Sawer and Hugh (No. 2) - [2009] FamCA 496

FAMILY COURT OF AUSTRALIA

SAWER & HUGH (NO. 2)

[2009] FamCA 496

FAMILY LAW – CHILDREN – Less adversarial proceedings – Children and Parents Issues Assessment to the effect that pressure placed on children by father constitutes emotional abuse – father ceased to participate in proceedings and his applications are withdrawn – interim orders suspending the children’s time with the father – injunction against father coming into contact with the children and power of arrest in the event of an alleged breach – relevant considerations

APPLICANT:

Mr Sawer

RESPONDENT:

Ms Hugh

INDEPENDENT CHILDREN’S LAWYER:

Verney Walker & Co Lawyers

FILE NUMBER:

LNC

511

2008

DATE DELIVERED:

12 March 2009

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Bennett J

HEARING DATE:

12 March 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Gibson, solicitor, who subsequently sought and obtained leave to withdraw.

SOLICITOR FOR THE APPLICANT:

COUNSEL FOR THE RESPONDENT:

Mr Lewis

SOLICITOR FOR THE RESPONDENT:

Temple-Smith Partners

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER

Mr Walker

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER

Verney Walker & Co Lawyers

Orders

IT IS ORDERED UNTIL FURTHER ORDER:

That until further order all parenting orders be and are hereby suspended.
That until further order the mother have sole parental responsibility for the children J born … June 1996, E and H both born … January 1999 (“the children”).
That until further order the children live with the mother.
That until further order the parties do all acts and things necessary to ensure that no person other than the mother or Mrs Hugh Snr (“the maternal grandmother”) or someone acting under and able to produce the written authority of the mother be permitted to remove the children from their respective schools, being S School at S and L School in L and/or from communicating with the children whilst they are at school.
That until further order the entitlement of the father to communicate or spend time with the children or any of them or to have the children or any of them live with him be reserved with the effect that there is no enforceable entitlement of the father to communicate or spend time with the children or have the children live with him.
That until further order the father be prohibited from communicating with the children by placing any call to a mobile telephone service in the possession of the children or any of them.
That until further order, pursuant to s68B of the Family Law Act, the father be prohibited from contacting the mother and the children or any of them or from approaching at or within two hundred (200) metres of the mother’s residence at

R or the children’s schools AND IT IS NOTED this order is made for the personal protection of the mother and the children and has attached to it a Power of Arrest pursuant to s68C of the Act.
That a Recovery Order issue in accordance with Form 34 of the Family Law Rules with the following particulars:
(a)    The Recovery Order is to be addressed to the Marshal, all officers of the Australian Federal Police, all officers of the State and Territory police forces;
(b)    Such persons are authorised and directed to find and recover the children J born … June 1996, E and H both born … January 1999and for that purpose, with such assistance as they require to stop and search any vehicle vessel or aircraft and to enter and search any premises or place in which there is, at any time, reasonable cause to believe that the children may be found; to enter and search the premises or place situated at and known as.
(c)    The child is to be delivered to the mother at …, R
(d)    Mr Sawer is prohibited from again removing or taking possession of the children;
(e)    If Mr Sawer again removes or takes possession of the child, he may be arrested without a warrant;
That until the father files and serves a Notice of Address for Service to the contrary the Court record his address for service as …, L, facsimile no. … and telephone no. ….
That liberty be reserved to the father to apply on seven days notice to vary or set aside or discharge this order or as he may be advised such application to be listed as soon as practicable before myself or if I am not reasonably available before Justice Cronin at the Melbourne Registry of this Court or as he may direct.
That subject to any further order of the Court the mother and the father do all acts and things necessary to have the mental health of the children assessed by psychologist or psychiatrist nominated by the Independent Children’s Lawyer providing that the interviews for any such assessment not be conducted prior to this matter being mentioned before me in April 2009.
That subject to any further order of the Court the Independent Children’s Lawyer be initially responsible for the reasonable cost of the psychological or psychiatric assessment of the children and be at liberty to make application subsequently that either or both of the parties make a contribution to those costs.
That this matter be listed before me for mention at 9.00am on Friday 24 April 2009 by telephone link-up for directions for final hearing AND IT IS DIRECTED that the Family Consultant Ms N be available to give evidence on that day.
That the Independent Children’s Lawyer explain the outcome of today’s proceedings including the fact that the father withdrew his application for parenting orders and then withdrew from any participation of the proceedings, such explanation to be given in terms likely to be understood by the children.
That a Registrar of this Registry of the Court contact the principal or proper officer of the schools at which the children attend being S School, S (tel. …) L School, L Ph: … and advise him/her of the effect of paragraph 4 above to them.
That a copy of this order be sent to the father by facsimile.
Pursuant to s.65DA(2) and s.62B, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders and details of who can assist parties adjust to and comply with an order are set out in the Fact Sheet attached hereto and these particulars are included in these orders.
IT IS CERTIFIED
Pursuant to Rule 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Hugh & Sawer is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: LNC 511 of 2008

MR SAWER

Applicant

And

MS HUGH

Respondent

REASONS FOR JUDGMENT

(Ex Tempore)

Introduction

These proceedings concern three children, J, born in June 1996, and E and H, both born in January 1999, and the parent with whom they are to live most of the time. J is now 12 years of age and the twins, E and H, are now 10 years of age.
The proceedings came before me by way of an interim determination. The mother was represented by Mr Lewis and she attended court. The father did not attend court, but the hearing commenced with him appearing by telephone and being represented by Ms Gibson, solicitor. That appearance was pursuant to a request to attend by electronic communication, which was received in this Registry yesterday. The request was contrary to paragraph 5 of the order of Benjamin J made on 18 February 2009, which required each party to be at court, but I permitted the father to appear by telephone with his solicitor. Mr Walker is the independent children’s lawyer.
There is a long litigation history to this matter. The parties separated in 2001. Orders were made in 2005, and further orders were made on 27 April 2007. Pursuant to the 27 April 2007 parenting orders, J was to live week about with each parent. The girls were to live primarily with the mother and to live with the father each alternate weekend from Friday to Monday, and each alternate Wednesday overnight. The arrangements for school holidays were week about.
I was informed, at the commencement of today’s proceedings, of the evidence upon which each party relied. I have read all of that evidence and those affidavits. The wife and the independent children’s lawyer both sought that I take into account the opinions expressed by the family consultant, Ms N, in her children and parents issues assessment dated 27 November 2008. I have already pronounced orders, which were sought by consent, which dealt with minor issues in relation to property. I have also granted leave for the mother to withdraw her contravention application.
The proceedings which required determination today, at least on an interim basis are those that were initiated by the father by an application for final orders filed on 4 September 2008. The mother filed proceedings shortly thereafter on 12 September 2008, also in the form of an application for final orders, but the father’s application is the first on the court file so I will treat him as the applicant.
In his application the father sought shared parental responsibility of the children, that they live with him for 9 out of each 14 nights, and spend half of each school holiday period with each parent.
The mother sought final orders that the children live with her and that the question of time spent and communication with the father be reserved.
The recent history of the matter appears to include the fact that the children have recently been agitating for an alteration of the then existing orders so that the girls resided on a week about basis with the father. It was said by the mother that this was at the behest of the father. I understand that the mother does not dispute that the girls make this request; rather, she takes issue with why they are motivated to do so and maintains that such an outcome is not in their best interests.

Relevant Chronology

These proceedings were precipitated by events at the school of the girls on 28 August 2008. On that day both parents attended the school. The mother attended to collect the girls as she was entitled to do. The father attended to collect J. Whilst there, the father invited the girls to go with him in spite of the order then in force which provided for the mother to have the girls living with her at that time. The mother took the girls into the school buildings and the police were subsequently called. J left with the father; the girls stayed with the mother.
On the next occasion that the girls were to live with the father pursuant to the orders, the mother ensured that they were available and they went. However, they did not come back. Neither were sent to school on 1 or 2 September 2008. As indicated, the father filed his application on 4 September 2008. On 12 September 2008 the mother caused proceedings to issue for a recovery order. As noted, each parent applied to the court to discharge the earlier orders and for new parenting orders to be made.
The girls were eventually returned to the mother. Then, J left the mother’s home and went to stay with the father during a time that he should have been with the mother.
The matter has been listed several times before Benjamin J at this Registry. In December 2008 Benjamin J took the matter for mention and his Honour directed that henceforth communications between the parties be between the mother and the father’s partner, Ms B.
Before his Honour at that point was a children and parents issues assessment which had been prepared by Ms N, family consultant, dated 27 November 2008. That assessment arose out of interviews with the parties and the children on 25 November 2008. It is an informative assessment. It is not a family report. It sets out some of the then recent history of the matter. I have not had an opportunity to hear from Ms N as she is not in the Registry today, but her record seems to be an internally-consistent, well thought-out assessment. Her summary is as follows:
This assessment proved to be an extremely stressful process for the children. They were unusually tearful and nervously anxious. The children appear to be focussed on their father’s moods and on keeping him from becoming upset or depressed. It was evident that the girls hope to resolve the current conflict by having a week-about parenting arrangement so that they can avoid being further exposed to conflict at their school or being rejected by their father when they arrive at his home on agreed days. They do not want to live primarily with their father. It was evident that [J] hopes that having a week-about parenting arrangement for the girls will result in his father being happier and therefore [J] would be happier and less stressed as well. He does not wish to live primarily with his father.
Although it is acknowledged that the children have happy times with their father, their views about their parenting arrangements cannot be seen as sound, clearly expressed, independently formed views wanting to have additional time with their father – due to their need to please him and to avoid his reactions towards them if they do not comply with his wishes. Whether [the father] consciously intends to or not, his behaviour involving the children must be described as emotional abuse. It is recommended that [the father] seeks professional assistance in reviewing how his behaviour is experienced by the children.
Unfortunately both parents are pre-occupied with their adult behaviour patterns and post-marital dispute. [The mother] is in danger of reacting to the children as if they are an extension of her dispute with [the father]; as if the are a ‘trojan horse’ sent by the father. This will not help the children. She understands the pressures that they face from their father. The children want her to appease their father so that the emotional pressure is reduced on them… [The mother] should not underestimate the loyalty that the three children feel towards her.
[…]
Both parents said that a week-about parenting arrangement would be desirable but not possible under the circumstances of their ongoing conflicts. The father’s solution of having the children living primarily with him cannot be recommended. The mother’s solution of having the father’s time with the children reserved by the court will be unpalatable to the children. They will fear the father’s reaction to this; they will worry about his mental state while he misses them; and they will miss the fun times that they do have with their father. [The mother] would need to carefully manage the children’s reactions if they do not see their father for any period of time as it could have an impact on her relationship with them. However, having a break from having time with their father could give the children a period of emotional reprieve. One main problem would be that the children would miss seeing their baby sister and other extended family. Separate arrangements could possibly be made for such contact to occur.
[The father] acknowledges having psychological problems with his mental health. It is recommended that he seeks further treatment and support so that he becomes more aware of the impact of his emotional expression and his behaviour on the welfare of the children. He voiced his recognition that his children will ultimately benefit from his primary focus being on his own well-being…
Ms N also opines that the relentless conflict between the parents is likely to have a very detrimental impact on the emotional and social development of the children. In particular, the sadness described by J is of ‘clinical concern.’ Ms N’s opinion in this regard accords with accepted research and my own view.
The matter was next before Benjamin J on 18 February 2009. On that day his Honour set it over for interim hearing before me today and made certain directions. One such direction was that this hearing take place before me at Hobart and “the parties attend Hobart on that date and time”. The father has not attended today. As indicated, a request for him to attend by electronic communication was received yesterday. Also received in the registry yesterday, although not served on the other parties to the proceedings, was an affidavit by the father’s partner, Ms B. At paragraph 16 she deposed:
[The father] has instructed me that he cannot afford the cost of instructing a solicitor to appear in Hobart and understood that the matter would proceed by way of electronic communication. He refuses my financial assistance in this regard.
The direction of Benjamin J did not require the father’s representative to appear in Hobart today; it required the father to appear. He did not do so. His practitioner, Ms Gibson, appeared by telephone and advised the court that the father was in her presence.
As the matter was proceeding and the independent children’s lawyer was making submissions in support of his application for the parents to be psychiatrically assessed, Ms Gibson asked for the matter to be stood down so she could obtain instructions as to whether the father would attend for a psychiatric assessment upon an appropriately-qualified person. She had indicated to the court that the father was not prepared to be seen by a psychiatrist who had previously assessed the parties, being a Dr S. The matter was stood down for some brief time and when the matter resumed Ms Gibson advised the court that her client had left her office and that her client sought to withdraw his applications.
So that there could be no ambiguity about it, I asked Ms Gibson whether the father’s applications could be dismissed and she said that they could be. Ms Gibson also asked to withdraw as his solicitor on the record and to be further excused from appearing today. I declined to excuse her at that time, however, as I give these reasons for judgment, I have already excused her. She has provided the court with an address at which the father can henceforth be served, or until such time as he files a notice of address for service to the contrary.
The father’s applications have been marked as withdrawn.
The mother and the independent children’s lawyer then sought to proceed with the mother’s interim application before the court. I am satisfied that the father is on notice of the mother’s interim application. In the mother’s application for final orders (which is now unopposed), she sought that the children live with her and that the question of time spent and communication with the father be reserved. By virtue of a practice direction document which the mother filed yesterday, the father was on notice that the mother was seeking orders that the children live with her, that the children spend no time with the father until approximately 24 April 2009, and thereafter spend time with the father each alternate weekend, and certain other orders.
It is fair to say, however, that when the matter recommenced, the submissions of the mother were directed to the more urgent need for interim parenting orders and contended for in terms of the children being at some significant risk in the short term. The mother sought that the children live with her, that the father spend no time with the children, and that a recovery order issue. In support of that application I was taken to various parts of evidence filed in the proceedings which were concluded in 2007. I am mindful that in 2007, the father took issue with that evidence and prior to retiring from the proceedings today it was submitted on his behalf that he continued to take issue with it.
The relevant report is that of Dr S and it is annexed to an affidavit by David Walker, the independent children’s lawyer, sworn 4 March 2009. That report appears to be a well‑reasoned report, although it has not been tested in cross examination before me. At page 12, Dr S expresses the following view of the father:
It appears to me that [the father] is an egocentric and entitled man who seems largely incapable of taking responsibility for the consequences of various inappropriate or intemperate acts. He attributes his predicament to court processes and the various and/or negligent actions of various others ranging from his former mother-in-law to judges.
... Although there have been periods of depression and thoughts of self harm (by [the father]) I would see these as principally the manifestations of the underlying personality disorder rather than constituting any actual psychiatric illness. The situation is a troubling one. [The father] appears to be unable to tolerate being bettered in any way. He is prone to act disproportionately and impetuously. There seems to have been an increase in the frequency of those types of behaviour during the course of this year [2004] …

Dr S was asked to address specific points. One of these was whether the mother or father would benefit from any, and if so what type of, treatment or counselling. Dr S’s response was as follows:
While the prospects are not encouraging it is recommended that the father attend an appropriate mental health professional to seek individual counselling. There is also a need for the father to use medications only as prescribed and to use alcohol in moderation.
Dr S was also asked his opinion as to whether the father or the mother, in view of any such condition or disorder or otherwise, represents any risk to the safety and well being, either physical or psychological, of the children. His advice was that:
If the father’s world continues to collapse there is a risk that he may behave inappropriately and disproportionately and this could conceivably place himself at risk, or others. While I cannot exclude the possibility of risk to the children, I believe the maybe greater concern would be for those [the father] has perceived as acting against him.

Findings

It was submitted that the affidavit material filed in these proceedings demonstrates that there has been somewhat of an escalation in the father’s behaviour in recent times. I agree.
The affidavit material of the mother alleges that the father has been enticing, encouraging or directing the children to spend time or live with him during times when they should be in the mother’s care; that is, to act contrary to the orders then in force.
The fact that J has been spending more time in the father’s household than the current orders provide is corroborated by the affidavit of the father’s partner, Ms B, who deposes that since September 2007 J has been spending most of his time at the father’s household and returning to his mother’s household only every second weekend. That is consistent with the father’s application to the court.
I was directed to the attendance of the father at the girls’ school on 28 August; the need for a recovery order to issue; and, the father failing to return the girls to the mother on 5 January at the required time. There is also the occasion, reported by the children to the family consultant, when the father threatened to jump from the roof of a house if the police did not go away. The children (or at least one of them) feared that the father would die. These incidents were referred to by the family consultant in the following passage:-
The children were interviewed individually. They engaged readily and spoke openly but showed a high degree of physical tension and each child quickly became very tearful and very distressed while talking about their experiences within their family. For the twins, this distress and anxiety was particularly evident when they were talking about occasions when the police have been involved with their family. The girls also chose ‘bear cards’ to show how they felt at these times (see Appendix 1 and 2).
·On one occasion their father came to the school on a day when they usually go home to their mother’s home. Their mother was present. Their father told the girls to go with him; “dad said you can do what you want but I’d like you to come with me.” Their mother took them into the school to wait for the father to leave and for the police to arrive. The girls were very confused and worried.
·After this event, when they arrived at the father’s home for their usual Wednesday overnight time, their father told them to call the mother as he did not want them to come to his home unless they were staying week-about with him; “he said he wants to spend more time with us and if he can’t do that, we can just go to mum”, “dad didn’t want to see us then because we hadn’t come when he told us to… he wanted me to go week-on week-off.” This was very upsetting and confusing for the twins.
·On another occasion the police attended the father’s home and, “he sweared a bit… dad got real angry.” When [the father] took refuge on the roof of the main residence, additional police were called to attend. The twins were very fearful that their father would fall off the roof. They also heard him threatening to jump; “if you guys don’t go, I’ll jump… he would have died.” They were very fearful for his safety.
I take into account that the father was required to attend court personally in Hobart today and failed to do so. He then withdrew from the proceedings without explanation and did not remain for the balance of the hearing. The father’s non-appearance in court and his withdrawal from proceedings strikes me as particularly significant, given the very significant concerns expressed by the family consultant in the children and parents issues assessment. There was a lot at stake today for the father vis a vis the children. I infer from the father’s withdrawal that there was nothing that he could contend that would advance his case. That is not an adverse finding.
A further matter for me to consider is that, as indicated, Benjamin J had made a direction that communication between the mother and the father be through the father’s partner, Ms B. It appears, from correspondence annexed to the mother’s affidavit and referred to in paragraphs 37 to 41 of the mother’s affidavit, sworn 2 March 2009, that the father has unilaterally reversed that direction by instructing Ms B not to be available to liaise with the mother. That is a further matter which I could take into account in relation to the preparedness of the father to parent in accordance with any parenting regime. It is a further matter which the father would have been required to address had he continued as a participant in these proceedings.
Still in the context of the alleged recent escalation in the father’s behaviour, such as the mother and the independent children’s lawyer each say should satisfy me that the children are at risk, there is the family consultant’s assessment of the father’s presentation at the interview with her. I accept this evidence, which is described as follows:
[The father] was frequently agitated and became increasingly hostile throughout the assessment process. He presents as an intense person who has strongly voiced opinions, especially in relation to family court proceedings, the judiciary and about his experience of domestic violence orders. Although security personnel at the court expressed concern, there was no immediate indication of personal threat to anyone. [J] witnessed his father’s extreme agitation as they were both leaving the court, despite a request to [the father] to be mindful of his son’s presence.
[The father] was extremely defensive when asked to clarify the events when he went to the school on the mother’s day to tell the girls “if you want to come with me, you can come to me.” He was unable to focus on any feedback in relation to his children’s experience and emotions. He blames [the mother] for the ongoing emotional distress that everyone is suffering. There also appear to be ongoing financial issues relating to child support, as well as proceedings in relation to restraint orders against [the father]. [The father] acknowledges that he is struggling with depression and says that his biggest problem is when he is not seeing the children. [The father] said that he was prepared to be involved in counseling to improve communication with [the mother] and that her new partner should also be involved.
The assessment writer reflected on the father’s position as follows:
[The father] raised a number of specific concerns:
·He wants clear confirmation that [J] will be attending [S School] for high school.
·He is upset that the mother is living with a new partner who he believes has been show by the court to be unsuitable as a parent to his own two boys.
·He has prioritized his mental health by focusing on his involvement with car racing. This has involved travel on weekends and this has affected his weekend time with the girls on 8 occasions this year. This leads to long periods in between seeing the girls. He believes week-about time would resolve this. He said that the children were usually with their mother when he was unavailable as “3 children with my partner is a big load” and would not be fair for her.
·He also says that week-about is no longer feasible due to the parental conflict and that the children should primarily be with one or the other parent. He proposes that the children live with him.
·He would like the children to be able to be more involved with sports activities.
I wonder whether the father has considered the viability of counseling when he has already concluded that the mother’s partner is inappropriate. Further, the third and penultimate dot points are at odds with one another in relation to the appropriation of week about time. These observations lead me to conclude that prior to the father ceasing any involvement in these proceedings he was ambivalent as to what he wanted.
It is also the case that the mother has filed a notice of risk of abuse in relation to the children and there has been no response to that significant affidavit material filed by the mother. At this point I make the observation that the lack of affidavitory evidence from the father may have been as a consequence of the mother having also filed a contravention application and the father taking the view that he would not put further evidence before the court until that application was disposed of. The fact that the father may have felt precluded from providing affidavit material to clarify his current situation or to assuage the concerns of the family consultant, means that his attendance at court today, and his continued participation in the proceedings, was all the more important. It is not as if he has left behind material which would otherwise speak for itself in response to the mother’s evidence, albeit that little weight may have been accorded it in the absence of an opportunity to test it in cross examination.
This is a court of private law. When one party withdraws from the proceedings, the court still makes the necessary assessments. However, it is open to me to infer that if the father had a compelling case or even relevant evidence to put before the court today, he would have done so. He was here. He had more than adequate notice and preparation time. He was represented but he walked away. He has now abandoned any opposition to the mother’s application of which. I am satisfied, he has notice.
The best interests of the children are the paramount concern. I must consider the s 60CC matters that are relevant, as to a child’s best interests, and if possible, make findings about them. Section 60CC(2) sets out the primary considerations, s 60CC(3), the additional ones.
In determining this matter on an interim basis, I have regard to the primary considerations in the legislation and the additional considerations.
Of course, this being an interim hearing, the evidence upon which the mother relies has not been tested. That said, the father is not a participant in the proceedings and the independent children’s lawyer does not urge me to be cautious in accepting the evidence upon which the mother, or he, rely. I proceed on the basis that, unless what the mother says is inherently improbable, it is open to me to accept that evidence. After all, it is unchallenged.
The orders that are sought by the wife are supported by the independent children’s lawyer. There is support for the position of the mother and the independent children’s lawyer in the expert opinion of the family consultant who prepared the issues assessment.
I take into account the benefit for the children to have a meaningful relationship with both of their parents within the meaning of s 60CC(2)(a). The mother does not contend that it is not in the best interests of the children to have a meaningful relationship with the father. She merely seeks a suspension of time. Maintenance of a meaningful relationship with a parent is often effected through frequent and regular time spent. However, in this case, the beneficial aspects of the children’s relationship with their father may be best protected and preserved by preventing the children from being exposed to negative aspects of the father’s behaviours. I need also to protect the children’s relationship with the mother. The mother and the independent children’s lawyer contend for a suspension of the communication and/or time that the children would otherwise spend with the father. The father does not contend otherwise, he does not participate.
As this is an interim hearing, the father can come back to court (on a duly filed and served application) and seek to reopen the interim suspension which I impose today providing that he can demonstrate that there has been some change in circumstances since today and to show, by evidence, that he has the wherewithal to care for the emotional and physical needs of the children without engaging in behaviour which is likely to impact negatively on their emotional wellbeing.
The kind of negative behaviours to which I refer have been described by Ms N, are referred to above, and include making the children feel responsible for his happiness and his despondency, telling the children or otherwise leading them to believe that if they do not stay with him when he wants them to then he does not want to see them at all, intruding on the school lives of the children, placing himself in harms way by climbing on a roof and leading the children (or any of them) to believe he would jump and kill himself when asked by police to come down from the roof.
None of the children deserve to feel responsible for either parent in the way that they are clearly now feeling responsible for their father. None of the children should have less regard for the mother because she refuses to give in to demands by the father which are inconsistent with their best interests. It is the best interests of the children, not the father, which is the paramount consideration.
I also have regard to the need to protect the children from physical and emotional abuse, pursuant to s 60CC(2)(b). I note that the family consultant has referred to the father’s behaviours with the children in recent times as constituting emotional abuse. That is a matter to which I give very significant weight today, particularly as the father has not continued to participate in the proceedings and the incidents outlined by the family consultant are of great concern to me vis-à-vis the emotional well being of the children.
The affidavit material that has been filed on behalf of the father, which is just an affidavit by Ms B sworn yesterday, represents that everything is fine in their household. The father’s solicitor this morning made submissions to this effect. In the course of those submissions she made it clear that she was instructed that the father’s position is that the children are not unhappy, that any unhappiness that they displayed to the family consultant is not reflected in any other area of their life; that is, at school, in his home, or, he assumed, in the home of the mother.
In relation to his mental state, a submission was made to the effect that the father does not accept that he has any personality disorder. He accepts that he is depressed and suffers from anxiety. There is no evidence of which I am aware that the father is currently undergoing any form of counseling or therapy, as was suggested by Dr S in 2004 to be appropriate. Ms Gibson referred me to the fact that the father is being medicated, but that was only one part of the treatment recommended by Dr S in 2004.
One of the difficulties is that it appears that the father does not think there is a problem. I cannot reconcile that situation with the observations of the family consultant as set out in the report in November 2008. Whatever the source of the father’s negative behaviours may be, the children have had to contend with treatment which I agree is abusive.
I have regard to such of the additional considerations as are relevant.
I consider the children’s views. I accept that the children would be opposed to an order that means that they cannot see the father nor he them. I accept that they wish to appease the father and that they want the mother to do likewise. I find Ms N’s assessment of the children’s thoughts and motivations very helpful in deciding what weight I ought to accord to the views of each of them, in particular, the following passage from her summary at page 6:-
The children appear to be focussed on their father’s moods and on keeping him from becoming upset or depressed. It was evident that the girls hope to resolve the current conflict by having a week-about parenting arrangement so that they can avoid being further exposed to conflict at their school or being rejected by their father when they arrive at his home on agreed days. They do not want to live primarily with their father. It was evident that [J] hopes that having a week-about parenting arrangement for the girls will result in his father being happier and therefore [J] would be happier and less stressed as well. He does not wish to live primarily with his father.
Although it is acknowledged that the children have happy times with their father, their views about their parenting arrangements cannot be seen as sound, clearly expressed, independently formed views wanting to have additional time with their father – due to their need to please him and to avoid his reactions towards them if they do not comply with his wishes.
I have regard to the children’s opposition to any suspension of time with the father, indeed, I accept that their collective view would be that their time in the father’s household should be increased. However, having regard to the extreme pressure to which I am satisfied that the children have been subjected by the father, which the family consultant describes as “emotional abuse”, I place very little weight on the children’s views.
I have regard to the parents’ attitude to the responsibilities of parenthood and to their capacity to function as effective parents of the three children. Even at the interim stage, it is clear that the father has difficulty in prioritizing the needs of the children over his own needs or, indeed, from identifying that what the children require may be different from what he wants. That is a major deficit in his capacity to parent the children and a deficit to which I have regard in my assessment of whether it is in the best interests of the children for them to have a break from spending time or living with the father. I also have regard to it in the context of whether an injunction ought to be made for the protection of the children and which precludes the father coming into contact with them. I am of the view that I should make the injunction sought by the mother and supported by the independent children’s lawyer and that a power of arrest should attach to any alleged breach of the injunction. Ms N has referred to incidents which are indicative of the father having unacceptably low impulse control. These include climbing up on the roof of his home and threatening to jump when the police attended, going to the children’s school at a time when they were clearly in the sole care of the mother and asking them to accompany him contrary to the parenting orders then in force. I note also Ms N’s description in her assessment of the father’s presentation at his interview, extracted above at paragraph 31.
There can be no criticism of the father for saying what he thinks but it appears that his disposition was one which caused apprehension on the part of security personnel, and the counselor both personally and in relation to J. I am mindful of the comments of Dr S extracted in paragraph 24 of these reasons. It is an apparent inability of the father to moderate his behaviour that is a concern to me and I am satisfied that the children, and persons with care of the children, ought to be protected from immoderate behaviour by the father.

I have regard to the father’s withdrawal from this proceeding in the context of how he copes with the responsibilities of parenthood. The father’s withdrawal appears to be a pre-emptive act on his part but one which I interpret as quite reckless having regard to the likely consequences. I am satisfied that he was advised of the consequences. He had legal advice and was represented. That said, one does not have to be a lawyer to apply common sense and common sense could have sufficed.
I have regard to the effect on the children of precluding them spending time with the father. Suspension of time between them and the father will be perceived by them as drastic. I accept that opinion of the family consultant that the change “will be unpalatable to the children. They will fear the father’s reaction to this; they will worry about his mental state while he misses them; and they will miss the fun times that they do have with their father.” The children are likely to interpret the Order which I have pronounced as being punitive of the father and of themselves and the new arrangement is likely to lead to some resentment by them of the mother. I give careful consideration to the effect of the suspension of time on the children’s relationship with the mother because, as of today, it appears that the mother is the only responsible parent the children have. Anything which impacts adversely on the relationships between the children and the mother can have far reaching consequences on their ability to feel secure and appropriately and responsibly cared for in the way that children are entitled to feel. I also have regard to the fact that, absent some arrangement being entered into, cessation of the children’s time with the father involves a cessation of any time by the children with their sister, the child of the father and his new partner.
Against these negatives is the opinion of the family consultant, which I accept, that the exposure of the children to the high level of parental conflict in this case must cease lest the “consequences for the children on their emotional and social development are likely to be very detrimental”. One way to limit the conflict is to remove the father from the equation. It is far from ideal but this court is frequently left to decide what is the least bad result as far as the children are concerned. As the family consultant opined at page 7 of the assessment, ‘having a break from having time with their father could give the children a period of emotional reprieve.’
I am satisfied that the children, and particularly, J, require a period of emotional reprieve from the father and what contributions he makes to the parental conflict.
I have considered whether it is feasible and desirable to make a final order or an order least likely to lead to further proceedings. This hearing commenced as an interim hearing. However, part way through the father ceased to participate and his applications were withdrawn. That means that the orders sought by the mother are unopposed, at least to the extent that the father had notice of them (as I am satisfied he had). Generally, proceedings weigh heavily on families, there is a very real potential that parents become distracted by proceedings to the detriment of their ability to function as the best parent they can be. Frequently, finality is beneficial to children.
The mother envisages that, in due course, the children will have regular fortnightly overnight time with the father. However, that outcome is predicated on a number of things including the father returning the children to her at the conclusion of such periods and abiding orders of the court. I accept that the mother is not in a position to say today when the father’s time with the children should be re-introduced. I accept that the mother and the independent children’s lawyer are not in a position to conclude the proceedings today in spite of there being no opposition to the orders sought by the mother.

Conclusion

In all of the circumstances of the case I am satisfied that it is warranted that the children be placed in the sole care of the mother on an interim basis and that she should have sole responsibility in the interim for major long-term decisions affecting the children.
The father will not be permitted to communicate with the children or to approach the mother or the children either at the home or near the children’s school and a power of arrest will attach to this injunction.
If the father wants to initiate some time between him and the children it is necessary that he do so by making an application to the court and I have significantly abridged the time within which that application would have to be served. The application will be listed before myself, or if I am not available, Cronin J in Melbourne and can proceed by telephone or electronic means.
That concludes the reasons for judgment.

I certify that the preceding sixty two (62) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Bennett

Associate:

Date: 22 April 2009