.
[Y] did leave the house and went to the [omitted] Festival by herself. After the parade she asked her father to collect her but he refused. He told her she needed to call her mother and go back to her house. [Y] eventually returned to her mother at about 5.30pm that day. The wife said she was angry at [Y] for running away and sent her to her room. [Y] came down for dinner later but was cold towards her mother. The husband said [Y] rang him and told him she was back at her mother’s home. He said she told him her mother had shaken her when she got home and pinched her on the back.
The next day, [X] and [Y] went shopping together. They had an argument and [Y] told [X] she was walking back to her father’s house. [X] called her mother and the two of them drove around looking for [Y]. They found her but the wife was unable to persuade her to return to her home. At one stage she managed to get [Y] in the car but [Y] then slid across the seat, got out on the other side of the car and ran away. The wife drove to the husband’s street and waited for [Y] to arrive. Once she saw [Y] approaching, she drove away.
The husband returned [Y] to her mother that afternoon. The wife said she asked him why he had not provided the items [Y] needed for school the next day. The husband said in his evidence that when he dropped [Y] off on the Friday evening the wife had told him that she would return [Y] to him at 6pm on Sunday. He said he asked her repeatedly to confirm that because the orders provided for [Y] to be with her until Monday morning but the wife refused to do so. On Sunday afternoon he went home, collected [Y]’s school things and delivered them to the wife’s home.
The following morning, 28 February 2011, the wife turned up at the husband’s house with [Y] at 7.45am, even though she had insisted on taking [Y] to school that day. [Y] was distressed and still in her pyjamas. [Y] got out of the car and the wife deposited her school bag and laptop on the front lawn. She said she did this because [Y] had left some item of homework or uniform at her father’s home and refused to go to school without it. She did not explain however why the child was in her pyjamas and why she did not wait for [Y] to collect the item before delivering her to school. She said [Y] went into the house but the husband and Ms K both said she did not. They were out the front, having left the house and were about to drive to Melbourne. The husband picked up [Y]’s laptop and put it back in the wife’s car. He said the wife simply drove off. He then returned [Y] to the wife’s home. [X] was still at home. [Y] did not attend school that day.
The husband said he believes the incident occurred because the mother had forgotten that she had an early appointment with her solicitor that morning which meant she could not take [Y] to school. That would also explain why the wife originally planned to return [Y] on Sunday evening. During the hearing the wife confirmed that she did have that appointment.
[Y]’s laptop computer remained in the wife’s car that day. The husband said he repeatedly asked the wife to make it available but got no response. He took [Y] around to her mother’s home that evening and stood near the car while [Y] spoke to her mother. It is common ground that the wife spoke to [Y] through the closed screen door. The husband alleged the wife told [Y] she could only have her laptop back if she stayed there for dinner. [Y] refused and returned to her father without the laptop. The wife denied that. The husband later rang the police in an effort to get the laptop back.
The wife said that she had no idea the laptop was in the back of the car. She said it was only when the police told her the husband said that was where it was that she went and found it. She then delivered it to the police station for the husband to collect.
Orders of 10 March 2011
On 10 March 2011 final property orders were made by consent. The parties also agreed to a further set of interim parenting orders which provided for the parties to have equal shared parental responsibility and for [Y] to live with each parent on a week about basis from the conclusion of school on Friday each week. They agreed [X] would live with her mother and spend time with her father every second weekend from after school on Friday to the commencement of school on Monday.
It was also agreed that the parties and the children should attend upon [M] for therapeutic family counselling. An updated report by Dr N was ordered and the proceedings adjourned for final hearing in the Geelong Circuit commencing 25 July 2011.
The week of 18 to 25 March 2011
In accordance with the Orders, [Y] was to spent time with her mother for a week commencing Friday 18 March 2011. In her affidavit filed on 14 July 2011 the wife described that week. She said the time passed largely without incident except that on the first night, Friday 18 March 2011, [Y] cut up the curtains in her bedroom and destroyed her framed kindergarten artwork.
On the afternoon of Tuesday 22 March 2011 the wife collected [Y] after homework club at school. She said [Y] was aggressive towards her and had to be spoken to by a teacher. The husband said [Y] told him the wife tried to take a school bag from her to search it, looking for things [Y] might have taken from her home. She and her mother struggled over the bag.
The wife said that on the Thursday night [Y] requested permission to telephone her father to make an arrangement for the upcoming weekend. The wife says [Y]’s personality changed as soon as she spoke to her father. She was very negative towards her mother again. The husband denied speaking to [Y] that day. He said he had no contact with her at all that week until he collected her after school on Friday 25 March 2011.
It is common ground that [Y] spent no more time with her mother after that week except during the assessments for the second family report.
[Y] was next due to spend a week with the wife commencing on Friday 1 April 2011. On that day the wife went to collect her from school after her fencing class but she was not there. She had run away to her father’s home. The husband was in Melbourne that night. He was eventually able to make contact with [Y] who, after some time, told him that she was hiding at his home. The husband told the police who went to his home and spoke to [Y]. [Y] refused to return to her mother’s home and the police negotiated an arrangement for her to spend the night with a friend. The husband said he expected the wife to pick [Y] up the next morning but the wife did not respond to any of his calls. He eventually collected [Y] at 1 p.m. the following day.
The wife said [X] spent time with her father on Saturday 26 March 2011 when she stayed overnight, returning to her mother on Sunday evening. The husband said this is simply untrue and that [X] did not spend time with him on that day.
Counselling
On 8 November 2010 the parties agreed to therapeutic counselling between the wife and [Y] at Centacare. The wife arranged for
5 sessions of counselling between 3 December 2010 and 17 January 2011. The husband advised the wife he was unable to facilitate [Y] attending on two of those dates, 3 December and 5 January. Although the wife was critical of him for that, the emails he sent to the wife about them which became exhibit H6 in the proceedings were perfectly polite, explained the issues and asked the wife to consult with him in relation to the dates before making them. There is nothing unreasonable about his approach at that time.
As it turned out, Centacare changed its policy and advised the parties it was no longer prepared to engage in therapeutic counselling for parties engaged in litigation.
The wife then made arrangements for therapeutic counselling with a psychologist, Dr S. The husband’s solicitors confirmed that the husband would make [Y] available on those dates. Notwithstanding this, he did not make her available on 5 January 2011. He had previously advised the wife that he planned to be on holiday with [Y] at that time but said they arrived home one day early. The husband said that, on 5 January 2011, [Y] had a friend visiting. The two girls went to the park and then walked to the wife’s home for [Y] to collect her Xbox. From the wife’s perspective she was expecting [Y] to be made available for the counselling session and was surprised to see [Y] arrive with a friend. When the wife told [Y] about the counselling appointment, [Y] became upset, not having been told anything about it. The husband’s explanation, that he had previously advised the wife he would not be available on 5 January did not make sense in light of his solicitor’s letter to the wife’s solicitors on 23 December 2010 confirming [Y]’s availability.
The next counselling session was due on 12 January 2011. The consent orders required the husband to deliver [Y] to her mother prior to each counselling session. The husband said [Y] was refusing to attend but he managed to negotiate an agreement with her that she would attend if he dropped her at the session and collected her at the end. He took her to the appointment on 12 January 2011. He said he had e-mailed the wife three times prior to the appointment to confirm he would take [Y] directly to the session but received no response. He said the wife did not attend that appointment. Dr S saw [Y] alone that day. The wife said she cancelled all further appointments as she believed the husband would never make [Y] available.
The next set of consent orders made on 11 March 2011 required the parties and the children to engage in therapeutic family counselling with [M] in Geelong. The wife had her first appointment with Dr C on 12 April 2011. The husband had a session on 13 April 2011 and both children on 18 April 2011. On 28 April 2011 Dr C wrote to the parties’ solicitors to recommend that the most appropriate approach in order to enhance the willingness of the children to spend time with their non-residential parent was an individual treatment approach with a greater emphasis on the parents than the children. She recommended the parties obtain a referral from their general practitioners in order to obtain a rebate on the fees. She indicated that, in her view, there were adjustment difficulties for the family associated with the separation which would meet with the requirements for the rebate scheme. The last sentence of the letter invites the parties to provide written confirmation in order that arrangements could be made for the individual appointments to occur.
The wife promptly obtained a referral from her general practitioner and delivered it to [M] along with a confirmation that she wished to continue the sessions. The husband said that he understood the recommendation for a referral from a general practitioner to relate only to the issue of fees and he was content to simply pay the cost. He said however that he did ultimately obtain a referral from his GP but, when a call was made for that during the proceedings, he said he was unable to find it. It is not clear on the evidence precisely why the individual therapy with Dr C did not go ahead. The husband said that he advised [M] that he was willing for the sessions to proceed but was not contacted again by them.
In her second family report Dr N said that she was doubtful that individual therapy alone could assist the family and recommended family therapy. During her oral evidence Dr N agreed that members of the family may need some individual therapy but she saw much of the problem as involving a dynamic between each child and the parent with whom they do not live. Dr N suggested that Ms B, a psychologist who practices in Melbourne but travels regularly to Geelong was an ideal person to provide both individual and family therapy. Both parties agreed to pursue that option and sought orders to facilitate that.
School Fees
From the time of his first affidavit the husband has consistently said that the wife has threatened [Y] that, if she lived with her father, the wife and/or the wife’s father would not pay her school fees.
The final property orders made by consent on 10 March 2011 contained two specific notations indicating that the wife would be responsible for the school fees for both children. The notations were as follows:
D. The wife agrees to forthwith do all acts and things necessary to arrange for all future invoices from [G] School to be in her sole name.
E. It is the intention of the wife that her father shall pay for any outstanding fees to [G] School.
On 21 March 2011 the husband received a letter from the principal of the [school] stating the fees were in arrears of close to $10,000. The husband tried to contact the wife to discuss the issue but she did not respond. He then caused his solicitors to write to the wife's solicitors about the issue on 4 April and 12 April 2011 but they too received no response.
It became apparent to the husband that, although the fees were in arrears, only [Y] was at risk of expulsion from the [school]. He enquired of the [school] why when two children from the one family attended the school, the fees paid were applied to one child and not the other. The school agreed the fees should have been applied equally to both children but it was then made clear that the enrolment of both children would be cancelled unless the fees were paid by 19 April 2011.
In April 2011 the enrolment of both children was discontinued by the school. The wife then made arrangements for [X] to be re-enrolled at the school but not [Y]. [Y] was distraught and tried to contact her mother but was unsuccessful. She then rang her maternal grandfather who had previously paid some or all of the fees. [Y] told the husband that that her grandfather said that, now she had left the family, she was no longer entitled to the privileges of the family. The husband said [Y] was devastated. Given the mother’s desire to re-establish a relationship with her daughter, her decision to cause [Y] to have to leave her school is completely bewildering.
The husband tried to engage the wife in a discussion about what school [Y] should be enrolled in but the wife simply failed to respond. The husband ultimately arranged for [Y] to be enrolled in [K] School. Despite [Y]’s initial distress at having to change schools, the evidence is that she has settled well, has made good friendships and is achieving high grades.
The payment of school fees had clearly been a sore point between the parties both during the marriage and after separation. The husband said he is unable to afford to pay the fees at [G] School which are substantial. He said that he accepted a smaller property settlement on the basis that the wife would be responsible for the payment of the fees for both girls as noted in the orders. Notwithstanding the wife’s agreement to those orders, during the hearing in relation to parenting issues, she was incapable of explaining why she didn’t pay them. When pressed, the wife responded by asking why the husband should not pay [Y]’s fees.
In the second family report, Dr N reported the following about the wife’s attitude to payment of school fees:
When asked about [Y]’s change of school, Ms Santoro alleged that her father had generously agreed to pay the children’s school fees when they first separated, but that since the property issues had been settled, she felt that Mr Santoro should start paying at least half the fees.[6]
[6] Report of Dr N, 4 July 2011, page 3
Dr N accepted that as a reasonable position for the wife to take but it is clear that the wife reneged on the agreement reached at the time of the final property orders and that she did so apparently without regard to the impact on [Y].
[X]’s relationship with her father
The deterioration in [Y]’s relationship with her mother was matched by a deterioration in the relationship between [X] and her father. [X] has spent very little time with her father since separation and almost none since [Y] went to live with him in mid July 2010.
The husband said he occasionally manages to communicate with [X] on MSN but generally she blocks his emails and does not answer his calls. On 13 August 2010 [X] was very hostile and abusive of her father in an email exchange. She told him she would not spend time with him until [Y] is spending time with her mother.
The husband alleged that [X] is well versed in the details of the litigation and has raised financial matters with him which could only have come from her mother. He said he has also overheard [X] telling [Y] about the litigation He said in recent times [X] has consistently refused invitations to spend time with him and has maintained a high level of anger towards him.
On Monday 12 April 2011, [X] fell off a horse and badly broke her arm. She spent at least one night in hospital and surgery was contemplated. During her evidence, the wife became distressed and cried when recalling the incident. The wife did not advise the husband about the accident. [X] sent a text message to [Y] on Monday 13 April 2011 but provided no details. The husband repeatedly tried to contact the wife and [X] to find out what happened and how [X] was but neither responded. During cross-examination the wife could give no explanation for her failure to advise the husband. She was callously indifferent to the husband’s feelings at the time. She conceded during cross examination that, had something similar happened to [Y], she would be devastated not to have been informed. She agreed it would have been equally terrible for the husband to not be given information or an opportunity to see [X]. That was the only moment of empathy towards the husband displayed by the wife during the proceedings.
Dr N saw [X] as a sensible, well adjusted young person. The husband said [X] disguised how little time she was actually spending with him by telling Dr N that she likes to make her own arrangements to spend time with him. The husband believes Dr N was misled by [X] presenting a casual and calm image because [X] is smart and knew what was required. He said that, contrary to the image she presented, [X] is becoming increasingly angry, is acting out in various ways including posting inappropriate messages on her Facebook page and her school performance is rapidly deteriorating.
The focus on [Y] is understandable given her age and the significant problems in her relationship with her mother but [X] also requires attention and support. The breakdown of her relationship with her father may have serious long term implications for her and needs to be addressed. Given her age, however, a slightly different approach needs to be taken than in relation to [Y].
The second family report July 2011
The second family report by Dr N is dated 4 July 2011. During the assessment for that report Dr N found it hard to ascertain precisely how much time each child had spent with each parent. She noted there had been a number of incidents and that the arrangements for the children ordered in March 2011 had quickly broken down.
Dr N said the wife presented again as anxious and nervous but also now seemed disheartened and overcome by her situation. The wife reported to Dr N that she had had “some reasonable and even happy times with [Y]” but said that [Y] “continued to defy her and could not be challenged or controlled in any way”. [7]
[7] Report of Dr N, 4 July 2011, page 3
Once again, Dr N made a strongly negative assessment of the husband. She said the following about his presentation:
Mr Santoro was wary at the start, but became indignant over the course of the assessment. He argued that he had done everything that he can, and he clearly perceives himself as having no responsibility for the problems in the family (e.g. “It is not for want of action on my part”.) He again argued that all the problems with [Y] and [X] are caused by Ms Santoro.
Mr Santoro’s intense dislike of Ms Santoro was difficult for him to conceal and every mention of her name caused him to make a grimace. He was quite intense at times and a few topics seemed to infuriate him. One such topic was his claim that Ms Santoro never responds to his text messages or emails. [8]
[8] Ibid, page 3
Dr N said the following about the husband’s attitude to the relationship between [Y] and her mother:
Again, Mr Santoro continues to believe that [Y] does not want to spend time with her mother and that their relationship is very much strained. Mr Santoro seemed again seemed oblivious to his role in supporting and condoning [Y]’s behaviour. By showing [Y] that he believes her behaviour is a reasonable response to her mother; he appears to undermine Ms Santoro’s parental authority.” [9]
[9] Report of Dr N, 4 July 2011 page 6
Dr N expanded on this in her oral evidence. She was critical of the messages the husband was sending to his daughter. For instance, when he told [Y] to “hang in there”, she said it suggests that being with her mother was a negative experience to be endured. By saying the decision about [Y]’s attendance at the [omitted] festival was her mother’s but he would try to speak to her about it suggested that the decision was not a good one and undermined the wife’s parental authority.
Dr N assessed [X] again as “a mature, sensitive and intuitive young woman” whose loyalty to her mother and resentment of her father were both increasing. She described [X] as emotional and distressed about the family situation.
Dr N reported that [Y] “was filled with indignation at what she saw as her mother’s favouritism of her sister” [10] in relation to the payment school fees. She said [Y] told her it made her angry with her mother, who always said she did not favour one child over the other.
[10] Ibid, page 8
Dr N reminded [Y] that, after the last assessment, she wanted to see her mother. [Y] replied that, after the fight with [X] over her iPod and her mother reprimanding her for stealing, she did not feel like going back. However, when Dr N pressed her, [Y] said she did not know why she had not gone back to her mother’s home.
Dr N said [Y] made no allegations that her mother had hurt her or had been aggressive, but simply said that she feels uncomfortable with her.
During the observation session, [Y] was initially cold and abrupt with her mother and [X]. When her mother tried to hug her, [Y] moved away and said, “don’t touch me”. However, after about five minutes of the mother and [X] asking questions and trying to engage [Y], [Y] warmed up and became animated and enthusiastic in the conversation. She shared an earplug to listen to one of her sister’s favourite songs and showed her mother and sister some dance moves she had learned. Dr N described [Y] as craving the attention of her mother and sister and demanding that attention by talking at length about the things she was doing at school and at dance. She said that both the wife and [X] tolerated [Y] claiming superiority over them in relation to various skills. She said she thought [Y] was over-empowered by her father in relation to her mother.
Dr N concluded that [Y] very much desires a relationship with her mother and sister and said all that is required for her to enjoy their company is for them all to be brought together in a neutral space.
The interaction of [X] and [Y] with their father and Ms K was described by Dr N as being reasonably comfortable. Both Ms K and the father asked [X] about her broken arm, and [X] gave a detailed description. Dr N described an easy and warm conversation between [X] and her father. She also described warm and kind interactions between the children and Ms K.
Unfortunately, immediately following the observation of the children with their father and Ms K, [Y]’s behaviour towards her mother reverted to cold detachment. Dr N said, “After spending time with her father, the change in [Y]’s behaviour was dramatic and she seemed to recall her perception that her mother and sister had slighted her.” [11]
[11] Report of Dr N, 4 July 2011, page 12
Dr N said she did not believe [Y] to be at any risk of physical, emotional or psychological harm from her mother, but was at risk from being too closely aligned with her father:
[Y] is a young girl who shows great emotional and psychological confusion. Her behaviour shows clearly that she desires and wants a relationship with her mother and wants to spend time with her. The longer she stays in this state of confusion, the more likely there will be long-term emotional repercussions.
Mr Santoro believes [Y] does not want to see her mother, yet all her behaviour in my assessment suggest that she does. [12]
[12] Report of Dr N, 4 July 2011, page 13
Dr N said that her earlier prediction that the husband would undermine attempts to repair [Y]’s relationship with her mother appear to have been borne out. She concluded that the only solution likely to improve the relationships in the family was for [Y] to return to live with the wife and for the husband to have no communication with [Y] while she is in the wife’s care.
Credit issues
The hearing was conducted over six days, four of which occurred in less than ideal circumstances during a busy circuit. There was a large volume of material filed for each party. Although each party generally denied the allegations made against them, not every allegation was tested in cross-examination and it is not possible to make positive findings about many of them.
The wife was not a very impressive witness. She was frequently non-responsive in her answers and seemed rigidly determined to say what she wanted to say, regardless of the question. Sometimes, after being directed to answer a specific question, she would do so but then, rather than responding to the next several questions, she would add something to her answer to the first. Dr N alluded to some unusual qualities in the wife’s style of communication at page 6 of her first report:
She spoke volubly and sometimes her volume increased, the impression given was that she struggled to understand what had happened to her and was seeking to give all the details in an attempt to understand it. She tendered to describe all actions and behaviours in serial order and sometimes needed some prompting to get the most relevant information.
Dr N said the husband was infuriated by the wife’s failure to respond to his emails or text messages. She appeared critical of him for that. However, the wife agreed that she sometimes simply refused to answer the husband when he spoke to her in person or communicated with her in other ways, not because there was anything wrong with what he was saying but simply because she didn’t feel like communicating with him. There is an element of childishness in that approach which may well be infuriating to the husband.
During her evidence the wife seemed incapable of thinking about her situation other than as her being a victim of the husband’s behaviour. The only exception was the moment of insight when she conceded that it must have been terrible for the husband to be told that [X] had broken her arm but not be given any further information. Shortly thereafter, however, the wife was asked why she would not make [Y]’s vaccination records available to the husband so he can arrange for her next vaccination. She was unable to provide a satisfactory answer. Eventually she was asked by the Court if there was any reason why she could not bring the records to Court the following day. She instantly responded “well, will I get them back?”
There were aspects of the wife’s evidence about which I am satisfied she was not being honest. One was in relation to the reasons she delivered [Y] to the husband at 8.45am on Monday 28 February 2011. Another was her evidence that the husband had moved her car in the Geelong railway station car park as a form of harassment or intimidation by him. Her presentation of the evidence in that way caused me to have misgivings about other parts of her evidence.
The husband appeared to be an honest witness. He was much more direct when giving evidence than the wife. He answered questions put to him, including difficult questions about the beginning of his relationship with Ms K, very simply and openly. He was just as set in his views as the wife in relation to the source of the problems in the family. However, he was prepared to reflect to some extent on his own actions. He conceded that, in retrospect, responding to [Y]’s text messages while she was with her mother might have been counterproductive. He also seemed genuinely affected by aspects of the wife’s evidence. He described as heartbreaking listening to her struggle to understand and deal with the break down in her relationship with [Y].
There were some aspects of the husband’s evidence which were not impressive. For instance, in my view he did not adequately explain why he did not make [Y] available for the counselling appointment on 5 January 2011 when he was clearly home from holidays and [Y] was available that day.
Ms K was an impressive witness. She answered questions in a straight forward, clear, and apparently honest manner. My one criticism of her evidence is in relation to a text message exchange with the wife which she described as being abusive on the part of the wife. The missives from both women were hostile and unpleasant.
Law in relation to parenting
When making any parenting order the Court must regard the best interests of the child as the paramount consideration.[13] In determining what is in the child’s best interests the Court must have regard to the matters set out in ss.60CC(2) and (3) of the Family Law Act 1975.
[13] S.60CA Family Law Act 1975
The primary considerations set out in s.60CC(2) of the Act are as follows:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In this case there is no doubt that both children would benefit from having a meaningful relationship with both parents. Although there was some physical violence in the parental relationship I am satisfied there is no need for either of the children to be protected from physical harm in the care of either parent.
[Y] has told her father that her mother has physically assaulted her. There is evidence that on at least on two occasions the wife sat on [Y] in order to physically restrain her. [Y] also complained that her mother shook her and pinched her on 27 February 2011. However, in a general sense, I am satisfied especially on the evidence of Dr N that [Y] is not at risk of physical harm in the care of her mother.
There is, however, a significant risk of emotional harm to both children arising from the dysfunctional family relationships. Dr N warned that the emotional and psychological confusion felt by [Y] may well result in long term adverse repercussions for her. [X], too, is at risk of emotional harm. She clearly wishes to have a relationship with both parents but feels she must balance the family alliances by remaining loyal to her mother while [Y] continues to reject her mother in favour of her father.
In these circumstances, both of the primary considerations pull in the same direction: the risk of harm will continue until both children re-establish a meaningful relationship with both parents.
The additional considerations are set out in s.60CC(3) of the Act. I will consider each in turn:
(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;
[Y] has expressed very clearly her desire to live with her father. She says she wants very little to do with her mother. The weight of the evidence, however, especially that contained in the family reports, supports a finding that [Y], in fact, strongly desires a relationship with her mother and sister but is unable to manage her situation sufficiently to bring that about.
[Y], at age 12, is intelligent and is reasonably mature but not sufficiently so in relation to the difficult issues in her family to warrant her views being determinative.
The evidence of Dr N suggests that [X] is a sensible, sensitive and mature young person. At age 14, she is entitled have a significant weight accorded to her views. She has stated a very clear position that she will not have a relationship with her father until the relationship between [Y] and her mother is restored. That position, itself, arguably reveals some immaturity on her part. The husband believes that the emails sent to him by [X] on 13 August 2010 display a great deal of immaturity. [X] was aged 13 at that time and expressed herself in language reflecting her age. The emails starkly expose her anger at her father for what she views as his failure to facilitate [Y]’s relationship with her mother. It appears that [X] is attempting to use what little power she has to try to rectify the problem in the family. She can hardly be criticised for that when nothing the parents are doing has worked.
I am persuaded on the evidence that the alignment of [X] with her mother is potentially as problematic as [Y]’s alignment with her father. However, I am not persuaded that such evidence would warrant according [X]’s views less weight than they might otherwise attract. Any arrangement for [X] to spend time with her father contrary to her wishes is unlikely to be successful. In any event, the husband does not press for anything other than a reasonable amount of time with [X] which I intend to order.
(b) the nature of the relationship of the child with:
(i) each of the child’s parents; and
(ii) other persons (including any grandparent or other relative of the child);
On the evidence it appears [X] has always had a close and affectionate relationship with both parents. This was reflected in the observations of [X] with her mother and with her father and Ms K during the assessment for the second family report. It is only the breakdown of the relationship between [Y] and her mother that has resulted in [X] taking a stand against her father. It seems reasonably likely that if [Y]’s relationship with her mother is repaired, [X] will pursue a more meaningful relationship with her father.
[Y] has a close a close and loving relationship with her father and
Ms K. The evidence suggests that she is well behaved, well settled and thriving in the father’s household.
Both the wife and [X] describe [Y] as having previously had a very close relationship with her mother. The husband disputes that. He alleges [Y] has long had a difficult relationship with her mother. He believes the wife has an inconsistent parenting style which ranges from very permissive to highly punitive. He believes [Y] reacts against that and the wife then struggles to manage [Y]’s behaviour. There is some evidence to support the husband’s view. On the few occasions [Y] has spent time with her mother since mid 2010, the mother appears to have been very indulgent of [Y]’s wishes. This is understandable in the context of having had so little time with her. At other times the mother appears to be strongly punitive towards [Y], including forcing her to change schools and refusing to allow her to take certain personal property from her home. The wife also conceded to Dr N during the assessment for both reports that she has struggled to deal with [Y]’s behaviour.
It is apparent from the observations of Dr N that [Y] does enjoy a close, and affectionate relationship with both her mother and her sister, at least in the circumstances of the assessments. Dr N sees [Y] as being so empowered by her father in relation to her relationship with her mother that she will not now accept her authority. That is a major issue to be dealt with if [Y] is to resolve her relationship with her mother.
(c) the willingness and ability of each of the child’s parents to facilitate, and encourage, a close and continuing relationship between the child and the other parent;
Each party is currently unable to facilitate a continuing relationship between the child living with them and the other parent. In the few months following separation the children lived with their mother and spent time with their father at least every second weekend and, in [Y]’s case, on most weekends. Arguably, this indicates the wife is willing and able to support the children’s relationship with their father. However those arrangements broke down within a few months of separation and the wife does not now appear to be actively supporting [X]’s relationship with her father. On the contrary, [X] appears to be just as problematically aligned with her mother as [Y] is with her father.
The husband relied on the fact that he has on a number of occasions returned [Y] to the wife when she has run away and has proposed alternatives when [Y] has objected to spending extended periods with the wife. Dr N believes that, even if the husband is overtly encouraging [Y], he is also quietly undermining the relationship in other ways. Whether that was true in the past I cannot tell. I was ultimately persuaded, however, that the husband does genuinely want to see [Y]’s relationship with her mother repaired. He said he had urged [Y] to think carefully about how she would feel if something happened to her mother before they were reconciled or how she might feel in the future, looking back on all the time missed with her. His evidence about that seemed genuine.
(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;
This consideration is not relevant in these proceedings.
(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 consideration is not relevant in these proceedings as the parties live close to one another and there is no practical impediment to the children spending time with the other parent.
(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;
Both children in this case are intelligent, articulate and socially competent. This suggests that during the marriage the parents were able to provide for their needs, including emotional and intellectual needs. There is no real issue about the ongoing capacity of each parent to provide for the physical and intellectual needs of the children. Each however has demonstrated some lack of capacity to properly understand and provide for the children’s emotional needs.
The husband is able to provide emotional containment and stability for [Y] but is currently unable to ensure she maintains a relationship with her mother. According to Dr N he has allowed [Y] to become over-empowered to such an extent that her mother has very little parental authority over her. This has occurred because, if [Y] doesn’t like what her mother is saying or doing, she can simply run away to her father’s home and he provides validation and reinforcement of those actions.
The wife has also demonstrated some lack of capacity to understand [Y]’s emotional needs. Presumably, for instance, she did not anticipate how profoundly [Y] would be affected by her decision to continue to pay [X]’s school fees but not hers. [Y] interpreted those actions as a rejection by her mother, punishment for leaving her home and evidence that her mother cares more about [X] than her.
It is also difficult to understand the wife’s refusal to allow [Y] to participate in the [omitted] Festival during the first weekend [Y] had spent with her in months.
It is not possible to determine on the evidence whether the husband’s statements about [X]’s behaviour and deteriorating school performance are accurate. If they are, it seems likely that a range of [X]’s needs are not being met.
Both parents have agreed to attend a parenting course in relation to the parenting of adolescents which may assist them to better meet the needs of both children.
(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;
This consideration is not relevant in these proceedings.
(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 consideration is not relevant in these proceedings.
(i) the attitude to the child, and to the responsibilities of parenthood, demonstrated by each of the child’s parents;
Much of the evidence relevant to this consideration has already been discussed. There were a number of instances in which the wife demonstrated a poor attitude to her responsibilities as a parent. One was her failure to make [Y]’s vaccination records available to the husband. Another was her failure to advise the husband about [X]’s broken arm. In April 2011 the wife posted on her Facebook page the following message:
I never get jealous when I see my ex with someone else, because my parents always taught me to give my used toys to the less fortunate.
When the wife was cross-examined about this she tried to suggest she was not necessarily referring to the husband but that is nonsense. Given both of her daughters use Facebook and the wife has actively tried to engage with [Y] on Facebook, her posting of that message shows a lack of judgement and a disregard of her parental responsibilities.
The wife conceded that at times she simply refuses to speak with the father or communicate with him in any way. Her refusal to communicate with him prevented a smooth transition between schools for [Y]; prevented the parents coming to a joint decision about how to manage [Y]’s behaviour; resulted in the police having to get involved in the retrieval of [Y]’s laptop from the wife’s car; and resulted in the incident in May 2010 in which the husband opened the wife’s car with a spare key at [X]’s soccer match in order to remove [X]’s bag.
The husband demonstrated an inappropriate attitude to his responsibilities as a parent by accepting at face value all of [Y]’s complaints about her mother, engaging in text message communication with [Y] while she was spending time with her mother and by failing to ensure [Y] attended all of the counselling sessions with her mother.
It is apparent on all the evidence that there was enormous resentment on the part of each parent towards the other in the last few years of their relationship and following separation. Each has exposed the children to that resentment which has caused damage to all of the relationships in the family. It appears that both parents need professional assistance to deal with the effects of their relationship and its breakdown in order to properly meet their responsibilities as parents. Each parent has committed to participating fully in counselling and to undertaking a relevant parenting course.
(j) any family violence involving the child or a member of the child’s family;
The mother complained to Dr N about violence in the relationship. At page 5 of her first report Dr N reported as follows:
Ms Santoro alleged that Mr Santoro ‘had a temper’ and that there were occasional incidents of violence against her. She stated that she would typically emerge bruised after Mr Santoro would push her into walls.
Very little evidence of any violence perpetrated by the husband against the wife was given in the proceedings. All of it was denied by the husband. In her affidavit filed on 28 February 2011, the wife said “Domestic violence by the husband towards me was a usual occurrence throughout the relationship”. [14] She described an incident in which she said the husband pushed her forcefully up against the kitchen cupboards while she was pregnant with [Y]. She said she began bleeding the next day and required bed rest for a week. She also said that on 23 February 2010 the husband pulled her arms in a controlling manner during an argument. [15]
[14] Wife’s affidavit filed 28 February 2011, paragraph 45.8.3
[15] Ibid, paragraph 45.11
The wife alleged that she had seen the husband “physically assaulting his own mother, including on one occasion when he broke the glasses on her head”.[16] There is no more information about that allegation. If it were true, it is a serious matter. I am, however, cautious about accepting the wife’s statements at face value given her misrepresentation of various other incidents. No exploration of this part of the evidence occurred during the trial.
[16] Ibid, paragraph 45.8.3
When the wife applied for an intervention order in June and July 2010, the only allegation she made of physical violence was to say “In the past constant fighting, controlling behaviour, pulling on my arms.”
The wife has never suggested the children were at risk of physical abuse by the husband.
The husband alleged that he was subjected to physical violence by the wife from time to time during the marriage. He gave compelling evidence of being assaulted on the day of separation. He also alleged the wife had menaced him with a carving knife on 29 November 2009 while saying “You don’t know how much I’d like to stick this into you”. That was denied by the wife.
I am satisfied on the evidence of the husband and Ms K, corroborated to some extent by the wife, that the wife is at times verbally abusive of the husband.
The husband told Dr N that the wife was verbally and physically abusive to [Y]. The only evidence of physical violence was in relation to her sitting on [Y] to restrain her in June 2010 and November 2010 and [Y]’s allegation that her mother shook her and pinched her when she arrived home from the [omitted] festival in February 2011.
While family violence has been an issue in the family, it is not a matter which will have a major impact on the outcome of these proceedings.
(k) any family violence order that applies to the child or a member of the child’s family, if:
(i) the order is a final order; or
(ii) the making of the order was contested by a person;
Mutual family violence orders were made on behalf of each party against the other on 27 July 2010 for a period of 12 months. They would each have now expired.
(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;
It not possible for me to predict with any degree of certainty what order would be least likely to lead to the institution of further proceedings, given the volatility of the family dynamics.
Parental responsibility
When making a parenting order the Court must apply a presumption that it is in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.[17] An order for equal shared parental responsibility carries with it an obligation for each parent to consult the other and to jointly make major long term issues in relation to each child.[18] The presumption does not apply where there are reasonable grounds to believe a parent has engaged in family violence or child abuse and may be rebutted if the Court is satisfied it would not be in the best interests of the child.
[17] S.61DA Family Law Act 1975
[18] S.65DAC
In this case I am satisfied there has been family violence. The presumption, therefore, does not apply. I am nevertheless satisfied that it would be in the best interests of the children for the parents to have equal shared parental responsibility for them. The parents currently have a poor relationship and their communication is strained and difficult. However, each parent having sole parental responsibility for the child living with them seems likely to increase the gulf between that child and the other parent. If what each parent says is true, they both want the children to have a proper relationship with both parents. Each parent should be involved in the decision making in relation to both children. The parties have agreed again to attend counselling to try to repair the fractured relationships. Pragmatically, each parent will make most of the decisions in relation to the child living with them until the parental communication improves. However, they will be required to consult each other and to try to reach a joint decision.
If the Court makes an order for equal shared parental responsibility it is required to consider whether it is in the best interests of the child and reasonably practicable for the child to live on a equal time basis with each parent.[19] In this case the parents live in close proximity and it is certainly reasonable practicable for each child to live on an equal time basis. It is not, however, in the children’s best interests that such an order be made. [X] is aged 14 and has no desire to live anywhere other than with her mother. She is of an age where her views carry significant weight. In the event her relationship with her father improves it is likely that she will voluntarily spend more time with him. It is likely to be counter-productive to attempt to force the issue at this stage.
[19] S.65DAA(1)
In relation to [Y], the parties agreed in March 2011 to a week about arrangement. That arrangement was not successful at that time but may well be successful in the future. For the moment, I am persuaded that a more gradual build up in the relationship between [Y] and her mother has a better chance of success than imposing an equal time arrangement now.
If the Court does not make an order for equal time, it must consider whether it is in the best interests of the child and reasonably practicable for the child to spend substantial and significant time with each parent.[20] Substantial and significant time is defined in s.65DAA(3) of the Act as being time which falls on week days, weekends and holidays and allows the parent to be involved in the child’s daily routine and events of special significance. Again, given the proximity of the parental homes, such an order is reasonably practicable. Given the particular dynamics in the family, however, I do not consider it to be in the best interests of [X] to force an arrangement for her to spend substantial and significant time with her father. Again, if the relationship improves she is likely to spend substantial and significant time with him of her own volition. In relation to [Y], orders should be made to facilitate her spending substantial and significant time with her mother.
[20] S.65DAA(2) Family Law Act 1975
I am persuaded that it is in the best interests of the children to continue living with the parent with whom they currently live but gradually build up their relationship with the other parent supported by therapeutic intervention which should continue until the therapist deems it no longer necessary or helpful.
Both parties earnestly say they want to address the issues but each needs to take some strong steps in addressing their own part in the dynamic rather than simply blaming the other.
The parties’ proposals
The wife seeks orders for both children to live with her. She proposes that [Y] spend no time with the husband for the first four weeks after [Y] returns to her care. This is put on the basis that, without interference from the husband, [Y] will quickly re-establish her relationship with her mother and sister. The wife proposes that after four weeks [Y] will begin to spend time with her father, building up slowly from one day per fortnight to a full weekend after several months. The wife seeks a specific order that, while [Y] is with her, the husband have no communication with [Y] at all.
The orders sought by the wife would be attractive if the evidence clearly established that the main cause of the difficulties between [Y] and her mother was the husband undermining their relationship. I am unable to make that finding. I am satisfied that there are other things at play including the emotional volatility of the wife, her inconsistent attitude to [Y] and some deficits in her parenting skills which also need to be addressed.
[Y] is currently settled in her father’s home and is doing well in school. Being compelled to live full time with her mother and have no contact with her father for four weeks is likely to be difficult for her. Given the proximity of the husband’s home, it is likely that [Y] would simply keep running to her father’s home. If he keeps taking her back, there is a risk, as foreshadowed by him, that [Y] will eventually run elsewhere. Not only is such a scenario risky for [Y], it would also not assist her relationship with her mother.
The father proposes that orders be made for [X] to live with the wife and [Y] to live with him. He proposes that, for a period of 3 months following the orders, each child spend time with their non-residential parent for 2 hours once or twice each week, extending to a full day each weekend and, ultimately, to a full weekend every second week, to be achieved in 7 months. In my view that proposal has better prospects of success than the wife’s. It allows the relationships to mend slowly while both parents are attending their parenting courses and while all of the family is attending individual and family therapy.
The husband’s proposal is in line with the recommendations of Dr N in the first family report, although it starts off more gradually. Dr N did not make the same recommendation in her second report. She assumed the husband had sabotaged the arrangements but, for the reasons already stated, I do not agree.
Both parties have agreed to modify the parenting arrangements if recommended by the counsellor.
The legal system can only go so far in facilitating arrangements to enable the children to have a meaningful relationship with each parent and each other. Whether or not the children are able to reclaim those relationships will depend primarily on the commitment of each parent to achieving that outcome.
I certify that the preceding two hundred and two (202) paragraphs are a true copy of the reasons for judgment of Hughes FM
Date: 9 August 2011
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