SCVG & KLD
[2015] FamCA 110
•27 February 2015
FAMILY COURT OF AUSTRALIA
| SCVG & KLD | [2015] FamCA 110 |
| FAMILY LAW – Parenting – 10 years of litigation – Father persistent in pursuing shared care – Children now rejecting time – Father’s view is that the Court is obliged by the legislation to work towards shared care – Overriding consideration is welfare and in this case, protection of children – Limited telephone contact orders made. |
| Evidence Act 1995 (Cth). Family Law Act 1975 (Cth) |
| AMS v AIF (1999) 199 CLR 160 |
| APPLICANT: | Mr SCVG |
| RESPONDENT: | Ms KLD |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | SYC | 4380 | of | 2008 |
| DATE DELIVERED: | 27 February 2015 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Canberra |
| JUDGMENT OF: | Cronin J |
| HEARING DATE: | 2, 3, 4, 5 & 6 February 2015 |
REPRESENTATION
| THE APPLICANT: | In Person |
| COUNSEL FOR THE RESPONDENT: | Ms Tonkin |
| SOLICITOR FOR THE RESPONDENT: | Macphillamy's Solicitors |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Stagg, Legal Aid ACT |
Orders
That all extant parenting orders are forthwith discharged.
That the mother has sole parental responsibility for the children B and C.
That the children live with the mother.
That the Registrar of the Court (Sydney Registry) forthwith return to the mother all passports relating to the children.
That the father spend no face-to-face time with B and C.
That commencing on Sunday 8 March 2015, the father be permitted to communicate with B and C as follows:
(a)by telephone on each Sunday evening at 6 pm with the mother facilitating such call and she being responsible for ensuring that the children speak to the father at the appointed time; and
(b)by cards, letters and presents but not text messages or emails, with all such communications being sent by the father to the Independent Children’s Lawyer for a period of 12 months from this date and thereafter, the father may communicate in that same way direct to the children.
Pursuant to s 118 of the Family Law Act 1975, the father is restrained from bringing any application under the Family Law Act relating to the two children named in these orders without leave of a Judge of the Family Court of Australia.
The Independent Children’s Lawyer is discharged from the proceedings as and from 1 March 2016.
Save as to issues of costs, the applications and responses thereto are otherwise dismissed.
That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 16 March 2015 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 31 March 2015 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.
That all exhibits be returned to the parties after any appeal period has expired.
That 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:
That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.
IT IS NOTED that publication of this judgment by this Court under the pseudonym SCVG & KLD has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: SYC 4380 of 2008
| Mr SCVG |
Applicant
And
| Ms KLD |
Respondent
INDEPENDENT CHILDREN’S LAWYER
REASONS FOR JUDGMENT
The parents of B aged almost 13 years and C aged 10, have been litigating about them for almost ten years after their marriage relationship came to an end. Thus, when their parents separated, B was two years of age and C just a few months old. Despite two final hearings culminating in orders, the dispute has continued.
There are currently two issues for determination. First, should the parents continue to have equal shared parental responsibility (which is what they have under court orders)? Secondly, what time and communication (if any) should B and C have with their father?
The parties’ positions
The father seeks equal shared parental responsibility whilst the mother seeks sole parental responsibility. To the extent that a dispute about any issue might arise in the future, the father’s position initially was that the parents should go to a professional person to mediate and/or be guided to resolve any impasse. I consider that was still his position at the end. The mother’s position was that she wanted nothing to do with the father.
In relation to time, the father sought a transitional arrangement leading to a week-about or shared care parenting order. The mother sought the complete exclusion of the father from the children’s lives including in relation to telephone communication. Thus, the positions of the parties are stark.
There are other matters which I shall deal with although they were more of a peripheral nature.
The positions in final address
The Court had the benefit of the appointment of an Independent Children’s Lawyer. Mr Stagg began by referring to s 61DA(2) and submitting that the Court should find that there has been family violence between the parties as a result of the father’s behaviour. As a consequence, he submitted that the presumption of equal shared parental responsibility was rebutted. He submitted that in terms of decision-making, there was so much conflict and lack of communication between the parents that there was no prospect that they could negotiate any major decision about the children’s lives. His position was that an order compelling the parties to work together about decision-making would simply lead to further conflict.
In respect of the father’s relationship with the children, he submitted that there should not be any time although it would be appropriate for a limited period of time for there to be telephone communication. He observed that B had made clear she wants to decide for herself what sort of a relationship she will have with her father and the expert advice to which I shall turn below, was very clear. Mr Stagg did not support the father’s position.
Ms Tonkin of counsel for the mother adopted a similar position to the Independent Children’s Lawyer in relation to rebutting the presumption of equal shared parental responsibility on the basis that the Court should find that there had been abuse perpetrated by the father which had caused serious psychological harm.
Ms Tonkin pointed to the position of B to which Mr Stagg had referred and indicated that her views should be given significant weight. She observed that the father showed little or no empathy with the mother’s position and was incapable of supporting the emotional and psychological needs of the children. As such, Ms Tonkin submitted that the evidence supported the position that the mother had adopted at the commencement of the proceedings.
The father’s position was a much more technical one. He submitted that the Court should begin by looking at the explanatory memorandum to the 2006 amendments to the Family Law Act 1975 (Cth) (“the Act”). He said that this document added colour to the case predominantly because (as he acknowledged) this was the Court being asked to exercise its discretion. He observed that French CJ had written extracurially about judicial activism and purposive interpretation of legislation. Judicial activism was described by the Chief Justice as an approach in relation to statute law where a court consciously adopts an interpretation of statutory language which goes well beyond the ordinary import of the words of the Act because the court believed that that extended interpretation was necessary to give effect to the true legislative intention or because the court wished to frustrate an unpalatable legislative intention. The father’s position was that the explanatory memorandum set out very clearly what the parliament wanted the court to do particularly in relation to the question about shared parental responsibility. The father’s written submission was drawn largely from his interpretation of the legislator’s intent. In my view, s 60B to which I shall turn, is a very clear directive from parliament that the court’s function is to ultimately make a decision which is in the best interests of children guided by the objects and principles set out in the Act. There is nothing in this case which would justify an accusation that the court is wishing to frustrate an unpalatable legislative intention. On the contrary, the court’s mandate is to work out the future of these children to give them the best chance in life to become responsible adults.
Because the father focussed very much on the legislation, it is important that I refer to the work that he had done. In respect of the explanatory memorandum, he observed that the government had intended the legislation to bring about a cultural shift in how family separation was managed away from litigation and towards cooperative parenting. Below I will indicate whether there has been a shift for this family. The government has had a long standing policy of encouraging people to take responsibility for resolving disputes themselves in a non-adversarial manner. Evidence of that can be seen in the Explanatory Memorandum but also in the creation and funding of the Family Relationship Centre. Section 60I of the legislation required the majority of people to attempt to avoid litigation by requiring them to attend a family dispute resolution practitioner. For its part, the Court required adherence to pre-action procedures. Those steps were designed for parties to sort out problems themselves. That possibility and prospect too can be examined in the light of what these parties have been through for ten years.
The father’s case was that the legislation contained pathways but as he acknowledged, ultimately it came down to a question of discretion. That discretion is and must be, guided by the legislation.
In his final address, the father acknowledged that the litigation over the children had been going for a long time and he acknowledged that a significant part of that was his fault. He observed that there had been orders for joint parental responsibility and he wanted those continued. Having regard to the fact that there have been two trials in this case over those ten years, one can examine whether or not those court-ordered solutions have been successful and if not, is it possible to change order to achieve a positive outcome for the children? The father’s position was that both parents had to make it work and he added that he was willing. It was, he said, time to draw a line in the sand over personal feelings. He then added, that it was important to observe that parliament would never have allowed parental responsibility to be sabotaged by one party and he pointed to at least one example albeit some time ago, where co-operation could be seen to have occurred between he and the mother. To the extent that the mother maintained co-operation would not work, the father’s position was that that was a technical ploy. Sadly, for the reasons that are set out below, I have to disagree.
There is no prospect of out of court resolution in this case.
In terms of time with the children, the father submitted that his face to face reintroduction of the children after almost two years of court-enforced absence was supported by expert evidence and that any statements by the children (including those advocated by the Independent Children’s Lawyer and the mother) were simply a reiteration of statements by two children who could not understand the consequences for their future life by the statements they made. He expressed an interest in therapy but asserted that whatever it was to be resolved, the problems had all come from the position adopted by the mother to exclude his relationship with the children over the previous two years.
The father proposed a number of additional orders at the end of the case including consenting to an order under s 118 of the Act that he would not bring any application without leave of either this Court or the Federal Circuit Court. He also sought various orders associated with the children about schooling, medical treatment and religion.
The Court’s position relating to proposals
Whilst the Court is not bound by the proposals advanced by either parent, it is important to say that they set the parameters of the dispute. Providing the parties have had an opportunity to address various options including outside the parameters, the Court is entitled if not obliged, to come up with a solution which it finds best suits the interests of the children. Thus, a rejection of a parent’s proposal is often necessary to avoid the adverse effects that would occur in the Court’s view, if adopted (see generally AMS v AIF (1999) 199 CLR 160 per Callinan J and U v U (2002) 211 CLR 238 per Gummow and Callinan JJ).
In this case, for the reasons that will follow, I have rejected the proposals of each party but it will be obvious that I find that it is in the best interests of the children to adopt a position much closer to that of their mother than their father.
The history of the litigation.
Because of the way in which the proceedings were conducted, it will be necessary to traverse some of the past litigation but also a variety of bizarre and criminal events that have, according to the children’s mother, now contributed to the views of the children.
For his part, the father maintained that various statements attributed to the children were reflective of some of their own views but more likely, were a result of the deliberate but also unconscious alienating behaviour of the mother. I find however, for the reasons set out below, the children are indeed articulating their own views.
The parties
The parties are Mr SCVG (to whom I shall refer as the “the father”) and Ms KLD (to whom I shall refer as “the mother”).
The father is now 62 years of age and semi-retired. He is a current member of a number of professional bodies. He has two adult children from an earlier relationship. His relationship with those children was also the subject of some focus in this hearing.
The mother is 52 years of age and not engaged in paid employment. She cares for the children on a full-time basis. She was represented by counsel.
The father and the mother married in 2001. The marriage lasted just over three years. Controversially even now, the mother left Sydney at that time and took the children to rural New South Wales outside of Canberra. The father sought their return to Sydney at that time but a judicial registrar and on review, a judge, declined to make such an order. Ten years on, the father still maintained that the mother kidnapped the children. Despite that issue being litigated in the past, the father’s position is now that he will move to the Australian Capital Territory area which would enable his proposal for time with the children to be implemented. Whilst that sounds simple enough, there is little doubt that part of the dispute over recent years between the parties and, as late as 2014, was that the father was endeavouring to convince B that Sydney was the better place for her schooling. The father’s disdain for Canberra and the rural area where the children now live, was significant and very obvious.
Throughout this extensive litigation, the father has been mostly represented by lawyers. In this hearing, the preparation including the drafting and filing of affidavit material, was undertaken by solicitors but in the days before the commencement of the trial, the father terminated their instructions. It was noticeable however that his solicitor was present at various times during the hearing and at least in final address, the father consulted him.
As a litigant, the father was unfailingly courteous. Despite comments he wrote over preceding years and statements he made to professionals about various judges, I found him focussed, articulate and desirous of being given an opportunity to present his case fully. Many questions were put to the father about historical facts where his response was that he could not remember what was said or what had occurred. I did not find him evasive but, as part of his case, he annexed a report of a psychologist Dr D who considered that after discussion, there may have been problems with the father’s short term memory. Dr D’s evidence is referred to below. Dr D described it, and most likely, much time has elapsed. In most cases where the father’s response was that he could not remember what had occurred, there was objective corroboration that the event had so occurred. Thus wherever I have found the position open to any doubt, I have said so below.
Notwithstanding the absence of representation, I still explained the process to the father and where he was uncertain about matters, he asked intelligent questions.
This case is not about the father’s behaviour as a litigant; it is about his approach (and that of the children’s mother) to parenting. The focus of the Court must be, and remains, what is in the best interests of these children factoring in all of the mandated guidelines of the legislature to which I have earlier referred.
Past litigation
Within weeks of separation, litigation began. Since then, the parties have participated in trials in this Court, the Federal Circuit Court, the Full Court of this Court, and indeed special leave applications to the High Court of Australia. There is a pending claim for relief in a New South Wales Local Court for what the father described as money due by the mother under a loan due to his family trust. He drew that application personally. He indicated in final address that it was only money and he was not particularly interested in pursuing that if it solved the problem of his relationship with the mother. I doubt it will. On the limited understanding that I have of the nature of that particular application, it was hard to see how it was any more than a misguided understanding of contract law.
In April 2006, after a contested hearing of what appears to have been nine days over many months, Moore J ordered the children live with the mother and the father’s time take place on alternate weekends. Her Honour also ordered that on a quarterly basis, the father spend five consecutive nights with the children but that was to change once B began school. In the hearing, Moore J dealt with the evidence of a large number of medical experts some of whom were not required for cross-examination.
The orders made by Moore J involved significant travel by virtue of the fact that the parents were living a long way apart. Her Honour’s reasoning does not matter for my purposes save that it was said by the father that she misunderstood the evidence.
The father appealed against her Honour’s orders and in May 2007, the Full Court dismissed his appeal ([2007] FamCA 478). In their reasons, and the words resonate throughout this case, the Full Court said:
76.The trial Judge clearly accepted this evidence as her Reasons for Judgment make clear:
It is notorious and needs no expert evidence to conclude that children’s healthy development will be enhanced if their love and respect for a parent is maintained intact and not undermined. [The father’s] attitude towards the children’s mother and some of his behaviour towards her, on occasions in their presence – which I accept to have been variously rude, obstructive, uncooperative, loud and insulting – has put the children’s well-being at risk. As Dr [Q] commented, if the reports of his behaviour are accepted [and they are] it constitutes a risk to the children akin to the impact on them of exposure to domestic violence which is also notoriously well known and needs no elaboration. I accept it is behaviour from which they need protection and I also accept as sound her observation under cross-examination that behaviour of that kind would be a reason for limiting their exposure to it by limiting contact.
77.It is reasonably apparent that, as the trial Judge, as she was entitled to, had accepted the “account of the maternal family” in terms of the “behaviour which the father displays towards the mother and her family”, the factual basis of acceptance of Dr Q’s expert opinion evidence that the situation would be “very damaging to the children” and be “kind of like being in a domestic violence relationship, which is very harmful to the children” was established. That conclusion provided a logical foundation for limiting contact between the children and their father (See Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705). That is the basis upon which her Honour limited contact to less than would otherwise have been “optimal”, as her reasons make clear.
Then in concluding that particular ground, and noting some years later that the father still disagrees, their Honours said:
81.Whilst other interpretations of the evidence may have been open to the learned trial Judge that is not the test. We are not persuaded that her Honour “misunderstood” Dr Q’s evidence or that any aspect of the exercise of her discretion in that regard, or any step in the process of exercising that discretion has been shown to have been erroneous. We thus reject this challenge.
There were other grounds of appeal which included arguments relating to the way in which Moore J had dealt with the changed legislation in 2006 but those grounds too, were unsuccessful. A special leave application to the High Court of Australia was also unsuccessful and accordingly, life for these children went on.
In July 2008, the father sought to vary the orders of Moore J. He filed an application in the Federal Magistrates Court. The catalyst for that appears to have been a serious hospitalisation of C. C has been diagnosed with a particular disorder. She had cut herself and infection required hospitalization. Pneumonia was present but missed. I have not delved further into this issue but it was (and remains) evidence that the father blames the mother for what seems to me to have been poor medical care by the hospital. This concern of the father continues to underpin, in part, his concern about the lifestyle and care provided by the mother. It arises in relation to inter alia, general safety issues on a farm.
In the Federal Magistrates Court, the father sought orders for a shared care arrangement predicated on the mother living back in Sydney. The mother initially and unsuccessfully, sought a summary dismissal of the father’s application. Ultimately, that led to a six day hearing with judgment delivered in September 2010 by Altobelli FM. Altobelli FM made orders that the children continue to live with their mother in rural New South Wales and have contact with the father for up to three times in a four week cycle until B was to turn 12 years of age at which time, it was to revert to a two week out of four week cycle. A variety of other orders was made but one of which remained clear, was that the parties should continue to have equal shared parental responsibility. His Honour was of the view (para 175 of the judgment) that because of the difficulties that the parents had in communicating and their low levels of trust, there needed to be prescriptive orders about sharing and communicating information, consulting with each other and telephone communication. Despite his Honour’s reservations about those matters, the order for equal shared parental responsibility was still made.
An appeal was lodged against his Honour’s orders and not about parental responsibility but that appeal was dismissed. The father then sought special leave of the High Court of Australia and that too was refused.
In December 2012, the father sought new parenting orders in the Federal Circuit Court. Only a few months later, the mother learned of his criminal behaviour and she sought suspension of the contact orders. With another parenting trial looming, the Court transferred the proceedings to this Court.
These proceedings
Despite the litigation and particularly that relating to decision-making and the sharing of time, the current proceedings were more or less a repetition of the previous litigation.
I am required to make a number of determinations as to facts. The burden of establishing a particular fact in contention lies with the person making the allegations. The standard of proof is the balance of probabilities. The provisions governing how that is determined are set out in s 140 of the Evidence Act 1995 (Cth).
In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 which was the forerunner of s 140 of the Evidence Act, Latham CJ said there was no mathematical scale according to which degrees of certainty of intellectual conviction could be computed or valued but there were differences in the degree of certainty which were real. His Honour said that the standard of proof required by a cautious and responsible tribunal would naturally vary according to the seriousness or importance of the issue in dispute. In this case, the consequences of the proposals of the mother are, on the one hand, very serious for the children because they would remove their father from any significant role in their lives. On the other hand, the consequences for the children if their mother is right and the father’s proposals were adopted, would potentially lead to serious psychological distress. In Briginshaw, Dixon J said the court had to feel an actual persuasion of its occurrence or existence. That is, there has to be a reasonable satisfaction that an event has occurred. Rich J described it as a comfortable satisfaction that the tribunal had reached both a correct and just conclusion.
In this case, there were many disputed facts put in issue which were said to affect the outcome. For example, much was said about the father’s conduct. Its relevance lies in whether it explains the reaction of the children to any future contact with him. It also remains relevant because he alleged that the mother had alienated the children both consciously and unconsciously. At times, he used words such as “brainwashed”, “mother’s advocate” and, referring to the past, “kidnapped the kids”. I have carefully considered the facts to decide whether they justify his assertions because if they do, the position adopted by the children in what I perceive is a rejection of their father is unjustified. Even if that has occurred, on the balance of probabilities, does the evidence indicate that the position adopted by the children can be undone so that a relationship can be resumed and enhanced?
Accordingly, any determination hereafter has been made with those concepts in mind.
Professional reports
Each of the parties relied upon a variety of reports from professionals who were not called as witnesses and whose evidence was not in affidavit form. Attached to his affidavit of evidence in chief, were professional reports prepared for proceedings in the New South Wales criminal court. In the mother’s case, and also that of the Independent Children’s Lawyer, various reports were referred to in cross-examination from past proceedings between the parties but also notes that were produced under subpoena by professionals to whom the father had been referred.
The mother objected to the admission into evidence of the reports annexed to the father’s affidavit at least in so far as they went to the truth of matters because the father did not call the witness to give that evidence. Because the reports were apparently prepared for the criminal proceedings to explain the conduct of the father, they were certainly relevant in these proceedings contextually, to explain how the children have got to the position that they now have articulated to the experts in this case who did give evidence. I have therefore given those reports that I found relevant some weight at least where the statements were unchallenged.
From the subpoenaed material, were the father denied making the statement or had a different view as to the interpretation from the notes to that which was put to him by the cross-examiner, I have accepted the father’s intent unless the surrounding and/or corroborative material indicates clearly the opposite.
More importantly, the evidence in this case comes from the specific incidents described by the parties. To the extent that those incidents have affected the children, I have carefully considered how the children became aware of them and what impact it has had on them. Those impacts have been viewed by Dr E and Mr F. I shall deal with Dr E separately in respect of what weight I should give to his opinion which might be said to be incomplete but there can be little doubt about the views of Mr F as he had every opportunity to consider all of the parties’ actions and statements. His evidence was the subject of cross-examination by all parties.
The father’s conduct after the orders of Altobelli FM
Much time was spent traversing the conduct of the father (and also the mother). Some of the conduct of the father related to matters that he readily admitted and indeed explained. In my view, no particular incident is more important than any other because the cumulative effect of all of those incidents is that B has for a year now, expressed a fear of the father and very recently, a strong desire not to spend any time with him. C is expressing a desire for no contact as well. As indicated earlier, a result of the mother becoming aware of the father’s criminal conduct in early 2013, the children’s time with him ceased. His relationship subsequent to the cessation of face to face contact has been limited to daily telephone contact.
Having lost the proceedings as he saw them before Altobelli FM, the father sprayed the word “slut” on the residence of Moore J albeit that her Honour had then long been retired. He sent her a card which contained dog faeces. He also sent a Father’s Day card to Altobelli FM which also contained dog faeces and language which was appalling. He sent a card to the mother’s solicitor expressing views about that solicitor’s own family situation. It was very disconcerting to hear in the case that the father obtained the information that formed the basis of that last card from his own solicitor.
In addition to those matters, the father downloaded a letterhead of the Family Court of Australia and wrote to a number of professional bodies of which the former Justice Moore was a member under the forged signature of Chief Justice Bryant urging those organisations to terminate their professional relationship with the Honourable Ms Moore.
In relation to all of that behaviour, the father was charged by the police and prosecuted. He was released on State and Federal good behaviour bonds with a condition that he continue to seek out and take the advice of his psychiatrist. In the proceedings before me, the word “brain snap” was used to explain the father’s conduct. In the sense that the word was used to mean an instantaneous and uncontrolled action, none of the matters to which I have referred could be said to have fallen into that description. Over a period of time, the father searched out and found the address of the Honourable Ms Moore but his explanation (as distinct from justification) was also somewhat disconcerting in that he obtained information about Ms Moore’s past personal history from his own lawyer. I have now twice made that statement and I wish it to be correctly noted that it was not the solicitor currently advising the father.
Before turning to the evidence of the psychiatrist who took up the position of assisting the father, it is important that I observe that it is not just those matters that could be seen as inappropriate conduct. I turn to those matters below.
It is important however to observe that at all times, the father in cross-examination acknowledged that his behaviour was appalling, that he regretted having done what he did. He attributed his conduct to the dilemma that he faced. I am not satisfied that that is an adequate explanation but even if it was, it says nothing about the impact on the victims. Thus, to understand a medical explanation for the father’s behaviour, I turn to his own psychiatrist.
Dr G
Dr G is a psychiatrist. His evidence was that he had seen the father on 19 occasions. He was the psychiatrist nominated by the father to the New South Wales court. There was concern expressed about just what Dr G was treating the father for. Dr G initially did not respond to a subpoena to produce his file. His ultimate response was that the subpoena was lost and therefore its absence did not prompt him to do what had to be done. He kept no notes of his 19 sessions with the father. When his “file” was ultimately produced, it contained very little. There were few (if any) invoices that would have established the 19 consultations. That aside, I found the evidence of Dr G very helpful.
It was disconcerting that there was no affidavit from Dr G. Exception was taken to him being called by both the mother and the Independent Children’s Lawyer. The father had been represented by lawyers almost until the trial began. However, with counsel’s cooperation, arrangements were made for a “proof of evidence” and a video link to be organised so that Dr G could give evidence. The proof of evidence was of little probative value.
Dr G described treating the father for stress. He had not seen him for some 10 months prior to the commencement of this hearing. He diagnosed the father as suffering from post-traumatic stress disorder which he said was evident right from their very early meeting. He opined that stress overwhelmed people but particularly the father such that it overtook his coping strategies.
Importantly, Dr G conceded that the father needed therapy and that if started, it would be a lengthy process. He agreed that the entry into therapy had to be on a voluntary basis and that the patient and therapist trust had to be first established.
In cross-examination, Dr G agreed that there were triggers that had caused the father to behave as he had. One of the possibilities from Dr G’s point of view was that these triggers, if activated, would upset the father and his behaviour could recur. There is a distinct correlation between that behaviour and the response of the children. When the father is assertive about things, the children but particularly B, shrink from him. I refer to the Opera House incident and religion disputes generally below as examples.
In her evidence, the mother made clear that she did not believe there was any prospect of the father changing even with therapy. Whilst the father acknowledged that he would vigorously pursue therapy, nothing much has happened since the middle of 2014 when the final hearing was foreshadowed to give the mother comfort that the father was serious about wanting to get the help contemplated by Dr G. The psychiatrist had not seen the father for some ten months.
Dr G indicated that his aim was to assist the father to manage stressful circumstances. He said that he was intending to try and help him understand that he needed to be a bit more flexible with the things that he had to deal with. Dr G thought that when people were pushed beyond their limit, they behaved in extraordinary ways. As he said, it needed to be understood that if someone was pushed beyond “the pale” they behaved in ways over which they had little control and regressed into much more juvenile behaviour.
Notwithstanding the serious criminal offences were not “spur of the moment” or instantaneous responses to a trigger but rather quite calculated and occurring over time, they show little insight on the father’s part in relation to the impact of that behaviour on not just the adults around him but also his own children. That can be seen in the responses of the children when he told them of the prosecution outcomes. As Dr G said, what was being repeated was dysfunctional behaviour.
That behaviour is not just confined to the mother and her legal practitioners. He described judges as evil, corrupt and biased. When questioned about that, he restricted his ire for those who were involved in his case. That must be so because he spoke glowingly about the Court’s approach to the so-called Italian children case (mentioned shortly). Yet, it was, as indicated by his correspondence, part of his strategy to get the mother to agree to what he wanted. Indeed, correspondence tendered in evidence shows that at one point, the mother did consider a shared care. That option has apparently long gone.
Dr G distanced himself from terminology such as “narcissistic” and “egotistic”. He said that these were labels and they assumed an etymology. He said that the labelling as such missed the point that it was a traumatic response to some kind of trigger. In the view of Dr G, the father had been in a traumatic state because he had lost his children. The difficulty with the strength of that argument was that the father was still having regular time with the children both in Sydney and in Canberra up until early 2013. Thus, this loss of getting what he wanted, gave rise to the trauma. The father acknowledged that this behaviour created a bad impression on the children.
As for the solution, all Dr G could say was that he would make himself available to help the father develop better skills to manage traumatic situations but as he said, he could not guarantee anything in relation to the relationship between the father and the children.
In my view, if this therapy proposed by the father and encouraged by Dr G is to work, the father must be able to give some tangible proof to the mother to show that there will be an attractiveness in the relationship from the perspective of the children. The father’s position was that the expert evidence of psychiatrist Dr L, to whom I shall refer, was that young girls entering into womanhood needed a father figure involved in their lives for “validation” purposes. Having regard to the evidence of Dr G, I suspect that the only value for the children in having that father figure in their life is if they are attracted to it.
The father’s contact is terminated
When the proceedings came back before this Court in early 2013, the father agreed not to pursue time with the children under the existing court orders and the proceedings were transferred from the Sydney Registry of the Court to Canberra. It is important to note that he agreed to not pursue his time with the children on the assumption of an early hearing.
The matter came before Faulks DCJ at which point, and when represented by counsel, the father retracted his undertaking, requiring his Honour to determine the appropriateness of the time between the father and the children. His Honour ordered a report from a family consultant which he expected would take a month. He ruled that in the intervening period, the balance of competing provisions in s 60CC(2) favoured protecting the children from psychological harm.
The Deputy Chief Justice suspended the father’s time save for the telephone contact. Consistent with his past approach, the father appealed and his application to the Full Court was later dismissed. The curious feature of that was that it delayed the further hearing. He then pursued a special leave application and that too was refused.
In the evidence of Dr E to which I shall turn, the father told Dr E that his outstanding application for special leave, of which he was very proud, was likely to be successful. His optimism was misplaced.
Conduct in the previous hearings
In the judgment of Moore J in 2006, her Honour made reference to a “recurring theme” relating to conduct by the father, one aspect of which was said to be his “offensive manner in his communications” with the mother. Her Honour gave a specific example about a text message in which the father called the mother a liar. Accepting that the relationship of the parents was then very strained, such an exchange was probably not unusual (but certainly not acceptable). But ten years on, not much seems to have changed.
In cross-examination before me, the father made clear that he did not accept the reasoning of Moore J. It is difficult for me to simply ignore her Honour’s finding of fact about the recurring theme. The judgment is littered with findings about the father’s criticisms of the mother as a parent and his disparaging language of her and her family including in front of hospital staff.
In the subsequent proceedings before Altobelli FM in 2010, his Honour found that there was no evidence to justify a similar finding to that of Moore J relating to “impulsive, vindictive, intimidatory and offensive behaviour”. His Honour found that that sort of conduct was limited to a period of about five months in 2005. The judgment of Altobelli FM was delivered in September 2010. His Honour rejected the experts’ description of the father as “narcissistic, controlling and with an obsessional personality style”. His Honour was not prepared to accept that the pursuit of proceedings through the courts with the determination to prevail was evidence of narcissism or obsessional personality style. Be that as it may, I find the children were witnessing the behaviour of their father towards their mother’s family and that it has now reached crisis point to the extent that the father’s constant behaviour explains the reticence of the children.
It is important to also point out that Altobelli FM was less than complimentary of the mother as well. His Honour found that she was disingenuous. Alerted to that observation, I was very conscious of the father’s assertion that there was both deliberate and unconscious alienation by the mother of the children. The mother too has been through years of litigation but nothing in the evidence suggested that she has deliberately orchestrated the position adopted now by the children nor that she unconsciously speaks in a disparaging or even critical way of the father. Whilst the father said that he had to take a significant portion of the blame for the position adopted by the children, nothing I heard indicated that the mother could be “blamed” for anything since 2010. The mother said that she encouraged the children to speak to their father and when the children raised the subject with her of why their father behaved as he did, she said nothing critical of him. That evidence is corroborated by the position adopted by the children to the three experts whose evidence I turn to below.
What was the father’s other conduct?
At various times the correspondence between the father and the mother’s lawyer reflected poorly on the father. The spelling of the solicitor’s surname and the way the father addressed him were described by the father as simple errors. The consistency of that approach leads to a finding that he did it deliberately. Indeed, in respect of at least one incident, the father acknowledged his behaviour had been done to irritate the recipient of his missive. He said it was “pay-back” because the lawyer had advised the mother to “take his children away”. Whilst the solicitor should be the objective conduit to avoid confrontation between the parties, I accept the solicitor brought the matters to the mother’s attention and that had an adverse impact on the mother. I can understand how some litigants might see the opposing lawyer as the enemy but that could not be said here because the father is an intelligent and educated man.
In correspondence with the mother, things were not much better. He wrote to her making reference to a well-publicized court case in Brisbane in this Court which he described as “kidnapping of Italian girls overturned”. His reference was to point out to the mother that the courts should order shared care rather than, as he described it, aiding and abetting some others to benefit from committing the crime of kidnapping with the aid of some biased judicial officers. Whilst this might be puffery, its persistence explains the mother’s air of resignation and the children’s current response. There were similar emails in October 2010, May 2011, June 2012, August 2012, October 2012 and December 2012. I find it was relentless. The emails were not innocuous; they were powerfully indicative of an attempt at control. The father’s behaviour was unreasonable even if he thought he was doing it for his children.
The father sent a toilet cistern as a present. He described it as part of a family joke. I find it was not funny.
In another incident, the father sent a toilet seat. That was directed to the maternal grandmother for whom he had no respect. He made clear to the Court that he thought that the problems he was having were caused by the maternal grandmother who was influencing the mother. The children have a very close relationship with not only their family members but particularly their grandmother.
The orders of Altobelli FM required the father to return the children by air from Sydney to Canberra. There was a dispute between the parties as to how often the children were late for school. The father’s explanation was that he had difficulty getting flights. He disputed the suggestion that there were 18 occasions in 2012 when B was late for school and in reality, it probably matters little to her education but the dilemma is that she told a family consultant that she was upset about being late. When questioned about how he explained the lateness, the father simply denied the number of occasions but explained B’s complaint as simply that she was acting as her mother’s advocate. Again, there is no evidence of that. The evidence of Ms W the family consultant involved by the order of Faulks DCJ and which I set out in some detail later, was not challenged so I accept her view that the children are “legitimately fearful” of contact.
Until very recently, it had been the father’s position of wanting to get the children to return to Sydney. After the father’s time was suspended because of his behaviour, he attended upon a Mr I, a psychologist, for the purposes of endeavouring to help relate to his children. Mr I’s notes were put to the father. Mr I recorded the father’s language such as working out a “new strategy” to “convince the children to live in the city”. The notes written by Mr I were admitted into evidence by consent of all parties. Mr I had written as part of this strategy, that the father wanted “full control” over the children. The father said he did not recall saying that but that it was possible he did because Mr I had written it down. He said that he had not intended that to happen because what he really wanted was a shared care arrangement. To explain his intentions about raising the Sydney school issue with B, the father said that what he was meaning was that it concerned him that B was giving up an opportunity to attend a good school in Sydney. In the context of the opinion of Dr G, I am not convinced about his explanation. I find he was, at that time, endeavouring to get at least B to return to Sydney. The consistency and openness of the father’s approach to various professionals satisfies me that he did say what Mr I wrote. He used expressions about the mother’s family such as “brainwashing” the girls.
J
When B was spending time with the father some years ago, she witnessed an incident between the father and his older child J. B described it as a violent incident under which the father told J who was then living with her mother from whom he was long-separated, not to come back to his house until she apologised for being rude to B. This incident arose out of two things. The first was that J had “graffitied” the walls of her bedroom and the second was that she had been rude to the father’s partner and also to B. When the father was questioned about all of this, he acknowledged that J had damaged the walls of a bedroom that had just been painted. He said he was a little bit angry with J. Notwithstanding that, I find it was a considerable period of time before his relationship with J was resurrected. I am unclear as to the nature of that relationship now save that it is still limited but there seems to be no contact between J and B and C in any event. When asked what his relationship was like with J now, he said there was telephone contact and regular emails. I accept on that evidence that the relationship is not as good as it could be and whilst J may have behaved badly, the father’s reaction was not good parenting. This incident shines some light on the father’s behaviour towards B in 2013.
The father had wanted B to undergo a school selection process which might have given her an opportunity, if successful, to attend a school in Sydney. He pressed her in telephone conversation and B not only declined but was quite resistant. The perception of B and C thereafter was that the father treated B as if she did not exist. The mother observed B’s reaction and plausibly told this Court that B still wanted a relationship with her father but not in a way that he behaved. I accept he did treat B in an offhanded way as he had with J and in my view, that was poor parenting.
The Opera House incident
In one of the rare incidents that the father has seen B since the contact ceased in March 2013, it too went badly wrong. The children were attending the Sydney Opera House for a school event. B was with her class under the control of a teacher. At the conclusion of the event and as the children were being returned by the teacher to their parents, the father stepped out and began to pull B aside so that he could take a photograph. The father denied that there was anything improper in what he was doing or that it caused a difficulty. I disagree. The principal of the school wrote an incident report which was admitted into evidence. No-one required this evidence to be called and tested even though it was controversial. Even though the father was unrepresented, he and his lawyers had had this annexure to the mother’s affidavit for some weeks. Bearing in mind the description that B later gave of what occurred, there is a remarkable consistency between her position and that of the school.
The teacher described the father as speaking very loudly requesting B to give him a hug. The teacher did not know who the father was but said that B seemed to recognise him. However, she described B as visibly shaking, nervous and agitated. The child was tightly holding the hand of a friend. The teacher described the father as pulling B towards him and kissing her on the cheek which gave the perception to the teacher that B was fearful. She also described the father as pulling B towards him indicating that he wanted to take a photograph with her and she was turning her body away from him but appeared to “succumb” and allowed the photograph to be taken on the father’s mobile telephone.
With a large group of children, this teacher was no doubt under some pressure. She described moving the children along and the father wanting to detain the group so that he could have the photograph taken. It was the teacher’s view that he said “Just a minute you fucking idiot, you fucking idiot”. The father denied using that language but I have little doubt that he did. I make that finding for two reasons. First, the father is now well known for persisting in getting what he wants and resisting opposition. Secondly, throughout these proceedings including during the hearing, the father gave every indication that this sort of language was normally part of his daily life. I return to that when I consider the cross-examination of the father. What is significant about this is that it was not just B who was affected. The teacher described other children as visibly upset.
The teacher described B later apologising to her for her father’s behaviour. It is implausible that B was influenced in some way to exaggerate that story. The father produced the photograph from the telephone in cross-examination in an attempt to persuade the Court that there was no indication of fear. It is impossible for me to say one way or the other but nothing in the photograph indicates a smiling child. I find in the circumstances that the father’s behaviour on that night was appalling but consistent with his stridently held views that he will do things his way. That sort of behaviour has had a significant impact on how the children perceive him.
Religion is an issue
On what would seem to be an innocuous event but ultimately indicative of the difficulty of shared parental responsibility, the parties had very different views about religion. The father nominates his religious denomination as Catholic and the mother, Anglican. In her evidence, the mother said that she was not a significant participant in church activities. The parties however, could not even agree on a baptism of the children. When the father learned that the mother was going to baptise the children in the Anglican faith, he objected. Whilst the mother had apparently already organised it, it did not proceed because the father contacted the minister who said he would not proceed bearing in mind the objection of the father. On the other hand, the children were then baptised in the Catholic faith but against the mother’s wishes. The father said that the mother did not object but that is different from a cooperative parenting arrangement where decisions are made collectively and with the children’s future interests in mind. There is a significant inconsistency between the approaches of the parents. As can be seen from that example, the father will do things his way even to the point of thwarting the mother’s position.
The father having acknowledged that religion was one of the “big 5” things referred to in the definition of major long-term decisions, it is interesting to see how his position has changed to what he now articulates. In March 2013, he wrote to the mother saying that as the children were “practising Catholics” and he had discussed with them the importance of their duties in that Faith, she should ensure that she took them to Catholic Mass that weekend. (This of course was just after the cessation of face to face contact.) That church attendance did not happen so on the following day, he wrote saying the mother had “breached” the orders. There was no such order. He ended his note by saying “shame on you”.
A week later, the father wrote saying that the mother was continuing to breach the order on the same basis. Some weeks later, a similar message was sent but this time, he said:
Please take the girls this Sunday and if you don’t want to join them you can wait outside or in the car for them.
In the following month, June 2013, he repeated the assertion that attendance of the children at church was an obligation of the mother. That email is of some significance because it arose out of discussions between the father and the children. The father did have discussions with the children on the subject; the mother’s evidence is that church attendance in her own Faith was not a major issue. The appropriate inference I draw is that the subject of whether they were attending church and the practise of their Faith in April to June 2013 was something that was raised by the father to give rise to his complaints about the mother’s lack of responsibility. There are two relevant points arising out of this. First, this is indicative of the problems of equal shared parental responsibility for these parties. It is not just that they cannot agree on what Faith they will inculcate in the children, it is also that the father is critical of the mother if she does not agree with his views. Faith is a part of the rich tapestry of parenting and Parliament deemed it so by identifying it as a major long-term decision-making issue. Nothing I heard indicated that there was a requirement in the Catholic Faith for strict adherence to church attendance. It was simply the father’s desire for that to occur in a period of time where he was excluded from personal attendance in the children’s lives.
Each parent must have the right to raise the children according to their views. To criticise the other parent for not agreeing with them, is not responsible parenting. The father’s recent concession gives little comfort that the situation will improve when I take into account the views of Dr D and Dr G.
The second point is that the father blurred the boundaries between a court order and the responsibility to make joint decisions (s 65DAC). His assertions about breaches of orders (that did not exist) highlight what Family Consultant Mr F spoke of concerning supporting the mother’s role as the primary attachment figure. It would seem that can never occur.
At the conclusion of the hearing, the father told the Court that he would agree to the children being baptised in the Anglican Church but then added, provided that they attended church on a regular basis. When I pointed out to him that what he was doing was imposing conditions, he subsequently said he would “withdraw” the condition. All of this is indicative of his unusual style of doing things his way.
The breast cancer issue
In March 2013, the mother was diagnosed with malignant breast cancer requiring a full mastectomy of her right breast and the removal of 19 right lymph nodes. The children remained in her care during that period which included here undergoing surgery.
A controversial issue in the proceedings arose in June 2013 when the mother received 19 emailed photographs from the father. These emails were said by the father to have been directed to C because of the child’s interest in art. The documents produced by the mother depict statues in an exhibition somewhere along the Sydney Harbour foreshore. The statutes appear to be of a naked woman in various poses. The significance from the mother’s perspective lay in one particular photograph which she described as depicting a large breasted woman with the father touching the right breast of the statue. According to the mother, the particular breast involved was the same breast that she had had removed in the cancer treatment. Perhaps unsurprisingly with the level of acrimony and distrust, her view was that this was sent deliberately to cause her distress.
The father waited until cross-examination to explain in more detail what this was about. He said that he had seen these statues and knowing C’s interest in art, he had photographed them and then sent them by email to the only address to which he normally corresponded with C. He explained that the particular one in relation to touching the breast was innocuous because a close examination of the statue shows a woman riding a skateboard about to fall forward and he was underneath her to prevent her from falling. In his view, it was simply coincidental that his hand was in the area of the woman’s breast and there is substance to that because his other hand can be seen in a position consistent with that put by the father.
There were also a number of photographs which otherwise appear consistent with the father’s theme. He also showed the Court a whole lot of photographs that he had sent C some of which had not been produced by the mother. Some he had taken in Bali. These were sent during the mother’s post-operative treatment where the children were worried about her. They were in the relatively similar period during which the father discussed with the children praying for their mother. They were also in the period where he sent an article on treatment.
Again, in isolation, these might be innocuous but in March 2013, a notation was added to the orders of Watts J that the father undertook not to discuss any aspect of the mother’s medication condition with the children. Whilst the undertaking permitted him to respond to the children’s concerns, the inference was obvious that the children were not to be stressed. One other photograph sent to the mother but for C, was of a bare breasted woman but in artistic colour and tone. As C was then under ten, the artistic value must be questionable. I can understand the mother’s sensitivity because of the timing and the fact that the subject heading on the email was directed to C. I am not prepared to draw an inference that the father’s conduct was malicious because he must have known with his litigation history, where this material would end up. I have no doubt and I so find, he should have been far more discrete bearing in mind the children were distressed at their mother’s illness. There is no doubt they have been distressed by the fact that their mother’s perception was that this was harassment of her. Thus in the context of all the events, correspondence and litigation, this photograph was at best insensitive.
The evidence does not indicate how the children reacted but they are well aware that the father does not support their mother’s parenting of them and this photography generally would have undoubtedly caused consternation in the mother’s household. Accordingly I find that this is an example of the poor communication between the parties to the extent that the mother perceived the worst and the father claimed innocence. The mother’s perception was justified bearing in mind all of the other correspondence to which I have otherwise referred. The direct contact between the father and the children in the way this occurred also ignores the fact that the mother may not have had an opportunity to vet what was being given to her child. It was the mother’s evidence that C found the pictures distasteful. It was the father’s response that the mother did not have to look at the photographs. That was an irresponsible response from the father as she was their main attachment figure.
In other written communication, the father has referred to the small town where the mother lives in a disparaging way. His explanation was that he had heard the expression used by others including a taxi driver. He conceded that he had urinated on the side of the road in what he called a “bush pee”. He was asked what the impact would have been on the children who were said to have been present in the car when he used the remark that he was “pissing on Canberra”. His response to the Court was that he had not “admitted” that he had done it. This was another recurring theme in this case. The mother’s evidence was that this was what the children told her he said.
The father acknowledged he had made the remark. His obtuse response did him no credit because he said that he thought the children would think it funny. In isolation, perhaps so, but with the regular denigration of their living environment, the children reported this as unpleasant. I find it would be destabilizing. The father is an intelligent man but I find that he did not see that everything he said to the children was interpreted by the mother as disparaging of her. I accept he did say the disparaging things. There is enough evidence for me to be satisfied that his dismissal of these things as jokes or that they were harmless, is not right. There are too many consistent incidents to treat them as jokes and harmless throw away lines. The father is a man who uses colourful and at times pejorative language loosely. Even in the courtroom, his explanation for his conduct was that certain people were “giving him the shits”. It is not a question of decorum or the importance of treating the Court with respect but rather that he uses that sort of language as part of his natural idiom. I have no doubt that he was using that in a disparaging way in front of the children as part of his objective to get the children to come back to live with him. The children should not have been exposed to that sort of concept. B was obviously exposed to it in front of her school peers and her teacher and no doubt, to her embarrassment.
Other disputes about how these children were to be raised were not isolated. It was constant. Another example can be seen in April 2013 when the father wrote under the emboldened heading “Equal joint parental responsibility”. He said that he would not “permit” the girls being in cattle yards in the presence of cattle. That presumably was a reference to danger and it indicates his lack of confidence in the mother to be so aware. The irony in that statement is that it either conflicts with his position of wanting shared care where the mother could care for the children for one week out of two or that he intended to continue to insist on how she should raise the children.
The father’s email went on to refer to excluding the children from being present throughout “the cruel process of separating calves from their mothers”. The Court would have difficulty descending into argument about that issue if it were asked to decide it because it is the same as bringing children up in a particular religious faith. There are undoubtedly many Australians who would see this activity as part of daily life. These are matters for parents and the Court should only interfere if the welfare of children is relevant. The inference I have drawn is that the father’s position is that he would control the mother.
Another example could be seen in May 2013 which is one of the string of emails mentioned above when the father wrote to the mother about a media incident involving completely unrelated children being sexually abused at a completely unrelated school. As a consequence, he wrote to the children’s school requesting gates be installed as a security measure. He requested the mother write likewise. In isolation, that may have been seen as the action of a concerned parent but here, this sort of communication was constant.
In the same period this was going on, the father was attending Psychologist Mr I for assistance as to how he could better relate to his children from whom he had then been separated. The appointments with Mr I were on a referral from the general medical practitioner of the father. Mr I told that doctor in March 2013 that the father’s beliefs tended to be extreme and firmly fixed. In May 2014, Mr I wrote that the strategies that the father had adopted towards his children were likely to be damaging. These remarks related to the children not the mother but there is a clear parallel. The father kept pressing the mother to get control whilst at the same time, attempting to get the children across to his views. For example, Mr I made reference to the father deliberately not sending a birthday present and “withdrawing contact from” B. The father did not concede that was right but I find these strategies were deliberate to make the children succumb to his way of thinking. Mr I wrote that he was not optimistic that his work would “translate” into a fundamental shift “in the approach” the father had taken towards “his ex-wife and children”. I consider he was correct.
The children’s lifestyle in the country
The mother’s family in the country has been hit by tragedy. Accidents have taken lives. The father observed that the children were driven on the back of an open utility vehicle and said to him that the mother would not allow them to get into the cabin. They described a bumpy road. The only way the father could have learned of this was from the children. He did not raise it with any of the experts nor did he challenge the mother about it in cross-examination. From observing the mother and listening to her, I am satisfied that the father’s views about her role are just wrong. Nothing in the evidence, including the mention of the findings of Altobelli FM about the hospital care incident indicated that the mother would put the children’s lives at risk.
The father sent a newspaper page warning the community in October 2014 of the commencement of the fire season. The newspaper advertisement had urged people to start putting in place their fire plans. This prompting had occurred on more than one occasion and notwithstanding the mother’s explanation of her fire plan, the father continued to show his views about what he perceived as the problem. He asked her in cross-examination about the fire situation and she gave an elaborate, well thought out and plausible explanation as to why the risk was low. If there was to be any risk, it could only have come from a grassfire and she described in detail the protection she took including fire-fighting equipment. He knew of her fire plan because it had been described to him in an email. He did not accept that explanation and in what I can only consider an offensive email, suggested that the mother acquire a “bunker”. He offered to contribute towards the costs. The mother had rejected that concept on the basis that it was unnecessary. Rather than this being a co-operative and concerned parent, I accept the mother’s version of the evidence that this was the father being obsessed with controlling her life unnecessarily. The children are aware that he does these things. The rejection of the mother’s responsible attitude as a parent reflects poorly on the father and indicates just how difficult a sharing of parental responsibility would be.
The 2014 letters with blue-grey granules
Subsequent to the 2013 proceedings, the father was ordered to pay costs. A costs assessment document was prepared by the solicitor for the mother.
In May 2014, a letter arrived at the offices of the mother’s solicitor in which there was a notice disputing the costs assessment. The father acknowledged that he had sent it.
Ms K is an employee of the mother’s solicitor. She filed an affidavit late in the proceedings but without objection from the father, confirming that when the envelope was opened, some “bluey grey colour” material of a “loose granular” type came out. On the day that that envelope arrived, the mother too received an identical envelope containing the same document. It also contained the same granular material. The father was cross-examined about the document and indicated he knew nothing about this material. When asked for an explanation as to how the two documents in separate envelopes might have become so marked, he indicated that they may have fallen on the floor and been dirty. That explanation is completely implausible. The document which was tendered, runs to a number of pages. Each page of the document appears to be marked. Each envelope still contains some of the material so described. I find it is inconceivable that the items could have been dropped and then placed in the envelope in that way where all pages were similarly dirtied.
When the mother received this item, she immediately contacted her solicitor who was then able to ascertain that he too had received an identical item. The police were called but I have no evidence as to what they did or what the material was. Counsel for the mother put to the father that he had deliberately put this material into the envelope to frighten the mother. What convinces me that he was untruthful was that only days later, he sent another copy of the same notice disputing costs document which was clean. He was unable to give any explanation as to why he sent another one some days later other than the fact that he thought he might have forgotten he had sent it. His explanation was completely implausible. I do not know what the material was but its impact on the mother was obvious. Innocuous in isolation, I must conclude that with the father’s past written offensive communications, this was in a similar vein. Whilst it might have been completely harmless material, it certainly frightened the mother and his behaviour was reprehensible. It is again indicative of the difficulty in making an order for equal shared parental responsibility from both the perspective of any joint negotiations and the fact that these children are very aware of the conflict between their parents.
Notwithstanding the father has indicated that he no longer seeks that the children live in Sydney, his philosophical view about the lifestyle to which the children have become accustomed does not seem to have changed. The mother’s position is one of a parent embattled, tired and resigned to unending litigation. The statement by the father that he would consent to an order to be restrained from bringing further litigation without leave, gave her no comfort. It is clear that the children have begun to dig in and resist being made participants in this dispute.
Having watched the mother, there is no prospect of her being able to communicate let alone negotiate with the father.
The father was asked whether or not he agreed that for a shared care arrangement to work there was a need for “cooperation”. He said it did not require cooperation but rather participation. He acknowledged it required flexibility, civility, and an absence of offensiveness yet nothing in his evidence indicated a capacity on his part to do any of those things.
It was disconcerting that there was no affidavit from Dr G. Exception was taken to him being called by both the mother and the Independent Children’s Lawyer. The father had been represented by lawyers almost until the trial began. However, with counsel’s cooperation, arrangements were made for a “proof of evidence” and a video link to be organised so that Dr G could give evidence.
The evidence of Ms W
Ms W is a family consultant attached to the Canberra Registry of the Court. Faulks DCJ directed her to interview the children. She did so in July 2013. It is clear from her evidence, which was not challenged by any party, that she was endeavouring to ascertain how the children were viewing the immediate circumstances under which their time with the father had been terminated.
The significance of this evidence is that the children were expressing strong reluctance to continue with what they saw they were enduring. They were tired of the snide remarks of their father directed towards their mother and their mother’s family. This was a very limited examination but it is of significance. The children told Ms W that the cessation of contact after March 2013 was better because they had a life in one place and it was not like living in two separate places. Their complaints about their father’s time was that they always had to do something and that they had told him that they wanted to rest. B complained about the telephone contact every night at 6.30pm. She said:
I don’t like it. I get that sinking feeling. Like when he yells. It’s scary. He says “[B] listen to me.” I get that sinking feeling like when you are about to go on stage and you are worried that you might fail. I try and stand up to him when he is angry with me.
There is a clear consistency in the evidence of how the children are viewing the relationship with their father. This interview between a social scientist and the children was not the first. That had happened in the cases before Moore J and Altobelli FM. However, this was the first time that the children had had some respite albeit that they were still speaking to their father on the telephone each night.
In the interview, C told the family consultant that she did not want to talk to her father every night but maybe twice a week. She expressed concern that he would yell at her although he had not done so but that he had yelled at B. The children told Ms W about the incident involving their half-sister J and there is a remarkable consistency about that description with what the father conceded in evidence.
B told Ms W that her father said derogatory things about her grandmother and that offended and saddened her. He called the grandmother a “witch” and a “bitch” and inquired of B whether the grandmother was “barking” or “riding on her broomstick”. These statements were put to the father for comment in cross-examination. His explanation (because he did not challenge the fact that the statement was made) was that B had an obsession with Harry Potter. The explanation was implausible; there were too many of these unscripted and voluntary remarks by B to think she was fantasizing. B described a birthday card sent to the maternal grandmother in which there was dog faeces. B also described her father’s disdain for her maternal uncles.
C’s wish to Ms W was that her parents would get along and not fight all the time but accurately, she described her parents as having to go to court a lot. B described her father using going to church as a form of bullying and stating to her that, as the parent, he decided what was best for her. B made clear to Ms W that her father was not interested in consulting with her mother.
Sadly, B was able to refer to the criminal charges against her father. This was a subject of some controversy. The interview between B and Ms W had taken place in July 2013 which was very shortly after the father had been before the Local Court on those criminal charges. It was the subject of controversy as to who told the children about that court hearing. I accept that the mother did say something to the children but I am not prepared to say that it was in a disparaging way. B told the family consultant that her father laughed on the telephone and said that he had “sent two poo letters to judges” and “didn’t even get fined one dollar”.
The father gave evidence in which he criticised the mother for having raised the subject but B’s perception as portrayed to Ms W would indicate a more important issue and that was that it was he who had treated the outcome of those proceedings in a very flippant and inappropriate way.
B told Ms W that she wanted a normal divorced family so that she could have a chat with her father when she wanted to see him and come and stay on a Saturday night if that suited her. This statement was consistent with the evidence of the mother about how B was expressing a desire to have a “good dad”.
B indicated to Ms W that she wanted her father to stop trying to get her moved to Sydney. Ms W’s observation was that both children were legitimately fearful of contact with their father. The significance of this evidence is that it is truly reflective of what the children were enduring with this parental conflict perpetrated by the father’s obsession with getting them to do things his way including returning to Sydney. The father did not appear to learn from the child’s comments about schooling in Sydney because he had another attempt later.
In March 2014, the father tried to have B sit the entry for selective Sydney schools. The mother said that B raised the issue with her but had commented that her father was really angry and she did not know what to do. B was reported by the mother to say that she would never go to her father’s house again.
The father’s response to the allegation about the discussion with B was that the child said that there was no necessity to undertake the entrance test because the mother had already put her down for a particular school so it would be a waste of time. He recorded that she had said that the only good selective schools were in Sydney so she could not go there. I do not accept that that is what B said. In the context of all of the things that were going on around her, I have little doubt that the father was pressuring the child so that ultimately, schooling in Sydney would be the only option and the mother would have to capitulate.
The other significant issue about this evidence is that it gives the Court some opportunity to see what happened a year later in September 2014 when the situation was examined again but more comprehensively for the purposes of this hearing.
The period after the H report
The father’s evidence about what happened after the report of Ms W was received was brief. The children’s perceptions, if not pleas, were clear.
The father only spoke about what he had researched about buying accommodation in Canberra and the fact that he was not consulted about schooling. He said that at the present time, he considered that as the telephone calls were the only contact he had with the children, it was important to preserve the relationship. He acknowledged that the frequency of the telephone calls could be reduced without harming that relationship and indeed, would enhance it because daily contact by telephone was too much.
The mother had a very different perception of what had occurred after July 2013.
Child Support Agency correspondence
There has been litigation between the parties arising out of a dispute with the Child Support Agency. It would seem that the Agency took into account the father’s significant payout when his relationship with the accounting firm ceased. In his evidence, he complained that the mother and her family were far more wealthy than he was and he pointed specifically to the fact that the mother had a potentially significant inheritance. It seems that this issue remained outstanding and after the appeals tribunal concluded its deliberations and delivered reasons, the father appealed to the Federal Circuit Court where he said that there is an outstanding judgment of 18 months duration. That has certainly not helped the relationship between the parties.
In the midst of this dispute about child support, the father wrote to the Agency in the following words:
The care percentage per court orders has not changed. The bitch (here he names the mother) is in breach of orders.
Incomes in CSA assessment and SSAT decision incorrect and being appealed in the court.
CSA is a biased arm of the radical feminist movement full of dishonest arseholes.
Those words were examined by counsel for the Independent Children’s Lawyer. The father would not agree that this was in the same category as the letters he had sent to other people containing his vitriol. He conceded however that he “lashed out”. This correspondence must be viewed as simply bad behaviour lacking control. Whilst the children were not apparently aware of this child support dispute, the father’s reaction is indicative of his response to anyone with whom he disagrees. The warning bells should have been ringing for him when he read the H report. His view, as expressed in his evidence was that the children’s reticence was to be cured by giving him time with them. In his note to the Agency, he clearly blamed the mother for his lack of contact. To say she was “breaching” orders, like he did over the religion issue, is very much consistent with his perception of how to resolve things. It is consistent with expressed concerns of the professionals about the father’s capacity to change. The children are well aware of the conflict.
The father’s view was that if the orders went the opposite way to the restrictive approach currently existing, these children would adapt and be supportive. I find there is little prospect of that occurring until he changes his ways. On that basis, I accept the evidence of the mother about that prospect. The children have had enough and it is time for the Court to follow their views.
The second consideration concerns protection from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence. I have already mentioned the various provisions of the legislation. These children have been subjected to family violence and are affected psychologically. Protection of children is a matter the Act now requires the Court to give priority to over the benefit of them having a meaningful relationship. The only way that the protection can be given to these children, is to stop the pressure. The physical contact foreshadowed by the father should therefore not occur as a protective measure.
Additional considerations in s 60CC(3) give some assistance in working out which of the two proposals is most likely to lead to the satisfaction of the matters in s 60B.
The Court is to consider the views of the child. That can be done in a variety of ways but particular reference is made to it being through the family consultant (s 62G(2)) and an independent children’s lawyer (s 68L). In this case, I had the benefit of both. The father expressed some surprise, not that the Independent Children’s Lawyer had interviewed the two children but rather, that he had not been told. I accept that the views articulated to the Independent Children’s Lawyer do no more than reflect what they have told the expert report writers.
In respect of views expressed by B, I accept the evidence of the family consultant that C is only 10 so her maturity and level of understanding have to be considered. She knows of the conflict between her parents. She was able to describe her dislike of her father’s conduct. She was able to describe the way her father treated her sister and how she felt uncomfortable about that. She is an intelligent child.
Based on the evidence of the family consultant, I consider both children’s views should be given significant weight. Specifically in respect of B, I am satisfied that she is of an age where her views should be followed. In respect of C, I am satisfied she is a happy child who will do as she is asked but she too is clearly articulating a desire to end the physical contact with her father. I consider that the Court should not separate these children because they have been through so much together. I intend to follow her wish.
In respect of the children’s relationships with the parents and others, there is clearly a close relationship with the mother and the mother’s extended family. The children turn to their mother when they have become frustrated with the behaviour of their father. As I suspect he would have it, the mother speaks of him in unpleasant terms but I was impressed by the evidence of the mother that she has not turned the children that way. The children turn to her in need and she has had to deal with their confusion and frustration. The children are close to their maternal grandmother which makes the conduct of the father towards that person so much harder to understand. Even if he was of the view, which he clearly articulated, that the grandmother was the driving force behind his problems with the children, he failed to recognise how affected the children were by his reference to their grandmother in derogatory terms.
The father has two other children and a partner. There is nothing in the evidence that would enable me to find what sort of relationship exists there between B and C and those people. Just what role they would play was not said. The father offered his adult son Mr R as a form of supervision. In the one piece of evidence where Mr R was mentioned, the father acknowledged that his son used marijuana and (almost flippantly) said he was pretty cunning. Thus, I know little about how responsible or protective, Mr R would be towards B and C. Without knowing how any such proposal would work, I could not accept it would.
Section 60CC requires the Court to consider the involvement of the parents in respect of their desire to involve the other and be involved in the children’s life. Whilst the father has pursued his time and role with the children zealously over the entire 10 years, his conduct has finally exhausted the children to the point that he is not what is attractive to them. Dr G, in evidence, said that in his own homelife, he made unpopular decisions for his teenage child and that was part of parenting but there is no similarity here. I accept the evidence of Mr F that the children now know that the father does not support their mother’s way of parenting. They are now strongly resistant to being forced to have that continue. Sadly, the litigious persistence of the father has caused that.
There was much examination of the financial support of the children. The father saw himself as having paid a significant amount of child support unfairly. I gave him a number of opportunities to explain how he saw the support that should be provided. His response was that he would pay what was ultimately decided but I cannot escape the fact that he saw the mother’s family as exceedingly rich and therefore, they should bear the greater burden. I do not consider that I am in a position to say that the father has not properly and adequately supported the children. I am satisfied however with the father’s litigious nature, any decision of the Child Support Agency which does not fall to his liking will be met with dispute. The children will therefore have to fall back on their mother for any significant financial support in the future.
The impact on B and C of a change in the current contact and communication circumstances is remarkably clear. The children will benefit from the respite but if the father maintains the communication I propose, the children might be more attracted to his suggestions in the future. As they grow older, they will decide what sort of relationship they want with him not the other way around.
To take a contrary view as urged by the father is likely to be counter-productive. There is ample evidence that the children have enjoyed the physical respite but are expressing concern about the on-going telephone contact. Even the father conceded it was currently too much. It is important in my view not to push the children away from the possibility of a relationship with their father in the future. Unfortunately at the moment, there is nothing attractive to them about his proposals.
The Court must consider the respective parental proposals in the light of the practical difficulty and expense of the children spending time with and communicating with each parent. The father’s proposal of a move to Canberra would overcome that anyway.
The Court is obliged to consider parental capacity to provide for the children’s needs. The mother has the necessary capacity but I find that the father’s conduct as both a parent and a litigant indicates that he does not consider the views of people with whom he disagrees. I consider that in this unusual case, that shows a weakness in his parenting capacity. He just does not understand the needs of his children.
The same matters to which I have referred above can be said about the respective attitudes of the parents demonstrated by their behaviour. I have carefully noted the criticism by Altobelli FM of the mother and I watched for that in her approach to this litigation. Nothing I could find suggests that her attitude to parenting was other than responsible. I could not say the same for the father. His behaviour which resulted in the criminal charges was one thing but his description of the outcome of that behaviour to the children which I accept he gave, showed to them that he had little regard for its seriousness. The same must be said of his conduct at the Opera House. On what I found occurred, he completely disregarded the embarrassment to B and his impetuous conduct indicated his attitude to parenting.
I have also dealt with family violence in the details above. They do not need repetition.
This is a case where the Court should make final orders. These children, let alone the parties, need an end even if it is ultimately restrictive of the nature and form of the father’s relationship with B and C. The respite for them is more important than the hurt to the father.
It is timely to remark that under s 65M, there are general obligations created by parenting orders that, in this case, specifically apply to both parties. The mother’s obligation will be to make the children available for communication. The father’s responsibility will be to ensure that he does not talk of all the things that have created the problems culminating in these orders.
What orders should be made?
Parental responsibility
This is not a case where the stalemate has caused delay in a decision being made so much as the children being embroiled in their parents’ conflict. That can be seen in the education and religion issues. Health has rarely been a problem but to the extent that it became so in the future, I would not wish there to be any arguments at all. Importantly, nothing in the evidence suggests that the mother would not make appropriate and carefully thought-out decisions relating to B and C.
As the presumption of equal shared parental responsibility does not apply here for the reasons set out above, I consider the mother should make the decisions.
Contact
The father’s proposal for a graduated reintroduction of time is not appropriate. Any face to face contact is problematic. The supervision concept initially canvassed is not viable. The mother thought the children would be resistant and I agree. Having them attend any form of supervision in a clinical environment would be artificial and counter-productive. Trying to maintain a relationship under some form of sibling supervision by the step-brother Mr R would not be suitable having regard to the absence of evidence.
I accept Mr F’s opinion that protection is more important than time. Protection here concerns psychological and emotional harm. I am satisfied that is, and has been, a significant problem for these children for the last two or three years. It is time to give the children that protection through respite from face to face time.
Furthermore, nothing in the evidence supports a conclusion that face to face time will benefit the children. It is not in the children’s best interests for there to be face to face time.
It is also not appropriate to eliminate the father from the lives of the children either. They need an opportunity to see that they have a father who is interested in them. As they and particularly B, grow older, they can decide whether they wish to expand that relationship. The evidence supports the conclusion that if the father pushes the telephone conversation boundaries, it is counter-productive and the children may become upset. He will need to contemplate that in the limited telephone time that I propose. The greater gaps between the telephone communications may give the father an opportunity to collect his thoughts in advance and work out what topics will be attractive to maintain the attention of the children. To that end, Mr F thought twice a week would suffice but I consider that too onerous for the children.
The Independent Children’s Lawyer sought orders for limited telephone communication and that it should be once per fortnight for six months. He submitted there if there was no change at that point, the order should expire. Having regard to what I have said about the control by the children as they grow older, I consider six months is too short. That suggests a “sundown” approach or one in which the children might get the impression that they need to “suffer” this for that limited period. I want these children to know that they have a father who, albeit misguided, does love them. He needs to prove that and also that his love will be exhibited in an entirely different way to that which has occurred in the past. If he tackles that through therapy, as Dr G said, it will take a long time. The father needs to show patience and the children need to be encouraged to persist whilst he tries (if he does). As I indicated, the children can decide whether these calls are wasted and whether their father is endeavouring to change. Thus, once a week should be ample.
I do not propose to do more than set the starting time. It will be a matter for the children to decide whether these conversations should advance. The mother’s obligation will be to have the children telephone the father rather than the other way around. It will be her responsibility no doubt assisted by the Independent Children’s Lawyer who I understand has a working relationship with the children, to explain that it is the Court’s desire for the relationship to be kept alive but also under control. They will need to understand that it is not their choice but their mother’s obligation.
There was some evidence about the father’s angst about mobile telephones and cancer. I do not intend to enter into that argument. In this society, the devices have become an integral part of the lives of children. The mobility will ensure that the children do not avoid their mother’s obligations by not being at their home line.
The mobile telephone communication should be seen as a base amount. To the extent that the children desire to call their father more often, it will be completely within their control. If the father pushes for them to call more often, they will be told by the Independent Children’s Lawyer that the Court’s view is that it thinks it is in their best interests that the relationship with their father continues but they will have their wish that they can have some but not complete, control. The Independent Children’s Lawyer will also explain to them that this obligation is that of their mother.
In respect of other communication, the father has an appalling record about the contents of presents and cards. Whilst it is immediately recognised that that conduct related to adults and not to his children, I have little confidence that his communications might not stray into that conduct area again. His conversation with the children about the outcome of the criminal proceedings is an example of how such communications go badly wrong if perceived wrongly through the eyes of the children.
The expert evidence indicates that the father knows boundaries but has difficulty keeping them. That is evident in his reactions to the children doing things with which he disagrees. In my view, the lack of trust between the parents is a problem that is unlikely to be solved in the foreseeable future at which time, these children will decide for themselves their own way of doing things. The mother should therefore not be the person to vet written communications. I am hesitant to rely upon a publicly funded organisation such as the Independent Children’s Lawyer but I consider that at least for another year, that will help these children. I propose therefore to order that the Independent Children’s Lawyer be the conduit for any written communication or presents until twelve months from now. After that, these children will be a lot more mature, will know their father’s progress if he has shown change and will see the confidence of their mother grow absent litigation. At that time, they will be mature enough to stop conduct by their father which was inappropriate in written communication and presents.
In the next twelve months, the father must not send text messages and telephone communications to the children. That will obviate disputes about the things that were intended for C but which caused angst to the mother. The father can clearly continue his desire to help C with her art interest but he can do that through hard copies with the Independent Children’s Lawyer.
I turn then to other issues.
The father sought orders that the mother provide him with information about the children. I do not intend to make that an order. The mother can choose to assist the children in their oral communication with the father by keeping him informed of education and health. If the father has to extract information from the children about those matters, the mother will be not assisting in their development. As for serious health matters, I would expect common courtesy to apply.
The father sought injunctive orders about schooling in that he wanted them to live within a certain radius of their school. That is unnecessary and inappropriate. The mother has shown responsibility about schooling and housing and the objective evidence of the experts shows she is doing a good job.
The father sought an order for the mother to maintain a western medicine treatment approach for the children. For the reasons just mentioned, that is unnecessary and inappropriate. I say that taking into account the specific medical problem that C has. In my view, there is nothing I heard and read to suggest that the mother places C medically at risk. She knows the fragility of the human body as a result of her own medical condition. I doubt she would ever take any risks regardless of what was said some years ago by Altobelli FM in the last substantive proceedings.
The father also proposed non-denigration orders. I consider that unnecessary and unenforceable. The father’s past conduct indicates his lack of respect for the mother and her family. The relevant state legislation can deal with those issues where the enforcement provisions are obviously much more stringent than anything this Court can provide.
The mother sought orders for the release of the children’s passports. The evidence did not detail what that was all about but I see no reason for the Court to be the repository of such things. The mother has shown a responsible attitude to parenting all other matters including the father’s relationship with the children. This should be no different. The passports can be immediately released. I note there seem to be extant watch list orders made in the lower court. They have not been mentioned here.
The mother sought specific injunctions about the father contacting her or the children or attending their residence or school. I do not consider there is any basis for me to make those orders and for the same reason as set out above, if the father fails to appreciate the boundaries so well traversed in these reasons, the State law can be considered by the mother. If he does not understand the restrictions of these orders, these reasons can be used by the mother to seek such State relief.
Both parties agreed to an order that the father not bring any application relating to the children but which, in reality should be limited to action brought under the Family Law Act, without leave of a judge of this Court. I will make that order.
The Independent Children’s Lawyer also suggested therapy or counselling for the children. Having regard to my expressed views about the mother and her responsible parenting, I shall leave those matters for her to determine.
The Independent Children’s Lawyer will be discharged in twelve months as earlier indicated. The funding of that appointment is a matter entirely within the province of the relevant legal aid body. There are many deserving persons who could use that public purse assistance. I do not wish it to be seen that the Court is urging a continuation of any such grant when other persons have equal entitlements and in an environment where the parents in this case have had many years of that assistance but I would simply request that the relevant body permit the current Independent Children’s Lawyer to be the conduit as indicated above.
I shall make provision for costs applications.
I certify that the preceding Three Hundred and Nineteen (319) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 27 February 2015.
Associate:
Date: 27 February 2015
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